MITIGATING CIRCUMSTANCES

Mitigating Circumstances are those which, if present in the commission of the crime, do not entirely free the actor from criminal liability, but serve only to REDUCE the penalty. BASIS OF MITIGATING CIRCUMSTANCES - based on the diminution of either freedom of action, intelligence, or intent, or on the lesser perversity of the offender. Distinction between Ordinary and Privileged mitigating circumstances. Privileged mitigating circumstances applicable only to particular crimes. Art. 268. Art. 333. RULES : Ordinary mitigating circumstances can be offset by any aggravating circumstances Privileged mitigating cannot be offset by aggravating circumstances. Ordinary mitigating, if not offset by an aggravating circumstance, produces only the effect of applying the penalty provided by law for the crime in its MINIMUM PERIOD, in case of DIVISIBLE PENALTY. Privileged Mitigating produces the effect of imposing upon the offender the penalty lower by one or two degrees than that provided by law for the crime. Mitigating circumstances only reduce the penalty, but do not change the nature of the crime. Par. 1. Those mentioned in the preceding chapter when all the requisite necessary to justify the act or to exempt from criminal liability in the respective cases are not attendant. Those mentioned in the preceding chapter - it has reference to 1. Justifying circumstances and 2. Exempting circumstances. In self-defense, defense of relatives, and defense of stranger, unlawful aggression must be present, it being an indispensable requisite. What is absent is either one or both of the last two requisites. Paragraph 1 of Art. 13 ( Incomplete Self-Defense ) is applicable only when unlawful aggression is present but the other two requisites are not present in any of the cases referred to in circumstances Nos. 1,2 and 3 of Art. 11 When two ( 2 ) of the three ( 3 ) requisites of self-defense, defense of relatives and defense of strange ( unlawful aggression plus one of the other two elements, it should be considered a privileged mitigating circumstances referred to in Art. 69 of the RPC. If there is no unlawful aggression, there could be no self-defense, defense of relative and defense of stranger, whether complete or incomplete. ( Give Examples ) PARAGRAPH 2. - That the offender is under 18 year old or over 70 year old. In the case of the minor, he shall be proceeded against in accordance with the provisions of article 80.

RULES :

1. Offender 15 year old and below is exempt from criminal liability ( R. A. 9344 )

2. Offender if over 15 year old but under 18 year old, the penalty is one degree lower than that provided by law. 3. The offender is over 70 years of age is only a Generic Mitigating Circumstance 4. There are two cases where the fact that the offender is over 70 years of age has the effect of a privileged mitigating circumstance, namely : ( 1 ) when he committed n offense punishable by death, that penalty shall not be imposed ( Art. 47. Par. 1 ) ; and ( 2 ) when death sentence is already impose, it shall be suspended and commuted ( Art. 83 ). In any of the above-mentioned two cases, the penalty of death will have to be lowered to life imprisonment ( reclusion perpetua ) Basis of Paragraph 2 - diminution of intelligence, a condition of voluntariness. PARAGRAPH 3. That the offender had no intention to commit so grave a wrong as that committed. RULES : 1. Paragraph 3 should be read in relation to Article 4 of the RPC. 2. Intention, being an internal state, must be judged by external acts. 3. The weapon used, the part of the body injured, the injury inflicted, and the manner it is inflicted may show that the accused intended the wrong committed. 4. Art. 13, par. 3, is not applicable when the offender employed brute force. 5. Intention, being an internal state, must be judged by external acts. 6. The weapon used, the part of the body injured, the injury inflicted, and the manner it is inflicted may show that the accused intended the wrong committed. 7. It is the intention of the offender at the moment when he is committing the crime which is considered. 8. In crimes against persons who do not die as a result of the assault, the absence of the intent to kill reduces the felony to mere physical injuries, but it does not constitute a mitigating circumstance under Art. 13, par. 3. 9. Art. 13 par. 3 is not applicable to felonies by negligence. Reason : the offender acts without intent.. The intent in intentional felonies is replaced by negligence, imprudence, lack of foresight or lack of skill in culpable felonies. 10. It is applicable to felonies where the intention of the offender is immaterial. 11. It applicable only to offenses resulting in physical injuries or material harm. It could not be appreciated in cases of defamation or slander. 12. Basis of Paragraph 3. In this circumstance, intent, an element of voluntariness in intentional felony, is diminished.

PARAGRAPH 4. That sufficient provocation or threat on the part of the offended party immediately preceded the act. RULES ; 1. Provocation is understood any unjust or improper conduct or act of the offended party, capable of exciting , inciting, or irritating any one. 2. Sufficient means adequate to excite a person to commit the wrong and must accordingly be proportionate to its gravity 3. When the defendant sought the deceased, the challenge to fight by the latter is not provocation. 4. Provocation must originate from the offended party. 5. Provocation must be immediate to the commission of the crime PARAGRAPH 5. That the act was committed in the IMMEDIATE VINDICATION of a grave offense to the one committing the felony, his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by affinity within the same degrees. RULES : 1. What is grave offense.

2. Vindication of the grave offense may be proximate, which admits of an interval of time between the grave offense done by the offended party and the commission of the crime by the accused. 3. A personal offense is grave must be decided by the court, having in mind the social standing of the person, place, and the time when the crime was committed. 4. Basis of Par. 5, based on the diminution of the conditions of voluntariness

PARAGRAPH 6. That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation. RULES : power. 1. He loses his reason and self-control, thereby diminishing the exercise of his will 2. Passion or Obfuscation must arise from LAWFUL SENTIMENTS. 3. The act of the offended party must be unlawful or unjust. 4. Exercise of a right or fulfillment of duty is not proper source of passion or obfuscation 5. The defense must prove that the act which produced passion or obfuscation took place at a time not far removed from the commission of the crime. No passion or obfuscation after 24 hours, or several hours or half an hour. 6. Obfuscation cannot be mitigating in a crime which was planned and calmly meditated or if the impulse upon which the accused acted was deliberately fomented by him for a considerable period of time.

7. The mitigating circumstance of obfuscation arising from jealousy cannot be invoked in favor of the accused whose relationship with the woman ( his common-law wife ) was illegitimate. 8. party. 9. Provocation and obfuscation arising from one and the same cause should be treated as only one mitigating circumstance. PARAGRAPH 7. That the offender had voluntarily surrendered himself to a person in authority or his agent, or that he had voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution. RULES : 1. Not mitigating when defendant was in fact arrested. The cause producing passion or obfuscation must come from the offended

2. The accused who ran to the municipal building after the commission of the crime had the intention or desire to surrender. 3. The accused who fled and hid himself to avoid reprisals from the companions of the deceased, but upon meeting a policeman voluntarily went with him to the jail, is entitled to the benefit of the mitigating circumstance of voluntary surrender. 4. When the accused surrendered only after the warrant of arrest had been served upon him, it is not mitigating. 5. When the warrant of arrest had not been served or not returned unserved because the accused cannot be located, the surrender is mitigating. 6. Where the accused merely surrendered the gun used in the killing, without surrendering his own person to the authorities, such act of the accused does not constitute voluntary surrender. 7. The surrender must be by reason of the commission of the crime for which defendant is prosecuted 8. A surrender to be voluntary must be SPONTANEOUS showing the intent of the accused to submit himself unconditionally to the authorities, either ( 1 ) because he acknowledges his guilt, or ( 2 ) because he wishes to save them the trouble and expenses necessarily incurred in his search and capture. 9. Spontaneous - emphasizes the idea of an inner impulse, acting without external stimulus. 10. Intention to surrender, without actually surrendering, is not mitigating.

11. There is spontaneity even if the surrender is induced by fear of retaliation by victims relatives.

12. When the offender imposed a condition or acted with external stimulus, his surrender is not voluntary. PLEA OF GUILTY : RULES : 1. 2. 3. Plea of guilty on appeal, not mitigating Plea of not guilty at the preliminary investigation is no plea at all. The confession of guilt must be made in open court.

4. Withdrawal of plea of not guilty and pleading guilty before presentation of evidence by prosecution is still mitigating. 5. 6. A conditional plea of guilty is not a mitigating circumstance. Plea of guilty to lesser offense than that charged, not mitigating

7. Plea of guilty to the offense charged in the amended information, lesser than that charged in the original information, is mitigating. 8. When the accused is charged with a grave offense, the court should take his testimony in spite of his plea of guilty. 9. The basis of the mitigating circumstances of voluntary surrender and plea of guilty is the lesser perversity of the offender. 10. special laws. Plea of guilty is not mitigating in culpable felonies and in crimes punished by

PARAGRAPH 8. That the offender is deaf and dumb, blind or otherwise suffering from some physical defect which thus restricts his means of action , defense, or communication with his fellow beings. Basis of par. 8. Diminution of voluntariness. PARAGRAPH 9. Such illness of the offender as would diminish the exercise of the will-power of the offender without however depriving him of consciousness of his acts. When the offender completely lost the exercise of will-power, it may be an exempting circumstance. Basis : Diminution of intelligence and intent. PARAGRAPH 10. And, finally, any other circumstance of a similar nature and analogous to those above-mentioned. RULES : 1. in paragraph 2. 2. Over 60 years old with failing sight, similar to over 70 years of age mentioned Outraged feeling of creditor, similar to passion and obfuscation

3. 4. 5. 6. of necessity. 7.

Impulse of jealous feeling, simi lar to passion and obfuscation Esprit de corps, similar to passion and obfuscation Voluntary restitution of stolen property, similar to voluntary surrender Extreme poverty and necessity, similar to incomplete justifying based on state Killing a wrong man is not mitigating

CIRCUMSTANCES WHICH ARE NEITHER EXEMPTING NOR MITIGATING : 1. Mistake IN THE BLOW OR ABERRATIO ICTUS, for under Art. 48, there is a complex crime committed. 2. Mistake in the identity of the victim, for under Art. 4, par. 1 3. Entrapment.