Criminal Law Reviewer

d.
e.
f.
g.
h.
i.

REVISED PENAL CODE

Criminal Law: that branch of public substantive law
which defines crimes, treats of their nature and
provides for their punishment

Article 18, Sec 1

Article 18, Sec 2
Article 19, Sec 1
Article 19, Sec 2
Article 20
Article 22

1985 Rules on Criminal Procedure, Rule 115

Sources of Criminal Law in the Philippines

Civil Code, Article 2

Development of Criminal Law in the Philippines

Cases:
a. Tanada vs Tuvera
b. Pesigan vs Angeles

Constitutional Limitations
a. State Authority to Punish Crime
1987 Constitution, Art II, Sec 5
o The maintenance of peace
and order, the protection of
life, liberty and property and
promotion of the general
welfare are essential for the
enjoyment by all the people of
the blessings of democracy
1987 Constitution, Art VI, Sec 1
o The legislative power shall be
vested in the Congress of the
Philippines which shall consist
of a Senate and a House of
Representative, except to the
extent reserved to the people
by the position on initiative and
referendum

b. Limitations on the power

1. Must be general in application
2. Must not partake of the nature of an
Ex Post Facto Law
3. Must not partake of the nature of a Bill
of Attainder
Case: People vs Ferrer
Facts:
Ruling:

4. Must not impose cruel and unusual

punishment or excessive fines
1987 Constitution:
a. Article 3, Sec 1
b. Article 14, Sec 1
c. Article 14, Sec 2

Criminal Law Reviewer

Those mentioned in the preceding chapter
a. Justifying circumstances
b. Exempting circumstances
Article 13: MITIGATING CIRCUMTANCES (MC)

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: are based on the diminution of either
freedom of action, intelligence, or intent or on
the lesser perversity of the offender

Classes of MC:
1. Ordinary MC
2. Privileged MC
Ordinary Mitigating
circumstance
As to Nature
of
circumstance

As to Effect

circumstance

Ordinary MC
OMC Can be
offset
by
aggravating
circumstance
s
OMCs, if not
offset,
will
operate
to
reduce
the
penalty to the
minimum
period,
provided the
penalty is a
divisible one

vs

Circumstances of justification or exemption which

may give place to mitigation:
1.
2.
3.
4.
5.
6.
7.

Self-defense (Art 11, par 1)

Defense of relatives (Art 11, par 2)
Defense of stranger (Art 11, par 3)
State of necessity (Art 11, par 4)
Performance of duty (Art 11, par 5)
Obedience to order of superior (Art 11, par 6)
Child above 15 years but below 18 year
(Section 6, par 2, RA 9344)
8. Causing injury by mere accident (Art 12, par
4); and
9. Uncontrollable fear (Art 12, par 6)

Privileged

Privileged MC
PMC Can never
be offset by any
aggravating
circumstances
PMCs operate to
reduce
the
penalty by 1 or 2
degrees,
depending upon
what the law
provides

Applies only to
particular crimes
Article 13, par 1
Points to remember:
1.

Even if there is an aggravating circumstance,

do not compensate because that would be
violating the rules.
2. Article 13 is meaningless without knowing the
rules of imposing penalties under Art. 63 & 64
3. Mitigating circumstances only reduce the
penalty, but do not change the nature of the
crime
Paragraph 1: Those mentioned in the preceding
chapter, when all the requisites necessary to justify
the act or to exempt from criminal liability in the
respective cases are not attendant.

Article 12, par 1 & 2 cannot give place to mitigation

o The mental condition of a person is indivisible;
that is there is no middle ground between
sanity and insanity, between presence and
absence of intelligence. (Supreme Court of
Spain)
If the offender is suffering from some illness which
would diminish the exercise of his will-power,
without however depriving him of consciousness of
his act, such circumstance is considered a
mitigation under par. 9 of Article 13.
o One who is suffering from mental disease
without
however
depriving
one
of
consciousness of ones act may be given the
benefit of that mitigating circumstance.
When all the requisites necessary to justify the
act are not attendant:
1. Incomplete self-defense, defense of relatives,
and defense of stranger (Art 11, pars 1 to 3)
a. Unlawful aggression must be present
in these 3 classes of defense
b. What is absent is either 1 or both of
the last 2 requisites of Art 11.
Article 13, par. 1 is applicable only when:
o Unlawful aggression is present
o The other 2 requisites are not present
in any of the cases referred to in
circumstances nos 1, 2 and 3 of Art
11.

2 of the 3 requisites in Art 11 are present

Criminal Law Reviewer

o The case is not to be considered as
an ordinary or generic mitigating
circumstance
o It should be considered as a privileged
mitigating circumstance (Art. 69, RPC)
o Privileged mitigating circumstance:
majority of the conditions required to
justify the act is present
If there is no unlawful aggression, there could
be NO self defense, or defense of a relative,
whether complete or incomplete.

2. Incomplete
justifying
circumstance
of
avoidance of greater evil or injury
Avoidance of greater evil or injury is a
JUSTIFYING circumstance if all the 3
requisites in Art 11, par 4 are present
If any of the LAST 2 requisites is absent,
there is only a mitigating circumstance.
3. Incomplete
justifying
circumstance
of
performance of duty
a. Requisites under Art 11, par 5 for it to
be
taken
as
a
JUSTIFYING
circumstance:
i. That the accused acted in the
performance of a duty or in the
lawful exercise of a right or
office;
ii. That the injury caused or
offense committed be the
NECESSARY consequence of
the DUE performance of such
duty or the lawful exercise of
such right or office
4. Incomplete
justifying
circumstance
of
obedience to an order
When all the requisites necessary to exempt from
criminal liability are not attendant:
1. Incomplete exempting circumstance of minor
over 15 years but below 18 years old
2. Incomplete exempting circumstance of
accident
a. Four requisites to exempt one from
criminal liability under Art 12, par 4:
i. A person is performing a
lawful act;
ii. With due care;
iii. He causes an injury to
another by mere accident;
and
iv. Without fault or intention of
causing it.
b. If the 2nd requisite and the 1st part of
the 4th requisite (without fault) are
ABSENT, the case will fall under Art

365 (Imprudence and Negligence); in

effect,
there
is
a
mitigating
circumstance because the penalty is
lower than that provided for intentional
felony.
c. If the 1st requisite and the 2nd part of
the 4th requisite (without intention of
causing it) are ABSENT, because the
person committed an unlawful act and
had the intention of causing the injury,
it will be an INTENTIONAL FELONY.
The 2nd and 3rd requisites will not be
present either. In this case, there is
not even a mitigating circumstance.
3. Incomplete exempting circumstance of
uncontrollable fear.
a. Under Art 12, par 6, the following
requisites must be present for it to be
considered
as
an
exempting
circumstance:
i. That the threat which cause
the fear was of an evil greater
than, or at least equal to, that
which he was required to
commit;
ii. That it promised an evil of
such gravity and imminence
that an ordinary person would
have
succumbed
to
it
(uncontrollable).
b. If only 1 of these requisites is present,
there
is
only
a
mitigating
circumstance.
Paragraph 2: That the offender is under eighteen
years of age or over 70 years. In the case of the
minor, he shall be proceeded against in accordance
with the provisions of RA 9344.

RA 9344 impliedly repealed Art 13, par 2 of

the RPC.
A child above 15 years but below 18 of age
shall be exempt from criminal liability unless
he/she acted with discernment (Sec 6, RA
9344)
Under RA 9344 (Juvenile Justice and Welfare
Act of 2006), such offender may be exempt
from criminal liability should he/she acted
without discernment.
If the offender acted with discernment, such
child in conflict with law shall undergo
diversion programs provided under Chapter 2
of RA 9344.

Diversion- refers to an alternative, child-appropriate

process of determining the responsibility and
treatment of a child in conflict with the law on the
basis of his /her social, cultural, economic,

Criminal Law Reviewer

psychological, or educational background without
resulting to formal court proceedings.

i. A diversion program shall be developed

when appropriate and desirable as
determined under Section 30
ii. Such admission shall not be used
against the child in any subsequent
judicial, quasi-judicial or administrative
proceedings
iii. The diversion program shall be effective
and binding if accepted by the parties
concerned
iv. The acceptance shall be in writing and
signed by the parties concerned and the
appropriate authorities
v. The LSWD officer shall supervise the
implementation
of
the
diversion
program.
vi. The diversion proceedings shall be
completed within 45 days.
vii. The prescription period of the offense
shall be suspended until the completion
of the diversion proceedings but not
exceed 45 days.
viii. The child must present him/herself to
the competent authorities that imposed
the diversion program at least once a
month for the reporting and evaluation
of the effectiveness of the program.
ix. Failure to comply with the terms and
conditions of the contract of diversion,
as certified by the LSWD officer, shall
give the offended party the option to
institute the appropriate legal action.
x. The period of prescription of the offense
shall be suspended during the effectivity
of the diversion program, but not
exceeding a period of 2 years.

Diversion program- refers to the program that the

child in conflict with the law is required to undergo
after he/she us found responsible for an offense
without resorting to formal court proceedings.
System of Diversion:
Conditions:
a. The imposable penalty for the crime committed
is not more than 6 years imprisonment:
i. The Punong Barangay with the
assistance of the LSWD officer or other
members of the Local Councils for the
Protection of Children (LCPC) shall
conduct:
1. Mediation
2. Family
conferencing
and
conciliation
3. When
appropriate,
adopt
indigenous modes of conflict
resolution in accordance with the
best interest of the child with a
view to accomplishing the
objectives of restorative justice
and the formulation of a diversion
program
ii. The child and his/her family shall be
present in these activities
b. In victimless crimes, where the imposable
penalty is not more than 6 years imprisonment
i. The LSWD officer shall meet with the
child and his/her parents or guardians
for the development of the appropriate
diversion and rehabilitation program in
coordination with the BCPC
c. Where the imposable penalty for the crime
committed exceeds 6 years imprisonment
i. Diversion measures may be resorted
to only by the court

Where diversion may be conducted:

a.
b.
c.
d.

Conferencing, Mediation and Conciliation

A child in conflict with the law may undergo
conferencing, mediation or conciliation outside the
criminal justice system or prior to his entry into said
system.
A contract of diversion may be entered into during
such conferencing, mediation or conciliation
proceedings.
Contract of Diversion:
a. During the conferencing, mediation or
conciliation, the child voluntarily admits the
commission of the act:

Katarungang Pambarangay
Police investigation
Inquest or preliminary investigation stage
At all levels and phases of the proceedings
including judicial level

If there is no diversion (Duty of the PB or law

enforcer)

The PB handling the case shall, within 3 days

from the determination of the absence of
jurisdiction over the case or termination of the
diversion proceeding as the case may be,
forward the records of the case to the law
enforcement officer, prosecutor or the
appropriate court, as the case may be

Determination of age of child in conflict with the

law

Criminal Law Reviewer

The child in conflict with the law shall enjoy
the presumption of minority
He/she shall enjoy all the rights of a child in
conflict with the law until he/she is proven to
be 18 years old or older.
Determining documents:
o Birth certificate
o Baptismal certificate
o And any other pertinent documents
In the absence of those documents mentioned
above:
o Age may be based on information
from the child him/herself
o Testimonies of other persons
o The physical appearance of the child
o Any other relevant evidence
In case of doubt, it shall be resolved in his/her
favor
Any person contesting the age of the child in
conflict with the law prior to the filing of the
information in any appropriate court may file a
case in a summary proceeding for the
determination of age before the Family Court
which shall decide the case within 24 hours
from receipt of the appropriate pleadings of all
interested parties.
In all proceedings, law enforcement officers,
prosecutors, judges and other govt officials
concerned shall exert all efforts at determining
the age of the child in conflict with the law.
That the offender is over 70 years of age is only a
generic mitigating circumstance

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/ Application/Salient Features:

This circumstance can be taken into account

only when the facts proven show that there is
a
NOTABLE
and
EVIDENT
DISPROPORTION between the means
employed to execute the criminal act and its
consequences
Intention, being an internal state, must be
judged by external acts
Proofs to show that the accused intended the
wrong committed:
o The weapon used,
o The part of the body injured,
o The injury inflicted, and
o The manner it is inflicted

Art 13, par 3 is not applicable when the

offender employed brute force
o It will contradict the claim that there
was no intention to commit the crime
It is the intention of the offender at the
moment when he is committing the crime
which is considered
o Not to the offenders intention during
the planning stage
Lack of intention to commit so grave a wrong
mitigating in robbery with homicide
o The mitigating circumstance of lack of
intent to commit so grave a wrong
may be appreciated favorably on
robbery with homicide, where it has
not been satisfactorily established that
in forcing entrance through the door
which was then closed, with the use of
pieces of wood, he accused were
aware that the deceased was behind
the door and would be hurt, and there
is no clear showing that they ever
desired to kill the decease as they
sought to enter the house to retaliate
against the male occupants or commit
robbery
Appreciated
in
murder
qualified
by
circumstances
based
on
manner
of
commission, not on state of mind of accused
Not appreciated in murder qualified by
treachery
o Lack of intention to commit so grave a
wrong is not appreciated where the
offense committed is characterized by
treachery.
Lack of intent to kill not mitigating in physical
injuries
o 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
o Mitigating when the victim dies
Not applicable to felonies by negligence
o In felonies through negligence, the
offender acts without intent.
o The intent in intentional felonies is
replaced by negligence, imprudence,
lack of foresight or lack of skill in
culpable felonies
o In felonies through negligence, there
is no intent on the part of the offender
which may be considered as
diminished

Criminal Law Reviewer

Applicable only to offenses resulting in
physical injuries or material harm
o The mitigating circumstance that the
offender did not intend to commit so
grave a wrong as that committed was
not
appreciated
in
cases
of
defamation or slander
BASIS of paragraph 3:

In this circumstance, intent, an element of

voluntariness is intentional felony, is
diminished.

Paragraph 4: That sufficient provocation or threat on

the part of the offended party immediately preceded
the act.
Requisites of paragraph 4:
1. That the provocation must be sufficient.
2. That it must originate from the offended party
3. That the provocation must be immediate to
the act (to the commission of the crime by the
person who is provoked)
The provocation must be sufficient

The provocation must be immediate to the

commission of the crime

Provocation

Incomplete
Self Mitigating Circumstance
Defense
pertains to the pertains to the absence
absence of SP
of SP on the part of the
on the part of the
offended party
person
defending
himself
The provocation by the deceased in the 1 st
stage of the fight is not a mitigating
circumstance when the accused killed him
after he had fled
o The provocation given by the
deceased at the commencement of
the fight is not a mitigating
circumstance, where the deceased
ran away and the accused killed him
while fleeing, because the deceased
from the moment he fled did not give
any provocation for the accused to
pursue and to attack him.

any unjust or improper conduct or act of the

offended party, capable of exciting, inciting or
irritating any one
Must be sufficient and immediately preceding
the act in order for it to be mitigating

Sufficient

Means adequate to excite a person to commit

the wrong and must accordingly be
proportionate to its gravity
As to WON a provocation is sufficient
depends upon the act constituting the
provocation, the social standing of the person
provoked, the place and the time when the
provocation is made.
o When the defendant sought the
deceased, the challenge to fight is not
provocation

The threat immediately preceded the act

Provocation must originate from the offended

party

The provocation is on the part of

offended party
Example: where the alleged provocation
not come from the deceased but from
latters mother, the same may not
appreciated in favor of the accused
SUFFICIENT PROVOCATION (SP)

the
did
the
be

Between the provocation by the offended

party and the commission of the crime by the
person provoked, there should NOT be any
interval of time
The provocation immediately preceded the
act
When there is an interval of time between the
provocation and the commission of the crime,
the conduct of the offended party could not
have excited the accused to the commission
of the crime, he having had time to regain his
reason and to exercise self-control

The threat should not be offensive and

positively strong, because if it is, the threat to
inflict real injury is an unlawful aggression
which may give rise to self defense.
Vague threat not sufficient
o Sufficient: Follow us if you dare, and
we will kill you
o Not sufficient: If you do not agree,
beware!

BASIS of paragraph 4:

Based on the diminution of intelligence and

intent

Paragraph 5: That the act was committed in the

immediate vindication of a grave offense to the one
committing the felony, his spouse, ascendants,

Criminal Law Reviewer

descendants, legitimate, natural or adopted brothers
or sisters , or relatives by affinity within the same
degrees.
Requisites:
1. That there be a grave offense done to the
one committing the felony, ascendants,
descendants, legitimate, natural or adopted
brothers or sisters , or relatives by affinity
within the same degrees.
2. That the felony is committed in vindication of
such grave offense. A lapse of time is allowed
between the vindication and the doing of the
grave offense.
A lapse of time is allowed between the grave
offense and the vindication

Immediate not the correct translation

The Spanish test used proximate
Not so immediate
Provocation vs. Vindication

Provocation
It is made directly only
to
the
person
committing the felony

The cause that brought

about the provocation
need not be a grave
offense.
It is necessary that the
provocation or threat
immediately preceded
the act
There must be no
interval
of
time
between
the
provocation and the
commission
of
the
crime

Vindication
The grave offense may
be committed also
against the offenders
relatives mentioned by
the law
The offended party
must have done a
grave offense to the
offender of his relatives
mentioned in the law
The vindication of the
grave offense may be
proximate
Admits of an interval of
time between the grave
offense done by the
offended party and the
commission
of
the
crime by the accused

Reason for the difference:

This greater leniency in the case of vindication

is due undoubtedly to the fact that it concerns
the honor of a person, an offense which is
more worthy of consideration than mere spite
against the one giving the provocation or
threat.

Note: 2 mitigating circumstance cannot co - exist

Basis of determining the gravity of offense in

vindication:
a. Social standing of the person
b. The place where the insult was made
c. The time when the insult was made
Considered grave offense:
1. Killing a Relative
2. Sarcastic remark implying that the accused
was a petty tyrant
3. Remark of the injured party before the guests
that accused lived at the expense of his wife
(Consideration: place)
4. Taking into account that the American forces
had just occupied Manila, it is not strange that
the accused should have considered it then
as a grave offense when the offended party
said, You are a spy (Consideration: time)
5. If a person kills another for having found him
in the act of committing an attempt against his
(accuseds) wife
6. Where the injured party had insulted the
father of the accused contemptuously
The provocation should be proportionate to the
damage caused by the act and adequate to stir
one of its commission
BASIS of paragraph 5:

Diminution of the condition of voluntariness

Paragraph 6: That of having acted upon an impulse

so powerful as naturally to have produced passion or
obfuscation
Obfuscation: confusion
Requisites:
1. The accused acted upon an impulse
2. The impulse must be so powerful that it
naturally produced passion or obfuscation
in him

When there are causes naturally producing in

a person powerful excitement, he loses his
reason and self-control, thereby diminishing
the exercise of his will power
Rule for the application:
o

Passion or obfuscation may constitute

a mitigating circumstance only when
the same arose from LAWFUL
SENTIMENTS
Even if there is actually passion or
obfuscation on the part of the offender,
there is no mitigating circumstance
when:

Criminal Law Reviewer

The act is committed in a spirit
of lawlessness
The act is committed in a spirit
of revenge
Requisites of the mitigating circumstance of
passion or obfuscation
o That there be an act, both unlawful
and sufficient to produce such a
condition of mind
o That said act which produced the
obfuscation was not far removed from
the commission of the crime by a
considerable length of time, during
which the perpetrator might recover
his normal equanimity

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

The crime committed must be the result of a sudden

impulse of natural and uncontrollable fury

The act of the offended party must be unlawful or

unjust

The crime committed by the accused must

be provoked by prior unjust or improper
acts of the injured party

Exercise of a right or fulfillment of a duty is not

proper source of passion or obfuscation
The act must be sufficient to produce such a
condition of the mind

If the cause of loss of self-control was

trivial and slight, as when the victim failed
to work on the hacienda of which the
accused was the overseer, or where the
accused saw the injured party picking
fruits from the tree claimed by the former,
the obfuscation is NOT mitigating

No passion of obfuscation after 24 hours, or

several hours or half an hour

There could have been no mitigating

circumstance of passion of obfuscation
when more than 24 hours elapsed
between the alleged insult and the
commission of the felony or if several
hours passed between the cause of
passion
or
obfuscation
and
the
commission of the crime or where at least
half an hour intervened between the
previous fight and subsequent killing of
the deceased by the accused.
Reason: the act producing the obfuscation
must not be far
removed from the
commission of the crime by a
considerable length of time, during which
the accused might have recovered his
normal equanimity

It is necessary that the act which gave

rise to the obfuscation be note removed
from the commission of the offense by a
considerable length of time, during which
period the perpetrator might recover his
nor equanimity

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
The circumstance of passion and
obfuscation cannot be migrating in a
crime which is planned and calmly
meditated before it execution
There is neither passion and obfuscation
nor proximate vindication of a grave
offense where the killing of the decedent
was made 4 days after the stabbing of
the appellants kin.
Vengeance is not a lawful sentiment

The offender must act under the impulse of

special motives
Excitement is the natural feeling of all persons
engaged in a fight especially those who had
received a beating, and the impulse in that
state is not considered in law so powerful as
to produce obfuscation sufficient to mitigate
liability.
Obfuscation arising from jealousy

The mitigating circumstance of obfuscation

arising from jealousy cannot be invoked in
favor of the accused whose relationship with
the woman was illegitimate.

Where the killing of the deceased by he

6accused arose out of rivalry for the hand of a
woman, passion or obfuscation is mitigating

Obfuscation, when relationship is illegitimate

is not mitigating

Passion or obfuscation may lawfully rise from

causes existing only in the honest belief of the
offender

Criminal Law Reviewer

BASIS of paragraph 6:
Passion or obfuscation is a mitigating circumstance
because the offender who acts with passion or
obfuscation suffers a diminution of his intelligence and
intent
Points to remember:

Provocation and obfuscation arising from one

and the same cause should be treated as
only one mitigating circumstance
Vindication of grave offense cannot co-exist
with passion and obfuscation
1. One single fact cannot be made the
basis
of
different
modifying
circumstances
2. Exception: where there are other
facts, although closely connected with
the fact upon which one circumstance
is premised, the other circumstance
may be appreciated as based on the
other fact
Passion or obfuscation cannot co-exist with
treachery
In the mitigating circumstance of passion of
obfuscation the offender loses his reason and
self-control; in the aggravating circumstance
of treachery, the mode of attack must be
consciously adopted.
One who loses his reason and self-control
cannot deliberately employ a particular
means, method or form of attack in the
execution of a crime
Vindication or obfuscation cannot be
considered when the person attached is not
the one who gave cause therefor.
Passion and obfuscation cannot co-exist with
evident pre meditation
1. The aggravating circumstance of
evident premeditation cannot co exist
with the circumstance of passion and
obfuscation.
2. The essence of premeditation is that
the execution of the criminal act must
be preceded by calm thought and
reflection upon the resolution to carry
out the criminal intent during the
space of time sufficient to arrive at a
composed judgment

Passion/Obfuscation
Mitigating Circumstance
Cannot give rise to an
irresistible
because
irresistible force requires
physical force

Irresistible Force
Exempting
Circumstance

Passion /obfuscation is
in the offender himself
Must arise from lawful
sentiments

Irresistible force must

come from a third
person
Irresistible force is
unlawful

Passion/Obfuscation
Provocation
Is produced by an Comes from the injured
impulse which may be party
caused by provocation
The offense which Must
immediately
engenders perturbation precede
the
of mind need not be commission
of
the
immediate;
it
only crime
required
that
the
influence thereof lasts
until the moment the
crime is committed
Both: The effect is the loss of reason and selfcontrol on the part of the offender
Paragraph 6: That the offender had voluntarily
surrendered himself to a person in authority or his
agents, or that he had voluntarily confessed his guilt
before the court prior to the presentation of the
evidence for the prosecution
2 mitigating circumstances provided:
1. Voluntary surrender to a person in authority of
his agents
2. Voluntary confession of guilt before the court
prior to the presentation of evidence for the
prosecution
When both are present, they should have the
effect of mitigating as 2 independent
circumstances
If any of them must mitigate the penalty to a
certain extent, when both are present, they
should produce this effect to a greater extent.
Requisites of voluntary surrender:
a. That the offender has not been actually
arrested
b. That the offender surrendered himself to a
person in authority or to the latters agent
c. That the surrender was voluntary
Requisites of voluntariness:
a. The voluntary surrender must be spontaneous
i. It shows the interest of the accuse to
surrender unconditionally to the
authorities
either because he
acknowledged his guilt or because he
wishes to save them the trouble and

Criminal Law Reviewer

expenses necessarily incurred in his
search and capture
b. Merely requesting a policeman to accompany
the accused to the police headquarters is not
equivalent to the requirement that he
voluntarily surrendered himself to a person in
authority
c. The accused must actually surrender his own
person to the authorities, admitting complicity
in the crime
d. His conduct after the commission of the crime
must indicate a desire on his part to own the
responsibility for the crime

1. The accused surrendered through the

mediation of his father before any
warrant of arrest had been issued.
Voluntarily surrendered himself

The surrender must be made to a person in

authority or his agent

Points to Remember:

There is no voluntary surrender if the warrant

of arrest showed that the defendant was in
fact arrested
Where a person, after committing the offense
and having opportunity to escape, voluntarily
waited for the agents of the authorities and
voluntarily gave himself up, he is entitled to
the benefit of mitigating circumstance, even if
he was placed under arrest by a policeman
then and there
When the accused helped in carrying his
victim to the hospital where he was disarmed
and arrested, it is tantamount to voluntary
surrender
When the accused surrendered only after the
warrant of arrest had been served upon him, it
is not mitigating
When the warrant
of arrest had not been
served or not returned unserved because the
accused cannot be located, the surrender is
mitigating
The law does not require that the surrender
be prior to the order of arrest
1. The fact that the order of arrest had
already been issued is no bar to the
consideration of the circumstance
because the law does not require the
surrender be prior to the order of
arrest
The surrender must be by reason of the
commission of the crime for which defendant
is prosecuted
1. If the defendant surrendered as a Huk
to take advantage of the amnesty, but
the crime for which he was prosecuted
was distinct and separate from
rebellion, his surrender is not
mitigating
Surrender through an intermediary is
appreciated as a mitigating circumstance

Surrender of weapons cannot be equated with

voluntary surrender

Person in authority
1. one directly vested with jurisdiction
2. A public officer who has the power to
govern and execute the laws whether
as an individual or a member of some
court or governmental corporation,
board or commission.
3. A barrio captain and barangay
chairman are also persons in authority
(Art 152, RPC, as amended by PD
No. 299)
Agent of a person in authority
1. A person, who by direct provision of
the law, or by election of by
appointment by competent authority is
charged with the maintenance of
public order and the protection and
security of life and property and any
person who comes to the aid of
persons in authority
Voluntary surrender to commanding officer of
the accused is mitigating, because the
commanding officer is an agent of a person in
authority
Voluntary surrender to the chief clerk of a
district engineer is not mitigating, because
such chief clerk is neither a person in authority
nor his agent

Voluntary surrender does not simply mean non

flight

As a matter of law, it does not matter if the

accused never avoided arrest and never hid
or fled
What the law considers as mitigating is the
voluntary surrender of an accused before his
arrest, showing either acknowledgment of his
guilt or an intention to save the authorities
from the trouble and expense that his search
and capture would require.

Time and Place of surrender

The RPC does not make any distinction

among the various moments when the
surrender may occur

Criminal Law Reviewer

When is surrender voluntary?

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
2. Because he wishes to save them the
trouble and expenses necessarily
incurred in his search and capture
If none of these two reasons impelled the
accused to surrender, because his surrender
was obviously motivated more by an intention
to insure his safety, his arrest being inevitable,
the surrender is not spontaneous and
therefore not voluntary

1. That the offender spontaneously confessed

his guilt
2. That the confession of guilt was made in open
court, that is, before the competent court that
is to try the case; and
3. That the confession of guilt was made prior to
the presentation of evidence for the
prosecution.
The plea must be made before trial begins

Spontaneous

Emphasizes the idea of an inner impulse,

acting without external stimulus
The conduct of the accused, not his intention
alone, after the commission of the offense,
determines the spontaneity of the surrender.
Voluntary surrender cannot be appreciated in
favor of an accused who surrenders only after
a warrant of arrest is issued and he finds it
futile to continue being a fugitive from justice.
The surrender is not spontaneous where the
accused took almost nine months after the
issuance of the warrant of arrest against him
before he presented himself to the police
authorities.
The voluntary surrender is not spontaneous
where the accused had gone into hiding for 2
years before surrendering
Having the intention to surrender, without
actually surrendering, is not mitigating
1. The mitigating circumstance of
voluntary
surrender
cannot
be
appreciated in favor of the accused
who claims to have intended to
surrender but did not, despite several
opportunities to do so, and was in fact
arrested
2. Note: the law requires that the
accused must surrender himself
There is spontaneity even if the surrender is
induced by fear of retaliation by the victims
relatives
When the offender imposed a condition or
acted with external stimulus, his surrender is
not voluntary

The confession of guilt must be made by the

accused in open court

The extrajudicial confession made by the

accused is not the voluntary confession which
the Code contemplates; such confession was
made outside of the court.
The confession must be made in open court

The confession of guilt must be made prior to the

presentation of the evidence for the prosecution

Requisites of plea of guilty

In order that the plea of guilty may be
mitigating the 3 requisites must be present:

A plea of guilt made after arraignment and

after trial had begun does not entitle the
accused to have such plea considered as a
mitigating circumstance
A plea of guilty on appeal is not mitigating
1. The plea of guilty must be made at the
first opportunity
2. If the accused changes his plea from
not guilty to guilt upon arraignment,
the spontaneous willingness of the
accused to admit the commission of
the offense charge, which is awarded
by the mitigating circumstance is
ABSENT
Plea of not guilty at the preliminary
investigation is no plea at all.

Plea of guilty after the fiscal had presented

evidence is not mitigating because the 3 rd
requisite is lacking
The benefit of plea of guilty is not deserved by
the accused who submits to the law only after
the presentation of some evidence for the
prosecution, believing that in the end, the trial
will result in his conviction by virtue thereof
It is not necessary that all the evidence of the
prosecution have been presented; even if the
1st witness presented by the prosecution had
not finished testifying during the direct
examination when the accused withdrew his
former plea of not guilty and substituted it
with the plea of guilty, the plea of guilty is not
mitigating
Withdrawal of plea of not guilty and pleading
guilty before
presentation of evidence by
prosecution is still mitigating

Criminal Law Reviewer

1. All that the law requires us voluntary
plea of guilty prior to the presentation
of the evidence by the prosecution
2.
If during arraignment, the accused
pleaded not guilty, he is entitled to this
mitigating circumstance as long as he
withdraws his plea of not guilty and
thereafter pleads guilty to the charge
before the fiscal could present his
evidence.
3. The change of plea must be made at
the first opportunity
4. A conditional plea of guilty is not a
mitigating circumstance
Plea of guilty to a lesser offense is not a
mitigating circumstance, because to be
voluntary, the plea of guilty must be to the
offense charged
1. The accused must admit to the
offense charged
2.
If the voluntary confession is
conditional or qualified, it is not
mitigating
The plea of guilty to the lesser offense charge
in the amended information is mitigating
When the accused is charge with a grave
offense, the court should take his testimony in
spite of his plea of guilty
Where the accused pleads guilty to a capital
offense, that court shall conduct a searching
inquiry into the voluntariness and full
comprehension of the consequences of his
plea and shall require the prosecution to
prove his guilt and the precise degree of
culpability
Plea of guilty is not mitigating in culpable
felonies and in crimes punished by special
laws
Reasons why plea of guilty is mitigating

It is an act of repentance and respect for the

law
It indicates a moral disposition in the accused,
favorable to his reform

BASIS of paragraph 7

The basis of the mitigating circumstances of

voluntary surrender and plea of guilty is the
lesser perversity of the offender

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
Physical defect must restrict means of action,
defense or communication with fellow beings

Physical defects:
1. Armless
2. Cripple
3. Stutterer
4. Whereby his means to act, defend
himself or communicate with his fellow
beings are limited
It does not distinguish between educated and
uneducated deaf mute or blind person
1. The Code considers them as being on
equal footing

Basis of paragraph 8
Considers the fact that one suffering from
physical defect, which restricts ones means of
action, defense, or communication with ones
fellow beings, does not have complete
freedom of action
There is diminution of the element 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
Requisites:
1. That the illness of the offender must diminish
the exercise of his willpower
2. That such illness should not deprive the
offender of consciousness of his acts
Basis of paragraph 9:

There is diminution of intelligence and intent

Paragraph 10: And finally, any other circumstance of

a similar nature and analogous to those
abovementioned

Over 60 years old with failing sight, similar to

over 70 years mentioned in paragraph 2
Outraged feeling of owner of animal taken for
ransom analogous to vindication of a grave
offense
Outraged feeling of creditor, similar to passion
and obfuscation mentioned in par. 6
Impulse of jealous feeling, similar to passion
and obfuscation
Manifestation of Battered Wife Syndrome,
analogous to an illness that diminishes the
exercise of will power
Esprit de corps is similar to passion or
obfuscation
Voluntary restitution of stolen property is
similar to voluntary surrender mentioned in
par. 7

Criminal Law Reviewer

Testifying for the prosecution is analogous to
plea of guilty
Killing the wrong man is not mitigating

Yielding to arrest without the slightest attempt

to resist is not analogous to voluntary
surrender