CRIMINAL LAW

I. FUNDAMENTAL CRIMINAL LAW PRINCIPLES OF
1. PENOLOGICAL OBJECTIVES a.

The first section is a review on certain definitions, principles and concepts underlying Criminal Law as a branch of study. There are FOUR MAJOR LESSONS in this section: A. DEFINITION AND PURPOSE OF CRIMINAL LAW B. RATIONALE BEHIND STATE AUTHORITY TO PUNISH CRIME C. REVIEWING BASIC PRINCIPLES D. MEMORIZING RELEVANT LATIN MAXIMS

Utilitarian theory or protective theory The primary purpose: Protection of society from actual or potential wrongdoers
b.

Classical or juristic philosophy

Best remembered by the maxim “An eye for an eye, a tooth for a tooth.” [Note: If you want to impress the examiner, use the latin version- Oculo pro oculo, dente pro dente.] The primary purpose: Retribution. c. Positivist or realistic philosophy The primary purpose: Reformation. There is great respect for the human element because the offender is regarded as socially sick who needs treatment, not punishment. d. Eclectic or mixed philosophy This combines both positivist and classical thinking. Crimes that are economic and social by nature should be dealt with in a positivist manner; thus, the law is more compassionate. Heinous crimes should be dealt with in a classical manner; thus, capital punishment. The Revised Penal Code today follows the mixed or eclectic philosophy. For example: intoxication of the offender is considered to mitigate his criminal liability, unless it is intentional or habitual; the age of the offender is considered; the woman who killed her child to conceal her dishonor has in her favor a mitigating circumstance.
2. LIMITATIONS

A. DEFINITION Criminal law is that branch or division of municipal law which defines crimes, treats of their nature and provides for their punishment. It is that branch of public substantive law which defines offenses and prescribes their penalties. It is substantive because it defines the state’s right to inflict punishment and the liability of the offenders. It is public law because it deals with the relation of the individual with the state. B. STATE AUTHORITY TO PUNISH CRIME 1987 Constitution Article II, Section 5 Declaration of Principles and State Policies. The maintenance of peace and order, the protection of life, liberty and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. SOURCES OF CRIMINAL LAW 1. The Revised Penal Code (Act No. 3815) and its amendments 2. Special penal laws passed by the Philippine Commission, Philippine Assembly, Philippine Legislature, National Assembly, the Congress of the Philippines, and the Batasang Pambansa. 3. Penal Presidential Decrees issued during Martial Law.

a. Must be general in application. b. Must not partake of the nature of an ex post facto law. (1987 Const. Art III, Sec.22) c. Must not partake of the nature of a bill of attainder. (1987 Const. Art III, Sec 22) d. Must not impose cruel and unusual punishment or excessive fines. (1987 Const. Art III, Sec 19) C. REVIEWING BASIC PRINCIPLES 1. 2. 3. 4. 5. Generality (WHO) Territoriality (WHERE) Prospectivity (WHEN) Legality Strict Construction of against the State

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IMPORTANT POINTS TO REMEMBER: The state’s authority is grounded on what is called the penological objectives. However, such power is also subject to certain limitations.

1. GENERALITY OF CRIMINAL LAW MEANS THAT THE… Criminal law of the country governs all persons within the country regardless of their race, belief, sex or creed. Generality has no reference to territory. It refers to persons that may be governed by the penal law However, it is subject to certain exceptions

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Art. 2, RPC, “Except as provided in the treatise or laws of preferential application…” Art. 14, Civil Code, “…subject to the principles of public international law and to treaty stipulations.” o An example of a treaty or treat stipulation is the Bases Agreement entered into by the Philippines and the US on Mar. 14, 1947 and expired on Sept. 16, 1991. Another example would be the VFA1 signed on Feb. 10, 1998

The territory of the country is not limited to the land where its sovereignty resides but includes also its maritime and interior waters as well as its atmosphere. • Terrestrial jurisdiction is the jurisdiction exercised over land. • Fluvial jurisdiction is the jurisdiction exercised over maritime and interior waters. • Aerial jurisdiction is the jurisdiction exercised over the atmosphere. Excepted under the territoriality characteristic of penal laws are the cases provided for by Art. 2 of the Revised Penal Code. The Code therefore has territorial and extraterritorial applications. b. Scope Of Application Of The Provisions Of The Revised Penal Code
Art. 2. Application of its provisions. — Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who: 1. Should commit an offense while on a Philippine ship or airship 2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands; 3. Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the presiding number; 4. While being public officers or employees, should commit an offense in the exercise of their functions; or 5. Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code.

o

Also excepted under the law of generality are Members of the Congress who are not liable for libel or slander with any speech in Congress or congressional committee. (Sec 11, Art VI 1987 Constitution) Ambassadors, chiefs of states and other diplomatic officials are immune from the application of penal laws when they are in the country where they are assigned2. o EXCEPTIONS TO THE EXCEPTION… (1) Note that consuls are not diplomatic officers. (2) This includes consul-general, vice-consul or and consul in a foreign country, who are therefore, not immune to the operation or application of the penal law of the country where they are assigned.

*^* 2. TERRITORIALITY OF CRIMINAL LAW a. General rule b. Scope of the RPC a. General Rule

Important Things to Remember: The provisions in Article 2 embraces two scopes of applications: Intraterritorial application 1. Intraterritorial refers to the application of the Revised Penal Code within the Philippine territory (land, air and water). 2. As far as jurisdiction or application of the Revised Penal Code over crimes committed on maritime zones or interior waters, the Archipelagic Rule shall be observed. 3. So the three-mile limit on our shoreline has been modified by the rule.

Territoriality-MEANS THAT THE… Penal laws of the country have force and effect only within its territory. It cannot penalize crimes committed outside the same.
1 Take note of the Visiting Forces Agreement, Art. V, which defines Criminal Jurisdiction over United States military and civilian personnel temporarily in the Philippines in connection with activities approved by the Philippine Government 2

R.A. No. 75 which penalizes acts which would impair the proper observance by the Republic and inhabitants of the Philippines of the immunities, rights, and privileges of duly accredited foreign diplomatic representatives in the Philippines

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Extraterritorial application 1. Extraterritoria3l refers to the application of the Revised Penal Code outside the Philippines territory: Par. 1: Crimes committed aboard merchant vessels 1) The RPC is applied to Philippine vessels4 if the crime is committed while the ship is treading: a) Philippine waters (intraterritorial application), or b) The High Seas i.e. waters NOT under the jurisdiction of any State (extraterritorial application) 2) Two rules as to jurisdiction over crimes committed aboard merchant vessels while in the territorial waters of another country (i.e. a foreign vessel treading Philippine waters OR Philippine vessels treading waters under the jurisdiction of another state): a) FRENCH RULE: It is the FLAG/Nationality of the vessel which determines jurisdiction UNLESS the crime violates the peace and order of the host country. b) ENGLISH RULE: the location or situs of the crime determines jurisdiction UNLESS the crime merely relates to internal management of the vessel. NOTE: Philippines adhere to ENGLISH RULE. Illustration: If two petty officers aboard a Russian ship docked in Manila North Harbor got into a fistfight which resulted in serious physical injuries, it is Russian Law which will apply. However, if the cause of the fight is a dispute over the ownership of several hundred grams of cocaine stashed somewhere in the ship, then Philippine Law must apply because importation of illegal substance is a violation of public peace and order. NOTE: This illustration works for both rules because the general rule in one is the exception of the other. NOTE: These rules are NOT applicable if the vessel is on the high seas when the crime was committed, in these cases, the laws of the nationality of the ship will always apply. 3. When the crime is committed in a war vessel of a foreign country, the NATIONALITY of the vessel will ALWAYS determine jurisdiction because war vessels are part of the sovereignty of the country to whose navel force they belong. 4. Three International Jurisdiction Theories On Aerial

a. Free Zone Theory The atmosphere over the country is free and not subject to the jurisdiction of the subjacent state, except for the protection of its national security and public order. b. Relative Theory The subjacent state exercises jurisdiction over the atmosphere only to the extent that it can effectively exercise control thereof. c. Absolute Theory i. The subjacent state has complete jurisdiction over the atmosphere above it subject only to the innocent passage by aircraft of a foreign country. NOTE: The Philippines adopts this theory. ii. Under this theory, if the crime is committed in an aircraft, no matter how high, as long as it can be established that it is within the Philippine atmosphere, Philippine 5 criminal law will govern. Par. 2 & 3: Forging/Counterfeiting and Introducing Coins or Currency Notes in the Philippines 1. The forgery is committed abroad 2. And it refers to Philippine coin, currency note, obligation and security Par. 4: When public officers or employees commit an offense in the exercise of their functions 1) The most common subject of bar problems in Article 2 is paragraph 4. 2) As a general rule, the Revised Penal Code governs only when the crime committed pertains to the exercise of the public official’s functions: a) Those having to do with the discharge of their duties in a foreign country. b) The functions contemplated are those, which are, under the law: i) to be performed by the public officer ii) in the Foreign Service of the Philippine government iii) in a foreign country. NOTE: The Revised Penal Code governs if the crime (whether or not in relation to the exercise of public functions) was committed within the Philippine Embassy or within the embassy grounds in a foreign country. This is because embassy grounds are considered an extension of sovereignty. Thus the crime is deemed to have been committed in Philippine soil. Illustration: A Philippine consulate official who is validly married here in the Philippines and who marries again in a foreign country cannot be prosecuted
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RA9327 (The Human Security Act) contains provisions for extraterritorial application
The country of registry determines the nationality of the vessel, NOT ITS OWNERSHIP. A Filipino-owned vessel registered in China must fly the Chinese flag.

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See Anti-hijacking Law, pg___
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here for bigamy because this is a crime not connected with his official duties. However, if the second marriage was celebrated within the Philippine embassy, he may be prosecuted here, since it is as if he contracted the marriage here in the Philippines. Par. 5: Commit any of The Crimes Against National Security and the Law Of Nations, Defined In Title One Of Book Two Of This Code. 1. Rebellion is not included. 2. Any crime against public order is under the jurisdiction of the host country. • If the new law imposes a heavier penalty, ◦ the law in force at the time of the commission of the offense shall be applied. If the new law totally repeals the existing law so that the act which was penalized under the old law is no longer punishable, ◦ the crime is obliterated.

Rule of prospectivity also applies to judicial decisions6, administrative rulings and circulars. 1. Co vs. CA (1993), In this case, Circular No. 4 of the Ministry of Justice, dated December, 15, 1981, provides that “where the check is issued as part of an arrangement to guarantee or secure the payment of an obligation, whether pre-existing or not, the drawer is not criminally liable for either estafa or violation of BP 22.” Subsequently, the administrative interpretation was reversed in Circular No. 12, issued on August 8, 1984, such that the claim that the check was issued as a guarantee or part of an arrangement to secure an obligation or to facilitate collection, is no longer a valid defense for the prosecution of BP 22. Hence, it was ruled in Que vs. People that under the new Circular, a check issued merely to guarantee the performance of an obligation is covered by BP 22. However, consistent with the principle of prospectivity, the new doctrine should not apply to parties who had relied on the old Circular and acted on the faith thereof. No retrospective effect. Rationale for the prospectivity rule: the punishability of an act must be reasonably for the guidance of society. 4. LEGALITY (NULLUM POENA SINE LEGE) CRIMEN NULLA

*^* 3. PROSPECTIVITY OF CRIMINAL LAW MEANS THAT… Acts or omissions will only be subject to a penal law if they are committed AFTER a penal law had already taken effect. Vice versa, this act or omission which has been committed before the effectivity of a penal law could not be penalized by such penal law because penal laws operate only prospectively. This is also called irretrospectivity. General Rule: prohibited. • Ex post facto law is

Ex post facto law is one that is specifically made to retroact to cover acts before it became effective to the prejudice of the accused; or to make a certain crime graver or prescribe a heavier penalty for it.

Exception: Art. 22. Retroactive effect of penal laws. — Penal Laws shall have a retroactive effect --insofar as they favor the persons guilty of a felony, --who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same. This is consistent with the general principle that criminal laws, being a limitation on the rights of the people, should be construed strictly against the State and liberally in favor of the accused. Different effects of repeal of penal law. • If the repeal makes the penalty lighter in the new law, ◦ the new law shall be applied, ◦ except when the offender is a habitual delinquent or when the new law is made not applicable to pending action or existing causes of action. UP BAROPS

Art. 21. Penalties that may be imposed. — No felony shall be punishable by any penalty not prescribed by law prior to its commission. There is no crime when there is no law punishing the same. • This is true to civil law countries, but not to common law countries. Limitation: • Not any law punishing an act or omission may be valid as a criminal law. If the law punishing an act is ambiguous, it is null and void. 5. STRICT CONSTRUCTION OF PENAL LAWS AGAINST STATE: THE “DOCTRINE OF PRO REO” Whenever a penal law is to be construed or applied and the law admits of two interpretations - one lenient to the offender and one strict to the offender-

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Art. 8, Civil Code

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• that interpretation which is lenient or favorable to the offender will be adopted.

II. FELONIES
This section discusses how and why an act is subject to criminal liability, the different stages of committing an as well as the classification of punishable conduct. There are section: FIVE MAJOR LESSONS in this

This is in consonance with the fundamental rule that all doubts shall be construed in favor of the accused . Consistent with the presumption of innocence of the accused. 1987 Constitution, Article III, Sec. 14(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved…. This is peculiar only to criminal law. EQUIPOISE RULE: • When the evidence of the prosecution and the defense are equally balanced, the scale should be tilted in favor of the accused in obedience to the constitutional presumption of innocence.7 D. BASIC MAXIMS IN CRIMINAL LAW 1. ACTUS NON FACIT REUM, NISI MENS SIT REA The act cannot be criminal where the mind is not criminal. This is true to a felony characterized by dolo, but not a felony resulting from culpa. This maxim is not an absolute one because it is not applied to culpable felonies, or those that result from negligence. 2. ACTUS ME INVITO MEUS ACTUS FACTUS NON EST

A. DIFFERENTIATING FELONIES, OFFENSE, MISDEMEANOR AND CRIME B. FELONIES: HOW COMMITTED C. CLASSIFICATION OF FELONIES

D. CRIMES DEFINED AND PENALIZED BY SPECIAL LAWS

A. DIFFERENTIATING FELONIES, OFFENSE, MISDEMEANOR AND CRIME 1. FELONY The term felony is limited only to violations of the Revised Penal Code. When the crime is punishable under a special law you do not refer to this as a felony. IMPORTANCE: • There are certain provisions in the Revised Penal Code where the term “felony” is used, which means that the provision is not extended to crimes under special laws. • A specific instance is found in Article 160- Quasi-Recidivism, which reads: “A person who shall commit a felony after having been convicted by final judgment, before beginning to serve sentence or while serving the same, shall be punished under the maximum period of the penalty.” Note that the word “felony” is used. 2. OFFENSE A crime punished under a special law is called a statutory offense. 3. MISDEMEANOR A minor infraction of the law, such as a violation of an ordinance.

An act done by me against my will is not my act. This is related to the preceding maxim and is manifested in People v. Ah Chong. 3. EL QUE ES CAUSA DE LA CAUSA ES CAUSA DEL MAL CAUSADO He who is the cause of the cause is the cause of the evil caused. This is the rationale in par. 1 of Article 4 which enunciates the doctrine of proximate cause. He who commits an intentional felony is responsible for all the consequences which may naturally and logically result therefrom, whether foreseen or intended or not.

4. CRIME Whether the wrongdoing is punished under the Revised Penal Code or under a special law, the generic word “crime” can be used.

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Ursua v. CA (1996); Corpuz v. People (1991)
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B. FELONIES: HOW COMMITTED Art. 3. Definitions. — Acts and omissions punishable by law are felonies (delitos). Felonies are committed not only be means of deceit (dolo) but also by means of fault (culpa). There is deceit when the act is performed with deliberate intent and there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. 1. ELEMENTS OF FELONIES a. There must be an act or omission b. That the act or omission must be punishable by the RPC c. That the act is performed or the commission incurred by means of dolo or culpa ACTUS REUS/PHYSICAL ACT To be considered as a felony, there must be an act or omission; An act refers to any kind of body movement that produces change in the outside world. A mere imagination no matter how wrong does not amount to a felony. Illustration: If A, a passenger of a jeepney seated in front of a lady, started putting out his tongue suggesting lewdness that is already an act in contemplation of criminal law8. He cannot claim that there was no crime committed. If A scratches something, this is already an act which annoys the lady he may be accused of unjust vexation, not malicious mischief. ACT v. STATUS • An act must produce some kind of change with a physical manifestation, status, on the other hand is a concept which lies between an action and the imagination; it is defined as Omission is • the failure to perform a duty • required by law. • It is important that there is a law requiring the performance of an act, if there is no positive duty, there is no liability. • Examples of such are failure to render assistance9, failure to issue receipt or non disclosure of knowledge of conspiracy against the government10. MENS REA/MENTAL ELEMENT mens rea, is defined as "a guilty mind, a guilty or wrongful purpose or criminal intent"11, It sometimes referred to in common parlance as the gravamen of the offense (bullseye of the crime). This term is used synonymously with criminal or deliberate intent It does not mean that if an act or omission is punished under the Revised Penal Code, a felony is already committed. For an act to be punishable, THERE MUST BE A CONCURRENCE BETWEEN THE ACT AND THE INTENT.
1. DOLO (DELIBERATE INTENT)

a. Elements b. Categories of Intent c. Distinction between Intent and i. Discernment ii. Motive IMPORTANT THINGS TO REMEMBER: Under Article 3, there is dolo when there is deceit. This is no longer true. At the time the Revised Penal Code was codified, the term nearest to dolo was deceit. However, deceit means fraud, and this is not the meaning of dolo. Dolo is DELIBERATE INTENT otherwise referred to as criminal intent, and must be coupled with freedom of action and intelligence on the part of the offender as to the act done by him. Presumption Criminal Intent • Intent is a mental state, • the existence of which is shown by the overt act of a person, • so criminal intent is presumed to exist only if the act is unlawful. It does not apply if the act is not criminal. • The presumption of criminal intent may arise from proof of the criminal act and it is for the accused to rebut this presumption. • However, in some crimes intent cannot be presumed being an integral element thereof; so it has to be proven (i.e. in frustrated homicide, specific intent to kill is not presumed but must be proven, otherwise it is merely physical injuries). Liability Even in the Absence of Criminal Intent • There are 2 exceptions to the requirement of Criminal Intent: ◦ FELONIES COMMITTED by CULPA (infra) ◦ OFFENSE MALA PROHIBITA (infra)

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Unjust vexations under Art. 287. Light coercions. Art. 275. Abandonment of person in danger and abandonment of one's own victim 10 Art. 116. Misprision of treason.
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Black's Law Dictionary, 5th ed., p. 889

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a. Elements of DOLO i. Criminal intent; This is shown by overt acts It presupposes the existence of the two subsequent elements ii. Freedom of action; and The lack of freedom makes one merely a tool iii. Intelligence The lack of intelligence makes one unable to determine → The morality of his acts → The effect of his actions The presence CIRCUMSTANCES FREEDOM of JUSTIFYING indicates LACK OF whether he planned to kill Burt or merely to inflict a whole lot of pain. Ernie can overturn the presumption of general criminal intent by proving that he was justified (infra), entitled to any exempting circumstances (due to lack of discernment) or there was a mistake of fact (infra). If he is successful, then the presumption that he intended to do something wrong is obliterated along with the need to determine specific intent. However, the result of Ernie’s act will now determine his liability. Was his act justified that he incurs no liability? Is he entitled to any exemption? Or is his liability only mitigated? Establishing the specific intent is the way to hit the “bullseye” of the crime: • E.g. If the prosecution wants to hold Ernie liable for homicide/murder, then they have to establish Ernie’s intent to kill, which is the “bullseye” of the crimes mentioned. • In theft, the gravamen of the offense would be the taking with intent to gain as distinguished from estafa where the essence is deceit. • Attempted rape and acts of lasciviousness have similar elements separated only by the offender’s intent to have sexual intercourse with the victim. c. Distinctions Between Intent, Discernment and Motive

Some of the EXEMPTING CIRCUMSTANCES exculpate those who LACK THE INTELLIGENCE to determine the nature and consequences of their actions. The lack of CRIMINAL INTENT can be a MITIGATING CIRCUMSTANCE or the accused can be merely held liable for CRIMINAL NEGLIGENCE. If any of the elements is absent, there is no dolo. If there is no dolo, there could be no intentional felony.12

b. Categories of Intent In criminal law, intent is categorized into two types: General Criminal Intent The intention to do something wrong Presumed from the mere doing of a wrong act The burden is upon the wrong doer to prove that he acted without such criminal intent. Specific Criminal Intent The intention to commit a definite act Existence is not presumed Since the specific intent is an element of the crime, the burden is upon the prosecution to establish its existence.

INTENT Determination to do a certain thing, an aim or purpose of the mind.

DISCERNMEN T the mental capacity to tell right from wrong

MOTIVE It is the moving power which impels one to do an act (ex. vengeance). Important only in certain cases (see below) in

Establish the nature and extent of culpability

Integral to the element of intelligence NOT intent.

When Motive becomes Material determining Criminal Liability:

Illustration Ernie, without any provocation, stabbed Burt. The very act of stabbing is the quantum of proof needed to establish the fact that Ernie intended to do something wrong. This is the GENERAL CRIMINAL INTENT. However, Ernie can be liable for more than one crime; thus, prosecution must establish Ernie’s SPECIFIC INTENT in order to determine
12 Visbal vs. Buban, 2003

1) When the act brings about variant crimes e.g. kidnapping v. robbery13 2) The identity of the accused is doubtful 3) The evidence on the commission of the crime is purely circumstantial. 4) Also, lack of motive can aid in showing the innocence of the accused.14 Illustration: Ernie came home and found his wife in a pleasant conversation with Burt, former suitor. Thereupon, he went to the kitchen, opened a drawer and pulled out a knife. He then stabbed Burt. The moving force is jealousy.
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People v. Puno (1993) People vs Hassan, 1988

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The intent is the resort to the knife, so that means he desires to kill the Burt, the former suitor. Ernie’s deliberate choice of something as lethal as the knife shows the presence of intelligence because it is his very awareness of the danger which prompted his choice. This only means that he knew what is right from wrong and deliberately chose to do what is wrong. NOTE: Discernment does not indicate the presence of intent, merely intelligence.15 Thus, discernment is necessary whether the crime is dolo or culpa. Stabbing the victim whom the accused believed to be an intruder showed a mistake of fact on his part which led him to take the facts as they appear to him and was pressed to take immediate action.

2. CULPA (CONSTRUCTIVE INTENT) a. Elements b. Doctrines Concerning Culpable Crimes

IMPORTANT THINGS TO REMEMBER: Although there is no intentional felony, there could be culpable felony. The element of criminal intent is replaced by CRIMINAL NEGLIGENCE. Is culpa merely a mode of committing a crime or a crime in itself? AS A MODE Under Article 3, it is clear that culpa is just a modality by which a felony may be committed. A felony may be committed or incurred through dolo or culpa. Culpa is just a means by which a felony may result.

d. Mistake of Fact (ignorantia facti excusat) When an offender acted out of a misapprehension of fact, • it cannot be said that he acted with criminal intent. • When the offender acted out of a mistake of fact, criminal intent is negated, so do not presume that the act was done with criminal intent. • This is absolutory if the crime involved dolo. The Requisites16 of Mistake of Fact are: i. That the act done would have been lawful had the facts been as the accused believed them to be; ii. That the intention of the accused in performing the act should be lawful; iii. That the mistake must be without fault or carelessness on the part of the accused. When the accused is negligent, mistake of fact is not a defense. Illustration: People v. Ah Chong (1910) A houseboy who stabs his roommate in the dark, honestly mistaking the latter to be a robber responsible for a series of break-ins in the area, and after crying out sufficient warnings and believing himself to be under attack, cannot be held criminally liable for homicide. 1) Would the stabbing be lawful if the facts were really what the houseboy believed? a. Yes. If it was really the robber and not the roommate then the houseboy was justified. 2) Was the houseboy’s intention lawful? a. Yes. He was acting out of selfpreservation. 3) Was the houseboy without fault or negligence? a. Yes. His deliberate intent to defend himself with the knife can be determined by the fact that he cried out sufficient warnings prior to the act.

Act of Dolo

OR

Act of Culpa

FELONY

People vs. Faller (1939), It was stated indirectly that criminal negligence or culpa is just a mode of incurring criminal liability. In this case, the accused was charged with malicious mischief. Malicious mischief is an intentional negligence under Article 327 of the Revised Penal Code You do not have malicious mischief through simple negligence or reckless imprudence because it requires deliberateness. Faller was charged with malicious mischief, but was convicted of damage to property through reckless imprudence. The Supreme Court pointed out that although the allegation in the information charged the accused with an intentional felony, yet the words feloniously and unlawfully, which are standard languages in an information, covers not only dolo but also culpa because culpa is just a mode of committing a felony.

AS A CRIME In Article 365, you have criminal negligence as an omission which the article definitely or specifically penalized. The concept of criminal negligence is the inexcusable lack of precaution on the part of 2008 Page 8 of 62

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People v. Cordova 1993 People vs Oanis, 1988

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the person performing or failing to perform an act. Because Article 365, creates a distinction between imprudence and negligence; simple or reckless, one might think that criminal negligence is the one being punished. That is why a question is created that criminal negligence is the crime in itself. Held: The second case must be dismissed. Once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for the same act. For the essence of the quasi-offense under Art. 365 of the RPC lies in the execution of an imprudent act which would be punishable as a felony. The law penalizes the negligent act and not the result. The gravity of the consequences is only taken into account to determine the penalty. It does not qualify the substance of the offense.

Act of Dolo

OR

Act of Culpa

INTENTIONAL

CRIMINAL NEGLIGENCE (ART 365)

b. Doctrines Concerning Culpable Crimes Emergency Rule • A person who is confronted with a sudden emergency • may be left no time for thought. • so must make speedy decision based largely upon impulse or instinct, ◦ and cannot be held to the same conduct as one who has had an opportunity to reflect, ◦ even though it later appears that he made the wrong decision. Doctrine Of “Last Clear Chance” • The contributory negligence of the party injured ◦ will not defeat the action • if it be shown that the accused might, by the exercise of reasonable care and prudence, • have avoided the consequences of the negligence of the injured party. • The applicability of this doctrine in criminal cases is somewhat dubious: Anuran v. Buno (1966) ◦ The principle about the "last clear chance" would call for application in a suit between the owners and drivers of the two colliding vehicles. ◦ It does not arise where a passenger demands responsibility from the carrier to enforce its contractual obligation • Last Clear Chance is a defense by the defendant in a damage suit against liability by transferring it to the plaintiff. • This dynamics cannot be replicated in a criminal case because ◦ the liability is penal in nature and thus cannot be transferred within the same case ◦ It is not a case between two parties involved in an incident but rather between an individual and the State. Rule Of Negative Ingredient • This is related to the doctrine of proximate cause and applicable when certain causes leading to the result are not identifiable. • This rule states that ◦ the prosecution must first identify what the accused failed to do. ◦ Once this is done, the burden of evidence shifts to the accused.

FELONIES

Quizon vs. Justice of the Peace (1995), Justice J.B.L. Reyes dissented and claimed that criminal negligence is a quasioffense, and the correct designation should not be homicide through reckless imprudence, but reckless imprudence resulting in homicide. The view of Justice Reyes is sound, but the problem is Article 3, which states that culpa is just a mode by which a felony may result.

a. Elements of CULPA Culpa Requires the Concurrence of Three Requisites: Criminal negligence on the part of the offender, • that is, the crime was the result of negligence, reckless imprudence, lack of foresight or lack of skill; Freedom of action on the part of the offender, that is, he was not acting under duress; • Negligence presupposes the ability to be vigilant; and vigilance depends on whether the person chose to be or not. Intelligence on the part of the offender in the performance of the negligent act. • The absence of intelligence means that the person is unable to assess the danger of a situation. • He cannot be charged for lack of foresight and/or prudence because the person cannot discern and predict the consequence of his course of action. People v. Buan (1968) Facts: The accused was driving a passenger bus. Allegedly because of his recklessness, the bus collided with a jeep injuring the passengers of the latter. A case was filed against the accused for slight physical injuries through reckless imprudence for which he was tried and acquitted. Prior to his acquittal, a case for serious physical injuries and damage to property through reckless imprudence was filed. Accused claimed that he was placed in twice in jeopardy.

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◦ The accused must show that the failure did not set in motion the chain of events leading to the injury.17 But even certain crimes which are punished under the Revised Penal Code do not admit of these stages. A more detailed discussion can be found LIABILITY FOR INCOMPLETE under ELEMENTS (pg___) Related to this classification of felonies as to:
1. Formal Crimes a. Formal crimes are crimes, which are

E. CLASSIFICATION OF FELONIES This question examination: was asked in the bar

How do you classify felonies and how are felonies classified? TIP: What the examiner had in mind was Articles 3, 6 and 9. Do not write the classification of felonies under Book 2 of the Revised Penal Code. The question does not require the candidate to classify but also to define. Therefore, the examiner was after the classifications under Articles 3, 6 and 9. The purpose of classifying penalties is to bring about a proportionate penalty and equitable punishment. The penalties are graduated according to their degree of severity. • The stages (Art. 6) may not apply to all kinds of felonies. • There are felonies which do not admit of division. FELONIES ARE CLASSIFIED AS FOLLOWS: 1. According to the manner of their commission 2. According to the stages of their execution 3. According to their gravity OTHER CLASSIFICATIONS 4. As to count 5. As to nature

consummated in one instance.
b. Illegal exaction under Article 213 is

a crime committed when a public officer who is authorized to collect taxes, licenses or impose for the government, shall demand an amount bigger than or different from what the law authorizes him to collect. ◦ Under sub-paragraph (a) of Article 213 on illegal exaction, the law uses the word “demanding.” ◦ Mere demanding of an amount different from what the law authorizes him to collect will already consummate a crime, whether the taxpayer pays the amount being demanded or not. ◦ Payment of the amount being demanded is not essential to the consummation of the crime.
2. Material Felonies a. Those

that have various stages of execution b. Ex. Homicide
3. Crimes which have NO FRUSTRATED

STAGE
a. The essence of the crime is the act

itself;
b. Hence in rape, the slightest penetration

1. ACCORDING TO THE MANNER OF THEIR COMMISSION Under Article 3, they are classified as:

already consummates the crime; the same is true for arson where the slightest burning already renders the crime complete. 3. ACCORDING TO THEIR GRAVITY

a. intentional felonies or those committed with deliberate intent; and b. culpable felonies or those resulting from negligence, reckless imprudence, lack of foresight or lack of skill. 2. ACCORDING TO THE STAGES OF THEIR EXECUTION

Under Article 9, felonies are classified as: a. Grave felonies or those to which attaches ◦ the capital punishment or ◦ penalties which in any of their periods are afflictive; Less grave felonies or ◦ those to which the law punishes with penalties which in their maximum period is correctional; Light felonies or those infractions of law for the commission of which ◦ the penalty is arresto menor.

a. Under Article 6, felonies are classified as: a. attempted felony b. frustrated felony c. consummated felony The classification of stages of a felony in Article 6 are true only to crimes under the Revised Penal Code. This does not apply to crimes punished under special laws.
17 Carillo vs People, 1994

a.

Why is it necessary to determine whether the crime is grave, less grave or light? • To determine ◦ whether these felonies can be complexed or not; ◦ the prescription of the crime and ◦ the prescription of the penalty. 2008 Page 10 of 62

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• In other words, these are felonies classified according to their gravity, stages and the penalty attached to them. Dolo is not required in crimes punished by special laws because these crimes are mala prohibita. In those crimes punished by special laws, the act alone irrespective of its motives, constitutes the offense. Good faith and absence of criminal intent are not valid defenses in crimes punished by special laws MALA IN SE and MALA PROHIBITA Mala in se an act, by its very nature, is inherently and morally wrong; it should be done with criminal intent Malum prohibitum An act is wrong only because there is a law punishing it. It is enough that the prohibited act was voluntarily committed and need not be committed with malice or criminal intent to be punishable. Estrada v. Sandiganbayan (2001) Facts: Estrada is challenging the plunder law. One of the issues he raised is whether plunder is a malum prohibitum or malum in se. Held: Plunder is a malum in se which requires proof of criminal of criminal intent. Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a prosecution for plunder. It is noteworthy that the amended information alleges that the crime of plunder was committed “willfully, unlawfully and criminally.” It thus alleges guilt knowledge on the part of the petitioner. While intentional felonies are always mala in se, it does not follow that prohibited acts done in violation of special laws are always mala prohibita. Even if the crime is punished under a special law, if the act punished is one which is inherently wrong, the same is malum in se, and, therefore, good faith and the lack of criminal intent is a valid defense; unless it is the product of criminal negligence or culpa. Likewise when the special laws require that the punished act be committed knowingly and willfully, criminal intent is required to be proved before criminal liability may arise.

Take note that when the Revised Penal Code speaks of grave and less grave felonies, the definition makes a reference specifically to Article 25 of the Revised Penal Code. Do not omit the phrase “In accordance with Article 25” because there is also a classification of penalties under Article 26 that was not applied. This classification of felony according to gravity is important with respect to the question of prescription of crimes. • Ex. If the penalty is a fine and exactly P200.00, it is only considered a light felony under Article 9. If the fine is imposed as an alternative penalty or as a single penalty, the fine of P200.00 is considered a correctional penalty under Article 26. • If the penalty is exactly P200.00, apply Article 26. It is considered as a correctional penalty and it prescribes in 10 years. If the offender is apprehended at any time within ten years, he can be made to suffer the fine. 4. AS TO COUNT Plurality of crimes may be in the form of: a) Compound Crime, b) Complex crime; and c) Composite crime. 5. AS TO NATURE a) Mala in se b) Mala prohibita

C. CRIMES DEFINED AND PENALIZED BY SPECIAL LAWS 1. TEST TO DETERMINE IF VIOLATION OF SPECIAL LAW IS MALUM PROHIBITUM OR MALUM IN SE 2. RELATION OF RPC TO SPECIAL LAWS: SUPPLETORY APPLICATION OF RPC 3. DISTINCTION BETWEEN CRIMES PUNISHED UNDER THE REVISED PENAL CODE AND CRIMES PUNISHED UNDER SPECIAL LAWS

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

1. TEST TO DETERMINE IF VIOLATION OF SPECIAL LAW IS MALUM PROHIBITUM OR MALUM IN SE 1) Analyze the violation: Is it wrong because there is a law prohibiting it or punishing it as such? If you remove the law, will the act still be wrong? 2) If the working of the law punishing the crime uses the word “willfully,” then malice must be proven.

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Where malice is a factor, good faith is a defense. 3) In violation of special law, the act constituting the crime is a prohibited act. Therefore, culpa is not a basis of liability, unless the special law punishes an omission. TIP: When given a problem, take note if the crime is a violation of the Revised Penal Code or a special law. 2. People vs. Rodriguez (1960), It was held that a violation of a special law can never absorb a crime punishable under the Revised Penal Code, because violations of the Revised Penal Code are more serious than a violation of a special law. But a crime in the Revised Penal Code can absorb a crime punishable by a special law if it is a necessary ingredient of the crime in the Code. But do not think that when a crime is punished outside of the Revised Penal Code, it is already a special law. 3. People vs. Martinada. The crime of cattle-rustling is not a mala prohibitum but a modification of the crime of theft of large cattle. So Presidential Decree No. 533, punishing cattle-rustling, is not a special law. It can absorb the crime of murder. If in the course of cattle rustling, murder was committed, the offender cannot be prosecuted for murder. • Murder would be a qualifying circumstance in the crime of qualified cattle rustling18.

2. RELATION OF RPC TO SPECIAL LAWS: SUPPLETORY APPLICATION OF RPC Offenses punishable under special laws are not subject to the provisions of the RPC. The RPC shall be supplementary to special laws, unless the latter should specially provide the contrary (Art. 10, RPC) Article 10 is the consequence of the legal requirement that one must distinguish those punished under special laws and those under the Revised Penal Code. With regard to Article 10, observe the distinction. When Applied? • • As a supplement to the special law, or simply correlate the violated special law, if needed to avoid an injustice.

3. DISTINCTION BETWEEN CRIMES PUNISHED UNDER THE REVISED PENAL CODE AND CRIMES PUNISHED UNDER SPECIAL LAWS a. As To Moral Trait Of The Offender MALA IN SE o The moral trait of the offender is considered. o This is why liability would only arise when there is dolo or culpa in the commission of the punishable act. MALUM PROHIBITUM o The moral trait of the offender is not considered; o it is enough that the prohibited act was voluntarily done.

If no justice would result, do not give suppletory application of the Revised Penal Code to that of the special law. 1. Ladonga vs. People, 451 SCRA 673 The second clause (of Art. 10) contains the soul of the article. The main idea and purpose of the article is embodied in the provision that the "code shall be supplementary" to special laws, unless the latter should specifically provide the contrary. For Example: • A special law punishes a certain act as a crime. • The special law is silent as to the civil liability of one who violates the same. • May the court pronounce that a person is civilly liable to the offended party, considering that the special law is silent on this point? ◦ Yes. Article 100 states that every person criminally liable for a felony is also civilly liable. ◦ That article shall be applied suppletorily to avoid an injustice that would be caused to the private offended party, if he would not be indemnified for the damages or injuries sustained by him.

b. As To Use Of Good Faith As Defense In crimes punished under the Revised Penal Code,

MALA IN SE o Good faith or lack of criminal intent is a valid defense; unless the crime is the result of culpa.

MALUM PROHIBITUM o In crimes punished under special laws, good faith is not a defense.

c. As To Degree Of Accomplishment Of The Crime MALA IN SE o the degree
18

of

MALUM PROHIBITUM o the act gives rise to

Sec. 8, PD no. 533

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accomplishment of the crime is taken into account in punishing the offender; o thus, there attempted, frustrated consummated stages in commission of crime. are and the the a crime only when it is consummated; o there are no attempted or frustrated stages, unless the special law expressly penalizes a mere attempt or frustration of the crime. 2. Taer v. CA (1990) The offense for which Taer is accused is covered by-Articles 308, 309, and 310, as amended by "The Anti-Cattle Rustling Law of 1974." The penalty imposed on the principal for the crime of cattle rustling is: xxxxxxxxx Inasmuch as Taer's culpability is only that of an accessory after the fact, under Art. 53 of the Revised Penal Code, the penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed.

d. As To Mitigating Circumstances MALA IN SE o Mitigating and aggravating circumstances are taken into account since the moral trait of the offender is

And

Aggravating

MALUM PROHIBITUM o Mitigating and aggravating circumstances are not taken into account in imposing the penalty.

The amendments of Presidential Decree No. 6425 (The Dangerous Drugs Act of 1972) by Republic Act NO. 7659: • Adopted the scale of penalties in the Revised Penal Code, • Mitigating and aggravating circumstances can now be considered in imposing penalties. • Presidential Decree No. 6425 does not expressly prohibit the suppletory application of the Revised Penal Code. • The stages of the commission of felonies will also apply since suppletory application is now allowed. 1. People v. Simon (1994) For cases of Illegal possession of firearms, • although Presidential Decree No. 1866 is a special law, • the penalties therein were taken from the Revised Penal Code, • hence the rules in said Code for graduating by degrees or determining the proper period should be applied.

e. As To Degree Of Participation MALA IN SE o When there is more than one offender, o the degree of participation of each in the commission of the crime is taken into account in imposing the penalty; o thus, offenders are classified as principal, accomplice and accessory. MALUM PROHIBITUM o The degree of participation of the offenders is not considered. o All who perpetrated the prohibited act are penalized to the same extent. o There is no principal or accessory to consider.

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III. Fundamental Principles Criminal Liability Of
2. THERE IS NO CRIME UNLESS THERE IS A LAW PUNISHING IT Art. 5. Duty of the court in connection with acts which should be repressed but which are not covered by the law, and in cases of excessive penalties. Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of legislation. In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense. Article 5 covers two situations:
1. The court cannot convict the accused because

This section will dissect each instance where criminal liability may be incurred, mainly through:

A. PROXIMATE CAUSE B. OMISSION C. TRANSFERRED INTENT D. LIABILITY FOR INCOMPLETE ELEMENTS AND INCOMPLETE CRIMES E. PROPOSAL AND CONSPIRACY F. LIABILITY FOR PLURAL CRIMES

IMPORTANT THINGS TO REMEMBER: 1. HOW IS CRIMINAL LIABILITY INCURRED? Since in Art. 3, a felony is an act or omission punishable by law, particularly the Revised Penal Code, • it follows that whoever commits a felony incurs criminal liability • it is important to note that if the criminal liability arises from an omission ◦ such as misprision of treason or ◦ abandonment of helpless persons, • there must be a law requiring the performance of such act. In par.1 of Art. 4, the law uses the word “felony,” that whoever commits a felony incurs criminal liability. • A felony may arise not only when it is intended, but also when it is the product of criminal negligence. What makes paragraph 1 of Article 4 confusing is the addition of the qualifier “although the wrongful act be different from what he intended.” This is called transferred intent. The 2nd par. of Art. 4 makes a person liable even if the accomplishment of his crime is inherently impossible. Art. 6 also provides liability incomplete elements of a crime. for the

the acts do not constitute a crime. a. The proper judgment is acquittal. b. The court is mandated to report to the Chief Executive that said act be made subject of penal legislation and why. 2. Where the court finds the penalty prescribed for the crime too harsh considering the conditions surrounding the commission of the crime, a. the judge should impose the law. b. The most that he could do is recommend to the Chief Executive to grant executive clemency.

A. PROXIMATE CAUSE For most felonies, criminal liability exists from the concurrence of the mens rea and the actus reus. Illustration: A and B are supposed to meet in A’s home but when B arrived A was not home. B received an SMS from A telling the former to get the house key from under the doormat. B lets himself in and saw an IPOD on the table. B took the IPOD. What is B’s criminal liability? B is liable only for theft because the act and the intent occurred only in the act of taking, there was no malicious intent in the act of letting himself in. Criminal liability for some felonies, arises only upon a specific resulting harm • In homicide and its qualified forms, if the victim does not die the accused may be liable only for physical injuries.

There are certain crimes which provide specific liability for conspiring to and proposing the commission of certain acts, the principle behind this can be found in Art. 8. Plural crimes on the discussed under Art. 48. other hand are

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• Another example is the crime of estafa wherein the victim, for criminal liability to arise, must incur damage. The Supreme Court rationalized that what made B cut his throat, in the absence of evidence that he wanted to commit suicide, is the belief that sooner or later, he would die out of the wound inflicted by A. Because of that belief, he decided to shorten the agony by cutting his throat. That belief would not be engendered in his mind were it not because of the profuse bleeding from his wound. Now, that profusely bleeding wound would not have been there, were it not for the wound inflicted by A. As a result, A was convicted for manslaughter. 1. US vs. Valdez (1921), Facts: The deceased is a member of the crew of a vessel. Accused is in charge of the crewmembers engaged in the loading of cargo in the vessel. Because the offended party was slow in his work, the accused shouted at him. The offended party replied that they would be better if he would not insult them. The accused resented this, and rising in rage, he moved towards the victim, with a big knife in hand threatening to kill him. The victim believing himself to be in immediate peril threw himself into the water. The victim died of drowning. The accused was prosecuted for homicide. His contention that his liability should be only for grave threats since he did not even stab the victim, that the victim died of drowning, and this can be considered as a supervening cause. Held: The deceased, in throwing himself into the river, acted solely in obedience to the instinct of self-preservation, and was in no sense legally responsible for his own death. As to him, it was but the exercise of a choice between two evils, and any reasonable person under the same circumstance might have done the same. The accused must, therefore, be considered the author of the death of the victim. This case illustrates that proximate cause does not require that the offender needs to actually touch the body of the offended party. It is enough that the offender generated in the mind of the offended party the belief that made him risk himself.

It was discussed in the previous section that CRIMINAL INTENT and CRIMINAL NEGLIGENCE are elements for criminal liability. Article 4, paragraph 1 deals with CAUSATION as the third means of determining criminal liability. Vda. De Bataclan v. Medina (1957) Proximate cause is that cause, which sets into motion other causes and which unbroken by any efficient supervening cause, produces a felony and without which such felony could not have resulted. As a general rule, the offender is criminally liable for all the consequences of his felonious act, • although not intended, • if the felonious act is the proximate cause of the felony or resulting felony. Proximate v. Immediate v. Remote Illustrations: #1 A, B, C, D, and E were driving their vehicles along Ortigas Ave. A’s car was ahead, followed by those of B, C, D, and E. When A’s car reached the intersection of EDSA and Ortigas Avenue, the traffic light turned red so A immediately stepped on his break, followed by B, C, and D. However, E was not aware that the traffic light had turned to red, so he bumped the car of D, then D hit the car of C, then C hit the car of B, then, finally, B hit the car of A. In this case, the immediate cause of the damage to the car of A is the car of B, but that is not the proximate cause. The proximate cause is the car of E because it was the care of E which sets into motion the cars to bump into each other. #2 In one case, A and B, who are brothers-in-law, had a quarrel. At the height of their quarrel, A shot B with an airgun. B was hit at the stomach, which bled profusely. When A saw this, he put B on the bed and told him not to leave because he will call a doctor. While A was away, B rose from the bed, went into the kitchen and got a kitchen knife and cut his throat. The doctor arrived and said that the wound in the stomach is only superficial; only that it is a bleeder, but the doctor could no longer save him because B’s throat was already cut. Eventually, B died. A was prosecuted for manslaughter.

2. Urbano vs. IAC (1988) Facts: A and B had a quarrel and started hacking each other. B was wounded at the back. Cooler heads intervened and they were separated. Somehow, their differences were patched up. A agreed to shoulder all the expenses for the treatment of the wound of B, and to pay him also whatever loss of income B may have suffered. B, on the other hand, signed forgiveness in favor of A and on that condition, he withdrew the complaint that he filed against A. After so many weeks of treatment in a clinic, the doctor pronounced that the wound was already healed. Thereafter, B went back to his farm. Two months later, B came home and was chilling. Before midnight, he died out of tetanus poisoning. The heirs of B filed a case of homicide against A.

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Held: The Supreme Court held that A is not liable. It took into account the incubation period of tetanus toxic. Medical evidence were presented that tetanus toxic is good only for two weeks. That if, indeed, the victim had incurred tetanus poisoning out of the wound inflicted by A, he would not have lasted two months. What brought about the tetanus to infect his body was his work in the farm using his bare hands. Because of this, the Supreme Court said that the act of B working in his farm where the soil is filthy, using is own hands, is an efficient supervening cause which relieves A of any liability for the death of B. A, if at all, is only liable for the physical injuries inflicted upon B. 3. People v. Enguito (2000) Facts: A was mauled by B. The latter took off by riding a motorela which contained other passengers. A followed behind in another vehicle with the intent of reporting the incident to the police. A forced his vehicle to bump the motorela a few times , which prompted B to jump. The force of the jump caused the motorela to lose balance thereby flipping to its left side and injuring the other passengers. A contends that he could not be guilty of any physical injuries suffered by the other passengers because the direct cause of the motorela turning on its left side was the act of the driver in guiding the vehicle while the proximate cause is the thrust which resulted when B suddenly jumped out of the motorela. Held: The argument is devoid of merit. A disregarded the basic rule in criminal law that a person is responsible for all the consequences of his unlawful or wrongful act although such consequences were different from those which he originally intended. Even if it be assumed that the real intention of accused-appellant was to surrender the victim to the police for mauling him, his act of pursuing the victim, who was a passenger of the motorela, resulted in the injuries of the driver and the other passenger of the motorela. Upon seeing that B was trying to jump out of the motorela, A should have known that by closely following, pushing and bumping the motorela, he could injure the passengers, which is what happened in this case. Instead, he persisted resulting in the motorela turning on its side and in the opposite direction The act of accused-appellant in relentlessly pursuing the motorela is a manifestation of his intention to perpetrate the crime. 4. People v. Acuram (2000) Appellant blames the death of the victim on the lack of prompt and proper medical attention given. He insists that the delay in giving proper medical attendance to the victim constitutes an efficient intervening cause which exempts him from criminal responsibility. Held: The attending doctors are not liable for the death of the victim. The perceived delay in giving medical treatment to the victim does not break at all the causal connection between the wrongful act of 100% UP LAW UP BAROPS 2008 Page 16 of 62 the appellant and the injuries sustained by the victim. It does not constitute intervening cause. efficient

The proximate cause of the death of the deceased is the shooting by the appellant. It is settled that anyone inflicting injuries is responsible for all the consequences of his criminal act such as death that supervenes in consequence of the injuries. The fact that the injured did not receive proper medical attendance would not affect appellant's criminal responsibility. The rule is founded on the practical policy of closing to the wrongdoer a convenient avenue of escape from the just consequences of his wrongful act. If the rule were otherwise, many criminals could avoid just accounting for their acts by merely establishing a doubt as to the immediate cause of death.

B. OMISSION Omission is the inaction, the failure to perform a positive duty which he is bound to do. There must be a law requiring the doing or performing of an act. C. TRANSFERRED INTENT Aberration Ictus Error in Personae Praeter Intentionem
Art. 4. Criminal liability. — Criminal liability shall be incurred: 1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended.

CRIMINAL LAW

Art. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended. — In cases in which the felony committed is different from that which the offender intended to commit, the following rules shall be observed: 1. If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed in its maximum period. 2. If the penalty prescribed for the felony committed be lower than that corresponding to the one which the accused intended to commit, the penalty for the former shall be imposed in its maximum period. 3. The rule established by the next preceding paragraph shall not be applicable if the acts committed by the guilty person shall also constitute an attempt or frustration of another crime, if the law prescribes a higher penalty for either of the latter offenses, in which case the penalty provided for the attempted or the frustrated crime shall be imposed in its maximum period.

KIND
1. Aberratio Ictus In aberratio ictus, the intended victim as well as the actual victim are both at the scene of the crime.

DEFINITION
Person directed the blow at an intended victim, but because of poor aim, that blow landed on someone else. Distinguish this from error in personae, where the victim actually received the blow, but he was mistaken for another who was not at the scene of the crime. The distinction is important because the legal effects are not the same.

ILLUSTRATION
A shot at B. However, because of poor aim, it was not B who was hit but C. There is only one single act—the act of firing at B. In so far as B is concerned, the crime at least is attempted homicide or attempted murder. As far as the third party C is concerned, if C were killed, the crime is homicide. If C was only wounded, the crime is only physical injuries. You cannot have attempted or frustrated homicide or murder as far as C is concerned, because as far as he is concerned, there is no intent to kill. serious or slight.

LEGAL EFFECT
You have a complex crime, unless the resulting consequence is not a grave or less grave felony. You have a single act as against the intended victim and also giving rise to another felony as against the actual victim., there is no intent to kill. In other words, aberratio ictus, generally gives rise to a complex crime. This being so, the penalty for the more serious crime is imposed in the maximum period. This is the legal effect. The only time when aberratio ictus may not result in a complex crime is when one of the resulting felonies is a light felony.

4. Error In Personae

A mistake in identity. It was the actual victim upon whom the blow was directed, but he was not really the intended victim.

A thought of killing B. He positioned himself at one corner where B usually passes. When a figure resembling B was approaching, A hid and when that figure was near him, he suddenly hit him with a piece of wood on the nape, killing him. But it turned out that it was his own father. The crime committed is parricide, although what was intended was homicide. Article 49, therefore, will apply because out of a mistake in identity, a crime 2008

Article 49 applies only in a case of error in personae and not in a case of aberratio ictus. When the crime intended is more serious than the crime actually committed or vice versa: o whichever crime carries the lesser penalty, that penalty will be the one imposed, whatever the crime the offender is prosecuted under. o But it will be imposed in the maximum period. o In any event, the offender is prosecuted for the crime committed not for the crime intended.

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was committed different from that which was intended. A will be prosecuted for parricide but his penalty will be for homicide in its maximum period. Error in personae is mitigating if the crime committed is: o Different and o Less serious from that which was intended.

5. Praeter Intentionem

The result is greater than what was intended In Ramos-Andan v. People (2006) the court said that the mitigating circumstance of lack of intention to commit so grave a wrong may not be availed of when fraud is employed.

In another instance, A thought of killing B. Instead of B, C passed. A thought that he was B, so he hit C on the neck, killing the latter. Just the same the crime intended to be committed is homicide and what was committed is actually homicide. Article 49 does not apply. Here, error in personae is of no effect. The accused entered the store of a Chinese couple, to commit robbery. They hogtied the Chinaman and his wife. Because the wife was so talkative, one of the offenders got a pan de sal and placed it in her mouth. But because the woman was trying to wiggle from the bondage, the pan de sal slipped through her throat. She died because of suffocation. The offenders were convicted for robbery with homicide because there was a resulting death, although their intention was only to rob. However, There was really no intention to bring about the killing, because it was the pan de sal that they put into the mouth. Had it been a piece of rag, it would be different. The SC gave the offenders 2008

Praeter intentionem is mitigating, particularly covered by paragraph 3 of Article 13. In order however, that the situation may qualify as praeter intentionem, there must be a notable disparity between the means employed and the resulting felony. If there is no disparity between the means employed by the offender and the resulting felony, this circumstance cannot be availed of. It cannot be a case of praeter intentionem because the intention of a person is determined by the means resorted to by him in committing the crime. If the resulting felony can be foreseen or anticipated from the means employed, the circumstance of praeter intentionem does not apply.

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the benefit of praeter intentionem as a mitigating circumstance. The means employed is not capable of producing death if only the woman chewed the pan de sal. A man raped a young girl. The young girl was shouting so the man placed his hand on the mouth and nose of the victim. He found out later that the victim was already dead; she died of suffocation. The offender begged that he had no intention of killing the girl and that his only intention was to prevent her from shouting. The Supreme Court rejected the plea saying that a person who is suffocated may eventually die. The offender was prosecuted for the serious crime of rape with homicide and was not given the benefit of paragraph 3 of Article 13.

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C. IMPOSSIBLE CRIMES Under par. 2, Article 4 An impossible crime is an act which would be an offense only against person or property • • were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. apply when the wrongful act, which would have constituted a crime against persons or property, could not and did not constitute another felony. Otherwise, if such act constituted any other felony although different from what the offender intended, the criminal liability should be for such other felony and not for an impossible crime. The attitude was so because Article 4 of the Code provides two situations where criminal liability shall be incurred. Because criminal liability for impossible crime presupposes that no felony resulted form the wrongful act done, the penalty is fixed at arresto mayor or a fine from P200.00 to P500.00, depending on the “social danger and degree of criminality shown by the offender”(Article 59), regardless of whether the wrongful act was an impossible crime against persons or against property. In the Intod case, the wrongful acts of the culprits caused destruction to the house of the intended victim; this felonious act negates the idea of an impossible crime. • But whether we agree or not, the Supreme Court has spoken, we have to respect its ruling.

Liability under this paragraph is incurred only if: • the offender has actually performed the act against the person or property of the intended victim and such act does not constitute another felony.

Example: The dead victim was shot to make it appear that he was trying to escape, the accused is not a principal to an impossible crime but an accessory to the killing committed by the principal. Modified Concept of impossible crime Intod vs. CA, et. al., 285 SCRA 52. In this case, four culprits, all armed with firearms and with intent to kill, went to the intended victim’s house and after having pinpointed the latter’s bedroom, all four fired at and riddled the said room with bullets, thinking that the intended victim was already there as it was about 10:00 in the evening. It so happened that the intended victim did not come home on that evening and so was not in her bedroom at that time. Eventually the culprits were prosecuted and convicted by the trial court for attempted murder. The Court of Appeals affirmed the judgment but the Supreme Court modified the same and held the petitioner liable only for the so-called impossible crime. As a result, petitioner-accused was sentenced to imprisonment of only six months of arresto mayor for the felonious act he committed with intent to kill: this despite the destruction done to the intended victim’s house. Somehow, the decision depreciated the seriousness of the act committed, considering the lawlessness by which the culprits carried out the intended crime. Some asked questions: • Was it really the impossibility of accomplishing the killing that brought about its non-accomplishment? • Was it not purely accidental that the intended victim did not come home that evening and, thus, unknown to the culprits, she was not in her bedroom at the time it was shot and riddled with bullets? • Suppose, instead of using firearms, the culprits set fire on the intended victim’s house, believing that she was there when in fact she was not, would the criminal liability be for an impossible crime? Until the Intod case, the prevailing attitude was that the provision of the Revised Penal Code on impossible crime would only 100% UP LAW UP BAROPS

D. LIABILITY FOR INCOMPLETE ELEMENTS 1. 2. 3. 4. CLASSIFICATION UNDER ARTICLE 6 DEVELOPMENT OF A CRIME ATTEMPT AND FRUSTRATION FACTORS DETERMINING STAGES OF EXECUTION

1. CLASSIFICATION UNDER ARTICLE 6
Art. 6. Consummated felonies, as well as those which are frustrated and attempted, are punishable. A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.

A. Consummated Felony When all the elements necessary for its execution are present. The felony is produced B. Frustrated Felony

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When the offender performs all the acts of execution; All the acts performed would produce the felony as a consequence; The felony is not produced; By reason of causes independent of the will of the perpetrator. C. Attempted Felony When the offender commences the commission of a felony directly by overt acts; He does not perform all the acts of execution which should produce the felony; By reason of some cause or accident other than his own spontaneous desistance; 2. DEVELOPMENT OF A CRIME Overt act • Are external acts which if allowed to continue its natural course would definitely result into a felony. • It is the start of criminal liability because the offender has commenced the commission of an offense with overt acts. Development of a crime 1. Internal acts – intent and plans; usually not punishable Example: Ernie plans to kill Burt 2. External acts BUT a. Preparatory Acts – o acts tending toward the crime o ordinarily not punished except when considered by law as independent crimes (Art. 304 – possession of picklocks) o these acts do not yet constitute even the first stage of the acts of execution o intent not yet disclosed Not all execution present acts of are BUT Crime sought to be committed is not achieved

Example: If Ernie stabbed Burt from behind, the nature of his act indicated the intent to kill because of the treachery employed—he is liable for any of the stages of murder depending on the actual result: a.If Burt dies, the crime is consummated; b.If Burt was stabbed in a critical body part but managed to survive due to timely medical assistance, the crime is frustrated; c. If Ernie lunged at Burt from behind but was only able to graze Burt’s arm because of the latter’s reflex, the crime is an attempt.

3. ATTEMPT AND FRUSTRATION The difference between the attempted stage and the frustrated stage lies on
• whether the offender has performed • all the acts of execution • for the accomplishment of a felony.

Attempted ACTS PERFORMED: Overt acts of execution are started

Frustrated ACTS PERFORMED: All acts of execution are finished

WHY: Due to reasons other than the spontaneous desistance of the perpetrator POSITION IN THE TIMELINE: Offender still in subjective phase because he still has control of his acts

WHY: Due to intervening causes independent of the will of the perpetrator

Example: Ernie goes to the kitchen to get a knife b. Acts of Execution o acts directly connected to the crime o Punishable under the RPC o usually overt acts with a logical relation to a particular concrete offense

POSITION IN TIMELINE:

THE

Example: Ernie stabs Burt Indeterminate offense • It is one where the purpose of the offender in performing an act is not certain. Its nature in relation to its objective is ambiguous. • The intention of the accused must be viewed from ◦ the nature of the acts executed by him, and ◦ not from his admission. 100% UP LAW UP BAROPS

Offender is already in the objective phase because all acts of execution are already present and the cause of its nonaccomplishment is other than the offender’s will

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4.The non-performance of all acts of execution was due to cause or accident other than his own spontaneous desistance.

Marks the commencement of the subjective phase • Subjective phase – that portion of the acts constituting a crime, ◦ starting from the point where the offender begins the commission of the crime ◦ to that point where he still has control over his acts including their (acts) natural course If between those two points • the offender is stopped • by reason of any cause outside of his own voluntary desistance, ◦ the subjective phase has not been passed and it is an attempt. If he is not stopped but continues until he performs the last act, it is either consummated or frustrated. Example: The subjective phase for Ernie was from the moment he swung his arm to stab Burt up until he finished his stroke. This is the interim where he still has control of his actions Desistance • It is the act which will negate criminal liability when made during the attempted stage. • Desistance is true only in the attempted stage of the felony. If under the definition of the felony, the act done is already in the frustrated stage, no amount of desistance will negate criminal liability. • The spontaneous desistance of the offender negates only the attempted stage ◦ but not necessarily all criminal liability. • Even though there was desistance on the part of the offender, if the desistance was made when acts done by him already resulted to a felony, ◦ that offender will still be criminally liable for the felony brought about his act. ◦ What is negated is only the attempted stage, but there may be other felonies constituting his act. Example: Supposing Ernie (because he thought killing Burt was too easy a revenge) desisted mid-stroke. However, Burt felt the movement and turned. He was so shocked that he suddenly backed away and tripped over his own feet. As Burt went down, his left eye caught the sharp corner of a table causing a puncture on his eyeball rendering him completely blind on the left side. a. Ernie would not be liable for attempted murder because of his desistance (regardless of his reason for doing so) b.His liability would now be for serious physical injuries because his act of raising the knife was the proximate cause for Burt losing an eye. 100% UP LAW UP BAROPS

In the attempted stage, the definition uses the word “directly.” • This is significant. In the attempted stage, • the acts so far performed may already be a crime or • it may just be an ingredient of another crime. • The word “directly” emphasizes the requirement that the attempted felony is that which is ◦ directly linked to the overt act performed by the offender, ◦ not the felony he has in his mind. In criminal law, you are not allowed to speculate, not to imagine what crime is intended, but apply the provisions of the law to the facts given. People v. Lamahang (1935) The accused was arrested while he was detaching some of the wood panels of a store. He was already able to detach two panels. To a layman, the only conclusion that will come to your mind is that this fellow started to enter the store to steal something. He would not be there just to sleep there. But in criminal law, since the act of removing the panel indicates only at most the intention to enter, he can only be prosecuted for trespass. The removal of the paneling is just an attempt to trespass, not an attempt to rob. Although Lamahang was prosecuted for attempted robbery, the Supreme Court held it is only attempted trespass because that is the crime that can be directly linked to his act of removing the wood panel. There are some acts which are ingredients of a certain crime, but which are, by themselves, already criminal offenses. People v. Campuhan (2000) Facts: The mother of the 4-year-old victim caught the houseboy Campuhan in the act of almost raping her daughter. The hymen of the victim was still intact but since in previous Orita ruling, entry into labia is considered rape even without rupture of hymen and full penetration is not necessary, question arises whether what transpired was attempted or consummated rape. Held: Attempted rape only. Mere touching of external genitalia by the penis is already rape. However, touching should be understood as inherently part of entry of penis into labia and not mere touching of the pudendum. There must be clear and convincing proof that the penis indeed touched the labia and slid into the female organ and NOT MERELY STROKED THE EXTERNAL SURFACE. Some degree of penetration beneath the surface must be achieved and the labia major must be entered. Prosecution did not prove that the Campuhan’s penis was able to penetrate victim’s vagina because the kneeling position of the accused obstructed the mother’s view of the alleged sexual contact. The testimony of the victim herself claimed that penis grazed but did not penetrate her organ. There was only a shelling of the castle but no bombardment of the drawbridge ye (I 2008 Page 22 of 62

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suppose, this, if nothing else, will make you remember this case). Frustrated Stage Elements: 1. The offender performs all the acts of execution; 2. All the acts performed would produce the felony as a consequence; 3. But the felony is not produced; 4. By reason of causes independent of the will of the perpetrator. The end of the subjective phase and the beginning of the objective phase • Objective phase – the result of the acts of execution, that is, the accomplishment of the crime If the subjective and objective phases are present, there is a consummated felony. • There is no middle stage between being not burned and burned.

3. BRIBERY The manner of committing the crime requires • the meeting of the minds between the giver and the receiver. • If there is a meeting of the minds, there is consummated bribery or consummated corruption. • If there is none, it is only attempted. • This leaves out the frustrated stage because of the manner of committing the crime. 4. CORRUPTION OF PUBLIC OFFICERS Same with bribery. 5. ADULTERY This requires the sexual contact two participants. • If that link is there, the crime is consummated; • if such link is absent, there is only an attempted adultery. 6. PHYSICAL INJURIES Under the Revised Penal Code, the crime of physical injuries is penalized on the basis of the gravity of the injuries. Actually, there is no simple crime of physical injuries. You have to categorize because there are specific articles that apply whether the physical injuries are serious, less serious or slight. If you merely say physical injuries, you would not know which article to apply. This being so, you could not punish the attempted or frustrated stage because • you do not know what crime of physical injuries was committed. • Physical injuries are punished by the result. Example: When Burt lost his left eye, Ernie’s liability was automatically for serious physical injuries. He would have no liability if the eye was intact. If the eye suffered damage due to the impact, the crime would not be frustrated nor attempted physical injuries because the RPC still considers this as a consummated physical injury, its gravity depending on the duration that it took for the damage to heal. 7. THEFT There is no crime of frustrated theft. Once there is unlawful taking, theft is consummated. • Either the thing was taken or not. Disposition of the stolen goods is not an element of theft under the RPC19.

CRIMES WHICH DO NOT ADMIT OF A FRUSTRATED STAGE 1. 2. 3. 4. 5. 6. 7. RAPE ARSON BRIBERY CORRUPTION OF PUBLIC OFFICERS ADULTERY PHYSICAL INJURIES THEFT

1. RAPE The essence of the crime is carnal knowledge. No matter what the offender may do to accomplish a penetration, • if there was no penetration yet, it cannot be said that the offender has performed all the acts of execution. • We can only say that the offender in rape has performed all the acts of execution when he has effected a penetration. Once there is penetration already, • no matter how slight, the offense is consummated. • For this reason, rape admits only of the attempted and consummated stages, no frustrated stage. This was the ruling in the case of People vs. Orita (see the previously cited case of People v. Campuhan for the most recent doctrine on penetration). 2. ARSON One cannot say that the offender, in the crime of arson, has already performed all the acts of execution which could produce the destruction of the premises through the use of fire, • unless a part of the premises has begun to burn. • If it has not begun to burn, that means that the offender has yet to perform all the acts of execution. On the other hand, the moment it begins to burn, the crime is consummated. 100% UP LAW UP BAROPS

4. FACTORS IN DETERMINING THE STAGE OF EXECUTION OF A FELONY 1. The manner of committing the crime; 2. The elements of the crime; and 3. The nature of the crime itself.

1919

Valenzuela v. People

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TIP: M.E.N. These three factors are helpful in trying to pinpoint whether the crime is still in its attempted, frustrated or consummated stage. capable of producing a felony as a consequence. • Hence, the general rule is that there must be a fatal injury inflicted, because it is only then that death will follow.

1. The Manner of Committing the Crime Under the RPC, some crimes take two to commit the crime like adultery. • In bribery, the manner of committing the crime requires the meeting of the minds between the giver and the receiver. When the giver delivers the money to the supposed receiver, but there is no meeting of the minds, the only act done by the giver is an attempt.

There are instances where an intended felony could already result from the acts of execution already done. • Because of this, the offender is deemed to have performed all the acts of execution ONLY by the existence of the result. Without the resulting felony, there is no way of determining whether the offender has already performed all the acts of execution or not like rape and arson. Thus, in determining the stage of some crimes, the manner of execution becomes pivotal in determining the end of the subjective phase, i.e. once the offender performs the act in the manner provided for in the law, HE HAS ALREADY DEEMED TO HAVE PERFORMED EVERY ACT FOR ITS EXECUTION. 2. The Elements of the Crime Along with the manner of execution, there are crimes wherein the existence of certain elements becomes the factor in determining its consummation. • In the crime of estafa, the element of damage is essential before the crime could be consummated. If there is no damage, even if the offender succeeded in carting away the personal property involved, estafa cannot be considered as consummated. • On the other hand, if it were a crime of theft, damage or intent to cause damage is not an element of theft. What is necessary only is intent to gain, not even gain is important. • In the crime of abduction, the crucial element is the taking away of the woman with lewd designs. 3. The Nature of the Crime Itself In crimes involving the taking of human life—parricide, homicide, and murder— • in the definition of the frustrated stage, ◦ it is indispensable that the victim be mortally wounded. Under the definition of the frustrated stage, to consider the offender as having performed all the acts of execution, the acts already done by him must produce or be

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E. CONSPIRACY AND PROPOSAL Conspiracy and proposal to commit a felony are two different acts or felonies. GENERAL RULE: Conspiracy and proposal to commit a felony are not punishable EXCEPTION: They are punishable only in the cases in which the law specially provides a penalty therefore.
PROPOSAL: Proposal is true only up to the point where the party to whom the proposal was made has NOT yet accepted the proposal. Once the proposal was accepted, a conspiracy arises. Proposal is unilateral, one party makes a proposition to the other; conspiracy is bilateral, it requires two parties. RATIONALE: Conspiracy and proposal to commit a crime are only preparatory acts and the law regards them as innocent or at least permissible except in rare and exceptional cases.

TWO CONCEPTS OF CONSPIRACY AS A CRIME

STAGE

HOW INCURRED

LEGAL REQUIREMENTS

ILLUSTRATION

PREPARATORY ACTS

Mere agreement

The RPC must specifically punish the act of conspiring (and proposing) Treason, rebellion, sedition and coup d’ etat are the only crimes where the conspiracy and proposal to commit them are punishable The act MUST NOT BE ACCOMPLISHED, else the conspiracy is obliterated and the ACT ITSELF IS PUNISHED. QUANTUM OF PROOF: Conspiracy as a crime must be established beyond reasonable doubt

AS A BASIS FOR LIABILITY

EXECUTORY ACTS

Commission of overt act

The participants acted in concert or simultaneously or IN ANY WAY which is indicative of a meeting of the minds towards a common criminal goal or criminal objective. The act of meeting together is not necessary as long as a common objective can be discerned from the overt acts. THE ACT MUST BE ACCOMPLISHED, if there is only conspiracy or proposal, THERE IS NO CRIME TO BE PUNISHED. QUANTUM OF PROOF: Reasonably inferred from the acts of the offenders when such acts disclose or show a common pursuit of the criminal objective. This was the ruling in People vs. Pinto.

A, B, C and D came to an agreement to commit rebellion. Their agreement was to bring about the rebellion on a certain date. Even if none of them has performed the act of rebellion, there is already criminal liability arising from the conspiracy to commit the rebellion. But if anyone of them has committed the overt act of rebellion, the crime of all is no longer conspiracy but rebellion itself. This subsists even though the other co-conspirator does not know that one of them had already done the act of rebellion. Three persons plan to rob a bank. For as long as the conspirators merely entered the bank there is no crime yet. But when one of them draws a gun and disarms the security guard, all of them shall be held liable, unless a co-conspirator was absent from the scene of the crime or he showed up, but he tried to prevent the commission of the crime.

1) People vs. Laurio, 200 SCRA 489, It must be established by positive and conclusive evidence, not by conjectures or speculations. 2) People v. Bulan, 2005 The prosecution must prove conspiracy by the same quantum of evidence as the felony charged itself although, proof of previous agreement among the malefactors to commit the crime is not essential to prove conspiracy. It is not necessary to show that all the conspirators actually hit and killed the victim; what is primordial is that all the participants performed 100% UP LAW UP BAROPS 2008 Page 25 of 62

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specific acts with such closeness and coordination as to indicate a common purpose or design to bring out the victim’s death. 3) People v. Pangilinan, Implied Conspiracy Conspiracy need not be direct but may be inferred from the conduct of the parties, their joint purpose, community of interest and in the mode and manner of commission of the offense. The legal effects of implied conspiracy are: a. Not all those present at the crime scene will be considered conspirators; b. Only those who participated in the criminal acts during the commission of the crime will be considered co-conspirators; c. Mere acquiescence to or approval of the commission of the crime, without any act of criminal participation, shall not render one criminally liable as co-conspirator. 4) Taer vs. CA, 186 SCRA 5980, Mere knowledge, acquiescence to, or approval of the act, without cooperation at least, agreement to cooperate, is not enough to constitute a conspiracy. There must be an intentional participation in the crime with a view to further the common felonious objective. 5) A conspiracy is possible even when participants are not known to each other. When several persons who do not know each other simultaneously attack the victim, the act of one is the act of all, regardless of the degree of injury inflicted by any one of them. All will be liable for the consequences. Do not think that participants are always known to each other. 6) The Supreme Court has ruled that one who desisted is not criminally liable. As pointed out earlier, desistance is true only in the attempted stage. Before this stage, there is only a preparatory stage. Conspiracy is only in the preparatory stage.. Illustrations: A thought of having her husband killed because the latter was maltreating her. She hired some persons to kill him and pointed at her husband. The goons got hold of her husband and started mauling him. The wife took pity and shouted for them to stop but the goons continued. The wife ran away. The wife was prosecuted for parricide. But the Supreme Court said that there was desistance so she is not criminally liable. A, B and C have been courting the same lady for several years. On several occasions, they even visited the lady on intervening hours. Because of this, A, B and C became hostile with one another. One day, D invited the young lady and she accepted the invitation. Eventually, the young lady agreed to marry D. When A, B and C learned about this, they all stood up to leave the house of the young lady feeling disappointed. When A looked back at the young lady with D, he saw D laughing menacingly. At that instance, A stabbed D. C and B followed. In this case, it was held that conspiracy was present 8) People vs. Nierra If a co-conspirator merely cooperated in the commission of the crime with insignificant or minimal acts, such coconspirator should be punished as an accomplice only. The common notion is that when there is conspiracy involved, the participants are punished as principals. This notion is no longer absolute. The reason given is that penal laws always favor a milder form of responsibility upon and offender. Illustration: There was a planned robbery, and the taxi driver was present during the planning. The taxi driver agreed for the use of his cab but said, “I will bring you there, and after committing the robbery I will return later.” The taxi driver brought the conspirators where the robbery would be committed. After the robbery was finished, he took the conspirators back to his taxi and brought them away. It was held that the taxi driver was liable only as an accomplice. His cooperation was not really indispensable. The robbers could have engaged another taxi. The taxi driver did not really stay during the commission of the robbery. At most, what he only extended was his cooperation. 9) Siton vs. CA, The idea of a conspiracy is incompatible with the idea of a free for all. There is no definite opponent or definite intent as when a basketball crowd beats a referee to death. E. PLURAL CRIMES 1) PLURALITY OF CRIMES 2) KINDS OF PLURAL CRIMES a. COMPLEX CRIMES b. SPECIAL COMPLEX CRIMES c. CONTINUED AND CONTINUING CRIMES

1) PLURALITY OF CRIMES 7) Do not search for an agreement among the participants. If they acted simultaneously to bring about their common intention, conspiracy exists. And when conspiracy exists, do not consider the degree of participation of each conspiracy because the act of one is the act of all. As a general rule, they have equal responsibility. Illustration: Consists in the successive execution by the same individual of different criminal acts upon any of which no conviction has yet been declared. Philosophy behind plural crimes: • The treatment of plural crimes as one is to be lenient to the offender, who,

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◦ instead of being made to suffer distinct penalties for every resulting crime is made to suffer one penalty only, although it is the penalty for the most serious one and is in the maximum period. committed. CRIMES) (SPECIAL COMPLEX

c. When the offender commits continued crimes. (CONTINUING AND CONTINUED CRIMES) Complex Crimes a. NATURE OF COMPLEX CRIMES b. TWO KINDS OF COMPLEX CRIMES c. GENERAL RULES IN COMPLEXING Art. 48. Penalty for complex crimes. —

If by complexing the crime, the penalty would turn out to be higher, do not complex anymore. Example: Crimes: Murder and theft (killed with treachery, and then stole the wallet). Penalty: If complex: Reclusion temporal maximum to death. If treated individually: Reclusion temporal to Reclusion Perpetua Complex-crime is not just a matter of penalty, but of substance under the Revised Penal Code. PLURALITY OF CRIMES There is no conviction of any of the crimes committed. RECIDIVISM There must be conviction by final judgment of the first or prior offense.

When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. Art. 48 requires the commission of at least 2 crimes. But the two or more GRAVE or LESS GRAVE felonies must be • the result of a SINGLE ACT, or • an offense must be a NECESSARY MEANS FOR COMMITTING the other. a. NATURE OF COMPLEX CRIMES: although two or more crimes are actually committed, they constitute only one crime • in the eyes of the law as well • as in the conscience of the offender. Even in the case where an offense is a necessary means for committing the other, the evil intent of the offender is only one. b. TWO KINDS OF COMPLEX CRIMES

2) KINDS OF PLURALITY OF CRIMES Real or Material Plurality • • There are different crimes in law as well as in the conscience of the offender. In such cases, the offender shall be punished for each and every offense that he committed.

Example: A stabbed B. Then, A also stabbed C. There are two crimes committed. Formal or Ideal Plurality 1. COMPOUND CRIME - When a single act results in two or more grave or less grave felonies 2. COMPLEX CRIME PROPER - When an offense is a necessary means for committing the other.

Several Acts Submachine gun – because of the number of bullets released A single bullet killing Firing of the revolver two person twice in succession • There is but one criminal liability in this kind of plurality. • Divided into 3 groups:

Single Act Throwing a hand grenade

1. COMPOUND CRIME REQUISITES: 1. That only a SINGLE ACT is performed by the offender

2. That the single acts produces a.When the offender commits any of the complex crimes defined in Art. 48 of the Code. (COMPLEX CRIMES) b.When the law specifically fixes a single penalty for 2 or more offenses (a) 2 or more grave felonies, or (b) 1 or more grave and 1 or more less grave felonies, or (c) 2 or more less grave felonies

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Light felonies produced by the same act should be treated and punished as separate offenses or may be absorbed by the grave felony. Example: When the crime is committed by force or violence, slight physical injuries are absorbed. The basis in compounding the crime is the act. So that when an offender • performed more than one act, • although similar, • if they result in separate crimes, ◦ there is no complex crime at all, • instead, the offender shall be prosecuted for as many crimes as are committed under separate information.

1. Subsequent acts of intercourse, after forcible abduction with rape, are separate acts of rape. 2. Not complex crime when trespass to dwelling is a direct means to commit a grave offense. 3. No complex crime, when one offense is committed to conceal the other. 4. When the offender had in his possession the funds which he misappropriated, the falsification of a public or official document involving said offense is a separate offense. 5. No complex crime where one of the offense is penalized by a special law. 6. There is no complex crime of rebellion with murder, arson, robbery, or other common crimes (re: rebellion, Ortega thinks otherwise). c. GENERAL RULES IN COMPLEXING CRIMES 1. When two crimes produced by a single act are respectively within the exclusive jurisdiction of two courts of different jurisdiction, the court of higher jurisdiction shall try the complex crime. 2. The penalty for complex crime is the penalty for the most serious crime, the same to be applied in its maximum period. 3. When two felonies constituting a complex crime are punishable by imprisonment and fine, respectively, only the penalty of imprisonment should be imposed. 4. Art. 48 applies only to cases where the Code does not provide a definite specific penalty for a complex crime. 5. One information should be filed when a complex crime is committed. 6. When a complex crime is charged and one offense is not proven, the accused can be convicted of the other. 7. Article 48 also applies in cases when out a single act of negligence or imprudence, two or more grave or less grave felonies resulted, but only the first part thereof (compound crime). The second part of Article 48 does not apply, referring to the complex crime proper because this applies or refers only to a deliberate commission of one offense to commit another offense. 8. Art. 48 does not apply when the law provides one single penalty for special complex crimes.

Example of a compound crime: #1 The victim was killed while discharging his duty as barangay captain to protect life and property and enforce law and order in his barrio. The crime is a complex crime of homicide with assault upon a person in authority. #2 When in obedience to an order several accused simultaneously shot many persons, without evidence how many each killed, there is only a single offense, there being a single criminal impulse. 2. COMPLEX CRIME PROPER REQUISITES: 1. That at least two offenses are committed 2. That one or some of the offenses must be necessary to commit the other 3. That both or all the offenses must be punished under the same statute. The phrase “necessary means” does not mean “indispensable means” In complex crime, when the offender executes various acts, he must have a single purpose. • • When there are several acts performed, the assumption is that each act is impelled by a distinct criminal impulse, hence each will have a separate penalty. However, it may happen that ◦ the offender is impelled only by a single criminal impulse ◦ in committing a series of acts that ◦ brought about more than one crime In this case, the BASIS for COMPLEXING is not the singleness of the act but the singleness of the impulse that is considered.

Special Complex/Composite Crimes The substance is made up of more than one crime but which • in the eyes of the law is only a single

NO COMPLEX CRIME PROPER: 100% UP LAW UP BAROPS 2008

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indivisible offense. • all those acts done in pursuance of the crime agreed upon are acts which constitute a single crime. Special Complex Crimes • Robbery with Homicide (Art. 294 (1)) • Robbery with Rape (Art. 294 (2)) • Kidnapping with serious physical injuries (Art. 267 (3)) • Rape with Homicide (Art. 335) A, B, and C agreed to kill D. When they saw the opportunity, A, B, and C killed D and after that, A and B ran into different directions. C inspected the pocket of the victim and found that the victim was wearing a ring—a diamond ring—and he took it. The crimes committed are homicide and theft. As far as the homicide is concerned, A, B, and C are liable because that was agreed upon and theft was not an integral part of homicide. This is a distinct crime so the rule will not apply because it was not the crime agreed upon. Insofar as the crime of theft is concerned, C will be the only one liable. So C will be liable for homicide and theft. As a general rule, • When there is conspiracy, the rule is that the act of one is the act of all. • This principle applies only to the crime agreed upon. The exception is • if any of the co-conspirator would commit a crime not agreed upon. • This happens when the crime agreed upon and the crime committed by one of the co-conspirators are distinct crimes. Exception to the exception: • In acts constituting a single indivisible offense, o even though the co-conspirator performed different acts bringing about the composite crime, all will be liable for such crime. o They can only evade responsibility for any other crime outside of that agreed upon if it is proved that the particular conspirator had tried to prevent the commission of such other act. Illustration: A, B, and C decided to commit robbery in the house of D. Pursuant to their agreement, A would ransack the second floor, B was to wait outside, and C would stay on the first floor. Unknown to B and C, A raped a girl upstairs. All of them will be liable for robbery with rape. The crime committed is robbery with rape, which is not a complex crime, but an indivisible felony under the Article 294 of the Revised Penal Code. Even if B and C did not know that rape was being committed and they agreed only and conspired to rob, yet rape was part of robbery. Rape cannot be separated from robbery.

The liability for special complex crimes is linked with that of conspiracy.

Continued and Continuing Crimes

CONTINUED CRIME . 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 it may occupy. Example: A collector of a commercial firm misappropriates for his personal use several amounts collected by him from different persons. One crime only because the different appropriations are but the different moments during which once criminal resolution arises and a single defraudation develops. A continuing crime is not a complex crime.

A continued crime is different from a TRANSITORY CRIME which is also called a MOVING/CONTINUING CRIME. CONTINUING CRIME The term used in criminal procedure to denote that • a certain crime may be prosecuted and tried not only before the court of the place where it was originally committed or began, • but also before the court of the place where the crime was continued. The term is used in criminal procedure when • any of the material ingredients of the crime was committed in different places.

The rule would be different if the crime committed was not a composite crime. Illustration:

1) People v. de Leon (1926) The accused took five roosters from one and the same chicken coop, the roosters were owned by different persons,

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It was held that there is only one crime of theft committed because the accused acted out of a single criminal impulse only. Illustration: A band of robbers came across a compound where a sugar mill is located. The workers of said mill have their quarters within the compound. The band of robbers ransacked the different quarters therein. It was held that there is only one crime committed – multiple robbery, --not because of Article 48 but because this is a continued crime. When the robbers entered the compound, they were moved by a single criminal intent which is why it does not matter that there were several quarters robbed. This was a complex crime.

There is a complex crime not only when there is a single act but a series of acts. It is correct that when the offender acted in conspiracy, this crime is considered as one and prosecuted under one information. Although in this case, the offenders did not only kills one person but killed different persons, the Supreme Court considered this as complex. Whenever the Supreme Court concludes that the criminal should be punished only once, because they acted in conspiracy or under the same criminal impulse, • it is necessary to embody these crimes under one single information. • It is necessary to consider them as complex crimes even if the essence of the crime does not fit the definition of Art 48, because there is no other provision in the RPC. 3) People v. Jose, There were four participants here. They abducted the woman, after which, the four took turns in abusing her. It was held that each one of the four became liable not only for his own rape but also for those committed by the others. One of the four rapes committed by one of them was complexed with the crime of abduction. Each of the four offenders was convicted of four rapes. The consecutive abuse cannot be considered as continued crimes because there is a different intent for each act of rape. Hence, there was no single purpose for the rapes. Each must be considered as a separate act. 4) People v. Bulaong (1981), the Supreme Court adopted the dissenting opinion of Justice Aquino in People v. Pabasa, that when several persons abducted a woman and abused her, regardless of the number of rapes committed, there should only be one complex crime of forcible abduction with rape. The rapes committed were in the nature of a continued crime characterized by the same lewd design which is an essential element in the crime of forcible abduction. The abuse amounting to rape is complexed with forcible abduction because the abduction was already consummated when the victim was raped. The forcible abduction must be complexed therewith. But the multiple rapes should be considered only as one because they are in the nature of a continued crime. NOTE: This is a dangerous view because the abductors will commit as much rape as they can, after all, only one complex crime of rape would arise.

The definition in Article 48 is not honored because the accused PERFORMED MORE THAN ONE ACT. The confusion lies in this: • While Article 48 speaks of a complex crime where a single act constitutes two or more grave or less grave offenses, those cases involving a series of acts resulting to two or more grave and less grave felonies, ◦ were considered by the Supreme Court as a complex crime ◦ when it is shown that the act is the product of one single criminal impulse.

TIP: If confronted with a problem, the Supreme Court has extended this class of complex crime to those cases when the offender performed not a single act but a series of acts as long as it is the product of a single criminal impulse.

2. People v. Garcia (1980), The accused were convicts who were members of a certain gang and they conspired to kill the other gang. Some of the accused killed their victims in one place within the same penitentiary, some killed the others in another place within the same penitentiary. The Supreme Court ruled that all accused should be punished under one information because they acted in conspiracy. The act of one is the act of all. Because there were several victims killed and some were mortally wounded, the accused should be held for the complex crime of multiple homicide with multiple frustrated homicide. 100% UP LAW UP BAROPS

Applying the concept of the “continued crime”, the following cases have been treated as constituting one crime only: (1) The theft of 13 cows belonging to two different persons committed by the accused at the same place and period of time (People v. Tumlos, 67 Phil. 320); (2) The theft of six roosters belonging to two different owners from the same 2008 Page 30 of 62

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coop and at the same period of time (People v. Jaranilla); (3) The illegal charging of fees for service rendered by a lawyer every time he collected veteran’s benefits on behalf of a client who agreed that attorney’s fees shall be paid out of such benefits (People v. Sabbun, 10 SCRA 156). The collections of legal fees were impelled by the same motive, that of collecting fees for services rendered, and all acts of collection were made under the same criminal impulse. The Supreme Court declined to apply the concept in the following cases: (1) Two Estafa cases, one which was committed during the period from January 19 to December, 1955 and the other from January 1956 to July 1956 (People v. Dichupa, 13 Phil 306). Said acts were committed on two different occasions; (2) Several malversations committed in May, June and July 1936 and falsifications to conceal said offenses committed in August and October, 1936. The malversations and falsifications were not the result of one resolution to embezzle and falsity (People v. CIV, 66 Phil. 351); (3) Seventy-five estafa cases committed by the conversion by the agents of collections from the customers of the employers made on different dates. In the theft cases, • the trend is to follow the single larceny doctrine, ◦ that is taking of several things, ◦ whether belonging to the same or different owners, ◦ at the same time and place, • constitutes one larceny only. Abandoned is the doctrine that the government has the discretion to prosecute the accused • for one offense or • for as many distinct offenses as there are victims 5) Santiago v. Justice Garchitorena, (1993) Here, the accused was charged with performing a single act – that of approving the legalization of aliens not qualified under the law. The prosecution manifested that they would only file one information. Subsequently, 32 amended informations were filed. The Supreme Court directed the prosecution to consolidate the cases into one offense because (1) they were in violation of the same law – Executive Order No. 324; (2) caused injury to one party only – the government; and (3) they were done in the same day. The concept of delito continuado has been applied to crimes under special laws since in Article 10, the Revised Penal Code shall be supplementary to special laws, unless the latter provides the contrary. 100% UP LAW UP BAROPS 2008

IV. PERSONS CRIMINALLY LIABLE
Under the Revised Penal Code, when more than one person participated in the commission of the crime, the law looks into their participation because in punishing offenders, the Revised Penal Code classifies them as: • • • PRINCIPAL; ACCOMPLICE; OR ACCESSORY.

This classification is true only under the Revised Penal Code and is not applied under special laws, because the penalties under the latter are never graduated. Do not use the term “principal” when the crime committed is a violation of special law (use the term “offender/s, culprit/s, accused”).

As to the liability of the participants in a grave, less grave or light felony: 1. When the felony is grave, or less grave, all participants are criminally liable. 2. But where the felony is only light, only the principal and the accomplice are liable. The accessory is not. a. Therefore, it is only when the light felony is against persons or property that criminal liability attaches to the principal or accomplice, even though the felony is only attempted or frustrated, but accessories are not liable for light felonies. A. 1. 2. 3. PRINCIPALS BY DIRECT PARTICIPATION BY INDUCTION BY INDISPENSABLE COOPERATION

1. BY DIRECT PARTICIPATION Those a. b. c. who are liable: materially execute the crime appear at the scene of the crime perform acts necessary in the commission of the offense

Why one who does not appear at the scene of the crime is not liable: a. His non-appearance is deemed desistance which is favored and encouraged; b. Conspiracy is generally not a crime unless the law specifically provides a penalty therefor. c. There is no basis for criminal liability because there is no criminal participation.

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2. BY INDUCTION Inducement must be strong enough that the person induced could not resist. • This is tantamount to an irresistible force compelling the person induced to carry out the crime. • Ill-advised language is not enough unless he who made such remark or advice is a co-conspirator in the crime committed. When does a principal by induction become liable: • The principal by induction becomes liable only when the principal by direct participation committed the act induced. What are the effects of acquittal of principal by direct participation upon the liability of principal by inducement: a. Conspiracy is negated by the acquittal of co-defendant. b. 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. Examples: • While in the course of a quarrel, a person shouted to A, “Kill him! Kill him!” A killed the other person. Is the person who shouted criminally liable? Is that inducement? No. The shouting must be an irresistible force for the one shouting to be liable. • There was a quarrel between two families. One of the sons of family A came out with a shotgun. His mother then shouted, “Shoot!” He shot and killed someone. Is the mother liable? No. the son was mauled. The family was not in good terms with their neighbors. The father challenged everybody and when the neighbors approached, he went home to get a rifle. The shouts of his wife “here comes another, shoot him” cannot make the wife a principal by inducement. It is not the determining cause of the crime in the absence of proof that the words had great influence over the husband. Neither is the wife’s act of beaming the victim with a flashlight indispensable to the killing. She assisted her husband in taking good aim, but such assistance merely facilitated the felonious act of shooting. Considering that it was not so dark and the husband could have accomplished the deed without his wife’s help, and considering further that doubts must be resolved in favor of the accused, the liability of the wife is only that of an accomplice. 3. BY INDISPENSABLE COOPERATION What is the essence of being a principal by indispensable cooperation: • The focus is not just on participation but on the importance of participation in committing the crime. • The basis is the importance of the cooperation to the consummation of the crime. o If the crime could hardly be committed without such cooperation, then such cooperation would bring about a principal. o If the cooperation merely facilitated or hastened the consummation of the crime, this would make the cooperator merely an accomplice. In case of doubt, favor the lesser penalty or liability. Apply the doctrine of pro reo.

B. ACCOMPLICES When is one regarded as an accomplice: 1. Determine if there is a conspiracy. • If there is, as a general rule, the criminal liability of all will be the same, because the act of one is the act of all. • Exception: o If the participation of one is so insignificant o such that even without his cooperation, o the crime would be committed just as well, o then notwithstanding the existence of a conspiracy, such offender will be regarded only as an accomplice. What are the other traits of an accomplice • • does not have a previous agreement or understanding; or is not in conspiracy with the principal by direct participation Page 32 of 62

1) People v. Balderrama 226 SCRA 537 (1993), Ernesto shouted to his younger brother Oscar, “Birahin mo na, birahin mo na!” Oscar stabbed the victim. It was held that there was no conspiracy. Joint or simultaneous action per se is not indicia of conspiracy without showing of common design. Oscar has no rancor with the victim for him to kill the latter. Considering that Ernesto had great moral ascendancy and influence over Oscar, being much older (35 years old), than the latter, who was 18 years old, and it was Ernesto who provided his allowance, clothing, as well as food and shelter, Ernesto is principal by inducement. 2) People v. Agapinay, 188 SCRA 812 (1990), The one who uttered “kill him, we will bury him.” while the felonious aggression was taking place cannot be held liable as principal by inducement. Utterance was said in the excitement of the hour, not a command to be obeyed. 3) People v. Madall, 188 SCRA 69 (1990),

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• CONSPIRATOR ACCOMPLICE They know and agree with the criminal design. Conspirators know the Accomplices come to criminal intention know about it after because they the principals have themselves have reached the decision decided upon such and only then do they course of action. agree to cooperate in its execution. Conspirators decide Accomplices merely that a crime should be assent to the plan and committed. cooperate in it accomplishment Conspirators are the Accomplices are authors of a crime merely instruments who perform acts not essential to the perpetration of the offense. REQUISITES: 1. That there be community of design; i. that is, knowing the criminal design of the principal by direct participation, he concurs with the latter in his purpose; 2. That he cooperates in the execution of the offense i. by previous or simultaneous acts, with the intention of supplying material or moral aid in the execution of the crime in an efficacious way; and 3. That there be a relation between the acts done by the principal and those attributed to the person charged as accomplice. PRINCIPAL by COOPERATION Cooperation is indispensable in the commission of the act. ACCOMPLICE Cooperation is not indispensable in the commission of the act. He is already accomplice a principal or an

When is an accessory exempt from criminal liability: • when the principal is his: 1. spouse, 2. ascendant, 3. descendant, 4. legitimate, natural or adopted brother, sister or relative by affinity within the same degree. NOTE: Even if only two of the principals guilty of murder are the brothers of the accessory and the others are not related to him, such accessory is exempt from criminal liability. When is an accessory NOT exempt from criminal liability even if the principal is related to him: • if such accessory (1) profited by the effects of the crime, or (2) assisted the offender to profit by the effects of the crime Other instances accessory: • • • • • when one becomes an

Accessory as a fence Acquiring the effects of piracy or brigandage Destroying the corpus delicti Harboring or concealing an offender Whether the accomplice and the accessory may be tried and convicted even before the principal is found guilty

1. ACCESSORY AS A FENCE

C. ACCESSORIES When are accessories not criminally liable: 1. When the felony committed is a light felony 2. When the accessory is related to the principal as a. spouse, or b. an ascendant, or descendant, or c. brother or sister whether legitimate, natural or adopted or d. where the accessory is a relative by affinity within the same degree, unless the accessory himself profited from the effects or proceeds of the crime or assisted the offender to profit therefrom. When can one not be an accessory: • • He does not know of the commission of the crime He participated in the crime

Presidential Decree No. 1612 (Anti-Fencing Law). One who knowingly profits or assists the principal to profit by the effects of robbery or theft (i.e. a fence) is not just an accessory to the crime, but principally liable for fencing The penalty is higher than that of a mere accessory to the crime of robbery or theft. Mere possession of any article of value which has been the subject of robbery or theft brings about the presumption of “fencing.” Presidential Decree No. 1612 has, therefore, modified Article 19 of the Revised Penal Code.

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2. ACQUIRING THE EFFECTS OF PIRACY OR BRIGANDAGE

4. HARBORING OFFENDER

OR

CONCEALING

AN

Presidential Decree 532 (Anti-piracy and Anti-Hghway Robbery Law of 1974) If the crime was piracy or brigandage under PD 532, o said act constitutes the crime of abetting piracy or abetting brigandage as the case may be, o although the penalty is that for an accomplice, not just an accessory, to the piracy or brigandage. Section 4 of PD 532 o provides that any person who knowingly and in any manner… acquires or receives property taken by such pirates or brigands or in any manner derives benefit therefrom… shall be considered as an accomplice of the principal offenders in accordance with the Rules prescribed by the Revised Penal Code. o It shall be presumed that any person who does any acts provided in this Section has performed them knowingly, unless the contrary is proven. Although Republic Act 7659, Article 122 of the Revised incorporated therein the crime Philippine territorial waters correspondingly superseding PD o in amending Penal Code, of piracy in and thus 532

In the fourth form or manner of becoming an accessory, take note that the law distinguishes between: o a public officer harboring, concealing, or assisting the principal to escape, and o a private citizen or civilian harboring, concealing, or assisting the principal to escape. PUBLIC OFFICER The nature of the crime is immaterial. What is material is that he used his public function is assisting the escape. CIVILIAN The nature of the crime is material. For him to become an accessory, the principal must have committed the crime of treason, parricide, murder or attempt on the life of the Chief Executive.

Illustration: Crime committed is kidnapping for ransom. Principal was being chased by soldiers. His aunt hid him in the ceiling of her house and she told the soldiers that her nephew had never visited her. When the soldiers left, the aunt even gave money to her nephew for the latter to go to the province. Is the aunt criminally liable? No. Article 20 does not include an aunt. However, this is not the reason. The principal must have committed either treason, parricide, murder, or attempt on the life of the Chief Executive, or that the principal is known to be habitually guilty of some other crime, for a person who is not a public officer and who assists an offender to escape or otherwise harbors, or conceals such offender, to be criminally liable. In this case, the crime committed was kidnapping.

section 4 of said Decree, which punishes said acts as a crime of abetting piracy or brigandage, still stands as it has not been repealed nor modified, and is not inconsistent with any provision of RA 7659.

Criminal liability of accessory 3. DESTROYING THE CORPUS DELICTI Revised Penal Code When the crime is robbery or theft, with respect to the third involvement of an accessory, do not overlook the purpose which must be to prevent discovery of the crime. The corpus delicti is not the body of the person who is killed. o Even if the corpse is not recovered, as long as that killing is established beyond reasonable doubt, criminal liability will arise. If there is someone who destroys the corpus delicti to prevent discovery, he becomes an accessory. UP BAROPS PD 1829 (Also Known as the law penalizing “Obstruction of Justice”) There is no specification of the crime to be committed by the offender in order that criminal liability be incurred The offender need not even be the principal or need not be convicted of the crime charged An offender of any crime is no longer an Page 34 of 62

Specifies the crimes that should be committed in case a civilian aids in the escape

o

The offender is the principal or must be convicted of the crime charged The one who harbored or concealed 2008

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an offender is still an accessory accessory but is simply an offender without regard to the crime of the person assisted to escape ◦ then the supposed accomplice and accessory should also be acquitted.

In the preceding illustration, the aunt is not criminally liable under the Revised Penal Code because the crime is kidnapping, but under PD 1829. 5. WHETHER THE ACCOMPLICE AND THE ACCESSORY MAY BE TRIED AND CONVICTED EVEN BEFORE THE PRINCIPAL IS FOUND GUILTY There is an earlier Supreme Court ruling that the accessory and accomplice must be charged together with the principal • if the latter is acquitted, the accomplice and accessory shall also not be criminally liable, unless the acquittal is based on a defense which is personal only to the principal. This is not true in all cases. ◦ It is not always true that the accomplice and accessory cannot be criminally liable without the principal being first convicted.

If there is no crime, then there is no criminal liability, whether principal, accomplice, or accessory.

1) Taer v. CA (1990), Facts: Accused received from his co-accused two stolen male carabaos. Conspiracy was not proven. Taer was held liable as an accessory in the crime of cattle-rustling under PD 533. • Taer should have been liable for violation of the Anti-Fencing Law since castlerustling is a form of theft or robbery of large cattle, except that he was not charged with fencing. 2) Enrile v. Amin 189 SCRA 573 (1990), A person charged with rebellion should not be separately charged under PD 1829. The theory of absorption must not confine itself to common crimes but also to offenses punished under special laws which are perpetrated in furtherance of the political offense.

Under Rule 110 of the Revised Rules on Criminal Procedure, it is required that • all those involved in the commission of the crime must be included in the information that may be filed.

The liability of the accused will depend on the quantum of evidence adduced by the prosecution against the particular accused. • But the prosecution must initiate the proceedings against the principal.

Even if the principal is convicted, • if the evidence presented against a supposed accomplice or accessory does not meet the required proof beyond reasonable doubt, then said accused will be acquitted.

So the criminal liability of an accomplice or accessory does not depend on the criminal liability of the principal but depends on the quantum of evidence. But if the evidence shows that • the act done does not constitute a crime and the principal is acquitted, UP BAROPS 2008 Page 35 of 62

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VI. PENALTIES
Penalty is the suffering that is inflicted by the State for the transgression of a law. Different Juridical Conditions of Penalty: 1. Must be PRODUCTIVE OF SUFFERING, without affecting the integrity of the human personality. 2. Must be COMMENSURATE with the offense – different crimes must be punished with different penalties. 3. Must be PERSONAL – no one should be punished for the crime of another. 4. Must be LEGAL – it is the consequence of a judgment according to law. 5. Must be CERTAIN – no one may escape its effects. 6. Must be EQUAL for all. 7. Must be CORRECTIONAL. Theories justifying penalty: 1. PREVENTION – to suppress danger to the State 2. SELF-DEFENSE – to protect the society from the threat and wrong inflicted by the criminal. 3. REFORMATION – to correct and reform the offender. 4. EXEMPLARITY – to serve as an example to deter others from committing crimes. 5. JUSTICE – for retributive justice, a vindication of absolute right and moral law violated by the criminal. Purpose of penalty under the RPC: 1. RETRIBUTION OR EXPIATION – the penalty is commensurate with the gravity of the offense. 2. CORRECTION OR REFORMATION – as shown by the rules which regulate the execution of the penalties consisting in deprivation of liberty. 3. SOCIAL DEFENSE – shown by its inflexible severity to recidivist and habitual delinquents. This Section discusses the following: A. GENERAL PRINCIPLES B. PENALTIES WHICH MAY BE IMPOSED C. ACCESSORY PENALTIES D. PENALTIES WHICH MAY BE IMPOSED E. MEASURES NOT CONSIDERED PENALTY F. APPLICATION AND COMPUTATION OF PENALTIES G. SPECIAL RULES H. THE INDETERMINATE SENTENCE LAW I. EXECUTION AND SERVICE OF PENALTIES A. GENERAL PRINCIPLES Art. 21. Penalties that may be imposed. — No felony shall be punishable by any penalty not prescribed by law prior to its commission. This article prohibits the Government from punishing any person for any felony with any penalty which has not been prescribed by the law. It has no application to any of the provisions of the RPC for the reason that for every felony defined in the Code, a penalty has been prescribed. REASON: An act or omission cannot be punished by the State if at the time it was committed there was no law prohibiting it, because a law cannot be rationally obeyed unless it is first shown, and a man cannot be expected to obey an order that has not been given.

A. OTHER CONSTITUTIONAL
PROHIBITIONS 1987 CONSTITUTION Section 18. (1) No person shall be detained solely by reason of his political beliefs and aspirations. (2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted. Section 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. Section 20. No person shall be imprisoned for debt or non-payment of a poll tax. Section 22. No ex post facto law or bill of attainder shall be enacted.

II. B. PENALTIES WHICH MAY BE IMPOSED
Art. 25. Penalties which may be imposed. The penalties which may be imposed according to this Code, and their different classes, are those included in the following:

A. Scale OF PRINCIPAL PENALTIES
Capital punishment: • Death. Afflictive penalties: • Reclusion perpetua, • Reclusion temporal, • Perpetual or temporary absolute disqualification, • Perpetual or temporary special disqualification, • Prision mayor. Correctional penalties: • Prision correccional, • Arresto mayor, UP BAROPS 2008 Page 36 of 62

I.

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• • Suspension, Destierro. NOTE: Public censure is a penalty, • thus, it is not proper in acquittal. • However, the Court in acquitting the accused may criticize his acts or conduct. Penalties that are either principal or accessory: • Perpetual or temporary absolute disqualification, • perpetual or temporary special disqualification, and • suspension ◦ may be principal or accessory penalties, because they formed in the 2 general classes.

Light penalties: • Arresto menor, • Public censure. Penalties common to the three preceding classes: • Fine, and • Bond to keep the peace.

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

III. C. SPECIFIC PRINCIPAL AND
ACCESSORY PENALTIES

A. CAPITAL PUNISHMENT 1. Death penalty RA 9346 or “An Act Prohibiting the Imposition of Death Penalty in the Philippines” • expressly repealed RA 8177 or “Act Designating Death by Lethal Injection” and RA 7659 or “Death Penalty Law”. RA 9346 repealed all the other laws imposing death penalty. • Section 2 states that: “In lieu of the death penalty, the following shall be imposed: a. the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code.” B. AFFLICTIVE PENALTIES Art. 27. Reclusion perpetua. — Any person sentenced to any of the perpetual penalties shall be pardoned after undergoing the penalty for thirty years, unless such person by reason of his conduct or some other serious cause shall be considered by the Chief Executive as unworthy of pardon. Reclusion temporal. — The penalty of reclusion temporal shall be from twelve years and one day to twenty years. Prision mayor and temporary disqualification. — The duration of the penalties of prision mayor and temporary disqualification shall be from six years and one day to twelve years, except when the penalty of disqualification is imposed as an accessory penalty, in which case its duration shall be that of the principal penalty.

C. MaJOR CLASSIFICATION
PRINCIPAL PENALTIES – those expressly imposed by the court in the judgment of conviction. ACCESSORY PENALTIES – those that are deemed included in the imposition of the principal penalties.

D. Other classifications of penalties:
According to their divisibility: • Divisible ◦ those that have fixed duration and are ◦ divisible into three periods. • Indivisible ◦ those which have no fixed duration. Death Reclusion perpetua Perpetual absolute or special disqualification Public censure According to subject-matter • Corporal ◦ (death) • Deprivation of freedom ◦ (reclusion, prision, arresto) • Restriction of freedom ◦ (destierro) • Deprivation of rights ◦ (disqualification and suspension) • Pecuniary ◦ (fine) According to their gravity • Capital • Afflictive • Correctional • Light 100% UP LAW UP BAROPS

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CRIMINAL LAW The following table also contains DISQUALIFICATION as an afflictive penalty, because its different forms can also be imposed as a principal although it is primarily categorized as an accessory penalty.
Penalty
Death (REPEALED) Death, when not executed due to pardon or commutation (REPEALED)

Duration
Indivisible

Effects

Accessories

Reclusion perpetua

20 years & 1 day to 40 years (Indivisible) Deprivation of public office, even if by election Deprivation of right to vote & be voted for Disqualification from public office held Loss of retirement rights Deprivation of office, employment, profession, or calling affected Disqualification from similar offices or employments

PAD Civil interdiction 30 yrs from sentence PAD Civil interdiction for life

Perpetual absolute disqualification (PAD)

For life

Perpetual special disqualification (PSD)

For life

Reclusion temporal

12 years & 1 day to 20 years

Prision mayor

6 years & 1 day to 12 years Deprivation of public office, even if by election Deprivation of right to vote & be voted for during sentence Disqualification from public office held during sentence Loss of retirement rights Deprivation of office, 1) RECLUSION PERPETUA employment, profession, or calling affected Disqualification from similar offices or employments

PAD Civil interdiction for duration of sentence TAD PSD of suffrage

Temporary absolute disqualification (TAD)

6 years & 1 day to 12 years

Temporary special disqualification (TSD)

6 years & 1 day to 12 years

Art. 41. Reclusion perpetua and reclusion temporal; Their accessory penalties. — The penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. Art. 42. Prision mayor; Its accessory penalties. — The penalty of prision mayor, shall carry with it that of temporary absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.

Duration: 20 years and 1 day to 40 years Accessory Penalties: a. Civil interdiction for life or during the period of the sentence as the case may be. b. 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. 1) People v. Gatward (1997) Facts: The accused was convicted of violating the Dangerous Drugs Act for unlawfully importing into the Philippines heroin. The trial court sentenced the accused to suffer the penalty of imprisonment for 35 years of reclusion perpetua there being no aggravating or mitigating circumstance shown to have attended in the commission of the crime.

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Held: As amended by RA 7659, the penalty of reclusion perpetua is now accorded a defined duration ranging from 20 years and 1 day to 40 years. The Court held that in spite of the amendment putting the duration of RP, it should remain as an indivisible penalty since there was never intent on the part of Congress to reclassify it into a divisible penalty. The maximum duration of reclusion perpetua is not and has never been 30 years which is merely the number of ears which the convict must serve in order to be eligible for pardon or for the application of the 3fold rule. 2) People v. Ramirez (2001) The SC disagrees with the trial court in sentencing appellant "to suffer imprisonment of forty (40) years reclusion perpetua." There was no justification or need for the trial court to specify the length of imprisonment, because reclusion perpetua is an indivisible penalty. The significance of this fundamental principle was laid down by the Court in People v. Diquit. "Since reclusion perpetua is an indivisible penalty, it has no minimum, medium or maximum periods. It is imposed in its entirety regardless of any mitigating or aggravating circumstances that may have attended the commission of the crime. (Art. 63, Revised Penal Code) Reclusion Perpetua is imprisonment for life but the person sentenced to suffer it shall be pardoned after undergoing the penalty for thirty (30) years, unless by reason of his conduct or some other serious cause, he shall be considered by the Chief Executive as unworthy of pardon (Art. 27, Revised Penal Code)." Distinguished from Life Imprisonment 3) People v. Ballabare (1996) The trial court erred in imposing the penalty of life imprisonment for violation of PD 1866. The crime of illegal possession of firearm in its aggravated form is punished by the penalty of death. Since the offense was committed on Sep. 16, 1990, at a time when the imposition of the death penalty was prohibited, the penalty next lower in degree which is reclusion perpetua should be imposed. This is not equivalent to life imprisonment. While life imprisonment may appear to be the English translation of reclusion perpetua, in reality, it goes deeper than that. LIFE IMPRISONMENT Imposed for serious offenses penalized by special laws Does not carry with it accessory penalties Does not appear to have any definite extent or duration RECLUSION PERPETUA Prescribed under the RPC Carries with it accessory penalties Entails imprisonment for at least 30 years after which the convict becomes eligible for pardon although the maximum period shall in no case exceed 40 years a. Civil interdiction for life or during the period of the sentence as the case may be. 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.

b.

3) PRISION MAYOR Duration: 6 years and 1 day to 12 years Accessory Penalties: a. Temporary Absolute Disqualification b. Perpetual Special Disqualification from the right to suffrage which the offender shall suffer although pardoned as to the principal penalty unless the same shall have been expressly remitted in the pardon.

B. C. CORRECCIONAL PENALTIES
Art. 27 (4). Prision correccional, suspension, and destierro. The duration of the penalties of prision correccional, suspension and destierro shall be from six months and one day to six years, except when suspension is imposed as an accessory penalty, in which case, its duration shall be that of the principal penalty. Arresto mayor. — The duration of the penalty of arresto mayor shall be from one month and one day to six months.

2) RECLUSION TEMPORAL Duration: 12 years and 1 day to 20 years Accessory Penalties: 100% UP LAW UP BAROPS 2008 Page 39 of 62

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Art. 39. Subsidiary penalty. — If the convict has no property with which to meet the fine mentioned in the paragraph 3 of the nest preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for each eight pesos, subject to the following rules: 1. If the principal penalty imposed be prision correccional or arresto and fine, he shall remain under confinement until his fine referred to in the preceding paragraph is satisfied, but his subsidiary imprisonment shall not exceed one-third of the term of the sentence, and in no case shall it continue for more than one year, and no fraction or part of a day shall be counted against the prisoner. 2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not exceed six months, if the culprit shall have been prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if for a light felony. 3. When the principal imposed is higher than prision correccional, no subsidiary imprisonment shall be imposed upon the culprit. 4. If the principal penalty imposed is not to be executed by confinement in a penal institution, but such penalty is of fixed duration, the convict, during the period of time established in the preceding rules, shall continue to suffer the same deprivations as those of which the principal penalty consists. 5. The subsidiary personal liability which the convict may have suffered by reason of his insolvency shall not relieve him, from the fine in case his financial circumstances should improve. (As amended by RA 5465, April 21, 1969).

Art. 43. Prision correccional; Its accessory penalties. — The penalty of prision correccional shall carry with it that of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen months. The offender shall suffer the disqualification provided in the article although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.

Penalty

Duration

Effects

Accessories Accessories
Suspension from public office Suspension from profession or calling PSD of suffrage, if penalty exceeds 18 mos.

Prision correccional

6 months & 1 day to 6 years

Suspension

6 months & 1 day to 6 years

Public office Profession or calling Suffrage Prohibition to enter w/in 25-250 km radius from the designated place Suspension of right to hold office and right of suffrage

Destierro

6 months & 1 day to 6 years

Arresto mayor

1 month & 1 day to 6 months

1) PRISION CORRECCIONAL Duration: 6 months and 1 day to 6 years Accessory Penalties: a. Suspension from public office b. Suspension from the right to follow a profession or calling c. Perpetual Special Disqualification fro the right of suffrage, if the duration of the imprisonment shall exceed 18 months

2) ARRESTO MAYOR Duration: 1 month and 1 day to 6 months

C. LIGHT PENALTIES Accessory Penalties: a. Suspension of right to hold office b. Suspension of the right of suffrage during the term of the sentence.

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Art. 27 (6). Arresto menor. — The duration of the penalty of arresto menor shall be from one day to thirty days. Art. 39. Subsidiary penalty. SUPRA Art. 44. Arresto; Its accessory penalties. — The penalty of arresto shall carry with it that of suspension of the right too hold office and the right of suffrage during the term of the sentence. 1) ARRESTO MENOR Duration: 1 day to 30 days Accessory Penalties: a. Suspension of right to hold office b. Suspension of the right of suffrage during the term of the sentence. 2) PUBLIC CENSURE Censure, being a penalty is not proper in acquittal. • • is left to the sound discretion of the court, provided it shall not exceed the maximum authorized by law. not divided into 3 equal

Fines are portions.

2) BOND TO KEEP THE PEACE Art. 35. Effects of bond to keep the peace. — It shall be the duty of any person sentenced to give bond to keep the peace, to present two sufficient sureties who shall undertake that such person will not commit the offense sought to be prevented, and that in case such offense be committed they will pay the amount determined by the court in the judgment, or otherwise to deposit such amount in the office of the clerk of the court to guarantee said undertaking. The court shall determine, according to its discretion, the period of duration of the bond. Should the person sentenced fail to give the bond as required he shall be detained for a period which shall in no case exceed six months, is he shall have been prosecuted for a grave or less grave felony, and shall not exceed thirty days, if for a light felony. 1. 2 WAYS OF GIVING BOND 1) The offender must present • 2 sufficient sureties who shall undertake that ◦ the offender will not commit the offense sought to be prevented, ◦ and that in case such offense be committed they will pay the amount determined by the court; 2) The offender must • deposit such amount with the clerk of court to guarantee said undertaking; The court shall determine the period of duration of the bond. The offender may be detained, if he cannot give the bond, • for a period not to exceed 6 months if prosecuted for grave or less grave felony, or • for a period not to exceed 30 days, if for a light felony. Bond to keep the peace is different from bail bond which is posted for the provisional release of a person arrested for or accused of a crime.

D. PENALTIES COMMON TO AFFLICTIVE,
CORRECCIONAL AND LIGHT PENALTIES 1) FINE Art. 26. When afflictive, correctional, or light penalty. — A fine, whether imposed as a single of as an alternative penalty, shall be considered an afflictive penalty, if it exceeds 6,000 pesos; a correctional penalty, if it does not exceed 6,000 pesos but is not less than 200 pesos; and a light penalty if it less than 200 pesos. This article merely classifies fine and has nothing to do with the definition of light felony. Fine is: 1. Afflictive – over P6,000 2. Correctional – P200 to P6,000 3. Light Penalty – less than P200 Art. 66. Imposition of fines. — In imposing fines the courts may fix any amount within the limits established by law; in fixing the amount in each case attention shall be given, not only to the mitigating and aggravating circumstances, but more particularly to the wealth or means of the culprit. The court can fix any amount of the fine within the limits established by law. The court must consider: • The mitigating and aggravating circumstances; and • More particularly, the wealth or means of the culprit. When the law does not fix the minimum of the fine, • the determination of the amount of the fine to be imposed upon the culprit 100% UP LAW UP BAROPS

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CRIMINAL LAW Penalty Arresto menor Public censure Penalty (Common to All Three Types) Fine Duration 1 day to 30 days Effects Accessories Suspension of right to hold office and right of suffrage

IV. D. ACCESSORY PENALTIES
1) Perpetual or temporary absolute disqualification, 2) Perpetual or temporary special disqualification, 3) Suspension from public office, the right to vote and be voted for, the profession or calling. 4) Civil interdiction, 5) Indemnification/ Forfeiture or confiscation of instruments and proceeds of the offense, 6) Payment of costs.

Effects: a. Deprivation of any public office or employment f offender b. Deprivation of the right to vote in any election or to be voted upon c. Loss of rights to retirement pay or pension

All these effects • last during the lifetime of the convict and • even after the service of the sentence except as regards paragraphs 2 and 3 of the above in connection with temporary absolute disqualification. Art. 32. Effect of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. — The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any public office during the period of his disqualification. Art. 33. Effects of the penalties of suspension from any public office, profession or calling, or the right of suffrage. — The suspension from public office, profession or calling, and the exercise of the right of suffrage shall disqualify the offender from holding such office or exercising such profession or calling or right of suffrage during the term of the sentence. The person suspended from holding public office shall not hold another having similar functions during the period of his suspension. Art. 34. Civil interdiction. — Civil interdiction shall deprive the offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos. Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime. — Every penalty imposed for the commission of a felony shall carry with it the forfeiture of the

1) PERPETUAL OR TEMPORARY ABSOLUTE DISQUALIFICATION Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. — The penalties of perpetual or temporary absolute disqualification for public office shall produce the following effects: 1. The deprivation of the public offices and employments which the offender may have held even if conferred by popular election. 2. The deprivation of the right to vote in any election for any popular office or to be elected to such office. 3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned. In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article shall last during the term of the sentence. 4. The loss of all rights to retirement pay or other pension for any office formerly held.

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proceeds of the crime and the instruments or tools with which it was committed. Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government, unless they be property of a third person not liable for the offense, but those articles which are not subject of lawful commerce shall be destroyed. 4) Right to manage property and to dispose of the same by acts inter vivos ∗ Civil interdiction is an accessory penalty to the following principal penalties: a) Death if commuted to life imprisonment; b) Reclusion perpetua c) Reclusion temporal INDEMNIFICATION OR CONFISCATION OF INSTRUMENTS ORPROCEES OF THEOFFENSE ∗ This is included in every penalty for the commission of the crime. ∗ The confiscation is in favor of the government. ∗ Property of a third person not liable for the offense is not subject to confiscation. ∗ If the trial court did not order any confiscation of the procees of the crime, the government cannot appeal from the confiscation as that would increase the penalty already imposed. PAYMENT OF COSTS Includes: a. Fees, and b. Indemnities, in proceedings.

2) PERPETUAL OR TEMPORARY SPECIAL DISQUALIFICATION Art. 31. Effect of the penalties of perpetual or temporary special disqualification. The penalties of perpetual or temporal special disqualification for public office, profession or calling shall produce the following effects: 1. The deprivation of the office, employment, profession or calling affected; 2. The disqualification for holding similar offices or employments either perpetually or during the term of the sentence according to the extent of such disqualification. Effects: For public office, profession or calling: a. Deprivation of the office, employment, profession or calling affected; b. Disqualification for holding similar offices or employments during the period of disqualification;

the

course

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judicial

∗ Costs may be fixed amounts determined by law or regulations or subject to a schedule. ∗ If the accused is convicted; costs charged against him. If he is acquitted, de officio, meaning each party bears expense.

already amounts may be costs are his own

E. MEASURES NOT CONSIDERED PENALTY RPC, Art. 24. Measures of prevention or safety which are nor considered penalties. — The following shall not be considered as penalties: 1. The arrest and temporary detention of accused persons, as well as their detention by reason of insanity or imbecility, or illness requiring their confinement in a hospital. 2. The commitment of a minor to any of the institutions mentioned in Article 80 and for the purposes specified therein. 3. Suspension from the employment of public office during the trial or in order to institute proceedings. 4. Fines and other corrective measures which, in the exercise of their administrative disciplinary powers, superior officials may impose upon their subordinates. 5. Deprivation of rights and the reparations which the civil laws may establish in penal form. ♠ They are not penalties because they are not imposed as a result of judicial proceedings. Those mentioned in par. 3 and 4 are merely preventive measures before conviction of offenders. ♠ The commitment of a minor mentioned in par. 2 is not a penalty because it is not imposed by the court in a judgment of conviction. The imposition of the sentence in such case is suspended. ♠ The succeeding provisions are some examples of deprivation of rights established in penal form:

For the exercise of right to suffrage: a. Deprivation of the right to vote or to be elected in an office; b. Cannot hold any public office during the period of disqualification

∗ The penalty for disqualification if imposed as an accessory penalty is imposed for PROTECTION and NOT for the withholding of a privilege. ∗ Temporary disqualification or suspension if imposed as an accessory penalty, the duration is the same as that of the principal penalty. SUSPENSION FROM PUBLIC OFFICE, THE RIGHT TO VOTE AND BE VOTED FOR, THE RIGHT TO PRACTICE A PROFESSION OR CALLING Effects: a. Disqualification from holding such office or the exercise of such profession or right of suffrage during the term of the sentence; b. Cannot hold another office having similar functions during the period of suspension. CIVIL INTERDICTION Effects: Deprivation of the following rights: 1) Parental authority 2) Guardianship over the ward 3) Marital authority 100% UP LAW UP BAROPS

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Family Code, Art. 228. Parental authority terminates permanently: (1) Upon the death of the parents; (2) Upon the death of the child; or (3) Upon emancipation of the child. (327a) Family Code, Art. 229. Unless subsequently revived by a final judgment, parental authority also terminates: (1) Upon adoption of the child; (2) Upon appointment of a general guardian; (3) Upon judicial declaration of abandonment of the child in a case filed for the purpose; (4) Upon final judgment of a competent court divesting the party concerned of parental authority; or (5) Upon judicial declaration of absence or incapacity of the person exercising parental authority. (327a) F. APPLICATION AND COMPUTATION OF PENALTIES Art. 28. Computation of penalties. — If the offender shall be in prison, the term of the duration of the temporary penalties shall be computed from the day on which the judgment of conviction shall have become final. If the offender be not in prison, the term of the duration of the penalty consisting of deprivation of liberty shall be computed from the day that the offender is placed at the disposal of the judicial authorities for the enforcement of the penalty. The duration of the other penalties shall be computed only from the day on which the defendant commences to serve his sentence. Rules for the computation of penalties: 1. WHEN THE OFFENDER IS IN PRISON – the duration of temporary penalties is from the day on which the judgment of conviction becomes final. 2. WHEN THE OFFENDER IS NOT IN PRISON – the duration of penalty consisting in deprivation of liberty, is from the day that the offender is placed at the disposal of judicial authorities for the enforcement of the penalty. 3. THE DURATION OF OTHER PENALTIES – the duration is from the day on which the offender commences to serve his sentence Examples of temporary penalties: 1. Temporary absolute disqualification 2. Temporary special disqualification 3. Suspension ♠ If offender is under detention, as when he is undergoing preventive imprisonment, Rule No. 1 applies. ♠ If not under detention, because the offender has been released on bail, Rule No. 3 applies. Examples of penalties deprivation of liberty: 1. Imprisonment 2. Destierro consisting in ♠ If the offender is undergoing preventive imprisonment, Rule No. 3 applies but the offender is entitled to a deduction of full time or 4/5 of the time of his detention. Art. 29. Period of preventive imprisonment deducted from term of imprisonment. — Offenders who have undergone preventive imprisonment shall be credited in the service of their sentence consisting of deprivation of liberty, with the full time during which they have undergone preventive imprisonment, if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners, except in the following cases: 1. When they are recidivists or have been convicted previously twice or more times of any crime; and 2. When upon being summoned for the execution of their sentence they have failed to surrender voluntarily. If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners, he shall be credited in the service of his sentence with four-fifths of the time during which he has undergone preventive imprisonment. (As amended by Republic Act 6127, June 17, 1970). Whenever an accused has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced and his case is not yet terminated, he shall be released immediately without prejudice to the continuation of the trial thereof or the proceeding on appeal, if the same is under review. In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. (As amended by E.O. No. 214, July 10, 1988). ♠ The accused undergoes preventive imprisonment when the offense charged is nonbailable, or even if bailable, he cannot furnish the required bail. ♠ The convict is to be released immediately if the penalty imposed after trial is less than the full time or four-fifths of the time of the preventive imprisonment. ♠ The accused shall be released immediately whenever he has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment for the offense charged. Art. 46. Penalty to be imposed upon principals in general. — The penalty prescribed by law for the commission of a felony shall be imposed upon the principals in the commission of such felony. Whenever the law prescribes a penalty for a felony is general terms, it shall be understood as applicable to the consummated felony. GENERAL RULE: The penalty prescribed by law in general terms shall be imposed: a. Upon the principals b. For consummated felony 2008 Page 44 of 62

♠ When the offender is not in prison, Rule No. 2 applies. 100% UP LAW UP BAROPS

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EXCEPTION: The exception is when the penalty to be imposed upon the principal in frustrated or attempted felony is fixed by law. ♠ Whenever it is believed that the penalty lower by one or two degrees corresponding to said acts of execution is not in proportion to the wrong done, the law fixes a distinct penalty for the principal in frustrated or attempted felony. ♠ The graduation of penalties by degrees refers to STAGES OF EXECUTION (consummated, frustrated or attempted) and to the DEGREE OF THE CRIMINAL PARTICIPATION OF THE OFFENDER (whether as principal, accomplice or accessory) ♠ The division of a divisible penalty into three periods, as maximum, medium and minimum, refers to the proper period of the penalty which should be imposed when aggravating or mitigating circumstances attend the commission of the crime. People v. Formigones (1950) Facts: The accused without a previous quarrel or provocation took his bolo and stabbed his wife in the back resulting to the latter’s death. The accused was sentenced to the penalty of reclusion perpetua. Held: The penalty applicable for parricide under Art. 246 of the RPC is composed only of 2 indivisible penalties, reclusion perpetua to death. Although the commission of the act is attended by some mitigating circumstance without any aggravating circumstance to offset them, Art. 63 of the RPC should be applied. The said article provides that when the commission of the act is attended by some mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall be applied. PRINCIPALS, ACCOMPLICES AND ACCESSORIES IN CONSUMMATED, FRUSTRATED AND ATTEMPTED FELONIES. Art. 46. Penalty to be imposed upon principals in general. — The penalty prescribed by law for the commission of a felony shall be imposed upon the principals in the commission of such felony. Whenever the law prescribes a penalty for a felony is general terms, it shall be understood as applicable to the consummated felony. Art. 50. Penalty to be imposed upon principals of a frustrated crime. — The penalty next lower in degree than that prescribed by law for the consummated felony shall be imposed upon the principal in a frustrated felony. Art. 51. Penalty to be imposed upon principals of attempted crimes. — A penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon the principals in an attempt to commit a felony. Art. 52. Penalty to be imposed upon accomplices in consummated crime. — The penalty next lower in degree than that prescribed by law for the consummated shall be imposed upon the accomplices in the commission of a consummated felony. Art. 53. Penalty to be imposed upon accessories to the commission of a consummated felony. — The penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon the accessories to the commission of a consummated felony. Art. 54. Penalty to imposed upon accomplices in a frustrated crime. — The penalty next lower in degree than prescribed by law for the frustrated felony shall be imposed upon the accomplices in the commission of a frustrated felony. Art. 55. Penalty to be imposed upon accessories of a frustrated crime. — The penalty lower by two degrees than that prescribed by law for the frustrated felony shall be imposed upon the accessories to the commission of a frustrated felony. Art. 56. Penalty to be imposed upon accomplices in an attempted crime. — The penalty next lower in degree than that prescribed by law for an attempt to commit a felony shall be imposed upon the accomplices in an attempt to commit the felony. Art. 57. Penalty to be imposed upon accessories of an attempted crime. — The penalty lower by two degrees than that prescribed by law for the attempted felony shall be imposed upon the accessories to the attempt to commit a felony. CONSU MMATE D 0 1 2 FRUSTRA TED 1 2 3 ATTEMPT ED 2 3 4

PRINCI PALS ACCOM PLICES ACCESS ORIES

DIAGRAM OF THE APPLICATION OF ARTS. 50-57: “0” represents the penalty prescribed by law in defining a crime, which is to be imposed n the PRINCIPAL in a CONSUMMATED OFFENSE, in accordance with the provisions of Art. 46. The other figures represent the degrees to which the penalty must be lowered, to meet the different situation anticipated by law. EXCEPTIONS: Arts. 50 to 57 shall not apply to cases where the law expressly prescribes the penalty for frustrated or attempted felony, or to be imposed upon accomplices or accessories. BASES FOR THE DETERMINATION OF THE EXTENT OF PENALTY: 1. The stage reached by the crime in its development (either attempted, frustrated or consummated) 2. The participation therein of the person liable. 3. The aggravating or mitigating circumstances which attended the commission of the crime.

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♠ A DEGREE is one entire penalty, one whole penalty or one unit of the penalties enumerated in the graduated scales provided for in Art. 71. Each of the penalties of reclusion perpetua, reclusion temporal, prision mayor, etc., enumerated in the graduated scales of Art. 71 is a degree. ♠ When there is a mitigating or aggravating circumstance, the penalty is lowered or increased by PERIOD only, except when the penalty is divisible and there are two or more mitigating and without aggravating circumstances, in which case the penalty is lowered by degree. ♠ A PERIOD is one of the three equal portions called the minimum, medium and maximum of a divisible penalty. Art. 60. Exception to the rules established in Articles 50 to 57. — The provisions contained in Articles 50 to 57, inclusive, of this Code shall not be applicable to cases in which the law expressly prescribes the penalty provided for a frustrated or attempted felony, or to be imposed upon accomplices or accessories. ♠ Arts. 50 to 57 shall not apply to cases where the law expressly prescribes the penalty for frustrated or attempted felony, or to be imposed upon accomplices or accessories. GENERAL RULE: An accomplice is punished by a penalty one degree lower than the penalty imposed upon the principal. EXCEPTIONS: a. The ascendants, guardians, curators, teachers and any person who by abuse of authority or confidential relationship, shall cooperate as accomplices in the crimes of rape, acts of lasciviousness, seduction, corruption of minors, white slate trade or abduction. (Art. 346) b. One who furnished the place for the perpetration of the crime of slight illegal detention. (Art. 268) GENERAL RULE: An accessory is punished by a penalty two degrees lower than the penalty imposed upon the principal. EXCEPTION: When accessory is punished as principal – knowingly concealing certain evil practices is ordinarily an act of the accessory, but in Art. 142, such act is punished as the act of the principal. When accessories are punished with a penalty one degree lower: a. Knowingly using counterfeited seal or forged signature or stamp of the President (Art. 162). b. Illegal possession and use of a false treasury or bank note (Art. 168). c. Using falsified document (Art. 173 par.3 ) d. Using falsified dispatch (Art. 173 par. 2) Art. 61. Rules for graduating penalties. — For the purpose of graduating the penalties which, according to the provisions of Articles 50 to 57, inclusive, of this Code, are to be imposed upon persons guilty as principals of any frustrated or attempted felony, or as accomplices or accessories, the following rules shall be observed: 1. When the penalty prescribed for the felony is single and indivisible, the penalty next lower in degrees shall be that immediately following that indivisible penalty in the respective graduated scale prescribed in Article 71 of this Code. 2. When the penalty prescribed for the crime is composed of two indivisible penalties, or of one or more divisible penalties to be impose to their full extent, the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale. 3. When the penalty prescribed for the crime is composed of one or two indivisible penalties and the maximum period of another divisible penalty, the penalty next lower in degree shall be composed of the medium and minimum periods of the proper divisible penalty and the maximum periods of the proper divisible penalty and the maximum period of that immediately following in said respective graduated scale. 4. when the penalty prescribed for the crime is composed of several periods, corresponding to different divisible penalties, the penalty next lower in degree shall be composed of the period immediately following the minimum prescribed and of the two next following, which shall be taken from the penalty prescribed, if possible; otherwise from the penalty immediately following in the above mentioned respective graduated scale. 5. When the law prescribes a penalty for a crime in some manner not especially provided for in the four preceding rules, the courts, proceeding by analogy, shall impose corresponding penalties upon those guilty as principals of the frustrated felony, or of attempt to commit the same, and upon accomplices and accessories. ♠ This article provides for the rules to be observed in lowering the penalty by one or two degrees. a. For the principal in frustrated felony – one degree lower; b. For the principal in attempted felony – two degrees lower; c. For the accomplice in consummated felony – one degree lower; and d. For the accessory in consummated felony – two degrees lower. ♠ The rules provided for in Art. 61 should also apply in determining the MINIMUM of the indeterminate penalty under the Indeterminate Sentence Law. The MINIMUM of the indeterminate penalty is within the range of the penalty next lower than that prescribed by the RPC for the offense. ♠ Those rules also apply in lowering the penalty by one or two degrees by reason of the presence of privileged mitigating circumstance (Arts. 68 and 69), or when the penalty is divisible and there are two or more mitigating circumstances (generic) and no aggravating circumstance (Art. 64). ♠ The lower penalty shall be taken from the graduated scale in Art. 71. The INDIVISIBLE PENALTIES are: a. death b. reclusion perpetua c. public censure The DIVISIBLE PENALTIES are: a. reclusion temporal 2008 Page 46 of 62

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b. prision mayor c. prision correccional d. arresto mayor e. destierro f. arresto menor * the divisible penalties are divided into three periods: MINIMUM, MEDIUM AND THE MAXIMUM RULES: FIRST RULE: When the penalty is single and indivisible. Ex. reclusion perpetua ♠ The penalty immediately following it is reclusion temporal. Thus, reclusion temporal is the penalty next lower in degree. SECOND RULE: When the penalty is composed of two indivisible penalties Ex. reclusion perpetua to death ♠ The penalty immediately following the lesser of the penalties, which is reclusion perpetua, is reclusion temporal. When the penalty is composed of one or more divisible penalties to be imposed to their full extent Ex. prision correccional to prision mayor ♠ The penalty immediately following the lesser of the penalties of prision correccional to prision mayor is arresto mayor. THIRD RULE: When the penalty is composed of two indivisible penalties and the maximum period of a divisible penalty Ex. reclusion temporal in its MAXIMUM period to death Death Reclusio n Perpetu a Reclusio n Tempor al Prision Mayor Maximum Medium Minimum Reclusion temporal Prision Mayor Prision Correccional Maximum Medium Minimum Maximum Medium Minimum Maximum Medium Minimum FIFTH RULE: When the penalty has two periods Ex. Prision correccional in its MINIMUM and MEDIUM periods Prision correccional Maximum Medium Minimum Maximum Medium Minimum

Penalty for the principal in the consummated felony Penalty for the accomplice; or principal in frustrated felony

The penalty prescribed for the felony The penalty next lower

Arresto Mayor

When the penalty has one period - If the penalty is any one of the three periods of a divisible penalty, the penalty next lower in degree shall be that period next following the given penalty. Ex. Prision Mayor in its MAXIMUM period ♠ The penalty immediately inferior is prision mayor in its MEDIUM period. SIMPLIFIED RULES: The rules prescribed in pars. 4 and 5 of Art. 61 may be simplified as follows: 1. If the penalty prescribed by the Code consists in 3 periods, corresponding to different divisible penalties, the penalty next lower in degree is the penalty consisting in the 3 periods down in the scale. 2. If the penalty prescribed b the Code consists in 2 periods, the penalty next lower in degree is the penalty consisting in 2 periods down in the scale. 3. If the penalty prescribed by the Code consists in only 1 period, the penalty next lower in degree is the next period down in the scale. EFFECTS OF MITIGATING AND AGGRAVATING CIRCUMSTANCES Art. 62. Effect of the attendance of mitigating or aggravating circumstances and of habitual delinquency. — Mitigating or aggravating circumstances and habitual delinquency shall be taken into account for the purpose of diminishing or increasing the penalty in conformity with the following rules: 1. Aggravating circumstances which in themselves constitute a crime specially punishable by law or which are included by the law in defining a crime and prescribing the penalty therefor shall not be taken into account for the purpose of increasing the penalty. 2. The same rule shall apply with respect to any aggravating circumstance inherent in the crime to such a degree that it must of necessity accompany the commission thereof. 3. Aggravating or mitigating circumstances which arise from the moral attributes of the offender, or from his private relations with the offended party, or from any other personal cause, shall only serve to aggravate or mitigate 2008 Page 47 of 62

Penalty for the principal in consummated murder

Penalty for accomplice; or for principal in frustrated murder

Maximum Medium Minimum

When the penalty is composed of one indivisible penalty and the maximum period of a divisible penalty Ex. Reclusion temporal in its MAXIMUM period to Reclusion perpetua ♠ The same rule shall be observed in lowering the penalty by one or two degrees. FOURTH RULE: When the penalty is composed of several periods - This rule contemplates a penalty composed of at least 3 periods. The several periods must correspond to different divisible penalties. Ex. Prision Mayor in its MEDIUM period to Reclusion temporal in its MINIMUM period.

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the liability of the principals, accomplices and accessories as to whom such circumstances are attendant. 4. The circumstances which consist in the material execution of the act, or in the means employed to accomplish it, shall serve to aggravate or mitigate the liability of those persons only who had knowledge of them at the time of the execution of the act or their cooperation therein. 5. Habitual delinquency shall have the following effects: (a) Upon a third conviction the culprit shall be sentenced to the penalty provided by law for the last crime of which he be found guilty and to the additional penalty of prision correccional in its medium and maximum periods; (b) Upon a fourth conviction, the culprit shall be sentenced to the penalty provided for the last crime of which he be found guilty and to the additional penalty of prision mayor in its minimum and medium periods; and (c) Upon a fifth or additional conviction, the culprit shall be sentenced to the penalty provided for the last crime of which he be found guilty and to the additional penalty of prision mayor in its maximum period to reclusion temporal in its minimum period. Notwithstanding the provisions of this article, the total of the two penalties to be imposed upon the offender, in conformity herewith, shall in no case exceed 30 years. For the purpose of this article, a person shall be deemed to be habitual delinquent, is within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification, he is found guilty of any of said crimes a third time or oftener. What are the effects of the attendance of mitigating or aggravating circumstances? a. Aggravating circumstances which are not considered for the purpose of increasing the penalty: 1. Those which in themselves constitute a crime especially punishable by law. 2. Those included by law in defining the crime. 3. Those inherent in the crime but of necessity they accompany the commission thereof. b. Aggravating or mitigating circumstances that serve to aggravate or mitigate the liability of the offender to whom such are attendant. Those arising from: 1. Moral attributes of the offender 2. His private relations with the offended party 3. Any other personal cause c. Aggravating or mitigating circumstances that affect the offenders only who had knowledge of them at the time of the execution of the act or their cooperation therein. Those which consist: 1. In the material execution of the act - will not affect all the offenders but only those to whom such act are attendant 2. Means to accomplish the crime - will affect only those offenders who have knowledge of the same at the time of the act of execution or their cooperation therein What are the legal effects of habitual delinquency? 1) Third conviction - the culprit is sentenced to the penalty for the crime committed and to the additional penalty of prision correccional in its medium and maximum period. 2) Fourth conviction - the penalty is that provided by law for the last crime and the additional penalty of prision mayor in its minimum and medium periods. 3) Fifth or additional conviction - the penalty is that provided by law for the last crime and the additional penalty of prision mayor in its maximum period to reclusion temporal in its minimum period. Note: • In no case shall the total of the 2 penalties imposed upon the offender exceed 30 years. • The law does not apply to crimes described in Art. 155 • The imposition of the additional penalty on habitual delinquents are CONSTITUTIONAL because such law is neither an EX POST FACTO LAW nor an additional punishment for future crimes. It is simply a punishment on future crimes on account of the criminal propensities of the accused. • The imposition of such additional penalties is mandatory and is not discretionary. • Habitual delinquency applies at any stage of the execution because subjectively, the offender reveals the same degree of depravity or perversity as the one who commits a consummated crime. • It applies to all participants because it reveals persistence in them of the inclination to wrongdoing and of the perversity of character that led them to commit the previous crime. Cases where attending aggravating or mitigating circumstances are not considered in the imposition of penalties - Penalty that is single and indivisible - Felonies through negligence - When the penalty is a fine - When the penalty is prescribed by a special law. Art. 63. Rules for the application of indivisible penalties. — In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed. In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof: 1. When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied. 2. When there are neither mitigating nor aggravating circumstances and there is no aggravating circumstance, the lesser penalty shall be applied. 2008 Page 48 of 62

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3. When the commission of the act is attended by some mitigating circumstances and there is no aggravating circumstance, the lesser penalty shall be applied. 4. When both mitigating and aggravating circumstances attended the commission of the act, the court shall reasonably allow them to offset one another in consideration of their number and importance, for the purpose of applying the penalty in accordance with the preceding rules, according to the result of such compensation. Rules for penalties: the application of indivisible aggravating and mitigating circumstances and the greater and lesser extent of the evil produced by the crime. Rules for the PENALTIES application of DIVISIBLE

1. Penalty is single and indivisible - The penalty shall be applied regardless of the presence of mitigating or aggravating circumstances. Ex. reclusion perpetua or death 2. Penalty is composed of 2 indivisible penalties: a. One aggravating circumstance present - HIGHER penalty b. No mitigating circumstances present - LESSER penalty c. Some mitigating circumstances present and no aggravating - LESSER penalty d. Mitigating and aggravating circumstances offset each other - Basis of penalty: number and importance. Art. 64. Rules for the application of penalties which contain three periods. — In cases in which the penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, each one of which forms a period in accordance with the provisions of Articles 76 and 77, the court shall observe for the application of the penalty the following rules, according to whether there are or are not mitigating or aggravating circumstances: 1. When there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period. 2. When only a mitigating circumstances is present in the commission of the act, they shall impose the penalty in its minimum period. 3. When an aggravating circumstance is present in the commission of the act, they shall impose the penalty in its maximum period. 4. When both mitigating and aggravating circumstances are present, the court shall reasonably offset those of one class against the other according to their relative weight. 5. When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to th7e number and nature of such circumstances. 6. Whatever may be the number and nature of the aggravating circumstances, the courts shall not impose a greater penalty than that prescribed by law, in its maximum period. 7. Within the limits of each period, the court shall determine the extent of the penalty according to the number and nature of the

a. No aggravating and No mitigating - MEDIUM PERIOD b. One mitigating - MINIMUM PERIOD c. One aggravating (any number cannot exceed the penalty provided by law in its maximum period) - MAXIMUM PERIOD d. Mitigating and aggravating circumstances present - to offset each other according to relative weight e. 2 or more mitigating and no aggravating - one degree lower (has the effect of a privileged mitigating circumstance) NOTE: Art. 64 does not apply to: - indivisible penalties - penalties prescribed by special laws - fines - crimes committed by negligence Art. 67. Penalty to be imposed when not all the requisites of exemption of the fourth circumstance of Article 12 are present.— When all the conditions required in circumstances Number 4 of Article 12 of this Code to exempt from criminal liability are not present, the penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon the culprit if he shall have been guilty of a grave felony, and arresto mayor in its minimum and medium periods, if of a less grave felony. Penalty to be imposed if the requisites of accident (Art. 12 par 4) are not all present: b. GRAVE FELONY - arresto mayor maximum period to prision correccional minimum period c. LESS GRAVE FELONY - arresto mayor minimum period and medium period Art. 69. Penalty to be imposed when the crime committed is not wholly excusable. — A penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in Article 11 and 12, provided that the majority of such conditions be present. The courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking. Penalty to be imposed when the crime committed is not wholly excusable - One or two degrees lower if the majority of the conditions for justification or exemption in the cases provided in Arts. 11 and 12 are present.

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People v. Lacanilao (1988) Facts: The CFI found the accused, a policeman, guilty of homicide. On appeal before the CA, the CA found that the accused acted in the performance of a duty but that the shooting of the victim was not the necessary consequence of the due performance thereof, therefore crediting to him the mitigating circumstance consisting of the incomplete justifying circumstance of fulfillment of duty. The CA lowered the penalty merely by one period applying Art. 64 (2) appreciating incomplete fulfillment of duty as a mere generic mitigating circumstance lowering the penalty to minimum period. Held: CA erred because incomplete fulfillment of duty is a privileged mitigating circumstance which not only cannot be offset by aggravating circumstances but also reduces the penalty by one or two degrees than that prescribed b law. The governing provision is Art. 69 of the RPC. G. SPECIAL RULES COMPLEX CRIMES CRIME DIFFERENT FROM THAT INTENDED IMPOSSIBLE CRIMES PLURAL CRIMES ADDITIONAL PENALTY FOR CERTAIN ACCESSORIES Art. 58. Additional penalty to be imposed upon certain accessories. — Those accessories falling within the terms of paragraphs 3 of Article 19 of this Code who should act with abuse of their public functions, shall suffer the additional penalty of absolute perpetual disqualification if the principal offender shall be guilty of a grave felony, and that of absolute temporary disqualification if he shall be guilty of a less grave felony. ♣ Absolute perpetual disqualification if the principal offender is guilty of a grave felony. ♣ Absolute temporary disqualification if the principal offender is guilt of less grave felony. WHERE THE OFFENDER IS BELOW 18 YEARS Art. 68. Penalty to be imposed upon a person under eighteen years of age. — When the offender is a minor under eighteen years and his case is one coming under the provisions of the paragraphs next to the last of Article 80 of this Code, the following rules shall be observed: 1. Upon a person under fifteen but over nine years of age, who is not exempted from liability by reason of the court having declared that he acted with discernment, a discretionary penalty shall be imposed, but always lower by two degrees at least than that prescribed by law for the crime which he committed. 2. Upon a person over fifteen and under eighteen years of age the penalty next lower than that prescribed by law shall be imposed, but always in the proper period. ♣ Art. 68 applies to such minor if his application for suspension of sentence is disapproved or if while in the reformatory institution he becomes incorrigible in which case he shall be returned to the court for the imposition of the proper penalty. ♣ 9 to 15 years only with discernment: at least 2 degrees lower. ♣ 15 to 18 years old: penalty next lower ♣ Art. 68 provides for two of the PRIVILEGED MITIGATING CIRCUMSTANCES ♣ If the act is attended by two or more mitigating and no aggravating circumstance, the penalty being divisible, a minor over 15 but under 18 years old may still get a penalty two degrees lower. THE THREE-FOLD RULE Art. 70. Successive service of sentence. — When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit otherwise, the following rules shall be observed: In the imposition of the penalties, the order of their respective severity shall be followed so that they may be executed successively or as nearly as may be possible, should a pardon have been granted as to the penalty or penalties first imposed, or should they have been served out. For the purpose of applying the provisions of the next preceding paragraph the respective severity of the penalties shall be determined in accordance with the following scale: 1. Death, 2. Reclusion perpetua, 3. Reclusion temporal, 4. Prision mayor, 5. Prision correccional, 6. Arresto mayor, 7. Arresto menor, 8. Destierro, 2008 Page 50 of 62 PD No. 603. ART. 192. Suspension of Sentence and Commitment of Youthful Offender. If after hearing the evidence in the proper proceedings, the court should find that the youthful offender has committed the acts charged against him the court shall determine the imposable penalty, including any civil liability chargeable against him. However, instead of pronouncing judgment of conviction, the court shall suspend all further proceedings and shall commit such minor to the custody or care of the Department of Social Welfare, or to any training institution operated by the government, or duly licensed agencies 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, after considering the reports and recommendations of the Department of Social Welfare or the agency or responsible individual under whose care he has been committed. The youthful offender shall be subject to visitation and supervision by a representative of the Department of Social Welfare or any duly licensed agency or such other officer as the court may designate subject to such conditions as it may prescribe.

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9. Perpetual absolute disqualification, 10 Temporal absolute disqualification. 11. Suspension from public office, the right to vote and be voted for, the right to follow a profession or calling, and 12. Public censure Notwithstanding the provisions of the rule next preceding, the maximum duration of the convict's sentence shall not be more than threefold the length of time corresponding to the most severe of the penalties imposed upon him. No other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the same maximum period. Such maximum period shall in no case exceed forty years. In applying the provisions of this rule the duration of perpetual penalties (pena perpetua) shall be computed at thirty years. (As amended). Outline of the provisions of this Article: 1. When the culprit has to serve 2 or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit. 2. Otherwise, the order of their respective severity shall be followed. 3. The respective severity of the penalties is as follows: a.Death b.Reclusion perpetua c. Reclusion temporal d.Prision mayor e.Prision correccional f. Arresto mayor g.Arresto menor h.Destierro i. Perpetual absolute disqualification j. Temporary absolute disqualification k.Suspension from public office, the right to vote, and be voted for, the right to follow profession or calling, and l. Public censure The penalties which can be simultaneously served are: 1. Perpetual absolute disqualification 2. Perpetual special disqualification 3. Temporary absolute disqualification 4. Temporary special disqualification 5. Suspension 6. Destierro 7. Public Censure 8. Fine and Bond to keep the peace 9. Civil interdiction 10. Confiscation and payment of costs • The above penalties, except destierro, can be served simultaneously with imprisonment. Penalties consisting in deprivation of liberty cannot be served simultaneously by reason of the nature of such penalties. ♣ The three-fold rule applies only when the convict has to serve at least four sentences. ♣ All the penalties, even if by different courts at different times, cannot exceed three-fold the most severe. - The Rules of Court specifically provide that any information must not charge more than one offense. Necessarily, the various offense punished with different penalties must be charged under different informations which may be filed in the same court or in different courts, at the same time or at different times. ♣ Subsidiary imprisonment forms part of the penalty. ♣ Indemnity is a penalty. ♣ Court must impose all the penalties for all the crimes of which the accused is found guilty, but in the service of the same, they shall not exceed three times the most severe and shall not exceed 40 years. Mejorada v. Sandiganbayan (1987) Facts: The petitioner was convicted of violating Section 3(E) of RA No. 3019 aka the Anti-Graft and Corrupt Practices Act. One of the issues raised by the petitioner concerns the penalty imposed by the Sandiganbayan which totals 56 years and 8 days of imprisonment. He impugns this as contrary to the three-fold rule and insists that the duration of the aggregate penalties should not exceed 40 years. Held: Petitioner is mistaken in his application of the 3-fold rule as set forth in Art. 70 of the RPC. This article is to be taken into account not in the imposition of the penalty but in connection with the service of the sentence imposed. Art. 70 speaks of “service” of sentence, “duration” of penalty and penalty “to be inflicted”. Nowhere in the article is anything mentioned about the “imposition of penalty”. It merely provides that the prisoner cannot be made to serve more than three times the most severe of these penalties the maximum which is 40 years. WHERE THE PENALTY IS NOT COMPOSED OF 3 PERIODS Art. 65. Rule in cases in which the penalty is not composed of three periods. — In cases in which the penalty prescribed by law is not composed of three periods, the courts shall apply the rules contained in the foregoing articles, dividing into three equal portions of time included in the penalty prescribed, and forming one period of each of the three portions. MEANING OF THE RULE 1. Compute and determine first the 3 periods of the entire penalty. 2. The time included in the penalty prescribed should be divided into 3 equal portions, after subtracting the minimum (eliminate the 1 day) from the maximum of the penalty. 3. The minimum of the minimum period should be the minimum of the given penalty (including the 1 day) 4. The quotient should be added to the minimum prescribed (eliminate the 1 day) and the total will represent the maximum of the minimum period. Take the maximum of the minimum period, add 1 day and make it the 2008 Page 51 of 62

Three-fold Rule The maximum duration of the convict’s sentence shall not be more than three times the length of time corresponding to the most severe of the penalties imposed upon him. ♣ The phrase “the most severe of the penalties” includes equal penalties.

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minimum of the medium period; then add the quotient to the minimum (eliminate the 1 day) of the medium period and the total will represent the maximum of the medium period. Take the maximum of the medium period, add 1 day and make it the minimum of the maximum period; then add the quotient to the minimum (eliminate the 1 day) of the maximum period and the total will represent the maximum of the maximum period. H. THE INDETERMINATE SENTENCE LAW prisoner may be exempted from serving said indeterminate period in whole or in part. ♣ The maximum is determined in any case punishable under the RPC in accordance with the rules and provisions of said code exactly as if the ISL had never been enacted. ♣ Apply first the effect of privileged mitigating circumstances then consider the effects of aggravating and ordinary mitigating circumstances. ♣ The minimum depends upon the court’s discretion with the limitation that it must be within the range of the penalty next lower in degree to that prescribed by the Code for the offense committed. NOTE: A minor who escaped from confinement in the reformatory is entitled to the benefits of the ISL because his confinement is not considered imprisonment.

♣ The indeterminate sentence is composed of: 1. a MAXIMUM taken from the penalty imposable under the penal code 2. a MINIMUM taken from the penalty next lower to that fixed in the code.

♣ The law does not apply to certain offenders: 1. Persons convicted of offense punished with death penalty or life imprisonment. 2. Those convicted of treason, conspiracy or proposal to commit treason. 3. Those convicted of misprision of treason, rebellion, sedition or espionage. 4. Those convicted of piracy. 5. Those who are habitual delinquents. 6. Those who shall have escaped from confinement or evaded sentence. 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, had been sentenced by final judgment. 10. Those sentenced to the penalty of destierro or suspension. ♣ Purpose of the law: to uplift and redeem valuable human material and prevent unnecessary and excessive deprivation of liberty and economic usefulness - It is necessary to consider the criminal first as an individual, and second as a member of the society. - The law is intended to favor the defendant, particularly to shorten his term of imprisonment, depending upon his behavior and his physical, mental and moral record as a prisoner, to be determined by the Board of Indeterminate Sentence. ♣ The settled practice is to give the accused the benefit of the law even in crimes punishable with death or life imprisonment provided the resulting penalty, after considering the attending circumstances, is reclusion temporal or less. ♣ ISL does not apply to destierro. ISL is expressly granted to those who are sentenced to imprisonment exceeding 1 year. PROCEDURE FOR DETERMING THE MAXIMUM AND MINIMUM SENTENCE ♣ Is consists of a maximum and a minimum instead of a single fixed penalty. ♣ Prisoner must serve the minimum before he is eligible for parole. ♣ The period between the minimum and maximum is indeterminate in the sense that the 100% UP LAW UP BAROPS

Art. 64. Rules for the application of penalties which contain three periods. — In cases in which the penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, each one of which forms a period in accordance with the provisions of Articles 76 and 77, the court shall observe for the application of the penalty the following rules, according to whether there are or are not mitigating or aggravating circumstances: 1. When there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period. 2. When only a mitigating circumstance is present in the commission of the act, they shall impose the penalty in its minimum period. 3. When an aggravating circumstance is present in the commission of the act, they shall impose the penalty in its maximum period. 4. When both mitigating and aggravating circumstances are present, the court shall reasonably offset those of one class against the other according to their relative weight. 5. When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number and nature of such circumstances. 6. Whatever may be the number and nature of the aggravating circumstances, the courts shall not impose a greater penalty than that prescribed by law, in its maximum period. 7. Within the limits of each period, the court shall determine the extent of the penalty according to the number and nature of the aggravating and mitigating circumstances and the greater and lesser extent of the evil produced by the crime. De la Cruz v. CA (1996) In as much as the amount of P715k is P693k more than the abovementioned benchmark of P22k, then adding one year for each additional P10k, the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor minimum would be increased by 69 years, as computed by the trial court. But the law categorically declares that the maximum penalty then shall not exceed 20 years of reclusion 2008 Page 52 of 62

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temporal. Under the ISL, the minimum term of the indeterminate penalt should be within the range of the penalty next lower in degree to that prescribed b the Code for the offense committed, which is prision correccional. People v. Campuhan (supra) The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstance, the maximum of the penalty to be imposed upon the accused shall be taken from the medium period of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in any of its periods. People v. Saley (supra) Under the Indeterminate Sentence Law, the maximum term of the penalty shall be "that which, in view of the attending circumstances, could be properly imposed" under the Revised Penal Code, and the minimum shall be "within the range of the penalty next lower to that prescribed" for the offense. The penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence. The fact that the amounts involved in the instant case exceed P22,000.00 should not be considered in the initial determination of the indeterminate penalty; instead, the matter should be so taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence. This interpretation of the law accords with the rule that penal laws should be construed in favor of the accused. Since the penalty prescribed by law for the estafa charge against accused-appellant is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional minimum to medium. Thus, the minimum term of the indeterminate sentence should be anywhere within six (6) months and one (1) day to four (4) years and two (2) months . I. EXECUTION AND SERVICE OF PENALTIES Execution of Penalties Art. 78. When and how a penalty is to be executed. — No penalty shall be executed except by virtue of a final judgment. A penalty shall not be executed in any other form than that prescribed by law, nor with any other circumstances or incidents than those expressly authorized thereby. In addition to the provisions of the law, the special regulations prescribed for the government of the institutions in which the penalties are to be suffered shall be observed with regard to the character of the work to be performed, the time of its performance, and other incidents connected therewith, the relations of the convicts among themselves and other persons, the relief which they may receive, and their diet. The regulations shall make provision for the separation of the sexes in different institutions, or at least into different departments and also for the correction and reform of the convicts. ♠ The judgment must be final before it can be executed, because the accused may still appeal within 15 days from its promulgation. But if the defendant has expressly waived in writing his right to appeal, the judgment becomes final and executory. ♠ See Rules and regulations to implement RA No. 8177 under Capital Punishment. Art. 86. Reclusion perpetua, reclusion temporal, prision mayor, prision correccional and arresto mayor. — The penalties of reclusion perpetua, reclusion temporal, prision mayor, prision correccional and arresto mayor, shall be executed and served in the places and penal establishments provided by the Administrative Code in force or which may be provided by law in the future. Art. 87. Destierro. — Any person sentenced to destierro shall not be permitted to enter the place or places designated in the sentence, nor within the radius therein specified, which shall be not more than 250 and not less than 25 kilometers from the place designated. ♠ Convict shall not be permitted to enter the place designated in the sentence nor within the radius specified, which shall not more than 250 and not less than 25 km from the place designated. ♠ If the convict enters the prohibited area, he commits evasion of sentence. ♠ Destierro is imposed: a. When the death or serious physical injuries is caused or are inflicted under exceptional circumstances (art. 247) b. When a person fails to give bond for good behavior (art. 284) c. As a penalty for the concubine in the crime of concubinage (Art. 334) d. When after lowering the penalty by degrees, destierro is the proper penalty. Art. 88. Arresto menor. — The penalty of arresto menor shall be served in the municipal jail, or in the house of the defendant himself under the surveillance of an officer of the law, when the court so provides in its decision, taking into consideration the health of the offender and other reasons which may seem satisfactory to it. Service of the penalty of arresto menor: a. In the municipal jail 2008 Page 53 of 62

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b. In the house of the offender, but under the surveillance of an officer of the law, whenever the court so provides in the decision due to the health of the offender. exercise discretion by the court in decisive order. Probation Conditions The grant of probation is accompanied by conditions imposed by the court: • The mandatory conditions require that the probationer shall (a) present himself to the probation officer designated to undertake his supervision at each place as may be specified in the order within 72 hours from receipt of said order, and (b) report to the probation officer at least once a month at such time and place as specified by said officer. • Special or discretionary conditions are those additional conditions imposed on the probationer which are geared towards his correction and rehabilitation outside of prison and right in the community to which he belongs. A violation of any of the conditions may lead either to a more restrictive modification of the same or the revocation of the grant of probation. Consequent to the revocation, the probationer will have to serve the sentence originally imposed. Modification of Conditions of Probation During the period of probation, the court may, upon application of either the probationers or the probation officer, revise or modify the conditions or period of probation. The court shall notify either the probationer or the probation officer of the filing of such an application so as to give both parties an opportunity to be heard thereon. Transfer of Residence Whenever a probationer is permitted to reside in a place under the jurisdiction of another court, control over him shall be transferred to the executive judge of the "Court of First Instance" of that place, and in such case, a copy of the Probation Order, the investigation report and other pertinent records shall be furnished to said executive judge. Thereafter, the executive judge to whom jurisdiction over the probationer is transferred shall have the power with respect to him that was previously possessed by the court which granted the probation. Revocation of Probation At any time during probation, the court may issue a warrant for the arrest of a probationer for any serious violation of the conditions of probation. The probationer, once arrested and detained, shall immediately be brought before the court for a hearing of the violation charged. The defendant may be admitted to bail pending such hearing. In such case, the provisions regarding release on bail of persons charged with crime shall be applicable to probationers arrested under this provision. An order revoking the grant of probation or modifying the terms and conditions thereof shall not be appealable. Termination of Probation After the period of probation and upon consideration of the report and recommendation of the probation officer, the court may order the final discharge of the probationer upon finding that he has fulfilled the terms and conditions of his probation and thereupon the case is deemed terminated.

In the Matter of the petition for Habeas Corpus of Pete Lagran (2001) Facts: The accused was convicted of 3 counts of violating BP22 and was sentenced to imprisonment of 1 year for each count. He was detained on Feb. 24, 1999. On Mar. 19, 2001, he filed a petition for habeas corpus claiming he completed the service of his sentence. Citing Art. 70, RPC, he claimed that he shall serve the penalties simultaneously. Thus, there is no more legal basis for his detention. Held: Art. 70 allows simultaneous service of two or more penalties only if the nature of the penalties so permit. In the case at bar, the petitioner was sentenced to suffer one year imprisonment for every count of the offense committed. The nature of the sentence does not allow petitioner to serve all the terms simultaneously. The rule of successive service of sentence must be applied. Effects of the Probation Law THE PROBATION LAW Taken from the DOJ website Section 3(a) of Presidential Decrees 968, as amended, defines probation as a disposition under which an accused, after conviction and sentence, is released subject to conditions imposed by the court and to the supervision of a probation officer. It is a privilege granted by the court; it cannot be availed of as a matter of right by a person convicted of a crime. To be able to enjoy the benefits of probation, it must first be shown that an applicant has none of the disqualifications imposed by law. Disqualified Offenders Probation under PD No. 968, as amended, is intended for offenders who are 18 years of age and above, and who are not otherwise disqualified by law. Offenders who are disqualified are those: (1) sentenced to serve a maximum term of imprisonment of more than six years; (2) convicted of subversion or any offense against the security of the State, or the Public Order; (3) who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not more than Two Hundred Pesos; (4) who have been once on probation under the provisions of this Decree; Post-Sentence Investigation The Post-Sentence Investigation (PSI) and the submission of the Post-Sentence Investigation Report (PSIR) are pre-requisites to the court disposition on the application for probation. Period of Probation The period of probation is in essence a timebound condition. It is a condition in point of time which may be shortened and lengthened within the statutory limits and the achievements by the probationer of the reasonable degrees of social stability and responsibility from the measured observation of the supervising officer and the 100% UP LAW UP BAROPS

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Programs and Services Post-Sentence Investigation. After conviction and sentence, a convicted offender or his counsel files a petition for probation with the trail court, who in turn orders the Probation Officer to conduct a post-sentence investigation to determine whether a convicted offender may be placed on probation or not. The role of the probation officer in this phase is to conduct the post-sentence investigation and to submit his report to the court within the period not later than 60 days from receipt of the order of the Court to conduct the said investigation. Pre-Parole Investigation. The PAROLE AND PROBATION ADMINISTRATION - (PPA) conducts pre-parole investigation of all sentenced prisoners confined in prisons and jails within their jurisdiction. The purpose is to determine whether offenders confined in prisons/jails are qualified for parole or any form of executive clemency and to discuss with them their plans after release. Probation officers submit their pre-parole assessment reports to the Board of Pardons and Parole. The Agency Supervision of Offenders. supervises two types of offenders under conditional release: (1) probationers, or persons placed under probation by the courts; (2) parolees and pardonees, or prisoners released on parole or conditional pardon and referred by the Board of Pardons and Parole (BPP) to PAROLE AND PROBATION ADMINISTRATION - (PPA) (PPA). The objectives of supervision are to carry out the conditions set forth in the probation/parole order, to ascertain whether the probationer/parolee/pardonee is complying with the said conditions, and to bring about the rehabilitation of the client and his re-integration into the community. The treatment Rehabilitation Programs. process employed by the field officers focused on particular needs of probationers, parolees and pardonees. Assistance is provided to the clientele in the form of job placement, skills training, spiritual/moral upliftment, counseling, etc. Community Linkages Probation/Parole, as a community-based treatment program, depends on available resources in the community for the rehabilitation of offenders. Thus, the Agency, recognizing the important role of the community as a rehabilitation agent, involves the community in probation work through the use of volunteer workers and welfare agencies. Presidential Decree No. 968 permits the utilization of the services of Volunteer Probation Aides to assist the Probation and Parole Officers in the supervision of probationers, parolees and pardonees particularly in the areas where the caseload is heavy and the office is understaff or where the residence of the clientele is very far from the Parole and Probation Office. As defined, a Volunteer Probation Aide is a volunteer who is a citizen of good moral character and good standing in the community, who has been carefully selected and trained to do volunteer probation work. He is appointed by the Administrator after successful completion of the 100% UP LAW UP BAROPS Introductory Training Course for probation volunteers. His term of office is one year but can be renewed thereafter or terminated earlier depending upon his performance and willingness to serve. the PAROLE AND PROBATION Further, ADMINISTRATION (PPA), through its Community Services Division, Regional and Field Offices nationwide, has been tapping government/non-government organizations/individuals for various rehabilitation programs and activities for probationers, parolees and pardonees. Llamado v. CA (1989) In its present form, Section 4 of the Probation Law establishes a much narrower period during which an application for probation ma be filed with the trial curt: “after the trial curt shall have convicted and sentenced a defendant and – within the period for perfecting an appeal”. The provision expressly prohibits the grant of an application for probation if the defendant has perfected an appeal from the judgment of conviction. Petitioner’s right to apply for probation was lost when he perfected his appeal from the judgment of the trial court. The trial court lost jurisdiction already over the case. Bala v. Martinez (1990) PD 1990 which amends Sec. 4 of PD 968 is not applicable to the case at bar. It went into effect on Jan. 15, 1985 and cannot be given retroactive effect because it would be prejudicial to the accused. Bala was placed on probation on Aug. 11, 1982. Expiration of probation period alone does not automatically terminate probation; a final order of discharge from the court is required. Probation is revocable before the final discharge by the court. Probationer failed to reunite with responsible society. He violated the conditions of his probation. Thus, the revocation of his probation is compelling. Salgado v. CA (1990) There is no question that the decision convicting Salgado of the crime of serious physical injuries had become final and executory because the filing by respondent of an application for probation is deemed a waiver of his right to appeal. The grant of probation does not extinguish the civil liability of the offender. The order of probation with one of the conditions providing for the manner of payment of the civil liability during the period of probation, did not increase or decrease the civil liability adjudged. The conditions listed under Sec. 10 of the Probation law are not exclusive. Courts are allowed to impose practically any term it chooses, the only limitation being that it does not jeopardize the constitutional rights of the accused. Office of the Court Administrator v. Librado (1996) Facts: The respondent is a deputy sheriff who was charged of violating the Dangerous Drugs Act and is now claiming he is in probation. The OCA filed an administrative case against him and he was suspended from office. 2008 Page 55 of 62

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Held: While indeed the purpose of the Probation Law is to save valuable human material, it must not be forgotten that unlike pardon probation does not obliterate the crime of which the person under probation has been convicted. The image of the judiciary is tarnished by conduct involving moral turpitude. The reform and rehabilitation of the probationer cannot justify his retention in the government service. Suspension in case of Insanity or Minority Art. 79. Suspension of the execution and service of the penalties in case of insanity. — When a convict shall become insane or an imbecile after final sentence has been pronounced, the execution of said sentence shall be suspended only with regard to the personal penalty, the provisions of the second paragraph of circumstance number 1 of Article 12 being observed in the corresponding cases. If at any time the convict shall recover his reason, his sentence shall be executed, unless the penalty shall have prescribed in accordance with the provisions of this Code. The respective provisions of this section shall also be observed if the insanity or imbecility occurs while the convict is serving his sentence. ♠ Only execution of personal penalty is suspended: civil liability may be executed even in case of insanity of convict. ♠ An accused may become insane: a. at the time of commission of the crime – exempt from criminal liability b. at the time of the trial - court shall suspend hearings and order his confinement in a hospital until he recovers his reason c. at the time of final judgment or while serving sentence – execution suspended with regard to the personal penalty only ♠ see Exempting Circumstance of Minority for PD No. 603 and Rule on Juveniles in Conflict with Law.

VII. EXTINGUISHMENT OF CRIMINAL LIABILITY
This section enumerates and explains the ways in which criminal liability is extinguished, one of which is prescription (of both the crime and the penalty) which will be discussed in detail. Two kinds of extinguishment of criminal liability: Total Extinguishment Partial Extinguishment

Kinds of Total Extinguishment: By the death of the convict By Service of sentence By Amnesty By Absolute Pardon By prescription of crime By prescription of penalty By the marriage of the offended woman and the offender in the crimes of rape, abduction, seduction and acts of lasciviousness. 344) (Art.

Kinds of Partial Extinguishment: By Conditional Pardon By Commutation of sentence For good conduct, allowances which the culprit may earn while he is serving sentence By Parole By Probation Important: The Supreme Court ruled that reelection to public office is not one of the grounds by which criminal liability is extinguished. This is only true in administrative cases but not in criminal cases.

Total Extinguishment A. BY THE DEATH OF THE CONVICT Extinguishes criminal liability as to personal penalties; As to pecuniary penalties, liability is extinguished only when the death of the offender occurs before final judgment. EXCEPTION: Art. 33 (based on contracts). Even if the accused dies pending appeal, the right to file a separate civil action is not lost.

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Illustration: 1. People v. Bayotas (1991) Where the offender dies before final judgment, his death extinguishes both his criminal and civil liabilities. So while a case is on appeal, the offender dies, the case on appeal will be dismissed. The offended party may file a separate civil action under the Civil Code if any other basis for recovery of civil liability exists as provided under Art 1157 Civil Code. 2. People v. Abungan (2000) The death of appellant extinguished his criminal liability. Moreover, because he died during the pendency of the appeal and before the finality of the judgment against him, his civil liability arising from the crime or delict (civil liability ex delicto) was also extinguished. It must be added, though, that his civil liability may be based on sources of obligation other than delict. For this reason, the victims may file a separate civil action against his estate, as may be warranted by law and procedural rules. B. BY SERVICE OF SENTENCE C. BY AMNESTY An act of the sovereign power granting oblivion or general pardon for a past offense. Rarely exercised in favor of a single individual; usually extended in behalf of certain classes of persons who are subject trial but have not yet been convicted. Erases not only the conviction but also the crime itself. D. BY ABSOLUTE PARDON An act of grace, proceeding from the power entrusted with the execution of the laws Exempts the individual from the penalty of the crime he has committed. Monsanto V. Factoran, Jr. (1989) Absolute pardon does not ipso facto entitle the convict to reinstatement to the public office forfeited by reason of his conviction. Although pardon restores his eligibility for appointment to that office, the pardoned convict must reapply for the new appointment. Difference between Amnesty and Absolute Pardon Amnesty Blanket pardon to classes of persons, guilty of political offenses May still be exercised even before trial or investigation Looks backward – it is as if he has committed no 100% UP LAW Absolute pardon Includes any crime and is exercised individually The person is already convicted Looks forward – he is relieved from the consequences of the UP BAROPS 2008 Page 57 of 62 Question: An offender was convicted of rebellion, but he was given amnesty. Years later, he was convicted again of rebellion. Is he a recidivist? Answer: No. Because the amnesty granted to him erased not only the conviction but also the effects of the conviction itself. Question: Suppose what was given him was not amnesty but pardon? Answer: Yes. Pardon, although absolute does not erase the effects of conviction. Pardon only excuses the convict from serving the sentence. Question: A person convicted of rebellion has already served the sentence; yet, despite of this, he was still given absolute pardon. Years later, he was again convicted of rebellion. Is he a recidivist? Answer: No. When the convict has already served the sentence such that there is no more service of sentence to be executed then the pardon shall be understood as intended to erase the effects of the conviction. Question: What if the pardon was given to him while he was serving his sentence? Answer: The pardon will not wipe out the effects of the crime, unless the language of the pardon specifically relieves him of the effects of the crime. E. BY PRESCRIPTION OF THE CRIME (Art. 90) Definition: The forfeiture or loss of the right of the State to prosecute the offender, after the loss of a certain time. General Rule: Prescription of the crime begins on the day the crime was committed. Exception: The crime was concealed, not public, in which case, the prescription thereof would only commence from the time the offended party or the government learns of the commission of the crime. offense, but rights not restored unless explicitly provided by the terms of the pardon Both do not extinguish civil liability Public act which the Private act of the court shall take President and must be judicial notice of pleaded and proved by the person pardoned Valid only when Valid if given either there is final before or after final judgment judgment offense.

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Difference between Prescription of Crime and Prescription of the Penalty Prescription of crime Forfeiture of the State to prosecute after a lapse of a certain time Prescription of the penalty Forfeiture to execute the final sentence after the lapse of a certain time Note: Termination must be FINAL as to amount to a jeopardy that would bar a subsequent prosecution. The term of prescription shall not run when the offender is absent from the Philippine archipelago. For continuing crimes, prescriptive period cannot begin to run because the crime does not end.

Question: What happens when the last day of the prescriptive period falls on a Sunday or legal holiday? Answer: The information can no longer be filed on the next day as the crime has already prescribed. Prescriptive Periods of Crimes

F. BY PRESCRIPTION OF PENALTIES (Art. 92) Definition: The loss or forfeiture of the right of the government to execute the final sentence after the lapse of a certain time. Prescriptive Periods of Penalties

Crimes punishable by death, reclusion perpetua or reclusion temporal Afflictive penalties Correctional penalties Note: Those punishable by arresto mayor

20 years Death and reclusion perpetua Other afflictive penalties Correctional penalties Note: If arresto mayor Light penalties 20 years 15 years 10 years 5 years 1 year

15 years 10 years 5 years The highest penalty shall be made a basis 1 year 6 months 2 months 6 months 2 months 15 years 10 years 2 months

Note: When the penalty fixed law is a compound one

Computation of the Prescription of Penalties (Art. 93) Elements: 1. 2. Penalty is imposed by final judgment Convict evaded service of sentence by escaping during the term of his sentence The convict who has escaped from prison has not given himself up, or been captured, or gone to a foreign country with which we have no extradition treaty, or committed another crime The penalty has prescribed because of the lapse of time from the date of the evasion of service of the sentence by the convict.

Libel Oral defamation and slander by deed Simple slander Grave slander Light offenses Crimes punishable by fines Fine is afflictive Fine is correctional Fine is light Note: Subsidiary penalty for nonpayment not considered in determining the period

3.

4.

Note: When fine is an alternative penalty higher than the other penalty which is by imprisonment, prescription of the crime is based on the fine. Computation of Prescription of Offenses (Art. 91) Commences to run from the day on which the crime is discovered by the offended party, the authorities or their agents. Interrupted by the filing of complaint or information It shall commence to run again when such proceedings terminate without the accused being convicted or acquitted, or unjustifiably stopped for any reason not imputable to the accused. 100% UP LAW UP BAROPS

Period commences to run from the date when he culprit evaded20 the service of sentence When interrupted: Convict gives himself up Is captured Goes to a foreign country with which we have no extradition treaty Commits any crime before the expiration of the period of prescription Question: What happens in cases where our government has extradition treaty with another country but the crime is not included in the treaty? Answer: It would interrupt the running of the prescriptive period.

"Escape" in legal parlance and for purposes of Articles 93 and 157 of the RPC means unlawful departure of prisoner from the limits of his custody. Clearly, one who has not been committed to prison cannot be said to have escaped therefrom (Del Castillo v. Torrecampo (2002).

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Question: What is the effect of the acceptance of the convict of a conditional pardon? Answer: It would interrupt the acceptance of the prescriptive period. Question: What happens if the culprit is captured but he evades again the service of his sentence? Answer: The period of prescription that ran during the evasion is not forfeited. The period of prescription that has run in his favor should be taken into account. G. BY MARRIAGE OF THE FFENDED WOMAN WITH THE OFFENDER This applies only to the following crimes: Rape Seduction Abduction Acts of lasciviousness The marriage under Art. 344 must be contracted in good faith Partial Extinguishment A. A. BY CONDTIONAL PARDON If delivered and accepted, it is a contract between the executive and the convict that the former will release the latter upon compliance with the condition. Example of a condition: “Not to violate any of the penal laws of the country again”. B. BY COMMUTATION OF SENTENCE C. FOR GOOD CONDUCT ALLOWANCES The convict may earn these while he is serving his sentence. Example: Article 158. A convict who escapes the place of confinement on the occasion of disorder resulting from a conflagration, earthquake or similar catastrophe, or during a mutiny in which he has not participated; but who returns within 48 hours after the proclamation that the calamity had passed shall be given credit of 1/5 deduction of the original sentence. Note: Not an automatic right for it has to be granted by the Director of Prisons (Art. 99). Also, he must be serving his sentence. Thus, if released because of conditional pardon, this provision is not applicable. D. BY PAROLE Definition: The suspension of the sentence of the convict after serving the minimum term of the intermediate penalty, without being granted a pardon, prescribing the terms upon which the sentence shall be suspended. Question: What happens if the convict fails to observe the condition of the parole? Answer: The Board of Pardons and Parole is authorized to: 1. Direct his arrest and return to custody 2. To carry out his sentence without deduction of the time that has elapsed between the date of the parole and the subsequent arrest. Difference between Conditional Pardon and Parole Conditional Pardon May be give at any time after final judgment; is granted by he Chief Executive under the provisions of the Administrative Code Parole 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 Indeterminate Sentence Law In case of violation, the convict may not be prosecuted under Art. 159 of the RPC.

In case of violation, the convict may be prosecuted under Art. 159 of the RPC.

E. BY PROBATION Note: Please see Probation Law on page 117.

B.

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VIII. CIVIL LIABILITY ARISING FROM A FELONY
A. IN GENERAL B. CIVIL LIABILITY IN CERTAIN CASES C. WHAT CIVIL LIABILITY INCLUDES D. EXTINCTION OF CIVIL LIABILITY • Exemption from criminal liability does not include exemption from civil liability. Exceptions: 1.There is no civil liability in paragraph 4 of Art. 12 which provides for injury caused by mere accident. 2.There is no civil liability in par. 7 of Art. 12 which provides for failure to perform an act required by law when prevented by some lawful or insuperable cause.

A. IN GENERAL Art. 100. Civil liability of a person guilty of felony. — Every person criminally liable for a felony is also civilly liable. Civil liability arises from the commission of the felony. It is determined in the criminal action except if: a. b. c. the offended party waives his right to file a civil action the offended party reserves his right to institute it separately, or the offended party institutes the civil action prior to the criminal action.

1) CIVIL LIABILITY FOR ACTS COMMITTED BY AN INSANE OR IMBECILE OR MINOR UNDER 9 OR OVER 9 AND LESS THAN 15 WHO ACTED WITH DISCERNMENT A minor • over 15 years of age • who acts with discernment ◦ is not exempt from criminal liability. ◦ Parents are subsidiarily liable according to Art 2180 of the Civil Code. The final release of a child based on good conduct does not obliterate his civil liability for damages. 2) CIVIL LIABILITY FOR ACTS COMMITTED BY PERSONS ACTING UNDER IRRESISTIBLE FORCE OR UNCONTROLLABE FEAR The persons using violence or causing the fear are primarily liable. If there be no such persons, those doing the act shall be liable secondarily. 3) CIVIL LIABILITY OF PERSONS ACTING UNDER JUSTIFYING CIRCUMSTANCES There is no civil liability in justifying circumstances except in par. 4 of Art. 11 4) CIVIL LIABILITY OF INNKEEPERS AND SIMILAR PERSONS ELEMENTS OF At 102 PAR. 1: 1. That the INNKEEPER, TAVERNKEEPER OR PROPRIETOR of establishment or his employee committed a violation of municipal ordinance or some general or special police regulation. That a crime is committed in such inn, tavern or establishment. That the person criminally liable is insolvent.

Effect of ACQUITTAL: • As a rule, if the offender is acquitted, the civil liability is extinguished, except: a) if the acquittal is based on reasonable doubt b) the acquittal was due to an exempting circumstance like insanity and c) when the court finds that there is only civil liability.

B. CIVIL LIABILITY IN CERTAIN CASES 1) CIVIL LIABILITY FOR ACTS COMMITTED BY AN INSANE OR IMBECILE OR MINOR UNDER 9 OR OVER 9 AND LESS THAN 15 WHO ACTED WITH DISCERNMENT 2) CIVIL LIABILITY FOR ACTS COMMITTED BY PERSONS ACTING UNDER IRRESISTIBLE FORCE OR UNCONTROLLABE FEAR 3) CIVIL LIABILITY OF PERSONS ACTING UNDER JUSTIFYING CIRCUMSTANCES 4) CIVIL LIABILITY OF INNKEEPERS AND SIMILAR PERSONS 5) SUBSIDIARY LIABILITY OF OTHER PERSONS

2.

3.

ELEMENTS OF PAR 2. 1. The guests notified in advance the innkeeper or the person representing him of the deposit of their goods within the inn or house. 2. The guest followed the directions of the innkeeper or his representative with 2008 Page 60 of 62

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respect to the care of the vigilance over such goods. 3. Such goods of the guests lodging therein were taken by robbery with force upon things or theft committed within the inn or house. No liability shall attach in case of robbery with violence against or intimidation of persons, • unless committed by the innkeeper’s employees. It is not necessary that the effects of the guest be actually delivered to the innkeeper, • it is enough that they were within the inn. 5) SUBSIDIARY LIABILITY OF OTHER PERSONS Art 103 ELEMENTS: 1. The employer, teacher, person or corporation is engaged in any kind of industry. 2. Any of their servants, pupils, workmen, apprentices or employees commits a felony while in the discharge of his duties. 3. The said employee is insolvent and has not satisfied his civil liability. No defense of diligence of a good father of a family. Supreme Court ruled that even though the guest did not obey the rules and regulations, the guests will only be regarded as contributory negligence, but it won’t absolve the management from civil liability (Esguerra notes) Subsidiary civil liability is imposed in the following: 1. In case of a felony committed under the compulsion of an irresistible force. The person who employed the irresistible force is subsidiarily liable; 2. In case of a felony committed under an impulse of an equal or greater injury. The person who generated such an impulse is subsidiarily liable. 1. RESTITUTION OR RESTORATION Presupposes that • the offended party was divested property, • and such property must be returned.

of

If the property is in the hands of a third party, • the same shall be restored to the offended party • even if third party may be a holder for value and a buyer in good faith of the property Except when such third party buys the property from a public sale where the law protects the buyer. ILLUSTRATION: If a third party bought a property in a public auction conducted by the sheriff, the buyer of the property at such execution sale is protected by law. The offended party may only resort to reparation of the damage done from the offender. Regardless of the crime committed, • if the property is illegally taken from the offended party during the commission of the crime, • the court may direct the offender to restore or restitute such property to the offended party. ILLUSTRATION: Where the offender committed rape, during the rape, the offender took the earrings of the victim. The offender was prosecuted for rape and theft. The offender reasoned that he took the earrings of the victim to have a souvenir of the sexual intercourse. Supreme Court ruled that the crime committed is not theft and rape but rape and unjust vexation for the taking of the earning. The latter crime is not a crime against property but a crime against personal security and liberty under Title IX of Book II of the RPC. If there is violation of Anti-Fencing Law the fence • incurs criminal liability • aside from being required to restitute the personal property If RESTITUTION cannot REPARATION should be made be made then

C. WHAT CIVIL LIABILITY INCLUDES Civil liability of the offender falls under three categories: 1. Restitution or Restoration 2. Reparation of the damage caused 3. Indemnification damages of consequential

IF OFFENDER DIES provided he died after judgment became final: • The heirs of offender • shall assume the civil liability, • but only to the extent that they inherit property from the deceased IF OFFENDED PARTY DIES: • the heirs of the offended party step into the shoes of the latter to demand civil liability from the offender. 2. REPARATION OF THE DAMAGE CAUSED

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Reparation is made by requiring the offender to pay the value of damages. The court determines the amount of damages by considering: a) the price of the thing and b) Its special sentimental offended party by. • Anyone of them may be required to pay the civil liability pertaining to such offender without prejudice to recovery from those whose share have been paid by another.

value

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the

If property is brand new, then there will be an allowance for depreciation The damages are limited to those caused by the crime. 3. INDEMNIFICATION OF CONSEQUENTIAL DAMAGES Indemnification of consequential damages refers to the loss of earnings, loss of profits. Where DEATH results: 1. INDEMNITY: P50,000 2. Lost of Earning Capacity 3. Support to a non-heir 4. Moral damages for mental anguish… 5. Exemplary damages if attended by 1 or more aggravating circumstances Indemnification for consequential damages includes: 1) those caused the injured party 2) those suffered by the family, or 3) those suffered by 3rd person by reason of the crime ILLUSTRATION: The offender carnapped a bridal car while the newly-weds were inside the church. Since the car was only rented, consequential damage not only to the newly-weds but also to the entity which rented the car to them. 1) Espaňa v. People (2005) The award for civil indemnity ex delicto is mandatory and is granted to the heirs of the victim without need of proof other than the commission of the crime. In the crime of rape, the damages awarded to the offended woman is generally P30,000.00 for the damage to her honor. The present procedural law • does not allow a blanket recovery of damages. • Each kind of damages must be specified and the amount duly proven. When there are several offenders, • the court shall determine what shall be the share of each offender • depending upon the degree of participation – as principal, accomplice or accessory. If there are more than one principal or more than one accomplice or accessory, • the liability in each class of offender shall be subsidiary.

If all the principals are insolvent, the obligation shall devolve upon the accomplice(s) or accessory(s). But whoever pays shall have the right of covering the share of the obligation from those who did not pay but are civilly liable. To relate with Article 38, • when there is an order or preference of pecuniary (monetary) liability, therefore, restitution is not included here. There is no subsidiary penalty for nonpayment of civil liability. 2) People vs. Tupal, 2003, Exemplary damages were awarded when the offense was committed with at least 1 aggravating circumstance.

D. EXTINCTION OF CIVIL LIABILITY Extinguished in the same manner as other obligations in accordance with the provisions of the Civil Code. Loss of the thing due • does not extinguish civil liability • because if the offender cannot make restitution, he is obliged to make reparation. Unless extinguished, civil liability subsists • even if the offender has served sentence consisting of deprivation of liberty or other rights or has served the same, due to amnesty, pardon, commutation of sentence or any other reason.

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