Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation

Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada Art. 12 Excempting Circumstances In exempting circumstances the act does not result in criminal liability because the act is not voluntary or negligent. (Different from justifying because here a crime is actually committed. Imputable to a person but not criminally liable) There is absence of: Intelligence, freedom of action, intent or negligence. Insanity or imbecility Minority(15 years of age or under) RA 9344 Minority above 15 below 18 if acting w/o discernment) Performance of a lawful act with due care (accident) Compulsion of an irresistible force Uncontrollable fear of an equal or greater injury Failure to perform an act due to some lawful or insuperable cause 1. An Imbecile or an insane person Imbecile – mental deficiency (mental age of a child), deprived completely of reason or discernment and freedom of the will at the time of committing the crime Insane – unsound mind or suffers from a mental disorder, complete deprivation of intelligence in the commission of the act or that the accused acted without the least discernment (Ambal)  An insane person may have lucid intervals but an imbecile does not.  Acting like a crazy person because you‟re angry is not insanity

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frenzy of anger that he fails to use reason or good judgment in what he does. The fact that a person acts crazy is not conclusive that he is insane. The popular meaning of the word „crazy‟ is not synonymous with the legal terms „insane‟, „non compos mentis‟ unsound mind‟, „idiot‟ or „lunatic‟. (Ambal) Presumption is in favour of sanity The law presumes that every person is of sound mind, in the absence of proof to the contrary” xxx “The law always presumes all acts to be voluntary. It is improper to presume that acts were executed unconsciously. (Ambal). …that when a defendant in a criminal case interposes the defense of mental incapacity, the burden of establishing that fact rests upon him, has been adopted in a series of decisions by this court.” (PP vs Bascos)

Circumstancial evidence:

Bascos case 1922  Witnesses say that the accused has been insane for many years  The doctor who examined the accused testified that the accused was a violent maniac and that he may have been insane when he killed the victim, and  Lack of motive on the part of the accused to kill the victim

Quantum of evidence

Crazy vs Insane

There is a vast difference between an insane person and one who has worked himself up into such a

Bonoan 1937 Insanity as a defense is a confession and avoidance and as such must be proved beyond reasonable doubt.

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation
Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada When the commission of a crime is established and the defense of insanity is not made out beyond reasonable doubt conviction follows.  Accused confined at San Larazo Hospital twice (1922, 1926) – tendency of recurring  Dementia praecox is an exempting circumstance (authorities)  Insomnia for 4 days before the crime, symptom of or leads to dementia praecox;  A day after his arrest he was sent to the Psychopathic hospital  Alienist reported that the accused had a form of psychosis – Manic depressive psychosis

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mental hospital), he was discharged (proof of cure). No evidence that he was adjudged insane. Discharge is proof of being cured. Mental depravity which results not from any disease of the mind, but from a perverted condition of the moral system, where the person is mentally sane, does not exempt one from responsibility for crimes committed under its influence. PP vs Madarang 2000 The courts have established a more stringent criterion for insanity to be exempting as it is required that there must be a complete deprivation of intelligence in committing the act. i.e. the accused is deprived of reason he acted without the least discernment because there is a complete absence of the power to discern. Establishing insanity is a question of fact and may be established by:  A witness who is intimately acquainted with the accused. (relative, a very good friend)  A witness who has rational basis to conclude that the accused was insane based on the witness‟ own perception of the accused. (you can be a witness if you can perceive and relate what you have perceived)  Expert testimony (Madarang) Pp vs Madarang The testimony or proof of the accused‟s insanity must relate to the time preceding or coetaneous with the commission of the offense with which he is charged.

Commission vs Trial

Insanity at the time of the commission of the offense is different from insanity at the time of the trial. In the first instance, it is an exempting circumstance, in the second the accused is not exempt but the proceedings are suspended until the accused is fit to stand trial.

Burden of evidence

The alleged insanity of Ambal was not substantiated by any sufficient evidence. The presumption of sanity was not overthrown. He was not completely bereft of reason or discernment and freedom of will when he mortally wounded his wife. He was not suffering from any disease or defect. (Ambal) PP vs Legaspi 2001 “Mere prior confinement does not prove that accused-appellant was deprived of reason at the time of the incident” – not establishing insanity(only proves you went to

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation
Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada

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…proof of abnormal behavior immediately before or simultaneous to the commission of the crime. Evidence on the alleged insanity must refer to the time preceding the act under prosecution or to the very moment of its execution. PP vs Opuran 2004 A man‟s act is presumed voluntary. It is improper to assume the contrary. *Such unusual behavior may be considered as mere abnormality of the mental faculties, which will not exclude imputability. *Medicine was not shown to be for any mental illness. *Was never confined in a mental institution. * Dr. Verona‟s findings were not based on incomplete and sufficient facts; *Failed to invoke insanity at the earliest opportunity. Stringent standard 2. Minority RA 9344 Juvenile and Justice Welfare Act (May 20, 2006) New concepts: Age of criminal responsibility – From 9 to 15 to 15 to 18. 15 below no criminal responsibility. Effects – No more prisoned. Minor offenders committing crimes in broad daylight they have in their pockets birth certificates to show they are minors. The law is being abused. Presumptions – in favour of minority. Once accused says he is a minor it is up to the state to prove otherwise.

A child fifteen years of age and under at the time of the commission of the offense is exempt from criminal liability. Child is subject to intervention. Intervention refers to a series of activities which are designed to address issues that caused the child to commit an offense. Section 3(1) Ra 9344 Intervention refers to a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counselling, skills training, education, and other activities that will enhance his/her psychological, emotional and psychological Above 15 but below 18  Without discernment - child is exempt but subject to intervention  With discernment – subject to appropriate proceedings, i. e. diversion No exemption from civil liability – parents, guardians can be liable for damages Discernment is the mental capacity to understand the difference between right and wrong. It may be shown by:  Manner of committing a crime  Conduct of offender  Appearance of the minor  Attitude  Comportment  Behavior, before, during and after the trial. Determination of age

Age of criminal responsibility

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation
Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada    Birth certificate Baptismal certificate Other pertinent document -

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In the absence of the documents mentioned: Testimony of the child or other persons Physical appearance Other relevant evidence  Presumption of minority (Sec. 7)

Other skills to aid the child  Participation in community based programs  Participation in education, vocation and life skills program

Kinds of Diversion, Law Enforcement Level
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Imposable Penalty
Not more than 6 years (barangay level, police level)  Mediation, family conferencing and conciliation if appropriate (where there is a private offended party)  In victimless crimes, diversion or rehabilitation More than 6 years Diversion by the court      

Confiscation and forfeiture of the proceeds All the programs at the barangay level Court All programs at barangay and law enforcement Written or oral reprimand Fine Payment of the cost of proceedings Institutional care and custody

Kinds of Diversion, Court

Kinds of Diversion, Sec. 31, Barangay Level
   Restitution – return what was taken Reparation – pay the value of what was taken Indemnification – in cases like assault or physical injury, hospital fees, medicine, loss of income when hospitalized Written or oral apology Care guidance and supervision orders Counselling Trainings, seminars and lectures Anger management Problem solving Values formation

Sec. 58. Offenses not applicable to children Vagrancy and Prostitution Mendicancy Sniffing of Rugby Shall undergo appropriate counselling and treatment 4. Accident Elements:  Performance of a lawful act  With Due care  Injury is caused to another by mere accident  There is no fault or intention of causing the injury An accident is something that happens outside the sway of our will, and although it comes about through some act of our will, lies beyond the bounds of humanly

    -

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation
Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada foreseeable consequences (PP vs Agliday 2001) PP vs Genita 2004 He must show with clear and convincing proofs that 1) he was performing a lawful act with due care, 2) the injury caused was by a mere accident, and 3) he had no fault or intention of causing the injury. Basis as an exempting circumstance Criminal liability does not arise in case a crime is committed by any person who while performing a lawful act with due care causes an injury by mere accident Performance of a lawful act For an accident to become an exempting circumstance, the act has to be lawful. The act of firing a shotgun at another is not a lawful act. (Agliday) Intent is a mental state It connotes the absence of criminal intent, intent is a mental state, the existence of which is shown by a person‟s overt acts Accused got his shotgun and shot his son. A shotgun has to be cocked first before it could be discharged. (Agliday)

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5. Compulsion of an irresistible force Elements:  Compulsion is by physical force  The physical force is irresistible  The physical force must come from a third person Exempted from criminal liability “Because he does not act with freedom” “reduce him to be a mere instrument who acts not only without will but against his will” “must be present, imminent and impending and of such a nature as to induce a wellgrounded apprehension of death or serious bodily harm if the act is not done” “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 self-defense in equal combat” (PP vs Loreno 1984) 6. Impulse of an uncontrollable fear of an equal or greater injury Elements:  The threat which causes the fear is of an evil greater than or at least equal to that which is required to commit.  That the evil is of such gravity and imminence that the ordinary man would succumb to it. Opportunity to escape At that time the alleged masterminds were waiting for both appellants from a distance of about one kilometre. By not availing of this chance to escape, appellants, allegation of fear or duress becomes untenable. Xxx. It is necessary that the compulsion be of such a character as to leave no opportunity to escape or self-defense in equal combat. PP vs Saldana 2004. Irresistible Force vs Uncontrollable Fear IF – violence or physical force

Dual Standard Thus, in determining whether an accident attended the incident, courts must take into account the dual standards of lack on intent to kill and absence of fault or negligence (Pomoy vs PP) Accident inconsistent with self-defense Self-defense is inconsistent with the exempting circumstance of accident, in which there is no intent to kill. On the other hand, self-defense necessarily contemplates a premeditate intent to kill in order to defend oneself from harm.

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation
Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada UF – intimidation or threat 7. Prevented by Insuperable Cause Elements:  An act is required by law  A person fails to perform such act  Such failure is due to some lawful or insuperable cause. Art. 13 Mitigating Circumstances Circumstances that reduce the penalty but do not entirely free the actor from criminal liability. Mitigating circumstance whether privileged or ordinary only serve to reduce the penalty but does not change the nature of the crime. Kinds: 1.) Ordinary – Art. 13 May be offset by aggravating circumstances, effect is penalty is lowered by one or two degrees 2.) Privileged –Art. 68, 69, 64 Cannot be offset by aggravating circumstance, effect is penalty is applicable in its minimum period 1. All requisites necessary to justify or to exempt from criminal liability are not attendant Not all the requisites are required The requisites attendant must not be a majority or it will be a privileged mitigating Self-defence, relatives or strangers -Unlawful aggression being an indispensable requisite is the only one that is possible under this article

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The presence of another makes the circumstance a privileged mitigating. PP vs Librando – to avail of the mitigating circumstance of incomplete self-defense, there must be unlawful aggression on the part of the victim. State of necessity/Avoidance of greater evil or injury That an evil actually exists must be present The presence of any of the two others (injury feared is greater, no other practical and less harmful means) would result in a privileged mitigating circumstance. Performance of duty (not an ordinary mitigating; privileged) Since there are only two requisites, the presence of one is considered a privileged mitigating circumstance (Oanis) 2. Minority and over 70 years of age RA 9344 Age: If 15 and below – no criminal liability (intervention) If above 15 below 18  If acted w/o discernment (presumption) no criminal liability (intervention)  If acted with discernment (diversion) Diversion  Barangay level (look at back of syllabus) Nature of offense If offense is punishable by imprisonment by not more than 6 years  Conduct mediation, family conferencing and conciliation if possible, i.e. where there is a private offended party, by

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation
Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada Barangay or Law Enforcement assisted by LCPC. Parents of the child shall attend. In victimless crimes possible diversion or rehabilitation program by local social welfare and development officer with parents/guardians

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If offense is punishable by more than 6 years diversion may be resorted to only by the regional trial court (ex/ robbery) Over 70 years of age A generic or ordinary mitigating circumstance RA 9346 – prohibits the imposition of death penalty

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3. No Intention to commit so grave a wrong The facts proven show that there exists notable and evident disproportion between means employed to execute the criminal act and its consequences Notorious disproportion between evil produced and the means employed to execute it *means employed can prove intention Intent is a state of mind The intention of the agent, as an internal act and of his own conscience and of his own conscience, cannot be revealed in any other manner than by external and overt acts which may accompany intention Deducing intent The intention of the culprit must be deduced as a rule from the

nature and extent of the tangible evil produced, as this is almost always the palpable manifestation of his will, except when the proof and other circumstances or antecedent events may be a sufficient ground to cause the belief that the material act has transcended the bounds of his intention (Reyes) Baston and Death – remembering that the implement as a baston, the use of which will force on the head of a person would ordinarily fracture the head. External acts may show intent – The weapon used, nature of injury inflicted, attitude of mind/manner of commission

PP vs Callet The lack of intent to commit a wrong so grave is an internal state. It is weighted based on the weapon used, the part of the body injured, the injury inflicted and the manner it is inflicted. 9 inch knife, on the neck, attacking victim from behind, without giving him an opportunity to defend himself. This shows he intended to do what he actually did. Attendant facts and circumstance While intent to kill may be presumed from the fact of the death of the victim, this mitigating factor may still be considered when attendant facts and circumstances so warrant as in the instant case. Consider: Petitioner tried to avoid fight being smaller, He tried to parry the blows of Tomelden, Hit lucky punch. He even helped carry his

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation
Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada unconscious co-worker to the office of general manager.(Urbano) PP vs Gonzales -This mitigating circumstance is obtaining when there is a notable disparity between the means employed by the accused to commit a wrong and the resulting crime committed. - The appellant‟s use of a gun, although not deliberately sought nor employed in the shooting should have reasonably placed the appellant on guard of the possible consequences of his act. Not inconsistent with treachery – treachery but mitigated by no intention to commit so grave a wrong The trial court gave all of the accused the benefit of the mitigating circumstance that the offenders had no intention to commit so grave a wrong. The estimation of this circumstance was proper, and its allowance was not inconsistent with the finding that the crime was murder. There was a clear agreement that they will beat the victim up using iron bars to inflict only serious injury even the one who didn‟t agree and brought a knife. (Pp. vs Enriquez GR no. 37408 Oct. 10, 1933. See also Cagoco) Attendant circumstances The record shows, however, that the offense committed was characterized by treachery and the appellants left the scene of the crime only after the victim had fallen down, Hence, the

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mitigating circumstance of lack of intention cannot be appreciated in favour of the appellants. PP vs Pajenado GR No. L-26458 -1976

4. Sufficient Provocation Requisites: Provocation must be:  Sufficient  Originating from offended party  Immediate Be sufficient and immediately preceding (must be no interval of time) the act The provocation to constitute a mitigating circumstance, must, in the language of the law, be sufficient, that is, adequate to excite the person to commit the wrong and must accordingly be proportionate to its gravity. (PP. vs Nabora. GR No. 48101 1941) Must be accordingly proportionate to each other the provocation and the act committed Sufficient provocation Depends on:  The act constituting the provocation  Social standing of the person provoked  Place and time of provocation Examples:  Forcing one‟s way into a line despite being told not to by a foreman (Carrero)

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation
Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada  Kicking and abusing the accused for not preparing the evening meal. (Firmo) Asking for pardon from her husband after the latter saw a man jump from their window (Marquez)

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Time to regain composure or equanimity …still this mitigating circumstance cannot be considered where sufficient time elapsed for the accused to regain his composure.” “Without question, sufficient time had passed for appellants‟ emotions to cool and for them to recover their equanimity.” Grave offense NOT grave felony The gravity of the offense depends on:  Social standing of the person subject of the grave offense;  Place;  Time when insult was made Grave offense “I will make a roast pig out of you” (Ampar) “You live at the expense of your wife” (Rosel) “You are a Japanese spy” (Luna) 6. Passion or obfuscation The accused must have acted on an impulse so powerful that it naturally  That there be an act both unlawful and sufficient to produce such condition of mind and That said act which produces the obfuscation was not far remote from the commission of crime for a considerable length of time, during which the perpetrator might recover his normal equanimity (PP vs Gravino)

Urbano When the law speaks of provocation either as a mitigating circumstance or as an essential element of self-defense, the reference is to an unjust or improper conduct of the offended party capable of exciting, inciting, or irritating anyone it is not enough that the provocative act be unreasonable or annoying; the provocation must be sufficient to excite one to commit the wrongful act and should immediately precede the act. …immediately precede the act There should be no interval of time. Between the provocation made by the offended party and the commission of the crime by the accused. 5. Immediate vindication of a grave The grave offense is done to:  One committing offense  Spouse  Ascendants  Descendants  Legitimate, natural or adopted brothers or sisters  Relatives by affinity within the same degree Immediate = Proximate (wrong interpretation from the Spanish Text) Although this offense, which engenders perturbation of mind, was not so immediate, this court is of the opinion that the influence thereof, by reason of its gravity and the circumstances under which it was inflicted, lasted until the moment the crime was committed.

Requisites:  Accused acted on impulse  Impulse so powerful that it resulted to passion or obfuscation Prior unjust or improper conduct The circumstance “should not be taken into consideration as an extenuating

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation
Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada circumstance unless it appears that it was provoked by prior unjust or improper acts.” (US vs Taylor G.R. No. 2309) PP vs Noynay G.R. No. 38715 In order to be entitled to this mitigating circumstance it must appear that the obfuscation of the accused arose from lawful sentiments. The fact that an offense was committed in an uncontrollable burst of passion should not be taken into consideration as an extenuating circumstance unless it appears that it was provoked by prior unjust or improper acts. PP vs Caliso GR No. 37271 The accused, in poisoning the child, was actuated more by a spirit of lawlessness and revenge than by any sudden impulse of natural and uncontrollable fury and because such sudden burst of passion was not provoked by prior unjust or improper acts… US vs Sarikala GR NO. L-12988 (Muslim househelp) The mitigating circumstance of passion and obfuscation cannot be considered when a long period of time has intervened between the impulse which produces it and the criminal act.” …be not far removed… (Pissing on coffee cup and spitting on face) For the circumstance to exist, it is necessary that the act which gave rise to the obfuscation be not removed from the commission of the offense by a considerable length of time, during which period the perpetrator might recover his normal equanimity…(PP vs Layson GR No. L-25177) Must arise from lawful sentiments (girl left previous lover and went to another soldier)…the only causes which mitigate the criminal responsibility for the loss of selfcontrol are such as originate from legitimate feelings, not those which arise from vicious, unworthy, and immoral passions. (US vs Hicks GR No. 4971)

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Hicks and Dela Cruz distinguished In (Hicks) the cause of the alleged “passion and obfuscation”…the refusal of the woman to continue to live in illicit relations with him, which she had a perfect right to do; In the present case however, the impulse upon which defendant acted and which naturally “produced passion and obfuscation” was not that the woman declined to have illicit relations with him, but the sudden revelation that she was untrue to him, and his discovery of her in flagrante in the arms of another. (US vs De la Cruz G.R. No. 7094) Legitimate or illegitimate In Engay, the natural feeling of despair in her after finding out that the man, she had been supporting and made many sacrifices for, abandoned her is the source of the passion/obfuscation In Yuman, the woman who stabbed her partner who after taking advantage of said woman abandoned her was considered by the SC as a legitimate source of passion or obfuscation. In Bello, it was the refusal of the woman to go back to the accused and instead remain as a public hostess. It is curious that in this case, it was the accused who induced the victim to obtain employment as a public hostess in the first place. Summary of rules The act producing the condition of mind/impulse must be unlawful while the sentiments of the accused from which the passion or obfuscation originate from must be lawful. A single fact cannot be made the basis of different modifying circumstances Well-settled is the rule that if these two circumstance are based on the same facts, they should be treated together as one mitigating circumstance. From the facts established in this case, it is clear that both circumstances arose from the same set of

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation
Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada facts aforementioned. Hence, they should not be treated as two separate mitigating circumstances. (Romera vs PP GR No. 151978) 7. Voluntary surrender and confession For surrender to be appreciated it must be spontaneous and unconditional because he acknowledges his guilt or he wishes to save the authorities from the trouble and expenses in his search and capture. Requisites  Offender has not been actually arrested.  The offender surrendered himself to a person in authority or his agent.  The surrender is voluntary. PP vs Obligado GR No. 171735 (narrow footpath leading to accused‟s house and met with police on the way home after the crime) Inasmuch as he was intercepted by the arresting officer there, appellant had no means of evading arrest. His surrender therefore was neither voluntary nor spontaneous. Warrant of arrest; issuance different from service For while it is true that the warrant for his arrest was dated 7 March 1967and the police authorities were able to take custody of the accused only on 31 March 1967,

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Law does not distinguish whether accused is educated or not. 9. Illness Requisites:   Illness diminishes offenders exercise of willpower Does not deprive offender of consciousness of his acts

10. Similar and Anologous Circumstances Art. 14. Aggravating Circumstance (Generic)   Increase the penalty without exceeding the maximum Based on greater perversity  Motivating power  Place of commission  Means and ways employed  Time  Personal circumstances Four Kinds  Generic  Specific  Qualifying  Inherent

there is nothing on record to show that the warrant had actually been served on him, or that it had been returned unserved for failure of the server to locate said accused. (PP vs Brana GR. No.
L-29210) 8. Physical Defect Defect must restrict means of action, defense or communication.

Qualifying cannot be offset changes nature of crime must be alleged

Generic can be offset increases penalty must be alleged as amended

1. Advantage be taken by the offender of his public position a. What is important is that the offender is a public officer and he takes

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation
Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada

2010

advantage of his public position to commit the
crime. Ex. People vs Villamor Policeman shot someone using his service revolver. Did the accused abuse his office to commit the crime? This circumstance is not present. US vs Torrida Torrida was a councilman and demanded a nonexistent fee from the residents of their barrio. His position placed him in a position to commit these crimes. If he wasn‟t, he could not have induced the injured parties to pay these alleged fines. It was for his position that the injured people made the payments. Pablo vs PP Three Policemen in a motor vehicle picked up people at night and harassed the victims making false charges to the victims and giving them choice to just give them their valuables and they will not be imprisoned. Their positions caused the persuasion to let the victims into boarding the mobile patrol car and hand over their money. Clear case wherein public officers abused their position. PP vs Magayac 2000 CAFGU became embroiled in a family dispute and verbal arguments turned into fist blows and ultimately

defendant got his rifle to shoot the victim. That accused-appellant was a member of the dreaded CAFGU and used his government issued M-14 rifle to kill Jimmy does not necessarily prove that he took advantage of his public position to commit the crime. PP vs Fallorina 2004 Fallorina was a policeman on a motorcycle and met a neighbour child playing with a kite who climbed the roof to get the kite. Fallorina told child to get off the roof and got pissed and shot the child. There is no evidence on record that the appellant took advantage of his position as a policeman. PP vs Herrera 2001 The mere fact that the accused-appellant is a policeman who used his government issued .38 revolver to kill Ganan is not sufficient to establish that he misused his public position in the commission of the crim. PP vs Gapasin 1994 Appellant, a member of the PC, committed the crime with an armalite which was issued to him when he received the mission order. Aggravating circumstance present. 2. In contempt of or w/insult to the public authorities Requisites:

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation
Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada 1. A public authority is engaged in the exercise of functions 2. The public authority is not the person against whom the crime is committed 3. The offender knows him to be a public authority 4. The presence of the public authority does not prevent the commission of the crime by the offender Public authority – One vested with jurisdiction. One with power to govern and execute the laws. Agents are not included – policemen and tanods. PP vs Gutierrez 1999 Public officer should not be the object of the offense 3. Disregard of Rank, Age, Sex or Dwelling of Offended Party Age may refer to the victim‟s advanced age or very young age. Rank - social position, standing in society, employment, any organizations with hierarchy Must be deliberately intended to insult the rank, age or sex of the offended party for it to be considered. PP vs Mangsant 1938 It was not shown that he had intended to offend or insult the sex of the victim PP vs Dela Cruz 2004 Accused stabbed a sickly 81-year old man. It was not shown that appellant deliberately intended to offend or insult the age of the offended party. PP vs Hernandez 2004 Case involves robbery with homicide

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This circumstance is limited to crimes against persons or honor. Dwelling – a building or structure exclusively used for rest and comfort. May be the entire structure or a portion thereof. -Effects of the crime are felt in the dwelling. Accused need not enter the dwelling. PP vs Alcala 1922 Foot of the staircase of the house regarded as an integral part of the dwelling of that family. The porch of a house, not common to different neighbours, is a part of the dwelling. Sufficient provocation by owner of the dwelling When there is sufficient provocation by the owner of the dwelling, this circumstance cannot be appreciated. “There must be a close relation between provocation and commission of crime in the dwelling of the person from whom the provocation came.” US vs LIicarte 1912 Daughter was grossly insulted. Dwelling was not considered. PP vs Dequina 1934 Accused figured out that his wife and the victim were having an affair from some source. He went to the lover‟s house and killed him. Later on when he was charged he said there was sufficient provocation. The provocation was not given immediately prior to the commission of the crime and had no particular relation to the house of the deceased. If the defendant had entered the house of the deceased

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation
Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada and surprised the deceased and the wife of the defendant in the act of adultery, the aggravating circumstance of morada(dwelling) would not exist. When provocation negates dwelling 1. Must be immediate before the commission of the crime 2. Close relation between the provocation and the crime committed in the dwelling PP vs Agoncillo 2001 Rosalyn was not raped therein; she was taken from her house and raped somewhere. Although she was abducted therefrom, accusedappellant was not charged with forcible abduction with rape but only with rape. Considering that she was not raped in her home, dwelling cannot be appreciated. 4. Abuse of confidence or obvious ungratefulness. 1. The offended party trusts the offender 2. The offender abused such trust, and 3. The abuse facilitated the commission of the crime Fiduciary(one of trust) relationship between offended and offender PP vs Caliso 1933 Aggravating circumstance of grave abuse of confidence was present since the appellant was the domestic servant of the family and the “amah”. PP vs Cram There was no fiduciary relationship between Cram and the child(victim).

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5. Palace of the Chief Executive, in his presence, public authorities are engaged in the discharge of duties or in a place dedicated to public worship Palace of the Chief executive and place dedicated to public worship – official or religious functions need not be held. Where public authorities are engaged in the discharge of their duties – there must be some performance of public functions Par. 5 vs Par. 2  Public authorities are performing their duties – same  Public authorities engaged in the performance of their duties must be inside their office – Public authorities are performing their duties outside of their office  Public authority may be the offended party – Public party should not be the offended party Intent to commit the crime when the person entered/arrived at the place. 6. Nighttime, uninhabited place, by a band Considered as one if all are present. Nighttime PP vs Librando 2000 One aggravating circumstance only. They can be considered separately if their elements are distinctly perceived and can subsist independently, revealing a greater degree of perversity. PP vs Silva 2002 Three ways which nighttime can be considered (either of the 3):

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation
Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada 1. Especially sought for by the offender 2. It is taken advantage of by him 3. It facilitates the commission of the crime by ensuring the offender‟s immunity from capture The fact that they brought with them a flashlight clearly shows that they intended to commit the crime in darkness… Darkness or obscurity PP vs Carino 2004 The essence of this aggravating circumstance is the obscuridad afforded by, and not merely chronological onset of, nighttime. Although it was committed at night nocturnity is not a modifying factor if place is adequately lighted. Uninhabited place Reasonable possibility for the victim to receive some help in the place of the commission of the crime. PP vs Rubia 1928 Aggravating circumstance of the crime having been committed in an uninhabited place must be considered, the incident having taken place at sea where it was difficult for the offended party to receive help, while the assailants could easily have escaped punishment. PP vs Lumandong 2000 Accused didn‟t get proper wages so decided to kill family members of employer. Isolated and grassy portion of the Iponan River 200 meters away from her house before killing his said victim thereby facilitating the commission of the crime. Band

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More than three = at least four Directly participate in the

execution of the act constituting the crime. PP vs Magdamit 1997 Offense committed en cuadrilla when more than three armed malefactors shall have acted together in the commission thereof. In the present case, there were seven armed conspirators involved in the commission of the composite crime. PP vs Dinamling 2002 It may be not all of you would kill but all participated directly. All four accused-appellants were armed, three with long firearms and the other with short arms. PP vs Lozano 2003 Any weapon which by reason of its intrinsic nature or the purpose for which it was made or used by the accused, is capable of inflicting serious or fatal injuries upon the victim of the crime may be considered as arms for purposes of the law on cuadrilla (fours). 7. On the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune. The rule in here is that the offender must take advantage of the calamity or misfortune in the commission of the crime SC decision on post-World War II chaos scenario – chaotic conditions is included in the calamity or misfortune analogy. 8. Aid of armed men or persons who insure or afford impunity

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation
Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada Armed men must not participate in the execution of the felony otherwise they are co-principals. Lozano Aid of armed men requires that they are accomplices who take part in minor capacity, directly or indirectly. 9. Recividism One who, at the time of the trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the RPC. Basis – indication of nonreform/criminal propensity Theft and estafa, murder and homicide, homicide and physical injuries. Requisites: 1. Is on trial 2. Previously convicted by final judgment 3. 1st and 2nd offense embraced in the same title 4. Convicted of the 2nd offense No recidivism if 2 conviction is for a crime committed before the commission of the crime involved in the 1st conviction. PP vs Rapisora 147855 Recidivist – one who at the time of his trial for one crime shall have been previously convicted by final judgment of another crime embraced in the same title of this Code.  Necessary to allege the same in the information and attach thereto certified copies of the
nd

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sentences rendered against
the accused. 10. Reiteracion or Habituality Requisites: 1. The accused is on trial 2. Previously served sentence for another offense to which the law attaches an equal or greater penalty, or for two or more crimes to which it attaches a lighter penalty than that for the new offense; 3. The accused is convicted for the new offense Recividism vs Habituality  Previously convicted by final judgment – Previously served sentence  Both are the same in that the time of appreciative is at the time the offender is facing trial

Reiteracion sentence served out not in same title not always aggravating

Recidivism final judgement same title of the same code always aggravating

11. In consideration of a price, reward or promise The price, reward or promise must be the primary consideration of the offender in committing the crime. Includes the person who gives the rewards PP vs Talledo 1950 This circumstance was not considered primarily because there was no conclusive evidence and the

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation
Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada circumstance was not alleged in

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the information

qualifying aggravating circumstance while treachery as generic aggravating circumstance. PP vs Galura Chocolates with Cantharide to sexually stimulate girl. But boyfriend did not intend to kill girlfriend. 13. Evident premeditation Requisites: 1. The time when the offender determined to commit the crime 2. An act manifestly indicating the culprit‟s determination to commit the crime 3. A sufficient lapse of time between determination and execution  Sufficient time to contemplate the consequences of his acts PP vs Tobechukwu 2001 The essence of evident premeditation is that the execution of the criminal act is preceded by cool thought and reflection upon the resolution to carry out the criminal intent within a space of time sufficient to arrive at a calm judgment. US vs The Moro Manalinde 1909 A case where you have all the 3 requisites of evident premeditation present. Time – decided to commit the crime accepting the order Determination – got knife and wrapped it with banana leaves and A sufficient lapse of time – walked for 3 days PP vs Mendoza No sufficient time to coolly and serenely think and deliberate on the meaning and the consequences of

PP vs Alincastre 1971 Shot and killed the mayor of Olongapo The Talledo case is not authority on this question Indeed, the established rule in the Spanish jurisprudence is to the effect that the aggravating circumstance of price, rewards or promise thereof affects both the offeror and the acceptor. The circumstance may even evince even greater moral depravity in the offeror than in the acceptor. PP vs Canete 1984 Aggravating circumstance of price was present in the crime to both offeror and acceptor. 12. By means of inundation, fine, poison, explosion, stranding of vessel or intentional damage thereto, derailment of locomotive, or any other artifice involving great waste or ruin Any of the circumstances in this paragraph must be used by the offender to accomplish the crime, hence the phrase “by means of…” Means must be specifically resorted to commit the crime. In treachery as long as it‟s present that aggravated circumstance is there without regard to the purpose of the offender (ex. His plan was to commit a tree adjacent to window where victim sleeps and shoot him while he sleeps. When person enters he shoots person who is different from intended victim) PP vs Comadre 2004 He threw a stick of dynamite at the person who is prostrate at the ground. Explosive became the

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation
Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada what they planned to do, an interval long enough PP vs Hilario 2001 Arrived early afternoon, witnesses heard them planning to kill a person, when information was brought to them of the location of the victim, they went there and killed person but not the intended victim (white t-shirt). Evident premeditation cannot be take into account when the person whom the defendant proposed to kill from the one who became his victim. Manalinde vs Hilario The fact was the victim was not predetermined. Does not affect the nature of the crime. 14. Craft, Fraud orDisguise Craft involves intellectual trickery and cunning. PP vs Nunez Craft should also be appreciated as aggravating when victim was lured. Rivera to accept the proceeds of the sale of a gun. A scheme employed by the accused to get him to get inside the car. Disguise PP vs Reyes 1998 It is also worth mentioning that while appellant reportedly had a sort of a mask and was usng sunglasses, these clumsy accoutrements could not constitute the aggravating circumstance of disguise. Legally, disfraz contemplates a superficial but somewhat effective dissembling to avoid identification. Disguise was also not alleged in the information PP vs Cabato 1988

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Cabato‟s disguise (mask) fell during the commission of the crime. The fact that the mask subsequently fell down thus paving the way for Cabato‟s identification will not render this aggravating circumstance inapplicable. Disguise was considered. PP vs Cunanan 1977 Malefactors resorted to disguise. Circumstance did not facilitate the consummation of the killing. Nor was it taken advantage of by the malefactors in the course of the assault. They announced their presence at the scene of the crime with shouts and gunshots. That mode of attack

counteracted whatever deception might have arisen from their disguise.
    Purpose of the offender is to

conceal his identity To facilitate the commission of
the crime Offender takes advantage of the disguise Effective

15. Advantage be taken of superior strength or means be employed to weaken the defense. PP vs Drew 2001 GR No. 127368 Several of them ganged up on victim. Must be shown that accused is physically stronger than the victim. Used and abused their superiority of their combined strength or inherent superiority. PP vs Padilla GR No. 75508 1994 45 caliber pistol, defense plywood. Abuse of superior strength may include use of powerful weapon out

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation
Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada of proportion to the defense available to the offended party. PP vs Amodia 177356 2008 Numerical superiority but took turns. SC said they did not took advantage of superior strength. Numbers is not enough there must be clear proof that assailants purposely used excessive force out of proportion to the defense available to the person attacked. PP vs Ventura 148145-46 2004 Killed the employer and the wife of the employer at dawn. A man with a deadly weapon attacked an unarmed and defenceless woman constitutes the circumstance of abuse of that superiority which his sex and the weapon used in the act afforded him, and from which the woman was unable to defend herself. Means employed to weaken defense. The means must not be of such a nature that the victim could not put up any sort of defense otherwise that would be a case of treachery. PP vs Ducusin 30724 1929 He made victim drunk with Cognac. 16. Treachery PP vs Gidoc GR 185162 2009 Singing in the karaoke Crimes against persons, employing means methods, or forms in the execution thereof that tend directly and specially to insure its execution, without risk to himself arising from the defense which the victim might make. -Swift and unexpected attack w/out the slightest provocation on the latter‟s part.

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PP vs REgalado 177302 2009 Chu was caught off-guard because he was still asking forgiveness then accused suddenly drew a curved knife and stabbed and pursued the following victim. Precluding Chua from defending himself. Treachery cannot be presumed PP vs Abdulah 182518 2009 Abdulah was looking for a girl and asked directions and was able to locate the girl. Later on girl was discovered dead. SC said it is not enough to establish treachery. All was circumstantial. Must be proved as if it is an element of the offense. Elements of treachery Velasco vs PP 166479 2006 a) The time of the attack, the victim was not in a position to defend himself; PP vs Dela Pena 183567 2009 Victim was unarmed, attacked from behind a window to mask his presence and identity. b) And the accused consciously and deliberately adopted the particular means, methods or forms of attack employed by him. PP vs Guevarra 182192 2008 Inspector Barte as just sitting in the jeep and was shot on the head and the chest by .45 caliber. Baluyot and Canete If aggression is continuous

treachery must be present in the beginning of the assault.

If there is an interruption in the assault, it is sufficient that treachery

be present at the moment the fatal blow was delivered. It is this
interruption that gives the accused

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation
Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada the time to consciously and deliberately adopt the means and method of execution. …with treachery PP vs Trinidad 38930 1988 As long as treachery is present it will be considered even if there is a mistake in the person, blow, etc. That Juan Angel, and not his mother, was apparently the intended victim is not incompatible with the existence of treachery. When he saw a person sleeping in the room offender shot the person. Not intended victim. Treachery may be taken into account even if the victim of the attack was not the person whom the accused intended to kill. 17. Ignominy Ignominy is a circumstance pertaining to the moral order, which adds disgrace and obloquy to the material injury caused by the crime. US vs Abaigar 1255 1903 Effects of the crime more humiliating. US vs De Leon 522 1902 Land owner was made to kneel before his servants before he was killed. A deliberate effort to add humiliation to the effects of the crime. PP vs Acaya L-72998 188 Victim was dancing a fandango in public and was stabbed while dancing. It does not follow that there was intention to put the offended party to shame the fact that he was stabbed in a public place. PP vs Siao 126021 2000

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Used not only the missionary position but also the dog position the aggravating circumstance of ignominy attended the commission thereof. 18. Unlawful Entry When an entrance is effected by a way not intended for the purpose. PP vs Mendiona 129056 2000 Entrance through the window 19. Breaking wall, roof, floor, door or window Must be resorted to as a means to the commission of the crime What distinguishes this from unlawful entry is that in the latter the window or point of ingress need not be broken 20. Aid of persons under 15 or by means of motor vehicle, airships or other similar means. Must be deliberately used in the commission of the crime. PP vs Espejo L-27708 1970 Jeep was used at arriving, to carry the effects, escaping. Deliberately used in the commission of the crime.  More jurisprudence state that mere use of a motor vehicle in escaping is not aggravating. 21. Cruelty Cruelty refers to physical suffering as compared to Ignominy which refers to moral suffering, i.e., disgrace and shame. Test in appreciating cruelty PP vs Sitchon 2002 Child was killed with a hammer. Whether the accused deliberately and sadistically augmented the

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation
Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada wrong by causing another wrong not necessary for its commission, or inhumanly increased the victims suffering or outraged or scoffed at his person or corpse…the culprit enjoys and delights in making his victim suffer slowly and gradually, causing him moral and physical pain which is unnecessary for the consummation of the criminal act which he intended to commit. Accused was not given the aggravating circumstance because it was more of a result of drug use.

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