CRIMINAL LAW 1

CRIMINAL LAW

IV. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY

THERE ARE FIVE CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY:

1. 2. 3. 4. 5.

Justifying circumstances; Art. 11 (6) Exempting circumstances; Art. 12 (7) Mitigating circumstances; Art. 13 (10) Aggravating circumstances; Art. 14 (21) Alternative circumstances. Art. 15 (3)

THERE ARE OTHERS WHICH ARE FOUND ELSEWHERE IN THE PROVISIONS OF THE REVISED PENAL CODE:

1. Absolutory cause; and 2. Extenuating circumstances.

JUSTIFYING CIRCUMSTANCE MITIGATING CIRCUMSTANCE AGGRAVATING CIRCUMSTANCE
THERE IS A CRIME Increased criminal liability THERE IS A CRIME Decreased criminal liability

EXEMPTING CIRCUMSTANCE

ALTERNATIVE CIRCUMSTANCE
THERE IS A CRIME Increased or decreased liability

NO CRIME

THERE IS A CRIME

No criminal liability

No criminal liability

No civil liability With civil liability

With civil liability

With civil liability

Except: state of necessity

Except: 1)accident; 2) insuperable cause

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ILLUSTRATION CASE LAW

CRIMINAL LAW

JUSTIFYING CIRCUMSTANCES (ART 11)

IMPORTANT POINTS

1. Self defense

2. Defense of relatives

Acts of actor in accordance with law, hence he incurs no criminal liability

3. Defense of strangers

4. Defense of property

5. State of Necessity

6. Fulfillment of duty

7. Obedience to a superior order

1. Self defense

1.

ELEMENTS Unlawful aggression

Cano v. People (2003) 1. Conrado and his deceased brother Orlando were rivals in the Rush ID Photo business. 2. Condrado borrowed the permit of the Orlando and had it photocopied without the latter’s permission. 3. The deceased confonted Conrado and tried to stab him with a fan knife. 4. The latter locked himself in the dark room of his booth to protect himself but was followed by the deceased and they ended up attacking each other. The scuffle resulted in the death of the Orlando. Held: Conrado’s act of killilng his brother was attended by a justifying circumstance of self-defense. It was the deceased who purposely sought and initially attacked Orlando with a knife.

2.

Reasonable necessity of means employed to prevent or repel it

3.

Lack of sufficient provocation on part of defender

Never confuse unlawful aggression with provocation. Mere provocation is not enough. It must be real and imminent.

Self-defense includes the defense of one’s rights, that is, those rights the enjoyment of which is protected by law.

Retaliation is different from an act of self-defense.

Battered Woman Syndrome

Battered Woman Syndrome is now also accepted as a valid defense. In People

The act of a person armed with a bladed weapon pursuing another constitutes unlawful agression because it signifies the pursuer’s intent to commit an assault with his weapon. There was also lack of sufficient provocation on the part of Condrado. His act of photocopying the permit of his brother without the

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latters permission can hardly be considered as provocation to merit so deadly an assault with a bladed weapon. People vs. Dijan Unlawful aggression must also be a continuing circumstance or must have been existing at the time the defense is made. Once the unlawful aggression is found to have ceased, the one making the defense of a stranger would likewise cease to have any justification for killing, or even just wounding, the former aggressor. Toledo v. People (2004) 1. Toledo saw his nephew, Ricky, and the latter's friends about 5 m away from his house, having a drinking spree. He ordered them not to make loud noises, and they obliged. He then went home to sleep. 2. Ricky and his friends also went to sleep after some time. They had not laid down for long when he heard stones being hurled at the roof of the house. Ricky saw Toledo stoning their house and asked him why he was doing the same. 3. Toledo did not answer but met Ricky at the doorstep of his house and without warning stabbed Ricky on the abdomen with a bolo which resulted to his death. 4. Toledo defended himself by alleging that his bolo accidentally hit the stomach of the victim and that he was able to prove all the essential elements of self defense. Held: The Court ruled that it is an aberration for Toledo to invoke the two defenses at the same time because the said defenses are intrinsically antithetical. There is no such defense as accidental self-defense in the realm of criminal law. The court ruled that Toledo was not justified in stabbing Ricky. There was no imminent threat in his life necessitating his assault. Records reveal that there is no unlawful aggression, a condition sine qua non for the justifying circumstance of self defense, on the part of Ricky. Ricky arrived at Toledo’s house unarmed. With no

CRIMINAL LAW

Vs. Genosa, the court ruled that the battered woman syndrome is characterized by a “CYCLE OF VIOLENCE”, which is made up of three phases.

1) First Phase: THE TENSIONBUILDING PHASE where minor battering occurs, it could be a verbal or slight physical abuse or another form of hostile behavior. The woman tries to pacify the batterer through a show of kind, nurturing behavior, or by simply staying out of the way. But this proves to be unsuccessful as it only gives the batterer the notion that he has the right to abuse her.

2) Second Phase: ACUTE BATTERING INCIDENT characterized by brutality, destructiveness, and sometimes death. The battered woman has no control; only the batterer can stop the violence. The battered woman realizes that she cannot reason with him and resistance would only worsen her condition.

3) Third Phase: TRANQUIL PERIOD characterized by guilt on the part of the batterer and forgiveness on the part of the woman. The batterer may show a tender and nurturing behavior towards his partner and the woman also tries to convince herself that the battery will never happen again and that her partner will change for the better.

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weapon to attack Toledo or defend himself, no sign of hostility may be deduced from him.

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2. Defense Of Relatives

Elements:

1.

Unlawful aggression

2.

Reasonable necessity of means employed to prevent or repel it

3.

in case person attacked provoked attacker defender must have no part therein

Relatives entitled to defense:

1) 2) 3) 4)

Spouse Ascendants Descendants legitimate, natural or adopted Brothers/Sisters 5) Relatives by affinity in the same degree 6) Relatives by consanguinity w/in

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the 4th civil degree

3. Defense Of Strangers

Elements:

Unlawful aggression;

Reasonable necessity of the means employed to prevent or repel it;

The person defending be not induced by revenge, resentment or other evil motive.

Defense Of Property

State Of Necessity (Avoidance Of Greater Evil) Illustrations:

• If the person being defended is a second cousin, it will be defense of stranger. This can only be invoked if • the life and limb of the person making the defense • is also the subject of unlawful aggression. Life cannot be equal to property. Elements:

Ty v. People (2004) 1. Ty's mother and sister were confined at the Manila Doctors' Hospital. Ty signed the "Acknowledgment of Responsibility for Payment" in the Contract of Admission. 2. The total hospital bills of the two patients amounted to P1,075,592.95. Ty executed a promissory note wherein she assumed payment of the obligation in installments. 3. To assure payment of the obligation, she drew 7 postdated checks against Metrobank payable to the hospital which were all dishonored by the drawee bank due to insufficiency of funds. 4. As defense, Ty claimed that she issued the checks because of “an uncontrollable fear of a greater injury.” She averred that she was forced to issue the checks to obtain release for her mother who was being inhumanely treated by the hospital. She alleged that her mother has

1.

Evil sought to be avoided actually exist

2.

Injury feared be greater than that done to avoid it

3.

There is no other practical & less harmful means of preventing it

A drove his car beyond the speed limit so much so that when he reached the curve, his vehicle skidded towards a ravine. He swerved his car towards a house, destroying it and killing the occupant therein. A cannot be justified because the state of necessity was brought about by his own felonious act. A and B are owners of adjoining lands. A owns the land for planting certain crops. B owns the land for raising certain goats. C used another land for a vegetable garden. There was heavy rain and floods. Dam was opened. C drove all the goats of B to the land of A. The goats rushed to the

The evil or injury sought to be avoided must not have been created by the one invoking the justifying circumstances.

General rule: No liability in justifying circumstances because there is no crime.

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contemplated suicide if she would not be discharged from the hospital. 5. Ty was found guilty by the lower courts of 7 counts of violation of BP22. Held:The court sustained the findings of the lower courts. The evil sought to be avoided is merely expected or anticipated. So the defense of an uncontrollable fear of a greater injury” is not applicable. Ty could have taken advantage of an available option to avoid committing a crime. By her own admission, she had the choice to give jewelry or other forms of security instead of postdated checks to secure her obligation. Moreover, for the defense of state of necessity to be availing, the greater injury feared should not have been brought about by the negligence or imprudence, more so, the willful inaction of the actor. In this case, the issuance of the bounced checks was brought about by Ty's own failure to pay her mother's hospital bills. People v. Ulep (2000) 1. Accused-appellant and the other police officers involved originally set out to restore peace and order at Mundog Subdivision where the victim was then running amuck. 2. The victim threatened the safety of the police officers despite accused-appellant's previous warning shot and verbal admonition to the victim to lay down his weapon.

CRIMINAL LAW

Exception: There LIABILITY under this They shall be liable in to the benefit which have been received.

is CIVIL paragraph. proportion they may

land to be saved, but the land of A was destroyed. The author of the act is C, but C is not civilly liable because he did not receive benefits. It was B who was benefited, although he was not the actor. He cannot claim that it was a fortuitous event. B will answer only to the extent of the benefit derived by him. If C who drove all of the goats is accused of malicious mischief, his defense would be that he acted out of a state of necessity. He will not be civilly liable.

Fulfillment Of Duty Or Lawful Exercise Of Right

Elements:

1.

Offender acted in performance of duty or lawful exercise of a right/office

2.

The resulting felony is the unavoidable consequence of the due fulfillment of the duty or the lawful exercise of the right or office.

If first condition is present, but the second is not because the offender acted with culpa, • the offender will be entitled to a privileged mitigating circumstance. • the penalty would be reduced by one or two degrees.

3. As a police officer, it is to be expected that accusedappellant would stand his ground. Up to that point, his decision to respond with a barrage of gunfire to halt the victim's further advance was justified under the circumstances. A police officer is not required to afford the victim the opportunity to fight back. Neither is he expected – when hard pressed and in the heat of such an encounter at close quarters – to pause for a long moment and reflect coolly at his peril, or to wait after each blow to determine the effects thereof. 4. But he cannot be exonerated from overdoing his duty

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when he fatally shot the victim in the head, even after the latter slumped to the ground due to multiple gunshot wounds sustained while charging at the police officers. Sound discretion and restraint dictated that a veteran policeman should have ceased firing at the victim the moment he saw the latter fall to the ground. The victim at that point no longer posed a threa. Shooting him in the head was obviously unnecessary. The law does not clothe police officers with authority to arbitrarily judge the necessity to kill- it must be stressed that their judgment and discretion as police officers in the performance of their duties must be exercised neither capriciously nor oppressively, but within reasonable limits. Pomoy v. People (2004) 1. Police Srgt Pomoy, went near the door of the jail where Balboa was detained for robbery and directed the latter to come out, purportedly for tactical interrogation at the investigation room. At that time, petitioner had a gun, a .45 caliber pistol, tucked in a holster which was hanging by the side of his belt. 2. Balboa tried to remove Pomoy’s gun and the two grappled for possession of the gun. Thereafter, 2 gunshots were heard. When the source of the shots was verified, petitioner was seen still holding a .45 caliber pistol, facing Balboa, who was lying in a pool of blood. 3. Pomoy invoked the defense of accident for his defense. Held: Pomoy is acquitted. At the time of the incident, petitioner was a member of the (PNP) stationed at the Iloilo Provincial Mobile Force Company. Thus, it was in the lawful performance of his duties as investigating officer that, under the instructions of his superior, he fetched the victim from the latter's cell for a routine interrogation. The participation of petitioner, if any, in the victim's death was limited only to acts committed in the course of the lawful performance of his duties as an enforcer of the law. The removal of the gun from its holster, the release of the safety lock, and the firing of the two successive shots — all of which led to the death of the victim — were sufficiently demonstrated to have been consequences of

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circumstances beyond the control of petitioner. At the very least, these factual circumstances create serious doubt on the Pomoy’s culpability.

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Obedience Of Superior Order

Elements:

Tabuena v. Sandiganbayan (1997) 1. Pres. Marcos instructed Tabuena over the phone to pay directly to the Office of the President in cash what MIAA owes PNCC which later was reiterated in writing. 2. The Marcos’ memo indicated the amount of P55m for partial payment of the obligation to PNCC. 3. In obedience to Marcos’ instruction, the accused withdrew the amount by means of 3 separate issuances of manager’s check and encashment in 3 separate dates as well. 4. The money withdrawn were placed in peerless boxes and duffle bags and delivered to the private secretary of Marcos also in 3 separate days. According to the accused, the disbursement was not in the normal procedure since there were no vouchers supporting it and no receipt from PNCC. 5. Tabuena and Peralta were Sandiganbayan of malversation. convicted by the

1.

Order must have been issued by a superior for some lawful

2.

The order is purpose

3.

The means used to carry it out must be lawful

A subordinate is not liable for carrying out an illegal order of his superior, • if he is not aware of the illegality of the order and • he is not negligent.

Held: The accused were acquitted. They’re entitled to the justifying circumstance of obedience to an order issued by a superior for some lawful purpose. Sandiganbayan claimed that Marcos’ memo was unlawful because it orders disbursement of P55M when the Ongpin memo reveals that the liability is only 34.5M. Granting this to be true, it will not affect Tabuena’s good faith as to make him criminally liable. Thus, even if the order is illegal if it is patently legal and subordinate is not aware of its illegality, the subordinate is not liable, for then there would only be a mistake of fact committed in good faith.

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ILLUSTRATION CASE LAW

CRIMINAL LAW

EXEMPTING CIRCUMSTANCES

IMPORTANT POINTS

1. Imbecility/ insanity

The reason for the exemption lies on the involuntariness of the act—

2. Minority

3. Accident

4. Compulsion of irresistible force

5. Impulse of uncontrollable fear

6. Insuperable or lawful cause

• one or some of the ingredients of voluntariness such as criminal intent, intelligence, or freedom of action on the part of the offender is missing. • In case it is a culpable felony, there is absence of freedom of action or intelligence, or absence of negligence, imprudence, lack of foresight or lack of skill.

1. Insanity Imbecility

And

IMBECILE one who, while advanced in age, has a mental development comparable to that of children between 2 and 7 years of age. Exempt in all cases from criminal liability

People vs. Dungo The insanity that is exempting is limited only to mental aberration or disease of the mind and must completely impair the intelligence of the accused. People vs. Rafanan The following are the two tests for exemption on the grounds of insanity: i. The test of cognition, or whether the accused acted with complete deprivation of intelligence in committing the said crime; ii. The test of volition, or whether the accused acted in total deprivation of freedom of will. Schizophrenia (dementia praecox) can only be considered a mitigating circumstance because it does not completely deprive the offender of consciousness of his acts.

INSANE there is a complete deprivation of intelligence in committing the act but capable of having lucid intervals. During a lucid interval, the insane acts with intelligence and thus, not exempt from criminal liability.

Insanity is a defense in the nature of confession and avoidance and must be proved beyond reasonable doubt Evidence of insanity must refer to • the time preceding the act under prosecution or • at the very moment of its execution.

Insanity subsequent to commission of crime is not exempting

People v. Madarang (2000)

Feeblemindedness

is

not

imbecility

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1. Fernando and his wife quarreled. In the heat of the fight, the accused stabbed his wife causing her death. 2. The accused declared that he had no recollection of the stabbing incident. 3. Court ordered the accused’s confinement in a mental institution where it was found that he was inflicted with schizophrenia. He was submitted to treatment for 2 years, after which, he faced the charges against him.

CRIMINAL LAW

(People vs. Formigones)

Cases covered under this article:

• Dementia praecox • Kleptomania: if found by a competent psychiatrist as irresistible • Epilepsy • Somnambulism: sleep-walking (People Vs. Taneo) • Malignant malaria: which affects the nervous system

2. Minority

RA 9344 Juvenile Justice & Welfare Act of 2006:

Held: The accused failed to prove that he was completely deprived of intelligence in committing the act. He did not show any signs of insanity prior to and immediately after the act. He was only diagnosed of schizophrenia months after the incident. Also, schizos have lucid intervals. Jose v. People (2005) 1. Jose, 13 yrs old was in a car with his cousin Zarraga, when the latter inquired from the poseur buyer SPO1 Guevarra if he could afford to buy shabu. 2. When Guevarra replied in the affirmative Zarraga told Jose to hand over the shabu. Jose gave the plastic containing the shabu to Zarraga who handed it to Guevarra. 3. The trial court convicted both Jose and Zarraga.

1) 15 yrs old or below at the time of commission of offense: absolutely exempt from criminal liability but subject to intervention program

2) Over 15 yrs old but below 18: exempt from criminal liability & subject to intervention program

• If acted w/ discernment: subject to diversion program

3)

Below 18 yrs are exempt from:

a) Status offense

b) Vagrancy and Prostitution

c)

Mendicancy (PD1563)

Held: Jose is acquitted. The prosecution failed to prove beyond reasonable doubt that he acted with discernment relative to the sale of shabu. Aside from bringing out and handing over the plastic bag to Zarraga, Jose merely sat in the car and had no other participation in the transaction between his cousin and the poseur buyer. There is no evidence that Jose knew what was inside the plastic and soft white paper before and at the time he handed the same to Zarraga.

d)

Snuffing of Rugby (PD 1619) A person who is driving his car within the speed limit, People v. Concepcion (2002)

3. Accident

Elements:

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(Damnum Absque Injuria)

1. A person performing a lawful act;

2. With due care;

1. Galang was brought to the barangay hall for questioning by Brgy Captain Capitli because of a quarrel at plaza. 2. Concepcion arrived and fired his rifle twice or thrice past the ears of Galang without injuring him. 3. Then Concepcion thrust the barrel of the gun against the abdomen of Galang. There was an explosion and Galang was shot in the thigh. At least 3 more shots were fired, hitting him in the chest. In his defense Concepcion claimed that the shooting was only accidental.

3. He causes an injury to another by mere accident; of

4. Without fault causing it.

or

intention

while considering the condition of the traffic and the pedestrians at that time, tripped on a stone with one of his car tires. The stone flew hitting a pedestrian on the head. The pedestrian suffered profuse bleeding. There is no civil liability under paragraph 4 of Article 12. Although this is just an exempting circumstance, where generally there is civil liability, yet, in paragraph 4 of Article 12, there is no civil liability as well as criminal liability. The driver is not under obligation to defray the medical expenses.

ACCIDENT something that happen outside the sway of our will and although it comes about through some act of our will, lies beyond the bounds of humanly foreseeable consequences.

Under Article 12, paragraph 4, the offender is exempt not only from criminal but also from civil liability

4. Irresistible Force

Elements:

Held: There was no accident. By Concepcion’s own testimony, the victim was unarmed. In contrast, he had an armalite and a handgun. It is highly inconceivable that an unarmed man could pose bodily harm to another who is heavily armed. Concepcion’s gun discharged several shots that hit vital parts of the victim's body. As observed by the trial court, recklessly appellant had put his finger on the trigger of his cocked and loaded rifle. In that state, with the slightest movement of his finger, the rifle would fire readily. And it did not just once but several fires. Concepcion is guilty of homicide. People v. Lising (1998) 1. Manalili asked Garcia to find someone who could arrest of Herrera the suspect of the killing of his brother.

1. That the compulsion is by means of physical force.

2. That the physical force must be irresistible. must

3. That the physical force come from a third person

2. Garcia introduced Lising and they had an agreement. Lising’s surveillance group was at the Castanos’ residence in the hope of spotting Herrera. The group saw a man and a woman (the victims) leave the residence and followed them and were accosted. Later, the bodies of the 2 were found. 3. Lower court found that since there was an agreement among Manalili, Garcia and Lising, they were all coconspirators. Garcia claimed that he acted under compulsion of irresistible force.

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5. Uncontrollable Fear A is forced at gun point to forge the signature of B

Elements:

Held: To be exempt from criminal liability, a person invoking irresistible force must show that the force exerted was such that it reduced him to a mere instrument who acted not only without will but against his will. Garcia’s participation from when the abduction was hatched to the killing of the victims is undisputed. US v. Exaltation (1905) 1. Exaltation and Tanchico were convicted w/ rebellion based on documents found in the house of Contreras, a so-called general of bandits, containing signatures of defendants swearing allegiance to the Katipunan. 2. Defendants aver that these documents were signed under duress and fear of death. 3. They allege further that they were abducted by thieves and that these men forced the defendants to sign the documents

1. That the threat which causes the fear is of an evil greater than or at least equal to, that which he is required to commit;

2. That it promises an evil of such gravity and imminence that the ordinary man would have succumbed to it.

A threat of future injury is not enough. The compulsion must be of such a character as to leave no opportunity to the accused for escape or selfdefense in equal combat.

6. Insuperable Lawful Causes

Or

Elements:

Held: The duress under which the defendants acted relieved them from criminal liability. Prosecution was unable to prove the guilt of the accused and testimonies of witnesses for the accused further corroborated their defense. People v. Bandian (1936)

1. That an act is required by law to be done;

2. That a person fails to perform such act;

Person was arrested for direct assault at 5:00 pm after government offices close. Art 125 RPC requires that a person arrested be delivered to judicial authorities within prescribed number of hours according to the gravity of offense. But complaint may only be filed the next day when offices open. The circumstance of time of arrest may be considered as an insuperable cause.

A woman cannot be held liable for infanticide when she left her newborn child in the bushes without being aware that she had given birth at all. Severe dizziness and extreme debility made it physically impossible for Bandian to take home the child plus the assertion that she didn’t know that she had given birth.

3. That his failure to perform such act was due to some lawful or insuperable cause

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ILLUSTRATION CASE LAW

CRIMINAL LAW

MITIGATING CIRCUMSTANCES

IMPORTANT POINTS

1) Incomplete Justification And Exemption

2) Under 18 Or Over 70 Years Of Age

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.

3) No Intention To Commit So Grave A Wrong

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

4) Sufficient Provocation Or Threat

5) Immediate Vindication Of A Grave Offense

The circumstances under Article 13 are generally ordinary mitigating, • except in paragraph 1, where it is privileged, Article 69 would apply.

6) Passion or obfuscation

7) Voluntary surrender

8)

Voluntary plea of guilt

9) Plea to a lower offense

when the crime committed is • punishable by a divisible penalty, • two or more of this ordinary mitigating circumstances • if there is no aggravating circumstance at all ◦ shall have the effect of a privileged mitigating circumstance

10) Physical defect

11)Illness

Correlate Article 13 with Articles 63 and 64. Article 13 is meaningless without knowing the rules of imposing the penalties under Articles 63 and 64.

12)Analogous circumstances

TIP: In bar problems, when you are given indeterminate sentences, these articles are very important.

DISTINCTIONS: Privileged MC Cannot be offset by aggravating circumstance The effect of imposing upon the offender the penalty lower by one or

Ordinary MC Can be offset by any aggravating circumstance If not offset by aggravating circumstance, produces

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two degrees than that provided by law for the crime.

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the effect of applying the penalty provided by law for the crime in its min period in case of divisible penalty

1) Incomplete Justification And Exemption defense of

INCOMPLETE JUSTIFYING CIRCUMSTANCE

1. Incomplete self-defense, relatives, defense of stranger

In these 3 classes of defense, UNLAWFUL AGGRESSION must always be present. It is an indispensable requisite. Par. 1 of Art. 13 is applicable only when • unlawful aggression is present • but the other 2 requisites are not present in any of the cases referred to in circumstances number 1, 2 and 3 or Art. 11.

Example:

When the one making defense against unlawful aggression used unreasonable means to prevent or repel it, he is entitled to a privileged mitigating circumstance. of

2. Incomplete justifying circumstance avoidance of greater evil or injury.

REQUISITES under par. 4 of Art. 11:

a. b.

c.

That the evil sought to be avoided actually exists; That the injury feared be greater than that done to avoid it; That there be no other practical and less harmful means of preventing it.

Avoidance of greater evil or injury is a justifying circumstance if all the three requisites mentioned in par. 4 of Art. 11 are present. But if any of the last two requisites is lacking,

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People v. Oanis

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there is only a mitigating circumstance.

3. Incomplete justifying performance of duty.

circumstance

of

The SC considered one of the 2 requisites as constituting the majority. It seems that there is no ordinary mitigating circumstance under Art. 13 par. 1 when the justifying or exempting circumstance has 2 requisites only.

a.

b.

That the accused acted in the performance of a duty or in the lawful exercise of a right or office; and 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.

INCOMPLETE EXEMPTING CIRCUMSTANCE of

1. Incomplete exempting circumstance minority over 9 and under 15 years of age.

REQUISITES under par. 3 of Art. 12:

a.

b.

That the offender is over 9 and under 15 years old; and That he does not act with discernment.

If the minor over 9 and under 15 years of age acted with discernment, he is entitled only to a mitigating circumstance, because not all the requisites to exempt from criminal liability are present. exempting circumstance of

2. Incomplete accident.

REQUISITES under par. 4 of Art. 12 :

a. b. c.

d.

A person is performing a lawful act; With due care; He causes an injury to another by mere accident; and Without fault or intention of causing it.

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If the 2nd requisite and 1st part of the 4th requisite are absent, • the case will fall under Art. 365 which punishes reckless imprudence.

If the 1st requisite and 2nd part of the 4th requisite are absent, • it will be an intentional felony. circumstance of

3. Incomplete exempting uncontrollable fear.

REQUISITES under par. 6 of Art. 12:

a.

b.

That the threat which caused the fear was of an evil greater than, or at least equal to, that which he was required to commit; That it promised an evil of such gravity and imminence that an ordinary person would have succumbed to it.

2. Under 18 Or Over 70 Years Of Age

If only one of these requisites is present, there is only a mitigating circumstance. In lowering the penalty: • Based on age of the offender at the time of the commission of the crime not the age when sentence is imposed

In suspension of the sentence: • Based on age of the offender at the time the sentence is to be promulgated (See Art. 80, RPC)

Par. 2 contemplates the ff:

1. An offender over 9 but under 15 of age who acted with discernment. 2. An offender fifteen or over but under 18 years of age. 3. An offender over 70 years old OF VARIOUS AGES OF

LEGAL EFFECTS OFFENDER:

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1.

2.

3.

4.

5.

Under 9 years of age, an exempting circumstance. (Art. 12, par. 2) Over 9 and under 15 years of age, also an exempting circumstance, unless he acted with discernment (Art. 12, par. 3) Minor delinquent under 18 years of age, the sentence may be suspended. (Art. 192, PD No. 603 as amended by PD 1179) Under 18 years of age, privileged mitigating circumstance (Art. 68) 18 years or over, full criminal responsibility. People v. Calleto (2002) 1. Alfredo, Lecpoy and Eduardo were watching a game. Out of nowhere, Calleto appeared behind Alfredo and stabbed the latter on the left shoulder near the base of the neck with a 9-inch hunting knife. 2. Instinctively, Alfredo stood up and managed to walk a few meters. When he fell on the ground, Lecpoy and Eduardo rushed to help him but Alfredo died shortly. 3. Calleto voluntary surrendered. He claims that his liability should be mitigated by the fact that he had no intention to commit so grave a wrong.

3. No Intention To Commit So Grave A Wrong

There must be a notable disproportion between the means employed by the offender compared to that of the resulting felony.

The intention, as an internal act, is judged • not only by the proportion of the means employed by him to the evil produced by his act, • but also by the fact that the blow was or was not aimed at a vital part of the body; • this includes: the weapon used, the injury inflicted and his attitude of the mind when the accused attacked the deceased.

This circumstance does not apply when the crime results from criminal negligence or culpa.

Only applicable to offense resulting in physical injuries or material harm. It is not applicable to defamation or slander.

This mitigating circumstance is not applicable when the offender employed brute force.

Lack of intent to commit so grave a wrong is not appreciated where the offense committed is characterized by treachery.

Held: The lack of "intent" to commit a wrong so grave is an internal state. It is weighed based on the weapon used, the part of the body injured, the injury inflicted and the manner it is inflicted. The fact that the accused used a 9-inch hunting knife in attacking the victim from behind, without giving him an opportunity to defend himself, clearly shows that he intended to do what he actually did, and he must be held responsible therefor, without the benefit of this mitigating circumstance.

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

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circumstance under Art. 13(3). Romera v. People (2004) 1. Romera heard the victim Roy call him and his wife, asking if they had beer and a fighter for sale. He did not answer Roy because he knew that Roy was already drunk.

4. Sufficient Provocation Or Threat

PROVOCATION: Any unjust or improper conduct or act of the offended party, capable of exciting, inciting, or irritating anyone.

Elements: 2. As Roy was persistent, Romera went down the house but as he opened the door Roy thrust his bolo at him w/c he parried 3. Roy said he would kill Romera. Romera tried to prevent Roy from entering as Roy kept hacking at the wall. 4. Romera tried to ward off Roy’s assault as he grappled for the bolo and stabbed Roy in the stomach. Wounded, Roy begged for forgiveness. Romera desisted for fear he might kill Roy.

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, i.e., to the commission of the crime by the person who is provoked.

TIP: The common set-up given in a bar problem is that of provocation given by somebody to whom the person provoked cannot retaliate against; thus the person provoked retaliated on a younger brother or on an elder father. Although in fact, there is sufficient provocation, it is not mitigating because the one who gives the provocation is not the one against whom the crime was committed.

You have to look at two criteria:

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

Held: There was sufficient provocation and the circumstance of passion or obfuscation attended the commission of the offense. Thrusting his bolo at Romera, threatening to kill him, and hacking the bamboo walls of his house are sufficient provocation to enrage any man, and obfuscate his thinking, more so when his family are in danger. Romera stabbed Roy as a result of the provocations, and while he was in a fit of rage. The court however stressed that provocation and passion or obfuscation are not 2 separate mitigating circumstances. It is wellsettled that if these 2 circumstances are based on the same facts, they should be treated together as one mitigating circumstance. It is clear that both circumstances arose from the same set of facts. Hence, they should not be treated as two separate mitigating circumstances.

2.If there is that time element and at the same time, a. facts are given indicating that at the time the

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b.

offender committed the crime, he is still suffering from outrage of the threat or provocation done to him, then he will still get the benefit of this mitigating circumstance. People v. Torpio (2004) 1. During a drinking spree in a cottage, Anthony tried to let Dennis Torpio drink gin and as the latter refused, Anthony bathed Dennis with gin and mauled him several times. 2. Dennis crawled beneath the table and Anthony tried to stab him with a 22 fan knife but did not hit him. Dennis got up and ran towards their home. 3. Upon reaching home, he got a knife. He went back to the cottage. Upon seeing Dennis, Anthony ran towards the creek but Dennis blocked him and stabbed him. 4. When he was hit, Anthony ran but got entangled with a fishing net and fell on his back. Dennis then mounted on him and continued stabbing him resulting to the latters death. 5. Then Dennis left and slept at a grassy meadow near a Camp. In the morning, he went to Estrera, a police officer to whom he voluntarily surrendered. Held: The mitigating circumstance of having acted in the immediate vindication of a grave offense is properly appreciated. Dennis was humiliated, mauled and almost stabbed by the Anthony. Although the unlawful aggression had ceased when Dennis stabbed Anthony, it was nonetheless a grave offense for which the Dennis may be given the benefit of a mitigating circumstance. However, the mitigating circumstance of sufficient provocation cannot be considered apart

5. Immediate Grave Offense

Vindication

Of

A

Elements:

1. That there be a grave offense done to the one committing the felony, his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by affinity within the same degree.

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.

The vindication need not be done by the person upon whom the grave offense was committed

Basis to determine the gravity of offense in vindication

The question whether or not a certain personal offense is grave must be decided by the court, having in mind ◦ the social standing of the person, ◦ the place and ◦ the time when the insult was made.

Vindication of a grave offense and passion or obfuscation cannot be counted separately and independently.

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6. Illustrations: 1. A is courting B, a receptionist in a beerhouse. C danced with B. A saw this and stabbed C. It was held that jealousy is an acknowledged basis of passion.

Passion or obfuscation

Elements:

from the circumstance of vindication of a grave offense. These two circumstances arose from one and the same incident, i.e., the attack on the appellant by Anthony, so that they should be considered as only one mitigating circumstance. People v. Bates (2003)

1.

The accused acted upon an impulse.

2. The impulse must be so powerful that it naturally produce passion or obfuscation in him.

1. While Edgar, Simon, and Jose are along a trail leading to the house of Carlito Bates, the latter suddenly emerged from the thick banana plantation surrounding the trail, aiming his firearm at Jose who was then walking ahead of his companions. 2. Jose tried to wrest possession of the firearm. While the 2 were grappling for possession, the gun fired, hitting Carlito. 3. At that instant, Marcelo Bates and his son Marcelo Bates, Jr., brother and nephew of Carlito, respectively, emerged from the banana plantation and attacked Jose hacking him several times. Jose fell to the ground and rolled but Marcelo and his son kept on hacking him. Held: Passion and obfuscation may not be properly appreciated in favor of the appellant. To be considered as a mitigating circumstance, passion or obfuscation must arise from lawful sentiments and not from a spirit of lawlessness or revenge or from anger and resentment. In the present case, clearly, Marcelo was infuriated upon seeing his brother, Carlito, shot by Jose. However, a distinction must be made between the first time that Marcelo hacked Jose and the second time that the former hacked the latter. When Marcelo hacked Jose right after seeing the latter shoot at Carlito, and if appellant refrained from doing anything else fter that, he could have validly invoked the mitigating circumstance of passion and obfuscation. But when, upon seeing his brother Carlito dead, Marcelo went back to Jose, who by then was

Passion or obfuscation not applicable when:

• •

The act committed in a spirit of LAWLESSNESS. The act is committed in a spirit of REVENGE.

The mitigating circumstance of obfuscation arising from jealousy cannot be invoked in favor of the accused whose relationship with the woman was illegitimate. 3. When a man saw a woman bathing, almost naked, almost naked, for which reason he raped her, such man cannot claim passion as a mitigating circumstance.

2. A, a male classmate is escorting B, a female classmate. On the way out, some men whistled lustfully. The male classmate stabbed said men. This was held to be obfuscation.

Passion and obfuscation may lawfully arise from causes existing only in the honest belief of the offender.

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already prostrate on the ground and hardly moving, hacking Jose again was a clear case of someone acting out of anger in the spirit of revenge. Andrada v. People (2005) 1. In a restaurant, Andrada scolded Cpl. Ugerio while the latter was talking to a woman who passed by their table.

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7.

Voluntary Surrender

Elements:

1. That the offender had not been actually arrested.

2. That the offender surrendered himself to a person in authority or to the latter’s agent.

3. Circumstances Under This

That the surrender was voluntary.

2. Sgt. Sumabong, identifying himself as a PC non-commissioned officer, advised Andrada to pay his bill and go home as he was apparently drunk. Andrada left the restaurant.

2 Mitigating Paragraph:

1. Voluntary Surrender To A Person In Authority Or His Agents;

3. While Sgt. Sumabong was paying his bill, he heard Cpl. Ugerio, seated about a meter away, moaning in pain. Sgt. Sumabong then saw Andrada hacking Cpl. Ugerio on the head with a bolo. 4. As Sgt. Sumabong approached them Andrada ran away. He was eventually arrested at a waiting shed. Andrada invoked the mitigating circumstance of voluntary surrender.

2. Voluntary Confession Of Guilt Before The Court Prior To The Presentation Of Evidence For The Prosecution.

Whether or not a warrant of arrest had been issued immaterial and irrelevant. The criterion is whether or not • the offender had gone into hiding • and the law enforcers do not know of his whereabouts.

8.

Plea Of Guilt

Elements:

Held: Andrada, after attacking the victim, ran away. He was apprehended by responding officers at a waiting shed. For voluntary surrender to be appreciated, the surrender must be spontaneous, made in such a manner that it shows the interest of the accused to surrender unconditionally to the authorities, either because he acknowledges his guilt or wishes to save them the trouble and expenses that would be necessarily incurred in his search and capture. Here, the surrender was not spontaneous. People v. Montinola (2001) 1. Montinola entered a plea of not guilty but withdrew the same after the prosecution presented 3 witnesses. When rearraigned, he pleaded "guilty" to 2 charges.

1. That the offender spontaneously confessed his guilt; Plea of guilty on appeal is not mitigating.

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2. That the confession of guilty was made in open court, that is, before the competent court that is to try the case; The extrajudicial confession made by the accused is not voluntary confession because it was made outside the court.

Held: The mitigating circumstance of plea of guilty cannot be credited in favor of Montinola since the change of his plea from "not guilty" to "guilty" was made only after the presentation of some evidence for the prosecution. To be entitled to such mitigating circumstance, the accused must have voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution.

9.

Plea To A Lesser Offense

People v. Dawaton (2002) 1. Information for murder was filed against Dawaton. 2. When first arraigned he pleaded not guilty, but during the pre-trial he offered to plead guilty to the lesser offense of homicide but was rejected by the prosecution. 3. The trial court sentenced him to death. He avers that he is entitled to the mitigating circumstance of plea of guilty. Held: While the accused offered to plead guilty to the lesser offense of homicide, he was charged with murder for which he had already entered a plea of not guilty. We have ruled that an offer to enter a plea of guilty to a lesser offense cannot be considered as an attenuating circumstance under the provisions of Art. 13 of RPC because to be voluntary the plea of guilty must be to the offense charged. Also, Sec. 2, Rule 116, of the Revised Rules of Criminal Procedure requires the consent of the offended party and the prosecutor before an accused may be allowed to plead guilty to a lesser offense necessarily included in the offense charged. The prosecution rejected the offer of the accused. Where the offender is deaf and dumb, personal property was

3. That the confession of guilt was made prior to the presentation of evidence for the prosecution. The change of plea should be made at the first opportunity when his arraignment was first set. A conditional plea of guilty is not mitigating Rule 116, sec. 2, ROC At arraignment, the accused, with the consent of the offended party and prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary.

10. Physical Defects

This paragraph does not distinguish between educated and uneducated deaf-mute or blind

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entrusted to him and he misappropriated the same. The crime committed was estafa. The fact that he was deaf and dumb is not mitigating since that does not bear any relation to the crime committed.

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persons.

Physical defect referred to in this paragraph is such as being armless, cripple, or a stutterer, whereby his means to act, defend himself or communicate with his fellow beings are limited.

The physical defect that a person may have must have a relation to the commission of the crime.

11. Illness

Elements:

1. That the illness of the offender must diminish the exercise of his will-power.

If a person is deaf and dumb and he has been slandered, he cannot talk so what he did was he got a piece of wood and struck the fellow on the head. The crime committed was physical injuries. The Supreme Court held that being a deaf and dumb is mitigating because the only way is to use his force because he cannot strike back in any other way. A mother who, under the influence of a puerperal fever, killed her child the day following her delivery.

2.That such illness should not deprive the offender of consciousness of his acts.

When the offender completely lost the exercise of will-power, it may be an exempting circumstance.

It is said that this paragraph refers only to diseases of pathological state that trouble the conscience or will.

12. Analogous Circumstances

Mitigating

The act of the offender of leading the law enforcers to the place where he buried the instrument of the crime has been considered as equivalent to voluntary surrender.

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Stealing by a person who is driven to do so out of extreme poverty is considered as analogous to incomplete state of necessity.

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AGGRAVATING CIRCUMSTANCE 1) Taking Advantage of Public Office

IMPORTANT POINTS

ILLUSTRATION

CASE LAW

Those circumstances which raise the penalty for a crime in its maximum period provided by law applicable to that crime or change the nature of the crime.

2) In Contempt Of Or With Insult To Public Authorities

The aggravating circumstances must be established with moral certainty, with the same degree of proof required to establish the crime itself.

3) With Insult Or Lack Of Regard Due To Offended Party By Reason Of Rank, Age Or Sex

According to the Revised Rules of Criminal Procedure, BOTH generic and qualifying aggravating circumstances must be alleged in order to be appreciated.

4) Abuse Of Confidence And Obvious Ungratefulness

The list in this Article is exclusive – there are no analogous circumstances.

5) Crime In Palace Or In Presence Of The Chief Executive

Basis: • the motivating power behind the act • the place where the act was committed • the means and ways used • the time • the personal circumstance of the offender and/or of the victim

6) Nighttime; Uninhabited With A Band

Place;

Kinds:

7) On Occasion Of Calamity

A

1) GENERIC – Those that can generally apply to all crimes. Nos. 1, 2, 3 (dwelling), 4, 5, 6, 9, 10, 14, 18, 19, and 20 except “by means of motor vehicles”.

8) Aid Of Armed Men Or Means To Ensure Impunity

2) SPECIFIC – Those that apply only to particular crimes. Nos. 3 (except dwelling), 15, 16, 17 and 21.

3) QUALIFYING –Those that change the nature of the crime. Art. 248 enumerates the qualifying AC which qualify the killing of

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9) Recidivism

person to murder.

10) Reiteration Habituality

Or

11)Price, Reward Promise

Or

4) INHERENT – Those that must accompany the commission of the crime and is therefore not considered in increasing the penalty to be imposed such as evident premeditation in theft, robbery, estafa, adultery and concubinage.

12)Inundation, Poison

Fire,

13)Evident Premeditation

14)Craft, Fraud Disguise

Or

5) SPECIAL – Those which arise under special conditions to increase the penalty of the offense and cannot be offset by mitigating circumstances such as: • quasi-recidivism (Art. 160) • complex crimes (Art. 48) • error in personae (Art. 49) • taking advantage of public position and membership in an organized/syndicated crime group (Art. 62)

15)Superior Strength Or Means To Weaken Defense

When there are several applicable qualifying aggravating circumstances, only one will be deemed as such and the others will be deemed as generic.

16)Treachery

17)Ignominy

18)Unlawful Entry,

Generic aggravating circumstances The effect of a generic AC, not offset by any mitigating circumstance, is to increase the penalty which should be imposed upon the accused to the MAXIMUM PERIOD.

19)Breaking Floor, Roof

Wall,

Qualifying aggravating circumstances The effect of a qualifying AC is not only to give the crime its proper and exclusive name but also to place the author thereof in such a situation as to deserve no other penalty than that specially prescribed by law for said crime.

20)With Aid Of Persons Under 15 By Motor Vehicle

It is not an ingredient of the crime. It only affects the penalty to be imposed but the crime remains the same

21)Cruelty

22)Organized Syndicated Group

Or Crime

The circumstance can be offset by an ordinary mitigating circumstance

The circumstance affects the nature of the crime itself such that the offender shall be liable for a more serious crime. The circumstance is actually an ingredient of the crime Being an ingredient of the crime, it cannot be offset by any mitigating circumstance

23)Use Of Drugs

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1) Taking Advantage of Public Office

The public officer must • use the influence, prestige or ascendancy which his office gives him • as the means by which he realizes his purpose.

The essence of the matter is presented in the inquiry, “did the accused abuse his office in order to commit the crime?”

When a public officer • commits a common crime independent of his official functions and • does acts that are not connected with the duties of his office, • he should be punished as a private individual without this AC.

Even if defendant did not abuse his office, • if it is proven that he has failed in his duties as such public officer, • this circumstance would warrant the aggravation of his penalty.

The circumstance cannot be taken into consideration in offenses where • taking advantage of official position is made by law an integral element of the crime • such as in malversation (Art. 217) or falsification of public documents under Art. 171.

Taking advantage of public position is also inherent in the case of • accessories under Art. 19, par. 3 (harboring, concealing or assisting in the escape of the principal of the crime) and • in Title VII of Book Two of the RPC (Crimes committed by public officers).

People v. Villamor (2002) 1) Brothers Jerry and Jelord Velez were on their way home on board a motorcycle. 2) Jerry was driving. As they neared a junction, they heard a speeding motorcycle fast approaching from behind. The brothers ignored the other motorcycle, which caught up with them. 3) As they were about to cross the bridge leading to their home, gunshots rang out from behind them. They abruptly turned the motorcycle around towards the direction of the gunfire. The light of their motorcycle's headlamp fell on their attackers aboard the second motorcycle. 4) The assailants fired at them a second time and fled. Jerry saw PO3 Villamor and Maghilom on board the motorcycle behind them. Maghilom was driving the motorcycle while Villamor was holding a short gun pointed at them. 5) Jerry sustained gunshot wounds but survived. Jelord, however, died on the spot during the first gunburst. Held: There was no showing that Villamor took advantage of his being a policeman to shoot Jelord Velez or that he used his "influence, prestige or ascendancy" in killing the victim. Villamor could have shot Velez even without being a policeman. In other words, if the accused could have perpetrated the crime even without occupying his position, there is no abuse of public position.

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The mere fact that accused-appellant is a policeman and used his government issued .38 caliber revolver to kill is not sufficient to establish that he misused his public position in the commission of the crime.

2) In Contempt Of Or With Insult To Public Authorities

Elements:

1) That the public authority is engaged in the exercise of his functions.

2) That he who is thus engaged in the exercise of his functions is not the person against whom the crime is committed.

3) The offender knows him to be a public authority. the offender from

4) His presence has not prevented committing the criminal act.

Public Authority / Person in Authority • directly vested with jurisdiction, that is, a public officer who has the power to govern and execute the laws. • The councilor, mayor, governor, barangay captain, barangay chairman etc. are persons in authority. • A school teacher, town municipal health officer, agent of the BIR, chief of police, etc. are now considered a person in authority.

Par. 2 is not applicable if committed in the presence of an agent only such as a police officer.

Agent • A subordinate public officer charged • with the maintenance of public order and • the protection and security of life and property, • such as barrio policemen, councilmen, and any person who comes to the aid of persons in authority.

Knowledge that a public authority is present is essential. Lack of such knowledge indicates lack of intention to insult public authority.

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3) With Insult Or Lack Of Regard Due To Offended Party By Reason Of Rank, Age Or Sex

If crime is committed • against the public authority • while in the performance of his duty, ◦ the offender commits direct assault ◦ without this aggravating circumstance. Four circumstances are enumerated in this paragraph, • which can be considered singly or together. • If all the 4 circumstances are present, they have the weight of one aggravating circumstance only.

People vs. Ga, 156 SCRA 790 Aggravating only in crimes against persons and honor, not against property like Robbery with homicide.

There must be evidence that in the commission of the crime, • the accused deliberately intended to offend or insult the sex or age of the offended party.

1) RANK OF THE OFFENDED PARTY Designation or title used to fix the relative position of the offended party in reference to others. There must be a difference in the social condition of the offender and the offended party.

People vs. Taoan, 182 SCRA 601 Teachers, professors, supervisors of public and duly recognized private schools, colleges and universities, as well as lawyers are persons in authority for purposes of direct assault and simple resistance, but not for purposes of aggravating circumstances in paragraph 2, Article 14.

2) AGE OF THE OFFENDED PARTY May refer to old age or tender age of the victim.

3) SEX OF THE OFFENDED PARTY This refers to the female sex, not to the male sex. People vs. De Los Reyes, 1992

4) DWELLING Building or structure, exclusively used for rest and comfort.

This is considered an AC because in certain cases, there is an abuse of confidence which the offended party reposed in the offender by opening the door to him.

Dwelling is aggravating in robbery with homicide because the crime can be committed without the necessarily transgressing the sanctity of the home. Husband and wife quarreled. Husband inflicted physical violence upon a wife. The wife left the conjugal home and went to the house of her sister bringing her personal belongings with her. The sister accommodated the wife in her home. The husband went to the house of the sister-in-law and tried to persuade the wife to return to the conjugal home but the wife refused since she was more at peace in her sister’s home than in their conjugal abode. Due to the wife’s refusal the husband pulled out a knife and

Dwelling need not be owned by the offended party. • It is enough that he used the place for his peace of mind, rest, comfort and privacy. Dwelling should not be understood in the concept of a domicile. • A person has more than one dwelling. ◦ So, if a man has so many wives and he gave them places of their own, each one is his own dwelling. ◦ If he is killed there, dwelling will be aggravating, provided that he also stays there once in a while. The crime of adultery was committed.

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Dwelling was considered aggravating on the part of the paramour. However, if the paramour was also residing in the same dwelling, it will not be aggravating. stabbed the wife to death. It was held that dwelling was aggravating although it is not owned by the victim since she is considered a member of the family who owns the dwelling and that place is where she enjoyed privacy, peace of mind and comfort.

The offended party must not give provocation.

It is not necessary that the accused should have actually entered the dwelling of the victim to commit the offense; • it is enough that the victim was attacked inside his own house, • although the assailant may have devised means to perpetrate the assault.

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

4) Abuse Of Confidence And Obvious Ungratefulness

Par. 4 provides two aggravating circumstances which, • if present in the same case • must be independently appreciated.

1) ABUSE OF CONFIDENCE

Elements:

a. That the offended party had trusted the offender.

b. That the offender abused such trust by committing a crime against the offended party. facilitated the

c.

That the abuse of confidence commission of the crime.

The confidence between the offender and the offended party must be immediate and personal. by

In a case where the offender is a servant, the offended party is one of the members of the family. The servant poisoned the child. It was held that abuse of confidence is aggravating. This is only true, however, if the servant was still in the service of the family when he did the killing. If he was driven by the master out of the house for some time and he came back to poison the child, abuse of confidence will no longer be aggravating. The reason is because that confidence has already been terminated when the offender was driven out of the house.

It is inherent in malversation, qualified theft, estafa conversion or misappropriation and qualified seduction.

2. OBVIOUS UNGRATEFULNESS

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Elements:

a. That the offended party had trusted the offender;

b. That the offender abused such trust by committing a crime against the offended party; be committed with obvious

c.

That the act ungratefulness.

5) Crime In Palace Or In Presence Of The Chief Executive

The ungratefulness must be obvious– manifest and clear. If it is the Malacañang palace or a church, • it is aggravating, • regardless of whether State or official or religious functions are being held.

The President need not be in the palace. • His presence alone in any place where the crime is committed is enough to constitute the AC. • It also applies even if he is not engaged in the discharge of his duties in the place where the crime was committed.

Offender must have the intention to commit a crime when he entered the place.

Cemeteries are not places dedicated for religious worship.

Par. 2 Contempt or insult to public authorities

6) Nighttime; Uninhabited With A Band

Place;

Par. 5 Where public authorities are engaged in the discharge of their duties. Public authorities are engaged in the performance of their duties. Public duty is Public duty is performed outside of performed in their their office office The offended party The public authority should not be the may or may not be the offended party public authority These 3 circumstances may be considered separately • when their elements are distinctly perceived and • can subsist independently, • revealing a greater degree of perversity.

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Aggravating:

• •

When it facilitated the commission of the crime; or When especially sought for by the offender to insure the commission of the crime or for the purpose of impunity; or When the offender took advantage thereof for the purpose of impunity.

1) NIGHTTIME must begin and be

The commission of the crime accomplished in the nighttime.

The offense must be actually committed in the darkness of the night. • When the place is illuminated by light, nighttime is not aggravating.

It must be shown that the • offender deliberately sought the cover of darkness and t • he offender purposely took advantage of nighttime to facilitate the commission of the offense.

People v. Berdida Nighttime was considered since it was purposely sought and treachery is further appreciated because the victim’s hands and arms were tied together before he was beaten up by the accused.

2) UNINHABITED PLACE

It is determined • not by the distance of the nearest house to the scene of the crime • but whether or not in the place of the commission of the offense, there was a reasonable possibility of the victim receiving some help.

3) BAND

There should

at least be four persons.

All of them should be armed

and principals by direct participation.

This aggravating circumstance is absorbed in the circumstance of

A is on board a banca, not so far away. B and C also are on board on their respective bancas. Suddenly, D showed up from underwater and stabbed B. Is there an aggravating circumstance of uninhabited place here? Yes, considering the fact that A and C before being able to give assistance still have to jump into the water and swim towards B and the time it would take them to do that, the chances of B receiving some help was very little, despite the fact that there were other persons not so far from the scene.

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abuse of superior strength.

This is inherent in brigandage.

7) On Occasion Of Calamity

A

The reason for the existence of this AC is found in the debased form of criminality met in one who, in the midst of a great calamity, instead of lending aid to the afflicted, adds to their suffering by taking advantage of their misfortune to despoil them.

The offender must take advantage of the calamity or misfortune.

8) Aid Of Armed Men Or Means To Ensure Impunity in the

“OR OTHER CALAMITY OR MISFORTUNE” – refers to other conditions of distress similar to “conflagration, shipwreck, earthquake or epidemic.” ELEMENTS:

People v. Licop Aid of armed men includes “armed women”.

1. That the armed men or persons took part commission of the crime, directly or indirectly.

2. That the accused availed himself of their aid or relied upon them when the crime was committed.

Exceptions:

1. When both the attacking party and the party attacked were equally armed.

2. When the accused as well as those who cooperated with him in the commission of the crime acted under the same plan and for the same purpose.

3. Casual presence, or when the offender did not avail himself of any of their aid nor did not knowingly count upon their assistance in the commission of the crime.

If there are more than 3 armed men, aid of armed men is absorbed in the employment of a band. Par. 8 With aid of armed men At least two armed men

Par. 6 By a band Requires more than three armed malefactors

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This circumstance is present even if one of the offenders merely relied on their aid, for actual aid is not necessary Armed men are mere accomplices In 1980, A committed robbery. While the case was being tried, he committed theft in 1983. He was also found guilty and convicted of theft also in 1983. was People vs. Molina

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Requires that more than three armed malefactors shall have acted together in the commission of an offense Band members are all principals

9) Recidivism;

Elements:

1. That the offender is on trial for an offense;

2. That he was previously convicted by final judgment of another crime;

3. That both the first and the second offenses are embraced in the same title of the Code;

To prove recidivism, it is necessary to allege the same in the information and to attach thereto certified copies of the sentences rendered against the accused. Nonetheless, the trial court may still give such AC credence if the accused does not object to the presentation

4. That the offender is convicted of the new offense.

Different forms of repetition or habituality of offender

The conviction became final because he did not appeal anymore and the trial for the earlier crime which was robbery ended in 1984 where he was also convicted. He also did not appeal this decision. Is the accused a recidivist? NO. The subsequent conviction must refer to a felony committed later in order to constitute recidivism. The reason for this is as the time the first crime was committed, there was no other crime of which he was convicted so he cannot be regarded as a repeater.

1. Recidivism under Article 14 (9)—The offender at the time of his trial for one crime shall have been previously convicted by final judgment of another embraced in the same title of the Revised Penal Code. 2. Repetition or reiteracion under Article 14 (9)—The offender has been previously punished for an offense to which the law attaches an equal or even greater penalty or for two or more crimes to which it attaches a lighter penalty. 3. Habitual delinquency under Article 62 (5)—The offender within a period of 10 years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification, is found guilty of any of the said crimes a third time or another. 4. Quasi-recidivism under Article 160—Any person who shall commit a felony after having been convicted by final judgment before beginning to serve such sentence or while serving such sentence shall be punished by the maximum period prescribed by law for the new felony
R O B B E R Y Commission 1980 T H E F T T H E F T

Commission/Conviction 1983

R O B B E R Y Conviction 1984

No RECIDIVISM A cannot be deemed a repeater because when he was convicted for the second crime, he was still considered innocent as to the first.

In recidivism, the crimes committed should be felonies. Recidivism cannot be had if the crime committed is a violation of

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a special law.

What is controlling • is the time of the trial, not the time of the commission of the offense. ◦ i.e. there was already a conviction even during the trial for the second crime • At the time of the trial means from the arraignment until after sentence is announced by the judge in open court.

Recidivism does not prescribe. No matter how long ago the offender was convicted, if he is subsequently convicted of a crime embraced in the same title of the Revised Penal Code, it is taken into account as aggravating in imposing the penalty.

Pardon does not erase recidivism, even if it is absolute because it only excuses the service of the penalty, not the conviction.

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

10)Reiteracion/ Habituality

ELEMENTS:
Reiteracion can be appreciated in the trial for robbery. SERVICE OF SENTENCE E S T A F A 1)

1. That the accused is on trial for an offense;

2. That he previously served sentence for another offense to which the law attaches:

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2)

a. an equal or b. greater penalty, or c. for 2 or more crimes to which it attaches lighter penalty than that for the new offense; and

Conviction

Commission

Robbery carries a graver penalty Sentence was already served for Estafa when the robbery was committed

3. That he is convicted of the new offense.

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Reiteracion or Habituality • it is essential that the offender be previously punished; • that is, he has served sentence.

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

Par. 9 Recidivism It is enough that a final judgment has been rendered in the first offense. It is necessary that the offender shall have served out his sentence for the first offense. The previous and subsequent offenses must not be embraced in the same title of the Code Not always an aggravating circumstance

Par. 10 Reiteracion

Requires that the offenses be included in the same title of the Code

Always to be taken into consideration in fixing the penalty to be imposed upon the accused

Art. 14, Par. 9 Recidivism

Two convictions are enough

The crimes are not specified; it is enough that they may be embraced under the same title of the Revised Penal Code

There is no time limit between the first conviction and the subsequent conviction. Recidivism is imprescriptible.

Art. 62 par. 5 Habitual Delinquency At least three convictions are required The crimes are limited and specified to: a. serious physical injuries, b. Less serious physical injuries, c. robbery, d. theft, e. estafa or swindling and f. falsification There is a time limit of not more than 10 years between every conviction computed from the first conviction or release from punishment thereof to conviction computed from the second conviction or release therefrom to the third

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It is a generic aggravating circumstance which can be offset by an ordinary mitigating circumstance. If not offset, it would only increase the penalty prescribed by law for the crime committed to its maximum period

conviction and so on Habitual delinquency is a special aggravating circumstance, hence it cannot be offset by any mitigating circumstance. Aside from the penalty prescribed by law for the crime committed, an additional penalty shall be imposed depending upon whether it is already the third conviction, the fourth, the fifth and so on

Since reiteracion provides that the accused has duly served the sentence for previous conviction/s, or is legally considered to have done so, • quasi-recidivism cannot at the same time constitute reiteracion, hence the latter cannot apply to a quasirecidivist.

If the same set of facts constitutes recidivism and reiteracion, • the liability of the accused should be aggravated by recidivism which can be easily proven.

11)Price, Reward Promise

Or

When this AC is present, • there must be 2 or more principals, ◦ the one who gives or offers the price or promise ◦ and the one who accepts it, • both of whom are principals – ◦ to the former, because he directly induces the latter to commit the crime, ◦ and the latter because he commits it. When this AC is present, it affects not only the person who received the price or reward, but also the person who gave it.

If without previous promise it was • given voluntarily after a crime was committed • as an expression of his appreciation for the sympathy and aid shown by the other accused, • it should not be taken into consideration for the purpose of increasing the penalty.

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The price, reward or promise • need not consist of or refer to material things or • that the same were actually delivered, ◦ it being sufficient that the offer made by the principal by inducement was accepted by the principal by direct participation before the commission of the offense.

12)Inundation, Poison

Fire,

Unless used by the offender as a means to accomplish a criminal purpose, • any of the circumstances in paragraph 12 • cannot be considered to increase the penalty or to change the nature of the offense.

When another AC already qualifies the crime, • any of these AC’s shall be considered as generic aggravating circumstance only.

Fire is not aggravating in the crime of arson.

A and B were arguing about something. One argument led to another until A struck B to death with a bolo. A did not know that C, the son of B was also in their house and who was peeping through the door and saw what A did. Afraid that A might kill him too, he hid somewhere in the house. A then dragged B’s body and poured gasoline on it and burned the house altogether. As a consequence, C was burned and eventually died too.

Whenever a killing is done with the use of fire, as when you kill someone, you burn down his house while the latter is inside, this is murder.

There is no such crime as murder with arson or arson with homicide. The crime is only murder.

As far as the killing of B is concerned, it is homicide since it is noted that they were arguing. It could not be murder. As far as the killing of C is concerned, it is arson since he intended to burn the house only.

If the intent is to destroy property, • the crime is arson even if someone dies as a consequence. If the intent is to kill, • there is murder even if the house is burned in the process. A and B fought. A told B that someday he will kill B. On Friday, A killed B. C and D fought on Monday but since C already suffered so many blows, he told D, “This week shall not pass, I will kill you.” On Friday, C killed D. Is there evident premeditation in both cases? None in both cases. What condition is missing to bring about evident premeditation? Evidence to

13)Evident Premeditation

Elements:

1. The time when the offender determined to commit the crime;

2. An act manifestly indicating that the culprit has clung to his determination; and

People v. Salpigao Evident premeditation is presumed to exist when conspiracy is directly established. When conspiracy is merely implied, evident premeditation cannot be presumed, the latter must be proved just like any other fact. US v. Manalinde If the offender premeditated on the killing of any person, it is proper to consider against the offender the aggravating circumstance of evident

3. A sufficient lapse of time between the determination and execution, to allow him to reflect upon the consequences of his act and to allow is conscience to overcome the

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show that between Monday and Friday, the offender clung to his determination to kill the victim, acts indicative of his having clung to his determination to kill B. A and B had a quarrel. A boxed B. A told B, “I will kill you this week.” A bought firearms. On Friday, he waited for B but killed C instead. Was there evident premeditation? premeditation, because whoever is killed by him is contemplated in the premeditation.

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resolution of his will.

Evident premeditation implies • a deliberate planning of the act • before executing it.

The essence of premeditation • an opportunity to coolly and serenely think and deliberate ◦ on the meaning and ◦ consequences of what he planned to do, • an interval long enough for his conscience and better judgment ◦ to overcome his evil desire and scheme.

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

Evident premeditation is inherent in robbery, adultery, theft, estafa, and falsification.

There is aberratio ictus. So, qualify. Insofar as B is concerned, the crime is attempted murder because there is evident premeditation. However, that murder cannot be considered for C. Insofar as C is concerned, the crime is homicide because there was no evident premeditation. People v. San Pedro

14)Craft, Fraud Disguise

Or

Involves intellectual trickery and cunning on the part of the accused.

It is employed as a scheme in the execution of the crime.

Fraud Insidious words or machinations used • to induce the victim • to act in a manner • which would enable the offender to carry out his design. Craft The act of the accused done in order NOT TO AROUSE THE SUSPICION

Where the accused pretended to hire the driver in order to get his vehicle, it was held that there was craft directed to the theft of the vehicle, separate from the means subsequently used to treacherously kill the defenseless driver. People v. Masilang There was also craft where after hitching a ride, the accused requested the driver to take them to a place to visit somebody, when in fact they had already planned to kill the driver.

Fraud When there is a DIRECT INDUCEMENT by insidious words or machinations

Craft and fraud may be • absorbed in treachery if they have been deliberately adopted as the means, methods or forms for the treacherous strategy, or • they may co-exist independently where they are adopted for a different purpose in the commission of the crime.

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Disguise Resorting to any device to conceal identity.

The test of disguise is • whether the device or contrivance resorted to by the offender • was intended to or did make identification more difficult, such as the use of a mask, false hair or beard.

But if in spite of the use of handkerchief to cover their faces, the culprits were recognized by the victim, disguised is not considered aggravating. People v. Carpio

15)Superior Strength Or Means To Weaken Defense

Superior Strength

To TAKE ADVANTAGE of superior strength means • to use purposely excessive force • out of proportion to the means of defense available to the person attacked.

Superiority may arise from • aggressor’s sex, weapon or number • as compared to that of the victim (e.g. accused attacked an unarmed girl with a knife; 3 men stabbed to death the female victim).

There must be evidence of notorious inequality of forces between the offender and the offended party in their age, size and strength, and that the offender took advantage of such superior strength in the commission of the crime. The mere fact that there were two persons who attacked the victim does not per se constitute abuse of superior strength.

No advantage of superior strength when • one who attacks is overcome with passion and obfuscation or • when quarrel arose unexpectedly and the fatal blow was struck while victim and accused were struggling.

Vs. by a band : • In the circumstance of abuse of superior strength, what is taken into account is ◦ not the number of aggressors nor the fact that they are armed ◦ but their relative physical might vis-à-vis the offended party

Means Employed to Weaken Defense • This circumstance is applicable only ◦ to crimes against persons and ◦ sometimes against person and property, such as

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robbery with physical injuries or homicide.

The means used must not totally eliminate possible defense of the victim, • otherwise it will fall under treachery People vs. Ilagan Suddenness of the attack does not by itself constitute treachery in the absence of evidence that the manner of attack was consciously adopted by the offender to render the victim defenseless. People vs. Gupo Treachery is not appreciated where quarrel and heated discussion preceded a killing, because the victim would be put on guard.

16)Treachery (aleviosa) A and B have been quarreling for some time. One day, A approached B and befriended him. B accepted. A proposed that to celebrate their renewed friendship, they were going to drink. B was having too much to drink. A was just waiting for him to get intoxicated and after which, he stabbed B. A pretended to befriend B, just to intoxicate the latter. Intoxication is the means deliberately employed by the offender to weaken the defense of the other party. If this was the very means employed, the circumstance may be treachery and not abuse of superior strength or means to weaken the defense

Treachery

Employment of means, methods and form in the commission of the crime which tend directly and specially to • ensure its execution • without risk to himself arising from the defense which the offended party might make.

The essence of treachery is that • by virtue of the means, method or form employed by the offender, • the offended party was not able to put up any defense. • If the offended party was able to put up a defense, even only a token one, there is no treachery. • Instead, some other aggravating circumstance may be present but it is no longer treachery.

Rules Regarding Treachery

1. Applicable only to crimes against persons.

People vs. Toribio But although a quarrel preceded a killing where the victim was atop a coconut tree, treachery was considered as the victim was not in a position to defend himself.

2. Means, methods or forms need not insure accomplishment of crime.

3. The mode of attack must be consciously adopted.

Attacks shown intention to eliminate risk: 1. Victim asleep 2. Victim half-awake or just awakened 3. Victim grappling or being held. 4. Attacked from behind

People v. Malejana Treachery may still be appreciated even when the victim was forewarned of danger to his person. What is decisive is that the execution of the attack made it impossible for the victim to defend himself or to retaliate. Thus, even a frontal attack could be treacherous when unexpected and on an unarmed victim who would be in no position to repel the attack or avoid it. Treachery cannot co-exist with passion and obfuscation.

Additional rules:

1. When the aggression is CONTINUOUS, treachery must be

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17)Ignominy

present in the BEGINNING of the assault. 2. When the assault WAS NOT CONTINUOUS, in that there was an interruption, it is sufficient that treachery was present AT THE MOMENT THE FATAL BLOW WAS GIVEN. Ignominy It is a circumstance pertaining to the moral order, which adds disgrace to the material injury caused by the crime.

The means employed or the circumstances brought about must tend to make the effects of the crime • MORE HUMILIATING or • TO PUT THE OFFENDED PARTY TO SHAME.

Applicable to crimes against chastity, rape, less serious physical injuries, light or grave coercion and murder.

Raping a woman from behind is ignominous because that is not the normal form of intercourse, it is something which offends the morals of the offended woman. This is how animals do it.

18)Unlawful Entry,

There is unlawful entry when an entrance is effected by a way not intended for the purpose.

Unlawful entry must be a means to effect entrance and not for escape.

There is no unlawful entry when • the door is broken and t • hereafter the accused made an entry thru the broken door. • The breaking of the door is covered by paragraph 19.

19)Breaking Floor, Roof

Wall,

Unlawful entry is • inherent in the crime of trespass to dwelling and robbery with force upon things • but aggravating in the crime of robbery with violence against or intimidation of persons. To be considered as an AC, • breaking the door must be utilized • as a means to the commission of the crime.

It is only aggravating in cases where • the offender resorted to any of said means TO ENTER the house.

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20) With Aid Of Persons Under 15; By Motor Vehicle

If the wall, etc. is broken in order to get out of the place, it is not aggravating With the aid of persons under 15 years of age To repress, so far as possible, • the frequent practice resorted to by professional criminals • to avail themselves of minors ◦ taking advantage of their responsibility ◦ (remember that minors are given leniency when they commit a crime)

By means of a motor vehicle To counteract the great facilities found by modern criminals in said means to commit crime and flee and abscond once the same is committed.

This circumstance is aggravating only when used in the commission of the offense. • If motor vehicles are used only in the escape of the offender, it is not aggravating. It must have been used to facilitate the commission of the crime to be aggravating.

“or other similar means” – the expression should be understood as referring to • MOTORIZED vehicles or • other efficient means of transportation similar to automobile or airplane.

21) Cruelty deliberately increased by

Elements:

1. That the injury caused be causing other wrong;

2. That the other wrong be unnecessary for the execution of the purpose of the offender.

Cruelty

For it to exist, it must be shown that the accused enjoyed and delighted in making his victim suffer.

If the victim was already dead when the acts of mutilation were being performed, • this would also qualify the killing to murder due to outraging of his corpse.

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Cruelty physical refers to the physical suffering of the victim so he has to be alive

Ignominy shocks the moral conscience of man refers to the moral effect of a crime and it pertains to the moral order, whether or not the victim is dead or alive

Other Aggravating Circumstances

Or Crime

(Art. 62, RPC)

1) Organized Syndicated Group

Special aggravating circumstance

The maximum penalty shall be imposed • if the offense was committed by any person • who belongs to an organized or syndicated crime group.

Organized or syndicated crime group:

• •

A group of two or more persons collaborating, confederating or mutually helping one another for the purpose of gain in the commission of a crime.

2) Use Of Drugs

Under the Dangerous Drugs Act of 2002 (Section 25), • notwithstanding the provisions of any law to the contrary, • a positive finding for the use of dangerous drugs shall be

a qualifying aggravating circumstance in the commission of a crime by an offender,

and the application of the penalty provided for in the Revised Penal Code shall be applicable.

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ILLUSTRATION CASE LAW

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ALTERNATIVE CIRCUMSTANCE CIRCUMSTANCE

IMPORTANT POINTS

1) Relationship

2) Intoxication

Circumstances which must be taken in consideration as aggravating or mitigating • according to the nature and effects of the crime

3) Degree education/instruction

of

Except for the circumstance of intoxication, the other circumstances in Article 15 • may not be taken into account at all when the circumstance has no bearing on the crime committed People v. Atop (1998)

1) Relationship

WHERE RELATIONSHIP IS EXEMPTING:

Relationship considered:

a. b. c. d. e. f.

Spouse Ascendant Descendant Brother Sister Relative by Affinity

• In the case of an accessory who is related to the principal within the relationship prescribed in Article 20;

(SADBSA)

• Also in Article 247, a spouse does not incur criminal liability for a crime of less serious physical injuries or serious physical injuries if this was inflicted after having surprised the offended spouse or paramour or mistress committing actual sexual intercourse.

1. 11-year-old Regina lives with her grandmother. 2. Atop is the common-law husband of her grandmother. 3. Atop was found guilty of 4 counts of rape which was committed in 1993 (2x), 1994 and 1995. The lower court took into account the Aggravating Circumstance of relationship. Held: The law cannot be stretched to include persons attached by common-law relations. In this case, there is no blood relationship or legal bond that links Atop to his victim.

• Those commonly given in Article 332 when the crime of theft, malicious mischief and swindling or estafa.

WHERE RELATIONSHIP IS AGGRAVATING:

in CRIMES AGAINST PERSONS in cases where o the offended party is a relative of a higher degree than the offender (grandson kills grandfather), or o when the offender and the offended party are relatives of the same level, as killing a brother, a brother-in-law, a half-brother or adopted brother.

When CRIME AGAINST PERSONS is any of the SERIOUS PHYSICAL INJURIES (Art. 263), even if the offended party is a descendant of the offender, relationship is AGGRAVATING.

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o

But the serious physical injuries must not be inflicted by a parent upon his child by excessive chastisement.

When the crime is LESS SERIOUS PHYSICAL INJURIES OR SLIGHT PHYSICAL INJURIES o if the offended party is a relative of a higher degree than the offender

When crime against persons is HOMICIDE OR MURDER, o relationship is aggravating even if the victim of the crime is a relative of lower degree.

In CRIMES AGAINST CHASTITY, o relationship is always aggravating

In the CRIME OF QUALIFIED SEDUCTION, o the offended woman must be a virgin and less than 18 years old. o But if the offender is a brother of the offended woman or an ascendant of the offended woman, ▪ regardless of whether the woman is of bad reputation, ▪ even if the woman is 60 years old or more, o crime is qualified seduction. In such a case, relationship is qualifying.

WHERE RELATIONSHIP IS MITIGATING:

When the CRIME IS LESS SERIOUS PHYSICAL INJURIES OR SLIGHT PHYSICAL INJURIES o if the offended party is a relative of lower degree

2) Intoxication;

Relationship is neither mitigating nor aggravating, when relationship is an element of the offense It is only the circumstance of intoxication which • if not mitigating, • is automatically aggravating.

WHEN MITIGATING:

1. There must be an indication that

People v. Camano (1982) 1. After the accused had been drinking liquor, he stabbed twice the victim Pascua with a bolo while the latter was walking along the barrio street. 2. After hacking and stabbing to death the victim, the accused proceeded to the seashore and on finding Buenaflor hacked the latter with the same bolo.

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a. b. c. d.

because of the alcoholic intake of the offender, he is suffering from diminished self-control. It is not the quantity of alcoholic drink. Rather it is the effect of the alcohol upon the offender which shall be the basis of the mitigating circumstance.

2. That offender is a. not a habitual drinker and b. did not take alcoholic drink with the intention to reinforce his resolve to commit crime

WHEN AGGRAVATING:

1. If intoxication is habitual

Held: Intoxication is mitigating if accidental, not habitual nor intentional, that is, no subsequent to the plan to commit the crime. It is aggravating if habitual or intentional. To be mitigating, it must be indubitably proved. A habitual drunkard is one given to intoxication by excessive use of intoxicating drinks. The habit should be actual and confirmed. It is unnecessary that it be a matter of daily occurrence. It lessens individual resistance to evil thought and undermines will-power making its victim a potential evil doer. The intoxication of the appellant not being habitual and considering that the said appellant was in a state of intoxication at the time of the commission of the felony, the alternative circumstance of intoxication should be considered mitigating.

3) Degree of Instruction/ Education

2. If it is intentional to embolden offender to commit crime Refers to the • lack of sufficient intelligence of and knowledge of the full significance of one’s act

Being illiterate does not mitigate liability • if crime committed is one which one inherently understands as wrong (eg. parricide)

To be considered, • degree if instruction must have reasonable relation to the offense some

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ABSOLUTORY CIRCUMSTANCE

IMPORTANT POINTS

1) Entrapment Instigation policy and

and

2) Pardon

Absolutory causes are those where • the act committed is a crime • but for reasons of public sentiment • there is no penalty imposed.

3) Absolutory Causes

4) Acts not covered by law and in case of excessive punishment (art. 5) People v. Pacis (2002) 1. Yap, NBI agent received information that a Pacis was offering to sell ½ kg of "shabu." 2. A buy-bust operation was approved. 3. The informant introduced Yap to Pacis as interested buyer. They negotiated the sale of ½ kg of shabu. 4. Pacis handed to Yap a paper bag with markings "yellow cab". While examining it, Pacis asked for the payment. Yap gave the "boodle money" to Pacis. 5. Upon Pacis's receipt of the payment, the officers identified themselves as NBI agents and arrested him. Held: The operation that led to the arrest of appellant was an entrapment, not an instigation. In entrapment, ways and means are resorted to for the purpose of trapping and capturing lawbreakers in the execution of their criminal plan. In instigation on the other hand, instigators practically induce the would-be Example of entrapment A, a government anti-narcotics agent, acted as a poseur buyer of shabu and negotiated with B, a suspected drug pusher who is unaware that A is a police officer. A then paid B in marked money and the latter handed over a sachet of shabu. Upon signal, the cops closed in on B Example of instigation A, leader of an anti-narcotics team, approached and persuaded B to act as a buyer of shabu and transact with C, a suspected pusher. B was given marked money to pay C for a sachet of shabu. After the sale was consummated, the cops closed in and arrested both B and C.

1) Entrapment Instigation

and

Entrapment Ways and means are resorted to for the purpose of trapping and capturing the lawbreaker in the execution of his criminal plan The means originate from the mind of the criminal.

A person has planned or is about to commit a crime and ways and means are resorted to by a public officer to trap and catch the criminal.

Instigation The instigator practically induces the would-be accused into the commission of the offense and himself becomes a co-principal. The law enforcer conceives the commission of the crime and suggests to the accused who carries it into execution. A public officer or a private detective induces an innocent person to commit a crime and would arrest him upon or after the commission of the crime by the latter.

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defendant into the commission of the offense and become co-principals themselves. It has been held in numerous cases by this Court that entrapment is sanctioned by law as a legitimate method of apprehending criminal elements engaged in the sale and distribution of illegal drugs.

Not a bar to the prosecution and conviction of the lawbreaker.

The accused must be acquitted because the offender simply acts as a tool of the law enforcers

2) Pardon

General Rule:

Pardon does not extinguish criminal action (Art 23).

• Except:

Pardon by marriage between the accused and the offended party in cases of SEDUCTION, ABDUCTION, RAPE AND ACTS OF LASCIVIOUSNESS (Art 344)

3) Absolutory Causes

a. Spontaneous desistance

b. Light felonies not consummated

c.

Accessories in light felonies

d. Accessories exempt under Article 20

e. Trespass to dwelling to prevent serious harm to self

f.

exemption from criminal liability in crimes against property

g. Under Article 332, exemptions from criminal liability for cases of theft, swindling and malicious mischief. There would only be civil liability. circumstances

h. Death under (Art. 247)

exceptional

i.

Under Article 219, discovering secrets through seizure of correspondence of the

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ward by their guardian is not penalized. liability is

j.

Ways on how criminal extinguished under Art 89. People v. Veneracion (1995)

Article 5 covers two situations:

4) Acts Not Covered By Law And In Case Of Excessive Punishment

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

1. The accused was found guilty of the crime of Rape with Homicide. 2. The instant petition raised the issue whether or not the respondent judge acted with grave abuse of discretion when he failed or refused to impose the mandatory penalty of death under RA 7659 Held: The law plainly and unequivocally provides that “when by reason or on the occasion of rape, a homicide is committed, the penalty shall be death. Courts are not concerned with wisdom, efficacy or morality of law. The discomfort faced by those forced by law to impose death penalty is an ancient one, but it is a matter upon which judges have no choice. The Rules of Court mandates that after an adjudication of guilt, the judges should impose the proper penalty and civil liability provided for by the law on the accused.

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

EXTENUATING CIRCUMSTANCE

IMPORTANT POINTS

ILLUSTRATION

CASE LAW

Circumstances which mitigate the criminal liability of the offender but not found in Article 13

A kleptomaniac is criminally liable. But he would be given the benefit of a mitigating circumstance analogous to paragraph 9 of Article 13, that of suffering from an illness which diminishes the exercise of his will poser without, however, depriving him of the consciousness of his act.

Illustrations: An unwed mother killed her child in order to conceal a dishonor. The concealment of dishonor is an extenuating circumstance insofar as the unwed mother or the maternal grandparents are concerned, but not insofar as the father of the child is concerned. Mother killing her new born child to conceal her dishonor, penalty is lowered by two degrees. Since there is a material lowering of the penalty or mitigating the penalty, this is an extenuating circumstance.

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CRIMINAL LAW 1

CRIMINAL LAW

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2008

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