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Criminal Law - It is a branch of public substantive law which defines crimes, treats of their
nature and provides for their punishment. is a publiclaw because it deals with the relation of
the individual with the State
Legal Maxims

Nullum crimen nulla poena sine lege There is no crime when there is no law that defines and
punishes it.

Actus non facit reum, nisi mens sit rea The act cannot be criminal unless the mind is criminal.

Actus me invito factus non est meus actus An act done by me against my will is not my act.

El que es causa de la causa es causa del mal causado He who is the cause of the cause is the
cause of the evil caused (People v. Ural, G.R. No. L-30801, March 24, 1974).
In dubio, pro reo When in doubt, for the accused.
Characteristics of Criminal Law

1. General;
2. Territorial; and
3. Prospective.


It is binding on all persons who live or sojourn in the Philippine territory, regardless of
nationality, gender, or other personal circumstances(CIVIL CODE, Art. 14).

- One who LIVES/SOJOURN (Mere step in the Philippine soil/territory)


1. Treaty Stipulations

RPUS Visiting Forces Agreement (VFA), which was signed on February 10, 1998

2. Laws of Preferential Application

R.A. 75 penalizes acts which would impair the proper observance by the Republic and its
inhabitants of the immunities, rights, and privileges of duly -accredited foreign diplomatic
representatives in the Philippines.

Public Ministers;

R.A. 75 is applicable only where the country of the diplomatic representative affected provides
for similar protection to duly accredited diplomatic representatives of the Republic of the
Philippines (Id.).

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Warship Rule a warship of another country even though docked in the Philippines is
considered as an extension of the territory of their respective country. Same rule applies to
foreign embassies in the Philippines. Philippine warship and embassies abroad are deemed
extra-territories of the Philippines.

Principles of Public International Law

The following persons are exempted: (SCAM2)

Sovereigns and other heads of state (Included therein are Kings and Queens);


Ambassadors (Must be assigned in PH)



General Rule: Penal laws of the Philippines have force and effect only within its territory (RPC,
Art. 2).


RPC shall not be enforced within or outside the Philippine territories if so provided under:

Treaties; or
Laws of Preferential Application (RPC, Art. 2 and CIVIL CODE, Art. 14).

a. Should commit an offense while on Philippine ship or airship.

The ship or airship must not be within the territorial jurisdiction of another country (it
must be in international waters).
- The ship or airship must be registered in the Philippines under Philippine laws .
- WARSHIP extension of the country of origin (even inside PH territory)

b. Should forge or counterfeit any coin or currency note of the Philippines or obligations
and securities issued by the Government .
- Obligations and securities of the GSIS, SSS and Land Bank are NOT of the government
because they have separate charters.

c. Should introduce into the country the above-mentioned obligations and securities.
d. While being public officers or employees, should commit an offense in the exercise of
their functions, like: Direct Bribery (Art. 210); Indirect Bribery (Art. 211); Qualified
Bribery (Art. 211-A) etc.
e. Should commit any of the crimes against national security and the law of
nations defined in Title One of Book Two (RPC, Arts. 114-122).
- When rebellion, coup detat and sedition are committed abroad, the Philippine courts will
not have jurisdiction because these are crimes against public order

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- Terrorism as defined by R.A. 9372, otherwise known as the Human Security Act of
2007, is now a crime against national security and the law of nations.

R.A.9372, otherwise known as the Human Security Act of 2007 has extraterritorial application.

General Rule: Penal laws cannot make an act punishable in a manner in which it was not
punishable when committed.

Exception: It may be applied retroactively when the new law is favorable to the accused

Exceptions to the Exception:

The new law is expressly made inapplicable to pending actions or existing causes of
actions(Tavera v. Valdez, G.R. No. 922, November 8, 1902).
Two Theories in Criminal Law:
1. Classical or Juristic Theory

The basis of criminal liability is human free will and the purpose of the penalty is retribution.

1. 2. Positivist or Realistic Theory

Man is subdued occasionally by a strange and morbid phenomenon which constrains him to
do wrong, in spite of or contrary to his volition.

Eclectic or Mixed Theory a combination of both classical and positive theories(Id. at 10). Our
Code is considered eclectic (i.e., the age of the offender is taken into consideration,
intoxication of the offender in order is considered a mitigating circumstance unless it is
habitual or intentional)

- These are acts or omissions punishable by the Revised Penal Code(RPC, Art. 3).

Elements of Felonies (General):

1. That there must be an act or omission, i.e. there must be external acts;
2. That the act is performed or the omission is incurred by means of dolo(malice)or culpa
3. The act or omission must be voluntary.

A. Intentional Felonies

Intent (Criminal)

The purpose to use a particular means to effect such result

Intent to commit an act with malice, being purely a mental process, is presumed. Such
presumption arises from the proof of commission of an unlawful act.

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Criminal intent is necessary because:

a. Actus non facit reum nisi mens sit rea The act itself does not make a man guilty unless his
intentions were so.

b. Actus me invito factus non est meus actus An act done by me against my will is not my act
(U.S. v. Ah Chong, G.R. No. 5272, March 19, 1910).

B. Culpable felonies

Negligence, imprudence, lack of foresight, or lack of skill.

Honest Mistake of fact

It is a misapprehension of fact on the part of the person causing injury to another. Such
person is NOT criminally liable as he acted without criminal intent (Ignorantia facti excusat) .

An honest mistake of fact destroys the presumption of criminal intent which arises upon the
commission of a felonious act. (People v. Oanis, G.R. No. L-47722, July 27, 1943).
- Honest Mistake of fact is NOT applicable in CULPABLE felonies.

Requisites of mistake of fact as a defense:

1. That the act done would have been lawful had the facts been as the accused believed
them to be;
2. That the intention of the accused in performing the act should be lawful; and
3. That the mistake must be without fault or carelessness on the part of the accused

US v. Ah Chong (G.R. No. L- 5272, March 19, 1910 ) The accused had no alternative but
to take the facts as they appeared to him, and such facts justified his act of killing his

People v. Oanis (G.R. No. L-47722, July 27, 1943) There was no mistake of fact when the
accused police officers were shot Tecson, whom they thought to be Balagtas (a notorious
criminal) who was sleeping in his bed, without ascertaining his identity and the non-
existence of threat from the part of

Classification of CrimesAccording to Nature:

1. Mala prohibita

Crimes punishable by special penal laws whereby criminal intent is not, as a rule, necessary, it
being sufficient that the offender has the intent to perpetrate the act prohibited by the special
law. It is punishable because the prohibited act is so injurious to the public welfare that it is the
crime itself.
2.Mala in Se

Crimes mala in se are acts or omissions which are inherently evil.

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Par. 1: Criminal Liability for a felony different from that which is intended to be

- Act or omission should not be punished by a special law because the offender violating a
special law may not have the intent to do any injury to another. In such case, the wrongful act
done could not be different, as the offender did not intend to do any other injury . That the
wrong done to the aggrieved party be the direct, natural and logical consequence of the felony
Proximate Cause

It isthat cause, which, in the natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have occurred.

Note: Any person who creates in another persons mind an immediate sense of danger, which
causes the latter to do something resulting in the latters injuries, is liable for the resulting

Thus, the person is still criminally liablealthough the wrongful act done be different from that
which he intended:

Error In Personae- mistake in the identity of the victim (Art. 49 penalty for lesser crime in its
maximum period)

Aberratio ictus mistake in the blow (Art. 48 on complex crimes penalty for graver offense in
its maximum period)

Efficient Intervening Cause

It is the cause which interrupted the natural flow of events leading to ones death. This may
relieve the offender from liability.

NOT efficient intervening causes:

The weak or diseased physical condition victim;

The nervousness or temperament of the victim;

Causes which are inherent in the victim

Neglect of the victim or third person(e.g. refusal of medical attendance); and

Erroneous or unskilled medical or surgical treatment.

URBANO v. IAC: Tetanus has an incubation period of 14 days, Death on the 22 nd day
is no longer logical consequence of the proximate cause.

Note: A supervening event can still be the subject of amendment or of a new charge without
necessarily placing the accused in double jeopardy.

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Par. 2: Impossible Crime

Requisites: (PEIN)

1. That the act performed would be an offense against persons or property;

2. That the act was done with evil intent;
3. That its accomplishment is inherently impossible, or that the means employed is either
inadequate or ineffectual; and
Inherent impossibility of its accomplishment:

Legal Impossibility where the intended acts, even if completed would not amount to a

Physical Impossibility when extraneous circumstances unknown to the actor or beyond his
control prevent the consummation of the intended crime (e.g. when a man with the
intention to steal another's wallet and finds the pocket empty; when a person steals a check
which was later dishonored)(Intod v. CA, G.R. No. 103119 October 21, 1992.)

JACINTO v. PEOPLE: A worthless check cannot be the object of theft.

4. That the act performed should not constitute a violation of another provision of the RPC.


Stages of execution: (does not apply to crimes under special laws unless otherwise
provided, crimes by omission and formal crimes)

Examples of crimes which do not admit of frustrated stage:

Rape, since the gravamen of the offense is carnal knowledge, hence, no matter how slight the
penetration, the felony is consummated;

Indirect Bribery, because it is committed by accepting gifts offered to the public officer by
reason of his office. If he does not accept, he does not commit the crime. If he accepts, it is

Direct Bribery;

Corruption of Public Officers, because the offense requires the concurrence of the will of both
parties, such as that when the offer is accepted, the offense is consummated. But when the
offer is rejected, the offense is merely attempted;

Adultery, because the essence of the crime is sexual congress;

Physical Injury, since it cannot be determined whether the injury will be slight, less serious, or
serious unless and until consummated; and

Theft, because the unlawful taking immediately consummates the offense and the disposition of
the thing is not an element thereof.

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STAGE (Acts still subject of
NO CRIME Attempted did not Frustrated Consummated
materialize by some independent from the
reason or causes will of the perpetrator.
All acts necessary were
Notes: In case of Note: Nagawa na lahat Note: Naisakatupaan
Spontaneous ng kailangan para ma- ang plano.
Desistance either NO consummate pero
crime committed (since hindi pa rin
it is just a mere naisakatuparan.
preparatory act) OR
liable for the actual
crime committed,
although it was not the
intended crime( Art 4,
- Sinimulan lang
directly by
pero di natuloy.
Elements: Elements: When all the elements
1. The offender 1. The offender necessary for its
commences the performs all the execution and
commission of acts of accomplishment are
the felony execution; present
directly by overt 2. All the acts
acts; performed
2. He does not would produce
perform all the the felony as a
acts of consequence
execution which (belief of
should produce accused as to
the felony; whether or not
3. He is not he had
stopped by his performed all
own acts of
spontaneous execution is
desistance; and immaterial);
3. But the felony
is not
produced; and
4. By reason of

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independent of
the will of the

Murder/Homicide/Parricide/Infanticide (MHPI):

With intent to kill, but no mortal wound is inflicted attempted.

With intent to kill, and mortal wound is inflicted but victim does not die frustrated.

The moment the victim dies, intent to kill is conclusively presumed consummated.
Robbery/ Theft (RPC, Arts. 293 and 309)

Both crimes are committed by the taking of the personal property of another and with the
intent to gain.

The difference is that in robbery, there is the use of force or violence.

So long as there is possession of the property, no matter how momentary it may be,
the crime is consummated.

In robbery by the use of force upon things, since the offender must enter the building to
commit the crime, he must be able to carry out of the building the thing taken to consummate
the crime.

In robbery with violence against or intimidation of persons, the crime is

consummated the moment the offender gets hold of the thing taken and/or is in a
position to dispose of it freely.

It does not matter how long the property was in the possession of the accused; it does not
matter whether the property was disposed or not; what is important is whether or not there
was asportacion or unlawful taking.


The crime of rape is consummated by mere penetration of the male organ no matter how slight
or superficial.

Note: R.A. 8353 (The Anti-Rape Law of 1997) provides that mere skin to skin contact between
the penis and the labia now consummates the crime of rape.

Instances where there is attempted rape:

- When the skirt of the victim has been lifted no matter what position;
- When the accused mounted on the body of the victim; and
- When there is epidermal touching of the genital organs of the accused and the victim.

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In attempted rape, there is the intent to have carnal knowledge or sexual intercourse. In acts of
lasciviousness there is none(RPC, Art 226-A as amended and Art. 336).

There is no crime of frustrated rape. The case of People v. Eria (G.R. No. 26298,
January 20, 1927) was an exception since the victim was only 3 years old.

BALEROS v. PEOPLE (2006): UST Med student pinned down by a man while pressing
a cloth on her face, is guilty of unjust vexation.

RECALDE v. PEOPLE (2015): Use of Tongue, finger consummates the crime of Rape
through Sexual Assault; Gravamen is the victims human dignity.


General Rule: Mere conspiracy or proposal to commit a felony is not punishable since they are
only preparatory acts.

Exception: In cases in which the law specially provides a penalty therefor.

Requisites of Conspiracy:

1. That two or more persons came to an agreement;

2. That the agreement pertains to the commission of a felony;and
3. That the execution of the felony was decided upon.

General Rule: When conspiracy is established, all who participated therein, irrespective of the
quantity or quality of his participation is liable equally, whether conspiracy is pre -planned or

Exception: Unless one or some of the conspirators committed some other crime which is not
part of the intended crime (People v. Valdez, G.R. No. L- 75390, March 25, 1988).

Exception to the Exception:When the act constitutes a single indivisible offense

- The crime committed is foreseeable to occur.

Doctrine of Implied Conspiracy - Conspiracy may be inferred if it is proven that two

or more persons aimed their acts towards the accomplishment of the same unlawful
object, each doing a part so that their acts although apparently independent were in
fact connected and cooperative, thus indicating a closeness of personal association
and a concurrence of sentiment.

There is unity of purpose and unity in the execution of the offense

Note: Mere knowledge, acquiescence to or agreement to cooperate, is not enough to

constitute one as party to conspiracy, absent any active par ticipation in the
commission of the crime, with a view to the furtherance of the common design and
purposeconspiracy transcends companionship.

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In determining whether there is an implied conspiracy, it must be based on: They

must be for a common criminal design, joint criminal interest, unity of criminal
purpose, or concerted action, geared towards the attainment of the felony .

Note: In conspiracy, direct proof of a previous agreement to commit a crime is not necessary. It
may be deduced from the mode and manner by which the offense was perpetrated, or inferred
from the acts of the accused themselves when such point to a joint purpose and design,
concerted action and community of interest (People v. Liad,G.R. No. 133815-17, March 22,

2016 Bar: Types of Conspiracy

1. Chain Conspiracy
2. Wheel Conspiracy.

Proposal to Commit a Felony - It is committed when the person who has decided to commit a
felony proposes its execution to some other person or persons.

Requisites of Proposal:

1.That a person has decided to commit a felony (Decision); and

2. That he proposes its executionto some other person or persons (Proposal).

There is no criminal proposal when:

The person who proposes is NOT determined to commit the felony.

There is no decided, concrete and formal proposal but a mere suggestion.

- Knowledge of the CRIMINAL DESIGN/AGREEMENT (Alam or
kasama sa nagplano, AND
- DIRECT PARTICIPATION (Kasama sa nagsagawa)

Note:Dapat may OVERT ACT in committing the crime. Dapat nasa

place of commission EXCEPT Mastermind.
WITHOUT Accomplice Accessory Principal
CONSPIRACY Note: In case of
doubt as to the
presence of
conspiracy, the culprit
is a mere accomplice.



Par. 1. Self-Defense

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Requisites: (URL)

1. Unlawful aggression (condition sine qua non);

- Must come from the person attacked by the accused
- No unlawful aggression when there was an agreement to fight(People v. Monteroso,
G.R. No. 28538, August 4, 1928).
- The challenge to fight must be accepted(People v. Del Pilar, C.A., 44 O.G. 596).
- But aggression which is ahead of a stipulated time and place is unlawful (Severino Justo
v. CA, 53 O.G. 4083).
- Not merely oral threats or threatening stance or posture;
- Insulting words addressed to the accused, no matter how objectionable that may have
been, without physical assault, could not constitute unlawful aggression(US v. Carrero,
G.R. No.3956, January 10, 1908).HOWEVER, a slap in the face is an unlawful
aggression. The reason is that the face represents a person and his dignity,
slapping it is a serious personal attack(People v. Sabio, G.R. No. L-23734,
April 27, 1967).

2. Reasonable necessity of the means employed

- It involves two elements, necessity for the course of action and necessity of the means
employed, both of which should be reasonable.
- This element should be interpreted liberally in favor of the law-abiding citizen.
- Perfect equality between the weapons used by the one defending himself and
that of the aggressor is not required, neither is the material commensurability
between the means of attack and defense. Rational equivalence is enough.

When Agression Ceases: When the aggressor retreats, the aggression ceases
(People v. Alconga and Bracamonte, G.R. No. L-162, April 30, 1947).

Exception: When retreat is made to take a more advantageous position to insure the success of
the attack begun, unlawful aggression continues .

3. Lack of Sufficient Provocation

- Sufficient provocation should not come from the person defending himself/accused, and
it must immediately precede the aggression.
- Defense of property should be coupled with danger to the person defending oneself; if
there is no danger to the person or the persons life or limb, defense of property cannot
be invoked.

Under Republic Act 9262, known as the Anti- Violence against Women and their Children Act of

Victim-survivors who are found by the courts to be suffering from Battered Woman Syndrome
do not incur any criminal or civil liability notwithstanding the absence of any of the elements for
justifying circumstances of self-defense under the RPC(Sec. 26). The law provides for an
additional justifying circumstance.

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Battered Woman Syndrome - It is a scientifically defined pattern of psychological and behavioral

symptoms found in women living in battering relationships as a result of cumulative abuse (RA,
9262, Sec 3[c]).

Cycle of violence has three phases: (TAT)

1. The Tension building phase;

2. The Acute battering incident; and
3. The Tranquil, loving (or at least non-violent) phase (People v. Genosa G.R. No. 135981,
January 15, 2004).

Par. 2. Defense of Relatives


1. Unlawful aggression;
2. Reasonable necessity of the means employed to prevent or repel it; and
3. In case the provocation was given by the person attacked, the one making
the defense had no part therein.

Relatives that can be defended: (SADBroSAC4)

Spouse (LEGITIMATE SPOUSE; Pending Annulment, Nullity, Separation de Facto);

Ascendants (Legitimate/Illegitimate);

Legitimate, natural or adopted Brothers and Sisters, or relatives by Affinity in the same
degrees (Brother-in-Law/Sisters-in-Law). Death of the spouse terminates the relationship
by affinity; and

Relatives by Consanguinity within the fourth (4th) civil degree.

Par. 3. Defense of Stranger

- A person defending his common-law spouse or adopted child will fall under this


1. Unlawful aggression;
2. Reasonable necessity of the means employed to prevent or repel it; and
3. The person defending was not induced by revenge, resentment or other evil motive.
Motive is relevant only in this kind of defense.

Par. 4. Avoidance of greater evil or injury

Requisites: (EIP)

1. That the Evil sought to be avoided actually exists;

2. That the Injury feared be greater than that done to avoid it; and

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3. There beno other Practical and less harmful means of preventing it.

It is only in this par. (4) that the person defending himself incurs civil liability, since
generally in this article there is no civil liability on the part of the accused. Such
liability is borne by the person benefited.

Greater evil must not be brought about by the negligence or imprudence or violation of law by
the actor.

The damage caused by the accused in the state of necessity contemplated here is deliberate,
while that in Par. 4 of Art. 12 is accidentally caused.

Par. 5. Fulfillment of duty or lawful exercise of right or office


1. That the accused acted in the performance of a duty or in the lawful exercise of a right
or office; and
2. That the injury caused or the offense committed be the necessary
consequence of the due performance of duty or the lawful exercise of such
right or office. (Please be mindful with this requisite. This may be asked in
relation to drug-related killings)
- In People v. Delima (G.R. No. 18660, December 22, 1922), the deceased who escaped
from prison while serving sentence was under the obligation to surrender, and had no
right, after evading the service of his sentence to commit assault and disobedience with
a weapon on his hand, which compelled the policeman to resort to such extreme means,
which although it proved to be fatal, was justified by the circumstances.
- The shooting by prisoner guards of escaping prisoners is always justified.
- A security guard who shot a thief who refused to surrender is not justified.
- The executor of death convicts at the Bilibid Prison cannot be liable for murder for the
executions performed by him because he was merely acting in lawful exercise of his

Par. 6.Obedience to an order issued for some lawful purpose


1. That an order has been issued by a superior;

2. That such order must be for some lawful purpose; and
3. That the means used by the subordinate to carry out said order is lawful.
- Par. 6 presupposes that what was obeyed by the accused was a lawful order; but if
the accused complied with an unlawful order under a mistake of fact, he should not
incur criminal liability.
- Subordinate is not liable for carrying out an illegal order if he is not awareof its illegality
and he is not negligent(Tabuena v. Sandiganbayan, G.R. No. 103501-03, February 17,

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Par. 1.Imbecility or Insanity

Imbecility - It exists when a person, while of advanced age, has a mental development
comparable to that of children between two and seven years of age.

Insanity - It exists when there is a complete deprivation of intelligence or freedom of the will.
Mere abnormality of mental faculties is not enough especially if the offender has not lost
consciousness of his acts.

- An insane person is not so exempt if it can be shown that he acted during a lucid interval.
But an imbecile is exempt in all cases from criminal liability
- Dementia Praecox is a form of psychosis where homicidal attack is common, because of
delusions that he is being interfered with sexually, or that his property is being taken.
During the period of excitement, such person has no control of his acts (People v .
Bonoan, G.R. No. L-45130, February 17, 1937).
Somnambulismor sleepwalking must be clearly proven to be considered as an exempting
circumstance under this Article (People v. Gimena, G.R. No. 33877, February 6, 1931).
- Feeblemindedness is not exempting but can be considered as mitigating (People v.
Formigones, G.R. No. L-3246, November 29, 1950).

Par. 2.& 3. Minority (Amended and superseded by R.A.9344)

JUVENILE JUSTICE AND WELFARE ACT OF 2006, R.A.9344 as amended by R.A.10630 (AN ACT

1. Determination of age. If 15 and below AT THE TIME OF THE COMMISSION no

criminal liability. He will undergo, INTERVENTION PROGRAM. If above 15 and
below 18 (16-17), if no discernment, INTERVENTION PROGRAM.
2. If there is discernment, DIVERSION PROGRAM.
If the penalty is NOT MORE THAN 6 years DSWD/Punong Barangay


If found guilty, AUTOMATIC SUSPENSION OF SENTENCE. If he reaches 18, the court

will determine if he will be DISCHARGED, SUSPENSION WILL BE EXTENDED (only
until 21 years old) or the SENTENCE WILL BE EXECUTTED.

Par. 4. Accident without fault or intention of causing it

Accident - It is an occurrence that happens outside the sway of our will, and although it comes
about through some act of our will, it lies beyond the bounds of humanly foreseeable

1. A person is performing a Lawful act;

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2. With Due care;

3. He causes injury to another by Mere accident; and

4. Without fault or intention of causing it.

Par. 5. A person who acts under the Compulsion of an Irresistible Force (CIF)

Elements: (PIT)

1. That the compulsion is by means of Physical force;

2. That the physical force must be Irresistible; and
3. That the physical force must come from a Third person.
- The force must be so irresistible as to reduce the actor to a mere instrument who acts
not only without will but against his will (People v. Loreno, G.R. No. L-54414, July 9,
- The person who used the force or created the fear is criminally and primarily civilly
liable, but the accused who performed the act involuntarily and under duress is still
secondarily liable (RPC, Art. 101).

Par. 6. Uncontrollable fear


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; and
2. The compulsion must be of such character as to leave no opportunity to
the accused for escape or self-defense in equal combat.

Par. 7. Insuperable cause

Insuperable cause - It is some motive which has lawfully, morally or physically prevented a
person to do what the law commands.
Elements: (RFI)

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

2. That a person Fails to perform such act; and
3. That his failure to perform such act was due to some lawful or
Insuperable cause.

Entrapment is NOT an absolutory cause. A buy-bust operation conducted in connection

with illegal drug-related offenses is a form of entrapment.


ORDINARY MITIGATING One period lower, can be offset by an Aggravating Circumstance

PRIVILEDGED MITIGATING One degree lower, cannot be offset by an Aggravating


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Par. 1.Incomplete justifying or exempting circumstances

- This applies when all the requisites necessary to justify the act or to exempt from
criminal liability are NOT attendant; provided that, majority of the requisites are present.
- Incomplete self-defense, defense of relatives, and defense of a stranger - unlawful
aggression must be present, it being an indispensable requisite. It is considered ordinary
mitigating circumstance if only unlawful aggression is present. When two of the three
requisities (i.e., unlawful aggression and any one of the other two), the case should be
considered a privileged mitigating circumstance referred to in Art. 69 of this Code .
- Incomplete justifying circumstance of avoidance of greater evil or injury if any of the
last two requisites is absent (i.e., injury feared be greater than that to avoid it or there be no
other practical and less harmful means of preventing it).
- Incomplete justifying circumstance of performance of duty in People v. Oanis, when
one of the two requisites under par. 5 of Art. 11 was present, Article 69 was applied.
Thus, when the justifying or exempting circumstance has two requisites only, it seems
that there is no ordinary mitigating circumstance in this case but a privileged mitigating

Par. 5. Vindication of grave offense


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 degrees; and
2. That the felony is committed in immediate vindication of such grave offense.
- Immediate allows for a lapse of time as long as the offender is still suffering from the
mental agony brought about by the offense to him.
- Grave offense includes any act that is offensive to the offender or his relatives and the
same need not be unlawful.
- The grave offense must be the proximate cause or proximate to the act of the offender.
Par. 6.Passion or obfuscation


- That there be an act, both unlawful and sufficient to produce such a condition of mind;
- That said act which produced the obfuscation was not far removed from the commission
of the crime by a considerable length of time, during which the perpetrator might
recover his normal equanimity; and
- The act causing such obfuscation was committed by the victim himself.


- To be mitigating, it is important to establish an act that is sufficient to produce a

condition of mind to commit a felony or a crime

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Par. 7.Surrender and confession of guilt

Two mitigating circumstances:

- Voluntary surrender to a person in authority or his agents; and

- Voluntary confession of guilt before the court prior to the presentation of evidence for
the prosecution.

If both are present, there will be two independent ordinary mitigating


Requisites of voluntary surrender: (NSV)

1. That the offender had Not been actually arrested;

2. That the offender Surrendered himself to a person in authority or to the latters agent;
3. That the surrender was Voluntary(Estacio v. Sandiganbayan, G.R. No. 75362, March 6,


- For voluntary surrender to be appreciated, the same must be spontaneous in such a

manner that it shows the interest of the accused to surrender unconditionally to the
authorities, either because he acknowledges guilt or because he wishes to save
them the trouble and expenses necessarily incurred in his search and
capture(People v. Gervacio, G.R. No. L-21965, August 30, 1968).

Cases NOT Constituting Voluntary Surrender:

- The accused surrendered only after warrant of arrest was served upon him(People v.
Roldan, G.R. No. L-22030, May 28, 1968);
- Where the accused was actually arrested by his own admission or that he yielded
because of the warrant of arrest, although the police blotter used the word
surrender(People v. Velez, G.R. No. L-30038, July 18, 1974);
- Where the accused only went to the police station to report that his wife was stabbed by
another person and to seek protection as he feared that the same assailant would also
stab him(People v. Trigo, G.R. No. 74531, November 30, 1962).

Note: The fact that the order of arrest has already been issued is no bar in the
consideration of the circumstance because the law does not require that surrender
be prior the arrest (Rivera v. CA, G.R. No. 125867, May 31, 2000).

Instances of Voluntary Surrender:

- It must be spontaneous.
- Intent of the accused to submit himself unconditionally to the authorities must be either
He acknowledges his guilt; or

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He wishes to save them the trouble and expense necessarily incurred in

his search and capture.
- The conduct of the accused determines the spontaneity of the arrest.
- Intention to surrender without actually surrendering is not mitigating.
- Not mitigating when defendant was in fact arrested.
- It is not required that, to be appreciated, it be prior to the issuance of a warrant of
arrest(People v. Turalba, G.R. No. L-29118, February 28, 1974).
- Surrender of weapons cannot be equated with voluntary surrender.
Requisites of voluntary plea of guilty: (SOPO)

- That the offender Spontaneously confessed his guilt;

- That the confession of guilt was made in Open court, that is, before the competent
court that is to try the case;
- That the confession of guilt was made Prior to the presentation of evidence for the
prosecution; and
- That the confession of guilt was to the Offense charged in the information.

- Plea of guilty is not mitigating in culpable felonies and in crimes punished by

special laws.
- Where in the original information the accused pleaded not guilty, but he pleaded guilty
to the amended information, it is considered a voluntary plea of guilty and considered a
mitigating circumstance(People v. Ortiz, G.R. No. L-19585, Nov. 29, 1965).
- The plea of guilty must be made at the first opportunity.Thus, plea of guilty in the CFI
(now RTC) in a case appealed from MTC is NOT mitigating(People v. Herminio, G.R. No.
45466, June 30, 1937).

Par. 8.Physical defect of offender

- When the offender is deaf and dumb, blind or otherwise suffering from some physical
defect, restricting his means of action, defense or communication with others.
- The physical defect must relate to the offense committed. In other words, the
defect or illness must be a contributing factor to the commission of the crime. Without
such relation, the defect or illness should not be considered( e.g. blindness does not
mitigate estafa.)

Par. 9.Illness of the offender


- That the illness of the offender must diminish the exercise of his will-power; and
- That such illness should not deprive the offender of consciousness of his acts.


- Includes illness of the mind not amounting to insanity.

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- Kleptomania, feeblemindedness, mistaken belief that killing witches was for public good
and illness of nerves or moral faculty may be considered as m itigating circumstances
under this subparagraph.

Par. 10. Similar or Analogous Circumstances


- Impulse of jealousy, similar to passion and obfuscation(People v. Ubengen, C.A., 36

O.G. 763);
- Manifestations of Battered Wife Syndrome, analogous to an illness that diminishes the
exercise of will power(People v. Genosa, G.R. No. 135981, January 14, 2004);
- Over 60 years old with failing sight, similar to over 70 years of age under par. 2(People
v. Reantillo and Ruiz, C.A, G.R. No. 301, July 27, 1938);
- The act of the accused leading the law enforcers to the place where he buried the
instruments he used to commit the crime is similar to voluntary surrender;
- Extreme poverty, as similar to a state of necessity, which may apply to crimes against
property but not of violence, such as murder(People v. Agustin,G.R. No. L-18368, March
31, 1966);
- Outraged feeling of unpaid creditor, as akin to vindication or obfuscation(People v.
Merenillo, C.A., 36 O.G. 2283);
- Appeal to the esprit de corps of the accused, as analogous to passion;
- Wartime state of confusion resulting in illegal possession of firearm after the liberation,
as being similar to lack of intent to commit so grave a wrong;
- Voluntary return of funds malversed by the accused, as equivalent to voluntary
surrender; and
- Testifying for the prosecution without being discharged from the information, as being
like a plea of guilty .

Circumstances which are neither exempting nor mitigating:

- Mistake in the blow or aberratio ictus;

- Mistake in the identity;
- Entrapment;
- Accused is over 18 years of age; and
- Performance of righteous action (REYES, Book One, supra at 327).

Specific Mitigating Circumstances

- Illegal detention (voluntary release within 3 days; without attaining purpose; before
criminal action);
- Adultery (abandonment of spouse); and
- Infanticide/abortion (intent to conceal dishonor of mother).

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Article 14: Rules on aggravating circumstances

Aggravating Circumstances - Those which, if attendant in the commission of the crime, serve to
have the penalty imposed in its maximum period provided by law for the offense or change the
nature of the crime.
Aggravating circumstances shall not be appreciated if:

- They constitute a crime specially punishable by law; or

- They are included by the law in defining a crime and prescribing a penalty therefore (Id.
at 135).

Par. 3.That the act be committed:

With insult or in disregard of the respect due the offended party on account of his
rank, age, or
sex; or that it be committed in the dwelling of the offended party, if the latter has
not given provocation.
- The four circumstances enumerated can be considered singly or together.
- If all the four circumstances are present, they have the weight of one aggravating
circumstance only.

Dwelling - It must be a building or structure, exclusively used for rest and comfort. A
combination of a house and a store or a market stall where the victim slept is not a
dwelling(People v. Magnaye, G.R. No. L-3510, May 30, 1951). Dwelling includes dependencies,
the foot of the staircase and enclosure under the house(US v. Tapan, G.R. No. 6504 September
11, 1911; People v. Alcala, G.R. No. 18988, December 29, 1922).

- Dwelling does not mean the permanent residence or domicile of the offended party or
that he must be the owner thereof. He must, however, be actually living or dwelling
therein even for a temporary duration or purpose(People v. Parazo, G.R. No. 121176,
May 14, 1997).
- 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
abode, although the assailant might have devised means to perpetrate the assault from
the outside.
- Even if the killing took place outside the dwelling, it is aggravating provided that the
commission of the crime began in the dwelling.
Dwelling is NOT aggravating in the following cases:

- When both the offender and the offended party are occupants of the same
house(People v. Caliso, G.R. No. 37271, July 1, 1933);

Exception: In case of adultery in the conjugal dwelling, the same is aggravating.

However, if the paramour also dwells in the conjugal dwelling, the applicable

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aggravating circumstance is abuse of confidence(US v. Ibaez, G.R. No. 10672, October

26, 1915).

Par. 6.That the crime be committed (1) In the nighttime; (2) In an uninhabited
place; or (3) By a band, whenever such circumstance may facilitate the commission
of the offense.

- There are three aggravating circumstances in this paragraph.

- When present in the same case and their element are distinctly palpable and can subsist
independently, they shall be considered separately(People v. Santos, G.R. No. L-4189,
May 21, 1952).
- Not applicable when the mitigating circumstances of passion or obfuscation or sufficient
provocation are present in the commission of the crime.

When nighttime, uninhabited place or band aggravating:

- When it facilitated the commission of the crime (objective);

- When especially sought for by the offender to insure the commission of the crime or for
the purpose of impunity (subjective); or
- When the offender took advantage thereof for the purpose of impunity (subjective).

1. Nighttime

- It is necessary that the commission of the crime began and was completed at
nighttime(US v. Dowdell, G.R. No. 4191, July 28, 1908).

- When the place of the crime is illuminated by light, nighttime is not

aggravating (People v. Moral, G.R No. L- 31139, October 12, 1989). llumination may
come from moon, torch, or gasera. HOWEVER, in People v. Berbal, (G. R. No.
71527, August 10, 1989), the Court held that the fact that matchstick was used does not
negate the presence of this aggravating circumstance. Also, in People v. Soriano(G.R.
No. L- 32244, June 24, 1983), the Court rejected the contention that nocturnity cannot
be appreciated because the flashlights were used.

- It cannot be applied to cases involving an accidental meeting, a chance encounter

or spurs of the moment.
- The circumstance of nocturnity, although not specially sought for, shall aggravate
criminal liability if it facilitated the commission of the offense or the offender
took advantage of the same to commit the crime (People v. Luchico, No. 26170,
December 6, 1926).
- It is not considered as an aggravating circumstance when the crime began at daytime.
The commission of the crime should begin and end at nighttime(People v. Luchico,
General Rule: Nighttime is absorbed in treachery.

Exception: Where both the treacherous mode of attack and nocturnity were
deliberately decided upon in the same case, they can be considered separately if
such circumstances have different factual bases. In People v. Berdida(G.R. No. L-20183.

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June 30, 1966), the Supreme Court ruled that inasmuch as the treachery consisted in the fact
that the victims' hands were tied at the time they were beaten, the circumstance of nighttime is
not absorbed in treachery, but can be perceived distinctly therefrom, since the treachery rests
upon an independent factual basis. A special case therefore is present to which the rule that
nighttime is absorbed in treachery does not apply.

2. Uninhabited Place

- The determining factor for the existence of this circumstance is the reasonable
possibility of the victim receiving or securing aid from third persons.
- This should not be considered when the place where the crime was committed could be
seen and the voice of the deceased could be heard from a nearby house(People v.
Santos, G.R. No. L- 38512, November 16, 1979).
- It must appear that the solitude of the place where the crime was committed was
sought in order to better attain the purpose(No. 26170, December 6, 1926). It cannot
be applied in cases of chance encounters (People v. Arpa, G.R. No. L-26789, April 25,
3. Band

- The four (4) armed persons contemplated in this circumstance must all be principals by
direct participation who acted together in the execution of the acts constituting the
crime (RPC, Art. 17). In this case, conspiracy is presumed.

- If conspiracy is proved, this aggravating circumstance of cuadrilla can still be

appreciated because conspicary is not an aggravating circumstance, but a means to
commit a crime. THUS, one cannot absorb the other(BOADO, supra at 162).
- If one of them was a principal by inducement, the aggravating circumstance of having
acted with the aid of armed men may be considered.
- It absorbs the aggravating circumstances of abuse of superior strength and use of
firearms (except when the firearm has no license or there is a lack of license to carry the
firearm) if they are present in the commission of the crime(People v. Escabarte, G.R. No.
42964, March 14, 1988).
- This aggravating circumstance is not applicable in crimes against chastity, but is
considered in crimes against property, crimes against persons, illegal detention, and
treason(People v. Corpus, C.A. 43 O.G. 2249; People v. Laoto, G.R. No. 29530,
December 8, 1908).
- Arm may even refer to stone(People v. Manlolo, G.R. No. 40778, January 26, 1989).
- When the armed men met up casually with others, and a crime was thereafter
committed, it cannot be considered as an aggravating circumstance.
Par. 13. That the act be committed with evident premeditation


The prosecution must prove: (TADS)

- The Time when the offender determined to commit the crime;

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- An Act manifestly indicating that the culprit has clung to his determination;
- The Date and time when the crime was committed, to compute the lapse of time; and
- Sufficient lapse of time between the determination and execution of the crime, to allow
him to reflect upon the consequences of his act and to allow his conscience to overcome
the resolution of his will(People v. Lagarto, G.R. No. 65883, May 6, 1991).

Essence: 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 (People v. Abadies, GR No. 135975, August 14, 2002).


- There must be sufficient time between the outward acts and the actual commission of
the crime.
- Evident premeditation is presumed to exist when conspiracy is directly
established (People v. Sapigao, et. al., GR No. 144975, June 18, 2003).
- In order for evident premeditation to exist, the person premeditated against must
be the same victim of the crime. It is not necessary that the victim is identified. It is
sufficient that the victim is determined so long as he belongs to a group or class that
may be premeditated against (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 premeditation, because whoever is killed
by him is contemplated in his premeditation
- It is a general rule that evident premeditation is not applicable in error in personae or
aberratio ictus, except if there was a general plan to kill anyone to commit the crime
premeditated(People v. Mabug-at, G.R. No. 25459, August 10, 1926).
- Evident premeditation is compatible with the mitigating circumstance of immediate
vindication of a relative for a grave offense.

Par. 15 Abuse of Superior Strength & Means be employed to weaken the Defense.

No advantage of superior strength in the following:

- One who attacks another with passion and obfuscation does not take advantage of his
superior strength;
- When a quarrel arose unexpectedly and the fatal blow was struck at a time when the
aggressor and his victim were engaged against each other as man to man.


- For abuse of superior strength, the test is the relative strength of the offender
and his victim, whether or not he took advantage of his greater strength.
- In abuse of superior strength, what should be considered is not that there were three,
four or more assailants as against one victim, but whether the aggressors took
advantage of their combined strength in order to consummate the
offense(People v. Cabangcala, G.R. No. 135065, August 8, 2001).
- Abuse of superior strength is inherent in the crime of parricide where the husband kills
the wife(People v. Galapia, G.R. Nos. L-39303-05, August 1, 1978).

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- Abuse of superior strength is also present when the offender uses a weapon which is
out of proportion to the defense available to the offended party (People v. Padilla, G.R.
No. 75508, June 10, 1994).
- When the victim was alternately attacked, there is no abuse of superior strength(People
v. Datun, G.R. No. 118080, May 7, 1997).

Examples of means employed to weaken defense:

- Where one, struggling with another, suddenly throws a cloak over the head of his
opponent and while in this situation he wounds or kills him(US v. Devela, G.R. No. 1542,
April 9, 1904);
- One who, while fighting with another, suddenly casts sand or dirt upon the latter eyes
and then wounds or kills him(People v. Siaotong, G.R. No. L-9242, March 29, 1957).
- This circumstance is applicable only to crimes against persons, and sometimes against
person and property, such as robbery with physical injuries or homicide.

Par. 16.That the act be committed with treachery (alevosia)

Treachery (alevosia) -It is present when the offender commits any of the crimes against
persons, employing means, methods or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from the defense which the
offended party might make(People v. Lacao, Sr., G.R. No. 95320, September 4, 1991).

Requisites of treachery:

- That at the time of the attack, the victim was not in a position to defend himself;
- That the offender consciously adopted the particular means, method or form of
attack employed by him.

The test of treachery is not only the relative position of the parties but, more specifically,
whether or not the victim was forewarned or afforded the opportunity to make a
defense or to ward off the attack.

Rules regarding treachery:

- Applicable only to crimes against persons.

- Means, methods or forms need not insure the accomplishment of crime.
- The mode of attack must be consciously adopted.

Treachery is taken into account even if the crime against the person is complexed
with another felony involving a different classification in the Code (People v. Abdul,
G.R. No. 128074, July 13, 1999). Note: The penalty under Art. 48 is already in the

The suddenness of attack does not, of itself, suffice to support a finding of alevosia,
even if the purpose was to kill, so long as the decision was made all of a sudden and the
victims helpless position was accidental(People v. Real, 10 C.A. Rep. 668).

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Treachery must be appreciated in the killing of a child even if the manner of attack is not
shown(People v. Rebucan, G.R. No. 182551, July 27, 2011).

Treachery is appreciated when the accused employed means to render the victim defenseless
before the commission of the crime, or to eliminate the risk of defense on the part of the
offended party.

Important questions to answer:

Was the attack sudden and unexpected?

Did the offended party have opportunity to defend himself?
Was the mode of the attack deliberately or consciously adopted by the accused to insure
execution without risk to himself?
If the answers to all these questions is YES, then treachery is present.

When must treachery be present:

- When the aggression is continuous, treachery must be present in the BEGINNING of the
assault (People v. Manalad, GR No. 128593, August 14, 2002).
- When the assault was not continuous, in that there was interruption, it is sufficient that
treachery was present at the moment the fatal blow was given (US v. Baluyot, 40 Phil
385, 1919).
- Hence, even though in the inception of the aggression which resulted to the death of
the deceased, treachery was not present, if there was a break in the continuity of
the aggression and at the time of the fatal wound was inflicted on the
deceased he was defenseless, the circumstance of treachery must be taken
into account.

Rules when the Attack is Frontal:

- If the attack is frontal, there is no treachery as the mode of attack does not include any
risk to the offender arising from the defense which the party attacked may make. But,
there is treachery when the attack, although frontal, is sudden and
unexpected and perpetrated in such a way to especially insure its execution
without any risk to the offender.
- 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
(People v. Alfon,G. R. No. 126028 March 14, 2003).

Alevosia should be considered even if:

- The victim was not predetermined but there was a generic intent to treacherously kill
any first two persons belonging to a class (The same rule obtains for evident
- There was aberratio ictus and the bullet hit a person different from that intended.
- There was error in personae, hence the victim was not the one intended by the accused.

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Reason for the rule: When there is treachery, it is impossible for either the intended
victim or the actual victim to defend himself against the aggression.

Treachery absorbs (CAN-ACE)

1. Craft;

2. Abuse of superior strength;

3. Nighttime;

4. Aid of armed men;

5. Cuadrilla (band); and

6. Employing means to weaken the defense.

Treachery cannot co-exist with passion or obfuscation (People v. Pansensoy, GR No. 140634,
Sept. 12, 2002).

The presence of treachery, though, should not result in qualifying the offense to murder from
the Special Complex Crime of Robbery with Homicide, for the correct rules is that when it
obtains in the special complex crime, such treachery is to be regarded as a generic
aggravating circumstance, robbery with homicide, being a case of composite crime with its
own definition and special penalty in the Revised Penal Code(People v. Cando, G.R. No. 128114,
October 25, 2000).

Par. 17.That means be employed or circumstances brought about which add

ignominy to the natural effects of the act.

Ignominy - It is a circumstance pertaining to the moral order, which adds disgrace and obloquy
to the material injury caused by the crime(People v. Acaya, G.R. No. L-72998, July 29, 1988).

Meaning of which add ignominy to the natural effects thereof

The means employed or the circumstances brought about must tend to make the effects of the
crime more humiliating to victim or to put the offended party to shame, or add to his moral
suffering (People v. Carmina, G.R. No. 81404, January 28, 1991).

Injured party must not be dead when the act causing ignominy was inflicted upon
him. It is required that the offense be committed in a manner that tends to make its
effects more humiliating to the victim, that is, add to his moral suffering(People v.
Carmina, G.R. No. 81404, January 28, 1991).

Applicable to:

Crimes against chastity;

Less serious physical injuries;

Light or grave coercion; and


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Par. 18.That the crime be committed after an unlawful entry.

Unlawful entry - It is when an entrance (and not for escape) is effected by a way not intended
for the purpose.
Example: Entering through a window

Unlawful entry is inherent in:

1. Robbery with the use of force upon things;and

2. Trespass to dwelling.

Note: When the accused gained access to the dwelling by climbing through the window and
once inside, murdered certain persons in the dwelling, there were two aggravating
circumstances which attended the commission of the crimesdwelling and unlawful entry.
Thus, dwelling and unlawful entry are taken separately(People v. Bondoy, G.R. No. 79089, May
18, 1993).


Paragraph One: Special Aggravating Circumstance

- INHERENT in Malversation and Falsification by Public Officer.

Sex INHERENT in Parricide, Rape, Abduction and Seduction

- ABSROBED by Treachery

Dwelling INHERENT in Robbery with force upon things and Trespass to dwelling.

Abuse of Confidence INHERENT in Malversation, Qualified Theft, Estafa by Conversion or

Appropriation and Qualified Seduction.

Band APPLIES to crimes against property, persons, illegal detention, treason and Robbery
with Homicide.

- ABSORBS superior strength and Use of firearms

- INHERENT in Brigandage.

Armed Men ABSORBED by Band

Note: When another aggravating circumstance qualifies the crime, OTHERS shall be
considered GENERIC.

Fire, Explosion, Derailment of Locomotive PART of Arson, Damages and Obstruction to means
of communication

Reward/Promise ABSROBS Evident Premeditation

Evident Premeditation INHERENT in Robbery

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Means to weaken the defense only to crimes against persons and property
- ABSROBED by Treachery

Fraud INHERENT in Estafa and Falsification

Treachery, Evident Premeditation, Abuse of Superior Strength INHERENT in Treason

Ignominy APPLIES to crimes against chastity/Rape.