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REVISED PENAL CODE OF THE PHILIPPINES whether you like it or not, the law on penalties is
ACT NO. 3815 part and parcel of the Revised Penal Code.
AN ACT REVISING THE PENAL CODE AND Q: What are the sources of criminal law?
OTHER PENAL LAWS A: There are only two known sources of criminal
(DECEMBER 8, 1930) law:
Preliminary Article – This law shall be known Revised Penal Code (Act 3815), as
as “The Revised Penal Code”. amended; and
Special Laws – (Anti-graft;
Dangerous Drugs Act , BP 22, etc.)
BOOK ONE
But actually, if you analyze it, there is only
GENERAL PROVISIONS REGARDING THE one source, the law itself because the Revised
DATE OF ENFORCEMENT AND APPLICATION Penal Code is the general law. But definitely,
OF THE PROVISIONS OF THIS CODE, AND common sense would tell us that not all crimes in
REGARDING THE OFFENSES, THE PERSONS the Philippines are found in the Revised Penal
LIABLE AND THE PENALTIES Code. There are crimes that are found in various
special laws.
Preliminary Title
DATE OF EFFECTIVENESS AND APPLICATION Q: Why is it that there is only one source of
OF THE PROVISIONS OF THIS CODE criminal law, because in the final analysis, there is
only one source – the law itself?
A: You go back to nullum crimen, nulla poena
ARTICLE 1. Time when Act takes effect – This sine lege. There is no crime if there is no law that
Code shall take effect on the first day of penalizes an act or omission as a crime.
January, nineteen hundred and thirty two.
(January 1, 1932) Q: Is there such a thing as a common law crime?
A: There is NO such thing as a common law crime
Criminal Law is defined simply as that because common law is based on customs and
branch or division in the study of law which defines tradition. There is no such thing as crimes by
crimes, treats of their nature, and provides for tradition in the Philippines. Tradition or custom
their punishment. itself cannot create a crime, but the law itself must
provide and penalize an act as a crime.
It defines crimes:
We are familiar with the Criminal Law Q: Is the Constitution a source of criminal law?
axiom nullum crimen, nulla poena sine lege, A: NO, because it does not define “crime”, nor
that is there is no crime where there is no law provide for a penalty. You still have to hear of an
punishing an act or omission as a crime. It tells us information filed in court for the violation of the
what is punishable and what is not punishable. Constitution. The Constitution is the source of
many rights of an accused, but you cannot find
Treats of their nature: any crime defined and penalized in the
Crimes belong to different classes. In Book Constitution. So, theoretically, the Constitution is
II alone, crimes are divided or classified into 13 not a source of criminal law. The Constitution is
classifications – from Crimes Against National merely a source of rights.
Security and the Law of Nations, to Quasi-
Offenses, Crimes Against Honor, etc. CHARACTERISTICS OF CRIMINAL LAW:
And there are many classifications of 1.) General;
penalties, like the consummated, attempted and 2.) Territorial;
frustrated, the grave, less grave and the light. 3.) Prospective
These are what you call the nature of the crimes.
We are concerned not only of crimes under Generality:
the Penal Code, but this include those acts Philippine criminal laws are binding on all
punishable under special laws. So, you must persons who live or sojourn in Philippine territory –
understand the nature of each. Each one has its when one commits a crime in the Philippines,
own special rules to be followed. whether he is a resident citizen, alien, resident
alien, a transient, or a tourist, he is subject to
Provides for their penalty: prosecution before Philippine courts. That is what
One of the weaknesses of bar candidates is you mean by the general character of criminal law.
the law on penalties. They are afraid of
computation. But you cannot avoid this because
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Q: Are there exceptions? Are there people who are
in the Philippines who commit a criminal act, but ARTICLE 14, CIVIL CODE: Penal laws and those
are immune? of public security and safety shall be
A: By way of exception, YES. There are two: obligatory upon all who live and sojourn in
Philippine territory, subject to the principles
(1) Those who are exempt by virtue of the of public international law and to treaty
principle of Public International Law stipulations.
BRIEF HISTORY OF THE REVISED PENAL In other words, there has been several
CODE attempts to amend or replace the RPC for the past
71 years. It has passed the test of time; it is a
The Revised Penal Code originated from very durable law.
the old Spanish Penal Code of 1887 which took
effect in July 14, 1887. And that was the prevailing
law up to the coming of the Americans .The THEORIES UNDERLYING THE REVISED
Americans did not touch the Penal Code and the PENAL CODE
Civil Code. They introduced laws especially on
criminal procedure, but the substantive law Every country in the world has its system
remained the same. of penology. Every country has its own theory of
what is a crime. How did it start? It depends upon
However, sometime in 1914, there was an the orientation of that country. But it is admitted
attempt by the government to change the old that in criminal jurisprudence anywhere in the
Spanish Penal Code. And the government world, there are two basic schools of thought or
commissioned a Committee, chaired by Rafael del theories underlying Criminal Law.
Pan, to draft a new law. That Committee came out
with a proposed law to replace the old Penal Code. ☻ THE CLASSICAL THEORY
The proposed law was called the Proposed
Correctional Code of del Pan. However, the draft This is the older one. It is also called the
was never acted upon by the Philippine Traditional Theory because it is the one that is
Legislature. older that the positivist Theory, which is a more
modern thought. What we should remember here
About ten years later, the government are the basic principles underlying the Classical
created another Committee which was given Theory. What to Classicists advocate? What do
instructions to revise the old Penal Code. The they say about crimes, about criminals?
Committee was chaired by Anacleto Diaz, with the
following members: The Classicist’s Theory: Man is a rational
being. If he is a rational being, he can distinguish
Quintin Paredes right from wrong. If he commits a crime, such as
Guillermo Guevarra murder, he assumes he knows that he is wrong.
Alex Reyes Since he knew that it was wrong, he must prepare
Mariano de Joya himself for the consequences of what he did. That
is the theory of the Classicists. And crimes vary.
The Committee came out with their draft There is a serious one; there is the not-so-serious
and the Philippine Legislature passed it into law on one, and there are slight ones.
December 8, 1930 and became effective on
January 1, 1932. It came to be known as Act There should be a mechanical proportion
3815, or the Revised Penal Code. So, the Revised between the crime and the penalty. That is why
Penal Code has been effective for 71 years the penalty in the RPC on slight physical injuries is
already. It has undergone several amendments, not the same penalty as in murder. Otherwise,
but the basic structure of the law is the same. there must be a disproportion. If you punish
murder with death and punish also physical
During the late 1940’s, there was an injuries with death, there is a disproportion.
attempt to redraft the Revised Penal Code (RPC).
The committee charged come out with the
proposed Code of Crimes which, however, was not ☻ THE POSITIVIST THEORY
passed by Congress. And in the late 1970’s , the
UP Law Center came out with another draft which The Positivists’ advocate that we cannot
was also called the Code of Crimes. It was simply consider a crime as permanently governed
submitted to the Batasang Pambansa but to no or continuously governed by laws. Meaning, we
avail. have to take into consideration the environment,
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the social conditioning of persons. And therefore against national securities and the
it is wrong to simply fix a predetermined penalty law of nations, defined in Title One of
for a crime, because there are so many factors to Book Two of this Code.
consider. At least, the basic difference between
the two theories is on their emphasis. The phrase, “except as provided in treaties
or laws of preferential application”, these are the
Difference: The Classical Theory gives so called Exceptions to the General Characteristics
more emphasis upon the ACT committed rather of Criminal Law. Meaning, the RPC is binding on all
than the actor. Whereas the Positivist Theory who live and sojourn in the Philippines, except
gives more emphasis on the ACTOR rather than people who are not covered by the RPC due to
the act. There is a focus of attention on the DOER treaty stipulations, because of laws of preferential
rather than on what he did. The focus on Classical application.
Theory is on WHAT HE DID rather than the actor.
Q: What are these laws of preferential application?
Q: Upon which of these two schools of thought is A: These are laws which are enacted to put into
the RPC based? effect the principles of public international law
A: The RPC is almost 80% reproduction of the granting diplomatic immunity to sovereign heads
Penal Code of Spain. Since the Spanish Penal of state, ambassadors, ministers plenipotentiary,
Code is based on the Classical Theory, necessarily etc. who are accorded diplomatic status from the
our RPC is based on the Classical Theory of laws of another country.
Criminal Law. There were certain changes
introduced by the RPC. Certain Positivist Meaning, with the exceptions of ambassadors,
provisions were inserted. The framers of the RPC heads of states, everyone who commits a crime
had the complete authority to throw away the within the Philippine territory is answerable under
Spanish Penal Code. But they were cautious, they the RPC.
were not prepared. They came basically with the
Spanish Penal Code, revised. So, they still Q: What does “Philippine Territory” cover?
adhered to the structure of the Spanish Penal A: The first paragraph of the RPC in Article 2
Code. That is why our RPC is still with the expresses the Territorial Principle: “Philippine
Classical Theory. territory” comprises the Philippine Archipelago, its
atmosphere, the space above it, subject to the
aviation rights of other countries.
So, paragraph 1 refers to a ship already Q: Where will the crime be tried? Suppose the
outside of the Philippines would say, “We should try is here in the
Philippine territory. If the problem says that the Philippines because the crime took place on board
ship is in the middle of the Pacific Ocean, does a Philippine ship or airplane.” Is that correct?
Philippine law apply? YES. Why? Because the crime A: YES, based on Article 2(1).
was committed on board a Philippine vessel. Even
if it is outside of Philippine territory because it falls But suppose Japan would say, “No, the crime
under the exception. This is one of the instances is triable by our
when the RPC may be given extraterritorial effect. courts because it was committed in Japanese
territory. That is also correct. How do you resolve
The same thing with airplanes. The plane is that issue. Both sides have legal basis.
flying in the middle of the atmosphere over the
Pacific Ocean, between the United States and the That kind of problem has been in existence for
Philippines. If the crime is committed aboard that hundreds of years
plane, the crime is triable in the Philippines. That now. That is why it gave rise to two sets of rules:
is an exception also.
THE ENGLISH RULE
We have no problem if the crime is committed
on board a
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This holds the view that when a crime is The second exception applies also to
committed on board a foreign vessel while that government bonds, treasury warrants,
vessel is in the territory of another country, the sweepstakes tickets, etc.
crime shall be tried under the law of the territory
where it is committed. EXAMPLE: You are responsible for counterfeiting
Philippine money abroad. Every week you fly to
Except when the crime is minor, the Philippines, and then you are caught. You say
something which affects or involves only the you cannot be charged under Philippine laws
internal management of the vessels, in which case, because you say you counterfeited currency, but
it would be tried in the country under whose flag not in Philippine territory. That will not prosper!
the vessel navigates or where it is registered. You can be arrested as if you committed the crime
here. That constitutes economic sabotage, so we
can try the crime in our courts as if the crime was
THE FRENCH RULE committed in Philippine territory.
It came out with an opposite view. The 3.) Should be liable for acts connected
French believe that if a crime is committed on only by introduction into these Islands
board a foreign vessel while the same is anchored of the obligations and securities
in another country, the crime should be tried not mentioned in the preceding number.
in that country, but in the home state of the
vessel. The third exception is related to the
second. You may not be the forger or
Except if it affects the peace, security and counterfeiter, but you are the importer into the
safety of the territory where the crime was Philippines of these forged or counterfeited
committed, in which case it should be tried here. currencies and securities. So, you are liable for the
introduction of the same in the Philippines.
So, the only difference is that the English
Rule makes the territorial principle of criminal law 4.) While being public officers or
as the general rule and the extraterritorial employees, should commit an offense
principle as the exception, whereas the French in the exercise of their functions.
Rule holds the opposite view. It is actually a set of
inverse rules- because of the fact that what the This applies more particularly to those in
general rule is there is an exception, which is the the foreign service. Because the offender here is a
general rule in the other. It is actually the same public officer who commits a crime in the exercise
dog with the collar at different ends, depending of his function. For example, officers of the
upon who put it. Philippine Embassy and Consulate malversed
government funds of the embassy.
Q: Which rule is followed in the Philippines?
A: According to the old case of US vs. Bull (15 Q: Does it mean that every crime committed
Phil. 14), the Supreme Court said that we adhere abroad by these officers can be tried here?
to the English Rule. A: NO, only those committed in the exercise of
their functions. Meaning, the acts were related
However, based on public international to their jobs – where the element of being a public
law, these vessels should be MERCHANT VESSELS. officer is an essential ingredient. If you commit an
This is not applicable to warships because warships offense which is purely private, and it has nothing
are considered extensions of the territory of the to do with your being a public officer, it is not
mother state wherever it may be. covered. The crimes here are those under the Title
of Crimes Against Public Office - malversation,
EXAMPLE: A ship of an enemy is in the Philippine bribery or crimes committed under the Anti-Graft
waters, and a crime is committed. The English Act.
Rule cannot be applied. The navy vessel of a
country is not subject to the laws of a foreign 5.) Should commit any of the crimes
sovereign. against national security and the law
of nations defined in Title One of Book
Two of the Code.
2) Should forge or counterfeit any coin or
currency note of the Philippine Islands Example of a Crime Against National
or obligations and securities issued by Security: treason, espionage. A Filipino citizen,
the Government of the Philippine during the war, commits an act of treason while he
Islands. is abroad. After the war, he goes back to the
Philippines. He can be arrested for that crime even
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if the crime was not committed here because that 2. THE ACT OR OMISSION MUST BE
is against the national security of the state. PUNISHABLE BY LAW OR THE RPC
3. THERE IS DECEIT (dolo) OR FAULT
Example of Crimes Against the Laws of (culpa)
Nations: piracy, mutiny. A group of pirates
committed piracy in Indonesia. That is clearly
outside Philippine territory. But the pirates are
apprehended in Philippine waters. They can be 1. ACTS OR OMISSIONS
charged under Philippine law. They cannot say the
act of piracy was committed beyond Philippine Q: Define an “act”
territory, that they committed it in Indonesia. A: An act is a physical movement, a physical
Piracy is a crime against the laws of nations and activity of a human body which tends to influence
the offenders can be apprehended and tried under the outside world.
the law of the country where they are caught. Practically, 90% of all felonies are done
through physical act. How do you kill? By shooting
or stabbing. There should be some movement of
the muscles. How about oral defamation? There is
TITLE ONE still in this the movement of your tongue; the
muscles of your throat are working when you utter
FELONIES & CIRCUMSTANCES WHICH AFFECT defamatory words. So, you cannot kill somebody
CRIMINAL LIABILITY by simply sitting on a bench and stare at
somebody. It’s impossible even with dagger looks!
CHAPTER ONE
FELONIES Q: Define “omission”
A: This is the opposite. Omission is defined as
inaction. It is the exact opposite of action.
ARTICLE 3. Definitions – Acts or omissions
punishable by law are felonies (delitos). In a felony by act, you commit an act
Felonies are committed not only by which the law says you should not commit. In
means of deceit (dolo) but also by means of omission, it is the other way around. It is the
fault (culpa). failure to do a positive duty which the law
There is deceit when the act is commands to be done. So, to say that there is no
performed with deliberate intent and there is crime when there is no movement is wrong. You
fault when the wrongful act results from may be prosecuted not by doing something but by
imprudence, negligence, lack of foresight or failing to act. But omissions are the minority.
lack of skill. Majority of felonies are done through actions.
Among the most famous ones is Misprision of
According this article, felonies are acts Treason under Article 116 of the RPC. If you have
and omissions punishable by law. But that is knowledge of any conspiracy, you have to report
not the complete definition. That is only 1/3 of the it.
definition. The concept of felony covers the entire
Article 3. It is not limited only to the first ARTICLE 116. Misprision of Treason: Every
paragraph. You have to incorporate the entire person owing allegiance to the Government
Article 3. of the Philippine Islands, without being a
foreigner, and having knowledge of any
Q: How do you rephrase that? conspiracy against them, conceals or does
A: Felonies are acts or omissions punishable by not disclose and make known the same, as
law which can be committed either by means of soon as possible to the governor or fiscal of
deceit (dolo) when the act is committed with the province, or the mayor or fiscal of the city
deliberate intent, or by means of fault (culpa) in which he resides, as the case may be, shall
when the wrongful act results from imprudence or be punished as an accessory to the crime of
negligence, lack of foresight or lack of skill. treason.
That is the complete definition. If you find a person dying in the middle of
the forest, then you just left him there, you are
Q: What are the elements of a felony? liable under Article 275 for abandonment of
A: The elements of a felony are taken from the persons in danger. Normally, you are liable for not
definition itself. Based on the definition, the doing. The Chinese proverb ( Too much talk, too
following are the key phrases: many mistakes. Less talk, less mistake. No talk,
no mistake) is the general rule, but not in the
1. ACTS OR OMISSIONS felony of omission. You have to do something.
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hand, if you say that issuing a bouncing check is a
Q: Based on paragraph 1, classify felonies. felony you do not know what you are talking
A: about. It cannot be a felony, because it is not
(1) felonies by act; found in the RPC.
(2) felonies by omission
3. THERE IS DECEIT (dolo) OR
2. THE ACT OR OMISSION MUST FAULT (culpa)
BE PUNISHABLE BY LAW OR
THE RPC When you say “deceit” it means you were
fooled. For example, you run out cash, so you
Q: What is the principle here? issue a check which you know will bounce because
A: No matter how bad, no matter how there is no fund for it. There is deceit there. In
condemnable, immoral or atrocious an act or estafa, there is also deceit. But there are felonies
omission is, if there be no law penalizing it, there where there is no deceit. For example, Give me
is not crime. The solution is to write to your your money or else I’ll kill you. There is a felony,
congressman and ask him to pass a law. The Latin i.e. a robbery or hold-up, but there is no deceit.
Maxim is “nullum crimen, nulla poena sine There is intimidation and intent to gain but there is
lege”. There must be first a law penalizing it. You no deceit.
cannot convict a person for a crime which does not
exist in the RPC. There is no crime if there is no Q: If there are many crimes where there is no
law making it a crime. deceit, how come the law says felonies are
committed by means of either deceit or fault?
Q: How many laws are there which penalize A: Because deceit is a wrong translation of the
crimes? word “dolo”. Deceit is a form of dolo but not every
A: There are so many. Generally, there is the RPC. dolo constitutes deceit. The better translation for
Illegal possession of firearms is punishable by PD the Spanish word “dolo” is intent. So, there must
8066. Smoking or selling marijuana is punishable be intent, instead of deceit. “Culpa” means fault –
by the Dangerous Drugs Act. Drinking liquor on when there is negligence or imprudence. There is
election day is punishable by the Omnibus Election no intent but it is substituted by lack of foresight
Code. Issuing a bouncing check is penalized under or lack of skill.
BP 22, etc.
Based on the third element, there are two types of
Q: Are these illegal possession of firearms, felonies:
smoking or selling marijuana, etc., felonies? intentional felonies
A: NO, because they are not punishable by the culpable felonies
RPC. They are punishable under special laws.
Another classification is (based on the first
So, when Article 3 says punishable by element of felony):
law, it refers to the RPC only. A better way of felonies by act;
expressing it is: “Felonies are acts or omissions felonies by omission
punishable by the RPC”. That would be the more
accurate way. For example, murder. Q: Intent is in the mind. But how do you prove
intent? For example, when you kill somebody, how
Q: Is there a difference between a crime and a do I prove that you have the intent to kill?
felony? A: There is no need to prove it. There is a
A: The word “crime” is generic, because it refers to presumption in law that criminal intent is
all acts or omissions punishable by any law. Even presumed from the commission of a criminal act.
the RPC uses the word “crime” to refer to felonies When you kill somebody, the law presumes intent
of Book Two on Crimes Against National Security. to kill. When you divest somebody of his money in
But the more accurate term for acts or omissions a robbery or theft, the law presumes that there is
punished by the RPC are “felonies”. Those intent to gain. And that is fair enough, because
punished by special laws are called “crimes” or how can the prosecution prove what is in the mind
“offenses”. “Felony” is a technical term. Those of a person? So, what is in the mind is judged by
punishable by ordinance are called infraction of your actions.
ordinance.
Q: Why is there such a presumption?
If you say murder is a crime, that is A: Because of the Classical Theory of criminal law
correct because the term is used in its generic that man is a rational being, so that when he
sense. But when you say murder is a felony, you commits a criminal act, it is presumed that he did
must be a law student. You are expected to know it knowingly, and therefore, his criminal intent is
the meaning of the word felony. On the other presume from his commission of a criminal act.
10
Without such presumption, it would be very the basis of a cold, dispassionate appraisal
difficult for the prosecution to be required to prove of the bare facts exposed by the evidence.
criminal intent. But the presumption could be
rebutted.
In other words, motive would be a subject
Q: Distinguish “motive” from “intent”. of penalogists, criminal psychiatrists or social
A: Both are in the mind. scientists. But for purposes of getting a conviction,
Motive intent it is completely immaterial for as long as there is
the moving power that the purpose to use a evidence to prove that the crime was committed
impels a person to particular means to and it was the accused who committed it.
commit a crime achieve a particular
result Q: Can a person be held criminally liable under the
completely immaterial. an element of a felony RPC even if he has no criminal intent?
A: YES, if it is committed by means of fault or
EXAMPLE: A shoots B to death. culpa which is substituted for intent.
Q: What was the intent of A? Culpable felonies are known under Article
A: His intent was to kill. 365 as QUASI-OFFENSES. There is no criminal
intent but is substituted by fault – imprudence or
Q: What was the motive of A in killing B? negligence.
A: I don’t give a damn. Maybe it is anger, revenge,
jealousy, etc. Imprudence means deficiency of action, lack of
In the realm of criminal law – substantive skill.
law - motive is immaterial, it is not an element of Negligence refers to deficiency of perception,
the crime. Hence, it need not be proved for lack of foresight. Meaning, the failure to foresee
purposes of conviction. Otherwise, if we were to what a reasonable man ought to foresee.
require motive to be an element of a crime, many
criminals will not be prosecuted. When the EXAMPLE: A motorist drove his car at a speed of
commission of a crime is proved and the identity 100 kph in the middle of San Pedro St. Suppose he
of the criminal is established, motive is immaterial. bumps somebody. That is normal – for incidents as
that to happen. But there must be something
Motive is important, not in substantive wrong in his foresight. Why is he driving at a very
law, but in procedural law – the law on Evidence. fast speed in a busy street?
Motive may constitute circumstantial evidence.
Meaning, if you have no direct evidence that A Q: What is the test of negligence?
killed B, I will gather a series of possible reasons A: The test is the failure to foresee what any
to show why A is guilty. So, motive is important ordinary person would have ordinarily done.
to prove the probability that A is the criminal, but
it is not important to prove the existence of a
crime. But if you have a hundred witnesses, it is Q: What is the test of imprudence?
not necessary to prove motive because in that A: The failure to do what any ordinary person
case, the reason for committing the crime would have ordinarily done.
becomes completely immaterial.
Q: Why does the law penalize people who commit
People vs. Mosende culpable felonies, when actually there was no
228 SCRA 341 criminal intent?
A: Because he is penalized for his lack of foresight
No motive or reason for the killing or lack of skill. According to the Supreme Court, it
here dealt with as revealed by the proofs. is very dangerous if a person can get away
This is immaterial, where the evidence with a criminal act simply because he did not
otherwise persuasively demonstrates who have the intent. Society will be at a great risk
is the killer and the acts by which he has if people can be careless anytime.
carried out his nefarious intent.
Another important principle: when the
This is not to say that what lies in law says there must be criminal intent or
the murky criminal mind is not of interest, fault, what it means is the act must be
especially to penalogists, criminal committed voluntarily. Every felony must be
psychologists, or social scientists. But it is committed voluntarily.
immaterial in reaching a conclusion of guilt
and imposing an appropriate penalty on Q: What are the elements of voluntariness in an
intentional felony?
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A: There must be, on the part of the actor, the attacked, he seized a kitchen knife and
following: struck and fatally wounded the intruder
1.) freedom; who turned out to be his roommate.
2.) intelligence; and
3.) intent HELD: Ah Chong is not liable for the death
of his roommate because of mistake of
Q: How about in a culpable felony? fact.
A: In a culpable felony, the elements of
voluntariness are: Q: Define mistake of fact
1.) freedom of action; A: Mistake of fact is a misapprehension of fact on
2.) intelligence; and the part of the person who caused injury to
3.) fault or negligence another. He is not, however, criminally liable
because he did not act with criminal intent.
Q: What do you mean by voluntary act in a felony?
A: It is an act which is free, intelligent and Q: What are the requisites of mistake of fact?
intentional. When you remove one of these A: The requisites are:
elements, the act ceases to be voluntary. There a. that the act done would have been lawful
might be intelligent and intent, but if there is no had the facts been or turned out as the
freedom, the act ceases to be voluntary. believe the to be;
b. that the intention of the accused in
EXAMPLE: Article 12 – one who acts under the performing the act should be lawful;
compulsion of an irresistible force, one who acts c. that the mistake must be without fault or
under the impulse of an uncontrollable fear of an carelessness on the part of the accused.
equal or greater injury. Under these two
circumstances, the offender acts with intelligence Q: What is the reason why Ah Chong killed the
and intent, but there is no freedom of action, as intruder?
he is only forced, threatened or intimidated to A: Because he believed that the intruder was
commit the crime. So, he is exempt from criminal inside his room in the dark to kill him, and
liability because the act ceases to be voluntary. therefore, he had to kill him first.
There is a Latin maxim: actus me invito, factus
non est meus actus. As it is done against my Q: Suppose what he believed turned out to be
will, it is not my act. true. An intruder in the middle of the night enters
his room to kill him, but he kills him first. Is he
If there is freedom, there is intent but liable?
there is no intelligence – it has the same effect. A: Of course not! Because of self-defense. Meaning
The act ceases to be voluntary. For example: if you believe it to be so true, you are not liable.
Article 12 – an imbecile or insane person; a minor So, the first element is there.
under 9 years of age.
Q: What was the intention of Ah Chong in killing
Suppose there is freedom, there is that man?
intelligence, but there is no intent. What happens A: The intention is lawful – to act in self-defense,
is that the person is again free from criminal to protect his life and limb.
liability. It is true that criminal intent is presumed,
but such presumption is not conclusive, it is Q: Was he careless? Did he just immediately stab
rebuttable. the person when the latter entered the room?
A: NO, in fact Ah Chong asked who he was and
US vs. AH CHONG even gave him warnings not to enter the room or
35 Phil. 488 else Ah Chong would kill him. And it was dark, so
how can he determine whether the intruder was
FACTS: Ah Chong was a cook in Fort his roommate or not. In other words, the element
Mckinley. He was afraid of bad elements. of intent and culpa were all negated.
One evening before going to bed, he
locked himself in his room by placing a That is the classic example of mistake of
chair against the door. He called out twice, fact. And the Latin maxim there is Actus non
“Who is there?” but received no answer. facit reum nist mens sit rae. The act is not
Fearing that the intruder is a robber, he criminal when the mind is not criminal.
leaped from his bed and called out again
“if you will enter the room, I will kill you!” Another maxim. Ignorantia facti
But at that precise moment, he was struck excusat ( mistake of fact is an excuse) is not to
by the chair that had been placed against be confused with the ignorantia legis non excusat.
the door, and believing that he was being While ignorance of the law excuses no one from
12
compliance therewith, ignorance or mistake of fact your mind when you committed the crime? If you
relieves the accused from criminal liability. were not, then there is intelligence. In other
words, even in culpable felonies, the elements of
PEOPLE vs. OANIS voluntariness are still there.
76 Phil. 257
Q: How does Article 365 define imprudence?
FACTS: Chief of Police Oanis and his co- A: Article 365 defines reckless imprudence as
accused, Corporal Galanta, were under voluntarily but without malice doing or failing to do
instructions to arrest one Balagtas, a an act. So there, you will see that in reckless
notorious criminal and escaped convict, imprudence cases, there is no dolo, but still the act
and if overpowered to get him dead or must be voluntary.
alive. Proceeding to the suspected house,
they went into a room and on seeing a Q: Can a person be held criminally liable under
man sleepjng with his back towards the Philippine law even if there is no criminal intent on
door, simultaneously fired at him, without his part?
first making any reasonable inquiry as to A: YES.
his identity. The victim turned out to be an 1.) when the felony is classified as culpable in
innocent man, Tecson, and not the wanted nature, like reckless imprudence; and,
criminal. 2.) if the crime for which he is accused is
classified as a crime malum prohibitum.
During the trial, the accused
invoked the Ah Chong case. Q: Distinguish mala in se and mala prohibita
A: They are distinguished as follows:
HELD: Both accused are guilty of murder. MALA IN SE MALA PROHIBITA
The Ah Chong case does not apply here. Crimes so serious in violations of mere rules
The first requisite of mistake of fact is their effects to society of convenience
lacking - that the act done would have as to call for unanimous designed to secure a
been lawful had the facts been as the condemnation of its more orderly regulation
accused believed them to be. Assuming it members of the
was the wanted criminal that they were affairs of society
ordered to apprehend, do they have the criminal intent is criminal intent is
authority under the law to shoot him necessary immaterial because the
down? Even if they invoke the mitigating only inquiry is: has the
circumstance of fulfillment of duty, it will law been violated?
not be appreciated in their favor because generally refers to those generally refers to acts
although they are authorized to use force acts or omission or omissions made
in order to effect the arrest, the law says punished by the RPC criminal by special laws
reasonable force. It was not necessary for
them to shoot him down immediately.
Even hardened criminals, if they can be Example of crimes mala in se are
caught without killing them, then there is murder, homicide, robbery or rape. They are not
no need to shoot them to death. only crimes under our laws, but they go against
natural law, the basic commandments of God.
Q: Was there fault or negligence on their part? Even without knowing the law, your conscience
A: Of course! They did not even bother to discover would tell you that there is something wrong with
his identity – whether the guy was the right these crimes. They are wrong per se. Even
person. They just started shooting him. So, that is without the RPC, the human conscience will tell us
the difference between these two cases. that there is something wrong when a person kills,
robs, or rapes somebody. With or without the RPC,
While it is true that in a culpable felony, society could not accept these evils.
intent is not necessary, however, the law still
requires voluntariness on the part of the offender However, there are also crimes which are
in a culpable felony. The element being still NOT inherently wrong – mala prohibita. They are
freedom, intelligence and negligence. So, it is not wrong only because they are prohibited. They are
correct to say that in reckless imprudence case, violations of mere rules of convenience enacted by
the act is not voluntary. the state for the proper and orderly administration
of society. Examples of these are illegal possession
If you are reckless, you ask yourself, were of firearms, violations of traffic rules.
you forced to be reckless? Did somebody compel
you to perform a negligent act? If there is none, Q: Is there anything inherently immoral when a
then there is freedom. Were you crazy or out of person brings a gun with him?
13
A: One may not possess or own a firearm without only to felonies by act. It cannot apply to felonies
a license because the law says so. It is wrong by omission because the wrongful act done be
because it is prohibited, not because it is immoral. different form that which he intended. So, there
was really intent. Therefore, it is also limited to
Q: Is there anything wrong when a person drinks a intentional felonies. It has no application to
bottle of beer during election day? culpable felonies.
A: None, but it comes a crime because the law
says so. It says one may drink on any other day, Q: How can a person commit a felony and the
but not on election day. wrongful act done is different from that which he
intended?
Q: Why are people prohibited from drinking on A: There are three situations contemplated by
election day? Article 4 (1):
A: Because this may lead to more violence, added
to electoral terrorism, on that day. Suppose B 1.) error in personae – error in identity
drinks on election day, but he has no intention of 2.) aberration ictus- mistake in the blow, and
committing acts of violence or terrorism. Meaning, 3.) praeter intentionem- the result exceeded
he has no criminal intent to terrorize voters. This the intention
is immaterial. The law still says that the above act
is a violation. The only issue is whether or not the
law was violated. That is all. ERROR IN PERSONAE
FACTS: The accused wounded the victim Take note of the premises of paragraph 1
who was a farmer. Despite the wound, the of Article 4. The law is very clear: a person is
farmer continued working hard in the field. committing a felony although the wrongful act
After several days or weeks, the wound done be different from that which he intended. So,
was infected with tetanus, So, the victim this does not apply to felony by omission.
dies.
Like for example, in one case, the mere
ISSUE: whether or not tetanus can be act of punching is already intended. In the case of
considered as an efficient intervening Marasigan, the act of wounding the victim is
cause of the victim’s death for which the already a felony. In the case of Martin, where he
accused should be held liable. strangled his wife, that is already a felony,
although the cause of her death is heart attack.
HELD: There is a likehood that the wound That is started with a felony. But if one is not
was but the remote cause, and its committing a felony, he is NOT liable for the direct,
subsequent infection for failure to take the natural and logical consequences of his act.
necessary precautions with tetanus may
have been the proximate cause of the
victim’s death, with which the accused has Q: A wanted to play a joke on his friend. Since,
nothing to do. this is where he passed every night, A waited to
the friend. When he reached the place, A surprised
him. The friend died due to heart attack. Is A liable
So, the proximate cause of the victim’s for the friend’s death on the theory of paragraph
death was not the wounding, but the tetanus, 1, although the wrongful act done be different
because the wounding was but a remote cause. from that which he intended? Was A committing a
This is one of the few cases where the accused felony when he played a joked on his friend?
was not held liable for the resulting infection. The
Supreme Court here did not apply paragraph 1 of A: No, A is not liable for the death of his friend. If
Article 4 but applied the doctrine of remote cause, there was a felony, yes he is liable. But is there a
rather that proximate cause. As a matter of fact, in law in the Philippines, that prohibits from playing
the Urbano case, the Supreme Court seems to be joke on somebody? None. Since A here was not
“dissecting” medical wounds. That case became committing a felony when he played a joke on his
more of a medical textbook for tetanus, that a friend, then he is not liable for his friend’s death. It
Supreme Court decisioMarn. could be something unexpected and tragic. But it
is not enough to make a person criminally liable.
There is no basis.
PEOPLE vs. PALALON
49 Phil. 177 (2) By any person performing an act
which would be an offense against persons or
FACTS: The accused slapped a boy. The property were it not for the inherent
victim subsequently developed a fever due impossibility of its accomplishment or on
to malaria. Then the boy died. Accused account of the employment of inadequate or
was charged with homicide. ineffectual means. Legal impossibility
Physical impossibility
ISSUE: whether or not malaria is an This is known as the concept of
efficient intervening cause for which the “IMPOSSIBLE CRIME”.
accused should be held liable for the death
of the boy. Q: Define “Impossible Crime”.
A: An impossible crime is a crime committed
HELD: The slapping or punching could but by a person who performs an act which would be
have caused malaria. Malarial caused the an offense against the persons or property, were it
boy’s death. But malaria is caused by not for the inherent impossibility of its
mosquito bites. The intervention of malaria accomplishment or on account of the employment
here was an efficient intervening cause of inadequate or ineffective means.
which broke the relation of cause and
effect between the slapping and the death. THERE IS NO SUCH THING AS IMPOSSIBLE CRIME
It was something foreign or remote. It had BY OMISSION
nothing to do with the original act. It is not
Why do we punish? For his criminal
tendencies. (Positivist nature)
17
Q: Why is it that in paragraph 2 the Penal an act which turned out not to be an offense
Code says, “performing an act”, whereas because of an inherent impossibility, are you
paragraph 1 says, “committing a felony”? liable?
A: Precisely because in paragraph 2 there is A: No. In order to be considered an
no known felony. Unlike in paragraph 1 where impossible crime, it would have been an offense
there is a known felony that the offender against persons or property. So, when you
committed, here he did not actually commit a perform an act which would be an offense against
known felony as defined in the RPC, Book II; but chastity, against honor, or against public interest,
he performed an act which would have been an that is not covered by paragraph 2 of Art. 4
offense against persons or property. because of the special hatred by the RPC for
crimes against persons and property.
Meaning, the act should have been a crime
against persons or property but it did not turn out
to be that way because of the inherent CRIMES AGAINST PERSONS
impossibility of its accomplishment or on account
of the employment of inadequate or ineffectual Suppose, you want to kill Lei and you plan to stab
means. him in his room in the middle of the night while he
is sleeping. So, you go to his room, you see him
there lying, then, you start stabbing him to death,
PEOPLE vs. BALMORES but without knowing that he is already dead
85 Phil. 493 because one or two hours earlier he died in his
sleep.
FACTS: This is about a crime of somebody Q: Are you liable for murder?
trying to counterfeit a currency note. He put a A: No, murder is impossible because you
chemical on the note so that he could get an cannot kill somebody who is already dead. There is
impression. The trouble was that it was not a physical impossibility; you cannot kill a cadaver.
done properly. All the markings on the face of So, you did not commit murder. But had he been
the forged bill were inverted. It looked like a alive, it would have been murder.
genuine bill with the exception of the inverted
letters. He was charged with Q: What crime did you commit?
counterfeiting…forgery. A: You committed an impossible crime
because of the physical impossibility of killing
HELD: No, it was not counterfeiting or somebody who is dead. That is Art. 4, p(2).
forgery. Counterfeiting or forgery means an
exact reproduction of what the genuine
currency looks like. This is not an exact
CRIMES AGAINST PROPERTY
reproduction of the original for everything is
inverted. Therefore, he is not guilty of
counterfeiting, but he is guilty of an I want to steal your fountain pen. That pen is
impossible crime because of the inherent similar to the pen that I lost. I cannot buy another
impossibility of its accomplishment or on one; so, I steal yours. Upon looking at the pen, I
account of the employment of inadequate or realize that it is mine. it is the fountain that I lost.
ineffectual means.
Q: Did I commit the crime of theft?
But there is something wrong with this decision. A: No, there is legal impossibility. One of the
Counterfeiting or forgery is not a crime against elements of theft is that the personal property
person or property. It is a crime against public taken by the offender belongs to another. If it
interest. The concept of impossible crime is limited belongs to another, it cannot be theft. It is
only to crimes which would have ended as crimes impossible for the offender to be at the same time
against persons or property. If we stick to the law, the victim of his act. One cannot steal from
the correct ruling would be that he neither himself.
committed any crime nor an impossible crime.
Q: Is there a crime committed?
Normally you commit a crime against person. But A: Yes, an impossible crime.
you can also commit a crime against property.
Examples are the following: robbery, theft, etc..
Against persons: murder, homicide, physical INADEQUATE MEANS
injuries, etc..
For example, I placed a small quantity of poison in
Q: Are all impossible attempts to commit a the food of somebody. He took the food but he did
crime punishable? Meaning, when you committed not die because the dosage that I put in the food
18
was insufficient to kill a person. I am liable for at him and asked for the watch. Finding that B did
committing an impossible crime. not have the watch, A allowed B to go without
further molestation.
Q: For instance, the poison that I placed in
the food was adequate but I did not know that the Q: Is he liable for an impossible crime because it
person was especially immune from the chemical was impossible for him to take something which is
that I used. So, he did not die despite the not there?
sufficient amount of poison. Did I commit an A: NO. That is not an impossible crime, that is an
impossible crime? attempted robbery. It would fit the definition of an
A: No, that would be more of a frustrated attempted robbery better than the definition of an
murder. The offender performed all the acts of impossible crime. And the mere act of placing or
execution which would produce the felony as a poking a gun at somebody is by itself already a
consequence but which, nevertheless, did not felony. So, it falls under a specific provision of the
produce it by reason of causes independent of the RPC, then, it should not be treated as an
will of the perpetrator. So, it is frustrated murder impossible crime.
under Art. 6, rather than an impossible crime
under Art. 4 p(2). Q: What is the basis for this impossible crime
doctrine? Why should a person be held liable when
actually he did not commit any crime?
INEFFECTUAL MEANS A: The principle here is objectively he is not a
criminal, but subjectively he is a criminal. He
For example, I placed something in your coffee thought he was committing a crime. So he should
believing that it was poison, but actually it was salt be punish for that. In the positivist thinking, he is
or sugar. You could not have been killed because it a socially dangerous person; he is criminally
was not poison. But because I believed that I could minded.
have killed you were it not for the ineffectual
means, I am liable for an impossible crime. Q: Why are we talking about the person? Didn’t we
say that the RPC is based on the Classical theory
of criminal law, where we are looking at the effect
rather than the person? How come you are now
THERE MUST BE CRIMINAL INTENT ON THE PART
emphasizing the criminal mind of the actor rather
OF
than the act? Is this not a violation of the classical
THE OFFENDER. IN OTHER WORDS, HE BELIEVED
theory of criminal law?
HE WAS COMMITTING A CRIME AT THAT MOMENT
A: NO. Article 4(2) of the RPC is one of the few
principles which is positivist-oriented. Our RPC is
mainly based on the Classical theory, but there are
Suppose, I want to kill Dao while he is asleep in
few positivist-oriented provisions and one of them
his room. I go to Dao’s room and see him lying in
is the impossible crime concept, under Article 4(2)
bed. I approach him, and I notice that he is not
of the RPC.
moving. I touch him (cute nya); he is already
dead! (ngee, takot ako!) So, I said; “Shit! Why do
Q: What is the penalty to be imposed on
you have to die before I kill you?!?” so, I just stab
impossible crimes? Can we penalize the offended
his body, knowing that anyway he is already dead.
for murder, or homicide or robbery etc, - the crime
which he would have committed?
A: Of course not! He cannot be penalized for the
Q: Am I liable for an impossible crime?
crime which he would have committed precisely
A: No, because there is no intent to kill. It is
because he did not commit the crime.
different when you think you are killing him when
actually he is already dead.
Q: What crime did he commit?
A: He committed an impossible crime.
A PERSON COULD BE LIABLE FOR AN IMPOSSIBLE
Q: What then is the penalty for an impossible
CRIME ONLY IF THE ACT DOES NOT FALL UNDER
crime?
ANY SPECIFIC PROVISION OF THE RPC.
A: Article 59, RPC. _Penalty to be imposed in
IMPOSSIBLE CRIME IS THE LAST RESORT
case of failure to commit the crime because the
means employed or the aims sought are
impossible. – When the person intending to
A, who knew that B owned and always carried a
commit an offense has already performed the acts
watch, decided to rob B of said watch. When A met
for the execution of the same but nevertheless the
B for that purpose, B did not have the watch
crime was not produced by reason of the fact that
because he forgot to carry it with him. Thinking
the act intended was by its nature one of
that B had the watch with him, A pointed his gun
___ vs CA
19
impossible accomplishment or because the means judge has no power to pardon. The judge has no
employed by such person are essentially power to commute or to grant conditional pardon.
inadequate to produce the result desired by him, The executive branch must take over but as a
the court, having in mind the social danger and judge, he has no other choice but to apply the law.
the degree of criminality shown by the offended,
shall impose upon him the penalty of arresto People vs. Orefon
mayor or a fine ranging from 200 to 500 pesos.
Article 5. Duty of the Court in connection with acts Facts: A girl was accused of parricide for
which should be repressed but which are not killing her own father. The prescribed
covered by the law, and in cases of excessive penalty for parricide is reclusion perpetua
penalties. – Whenever a court has knowledge to death. That is a heinous crime. But
of any act which it may deem proper to during the trial, based on the evidence, it
repress and which is not punishable by law, it came out that the accused killed her own
shall render the proper decision and shall father because she could no longer
report to the Chief Executive, though the withstand what her father was doing to
Department of Justice, the reasons which her. She was raped from time to time - -
induce the court to believe that said act incestuous rape. So, she killed her own
should be made the subject of penal father. Well, for killing the father she still
legislation. committed parricide. There is no exception
In the same way the court shall there and the penalty is reclusion perpetua
submit to the Chief Executive, though the to death. That cannot be lowered by any
Department of Justice, such statement as mitigating circumstance. So the judge has
may be deemed proper, without suspending no choice but to sentence her to perpetua.
the execution of sentence, when a strict But based on the circumstances of the
enforcement of the provisions of this Code case, there is something exceptional which
would result in the imposition of a clearly makes the penalty excessive. In other
excessive penalty, taking into consideration words, the court also has to consider the
the degree of malice and the injury caused by feeling of the girl.
the offense.
Held: The trial court is ordered to sentence
Q: What does the first paragraph of Article 5 her to perpetual, but in the decision,
mean? Suppose a person is accused in court recommend executive clemency. The
criminally, and it turned out that the act is not a executive branch will take that into
crime. Meaning, there is no law that penalizes this consideration.
act. What should the court do? This has happened very recently. In the case
A: The law says that the court should render the handled by the late Judge Ocampo, in beautiful
proper decision. Cebu. He convicted the killers of the Chiong
sisters, finding them guilty beyond reasonable
Q: What is the proper decision? doubt, but he imposed the penalty of reclusion
A: Acquit. How can you convict a person when perpetua, when there is no question that the
there is no existing crime. NULLUM CRIMEN, applicable penalty is death. The judge has applied
NULLA POENA SINE LEGE. But the court should his own norm of morality, or his own concept of
inform the executive branch that it should the death penalty. The law is the law for all its
recommend the passage of the law. Sometimes, it seeming harshness. We, as court of judges, have
happens that you commit an act which appears to to apply the law regardless of personal beliefs and
be immoral and illegal, but there is no governing compassion. Dura lex sed lex.
law. So, you now recommend that a new law be
passed. This is to cover the loophole in the law. People vs. Villorente
But the second paragraph states the opposite 210 SCRA 647
situation. If a person is found guilty of a crime –
there is no question about it; there is no question Facts: The case is one for forcible
that he is liable – and this is the proper penalty. abduction with rape filed against Villorente
This penalty must still be imposed on the convict and his mother. Why was the mother
even though it is excessive. Why excessive? included as co-accused? This Villorente
Because of some special circumstances. Normally, was in love with a certain girl but he
it is notrcumstances. Normally, it is doesn’t know how to court the girl. The
notircumstances, it becomes one. But there is mother pitied her son and decided to
nothing that the judge can do. He still must abduct the girl and have her son raped
impose it but he must recommend executive her. The mother, in fact, cooperated with
clemency. That is for the President to grant. The her son and both of them were sentenced
People vs Aquino
Qualified theft -- nangawat ug butong
20
to reclusion perpetua. The case reached
the SC. However, usually after the decision and the
planning, that is followed by external acts, the
Held: The penalty is excessive for Teresita physical activity. So, the mental process will now
Villorente. Unschooled like her son, she be followed by external or physical acts. But
appears to have acquiesced with Charlie external acts should be divided into two. First, are
on account of her maternal concern. She the PREPARATORY ACTS.
must have agonized with Charlie who did
not know how to court the girl of his Like for example, you want to poison your enemy,
dreams. Not knowing how to court Jonah. you will buy poison. If you want to stab him, you
Charlie look at her from a distance until he buy a knife and sharpen it. If you want to shoot
could no longer hold his desire and with him, you get a gun and practice shooting…… target
the complicity of his mother, abducted and practice. Those are preparations.
raped her. It is, therefore, necessary that
under the provision of Article 5 of the Q: Are they punishable?
Revised penal Code, the attention of the A: The general rule is NO> the act of buying
President should be called to the mother. poison is not the act of poisoning the victim. The
act of sharpening a knife is not the act of stabbing.
Meaning, sometimes, a mother will go out of her Except when the law penalizes such preparatory
way just to help her child. Of course, you cannot acts.
condone that. She still committed a crime because
she wanted her son to be happy.
Preparatory external acts of preparation for the
How a felony develops commission of a felony are not punishable, except
when the law specifically provides for a penalty for
I. Mental Process/Internal Acts - not punishable such preparatory acts.
II. External/Physical Acts:
a. Preparatory Acts –
General Rule: not punishable The best example is Article 304 of the RPC which
Exception: If the RPC penalizes it penalizes the crime known as possession of
Eg. Article 304 (possession of picklocks and similar tools. Picklocks and similar
picklocks & false keys) While this act is tools are usually objects of gadgets which are
preparatory, it is still owned by robbers. They use it to open doors,
b. Acts of Execution: punished because the windows, etc.
1. Attempted } law says so
2. Frustrated } But actually, the possession of a false key or a
- punishable picklock is not the actual act of robbery. It is only
in preparation of robbery. Normally, it should not
3. Consummated } be punishable but the trouble is Article 304 says
the mere possession of these objects which are
Normally, as outlined in some books, a preparatory to the crime of robbery with force
crime usually starts with a person arriving at the upon things is also punishable.
decision to commit a crime and then he plans it
out. We call that the mental process or some After the preparatory acts comes the ACTS OF
authors call them internal acts. Although the word EXECUTION. Where a person now proceeds to
internal acts does not seem to be accurate implement his plan. He now executes the
because in criminal law, when we say “act” as commission of the act and there are three
defined in Article 3, it is physical action, a moving possibilities, which the RPC calls as the attempted,
of the muscle. If it is a mental process, it cannot frustrated and consummated or merely frustrated
be an act but we will just use the word act loosely. or attempted is already punishable. So we are
concerned here because these are all punishable
At this stage, this is still beyond the scope of already.
criminal law. No one can charge you for thinking of
committing a crime. That is a problem which Memorize
should be solved by the person with his spiritual Article 6. Consummated, frustrated and attempted
director. But it is not the concern of the law. So if felonies. – Consummated felonies as well as
you want to murder your enemies, you just those which are frustrated and attempted,
imagine. If you want to rape beautiful girls, you are punishable.
just imagine. You cannot be guilty of that. Nobody A felony is consummated when all the
can accuse you criminally. That is beyond the elements necessary for its execution and
scope of criminal law. accomplishment are present; and is
21
frustrated when the offender performs all the taking something. They caught him in the
acts of execution which would produce the act of entering, but robbery is not
felony as a consequence but which, committed by entering but by taking. So
nevertheless, do not produce it by reason of there is no connection between the act and
causes independent of the will of the the crime for which he is charged. For they
perpetrator. know, once he is already inside the house,
There is an attempt when the offender his intention might be to rape or kill
commences the commission of a felony somebody. So it was premature to charge
directly by overt acts, and does not perform him with attempted robbery.
all the acts of execution which should
produce the felony by reason of some cause However, one thing is clear. He
or accident other than his own spontaneous was in the act of entering a house in the
desistance. middle of the night, while all the occupants
Attempted Stage were asleep. And when one enters a house
against the will of the occupants, he
There is an attempt when the offender commences commits the crime of trespass to dwelling.
the commission of the felony directly by an overt So the crime he has committed is
act. Since the law says by overt acts, the attempted trespass to dwelling, not
conclusion is: In felony by omission, there is no attempted robbery.
attempted stage. So, there is no such thing as
attempted stage in a felony by omission because In the attempted felony, the offender here had
attempted stage applies only to felony “by act.” started to commit the felony. But the trouble is, he
The SC laid down the rule that in order to convict a did not finish. He was halfway through or less than
person for an attempted felony, the overt act must halfway through, but he did not continue because
have a direct relation to the felony for which he is he failed to perform all the acts of execution which
charged. There must be a direct relation between should have produced the felony. Why? Because of
the overt act and the elements of the felony for a cause or because of an accident other than his
which he is charged. own spontaneous desistance.
Q: Suppose, A would like to kill Z. As a matter Q: How does the law define a frustrated
of fact, he already commenced the commission of felony?
the felony but hr realized that there were many A: In a frustrated felony, the offender has
eyewitnesses. So, he desisted. Can he be liable? performed all the acts of execution which would
A: Viada says, never mind what is the motive produce the felony as a consequence but which,
for not continuing. What is important is that he did nevertheless, do not produce it by reason of
not continue with the crime; he desisted causes independent of the will of the perpetrator.
voluntarily. Viada does not care whether his
desistance was based on a noble reason, remorse, Q: Distinguish attempted stage from
or out of fear of being caught. What is important is frustrated stage.
his desistance. When he tries again, that is A: In the attempted stage, the offender has
another story. But for the moment, since he not performed all the acts of execution which
desisted, he would not be liable. should produce the felony; whereas, in frustrated
stage, the offender has performed all the acts of
But take note that the desistance must come execution which would produce the felony as a
before the consummation of the crime. You cannot consequence.
desist when all the acts of execution are already
accomplished. Sometimes, these two stages are difficult to
distinguish. Even the SC in some old decisions
For example, I want to kill P. Bang! Bang! Bang! P admitted its difficulty. The line that divides the two
was fatally hit. He fell down. Ahhh…. Uy!!! I’m stages seems to be very thin. The best illustration
sorry; I desist! Hindi pwede. The desistance must of determining the stage of a crime is in crimes
come before all the acts of execution have been against persons which involve an attempt to kill –
accomplished. attempted or frustrated murder or homicide. But
there are some crimes which show very unclear
Another story: I steal your wallet (unsa man ni uy! differences, like rape, arson, etc.
Ako naman nuon ang kriminal!). then, I go out. I
am already out. I decide to go back and return the
wallet. PEOPLE v. BORINAGA
55 P 433
Q: Is there an attempted theft? Or is there no
theft a all because of my desistance? FACTS: The accused, with intent to kill,
A: The crime of theft is consummated. Ulahi approached the victim from behind. The
na ang pagbasol. The moment I take your wallet victim was sitting on the chair. The
and then leave, the crime is accomplished or has accused had a very long dagger. There
already been fully consummated. So, when I was treachery here. He plunged the
return it to you, I cannot say that I desist. dagger towards the back of the victim but
the dagger hit the wooden frame of the
Take note of that; you cannot desist when the chair. The dagger was imbedded; the
crime is already consummated. However, under victim was thrown forward because it was
Art. 13, I will be entitled to a mitigating a very powerful blow. There was no injury
circumstance that is analogous to voluntary to the victim because the dagger hit the
surrender. wood.
Some authors call that the OBJECTIVE STAGE and ISSUE: Whether the felony was an
the SUBJECTIVE STAGE. In the objective stage, attempted murder or a frustrated murder.
the actor is still in control of his act. It is still
within his means to desist. If he desists, he is not RULING: The crime was frustrated murder
liable. But if he did not proceed not because of his because the offender has performed all the
desistance but because of a cause or accident acts of execution which would have
23
produced the murder or the death of the A: That is still attempted. How can he die unless I
victim as a consequence but which, hit him. so, my poor aim is the cause other than
nevertheless, did not produce the death of my own spontaneous desistance.
the victim because of a cause independent
of the will of the offender, and this cause is Q: Suppose, I hit him but the wound is not really
the dagger hitting the wooden frame fatal. So, he did not die. Is it attempted or
rather than the back of the victim. frustrated?
A: It is still attempted because I have no
Note: (dissenting opinion) It is attempted performed all the acts of execution. How can K die
murder. It cannot be frustrated because the without a fatal wound? So, until the offender
offender has not performed all the acts of inflicts a fatal wound which could normally kill, it
execution. How can you kill a person unless can be rightfully claimed that the offender has not
you hit him? The victim was not even hit. performed all the acts of execution which would
produce the felony as a consequence.
So, unless you hit the victim, you have not
performed all the acts of execution which would But, suppose, the offender, with the use of a .45
produce the death of the victim as a consequence. caliber pistol, shot the victim in the head blowing
The death of the victim cannot be produced unless off his brain, hit him in his chest blasting his heart
you hit him first and he sustains a wound that is and still another shot blasting his liver. Then, the
sufficient to kill, one that is fatal. victim was rushed to a hospital. Because of
modern apparatus, he was able to survive. This
However, according to the majority, the modern science is the cause independent of the
wooden frame which was hit by the dagger will of the perpetrator. I did everything to kill him.
prevented the victim’s death. But the minority Definitely, I’ve performed all the acts of execution.
contends that the wooden board did not save the He is supposed to be dead by now. That is
victim from death; it saved him from being hit. frustrated. (na-frustrate ka ba)
You cannot talk of death unless the victim is first
hit. In other words, the minority is of the opinion Q: A doctor wanted to poison his wife. So, he
that the offender did not perform all the acts of placed poison in his food. this wife ate the food
execution because of a cause or an accident (the with poison. When the wife had already swallowed
dagger hitting the wooden frame) other than his the food, the doctor was bothered by his
own spontaneous desistance. conscience. He was remorseful; so, he
administered first aid and forced her to vomit. The
Q: Which of the two contending discussions wife survived. Was the crime attempted or
is correct? frustrated parricide?
A: In subsequent cases, after Borinaga, it A: Let us analyze:
appeared that the majority ruling was wrong, and
the minority view was the correct one. Borinaga In attempted parricide, the offender has not
should have been convicted only of attempted performed all the acts of execution. In other
murder and not frustrated because later decisions words, it would be attempted if the wife, who
rectify whatever error came out in the case of has already taken the poison, vomited by
Borinaga. herself. When she spit out the poison, that
constitutes an accident other than the
Later decisions came out with a view that in crimes husband’s desistance. But if the husband had
against persons which involve intent to kill, before his conscience stricken before the wife had
a person could be convicted of frustrated murder, swallowed the poison, then, there is not even
the prosecution must establish that the victim an attempted parricide because of his own
sustained an injury which could normally kill. spontaneous desistance.
Therefore, if the wound is not mortal, then, the
crime is only attempted homicide or murder. But if the wife has already swallowed the
poison, and it was already in her stomach,
Q: Suppose, I shot K but the gun jammed. Is desistance is immaterial. You cannot order
that attempted or frustrated? the poison to go out of the body. he has in
A: Attempted. How can K die when I did not fact passed the frustrated stage because he
even hit him. The jamming of the gun is an has already performed all the acts of
accident other than my own spontaneous execution. But to convict a person of
desistance. frustrated parricide, the law requires that the
felony did not materialize because of causes
Q: Suppose, I shot K, but because of my poor aim, independent of the will of the perpetrator, like
he was not him. what is that? you shot somebody but because of timely
intervention by a doctor, he survived. But,
24
here, the offender himself saved the wife. In cause independent of the actor’s will will
other words , it would not also fit the render useless the provision of Article 4 of
definition of a frustrated felony. the RPC. In that case, all circumstances
which prevented the consummation of the
Q: So, what was the crime committed? offense will be treated as an accident
A: The crime of administering injurious beverage independent of the actor’s will.
under Art. 364. It is a form of serious physical
injuries. So, the SC agreed with the accused. It is a case of
impossible crime because everytime a crime is not
Q: How do we distinguish the attempted or committed, because of a cause or accident other
frustrated stage of a felony from an impossible than the desistance of the accused, or causes
crime? independent of his will, it would be attempted or
A: In an impossible crime, the crime to be frustrated. There is no more application of Article
committed was inherently impossible of 4(2), if we follow the logic of the prosecution.
commission; whereas, in attempted or frustrated
felony, the crime is possible of accomplishment, 1994 Bar Question: Jippy, Arias and Randal
but it was not produced because of a cause or an planned to kill Elsa, a resident of Brgy. Ula, Laurel,
accident other than the offender’s desistance, or Batangas. They asked the assistance of Ella who is
because of causes independent of the will of the familiar with the place. On April 3, 1992 at about
perpetrator. 10:00 in the evening, Jippy, Arias and Randal, all
armed with automatic weapons went to Bragy Ula.
Intod vs. CA Ella being the guide directed her companions to
212 SCRA 52 the room of Elsa. Whereupon, Jippy, Arias and
Randal fired their guns toward the room.
FACTS: Intod and his companions, with Fortunately, Elsa was not around as she attended
intent to kill, fired at the bedroom where a prayer meeting that evening in another
they thought the victim was sleeping. It barangay.
turned out, however, that the victim was Jippy, et.al., are charged and convicted of
in another city and no one was in the room attempted murder by the RTC of Tanauan,
when the accused fired the shots. No one Batangas. On appeal to the CA, all the accused
was hit by the gunfire. ascribed to the trial court its error in finding them
guilty of attempted murder. If you are the
The accused contends that the ponente, how would you decide the appeal?
crime is an impossible crime under Article
4(2). They performed an act which would ANSWER: I will reverse the trial court’s decision
be an offense against persons – murder, and convict them of impossible crime under the
were it not for the inherent impossibility of doctrine enunciated by the SC in the case of Intod
its accomplishment. How can they vs. CA.
accomplish when the victim was not there,
when he turned out in other places?
CONSUMMATED
On the other hand, the prosecution
believes that it was an attempted murder. Q: What is a consummated felony?
They failed to kill him because they failed A: A felony is consummated when all the elements
to perform all the acts of execution, necessary for its execution and accomplishment
because of a cause other than their own are present.
spontaneous desistance. And that cause is
the fact that the victim turned out not to The definition of a crime in Book II contains the
be there. elements which you can detect by splitting the
definition into parts. And to convict a person of a
ISSUE: What crime was committed? particular crime, you have to prove all the
elements to establish the crime. If all the elements
RULING: The factual situation of the case of a crime are present, then the felony is
at bar presents a physical impossibility consummated. That’s the simple test.
which render the intended crime
impossible of accomplishment, and under For example, with intent to kill. A shot B and B
Article 4(2), such is sufficient to make the died. That is consummated homicide or murder.
act an impossible crime. To uphold the
contention of the prosecution that the Q: But suppose some elements are present and
offense is attempted murder because the some elements are absent. Suppose a crime is
absence of the victim was the supervening composed of several elements, then the
25
prosecution has established only some of the During the trial, the prosecutor proved that the
elements but the others are not, what will happen? accused was able to get money from the victim
A: There are Three Possibilities. and he did not return the money. So there was
pecuniary damage. But there was no deceit, no
1. The accused can be found guilty only abuse of confidence.
of frustrated or attempted felony.
Q: So, what has been proved?
Example: A, with intent to kill, shoots at B. But B A: It is a simple loan. Therefore, there is no
did not die because the doctor saved his life. estafa. It is purely a civil obligation. In the
absence of abuse of confidence or deceit, the
Q: Is the crime consummated homicide? cause of action is purely civil. No crime is proven
A: Of course not. It is frustrated homicide. but there is civil liability.
2. The accused cannot be convicted of However, there are certain crimes where you will
the felony charged in its have a hard time determining the stage of
consummated stage but he can be execution.
found guilty of another felony also in
its consummated stage. SPECIAL CRIMES
Example: A is accused of murder because Art. 121. Flight to enemy's country. — The
according to the prosecution, with intent to kill, A penalty of arresto mayor shall be inflicted
shot B and killed him by means of treachery. upon any person who, owing allegiance to
During the trial, the prosecution proved that the the Government, attempts to flee or go to an
accused shot the victim. He shot A with intent to enemy country when prohibited by
kill. The victim died but there was no treachery. competent authority.
So, the charge is consummated murder, the crime
proven is consummated homicide. Problem: Philippines is at war with another
country. So. All citizens of he Philippines are
That is the 2nd possibility. When the prosecution banned from going to that country. Suppose, in
prove less than the elements of the crime charged, violation of that, you decide to go to that country.
the accused can be convicted of another crime also When you come back, the government will file a
in its consummated stage. In the law on criminal case against you because you visit a country with
procedure, that means the accused is convicted of which we are at war and there is prohibition.
a crime necessarily included in the crime charge.
3. When a person is charged with a You really wanted to go. You are on the act of
crime which consists of two or more going; you are about to board a plane. You are
elements, some elements are proven caught! So, you are not able to go. You attempt to
but the others are not, the accused go, consummated. You go and you are caught,
should be acquitted because no crime consummated also. The attempted and
was established. consummated stages are identical, that is why a
mere attempt is already considered consummated.
Example: A accused B of estafa under the Penal
code. Generally, the elements of estafa are:
a. Misappropriation; 2) CONSUMMATED OR NOTHING
b. Deceit or abuse of confidence; and
c. Pecuniary damage suffered by the There are some crimes where there is no
plaintiff. attempted or frustrated. It’s either consummated
or nothing.
26
Examples: A: In one case the Sc said that there is no
a. FELONY BY OMISSION – You failed to do frustrated stage in rape. These can only be learned
an act which the law commands you t do if you know the jurisprudence.
as a duty. So, if you do act, you don’t
commit any crime. But if you do not do it, Q: So, based on Art. 6, what are the
there is a crime. Either you do or you do classifications of felonies according to stages of
not do. execution?
b. FALSE TESTIMONY IN COURT prescription A: They are the following:
starts from when the judgement becomes 1. attempted;
final 2. frustrated; and
c. SLANDER – When you orally defame 3. consummated.
somebody in public presence; kawatan
ka, rapist pa gyud!!! What did you The rule that slightest penetration is rape is
commit. You have orally defamed the apllicable only if the penis is erect!!!
person to put him in dishonor. Suppose, but be careful if fininger kasi rape parin yan.
you just said; kaw… You did not finish. Is Concubinage ug adultery no frustarted
that attempted slander? NO! Either you
say the whole thing or you don’t. Art. 9. Grave felonies, less grave felonies and
light felonies. — Grave felonies are those to
Some authors call that FORMAL CRIMES where which the law attaches the capital
there is only one stage as distinguished from punishment or penalties which in any of their
crimes composed of stages which are called periods are afflictive, in accordance with Art.
MATERIAL CRIMES, like homicide. But even in 25 of this Code.
material crimes, it is also hard to distinguish one Less grave felonies are those which the
from the other. law punishes with penalties which in their
maximum period are correctional, in
For instance, ARSON. accordance with the above-mentioned Art..
You burn a building. Out of 30 rooms, only Light felonies are those infractions of law
two are totally burned. The fire was for the commission of which a penalty of
extinguished. So, 2/30. arrest menor or a fine not exceeding 200
pesos or both; is provided.
Q: What is that – attempted, frustrated, or
consummated? How much portion of the building Q: What are the classifications of felonies
must be burned before it becomes consummated, according to their gravity?
frustrated, or attempted? A: According to their gravity, felonies are
A: According to the SC counting the number either:
of rooms or percentage of the building which was 1. grave;
burned is not the way to determine the stage of 2. less grave; or
execution of arson. No matter how small is the 3. light.
portion burned, that is already consummated
arson.
SUMMARY OF CLASSIFICATIONS OF
Q: If that is so, how can you commit FELONIES UNDER THE RPC
frustrated or attempted arson? Is there such a
thing as attempted or consummated arson?
1. Art. 3 – a) felonies by act
A: Yes. That is answered by jurisprudence.
b) felonies by omission
The same thing with rape. According to the SC,
2. Art. 3 – a) intentional felonies
there is no such thing as half measure or quarter
b) culpable felonies
measure in a rape. Mere penetration of the labia
no matter slight or momentary, even if there is no
3. Art. 6 – a) attempted
emission, consummates the crime.
b) frustrated
c) consummated
If there is sexual intercourse between the rapist
and the victim, even how fleeting it is, or how
4. Art. 9 – a) grave
shallow the penetration, that is already
b) less grave
consummated. If it is in the act of entering but it is
c) light
discontinued, that is attempted.
Q: How do I know that a felony is grave? The reason for the rule is that a light felony is
A: According to Art. 9, if it is punishable by merely a minor infraction of the law. As a matter
death, or any penalty which the Code classifies as of fact, even if the light felony is consummated,
afflictive, it must be a grave felony. the penalty is only arresto menor or a fine not
exceeding P200. damage or injury to society or to
Q: What are the afflictive penalties? the public order is very negligible. If it is
A: Under Art. 25, you have the following: negligible, what possible damage to society is
1. reclusion perpetua; there if the light felony is only attempted or
2. reclusion temporal; frustrated? It is so microscopic in size that the law
3. perpetual or temporary absolute would rather not punish it anymore.
disqualification;
4. perpetual or temporary special However, Art. 7 has also an exception: x x x with
disqualification; and the exception of those committed against persons
5. prision mayor. or property. If the light felony is classified as an
offense against persons or property, it will be
So, any crime in the RPC which carries any one of punishable even if it is only attempted or
those penalties is automatically a grave felony. frustrated. Meaning, the law does not forgive it. It
would still penalize the felony even if it is
negligible.
LESS GRAVE FELONIES
Q: What is the reason why the law gives this
Q: What is a less grave felony? exception?
A: It is one which, in its maximum period is A: Crimes which would be an offense against
punishable by a penalty classified as correctional in persons or property which show or demonstrate a
nature. If the penalty is correctional, it is less greater degree of the moral depravity or perversity
grave. of the offender. Meaning, those who commit
crimes against persons are more perverse than
Q: What are the correctional penalties? those who violate the other Titles of the Book.
A: Art. 25 of the RPC gives the answer.
1. prision correcional; That is correct. In the newspaper, 99% of all the
2. arresto mayor; crimes reported nowadays are against persons or
3. suspension; and property. Estafa, murder, homicide…. These are
4. destiero. the most common crimes. So, the Penal Code has
a special treatment for crimes against persons or
property. That is illustrated in impossible crimes.
LIGHT FELONIES
Art. 4. Criminal liability. — Criminal liability
Q: What are light felonies? shall be incurred:
A: They are infractions or violations of the x x x
RPC where the prescribed penalty is imprisonment
of arresto menor, or a fine not exceeding P200 or 2. By any person
both. performing an act which would
be an offense against persons or
property, were it not for the
Art. 7. When light felonies are punishable. — inherent impossibility of its
Light felonies are punishable only when they accomplishment or an account of
have been consummated, with the exception the employment of inadequate
of those committed against persons or or ineffectual means.
property.
Crimes against persons and property are special
GENERAL RULE: Light felonies under Art. 9 are targets of the RPC.
only punishable if they are consummated.
EXCEPTIONS:
1. light felonies against persons;
28
Art. 8. Conspiracy and proposal to commit felony. So, the fiscal will charge them with the crime of
— Conspiracy and proposal to commit felony conspiracy to commit murder.
are punishable only in the cases in which the
law specially provides a penalty therefor. Q: If you are the lawyer of the accused, what will
A conspiracy exists when two or more you do?
persons come to an agreement concerning A: I will move to quash the information because
the commission of a felony and decide to according to Art. 8 mere proposal to commit a
commit it. felony, mere conspiracy to commit a felony is not
There is proposal when the person who punishable. There is no commencement yet; the
has decided to commit a felony proposes its act is only preparatory. The conspiracy or proposal
execution to some other person or persons. is only a preparatory act to the crime.
Art. 8 gives us the concept of proposal to Q: So, is there such a crime of conspiracy to
commit a felony and conspiracy. Of course, Art 8 commit murder?
presupposes that there are at least two persons A: NO, because the preparatory act is not
involved. You cannot give a proposal to yourself punishable.
and agree with yourself. So, minimum of two. The
person proposing the felony, and the person to Q: So, what is the legal principle involved in
whom the proposal is made. proposals or conspiracies to commit a felony?
A: The rule is they are not punishable.
There is proposal when the person who
has decided to commit a felony proposes its Q: If we agree to rob a bank, and before we have
execution to some other person or persons. started the robbery we are caught. You cannot say
there is robbery because we have not even
In other words, a person who has decided commenced the overt act of robbery. It is just an
to commit a felony proposes its execution to some agreement. Are we guilty of conspiracy to commit
other person or persons. He is not joking. He has robbery?
decided. A: No. There is no article in the RPC which
penalizes the crime of conspiracy to commit
EXAMPLE: I approach A and say, “I will pay robbery. So, in reality, according to Art. 8, mere
you P1,000.00, you assassinate X.” From that conspiracy to commit a felony is not punishable.
time, there is already a crime of proposal to REASON: They are only preparatory acts. When I
commit homicide or murder, because I decided to propose the commission of a crime, we agree, we
commit a crime and proposed it to somebody. are not yet in the act of executing the crime. We
are still preparing for it. and we have learned that
Q: Suppose, the gunman did not agree to the preparatory external acts as a rule are no
proposal and said; “No, shit. I don’t accept!” Is punishable, except when the law provides a
there still a proposal? penalty for a mere preparatory. So, we have to
A: Of course, because proposal is unilateral. Once apply the exception here.
a proposal is made, it is there whether the person
to whom the proposal is made accepts it or not. As Art. 8 says “unless the law specially
a mater of fact, the person should not accept provides a penalty therefore”. Meaning,
because once he does so, there is now an conspiracy or proposal is not punishable unless the
agreement and the proposal becomes a law makes conspiracy or proposal punishable for
conspiracy. certain offenses.
As defined in the RPC, a conspiracy exists Q: Are there instances when mere conspiracy or
when two or more persons come to an agreement mere proposal becomes a felony?
concerning the commission of a felony and decide A: Yes. That is when the law provides a penalty
to commit it. so, I propose; you agree. We decide therefore. And there are many crimes in the RPC
to commit the felony. There is now conspiracy. which can be consummated by mere proposal or
mere conspiracy, such as the following:
Once the proposal is accepted, it now
reaches the stage of conspiracy, and the parties 1. machinations in public auctions;
are now covered by the definition of conspiracy. 2. monopoly or combination in restraint of
Suppose, at that moment, they are caught and trade;
arrested. 3. abuses against chastity (as when a public
officer or a prison warden makes
Q: Is there an attempted murder? unchaste proposal to a woman prisoner
A: No, not yet. Because in murder, the offender who is under his custody, there is already
must have commenced the commission of the act. a crime)
29
1. A special penal law is a law which
But the most famous conspiracies that punishes acts or omissions not
constitute crimes are those which are directed defined and penalized by the RPC.
against the internal or external security of the
State, such as the following: Example: violations of the
Dangerous Drugs Act – like
1. conspiracy to commit treason (Art. 115); pushing – that is not found in
2. conspiracy to commit rebellion or the RPC but in another law, that
insurrection (Art. 136); is, RA 6425, as amended.
3. conspiracy to commit coup d’etat (Art. Another is illegal possession of
136, as amended by RA 6968); and firearms which is penalized by
4. conspiracy to commit sedition (Art. 141) PD 1866.
For example, A started to insult B, uttering If somebody is going to kill you with a knife, if
derogatory remarks against B. B hit back and you are brave, do not run away. Wait for him, and
injured A. For the injury sustained by A, B pleads then defend yourself. If you kill him, you can still
self-defense. QUESTION: Can B invoke self- invoke self-defense. It cannot be taken against
defense? ANSWER: NO, B cannot claim that he you. The rule is stand ground when you are right.
acted in self-defense because B was the aggressor. You have the right to act where you are because
There can be no self-defense here because you are not the aggressor.
the aggression is verbal. What the law
contemplates is physical attack. Insulting There are two types of aggression:
words, no matter how slanderous, cannot cause
death or physical injuries. It is directed against A. Lawful Aggression
your name or honor, but not your body. So, that
does not constitute aggression within the meaning Example: Aggression by a public officer who is
of Article II(1). acting in the fulfillment of a duty to effect an
arrest.
Take note also of certain important
doctrines in self-defense. Q: How does he arrest the person?
A: According to the Rules of Court, the arresting
1) when one claims self-defense, the law officer can use such force as may be reasonably
assumes that there is no mutual agreement necessary to effect the arrest. And because he
between both parties to fight. when there is can use force in the process of effecting the arrest,
mutual agreement to fight, no one can claim the policeman may become an aggressor.
self-defense and each one is responsible for
each one’s injury. Suppose, here is a thief running with his
stolen items. The police is after him. The thief
EXAMPLE: Two people agree to fight. And in the hits back at the policeman. Now, the policeman
course of the fistfight. A inflicted injury on B. B sues him for direct assault. The thief invokes self-
inflicted injury on A. and each of them files a case defense. His defense is that the policeman is an
against the other for the injuries. They ended up aggressor. If the policeman did not try to arrest
suing each other for physical injuries. And of him, he would not hurt the policeman. The latter
course, the defense of both is self-defense. should have left the policeman alone. That cannot
QUESTION: Who is entitled to self-defense? No be! There is aggression, but it is a LAWFUL
one is entitled. When both of them agreed to aggression. That is the duty of the policeman, so
fight, each of them became an aggressor against his aggression is lawful in nature.
the other. No one can claim self-defense. In fact,
each of them is liable for the other’s injury. B. Unlawful aggression
“By agreement” means that there is no Example: If you are walking on the street
need of a written contract. A verbal agreement is peacefully an here comes somebody with a knife.
sufficient. He tries to stab you with it. That is unlawfully
aggression. Unless he can point to a law which
2) a person does not have to be cornered against authorizes him to approach anybody and stab him.
the wall before he can lawfully defend himself
from an unlawful aggression. By “unlawful aggression”, it means that
there is danger to your life and limb. Aggression
The old concept of self-defense is “retreat to can either be an actual or threatened
the wall”. One can only act in self defense if he is aggression. Aggression need not be actual, it
cornered. Meaning, if somebody is going to kill could also be a threatened.
you, try to avoid him. But if you are already
cornered, you have no more means of escaping, There is no problem if the aggression is
that is the only time you can defend yourself. But actual. If it is actual, it is on-going.
that concept has already been DISCARDED.
Q: But does the law expect the aggression to
The rule now is maintain your ground when commence before you can act in self-defense?
in the right. Meaning, if you are wlaking A: No, the law does not really require a person to
peacefully and here comes somebody who wants wait before defending himself because it might be
to stab you, there is no obligation to run. There so too late. The law would be demanding too much if
34
it requires that the person defending must first conduct of the deceased in rocking the
wait for the aggressor to pull out his gun from his boat until the point of it having taken in
waist before the former can defend himself. When water, and his insistence on this action
the law says ”unlawful aggression”, it inspite of the accused’s warning, gave rise
contemplates of actual aggression or threatened, to the belief on the part of the accused
imminent aggression. A threatened aggression that it would capsize if he did not separate
amounts to actual aggression. the deceased from the boat in such a
manner as to give him no time to
Q: When does a threatened aggression amount to accomplish the purpose. It was necessary
actual aggression? What is the TEST given by the to disable him momentarily.
Supreme Court?
A: The criterion reached by the Supreme Court is For this purpose, the blow given by
a threatened aggression amounts to actual the accused on the forehead with an oar
aggression, if the threatened harm is was the least that could reasonably have
imminent, or on the point of happening. been done. And this consideration
Meaning, maybe in less than one second, you are militates with greater weight with respect
dead. Your enemy beat you first. So, that is the to the second blow given in his neck with
criterion – imminent or at the point of the same oar because then the danger was
happening. Therefore, if it does not meet that greater in that the boat might upset,
standard, it is not unlawful aggression. especially as the deceased had expressed
his intention to upset it.
Suppose A attacked B, and B landed on Another point that you will notice in the
the ground, sustaining many blows. Then A left. law of self-defense is that the law says that self-
When A left, B stood up, chased A and attacked defense applies to anyone who acts in defense of
him. B killed A. B claimed that the killing of A is his person or rights. There is no question about
self-defense because it was A who attacked him “person”. When somebody is trying to hurt or kill
first. QUESTION: Is B entitled to self-defense? me, I can act in defense of my person. But the
ANSWER: NO, because of the rule that you could problem is the “rights”.
only act in self-defense: while the aggression is
still going on or is about to start. Q: What are the rights which can be defended
under Article 11(1)?
A: The right to chastity of a woman. For
PEOPLE VS. ALCONGA example, a guy is about to rape a woman and the
79 PHIL 366 woman killed the would-be rapist. She is accused
of homicide. She can claim that she acted in self-
FACTS: The victim here was playing cards defense. Although rape is not considered as a
– blackjack. He was the dealer until he crime against person, but against chastity, a
noticed that he was losing. He suspected woman’s right to defend her honor from sexual
Alconga as the one giving the signal to the attack is considered as a right similar to defending
winning party. So, he started to attack one’s person under Article 11(1). NOTE: rape
Alconga by hitting him with a cane. now is a crime against PERSON.
Alconga had to run under a bench, but the
dealer continued hitting him. What is controversial here is whether the
right to protect one’s property can give rise to self-
This made Alconga think that the defense under Article11(1). If, for example, a
victim was serious. He had to draw his thief or robber tries to run with your wallet or
gun, fired at the dealer and inflicting a jewelry, and in order to stop him from running
would. When the dealer realized that this away, you shoot him to death, can you now claim
time he was wounded, he ran away. self-defense? There was unlawful aggression on
Alconga started to chase him, overtook your property right because he was taking your
him and fired the second shot, killing the property. Can you say that I had to shoot him
victim. Alconga was accused of homicide, because there was an aggression on my property
and his defense was self-defense. right? Is that a valid defense? ANSWER: NO,
defense of property can give rise to self-defense
Held: There was no self-defense. When under Article 11(1) only if the attack on one’s
the dealer started to hit Alconga, that property is coupled with an attack on his person.
constituted unlawful aggression. So that
when Alconga shot the victim, he was Like, for example, a robber tried to get
justified in doing so as he was only acting your money and when you tried to resist, he drew
in self-defense. But from the moment the out his knife. So, you have to give him your
victim ran away, the danger to Alconga’s money. Or, suppose a robber entered your house
life and limb ceased. The unlawful and in getting your property, he tried to kill you
aggression has ended, and therefore, there but you killed him first. QUESTION: Are you
was no more reason for Alconga to fire the entitled to self-defense? ANSWER: YES, because
second shot. But when Alconga gave the attack or aggression on your property was
chase and overtook the victim, he was no coupled with an attack against your person.
longer acting in self-defense. As a matter
of fact, at that stage of the fight, Alconga Q: But suppose, when that same robber saw you,
became the unlawful aggressor. he started to run away, but when he was about to
36
jump out of the window, you shot him. Are you 2. the weapon used to defend is also
acting in self-defense? reasonable.
A: NO, because there is no assault on your
person. What justified killing is not the assault on Course of action taken by the offender
the property right, but the assault or attack on means his conduct and response to the occasion
one’s person. So, it must be coupled with an whether your reaction is reasonable or not.
attack on one’s person. The reason is simple: the
value of property can never be equated to human Q: How do you determine the reasonableness of
life which is supposed to be priceless. one’s reaction to the aggression?
A: it depends on the factors. It depends on the
circumtances of the person, time and place.
PEOPLE VS. NARVAEZ
Q: if somebody is walking in a very dark street
121 SCRA 389 which is a very dangerous area, and all of a
sudden somebody in the dark held him tightly at
the back, and he responded by hitting his attacker,
FACTS: There was a land conflict between
could you say that the reaction of the person is
a big corporation and some persons, one
reasonable?
of whom was Narvaez. He had a house
A: YES, based on the circumstances of time and
and a rice mill, which the corporation
place.
wants to get from him.
But, for example, you are inside the
One day, after sleeping inside the
classroom, and then you feel somebody behind
house, he woke up and saw men
you. He touched you, then you turned around and
hammering away. They were putting up a
threw a punch on his face because he might attack
fence around the property. So, Narvaez
you. That is a different story. That is not
got his rifle and fired at them, hitting one
reasonable.
of the victims. The others started to run
towards the jeep to get their arms.
Reasonableness of the weapon used.
Narvaez also shot at and killed all of them.
The law does not require perfect equality of
weapons. What the law requires is reasonable
He was charged with homicide and
equality. This does not mean to say that you
his defense is that there was unlawful
should not use gun because the aggressor is
aggression against his property. But there
attacking you only with a bolo or knife. A gun is
was no danger to his life. The aggression
more powerful than a bolo or knife, but you are
against his property was not coupled with
now placed in danger because of the aggression.
an attack against his person.
It is not perfect equality but reasonable,
considering the fact that when a person is under
Held: strangely, he was acquitted. This
attack, instinctively he will use the first available
was self-defense. The act of the victims in
means at his disposal to defend himself, and when
ordering the fencing of the home and
a person is under unlawful aggression, you cannot
ricemill of Narvaez
expect him to think coolly and to choose what kind
constitutes unlawful aggression against his
of weapon to use.
property.
For example, if somebody attacks you with
This is a stray decision. It cannot be reconciled
sticks, does it authorize you to use your armalite?
with the general rule. This should not be
It is unreasonable for a person, while being
considered as the controlling rule because it is in
attacked by somebody with a pichicorno or chaco,
fact an aberration.
to use an M206 submachine gun to defend himself.
That is too much! Obviously, there is no
REASONABLE NECESSITY OF THE MEANS
proportion between the weapon used by the
EMPLOYED TO PREVENT THE AGGRESSION
aggressor and the one used by the person
defending himself. The weapon used by the
Q: What do you prevent?
aggressor is not sufficient to kill. Why will you use
A: You prevent an actual aggression. You repel a
a weapon that can kill?
threatened aggression. But in either way, you
must use reasonable means.
However, reasonableness of the weapon is not
only measured by – using a knife as against a fist;
Q: What do you mean by reasonable means?
using a club as against a chaco. You also have to
A: Reasonable means refer to two means:
consider:
1. the course of action taken is
* the size or power of the weapon;
reasonable; and
37
the character of the parties; and Q: what are the principles to be remembered
their relative standing. under the 3rd element?
A: First, there was no provocation at all on
Size. So, if somebody attacks you with a knife, the part of the person defending himself.
and then you defend yourself also with a knife, Without doing anything, somebody attacks you.
you cannot say that the means is reasonable There was total absence of any provocation.
because his is larger, and yours is shorter.
Second, the person defending himself
Power. The law says the means is reasonable if a might have given some provocation but it is
gun is used to defend yourself from somebody who not sufficient. In that sense, the law allows him
attacks you with a knife. You say that it is to plead self-defense because, even if he gave
reasonable because a gun is more powerful provocation, it is not commensurate with the
against a knife. No all things are being equal. A reaction on the attacker.
knife can also kill especially if the assailant
succeeds. Q: How do you determine the sufficiency or
insufficiency of a provocation?
Character of the parties & their relative A: The guide there is, the provocation that you
standing. Maybe it is unreasonable to use a knife gave is such that it is normal and natural for him
when somebody attacks you with a fist, one-by- to react by becoming an unlawful aggressor.
one. But when five or ten people attack you with Meaning, if I uttered a remark, which is annoying
their fists, and you use a knife against them, that or irritating, it does not justify you to start to kill
is reasonable. me. I can still plead self-defense because the
reaction is not commensurate with the
Q: When we say reasonable of the means, are we provocation the provocation, assuming there is
referring only to weapons? Is this the only factor? one, is not sufficient.
A: NO, there are other factors. You, too, will have
to consider the number of aggressors. Like in one case, a landowner saw
somebody trespassing on his land. One day, he
For example, you were attacked by fist watched out for him to pass by. When the
blows, and you used a knife or club to defend landowner saw the trespasser, he asked, why are
yourself. It might be unreasonable because you you passing through my property? Who gave you
should also use your fist, that is true. But all the permission? The guy did not answer, but
things being equal, suppose the aggressor who instead killed him. QUESTION: Was there
attacks with a fist is Manny Pacquiao, or Mike sufficient provocation? ANSWER: Maybe yes. If
Tyson, you are not required to use your fist. It is the landowner did not confront the accused, he
reasonable for you to use a club because, would not have been killed. Does this mean that
considering the relative strength, you have might the landowner has no right to ask a trespasser?
have a chance with a club. Or you are attacked by The landowner could have given the provocation,
7 men. There are 7 of them who maul you, and but that is not sufficient for a trespasser to kill the
you are alone. Here, you may use a club. landowner. The accused was only asked. And the
landowner has the right to ask him.
Q: What is that called?
A: The Number of Aggressor Rule. So, that is Third, the person defending himself
the balance. Reasonable equality, not perfect might have given sufficient provocation, but
equality. his provocation was not immediate to the act
of aggression, he can still invoke self-
LACK OF SUFFICIENT PROVOCATION OF THE defense.
PERSON DEFENDING HIMSELF
EXAMPLE: I provoked Mr. A today, but he did not
react. Then, after six months, when we met at
If you are a victim of unlawful aggression,
San Pedro St., he started to attack me. So, I have
even if you defend yourself reasonably, still you
to defend myself. QUESTION: Can I claim self-
cannot claim self-defense if you were the cause of
defense? ANSWER: YES, because the provocation
the aggression, because you gave sufficient
was not proximate or immediate to the act of
provocation. You are also at fault. You are partly
aggression. It is different if I provoke you now,
to blame for the other party’s reaction. So, if I
you react immediately.
provoked you and because of that provocation you
attack me and I have to defend myself with
Meaning, I gave a provocation now,
reasonable means, I cannot claim self-defense
sufficient provocation. You attack me and I kill
because I an also at fault.
you, there is no self-defense because of the
absence of the 3rd element. But if I gave a
38
provocation now, and then you attack me one year degrees and those by consanguinity
from now, and I kill you, I can claim self-defense. within the fourth civil degree, provided
You cannot invoke the provocation I gave last year that the first and second requisites in
to defeat my claim for self-defense. the next preceding circumstance are
present, and the further requisite, in
There is a close co-relation between the first and case the provocation was given by the
the third elements – unlawful aggression and lack person attacked, that the one making
of sufficient provocation. defense had no part therein.
(2) Any one who acts in defense of he If your brother has not provoked anybody
person or rights of his spouse, and is attacked, all the more that you can legally
ascendants, descendants, or legitimate, defend him: it’s better that your brother has not
natural or adopted brothers or sisters, or provoked anybody and is attacked, you can defend
of his relatives by affinity in the same him. But if your brother or your father provoked
39
somebody, and your brother or father attacked, he because actually, it was just a coincidence that my
cannot invoke complete self-defense because his enemy was attacking a stranger. And since the
provocation will prejudice him. aggressor was my long time enemy, it is apparent
that I was induced by revenge, resentment, or
However, even if it prejudices him, it will other evil motive.
not prejudice you. While he may not act in lawful
self-defense, you may still act in lawful defense of
relative because what is important is that you (4) Any person who, in order to avoid an evil
have no part in the provocation. or injury, does an act which causes damage
to another, provided that the following
requisites are present:
(3) Anyone who acts in defense of the person First. That the evil sought to be
or rights of a stranger, provided that the first avoided actually exists;
and the second requisites mentioned in the Second. That the injury feared be
first circumstance of this article are present greater than that done to avoid it:
and that the person defending be not induced Third. That there be no other
by revenge, resentment, or other evil motive. practical and less harmful means of
preventing it.
Briefly DEFENSE OF STRANGERS
Briefly, this is the justifying circumstance of
Q: Define a stranger? STATE OF NECESSITY or the Emergency Rule.
A: A stranger is a person who is not among the You are confronted with a situation where you are
relatives in paragraph 2. So, if you defend a left with no choice because either way you do it,
relative in the 5th civil degree, that is already a you also cause harm, injury, or damage to the
stranger. The word “stranger” is not literal, as property of another. In order to avoid evil or
somebody who is unknown to you. If you have a injury to yourself, you commit acts which would
best friend, you see him being attacked, and you also injure others, provided that the three
came to help him, that constitutes defense of requisites are present.
stranger. So, stranger is practically, the whole
human race. EXAMPLES:
Q: Why? What is the principle behind defense of
stranger? (1) If the injury feared is greater than that done –
A: Humanitarian reasons. What you can do for injury feared in death
yourself, the law allows you to do it for others. My
fellowmen, my keeper. That’s a noble principle. You are driving your car in the
highway, observing traffic rules and
The element are the same with the two regulations. Then all of a sudden in front
first elements of self-defense: of you is an overspeeding 6x6 truck
(i) unlawful aggression; straight to your direction. What will you
(ii) reasonable necessity of the do? If you will drive on, you will be
means employed to squashed to death. If you stopped, you
prevent or repel the will still be killed. Your only recourse is to
aggression; and turn left or right to avoid the collision. But
(iii) that the person defending if you turn left, you will fall into a cliff and
be not induced by revenge, surely you will also die. The only
resentment or other evil alternative is to turn right, but by turning
motive. right, there are people who will surely be
ran over. Since you have no choice, you
So, what differs this is the third element. It have to adopt the only remaining
means that you were motivated by humanitarian alternative through which you can save
sentiment. You really did it to defend the your own life. And for the death or injury
stranger. You were not induced by revenge, to those people that you would run over,
resentment, or other evil motives. you can invoke the emergency rule or
state of necessity.
But, for example, I am looking for my
enemy because I want to kill him. And then when But suppose, I am also
I saw him, he was attacking somebody, so I overspeeding. And even if apply my
entered the scene and killed him. Let us assume brakes, I will still collide with the truck.
these things are established because these are Then I cannot avail of this rule in case I
matters of evidence. QUESTION: Am I entitled to injure or kill somebody because the
complete defense of stranger? ANSWER: NO, emergency rule cannot invoked by the
40
person who caused the state of The best example for this is applicable to
emergency. law enforcement officers because in the
performance of their duty, they can hurt people.
(2) To save more properties from fire, a property Arresting officers, who are authorized to employ
will be sacrificed – destroy three or more reasonable force sometimes injure, and then the
houses to save fifty houses. person arrested sues the policeman for physical
injury or even homicide.
(3) To save a vessel and people’s lives, the
cargoes will be jettisoned. Q: What would be the defense of the policeman?
A: He acted in fulfillment of his duty.
No one can invoke the emergency rule if he
brought out the emergency himself. One who But take note that in order to avail of this
causes the emergency has right to invoke the justifying circumstance, it must be established that
emergency rule. is a proper fulfillment of a duty. A policeman
cannot simply commit homicide when there is no
Like a person who is over speeding and saves his need for him to kill person to be arrested. In that
life by killing somebody. He wanted to avoid case, the fulfillment of the duty would be
collision. He is not entitled to the rule because he improper.
is the one who brought out the emergency himself.
The use of force may be improper if the
As we shall see later, and even as person to be arrested is peacefully surrendering.
expressed in Article 101 of the RPC, this is the So, for example, if the guy is surrendering, there
only justifying circumstance where there is no is no need to use force. And if the person who
criminal liability, but there is civil liability. surrendered sues you for using force against him,
Normally, the person, who successfully invokes then you cannot claim that it is a fulfillment of a
and proves any of the justifying circumstances duty because your act is improper. The Rules of
under Article 11, does not incur any criminal or Court requires that the use of force must be
civil liability. This paragraph 4 is where there is no reasonable.
criminal but there is civil liability to be borne by
the persons benefited by the act.
PEOPLE VS. DELIMA
(5) Any person who acts in the fulfillment of a FACTS: Policeman Delima is tasked t
duty or in the lawful exercise of a right or arrest a dangerous escapee-convict. When
office he tried to apprehend the convict, the
latter fought back with a sharpened
This provision is short, but actually, it talks bamboo pole. But the policeman was able
of three separate and distinct justifying to evade the attack and the convict turned
circumstances: around and ran away. Delima chased him,
demanded his surrender, but the convict
one who acts in the fulfillment of a duty; continued to run away with the bamboo
one who acts in the exercise of a right; pole, so Delima had to shoot him. He was
one who acts in the exercise of an office. accused of homicide.
Q: What are the requisites? Issue: whether nor not Delima is liable.
A: They are:
(i) that the accused acted in Held: He is not liable because he acted in
the performance of a duty the fulfillment of his duty to arrest the
or in the lawful exercise of convict. There was no other way of
a right or office; apprehending the victim and the latter
(ii) that the injury caused or showed that he was resisting the arrest.
the offense committed be As a matter of fact, he attacked Delima
the necessary earlier. And even when he was running
consequences of the due away, he was taking with him the bamboo
performance of a duty or pole. That showed his determination no to
the lawful exercise of such surrender. There is no other way of
right or office. catching him alive and the only way is to
kill him.
In the fulfillment of duty
This Delima case is often confused with the
Alconga case. In the case of Alconga, the victim
41
was already running away, he was chased and Q: What law gives the right to an owner or
killed by Alconga. The court ruled there that possessor of a property to defend his property
Alconga was liable. How come here in this case when he is unjustly attacked?
the ruling is different when the facts are identical A: The Civil Code, which is called as the
because here the victim was also running away, DOCTRINE OF SELF-HELP.
and so there is no more unlawful aggression?
ARTICLE 429, CIVIL CODE. The owner or lawful
Q: Is there a conflict between the Delima ruling possessor of a thing has the right to exclude
and the Alconga ruling? any person from the enjoyment and disposal
A: There is no conflict because the Alconga case thereof. For this purpose, he may use such
wa decided under paragraph 1, on self-defense, force as may be reasonably necessary to
the Delima case is decided under paragraph 5, on repel or prevent an actual or threatened
fulfillment of a duty. The ruling in Alconga case unlawful physical invasion or usurpation of
was based on the fact that in self-defense, there is his property.
no need for unlawful aggression. There can be no
self-defense without unlawful aggression. That’s A lawful owner of a property has the right
why since there was no more unlawful aggression, to defend his possession of the property and for
Alconga cannot invoke self-defense. But in the this purpose he may use such force as may be
fulfillment of a duty, paragraph 5 does not require reasonably necessary in order to prevent or repel
that the person fulfilling his duty must be the an actual or threatened invasion of his property.
victim of an unlawful aggression.
As a matter of fact, the law recognizes that Q: If, for example, a group of people is going to
in the fulfillment of a duty, the law enforcement forcibly occupy your land, do you have the right to
officer himself may be the aggressor, but for as drive them out?
long as the exercise of his duty is proper, he A: Of course!
cannot be held liable for any injury sustained by,
or death of, the person arrested. That is why, Q: If you are sued by these people for driving
there is really no conflict between the two ruling them out, what is your defense?
because the philosophy behind self-defense is not A: The right to defend your property. But do not
the same as the philosophy behind the fulfillment invoke Article 11(1), you invoke paragraph 5
of a duty. because you are acting in the exercise of a right.
For example, the policeman is going to arrest you But take note, under the Civil Code, the
and then you tried to kill him, instead of use of force to defend your possession of property
surrendering. So, the policeman killed you. What must be reasonable. For example, a pickpocket
is the difference? As a matter of choice, I can grabbed your expensive watch. You chased him.
invoke self-defense, but he could also claim In order to prevent him from escaping, you drew
fulfillment of duty. But when you turn your back your gun and shot him in the leg. As a result of
and rum away, you don’t give up and the which he could no longer run. You are able to
policeman has no choice, so he killed you. Self- recover your watch. He sues you for physical
defense is not anymore there. But he can still rely injuries for the wound that you inflicted in his leg.
on paragraph 5 – fulfillment of duty.
Q: What will be your defense?
In the exercise of a right A: Do not invoke self-defense as it is not covered.
So you say that you acted in the exercise of a right
Q: Is there such a thing as self-defense of to prevent or repel the act of the victim in getting
property? your property.
A: Under paragraph 1, there is none, because in
order to invoke self-defense of property, under Q: Is it reasonable for the owner of the watch to
self-defense, there must be an attack on your immobilize the thief by shooting him in the leg so
person. And if there is none, there is no such that he cannot run?
thing as defense of property. That is not one of A: YES.
the rights contemplated under paragraph 1.
Let us change the story. Your watch was
But there is such an animal as defense of taken from your wrist, the thief was able to run
property under paragraph 5, when the accused away. Since you cannot overtaken him, and in
can prove that he is in the exercise of his right to order to prevent the thief from running away with
defend his property. It must be a proper, due your watch, you shot him in the body and killed
exercise of a right. Now, this paragraph 5 is the him. QUESTION: Can the accused invoke the
real law on self-defense of property. doctrine of self-defense under Article 11(1)?
ANSWER: Of course not! There was no attack on
42
his person. The law requires that there must be directive or memorandum given by Marcos,
an attack on your person, not simply an attack on his superior.
your property right.
Q: Can he invoke paragraph 5, that he acted “in (6) Any person who acts in obedience to an
the exercise of his right”? order issued by a superior for some
A: NO, because while under paragraph 5, in lawful purpose.
relation to Article 429 of the Civil Code, the owner
or possessor of a property has the right to exclude Requisites:
any person from the enjoyment or disposal of his (i) that an order has been issued by
property, the law requires that in so doing, he may a superior;
use such reasonable force to prevent or repel an (ii) that such order must be for some
actual or threatened unlawful physical invasion or lawful purpose; and
usurpation of his property. Is was not reasonable (iii) that the means used by the
for the owner of the watch to kill the thief to subordinate to carry out said order
recover the watch. That is based on the principle is lawful.
that no one is justified to take human life
simply because of property. The best examples are people in the military or
In the exercise of an office police. They are normally following orders. The
Supreme Court said that the order must be lawful
Q: What is the example: or at least prima facie lawful, and the means to
A: Executioner of the National Bilibid Prison. carry out the order must be lawful.
Q: Suppose you are the official executioner. You If you are a subordinate, you were just
are the one assigned to condemn the convict to ordered by a superior, you followed the order and
death by electrocution or lethal injection. The it turned out to be illegal. Now, you are being
convict died. So, now you are sued. What is your sued. Your defense is that you are just following
defense? the order of a superior officer. That is not a valid
A: That you acted in the lawful exercise of an defense. The condition is that the order must be
office. You are an executioner. That is your job. lawful.
But, take note that paragraph 5 says “in Q: So, going back to the whole of Article 11, what
the lawful exercise of x x x office”. So, the is the basis for not being criminally liable?
exercise of an office must be proper. For example, A: That the act is justified. The act is in
the execution is at 3:00 PM. Do not execute him accordance with law. If that is so, the accused
at any other time, say 12:00 noon. That is does not incur criminal liability. And obviously, it
improper because the President might grant him follows that if the act is in accordance with law, he
pardon or commutation of the sentence. But if will not also incur any criminal or civil liability,
you execute him on time, and you are charged except in paragraph 4 (state of necessity) where
with homicide, you can invoke paragraph 5 as a there is civil liability.
defense.
FACTS: A somnambulist or sleepwalker, Q: When a minor is exactly nine years old, where
while sleeping, got up. Got a bolo, and will he fit – the 2nd of 3rd paragraph?
upon meeting his wife who tried to stop A: The Supreme Court said he falls under
him, wounded her and also attack other paragraph 2, because, as interpreted by the SC,
persons. “under nine” means nine years old or below.
Otherwise, there will be a vacuum. So, if he is
Held: He is not criminally liable, it exactly 9, he is under the 2nd paragraph.
appearing that the act was committed
while in a dream. He is covered by the Suppose, the child is a wonder boy, whose
term “insanity” because at the time he mental development is advanced and so can
committed the crime, he lack intelligence. distinguish what is right and wrong. He is still
exempt because the does not distinguish between
Under the law, even if you are medically a minor who is mentally advance and one who is
insane, if you commit a crime during a lucid not. Insofar as the 2nd paragraph is concerned,
interval, you are liable. There are types of insanity there is a conclusive presumption of law that when
where the doctor will say that he is insane for a a minor is nine or below, he has no intelligence.
certain time and for another time, he is normal. He cannot distinguish right from wrong. That is
The lucid interval is the period of sanity. There are conclusive and cannot be overcome.
also types of insanity where there are no lucid
interval. If they are in their lucid interval, they are But the prosecution would insist that it has
liable because during that period they are sane, proven that the boy knows what is right and what
and therefore, they can distinguish what is right is wrong. At the age of eight, he already wrote a
from what is wrong. book on ethics, or he is a chess grandmaster.
QUESTION: Is that allowed? ANSWER: NO, the
exemption is binding. If the child is 9 or below, he
There are persons who are not normal during is exempt. That is conclusive and cannot be
full moon – lunatics. At the last quarter, they changed anymore – complete exemption.
become normal. The mind is affected by the
movements of the moon, like the waves, high tide Q: Suppose the minor is over 9 up to exactly 15,
if full moon. There must be scientific explanation is he exempt?
on that. How come some persons during those A: This time it is conditional. The minor is
periods manifest some kind of lunacy? exempt, unless he acted with discernment.
Article 7 – light felonies are Take note that in entrapment, the idea of
punishable only when they are committing the crime did not come from the
consummated, except those policeman but from the person arrested. The
committed against persons or policeman only resorted to ways and means to
property. So, the rule is: attempted catch the criminal in the act of selling prohibited
or frustrated light felonies are not drugs. But in instigation, the idea of committing
punishable if they are not committed the crime came from the policeman himself. It
against persons or property. That is was he who induces an innocent person to commit
an exemption from liability for reason a crime.
of public policy. But if the light felony
is committed against persons or In instigation, the trap is against an
property, they are punishable even if unweary innocent; whereas, in entrapment, the
attempted or frustrated. trap is against an unweary criminal.
Article 16 – where accessories re not Q: Suspecting that Juan was a drug pusher,
liable for light felonies. SPO2 Mercado, leader of a NARCOM Team, gave
Juan a P100-bill and asked him to buy some
Article 20 – where the accessory who marijuana cigarettes. Desirous of pleasing SPO2
is related to the principal is exempt Mercado, Juan went inside a shopping mall, while
from criminal liability. the officer waited in one corner of the mall. After
15 minutes, Juan returned with 10 sticks of
Instigation – based on public policy, marijuana cigarettes which he gave to SPO2
based on certain jurisprudence; police Mercado, who thereupon placed Juan under arrest
dragnet; it was the SC who recognized and charged him with violation of the Dangerous
such exemption. Drugs Act for selling marijuana cigarettes. Is Juan
guilty of any offense punishable under the
Q: Distinguish instigation from entrapment? Dangerous Drugs Act?
A: In instigation, a public officer or a private A: There is instigation here. This is not an
detective induces an innocent person to entrapment. Juan was not a pusher. In fact, it
commit a crime and would arrest him upon or was SPO2 Mercado who asked Juan to buy
after the commission of the crime by the latter. It marijuana cigarettes for him. It was only because
is an absolutory cause. And jurisprudence says Juan wanted to please Mercado that the latter
the person instigated who commits a felony is bought the said marijuana cigarettes. Therefore,
exempt from a criminal liability. The reason is Juan is not guilty of any violation of the Dangerous
public policy. Peace officer should be the last Drugs Act.
49
incomplete accident, incomplete irresistible force,
The exempting circumstances under Article incomplete uncontrollable fear.
12 are based in the philosophy that there was lack
of voluntariness because of the absence of Suppose I am the accused, I prove that I am a
freedom, intelligence or intent. The other victim of unlawful aggression, that’s why I had to
exempting circumstances, which are not found kill the victim. But I did not use reasonable means
under Article 12, exempt the offender from to defend myself. So, unlawful aggression is
criminal liability not because there was no present but the other two requisites of self-
voluntariness but because of public policy. defense are not present. That is no longer self-
defense, but that constitutes a mitigating
Q: Distinguish justifying from exempting circumstance under paragraph 1 of Article 13.
circumstances?
A: The same thing with paragraph 4 of Article 11
JUSTIFYING EXEMPTING (state of necessity), paragraph 6 of Article 12
CIRCUMSTANCE CIRCUMSTANCE (uncontrollable fear). Those circumstances that
The act committed by a The offender committed have requisites, but not all are present. But there
person is justified; it is a crime, but when he are circumstances where you cannot apply
in accordance with the committed it, there was paragraph 1 of Article 13, like imbecility. That is
law. No crime is no voluntariness on his exempting but there is no such thing as
committed by the part because he acted incomplete imbecility.
accused. without freedom,
intelligence or intent.
There is a crimebut (2) That the offender is under eighteen years
there is no accused. of age or over seventy years. In the case
There is no civil liability, There is civil liability, of the minor, he shall be proceeded
except in paragraph 4 except in paragraph 4 against in accordance with the provisions
(state of necessity) (accident) and of Article 80. (note: Article 80 is
paragraph 7 (lawful or amended by sec 192, PD 603)
insuperable cause)
This is also known as the mitigating
circumstance of MINORITY or SENILITY because
MITIGATING CIRMSTANCES the offender is below 18 or over 70 years old.
Q: Is there a need for a corroborative evidence? Obviously, this only applies to intentional
(i.e. aside from the accused’s testimony, you will felonies. This will not apply to culpable felonies.
present his birth certificate, or the testimony of his This is related to Article 4 (1) on praeter
father or mother or anybody older than the intentionem.
accused). To establish the mitigating
circumstance of minority, will the testimony of the PROBLEM: A, with the intent of inflicting physical
accused be sufficient, or must he present injuries on B, hit B with his fist. The latter fell
corroborative evidence to prove his age down and his head hit a concrete pavement,
considering the fact that his statement might be thereby fracturing his skull. And he subsequently
considered as self-serving on his part? dies. QUESTION: Is A liable for the crime of slight
A: In the case of People vs. Lugto (190 SCRA physical injuries which he intended, or is he liable
754), the Supreme Court said that the accused for homicide that resulted? ANSWER: He is liable
has the burden of proof to show that he was a for homicide, the crime that resulted, applying
51
Article 4 (1), that one is liable for the felony Q: Can Alconga not claim the benefit of incomplete
actually committed although it is different from the self-defense under Article 13 (1)?
one which he intended. A: NO, because there is lacking the requisites.
Where there is no unlawful aggression, nothing
Q: Is A entitled to any circumstance in his favor, exists. Therefore, there is no self-defense,
assuming that he is liable for the crime that complete or incomplete.
resulted?
A: YES, he is entitled to the mitigating Q: Suppose, when Alconga was chasing the
circumstance under Article 13 (3) that the offender victim, the victim was forced to fight back and in
had no intention to commit so grave a wrong as the process he killed Alconga, can he claim self-
that committed. There is diminution of criminal defense under Article 11 (1)?
intent. A: NO, because of the absence of the third
element – lack of sufficient provocation on the part
of the person defending himself. The reason why
(4) That sufficient provocation or threat on Alconga attacked is because earlier he attacked
the part of the offended party Alconga. So, he gave sufficient provocation.
immediately preceded the act. Because of the absence of the third element, he is
not entitled to complete self-defense.
There are actually two circumstance here:
(1) that sufficient provocation on the Q: Can Alconga”s victim claim any circumstance
part of the offended party in his favor?
immediately preceded the act; A: YES, he can claim the mitigating circumstance
(2) that sufficient threat on the part of of incomplete self-defense because there was
the offended party immediately unlawful aggression, the means he used to defend
preceded the act. himself was reasonable, bur he gave sufficient
provocation.
1) the passion or obfuscation must arise from Held: That is not the kind of passion
lawful sentiments contemplated by law. That is libido.
ARTICLE 152, RPC. Person in authority and The foregoing requisites are not
agents of person in authority - Who shall be present in the case at bar. The evidence
deemed as such - In applying the provisions of record shows us that the accused went
of the preceding and other articles of this to the NBI upon the instruction of his
Code, any person directly vested with superior, not upon his own accord.
jurisdiction, whether as an individual or as a
member of some court or government
corporation, board or commission, shall be PEOPLE vs. LEE
deemed a person in authority. A barrio 204 SCRA 900
captain and a barangay chairman shall also
be deemed a person in authority. Issue: Is there voluntary surrender if an
accused gives himself up to ensure his
A person who by direct provision of law or safety? Meaning, his life may be in
by election or by appointment by competent danger. There might some people who
authority, is charged with the maintenance of wanted him dead, so he decided to
public order and the protection and security of life surrender.
and property, such as a barrio captain, barrio
councilman, barrio policeman and barangay leader Held: For a surrender to be voluntary, it
and any person who comes to the aid of persons in must be spontaneous, and should show
authority, shall be deemed an agent of a person in the intent of the accused to submit
authority. himself unconditionally to the authorities,
either:
In applying the provisions of Articles 148 Because he acknowledges his
ad 151 of this Code, teachers, professors and guilt; or
persons charged with the supervision of public or
55
Because he wishes to save them issuance of the warrant of arrest against
( police and government) the the accused before he surrendered?
trouble expenses to be necessity
incurred for his search and Held: The mitigating circumstance of
capture. voluntary surrender cannot, as appellant
pleads, be considered in his favor. He did
In the absence of these two reasons, and not surrender voluntarily. It took 2 years
in the event that the only reason where the and 5 months after the issuance of a
accused is supposed to surrender is to ensure his warrant of arrest against him before he
safety -- his arrest being inevitable, the surrender surrendered. Apparently, when he gave
is NOT spontaneous, and hence not voluntary. himself up, it was not to save the state
from the time and effort needed to capture
This is similar to an old case where a wanted him,. But because he had gotten tired of
criminal was tracked down by the authorities. They the life of a fugitive, or saw no other
found his hideout, and then they surrounded his reasonable alternative to continue absence
hideout early one morning. They shouted, " Come from his home.
out peacefully because there is no way for you to
escape. You are surrounded!" The criminal looked
at all the directions, and found out that they were Estanislao Case
all sealed. So, knowing that there is no more 265 P 10
escape, he came out. Now, he is asking for the
mitigating circumstance of voluntary surrender. Two months after the incident,
That cannot be. He did not surrender; he was voluntary surrender… NO spontaneity.
caught. In the other words, that was not really a
surrender in the sense that the criminal gave up
spontaneously. He had no choice. People vs. Rabanillo
307 SCRA 613
(8)That the offender is deaf and dumb, blind Q: What is the test of volition?
or otherwise suffering some physical defect A: there must a total deprivation of the freedom
which thus restricts his means of action, of the will.
defense, or communication with his fellow
beings. In the Dungo case, that is called the
irresistible impulse test. And the test of cognition
Any physical defect by the accused is - complete deprivation of intelligence - in the
automatically mitigating even if it does not have Dungo case, was called the Right or Wrong Test.
something to do with the crime. Like , you are
dear and dumb, or blind or you are cripple. The But in the case of Rafanan, quoting the
mere fact that the person is not physically normal, case of Golez, it is the test of cognition versus the
that is considered automatically as a mitigating test of volition. Now, which of the two is
circumstance in his favor because that is a considered as covered by insanity, under the
diminution of his freedom - freedom of action. mitigating circumstances?
Even a person who stutters is included.
The Supreme Court continued: " We have
gone over all decided cases before this Court. We
(9) Such illness of the offender as would will still have to see one where we acquitted
diminish the exercise of the will-power of the somebody simply because there was no freedom
offender without however depriving him of on the will. We have not done it, where the
consciousness of his acts. accused failed to show complete impairment or
loss of intelligence, the Court has recognized it a
This is the mitigating circumstance which most as a mitigating circumstance , not an
should correlate with the Article 12 (1) on
57
exempting circumstance, in accord with Article 13 (b) Privilege Mitigating
(9) of the RPC." Circumstance -- they are all
scattered all over the RPC,
So the test of volition is the recognized test especially in Book II. You cannot
in the mitigating circumstances under Article 13 find them, you have to identify them one
(9). For insanity, the test of cognition. by one.
Held: The fact that the accused was Q: Suppose I will commit a crime within the
councilor at the time placed him in a presence of the PNP Superintendent. His presence
position to commit these crimes. If he did not prevent me from committing the crime. Is
were not a councilor he could not have this covered by paragraph 2?
induced the injured parties to pay there A: No, paragraph 2 will not apply in the above
alleged fines. It was on account of his case. The aggravating circumstance does not
being councilor that the parties believed apply to crimes committed within the presence of
that he had the right to collect fines and it constabulary soldiers or PNP men.
was for this reason that they made the
payment. It is true that he had no right to Q: Why?
59
A: Because in order to apply, the crime must be Q: Suppose the four are present in one case,
committed in contempt of or with insult to the would you say that there are four separate
public authorities. aggravating circumstances:
A: Numbers (I) and (iii) should be treated as one.
Q: What do you mean by " public authority" ? But if it is also committed in the dwelling of the
A: Public authority refers to persons in authority, offended party, then that should be regarded as a
like mayors, governors, etc. If you commit the separate aggravating circumstance. The basis for
crime in the presence of a PNP Superintendent, this is that rank, age and sex have a common
that is not contemplated because he is not a characteristic- they are part of the personal
person in authority. He is an agent of a person in background of the victim. You are perverse
authority. considering the personal circumstances of the
offended party, as compared to yours.
However, such doctrine was reversed in
1981. But dwelling, on the other hand, is based
not on personal qualification, but on place.
PEOPLE vs. RODIL
109 SCRA 308
Rank:
Facts: The crime was committed in the It means that there is a difference in social
presence of a constabulary captain, who is standing between you ( the offender) and the
considered as an agent of a person in victim. Social standing could mean many things.
authority. The best example is in the military. If a private
assaults a captain, then the crime should be
Issue: whether or not paragraph 2 aggravated. In an office, if the rank-and-file
applies. employee assaults the manager of the company,
that should be considered as an aggravating
Held: The term "public authorities" are not circumstance.
confined to persons in authorities because
if the intention of the law was to confine Or in a community, if a well-known civic
paragraph 2 to persons in authority, then leader, a well-known person in the community
the law should have been specific. The law whose stature is high, is assaulted by somebody in
should have been worded as: the crime be the community who is not so well-known, or by an
committed in contempt of or with insult to "istambay", that is aggravated.
PERSONS IN AUTHORITY , but he law didi
not use " person in authority" but instead
the term " public authorities". " Public Age:
authorities" is broader, it includes agents The law does not contemplate that the
of persons in authority. offender is simply younger than the victim. What
the law refers to is somebody, whose difference in
age (with respect to the victim) should be one or
(3) That the act be committed with insult or such that one qualifies to be the parent of the
is in disregard other. The age difference should be substantially
of the respect due to the offended party on farther. The wider is the gap between the
account of his rank, age or sex, or that it be offended and the offender, the circumstance,
committed in the dwelling of the offended becomes clearer.
party, if the latter has not given provocation.
For example, the age gap is 20 years.
An analysis of this paragraph would show This can now apply. The older the victim, the
that there are four circumstances there. That the better. You are 20 years old, then you assault
crime be committed in disregard of respect due to somebody who is 70 years old, who is old enough
the offended party on account of his: to be your grandfather. Then that becomes
aggravating.
(i) Rank;
(ii) Age; Q: Suppose, it's the other way around. Suppose a
(iii) Sex; or 70-year old man physically assaulted a 20-year
(iv) That the crime be committed in the old, will the aggravating circumstance apply?
dwelling of the offended party, if A: Yes, because the law does not distinguish who
the latter has not given is older and who should be younger.
provocation.
There must be deliberate disregard of her For example, you are in your house.
womanhood. Everyone, who passes by, you insult. In other
words, you taunt them. One of them go pissed.
He went inside your house and attacked you.
Dwelling: Question: Is dwelling aggravating? Answer: No,
you gave provocation. In this sense, you have
61
waived the sanctity of your own dwelling by doing Abuse Of Confidence
that.
One of the ways of aggravating a crime is
2.) Dwelling is not aggravating if it is an through the ways and means employed in its
integral part or inherent in the crime. commission.
Example: Trespass to Dwelling. In the This will not apply again if the abuse of
crime of trespass to dwelling, dwelling is not confidence is already a part of the elements of the
aggravating anymore; it is already part of the crime. A good example is estafa through abuse of
crime. Or robbery of an inhabited house. That is confidence. When you misappropriate goods
a crime necessarily committed in your house, and entrusted to you, that is estafa. That is not
such is no longer aggravating. aggravating because that type of estafa is coupled
with abuse of confidence. That is already
3.) Dwelling is not aggravating if both the offender considered a part of the crime.
and the offended party live in the same house.
Or, qualified theft by an employee who
You cannot complain that the sanctity of committed it with abuse of confidence. No more.
your house is violated. The offender would just The abuse of confidence there is already an
retort that the house is also his. Both of you have integral part of the crime, so it is no longer
the right ot live in the house. However, this considered aggravating.
exception does not apply in a boarding house,
where the offender and the offended party are This was applied in the case where a "
both boarders. yaya" killed the child entrusted to her care and
custody. So, the killing of the child was
If, for example, in a boarding house, a considered as aggravated by abuse of confidence
boarder enters your room, an exclusive room, and on the part of the offender.
commits crime against you. There, he assaults
you. It should be aggravated by dwelling, With Obvious Ungratefulness
although both of the offender and the victim are
living in the same house on the theory that, while For example, you take somebody to your
it is true that you share the same dining room, the house. You pity him because he is homeless. He
same sala , the room of one boarder is exclusively has no place to go; he is starving. And you are a
his. good Samaritan. You know the Bible, you put
clothing on his back, you feed the hungry, etc…
The decided case is a case on trespass t because whatever you have done to the least of
dwelling wherein a boarder forcibly entered the My brethren you have done unto Me. So, you
room of another boarder. The Supreme Court believe in that too. You took pity on him . When
said: there is trespass to dwelling because the you wake up one morning, your appliances are
offender had no right to enter the room of the gone. What kind of man is that! No "utang na
victim. loob"! that is the essence of obvious
ungratefulness. He repays your kindness with a
Q: Suppose the person who is the victim is staying crime. That is what makes the crime aggravated.
in that house temporarily. He does not own it. He
is just a house guest and he commits a crime
there while he is a guest. Is this aggravating? (4) That the crime be committed in the palace
A: Yes. Dwelling is aggravating even if the stay of of the chief executive, or in his presence,
the victim in the house is as a transient, it is only or where public authorities are engaged
temporary. This is already considered covered by in the discharge of their duties, or in a
paragraph 3. place dedicated to religious worship.
Take note that on occasion like these, Q: How do you distinguish this from a crime
people should help one another. But in your case, committed by a band?
you took advantage of the confusion to commit the A: In here, there are also some armed men. In
crime. The best example is during a fire or band, there should be four or more armed men.
conflagration. People go out there not to help but
to steal. Looters. That is precisely what is Q: Suppose there are only two or three men?
contemplated in this aggravating circumstance. A: Then it falls under paragraph 8, when the crime
As a matter of fact, based on the amendment of is committed with the aid of armed men.
Article 310 of the RPC (qualified theft by a special
law), when the crime of theft is committed during Moreover, to constitute a band, the four
a fire, the crime is no longer simple theft but is armed men should act together in the commission
considered as qualified theft, raising it to the of the felony. Meaning, their participation was
category of a higher offense. direct and they should have acted together. But
here, it is not necessary that the armed men acted
However, if it is not properly alleged in the directly in the commission of the felony. It is
information, the crime is simple theft, aggravated enough that the crime be committed with the aid
by paragraph 7. But if it is properly alleged, of armed men. Meaning, that they acted indirectly
paragraph 7 is converted from an ordinary is sufficient.
aggravating to a qualifying circumstance.
Like for example, one commits the crime
Q: What is an example of other calamity or and then he relies on the armed men behind him
misfortune? to help if necessary. So, meaning, you are
A: Based on statutory construction, it should be of emboldened to commit a crime because you have
the same magnitude as a conflagration , a " back-up". But they did not act directly. They
shipwreck, earthquake or epidemic. are accomplices. In this case, the liability of the
principal is aggravated by paragraph 8.
A good example is the Mt. Mayon
eruption. While people are fleeing for their lives, PEOPLE vs. BUELA
you are committing a crime during the height of a 227 SCRA 534
volcanic eruption or during the height of a
typhoon. Issue: Is the aid of armed men
aggravating if the three persons were all
There was a case before decided by the armed under the same plan and with the
former CFI of Davao City where a motorlaunch same purpose?
runs out somewhere between Davao and Davao
del Sur. Some of the passengers decided to rob Held: When the crime is committed by
their fellow passengers and escaped. They left the three persons who were all armed, the
motorlaunch after robbing their co-passengers and aggravating circumstance of the crime
killing some of the passengers. They were having been committed with the air of
convicted here in Davao and the judge here said armed men under Article 14(8) of the RPC
that the crime was aggravated by paragraph 7 cannot be appreciated in this case because
because it was committed on the occasion of if they acted with the same plan and with
65
the same purpose -- meaning, in order for So, if the two felonies are not embraced in
it to be aggravated in the situation, their the same title of the Code, there is no recidivism.
participation should be indirect rather than The best example is, you were convicted before for
direct. physical injuries, and you are found guilty of
homicide. Physical injuries and homicide are both
Q: What happens if the crime is committed by a Crimes against Persons . Or you were convicted
band when 4 or 5 persons acted together? What before of the crime of theft, and you are found
happens to paragraph 8? guilty of robbery or estafa - which fall under
A: That is already absorbed by a band. Crimes Against Property.
Now, actually, craft and fraud are identical. When the offender tries to conceal
There is an employment of tricks. The offender his identity.
resorted to tricks to commit the crime. The only
difference is the manner the trickery was PEOPLE vs. SONSONA
committed. If the trickery is more of scheme or
action, rather than the use of words - intellectual Facts: The offender covered his
the use of words - intellectual f craft. Whereas, face with a handkerchief in order
fraud refers more to the trickery or to the use of to prevent his being identified. But
words by the offender. Insidious machination by despite that, the victim recognized
the offender. him.
For example, somebody rides a taxi, tells the Held: Disguise is not aggravating
driver to bring him to this place, and then when because he was not successful.
they reach that place, the passenger now Actually, he was still recognized
announces a hold-up and divests the driver of his even if he disguised.
income at that time, or even kills the driver. The
robbery there is definitely aggravated by the use
of craft. And what is the trick? The offender who PEOPLE vs. CABATO
is actually a robber pretended to be a paying 160 SCRA 98
passenger. He tricked the driver to bring him to a
designated spot. If the driver knows your Facts: The accused disguised
intention, he will not get you as a passenger. Why himself by covering his face and
will he allow himself to be robbed or even killed? the disguise fell down, or the cover
Just for that distinction, craft and fraud are almost of his face accidentally fell down.
identical. There is the use of trick or scheme by Therefore, he was recognized.
the offender.
Held: The disguise is aggravating.
PEOPLE vs. EMPACIS
222 SCRA 59 Q: What makes this case different?
A: In the Solsona case, nothing fell down. The
The stratagem and ruses that cover is still intact, but just the same, he was not
constitute craft of fraud are the following: successful. In Cabato case, the disguise could
Where are accused pretended have been successful, only that it fell down.
to be constabulary soldiers and Meaning, had it not fell down, the disguise would
by that ploy, gained entry into have been successful. So, the Supreme Court
the residence of their prey, to considered the circumstance still as applicable.
rob them thereafter.
They pretended to be needful
or medical treatment, and due (15) That advantage be taken of superior
to this, they were able to enter strength, or
the house of the victim and means be employed to weaken the defense.
there robbed and killed him;
When they pretended to be This generally applies to Crimes Against
customers wanting to buy a Persons. Now, in order for the aggravating
bottle of wine; circumstance of superior strength to apply, there
When they pretended to be must be evidence that the offender is of superior
customers wanting to buy a strength than the other. It cannot be presumed.
bottle of wine; It has to be clearly established. And when we say
69
" superior strength", shall it mean to say you have The requisites:
more assets than that of the other?
(i) that the crime should be a
Like for example, when two or more Crime Against Persons;
people committed the crime, superiority in number (ii) what makes the basis for
would definitely give the offender superior aggravation is the ways
strength. OR when one is armed with the weapon and means employed.
and the other is not armed with a weapon, then
superior strength is really apparent. And not only The law does not say the crime was
that. He clearly took advantage of it because if successfully committed. NO. The mere fact that
the crime is the product of anger or emotion, then you mad it to ensure even if you were not
we cannot say that he deliberately took successful, the treachery is already applicable. So,
advantage. There is no showing that the offender it is not the result which matters but the manner.
really relied on superior strength.
Otherwise, for example, I want to kill
That means be employed to weaken the somebody. And I want to kill him by attacking him
defense from behind so that he cannot defend himself. But
still, he survived. The killing was not successful. It
The other one is a little bit different. was not accomplished. But the mere fact that I
Maybe, the parties are of equal strength, no one is attacked from behind, treachery is aggravating.
superior than the other. But the accused saw to it
that the victim will be at the disadvantage. So, if So, it is not the effect but more on the
you are now in a disadvantage, in effect, my manner, otherwise, if we say that everything must
strength becomes superior. be successful, then there is no more crime of
frustrated murder or attempted. Treachery will
It has been applied to cases: only apply every time there is a consummation of
the offense. So, there is treachery even if it is
Where the accused threw sand into the only frustrated or attempted.
eyes of the victim. If your eyes are
filled with sand, you cannot see. You First Requisite: When the victim was attacked
have to close your eyes. So how can at the very moment he was not in the
you defend yourself? position to defend himself.
Where the offender deliberately
intoxicated his victim and the victim That is why generally, when there is an
was already drunk he could hardly attack from behind, there is treachery. Generally,
stand. That is the time he is when the attack is frontal, there is no treachery.
assaulted. Because when the attack is frontal, the accused is
given sufficient warning.
(16) That he act be committed with
treachery (alevosia). Second Requisite: The manner for the attack
There is treachery when the offender was sufficiently planned beforehand.
commits any of the crimes against persons,
employing means, methods or forms in the It is not enough that the attack was from
execution thereof which tend directly and behind and therefore the victim was not in the
specially to insure its execution, without risk position to defend himself. It must be established
to himself arising from the defense which the that the mode of attack was conclusively adopted
offended party might make. beforehand to make it aggravating.
The same thing applies to murder. You kill PROBLEM: After the offender has killed the child,
somebody, and then you escaped from the scene he threw him out of the window.
of the crime through a motor vehicle. The victim
72
QUESTION: Is cruelty there aggravating? Not part of the element Being part of the crime,
ANSWER: No more because the baby did not suffer of the crime. Hence, it it is part of the element
anymore any pain. The victim was already dead. can be proven even if of the crime. Thus, to
not alleged in the be appreciated as a
Actually in Book II, there are information. qualifying circumstance,
circumstances – especially in murder, Article 248 it should be properly
which are identical with these aggravating alleged in the criminal
circumstances here. Like treachery, evident complaint and
premeditation and of armed men or with the use information, and proven
of superior strength, the crime is murder. So, during the trial. Even if
what is their difference? Actually, none, in the it is proven during he
sense that they are of the same description and trial, then it should only
application. However, there is one slight be treated as an
difference. In Article 248, we do not call them ordinary aggravating
ordinary aggravating. These are called qualifying circumstance.
circumstances.
For example, a husband kills his wife, or a Article 15, 3rd paragraph—The intoxication
son kills his father. Relationship there is not of the offender shall be taken into consideration
covered by Article 15. It is a qualifying as a mitigating circumstance when the offender
circumstance which will convert the crime from has committed a felony in a state of intoxication,
ordinary homicide to parricide. But if it is not if the same is not habitual or subsequent to the
covered Book II, then Article 15 applies. plan to commit said felony; but when the
intoxication is habitual or intentional, it shall be
When you kill your spouse, ascendant or considered as an aggravating circumstance.
descendant, or all, that is already qualifying. But
if you kill your own brother, that is not parricide.
The crime was committed when the
Because parricide is limited to relationship in the
offender was intoxicated. The offender was
direct line and does not cover relationship in the
drunk. Intoxication means a state of
collateral line. Killing your brother is either
drunkenness. It has been defined as a state
murder or homicide, aggravated by the
where the mental faculties of the accused are
relationship under Article 15.
already affected by alcohol. Because there are
different degrees of intoxication.
Q: When is relationship aggravating?
A: Based on jurisprudence, it depends on who is
the offender and who is the offended party. The For example, you commit a crime after
general rule is: If the offended party or victim is a drinking one bottle of beer, that is not
relative in a higher level or degree, it becomes an intoxication. So, there must be evidence that the
aggravating circumstance. Like if the son mauls degree of alcohol in your body has already
his father. blurred your senses. Now, will it help or will it be
held against you? It depends.
If they are relatives of an equal level—like
if a brother mauls his brother or brother-in-law, It is mitigating, if the intoxication is:
the rule is the same. Relationship is aggravating. Not habitual or
Not intentional
Suppose the victim is a relative of lower It is aggravating, if the intoxication is:
level, like if a son is being mauled by his father. Habitual or
This time, relationship becomes mitigating Subsequent to the plan to commit a
circumstance, provided, the felony is a light crime or
felony. Intentional
As a general rule, if the degree of Q: How about the high degree of education?
education of the offender is low, it is mitigating A: It is aggravating on the condition that you use
circumstance. If high, it is aggravating. Another your special knowledge to commit a crime.
name for the former is the mitigating circumstance For example: A doctor uses his
of ILLITERACY. However, the decided cases on special knowledge to kill somebody, or an
how degree of instruction are quite confusing accountant uses his knowledge to manipulate the
because sometimes the SC says it is mitigating, records to defraud the company.
and at other times sys it is aggravating.
NOTE: The rule on constructive notice cannot
apply in the crime of bigamy, notwithstanding the
In one case, the accused has possibility of its being more favorable to the
managed to reach Grade 1 or Grade 2. It is accused. ( Sermonia vs. CA, 233 SCRA 155.)
therefore follows that he know his alphabets. That
is his highest educational attainment. He invoked
it. The SC said that this applies only if you have
not gone to school at all. So, practically, who else
76
For the qualifying circumstance of one who will file the case, is the officer in behalf of
treachery to be present, two conditions must the corporation. But the offended party is the
concur: corporation. But definitely, whether you are the
offender or the offended party, you must be a
That the employment means of person because if you are not a person, you have
execution that gives the person no right under the law.
attacked no opportunity to defend
himself or retaliate; and So, logically, a dead man cannot be a
That said means of execution was victim of any felony except the crime of
deliberately or consciously adopted.( defamation or libel under Article 253. The concept
People vs. Verchez, 233 SCRA 174) of libel can be committed to blacken the memory
of the dead, because libel or defamation is felony
The qualified offense of illegal possession of against honor.
firearms in furtherance of rebellion under PD 1866
is distinct from the crime of rebellion punished While it is true that a person’s rights die
under Articles 134 and 135 of the Revised Penal with him, his honor is not supposed to die with
Code. (People vs. De Garcia, 233 SCRA 716) him. His honor is supposed to live after him
forever. So no one has the right to defame the
honor of another person just because he is
already dead.
TITLE TWO
Now, we are not interested here in the
PERSONS CRIMINALLY LIABLE FOR FELONIES victim. We are interested in the persons who are
criminally liable:
So based on that, in the first case, all of PEOPLE vs. DE LOS REYES
them are liable for the death of A. In a
conspiracy, the act of one is the act of all. But in Facts: A group of people tried to commit a
the second case, all of them are liable for the crime. Then, while the crime was in
death of A but only one of them is liable for the progress, one of them left. And the
death of B. That is entirely separate crime to be question is: Whether or not he is liable?
charged separately. That seems to be distinct.
Held: To extricate himself from criminal
2.)That the offenders, co-principals carried out the liability, the conspirator himself must have
resolution by performing acts which tend to performed an overt act to disassociate or
accomplish the objective. detach himself from the unlawful plan to
In effect, they must be present in the commit the felony. While he did leave the
commission. So, we plan and we implement the scene of the crime while it was in progress,
plan. That is the second element. such abandonment came too late. In legal
contemplation, there was no longer a
conspiracy to be repudiated because he
had already participated in it.
People vs. Federico
247 SCRA 246
PEOPLE vs. TIMBOL
Facts: The accused , 4 brothers, conspired Where conspiracy was to kill only a
to kill somebody. They met several times particular person and the accused did not
and planned. In the final meeting, they conspire with the other accused in killing
decided to implement the plan. Then the another person, he cannot be held liable as
following day, one of the brothers had cold co-conspirator of the latter crime.
feet. He did not show up. So, only 3 Here, there are really two crimes.
81
inducement has the same definition as proposal
For example, A, B and C planned to kill D. under Art. 8.
After killing D, c also killed D’s wife. Only C is
liable to the two killings. A and B are liable only to Q: How do you induce?
the death of D and not to D’s wife. A: It may be a proposal.
Did they ask you to join them? No. There Let us change the facts: A and B do not
was no agreement. But knowing about their intent know each other. There is no conspiracy. A
to rob, you stayed all along, you cooperated. You wanted to injure X. A will pull X. B, on the other
will get a bigger payment. What is the liability of hand wanted to kill X. So they were acting
the driver? Accomplice. separately. A saw X, he started to throw punches
at X. Then afterwards, B suddenly entered and
But suppose the passenger will say, “Pare, stabbed X. X died. Take not, that A had not
we are going to rob a house, you will be our intent to kill X. He only wanted to injure him. He
driver, wait for us outside. Will you agree or not? is principal by direct participation for the crime of
“Agree”. What’s that? Principal? There is already a physical injury serious or less serious.
conspiracy. So, in case of doubt, the doubt is
resolved in favor of less cooperation. That is the Then B said: “Well, in that case, I am the
role of an accomplice. How do you cooperate? By accomplice of A. Because when A attacked X, I
previous or simultaneous act. That is learned of the criminal intent of A, and therefore
simultaneous. Simultaneous act of robbery. when I came in and entered the fray and stabbed
X, I concurred with the criminal intent of A and
Somebody approaches me: “Sir, do you therefore I am an accomplice.” So, A is the
have a gun?” Yes, I have, why? “may I borrow it” principal for the crime of slight physical injury B,
Why? “I’m going to kill somebody.” So I lent him who stabbed X, is liable as an accomplice. Now,
the weapon and killed the person. What is my who will be liable for the death of X? Zero? The
role? I am an accomplice. Knowing his criminal one who stabbed the victim is only the accomplice.
intent to kill, he borrowed my gun and I Something is wrong there. That kind of reasoning
cooperated—by a previous or simultaneous act. is wrong.
Q: Distinguish principal by inducement or How can you concur with A when A had no
indispensable cooperation from accomplice. intention to kill? The intent to kill came from B.
Because both types cooperate with the principal. You cannot say that A concurred with B because
A: he was the first to commit the crime, B only
entered the scene. So there are 2 kinds. A is
PRINCIPAL ACCOMPLICE liable for physical injury as a principal by direct
The cooperation of a The cooperation of an participation. B is liable for homicide.
principal by accomplice may be
indispensable necessary but no We will again reverse the facts. The
cooperation is indispensable. same: A wanted to harm X. B wanted to kill X,
indispensable, without Meaning, the crime may this time, the first one who came was B. B saw X.
which the crime would still be committed. He approached and started stabbing X. A arrived,
not have been approached X, “I’ll join you”. He entered the
committed. scene and started to attack X with his first, even
The cooperation of the But the cooperation of preventing X from running. So, X died.
principal by an accomplice is not
indispensable pursuant to a B is liable for homicide as a principal by
cooperation is pursuant conspiracy direct participation. So A? “Physical injuries only, I
85
only punched him.” No, when you saw B stabbing
X you joined the fray and starting also hitting X, PROBLEM: A saw X and started to stab the latter.
you concurred without any conspiracy. You When B arrived, he saw A stabbing X, he joined
concurred with the criminal intent of B to kill, and the fray holding X in order to prevent him from
you cooperated with him with the simultaneous act going away. After X died, A and B dug up a grave
of assaulting the victim. So there is only one in order to prevent the body of the victim from
crime. You are the principal. A is the accomplice. being discovered.
That is what you call quasi-collective. That is the
illustration: Q: Can we consider either A or B as accessories for
having concealed the body of the victim under
Liability: paragraph of Article 19?
Collective = Conspiracy A: NO, because to be an accessory you should not
Quasi-collective = Accomplice have participated either as a principal or
Individual = 2 crimes, each to his accomplice. Now if A is the one who killed X, then
own he is already a principal. B there is already an
accomplice. Hence, they are not accessories. That
is the meaning of the phrase “without having
participated therein.”
ARTICLE 19 . Accessories --- Accessories are
those who, having knowledge of the But after A and B ask C to bury the
commission of the crime, and without having cadaver , then C can be considered an accessory
participated therein either as principals or because he neither participated as principal nor
accomplices, take part subsequent to its accomplice.
commission in any of the following manner:
1. by profiting themselves or However, the accessory must have
assisting the offender to profit by knowledge of the commission of the offense.
the effects of the crime; Otherwise, if he did not know of the commission of
2. by concealing or destroying the the crime, he is not liable.
body of the crime or the effects or
instruments thereof, in order to Q: How do you prove knowledge?
prevent its discovery; A: That is circumstantial evidence. It can be
3. by harboring, concealing, or proven directly or indirectly. But what is important
assisting in the escape of the is that he has knowledge of the commission of the
principal of the crime, provided the crime.
accessory acts with abuse of his
public functions or whenever the Q: what are the acts of an accessory?
author of the crime is guilty of A: First is by “profiting by the effects of the
treason, parricide, murder, or an crime”. A good example of profiting by the effects
attempt to take the life of the Chief of the crime is to receive a stolen property as a
Executive, or is known to be gift knowing it to be stolen. Like when a person
habitually guilty of some other robs the bank for P1M, then he gives you
crime. P1,000.xx as “balato”, you become an accessory.
Or, another example, is you know that a certain
Accessories are the last set of those property is stolen and you know that that property
persons criminally liable. To be liable as an is valuable. But the robber wants to dispose of it
accessory, the felony committed by the principal as fast as possible so he sells it to you at P1,000
should be a LESS GRAVE or GRAVE FELONY. Even even if its real worth is P10,000. So you but it—so
if you perform any of these acts under the in effect, you profit. Even if you did not receive
definition of Art. 19, if it is a light felony you are anything from the stolen property but you looked
not liable because of Art. 16. Only principals and for a buyer in behalf of the robber, you are an
accomplices are liable for a light felony. The accessory because you assisted the robber for the
premise is that the felony is not a light felony. You latter to profit by the effects of the crime.
have to correlate this with Art. 16.
The distinction between principals Q: How do we compare paragraph 1 of Article 19
or with a special law known as the “Anti-Fencing Law”
accomplices, and accessories is that the principal (PD 1612)? How do you define the word “fencing”?
or the accomplice participates prior to or at the A: That is section 2 Paragraph 2.
latest simultaneously with the commission of the
Fencing is the act of any person who, with
crime; whereas the accessory comes only after the
intent to gain for himself or for another, shall buy
crime has been committed. That is why he is
receive, possess, keep, acquire, conceal, sell or
known as the accessory after the fact.
86
dispose of, or shall buy and sell, or in any other store and it turned out to be stolen – and you
manner deal in any article, item, object, or claimed that you did not know that it is
anything of value which he knows, or would be stolen…Several years ago, there was a group of
known to him, to have been derived from the minors who “specialized” in removing tires. They
proceeds of the crime of robbery or theft. would sell the tires to a dealer of stolen tires. Who
are the persons to be charged with fencing? The
Prior to the passage of the Anti-Fencing dealer. But the dealer will say: “I did not know. I
Law, the thought those kids were dealers of Firestone tires.”
liability for these acts were considered as those of Or somebody is offering a watch valued at
accessories. P10,000, but which is sold to you at P3,000. That
is already a sign that it is probably stolen and it
should have been known to you.
Dela Torre vs. COMELEC
Another important section here is that the
A Petition for disqualification was penalty is higher than that imposed upon an
filed for having been convicted of a crime accessory.
involving moral turpitude – a
disqualification in the Local Government SECTION 5, PD 1612. Mere possession of any
Code. goods, article, item, or anything of value which
has been the subject of robbery or thievery shall
The SC said that violation of the be prima facie evidence of fencing.
Anti-Fencing law is a crime involving moral Of course, this presumption could be rebutted
turpitude. – that you did not know or that it could not have
known. The presumption here is that you are
This case also provided for the elements liable for fencing in that you have in your
evincing fencing. possession the stolen property.
Q: What is the penalty for the accessory? Q: IS this provision constitutional considering that
A: It is very much lower. But in reality according the Constitution presumes innocence of the
to the whereas clause of the Marcos Decree, accused?
thieves and robbers are encouraged to steal and
A:
rob because there are people who buy. If you
DIZON-PAMINTUAN vs. PEOPLE
discourage buyers by making the penalty heavier,
234 SCRA 63
the robbers are discouraged. So, PD 1512 was
enacted to discourage buyers who are not
Does the law have the right to
considered accessories but as principals.
create that presumption? Section 5 of PD
1612 provides that “mere possession of
Q: Can I be liable as an accessory for the crime of
any goods, article, item, object, or
robbery or theft, and be liable for the violation of
anything of value which has been the
the anti-fencing law – because there are 2
subject of robbery or thievery shall be
separate crimes but relying on the same facts and
prima facie evidence of fencing.”
circumstances, so double jeopardy may be
invoked. What is act of fencing?
The presumption is reasonable for
A: With intent to gain for yourself or for another.
no other natural and logical inference can
So, profiting or assisting the thief or robber to
arise from an established fact of
profit, receive, possess, acquire, conceal, sell or
possession of the crime of robbery or theft.
dispose of, or shall buy and sell, or in any other
This presumption foes not offend the
manner deal in any article, item, object, or
presumption of innocence of the accused
anything of value which he knows, or should be
enshrined in our fundamental law.
known to him, to have been derived from the
proceeds of the crime of robbery or theft. There is
In cases of statutory crimes, no
no loophole. You can be arrested. But if you are an
constitutional provisions is violated by
accessory, if you do no know that the thing is
statute that proof by the state of some
stolen, you are not liable. The law requires that
material state of fact or facts shall
you must know that the property is stolen. But in
constitute prima facie evidence of guilt and
Anti-Fencing, not only what you know is included,
that the burden is shifted to the accused
but also, what should be known to you.
for the purpose of showing that such act or
acts are innocent and are committed
For example, you buy property form
without lawful intention.
someone who is not the usual dealer of that item.
If you that expensive property from a department
87
The second way of committing, as an Q: How do you become an accessory under
accessory is by concealing or destroying the body paragraph 3?
of the crime. In Latin, corpus delicti. In the crime A: There are 2 types of persons who can be
of homicide (fact of death – corpse – is the body of accessory:
the crime), how do you conceal it? By burying the
corpse. 1. those by harboring, concealing, or
assisting in the escape of the principal of
Why? The reason is simple: murder or the crime provided that the accessory acts
homicide, to be established to have been with abuse of his functions.
committed by the accused, the prosecution must
prove that the victim died. How can you prove the Meaning, he is in government service. For
death of the victim if you hide the body? The example, A commits rape or homicide. Then he
evidence would probably be that you have been tells his policeman-friend, “ Pare, I killed
seen with the victim the last time. But it does not somebody. Please help me.” “Okay, then I will
prove that the victim died. help you.”
Article 90 and 91 – covers those felonies found in Now in the case of offended party in
the RPC. crimes against persons, it is not the person who
Act No. 3326 – provides for those penalized by died first but his family.
Special Laws.
PROBLEM: Suppose, A murders B in an
ARTICLE 91. Computation of Prescription of uninhabited place without knowing it that there is
Offenses. – The period of prescription shall somebody who saw it. X who is a farmer saw it.
commence to run from the day on which the He did not say anything about it. So assuming A
crime is discovered by the offended party, the hid the cadaver and thought that nobody has seen
authorities, or other agents, and shall be the crime. Now, for several years, X kept silent
interrupted by the filing of the complaint or and then after several years, he told the
information, and shall commence to run authorities of the death of B and the killer, A. Just
again when such proceedings terminate look over there, where the body is.
without the accused being convicted or
acquitted, or are unjustifiably stopped for Q: When does the prescriptive period commence
to run?
95
A: It commences to run from the time after he Suppose a police files a criminal complaint for
told the police and it does not commence to run murder or denuncia before the fiscal’s office. Will
form the time the farmer saw it because he is not the filing thereof interrupt the prescriptive period?
related to the victim, he is not a person in The old rule in No. That which is filed in the MTC,
authority or his agent. So, it must be discovered yes, in the fiscal, no. But one division of the SC in
by the right person. 1983 said the filing of complaint before fiscal’s
office stops the running of the prescriptive period.
The law says the discovery of the crime,
NOT the discovery of the criminal. Suppose the Then, two years later came the 1985 Rules
crime is committed today and it was discovered on Criminal Procedure which rejected the ruling.
today but nobody knows the criminal, when do you So, the filing does not interrupt. But in 1998, the
start computing the prescriptive period? Of course criminal procedure was amended. The last
today. Because it was today that the crime was paragraph of Sec. 1, Rule 110 says: “ The
discovered. But nobody knows the killer. For 20 institution of a criminal case, whether it is
years the killer is in hiding. And after 10 years he instituted in the fiscal’s office or court,
surfaces. whether for trial or criminal investigation is
sufficient to interrupt the prescriptive period.
PROBLEM: A murdered B. The police discovered The amendment in 1988 reinstated the Francisco
the crime one year from its commission. Twenty ruling. So, since 1988, the filing of a complaint in
years later, A confessed that he committed the the fiscal’s office is also sufficient.
murder.
However, in 1991 or 1992 in the case of
Q: Prescribed? REYES, the SC distinguished if the complaint filed
A: Yes. What the police must do to prevent this is in the fiscal’s office is covered by the summary
to file a complaint before the court, People vs. rules, it does not interrupt. But if it is not covered
John Doe. Hence, even if the above-situation by the summary rules, then it does interrupt. But
surfaces the accused may still be prosecuted we will touch this more in the rules on criminal
because the case has already been filed. The procedure. So, from the filing of the complaint,
prescriptive period has been stopped to run. the running of the prescriptive period stops but it
continues to run again if the proceedings are
When does the time of running the terminated again without any acquittal or
prescriptive period stop to run? By filing a condition.
complaint or criminal information. Well, you know
in criminal procedure, you know the distinction If the case ends with an acquittal or
between a complaint and a criminal information. termination, then it cannot be re-filed because
there is already double jeopardy. But if the case
In criminal procedure, a MTC judge can ends not based on acquittal or termination,
conduct preliminary investigation on cases triable meaning the case ends without all the conditions
by the RTC. Unlike in the city, it is not allowed. for double jeopardy present, the running of the
Suppose the complaint for murder is filed in the prescriptive period continues. A good example is
MTC for preliminary investigation because they when the case is dismissed because of technicality
cannot try the murder case because it is not within like lack of jurisdiction or the information is not
their jurisdiction. Is the filling of the criminal charging an offense or the person filing the
complaint for preliminary investigation in the MTC information has no authority to do so.
sufficient to interrupt the running of the
prescriptive period or is it the filing of a case in a And the period of prescription according to
court which has jurisdiction? article 91 does not run if the offender is outside
the country because there is no way for the court
That is where jurisprudence sets in.. to acquire jurisdiction over your person and
People vs. del Rosario, but the doctrine is in the because if you go into hiding it works against you.
case of People vs. Olarte. The SC said: The
filling of the complaint for the purpose of PEOPLE vs. REYES
preliminary investigation stops the running of the 175 SCRA 597
prescriptive period. Why? Because according to
the SC, Article 91 does not distinguish whether the Facts: This involves the crime of
complaint was filed for trial or for preliminary falsification of public document. A deed of
investigation. sale was falsified by the accused. And the
accused registered it in the Register of
Let us go to the fiscal because a complaint Deeds on May 26, So, I falsified the
for a preliminary investigation can also be filed in document, meaning, I made it appear that
the fiscal’s office. It is called a “denuncia”. the property was sold to me and I forged
96
the signature, then I registered the deed is also constructive place under the case of
of sale in the Office of the Registry of Reyes.
Deeds in 1961. Complainants, the owner
of the property claim that they discovered Issue: Whether in computing the
the falsified deed of sale on June 1983. prescriptive period for the crime of
bigamy, should discovery be deemed to
So, when was the crime? 1961, have taken place from the time the
Registered? 1961. But the complainant offended party actually knew of the
said: “We discovered in June 1983. A subsequent marriage or from the second
criminal case for falsification was filed on marriage was registered in the civil
October1984, one year later. The registry consistent with the notice.
prescriptive period for falsification: ten
years. When do you start counting the Held: The computation starts form the
prescriptive period? In 1961, there are 22 time the offended party actually knew.
years, so it cannot be, or in 1983 where So, not the time of registration. While the
the complainants claim that they rules on constructive notice in civil cases
discovered the existence of the falsified may be applied in criminal actions, if the
document. The law said “discovered”. actual and legal circumstances so
warrants. However, it will not apply in the
Held: The crime has prescribed. The crime of bigamy notwithstanding its being
prescriptive period starts from 1961. favorable to the accused.
Why? Under the law on property
registration, registration of the document In the criminal cases cited,
with the register of deed is notice to the wherein the constructive notice was
whole world. Meaning, the whole world applied, what is involved therein were land
and the complainants are deemed notified. or property disputes and certainly
So it is constructive notice. marriage is not property. What is
constructive notice? That is found in
It is established that registration to Section 52 of the Property Registration
the public registry is addressed to the Act. This provision has no counterpart
whole world, in legal contemplation, either under RA3753 ( Civil Registry Act)
discovery must be reckoned to have taken or under article 407-412 of the Civil Code
place from the time it is registered in the that there is constructive notice which
Register of Deeds. The presumption in leads us to the conclusion that there is no
rules of interpretation used in prescription legal basis on the constructive notice rule
on civil suits including the rules on to apply to the documents registered in
constructive notice can be applied to rules the Civil Registry.
on criminal actions. The rule on
prescription of crimes is an act of amnesty Where we put our imprimatur to
or liberality on the part of the state tin the theory of the accused, in all likelihood
favor of the accused. The rule on we would be playing right into the hands of
constructive notice in the construction of philanderers, for we would be equating the
Art. 91 would work favorably to the contract of marriage into an ordinary
accused. contract or other similar document without
due regard to the stability of marriage as a
social inviolable institution the
preservation of which is prime social duty.
The second paragraph is very common. The third party will not be liable because of
The hotel owner will say: “Do not leave your the protection for innocent purchasers for value.
belongings inside your room. We are not taking What is your right? You are the owner, your right
responsibility if your things are taken by others. is to run against the Assurance Fund. It is different
Leave your things with us; deposit them in a when I steal your title then I pretend that I knew,
deposit box. Now, you violate the instruction. A let us say, I introduce myself as the title owner,
stranger entered the room. You cannot hold the then I sell it to you citing my name as the name of
hotel owner subsidiarily liable for the loss. But the true owner. My buyer did not have a better
when the property was lost or stolen while it is in title because the one who sold the land to him is
their possession, they are liable. not the real owner. The seller is somebody who
merely impersonated the true owner.
102
Q: Suppose, a hotel guest was told by the
management: Do not keep your goods inside your
hotel room. One day, the roomboy or the ARTICLE 105. Restitution.- The restitution of
chambermaid entered the room. The the things itself must be made whenever
chambermaid saw the guest’s money and stole it. possible, with allowance for any
The thief was identified, so the thief-employee was deterioration, or diminution of value as
charged with theft and found guilty. He was determined by the court.
sentenced to indemnify—restitution or reparation The thing itself shall be restored, even
for the loss of property. But he did not pay. Is his though it be found in the possession of a
employer liable? Is the hotel manager liable for third person who has acquired it by lawful
the losses if the victim did not follow his means, saving to the latter his action against
instruction? Is the hotel management liable? the proper person who may be liable to him.
A: Under Article 102, the hotel management is not This provision is not applicable in a
liable. But under Article 103, it is liable because case in which the thing has been acquired by
the chambermaid, the thief is its employee. What the third person in the manner and under the
is integrated by article 102 is theft committed by requirements which, by law, bar an action for
third persons on hotel guests, but not theft its recovery.
committed by the hotel employees—Article 103
applies. Even if the hotel guest did not follow the There is a case involving a robber for theft
instructions, that is not an excuse for not being or robbery for as long the property is proven to
liable. have been transferred to a third person, who is not
a party. The recovery from the third person can
YONAHA VS. CA be made in the same criminal case.
255 SCRA 397
The liability of the buyer can be enforced in the A good example of a third person is, if you
same case. There is no need to file another action are supported by the deceased. You are not his
against him. son, nor related to the deceased but he is giving
you support, like he sent you to school. That
person was killed. You are entitled to
indemnification even if you are not a member of
ARTICLE 106. Reparation. – How made. The the family. Because by that, you have cut-off the
court shall determine the amount of damage, consideration (suppor). So, third person is not a
taking into consideration the price of the member of the family can claim for loss of support.
thing, whenever possible, and its special
sentimental value to the injure party, and Exemplary damages are also recoverable.
reparation shall be made accordingly. According to the Civil Code, if the crime is
attended by one or more aggravating
Reparation is really applied in crimes circumstances, the court can award exemplary
against property. For example, in theft or in damages (Art. 2230, Civil Code). So, that is what
robbery, if the object can no longer be returned is meant by indemnification.
because it is already consumed ( if consumable0,
or it was sold to somebody who can no longer be People vs. Dianos April 7, 1998
found. Or you cannot return something, like it
was razed by fire. How to recover it? The next People vs. Gementiza
substitute is reparation. You pay for the value of
the property destroyed , property stolen. The award of P50,000.00 for civil
indemnity is mandatory. The award for
Q: How do you determine the value? moral damages is different.
A: The market value, including other factors, like
the sentimental value of the property. People vs. Jobalones
How can I prove this case if no one will No more, because the criminal action has
testify? The prosecution’s witness turned hostile, already been instituted and it is no longer within
who is the offended party. So, the judge will her control. Because when you say pardon is a
dismiss the case for insufficiency of evidence. bar, it means it is an obstacle to the filing of the
Well, in reality in the motion it is not a ground. criminal case. Once the case is filed, pardon is
Under the Rules on Criminal Procedure, if the useless.
prosecution witness is hostile, the fiscal can move
for his arrest and place him in jail until he What extinguishes criminal liability where
cooperates. the case is instituted is marriage between the
offender and the offended party. That is one of
The reason is you are not a witness for the modes of extinguishing criminal liability under
yourself, you are a witness for the People. How Art.89 (7). By marriage of the offended woman, as
come this is happening everyday? Because provided in Article 344 of this Code. Notice, under
nobody is complaining. If you are the accused will Article 89, what are the modes of extinguishing
you complain? You are happy because there is no criminal liability? There is no mention of pardon.
more case. If you are the offended party or What is mentioned there is marriage between the
victim, will you be satisfied? Of course, because offender and the offended party. The only pardon
the civil liability has been paid. It is too much mentioned there is absolute pardon by the
hassle to go to and fro in court. If you are the President under Art.89(4) and not pardon by the
defense lawyer, you are happy because the case is offended party.
over. You are given your attorney’s fees. The
fiscal is happy because that in one work less. The
judge is happy because that is minus one case. ARTICLE 24. Measures of prevention or safety
Because everybody is happy, nobody will which are not considered penalties.—The following
complain. shall not be considered as penalties:
1. The arrest and temporary
But actually, they escape Article 23. They detention of accused persons, as
cannot cite pardon. What is extinguished is the well as their detention by reason of
civil liability. That is within your control— insanity or imbecility, or illness
condonation or remission of the debt, one of the requiring confinement in a
modes of extinguishing civil obligation. The only hospital.
instance under the Penal Code, where pardon by 2. The commitment of a minor to any
the offended party produces certain effects. of the institutions mentioned in
Article 80 and for the purposes
specified therein.
ARTICLE 334(3), RPC. – The offenses of 3. Suspension from the employment
seduction, rape or acts lasciviousness, shall or public office during the trial or
not be prosecuted except upon a complaint in order to institute proceedings.
filed by the offended party or her parents, 4. Fines and other corrective
grandparents, or guardian, nor in any case, if measures which, in the exercise of
the offender has been expressly pardoned by their administrative or disciplinary
the above-named persons, as the case may powers, superior officials may
be. impose upon their subordinates.
5. Deprivation of rights and the
These are private crimes which cannot be reparations which the civil law may
prosecuted de officio. If the victim refuses to establish in penal form.
testify, you have to honor the spirit because of the
ruling that: If you are a victim of rape, etc, that is Q: What are the conditions of penalty under the
something personal, you may prefer to suffer in Classical Theory in Criminal Law?
silence rather than go through the scandal of a A: It is commensurate to the offense, rational.
public trial. Pardon here is a bar to criminal One of the characteristics is that it is legal.
liability. Meaning, it is an obstacle to the case Penalties should be legal. Meaning, it is a penalty
proceeding in court. provided for by law and imposed by the court.
So, it must be made before the institution Now, Art. 24 enumerates certain acts
of the action. So, what happened when the case where there appears to be a penalty because
of rape was already filed in court and, in the penalty could mean pecuniary penalty like a fine.
middle of the trial, the victim will say: I don’t want Incarceration, your liberty is taken from you like
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imprisonment. And if you look at Art. 24, it seems measure. So, you cannot say that you are already
to fit a penalty but the trouble is that there is n being convicted. And if you are acquitted, the
judgment of conviction. The court has never government will pay you. Everything will be paid
ordered you to pay a fine or has never ordered to you during the period of your suspension while
your incarceration. the case is going on.
The accessory follows the principal. I will A perfect example of an indivisible penalty
say: “You are hereby sentenced to 14 years of is the death penalty (capital punishment). You are
reclusion temporal.” What type of penalty is this? hereby sentenced to death. The court will not say:
Principal. “You are hereby sentenced to death.” You are hereby sentenced to death for 10 years.
The death penalty is the principal. So, that is a good example. Perpetual
disqualification is considered indivisible.
Q: The court said: “You are hereby sentenced to
20 years of reclusion temporal (only and never Now, divisible, practically the majority –
mentioned anything). During the 20 years, am I arresto menor -- 1 day to 30 days. So not less
entitled to vote? Am I entitled to hold public than 1, not more than 30. Divisible into 3 parts: 1
office? Can I exercise parental authority over my to 10 days; 11 to 20 days; 21 to 30 days. So,
children? that is another classification, indivisible and
A: I cannot. Why? Because if you are sentenced divisible.
to 20 years of reclusion temporal, you are also
suffering from suspension, disqualification, and Another classification based on the nature
civil interdiction. And you cannot say: “No, the of the penalty is… you know penalties have many
court never said that. The court should have said: classes. There is deprivation of rights, there is
You are hereby sentenced to 20 years of reclusion fine or payment of costs, there is imprisonment.
temporal plus civil interdiction, etc. there is no So, penalty does not necessarily mean that you
mention. There is no need because it is deemed will go to jail. The penalty of fine, there is no
imposed. No need to mention it. It is deemed imprisonment here. But you can also forfeit your
included. life like death. So, penalties could be classified
into many parts.
corporal (death);
Q: What penalties are principal and at the same deprivation of freedom (reclusion
time accessory? perpetua and temporal, prision
A: 1. Suspension; mayor and correccional, arresto
2. Perpetual or temporary absolute mayor and menor);
disqualification; and restriction of freedom (destierro);
3. Perpetual or temporary special deprivation of rights (perpetual or
disqualification temporary disqualification,
suspension, civil interdiction);
Q: How can a penalty be a principal and at the pecuniary (fine, bond to keep the
same time accessory? How can it be expressly peace)
imposed and at the same time deemed imposed?
A: What it means to say is, for some crimes, Classification of penalties according to
disqualification or suspension is the principal gravity:
penalty because that is the penalty prescribed by
the law. But for other crimes it is not the principal capital;
penalty but only accessory. So, it depends on the afflictive;
crime. correctional; and
light
Q: Are there other disqualifications of penalties Q: What are the afflictive penalties?
under the Penal Code aside from principal and A: You go to Art. 25, the afflictive penalties:
accessory?
A: You can give other classifications, although not Reclusion perpetua
found in the law expressly. Another classification Reclusion temporal
is whether indivisible or divisible. Perpetual or temporary absolute
disqualification
Q: What do you mean by indivisible? By divisible? Perpetual or temporary special
A: A penalty is indivisible if it has no fixed disqualification
duration. A divisible penalty is penalty which has a Prision mayor
fixed duration and is divisible into 3 parts known
Q: What is a less grave felony under Art. 9?
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A: One which carries correctional penalties. conflict? There is no conflict because the two
articles talk of different things.
Less grave felonies are those which the
law punishes with penalties which in their PROBLEM: Suppose after trial, the court
maximum period are correctional, in accordance sentenced him of a maximum fine of P200. Is the
with the above-mentioned article (Art. 25). penalty light or not? In this case, it is not a light
penalty but correctional.
Q: What are correctional penalties?
A: Prision correccional, arresto mayor, suspension, Q: But is the felony light?
destierro. A: Yes, the felony is light although the penalty is
correctional. So, you know which is applicable
So, if that’s the penalty, it is correctional. depending upon the issue asked.
Q: What is a light felony? Go back to Art. 9, what Suppose after trial, the court sentenced
is the definition of a light felony? him to pay not P199 but P200. The court, add P1
A: Light felonies are those infractions of law for for maximum, with subsidiary imprisonment in
the commission of which a penalty of arresto case of insolvency. He does not want to pay the
menor or a fine not exceeding 200 pesos or both, fine; he does not also want to serve the subsidiary
is provided. imprisonment.
Fine not exceeding P200 pesos. So, if the Q: Is the prescriptive period for the crime only 1
fine is exactly P200, light. But in Art. 26, if a fine year?
is exactly P200, it is correctional. A: No. Why? Because the penalty is no longer
light. What is the penalty? Correctional. Under
Q: How do we reconcile this? Art. 92, correctional penalties prescribe in 10
A: There is no problem if the fine is P1999 pesos years (with the exception of the penalty of arresto
or lower. It is light under Art. 9, it is light under mayor, which prescribes in 5 years). There is a
Art. 26. But if you add one peso, there comes the big difference. Correctional penalties prescribe in
problem, because it is light under Art. 9, but it is 10 years. That is the effect of that P1. You can
no longer light under Art. 26. see the effect in the prescriptive period.
The Dangerous Drugs Act, although a Facts: Here the judge said a different
special law, borrowed the penalty of reclusion term. He sentenced somebody in an illegal
perpetua from the Revised Penal Code. recruitment case, “You are hereby
sentenced to imprisonment for life”. The
penalty under the law is life imprisonment.
PEOPLE vs. DEJELLOS He said “imprisonment for life”.
205 SCRA 546
Held: The penalty meted out as
The trial court imposed the penalty imprisonment for life – the trial court has
of reclusion perpetua or life imprisonment. no business putting as penalty what it
“You are hereby sentenced to reclusion seems its equivalent of the mandated
perpetua OR life imprisonment. Evidently, penalty. Imprisonment for life is not the
he considered the latter as the English same as life imprisonment. For one thing,
translation of the former. That is not the the proper penalty is life imprisonment.
case. The two are different. Perpetua is And certainly, the imprisonment is that he
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will stay in prison all the rest of his natural distinguished from those convicted prisoners by
life. The proper penalty is life final judgment.
imprisonment.
If, for example, they are detention
These judges don’t know their law. They do not prisoners, they have undergone imprisonment
understand that the penalty of life imprisonment already, and later on they are convicted by a
means a different thing. certain prison term. The period of preventive
imprisonment that he has undergone will already
be computed or 4/5, depending on whether the
prisoner was bound by same rules for convicted
ARTICLE 29. Period of preventive imprisonment prisoners. So credited although there are some
deducted from term of imprisonment. – instances where there is no credit at all.
Offenders or accused who have undergone
preventive imprisonment shall be credited in There is no problem if the prisoner will be
the service of their sentence consisting of convicted. At least, the service of sentence is
deprivation of liberty, with the full time counted. Sometimes there are even instances
during which they have undergone when upon conviction you have already served the
preventive imprisonment, if the detention sentence because the sentence imposed by the
prisoner agrees voluntarily in writing to court is equal or even lower. So by the time he
abide by the same disciplinary rules imposed was convicted, he has served already. That is
upon convicted prisoners, except in the possible.
following cases:
1. When they are recidivists, or have But what is painful is if you have
been convicted previously twice or undergone preventive imprisonment and after a
more times of any crime; and while you are acquitted. All the while, you are
2. When upon being summoned for the innocent. And the question is what will happen to
execution of their sentence they have that? What is the recourse of the prisoner?
failed to surrender voluntarily. Before, the answer there was, “Sorry, charge it to
If the detention prisoner does not agree to experience”. But now, we have an answer to that
abide by the same disciplinary rules because there is a new law, RA 7309, An Act
imposed upon Creating a Board of Claims under the Department
convicted prisoners, he shall be credited in of Justice for Victims of Unjust Imprisonment or
the service of his sentence with four-fifths of Detention, Victims of Violent Crime and other
the time during which he has undergone purposes.
preventive imprisonment.
Whenever an accused has undergone So, for example, you are imprisoned.
preventive imprisonment for a period You’re acquitted. It turns out that you never have
equal to or more committed any crime. You are completely
than the possible maximum imprisonment of innocent. You file a claim with the Department of
the offense charged to which he may be Justice because they will give something in return.
sentenced and his case is not yet terminated, For victims of unjust imprisonment or detention
he shall be released immediately without the compensation shall be based on the number of
prejudice to the continuation of the trial months of imprisonment or detention and a
thereof or the proceeding on appeal, if the fraction thereof shall be considered as one month.
same is under review. In case the maximum But in no case shall such compensation exceed
penalty to which accused may be sentenced P1,000.00 per month. That is the maximum. So, if
is destierro, he shall be released after thirty you are imprisoned for 10 months, at least the
(30) days of preventive imprisonment. government will say, “O, here’s your P10,000.
That is the maximum”.
Articles 30-35 of the RPC tell us the effects Q: How do you distinguish Article 36 from Article
of various types of penalties particularly those 23 which reads: “Effects of pardon by the offended
where you are deprived of your rights. party. – A pardon by the offended party does not
extinguish criminal action except as provided in
Q: What are the penalties which can deprive Article 344 of this Code; but civil liability with
rights? regard to the interest of the injured party is
A: 1) Perpetual or temporary absolute extinguished by his express waiver.”
disqualification; A: Article 23 talks of pardon by the offended
2) Perpetual or temporary absolute party, or pardon by the victim; whereas, Article 36
disqualification; talks of pardon by the President. What
3) Suspension; extinguishes criminal liability is Article 36, pardon
4) Civil interdiction. There is a restriction by the President in relation to Article 89 on the
on your capacity to act under the civil law. modes of extinguishing criminal liability. Although
Article 36 is very clear, pardon by the President
Q: What are the effects of civil interdiction? does not extinguish civil aspect.
A: Article 34. That’s why civil interdiction
is not a civil law issue. It is a criminal law issue. It So, the basic distinction is: Pardon by the
is a penalty under the Penal Code although offended party extinguishes the CIVIL liability but
accessory. When a person is sentenced to a NOT the criminal liability, while the pardon by the
certain principal penalty, practically, he is under President extinguishes the CRIMINAL but not the
civil interdiction. What are the effects? Or state civil liability.
the effects of civil interdiction. How can you
answer that if you do not know Article 34. PROBLEM: Suppose, a person is sentenced to
prison, let’s say, he is sentenced to 20 years
imprisonment, which automatically carries with it
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certain accessory penalties like suspension, last is of course the cost. Order: reparation;
disqualification to vote or be voted for, civil indemnification; fine and costs.
interdiction – it is included. Now, suppose after 5
years in jail, the President pardons him and he is So, this is one instance where the
now released. So the criminal liability is government will insist that it be paid first. This
extinguished. From 20 years, after 5 years, time the government decides to be generous. They
pardoned. are giving priority to the civil liability rather than
to the pecuniary penalties.
Q: What happens now to civil interdiction, the
disqualification? Are those penalties are deemed
removed by the pardon? Does the pardon of the
principal carry with it pardon of the accessory ARTICLE 39. Subsidiary penalty. – If the convict
penalties? has no property with which to meet the fine
A: If we stick to the general rule, the mentioned in paragraph 3 of the next
accessory follows the principal, pardon of the preceding article, he shall be subject to a
principal automatically carries with it the pardon of subsidiary personal liability at the rate of one
accessory penalties. But not in criminal law day for each eight pesos, subject to the
because the law says: “A pardon shall not work following rules:
the restoration of the right to hold public office,
the right of suffrage unless such rights be 1. If the principal penalty imposed be
expressly restored by the pardon.” prision correccional or arresto and
Therefore, if the pardon by the President is fine, he shall remain under the
in general terms, the principal penalty is pardoned confinement until his fine referred to
but the accessory penalties remain. So you in the preceding paragraph is satisfied;
cannot run for public office; you cannot vote, you but his subsidiary imprisonment shall
cannot manage your property because you are still not exceed one-third of the term of the
under civil interdiction until 20 years shall have sentence, and in no case shall it
lapsed. But if the pardon by the President is clear continue for more than one year, and
and express that the intention is to remove also no fraction or part of a day shall be
the accessory penalties then the pardon of the counted against the prisoner.
principal carries with it the accessory. 2. When the principal penalty imposed be
only a fine, the subsidiary
Q: Normally, how should the pardon be worded? imprisonment shall not exceed six
A: The pardon should be worded like this. months, if the culprit shall have been
“You are hereby pardoned and restored to your full prosecuted for a grave or less grave
civil and legal rights.” So with that pardon, it is felony, and shall not exceed fifteen
meant that the principal and the accessory days, if for light felony.
penalties are pardoned. But if it is worded: “You 3. When the principal penalty imposed is
are hereby pardoned.” The accessory penalties higher than prission correccional no
should remain. That is the rule on Article 36. subsidiary imprisonment shall be
imposed upon the culprit.
Q: What are the pecuniary liabilities of an 4. If the principal penalty imposed is not
accused under the law? What are the civil to be executed by confinement in a
liabilities payable in terms of money? penal institution, but such penalty is
A: There are 4…. fixed duration, the convict, during the
1. Reparation } civil in nature period of time established in the
2. Indemnification } civil in preceding rules, shall continue to
nature suffer the same deprivations as those
3. Fine } payable to the government which the principal penalty consists.
4. Cost } payable to the government 5. The subsidiary personal liability which
the convict may have suffered by
Q: What happens if a convict is sentenced to reason of his insolvency shall not
make reparation to the offended party offended by relieve him from the fine in case his
him, to pay the fine and to pay the costs. And the financial circumstances should
convict does not have the money or assets to improve.
satisfy all. His assets are just sufficient to make
one or two. What is the order of payment? Only applies to people who are insolvent.
A: The order of payment is reparation, first. If Subsidiary penalty applies where a person
there is still money left, the balance for is sentenced to pay a fine and he cannot pay the
indemnification. The third priority is fine. And, the fine.
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Q: What will happen?
A: The law says: If you cannot pay the fine, you 1. If the principal penalty imposed be
will instead undergo what is known as subsidiary prison correccional or arresto and fine,
penalty in this case, subsidiary imprisonment. You he shall remain under the confinement
will go to jail without the fine. until his fine reffred to in the preceding
paragraph is satisfied; but his
Q: For how many days? subsidiary imprisonment shall not
A: The ratio is one day for every P8.00. So if exceed one-third of the term of the
your fine P80.00, the substitute is 10 days in jail. sentence, and in no case shall it
That is the subsidiary penalty. continue for more than one year, and
no fraction or part of a day shall be
Q: What happens if the convict cannot pay the counted against the prisoner.
reparation, indemnification and the cost? Is there
subsidiary penalty? If it is prison correctional or arresto and fine –
A: The answer is NO. Article 39 is very specific. imprisonment plus fine. Prision correccional or
There is no subsidiary penalty for non-payment of arresto mayor plus fine. The computation is very
the fine. There is no mention of reparation, simple. “You are hereby sentenced to one year
indemnification or costs. prision correccional, and to a fine of P80.00 with
subsidiary imprisonment in case of insolvency.
For example, the fine is P20.00. So, P8.00 Your principal penalty is 1 year and fine of P80.00.
= one day. Another P8.00 = one day. It is already If you cannot pay the fine, 1 day is equal to P8.00.
two = P16.00. What about the balance of P4.00? So, 1year + 10 days. After one year, you cannot
So, 2 ½ days of subsidiary imprisonment? No, be released. You still have to stay in jail for 10
only 2. The fraction of a day is not counted. That days. The 10 days is what you called subsidiary
is very clear in paragraph 1, the last clause – no imprisonment.
fraction or part of a day shall be counted against
the prisoner. We will go to an illustration as far as that one.
Remember, we should apply, when the penalty is
Suppose the convict is sentenced to pay a like this; prision correccional + fine; or arresto
fine, can pay the fine but says: I would rather go mayor + fine.
to jail than pay the fine.
PROBLEM: Suppose a person is sentenced to
Q: Can he do that? 6 months or arresto mayor and to pay a fine of
A: If you look at the law. The law says: “If a P800.00 with subsidiary imprisonment in case of
convict has no property with which to make the insolvency. Suppose, the convict cannot pay the
fine.” Has no property – therefore, if there is fine of P800.00, how long will the subsidiary
property, Article 39 does not apply because the imprisonment last?
government can compel you to pay by garnishing
your bank account or by levying your property. He Under paragraph 1, 100 days ---around 3
will be forced to pay. months and 10 days. The principal penalty is 6
months. What is 1/3 of that? 1/3 is 2 months.
Q: So, what is the implication? That is 60 days. According to paragraph 1, “ in no
A: The implication is Art. 39 applies only to case shall the subsidiary penalty exceed 1/3 of the
insolvent people. Someone who is so poor or principal penalty”. The principal penalty is 6
indigent. months. 1/3 of that is 60 days. This is already 100
days – automatically reduced to 60 days.
Q: Is this not a violation of the constitutional
provision that “No person shall be imprisoned That is the first limitation. In no case shall
for non-payment of debt?” the subsidiary penalty exceed 1/3 of the principal
A: No, it is not. According to the SC in the case penalty.
of United States vs. Cara, -- what is meant by the
constitution is contractual debt. No person shall be PROBLEM: The accused is sentenced to 6 years
imprisoned for non-payment of debt arising from of prision correccional and pay a fine of 3,200.00
contract, like a loan. But a pecuniary of fine is not that is his penalty. He cannot pay the fine.
arising from contract. It is an obligation arising QUESTION: How long will the subsidiary penalty?
from law or from an act or omission punishable by ANSWER: Let’s count first. P8.00 = 1 day. That’s
law. It is not covered by the constitutional 400 days. Let’s find out. What is 1/3 of the
prohibition. principal penalty? 1/3 is 2 years. Does this
exceed 2 years? No. Therefore, it can be. It does
That is how you compute it. For every not exceed. However, in no case should it last
P8.00, one day, but subject to the following rules. longer than 1 year. So it will be automatically
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reduced to one year. That is the maximum. That is 6 years and 1 day, that’s already higher than
the second limitation: in no case shall the penalty prision correccional. That is already prision mayor.
exceed 1/3 of the principal penalty, and in no case
shall it go beyond 1/3 of the entire penalty. ANSWER: There is no more subsidiary penalty.
There is no subsidiary penalty if the principal
2. When the principal penalty penalty is higher than prision correccional. So
imposed be only a fine, the subsidiary prision mayor, reclusion temporal, perpetua,
imprisonment shall not exceed six months, death. There is no more subsidiary penalty for
if the culprit shall have been prosecuted non-payment of the fine.
for a grave or less grave felony, and shall
not exceed fifteen days, if for light. That is Rule # 3. There is no more
subsidiary penalty if the principal penalty is higher
Paragraph 2 applies when the penalty than prison correctional.
imposed by the court is only a FINE.
4. If the principal penalty imposed is not to be
So, there is no imprisonment unlike in par. executed by confinement in a penal institution, but
1 where the principal penalty is imprisonment. such penalty is of fixed duration, the convict
Here we have fine only. The same rule: if you during the period of time established in the
cannot pay the fine, P8.00 – 1 day. But the preceding rules, shall continue to suffer the same
maximum subsidiary imprisonment is only 6 deprivation as those of which the principal penalty
months if you are prosecuted for grave or less consists.
grave felony.
When the principal penalty is not to be
So, even if the fine is P100, 000.00 “You executed by confinement. Meaning, the principal
are hereby sentenced to pay a fine of P100, penalty does not consist of imprisonment, but of a
000.00”, you cannot pay, even though how much. fixed duration, the subsidiary penalty should be of
It is always 6 months. the same nature as the principal penalty.
Or if you are only prosecuted for a light So meaning, it is a divisible penalty. The
felony, the maximum is only 15 days. You are sentence is not imprisonment. But it is a divisible
hereby found guilty, pay a fine of P200.00. There penalty.
is no more imprisonment, only the fine. You
cannot pay P200.00. 200/8 = 25 days. You EXAMPLE.: Destierro. It has the same duration
subtract 10. It must go down to only 15 days. as prision correccional. You cannot be imprisoned
Because if the penalty is only fine, then you are but you are exiled. It is divisible because it has a
prosecuted for a light felony, in no case should the fixed duration. So, it is the penalty. You are
subsidiary penalty exceed 15 days. hereby sentenced to 4 years of destierro and to
pay a fine of P80.00. Suppose you do not pay the
Do not confuse paragraph 1 with fine of P80.00.
paragraph 2. In paragraph 2, the penalty imposed
by the court is only fine. In paragraph 1, the Q: What will happen to you? You have to
penalty imposed by the court is prision undergo subsidiary penalty: 1 day for every
correccional, or arresto + fine. P8.00. So, ten days of subsidiary, destierro also.
A: You do not say “subsidiary imprisonment”
3. When the principal penalty because the principal penalty is not imprisonment.
imposed be only a fine, the subsidiary If the principal penalty is destierro, the subsidiary
imprisonment shall not exceed six months, penalty should also be destierro.
if the culprit shall have been prosecuted
for a grave or less grave felony, and shall Another example: You are sentenced to a
not exceed fifteen days, if for light felony. penalty of suspension. Suspension is under Art.
25. There is also 6 months to 6 years. Divisible,
There is no subsidiary penalty if the but no imprisonment. So, four years of
principal is higher than prision correccional. suspension; fine of P80.00. If you cannot pay the
fine of P80.00, you have to undergo 10 days of
BAR QUESTION: After he was found guilty subsidiary suspension.
and sentenced by the court to 6 years and 1 day
and to pay a fine of P80.00. How long is the The subsidiary penalty should be of the
subsidiary penalty? 10 days. And 10 days does same nature as the principal penalty. Do not
not exceed 1/3 of the principal penalty. Wrong. always say “subsidiary imprisonment.” But you
That is not par. 1. That is par. 3. If the penalty is follow the rule in paragraph 4 – In no case can the
121
subsidiary destierro exceeds 1/3 of the principal A: It is not deemed imposed with the principal
penalty. penalty. Meaning, it must be expressly mentioned
in the decision. And therefore, what happens if you
Q: Suppose the principal penalty is not to be are ordered to pay a fine and you cannot pay the
executed in confinement, but it has no fixed fine, but there is nothing in the decision which
duration. Will paragraph 4 apply? mentions it, Article 39 says that you cannot
A: Of course, not. undergo subsidiary penalty, because it is not an
accessory penalty.
Q: Give an example of a penalty not to be
executed by confinement but it has no fixed Q: How should the decision be worded?
duration. A: You are hereby sentenced to pay a fine of
A: Public censure. It is the only example you can P100,000.00 with subsidiary imprisonment in case
think of. It is only a light penalty where the judge of insolvency.
will give you a severe censure. It will be a blot on
your record. Q: Under the law, in what instances will there be
no subsidiary penalty? When is subsidiary penalty
For example: public censure + fine of not be served? In what instances will there be no
P20.00. You cannot pay. So, you cannot say: subsidiary penalty for an accused person?
two days of subsidiary penalty of 2 days of public A:
censure. You will keep on returning to the judge There is no subsidiary penalty for
to be sermonized at. non-payment of fine. In the same
vein, there is no subsidiary penalty
5. The subsidiary personal liability which the for non-payment of reparation,
convict may have suffered by reason of his indemnification and costs.
insolvency shall not relieve him from the There is no subsidiary
fine in case his financial circumstances penalty if the principal penalty is
should improve. higher than prison correccional.
There is no subsidiary penalty if
Suppose, I am asked to pay a fine of so the principal penalty is not to be
much. I’m insolvent, as poor as a rat. So, I executed by confinement if it has
undergo subsidiary penalty – fine of P4,000.00. I no fixed duration, like public
have nothing to pay. I’m imprisoned. Then I’m censure.
released after serving my sentence plus the There is no subsidiary penalty if
subsidiary imprisonment. Afterwards, I win in the the court did not mention it
lotto. So, I have much money now. The expressly in the judgment of
government will say: “All right, pay your fine.” conviction, because the rule is that
You say: “No more. I have already paid it through it must be mentioned, otherwise,
my subsidiary imprisonment! What paid? You pay the convict cannot be compelled to
again! QUESTION: Why? ANSWER: Because serve the subsidiary penalty.
service of the subsidiary penalty will not relieve
you from the payment of the fine, if your financial Q: How do you define accessory penalty?
condition will improve in the future. A: It is penalty deemed imposed with the
principal penalty. So, the penalty is deemed
The government has only 10 years to imposed with the principal even if the judge did
collect the fine. Only 10 years. It is an obligation not mention it.
arising from law and the prescriptive period is 10
years. Although, the law is silent. If your financial ARTICLE 73, RPC. Presumption in regard to
condition improves after 10 years, no more. But the imposition of accessory penalty.
in the first 10 years, you can be compelled to pay Whenever the courts shall impose a penalty
and you cannot use the subsidiary imprisonment which, by provision of law, carried with it
as a reason for not paying. other penalties, according to the provisions
of Articles 40, 41, 42, 43, 44, 45 of this Code,
Q: Is the subsidiary imprisonment an accessory it must be understood that the accessory
penalty? Is it an accessory penalty? penalties are also imposed upon the convict.
A: If you look at Art. 25 of the Penal Code, it
enumerates all the possible penalties. There is no So, whenever a principal penalty is
mention of subsidiary penalty. CONCLUSION: It is imposed, the accessory penalty is deemed
not an accessory penalty. imposed even if not mentioned in the judgment of
conviction.
Q: If it is not an accessory penalty, what is the
implication?
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Q: But how will I know what are the accessory penalty, unless the same shall have been
penalties? Suppose, I am sentenced to 12 years expressly remitted in the pardon.
of prision mayor. I know there are accessory
penalties. But what are they? What are accessory ARTICLE 44. Arresto, Its accessory penalties. --
penalties? Suppose, I am sentenced to 15 years - The penalty of arresto shall carry with it
reclusion temporal, what are the accessory that of suspension of the right to hold office
penalties? Suppose, I am sentenced to 6 months and the right of suffrage during the term of
of prision correccional. What are those deemed the sentence.
imposed? How do I look for the accessory
penalties? Q: What is the most famous accessory penalty?
A: Arts. 40 to 44. These provisions will tell you A: Civil interdiction.
that if this is the principal penalty, these are the
accessory penalties attached to it. Q: What are the principal penalties which carry
with them the accessory penalty of civil
interdiction? In other words, civil interdiction is
Section Three. --- Penalties in which other the accessory penalty to what principal penalties?
accessory penalties are inherent. A: You can answer that only when you go to
Articles 40-44. So, the principal penalties which
carry with them the accessory penalty of civil
ARTICLE 40. Death, Its accessory penalties. --- interdiction are:
The death penalty, when it is not executed by
reason of commutation or pardon shall carry death
with it that of perpetual absolute reclusion perpetua
disqualification and that of civil interdiction reclusion temporal
during thirty (30) years following the date
sentence, unless such accessory penalties Q: Does the death penalty carry with it civil
have been expressly remitted in the pardon. interdiction?
A: Yes, the law is very clear. So, you are
ARTICLE 41. Reclusion perpetua and reclusion sentenced to die. And then it was commuted --
temporal, Their accessory penalties. --- The when the SC decides on lowering it; or if the
penalties of reclusion perpetua and reclusion President decides to commute it to reclusion
temporal shall carry with them that of civil perpetua; or what happened in 1987 when the
interdiction for life or during the period of the New Constitution took effect doing away with the
sentence as the case may be, and that of death penalty -- what happened to these people
perpetual absolute disqualification which the who are sentenced to death? There is a
offender shall suffer even though pardoned constitutional commutation. So, automatically,
as to the principal penalty, unless the same they will be under civil interdiction.
shall have been expressly remitted in the
pardon. PROBLEM: Suppose, you are sentenced to death,
and you are scheduled to die between now and
ARTICLE 42. Prison mayor, Its accessory next month, there is no commutation. Neither the
penalties. --- The penalty of prison mayor, President nor the SC has reduced the penalty. So,
shall carry with it that of temporary absolute you are still going to be executed. QUESTION: Is
disqualification and that of perpetual special there civil interdiction?
disqualification from the right of suffrage ANSWER: Technically, NONE. Unless it will be
which the offender shall suffer although commuted. Technically, you are not under civil
pardoned as to the principal penalty, unless interdiction. So, technically, you can donate your
the same shall have been expressly remitted property, you can manage it, you can exercise
in the pardon. parental authority. There is no civil interdiction. I
doubt how will you do it because you are already
ARTICLE 43. Prison correccional, Its accessory inside the jail. But under the law, you have no
penalties. --- The penalty of prison accessory penalty.
correccional shall carry with it that of
suspension from public office, from the right When the President says: “You are hereby
to follow a profession or calling, and that of sentenced to reclusion perpetua” from that
perpetual special disqualification from the moment, you are under civil interdiction.
right of suffrage, if the duration of said
imprisonment shall exceed eighteen (18) Q: For how long?
months. The offender shall suffer the A: The law says, for the next 10 years.
disqualification provided in the article
although pardoned as to the principal
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Q: Suppose, you are sentenced to reclusion APPLICATION OF PENALTIES
temporal. How long is the civil interdiction?
A: Under Art. 41, it is of the same duration as Section One – Rules for the application of
the principal penalty. So, when it says 20 years of penalties to the
reclusion temporal, civil interdiction will also be 20 persons criminally liable and for the
years. graduation of the same.
Q: Suppose you are sentenced to perpetua. You ARTICLE 46. Penalty to be imposed upon principals
are not sentenced to death. How long will the civil in general – The penalty prescribed by law for
interdiction last? the commission of a felony shall be imposed
A: Under Article 41, it says there, that it will last upon the principals in the commission of such
for the rest of your life. Forever! Civil interdiction felony.
for life. Or, during the period of the sentence Whenever the law prescribes a penalty for
refers to temporal or perpetua; civil interdiction for a felony in general terms, it shall be
life. understood as applicable to the
consummated felony.
Under Article 40, if you are sentenced to
death, and it was commuted to perpetua, the civil ARTICLE 47. In what cases the death penalty shall
interdiction is only good for 30 years. But if you not be imposed; Automatic Review of Death
are sentenced to reclusion perpetua, the civil Penalty Cases. – The death penalty shall be
interdiction is for the rest of your life. There must imposed in all cases in which it must be
be something wrong with the law. imposed under existing laws, except when
CONCLUSION: It is better to be sentenced to the guilty person is below eighteen (18)
death commuted to perpetua because the civil years of age at the time of the commission of
interdiction is only for 30 years, but if sentenced to the crime or is more that seventy years of
perpetua, civil interdiction is for the rest of your age or when upon appeal or automatic review
life. This is an awkward provision in the Revised of the case by the Supreme Court, the
Penal Code. required majority vote is not obtained for the
imposition of the death penalty, in which
cases the penalty shall be reclusion perpetua.
ARTICLE 45. Confiscation and forfeiture of the In all cases where the penalty is imposed
proceeds or instruments of the crime. --- Every by the trial court, the records shall be
penalty imposed for the commission of a forwarded to the Supreme Court for
felony shall carry with it the forfeiture of the automatic review and judgment by the court
proceeds of the crime and the instruments or en banc, within twenty (20) days but not
tools with which it was committed. earlier than fifteen (15) days after
Such proceeds and instruments or promulgation of the judgment or notice of
tools shall be confiscated and forfeited in denial of any motion for new trial or
favor of the Government, unless they be reconsideration. The transcript shall also be
property of a third person not liable for the forwarded within ten (10) days after the
offense, but those articles which are not filing thereof by the stenographic reporter.
subject of lawful commerce shall be
destroyed. Now, Article 47 was amended by the
When you are found guilty, the instrument Heinous Crimes Law. In what instances will the
or tools used in the commission of the crime will death penalty be NOT imposed? There are three
be confiscated or forfeited in favor of the State. (3) instances here. Take note that the law says:
This is also applied in special laws like illegal The death penalty shall be imposed in all cases in
possession of firearms or drug pushing. The shabu which it must be imposed under existing laws.
will not be returned to the pusher. In a homicide The personal belief of the judge is irrelevant. He
or murder case, the weapon recovered and used must follow the law.
as evidence, the gun, knife, bolo, will be
confiscated. In illegal gambling, the cards, dice, The following are the instances when
chips, they are all confiscated by the order of the death penalty will not be imposed:
court. But, of course, you cannot apply that to
certain crimes. Like, for example, in rape, you 1. When the guilty person is
cannot confiscate the instrument used in the below 18 years of age at the
commission of the crime. time of the commission of the
crime ( there is an automatic
lowering of the penalty by 1
Chapter Four degree);
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2. When the convict is more than consolidated. If he is found guilty, there will 30
70 years of age; convictions and 30 different penalties.
3. When upon appeal or
automatic review of the case 2. Formal or real plurality means that a
by the Supreme Court, the person commits 2 or more criminal acts,
required majority vote is not there will be 2 or more victims or offended
obtained for the imposition of parties, but in the eyes of the law, only
the death penalty. one crime was committed.
ARTICLE 48. Penalty for complex crime. – When a So, there are 2 types of complex crimes:
single act constitutes two or more grave or
less grave felonies, or when an offense is a 1. When a single act constitutes 2
necessary means of committing the other, or more grave or less grave
the penalty for the most serious crime shall felonies, which is also called
be imposed, the same to be applied in its compound crime or delito
maximum period. compuesto;
2. When an offense is committed
First of all, we will deal with the concept of as a necessary means to
plurality of crimes. It means to say that the commit the other, which is
person performed a series or criminal acts – one called complex crime proper or
after the other. You commit 2 or more crimes. delito complejo.
One after the other.
A perfect example is when someone runs EXAMPLE: When you aim your gun towards other
amok. He started shooting people, even those he persons. You fired it. The bullet killed 2 people.
doesn’t know. He killed so many. He killed the There is only one act. Did you commit 2 crimes of
persons one after the other. If he killed 30 homicides? NO. You commit the crime of double
people, he will be guilty of 30 counts of homicide. homicide.
The criminal intent to kill victim #1 is different
from the criminal intent to kill victim #2. There Another example. Aberratio ictus. The accused,
are 30 criminal acts. There should also be 30 with intent to kill A and aiming his gun towards A
separate informations. Although from the fired it but because of poor aim, he did not hit A
viewpoint of criminal procedure, in order to but instead hit and killed B.
expedite the proceedings, they can be
125
Q: Is the accused liable for the death of B who because Article 48 does not apply to light felonies.
was not even intended the victim? Conclusion: There are two separate felonies of
A: Yes, because of aberration ictus. light physical injuries.
Q: If you are a fiscal, with what crime will you PEOPLE V. BUAN
prosecute the offender? 22 SCRA 183
A: Complex crime of homicide with attempted
murder. It is a complex crime because the mere Facts: A driver while driving his vehicle
fact of firing at A is a felony, although attempted. recklessly bumped another vehicle causing
On the other hand, he committed homicide the death of A, serious injury to B and
because he killed B. The crime is complex under slight physical injury to C. So, a single act
Article 48 because the crime of homicide and of bumping produced the death of A,
attempted murder came from a single act, one is serious injury to B and slight physical
grave and the other is less grave. injury to C. The fiscal, applying Article 48,
filed two informations. He filed one
Now, take note that under the law, in information for homicide and serious
order for the complex crime to exist, a single act physical injuries through reckless
must constitute grave or less grave felonies or 2 imprudence against the accused.
less grave felonies or 2 grave felonies. So, under However, earlier he files one information
Article 48, two grave felonies can be complexed for slight physical injuries. He file an
with each other. Two less grave felonies can be information under the old Civil Code for
complexed with each other and grave and less slight physical injuries through reckless
grave can be complexed with each other. imprudence, insofar as the light felony is
concerned.
Q: How about light felonies?
A: There is no mention. Therefore, a light felony The accused, upon arraignment,
can be complexed with a grave or less grave pleaded guilty and was sentenced to pay a
felony. A light felony cannot be complexed with fine. In the meantime, the preliminary
another light felony. There is no such thing as a investigation of the case continued with
complex crime of multiple slight physical injuries. respect to the other two. After that, the
Light felonies are not covered under Article 48. fiscal filed a second information in the RTC
for homicide and serious physical injuries
through reckless imprudence.
Q: What happens if a single act produces a grave
or less grave and a light felony? The accused moved to quash the
A: There are two possibilities: second information, pleading double
jeopardy. But, according to the
1. The light felony will be absorbed by the prosecution, there is no double jeopardy
grave or less grave. because that crime is not the same as this
crime. The crime is slight physical injuries
For example, a policeman was engaged in committed against A and B. These crimes
the discharge of his duties. I approached him and cannot be complexed.
hit him in the face with my fist. It caused him
slight physical injuries. Under Article 48, the crime Held: There is double jeopardy. He is
is direct assault. But what happens to the physical being charged for the same offense. There
injuries that he sustained when I hit him? It is should be only one information for
absorbed by the element of attacking or employing homicide, serious and slight physical
force. You cannot say that the crime is direct injuries. That should only be one. So, you
assault with slight physical injuries. cannot separate the three.
A reiteration of the Lontok Case. But this example is doubtful because of the
amendment of Article 267. Because of this
127
amendment, it is doubtful whether the crime is A: In the case of People vs. Abidosa, where the
called kidnapping with murder under Article 48, or accused decided to kill the victim. What he did was
is it called Special Complex Crime of Kidnapping to forcibly enter the house of the victim. And once
with Murder, or the crime of Kidnapping Qualified inside, he killed the victim.
with Murder.
Q: Is the crime murder? Or trespass to dwelling?
But take note, one offense is committed as Because he had to enter the house first by forcing
a necessary means to commit the other. The law himself in and once inside, he killed the person.
does not say one offense is committed as an A: Actually, trespass to dwelling was not the
indispensable means to commit another. So, the primary intent. The primary intent was to kill. The
first offense is necessary to commit the second but trespass was only incidental. It was the direct
the first is not indispensable to commit the second. means effected to kill the victim. So, the crime
When you say “indispensable”, it means that there is murder aggravated by unlawful entry.
without it, the second will not be committed. The forcible entry is not trespass to dwelling, but
only the aggravating circumstance.
Q: What happens if the first offense is
indispensable to commit the second? Is there a Q: What is the penalty for the complex crime?
complex crime? A: The penalty of the complex crime is to be
A: There is none. The second crime is the crime based on the most serious crime, the same to be
because the second crime committed is the real imposed in its maximum period. There should be
crime. only one penalty because if there was only one
crime, there should only one penalty.
Q: How about the first crime?
A: If it is indispensable, then it is only an element For example, a person commits the
of the second crime. The first offense will be the complex crime of homicide and attempted
element of the second; it is absorbed. Without it, homicide. Of course, the penalty for the homicide
you cannot commit the second. is higher than the attempted homicide.
QUESTION: What is the penalty for homicide?
A good example of this is the so-called ANSWER: The penalty is reclusion temporal, but it
Absorption Doctrine or Doctrine of Absorption in should be imposed in its maximum period.
the crime of rebellion.
Q: How about the penalty for attempted
homicide?
PEOPLE vs. HERNANDEZ A: No more.
Issue: When rebellion is committed and Q: How about estafa through falsification of
in the course of rebellion, the rebels killed public document?
people, they injured people, they burned A: Actually, it depends. There are instances when
and destroyed property, can they be guilty the penalty for estafa is higher than falsification,
of the complex crime of Rebellion with depending on the amount involved in the estafa.
murder or physical injuries with homicide? But there are also instances where the penalty for
falsification is higher.
Held: NO. The common crime is
absorbed because you cannot convict a So, it is a matter of looking at the two
person of rebellion without killing. When penalties. If the penalty for the crime of estafa is
you commit rebellion, necessarily people higher, then it will be the one to be imposed in its
will die. So, the killing and the destruction maximum period. On the other hand, when the
is not only accessory but indispensable. penalty for the falsification is higher, then it should
They are absorbed in the felony of be the one to be applied in its maximum.
Rebellion. That is why there is no such
thing as complex crime of Rebellion with Q: Is Article 48 beneficial to the accused?
Homicide or Murder because it does not A: Yes. It is intended to benefit the accused. In
fall under Article 48. the first place, instead that he should be charged 3
times, there is only one crime charged. Instead of
The law also does not say that one offense is a putting a bond 3 times, there will only be one. The
direct means to commit the second. So, it is not penalty is still for his advantage.
indispensable; not to conceal, not a direct means— EXAMPLE: A single act produces death of 3
necessary but not direct. people—multiple homicide. Well, there should only
be one crime. The same provision, the higher the
Q: What do you mean by that? offense, they are just the same but three
homicides. The penalty for homicide is reclusion
128
temporal. We will maximize it: 20 years – one There is only one criminal resolution, and it is
penalty only. followed by a series of acts.
Also, Article 48 applies only to felonies. Issue: How many crimes of theft?
You cannot complex the felony with the crime
punishable by a special law. So, there is no such Held: There is only one crime of theft. One
thing as a complex crime, under the crime in the crime of theft involving two roosters
RPC and a crime under a special law. because there is a single intent to steal.
Special Complex Crimes He does not divide his mind into stealing
from the two owners. He even does not
The second type of ideal plurality is the so- know that there are two owners of the
called special complex crime. So, there are two cocks.
types of complex crime, the ordinary and the
special complex crime. EXAMPLE: I am the class treasurer. Then, we call
a party and each of us contributed P100.00
Ordinary complex crime is governed by totaling P5, 000. Then, I will run with the money.
Article 48. When two or more crimes are QUESTION: How many crimes of estafa did I
complexed under Article 48, that is what is called commit? ANSWER: There is only one crime.
the ordinary complex crime. Special complex crime There is only one intent to defraud. I do not divide
is a crime under the RPC declared as complex my mind 50 times.
without applying the Article 48.
People vs. Mallare
EXAMPLE: The special complex crime of Robbery 168 SCRA 422
with Homicide under Article 294 of the RPC. When,
by reason or on the occasion of robbery, the crime Facts: Consuelo Mallare offered to
of homicide shall have been committed. I robbed mortgage to Remedio Capaoan two lots
somebody, after taking his money, I killed him. If allegedly owned by Leonora Balderas for
you apply Article 48, there seems to be something the sum of P3,000. According to Mallare,
wrong. You cannot say that there is a single act. It these two lots were owned by Balderas
is very clear that there are two acts. Taking his and that Mallare is authorized to
property and killing him are 2 acts. You cannot mortgage. Capaoan has only P1,500. So,
even say that one is necessary to commit the the latter referred Mallare to his mother-
other. in-law, Julia Saclolo, to put up the
remaining P1,500. So, two mortgage
Q: Can you kill without robbing? contracts were made – one was in favor of
A: Yes, you can kill without robbing. And you Capaoan and the other was in favor of
can rob without killing. But just the same, you Saclolo. It turned out that the person who
cannot do anything because Article 294 says so. signed the contract was not the real
Robbery with Homicide is a special complex crime. Balderas. Two cases of falsification of
public document were filed against Mallare.
Another example of special complex crime In one case, the victim was Capaoan, while
is Article 335: Rape with Homicide. You raped a the other was Saclolo. Mallare pleaded
girl and after raping her, you killed her. That is guilty to one charge. Later, he moved to
rape with homicide -- a special complex crime. quash the second charge pleading double
jeopardy.
TABLE SHOWING THE DURATION OF DIVISIBLE But reclusion temporal has three
PENALTIES AND THE TIME INCLUDED IN EACH OF periods - minimum, medium, maximum. To
THEIR PERIODS know the duration, you have to know Article
76.
PENALT ENTIR MINI MEDI MAXIMU
IES E MUM UM M
DURAT Reclusion Temporal - 12y 1d to 20y
ION minimum : 12y, 1d to 14y 8m
Reclusio From From From From 17 medium : 12y, 8m 1d to 17 y
n 12 12 14 years, 4 4m
temporal years years years, months maximum : 17y, 4m 1d to 20y
and 1 and 1 8 and 1 day
day to day to month to 20 formula:
20 14 s and years
years years 1 day a) Determine the duration of the entire felony
and 8 to 17 maximum : 20y
months years minimum : 12y, disregard the
and 4 1d
month subtract : 20y - 12y=8y. This
s is the duration of the
Prison From 6 From 6 From From 10 entire penalty.
mayor, years years 8 years and
absolute and 1 and 1 years 1 day to b) Since there are three parts, divide 8y by 3.
disqualifi day to day to and 1 12 years It is difficult to divide, so first, convert
cation 12 8 years day to some years to months. Hence, 8y - 2y=6y
and years 10 24m (2y).
special years
temporar Then divide 6y, 24m by 3 = 2y, 8m
y
disqualifi Duration of each period = 2y, 8m of reclusion
cation temporal
Prison From 6 From 6 From From 4
correccio months months 2 years, 2 c) Start with 12y and add 1d (but in the
nal and 1 and 1 years months computation, do not add 1d), then add 2y
suspensi day to day to 4 and 1 day and 8m.
on and 6 years 2 years month to 6 years
destierro and 4 s and
months 1 day
to 4
years Therefore: 12y 1d
and 2 + 2y 8m
month 14y & 8m
s
Arresto From 1 From 1 From From 4 So, the minimum period is 12y, 1d to
mayor month to 2 2 months 14y, 8m.
and 1 months month and 1 day
day to s and to 6 d) 14y 8m
6 1 day months + 2y 8m
months to 4 16y & 16m or 17y, 4m
month
s So, the medium necessarily starts at
Arresto From 1 From 1 From From 21 14y, 8m 1d to 17y, 4m.
menor to 30 to 10 11 to to 30
days days 20 days e) 17y 4m
days + 2y 8m
19y, 12m or 20y
COMPUTATIONS:
So, the maximum starts at 17y, 4m 1d
Reclusion temporal - duration is 12 years, 1 day to 20y.
to 20 years
136
Arresto mayor -- duration is 1 month, 1day to
Prision Mayor ---- duration is 6 years, 1 day to 6months
12 years minimum : 1m to 2m
minimum : 6y 1d to 8y medium : 2m 1d to 4m
medium : 8y 1d to 10y maximum : 4m 1d to 6m
maximum : 10y 1d to 12y
formula: 6m - 1m = 5m or 3m 60d
If we follow the formula, the computation shall be:
So, 3m 60d = 1m 20d (duration per period of
a) 12y-6y = 6y arresto mayor)
3
b) 6y = 2y (duration of each period)
3y Compute:
1m
c) Thus: 6y, 1d to 8y (minimum) + 1m, 20d
8y, 1d to 1oy (medium) 2m, 20d minimum : 1m 1d to 2m
10y, 1d to 12y (maximum) 20d
+ 1m 20d
3m, 40d or 4m 10d medium : 2m
Prision Correccional -- duration is 6 months, 21d to 4m 10d
1day to 6years + 1m 20d
minimum : 6m1d to 2y 5m 30d maximum : 4m 1d to 6m
4m
medium : 2y 4m 1d to Therefore, if we apply the formula, it will not
4y2m jibe with what is provided under Article 76.
maximum : 4y 2m 1d to 6y
Q: What is the correct answer?
a) 6y - 6m (but you cannot subtract without A: Follow the law. The solution derived from the
converting first the 6y into months) formula is mathematically correct but legally
wrong. Whereas, in Article 76, it is legally correct
6y = 5y 12m although mathematically wrong.
6m
5y 6m (duration of entire In Article 70, you can read there the
penalty of prision scales. What is important is Scale 1. In the scale of
correcccional) penalties, how are the penalties arranged starting
from these down the last penalty? Alright, we have
b) Convert 5y, 6m in such a manner as to said earlier that penalties are either divisible or
make it divisible by 3 indivisible; one with a fixed duration and one
without fix duration.
5y 6m = 3y, 30m
3y 30m = 1y, 10m Now, for penalties which are divisible
3 (duration of each (penalty which consists of three periods, known as
period) minimum, medium and maximum), you have at
least to know the duration of each period. Article
c) Compute: 76 is our guide because it tells us the duration of
6m each period of the penalty. But that will entail
+ 1y, 10m really of memorizing the table down to the last
1y, 16m or 2y 4m month and day, and you cannot commit any error
+1y 10m there because an error of one day will give an
3y 14m or 4y 2m error on your answer.
+ 1y 10m
4y, 24m or 6y Now, you might as well remember the
mathematical formula to arrive at the same
Thus: answer even without reading Article 76. Actually,
minimum : 6m 1d to 2y the basic knowledge of mathematics for the
4m minimum period will answer even without
medium : 2y 4m 1d to 4y memorizing Article 76.
2m
maximum : 4y 2m 1d to 6y For example, the duration of reclusion
temporal: 12 years and 1 day to 20 years. Now,
the formula is to subtract the minimum from the
137
maximum disregarding the 1 day difference: 20 reduce this to 3 months and the 2 months to days.
years - 12 years = 8 years. So, 60 days, 3 months and 60 days divided by 3 =
1 month and 20 days. That is supposed to be the
That is the entire duration of the penalty of duration. So, we will start.
reclusion temporal. Next is to determine the
duration of its period. Since there are three The starting point is 1 month and 1 day.1
periods, then we have to divide 8 years into three month + 1 month and 20 days = 2 months and 20
parts. Now, of course, dividing 8 years into three days. The medium is supposed to start from 2
parts would be rather difficult. The best thing to do months and 21 days + 1 month and 20 days = 3
is to convert the years into months. So, that will months and 40 days. Transpose 30 days equals 4
be quite easier. So, let's reduce this 6 years months. 40 days - 30 days = 10 days. The
because it is easier to divide 6 years by 3. Now, medium is supposed to end at 4 months and 10
let's convert the 2 years into months: 24 months. days. The maximum is supposed to commence
6 years and 24 months, that is already divisible by from 4 months and 11 days + 1 month and 20
3. days = 5 months and 30 days or exactly 6
months.
So, that will now be our answer: 2 years
and 8 months. That would be the duration of each Now, you compare that with what Article
period of reclusion temporal. So, let's start with 76 says. They do not tally. This is what Article 76
the minimum. Of course, you already know the says. This is what the formula says. Now,
minimum of 12 years and 1 day. Then you add the conclusion: the formula in the Penal Code is
1 day: but in our formula, we disregard it. It is mathematically wrong, or inaccurate. But at any
now: 12 years + 2 years and 8 months = 14 years rate, that is the answer.
and 4 months.
Reclusion temporal, how many periods? And, of course, what do you call that
Three: maximum, medium, minimum. What penalty? Reclusion temporal maximum. That is
follows? Prision Mayor, maximum, medium, divisible penalty because it has fixed duration. And
minimum. When the penalty prescribed of a crime being divisible, it has its own minimum, medium,
is composed of several periods, corresponding to maximum, for the purpose of mitigating and
different divisible penalties, for example, the aggravating circumstances.
penalty for a crime is prision mayor maximum to
reclusion temporal medium. How many periods?
Three. The problem is that 2/3 belongs to
reclusion temporal, while 1/3 belongs to prision ACTICLE 62. Effect of the attendance of
mayor. So, two parts belong to reclusion temporal, mitigating or aggravating circumstances and of
1 part belongs to prision mayor. habitual delinquency. -- Mitigating or
aggravating circumstances and habitual
What is one degree lower than that? The delinquency shall be taken into account for
law says the penalty lower in degree shall be the purpose of diminishing or increasing the
composed of the period immediately following the penalty in conformity with the following
minimum prescribed and of the two next following. rules:
What follows prision mayor? Prison correccional.
What follows now is the minimum period which 1. Aggravating circumstances which in
follows the maximum. So, medium plus the next themselves constitute a crime
two. That is the penalty for the accomplice. Follow specially punishable by law or which
the same pattern for the penalty for an accessory. are included by the law in defining a
crime and prescribing the penalty
5. When the law prescribes a penalty for a crime therefore shall not be taken into
in same manner not especially provided for in account for the purpose of increasing
the four preceding rules, the courts, the penalty.
proceeding by analogy, shall impose 2. The same rule shall not be taken into
corresponding penalties upon those guilty as account for any aggravating
principals of the frustrated felony or of circumstance inherent in the crime to
attempt to commit the same, and upon such a degree that it must of necessity
accomplices and accessories. accompany the commission thereof.
3. Aggravating or mitigating
When the penalty for a crime is not among circumstances which arise from the
those mentioned in #'s 1 to 4, example the moral attributes of the offender, or
penalty for the crime is reclusion temporal medium from his private relations with the
to maximum, that is the range of 14 years, 8 offended party, or from any other
months and 1 day to 20 years, and there are only personal cause, shall not only serve to
two periods. What is one degree lower? By aggravate or mitigate the liability of
analogy, that of 1 degree lower is prision mayor the principals, accomplices and
maximum to reclusion temporal minimum. What is accessories as to whom such
two degrees lower? Prision mayor minimum to circumstances are attendant.
prision medium. What is 3 degrees lower? Prision 4. The circumstances which consist in
correccional medium to prision correccional the material execution of the act, or in
maximum. So, by analogy, that is how you the means employed to accomplish it,
graduate penalties according to Article 61. shall serve to aggravate or mitigate
the liability of those persons only who
ILLUSTRATION: Suppose, the penalty prescribed had knowledge of them at the tome of
of a crime is reclusion temporal maximum and the execution of the act or their
there are many crimes in the Penal Code with that cooperation therein.
kind of penalty. You apply only one, reclusion 5. Habitual delinquency shall have the
temporal maximum. So, the penalty is presently following effects:
ranging from 17 years, 4 months and 1 day to 20 (a) Upon a third conviction the
years. culprit shall be sentenced to
the penalty provided by the
What is the degree lower? By analogy, law for the last crime of which
reclusion temporal medium is already 1 degree he be found guilty and to the
lower. Not only period, it is 1 degree lower by additional penalty of prision
itself. Reclusion temporal minimum is considered correccional in its medium and
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maximum periods; crime committed in the house, is already included
(b) Upon a forth conviction, the in the definition of the crime. In the crime of
culprit shall be sentenced to qualified theft, that the crime is committed with
the penalty provided for the abuse of confidence by the offender is no longer
last crime of which he be found aggravating because abuse of confidence is
guilty and to the additional already an element of the crime of qualified theft.
penalty of prision mayor in its
minimum and medium periods; o When it is inherent in the crime.
and
(c) Upon a fifth or additional Q. When is a circumstances inherent in a crime?
conviction, the culprit shall be A. When it must necessarily accompany the
sentenced to the penalty commission of the crime.
provided for the last crime of
which he be found guilty and Q. What are those?
to the additional penalty of A. Examples are evident premeditation is not
prision mayor in its maximum aggravating in robbery because, when the robbers
period to reclusion temporal in commit the crime, they have really planned it. So,
its minimum period. it is already inherent. So, also in treason.
Notwithstanding the provisions of this
article, the total of the two penalties to be 3. Aggravating or mitigating circumstances
imposed upon the offender, in conformity which arise from the moral attributes of the
herewith, shall in no case exceed 30 years. offender, or from his private relation with the
For the purpose of this article, a offended party, or from any other personal
person shall be deemed to be habitual cause, shall only serve to aggravate or
delinquent, is within a period of ten years mitigate the liability of the principals,
from the date of his release or last conviction accomplices and accessories as to whom such
of the crimes of serious or less serious circumstances are attendant.
physical injuries, robo, hurto, estafa or
falsification, he is found guilty of any of said EXAMPLE: A and B commit the crime
crimes a third time or oftener. together. A acted with evident premeditation. B
did not. Under the rules on evident premeditation,
Aggravating circumstances have the effect it only affects A and not B. Or, A and B commit a
of increasing the penalty. They have to be taken crime together. B acted with passion or
into account the purpose of increasing the penalty. obfuscation. A did not. B will be the only one
However, Article 62 says in the following cases, credited with the mitigating circumstances, not A.
the aggravating circumstances are not taken into Or, those which arise from the public relations of
account anymore. Meaning, the aggravating the parties. A conspired with B to rob the father of
circumstances will not affect the penalty anymore A. So, A conspired with a stranger to rob his own
and there are three, based on this Article: father. Now, relationship is a mitigating
circumstance to A, but it will not favor B because B
o When the aggravating circumstance is not related to the victim.
constitutes the crime itself;
Or those which are personal to the
EXAMPLE: Arson. What constitutes the offender. For example: I will conspire with a 17-
crime of arson? When you destroy another year-old minor to commit a crime. Minority will
person's property by fire. Now, under Article 14, favor him but will not favor me because I am not a
one of the aggravating circumstance is when the minor. Or, I will conspire with A to commit a
crime is committed by means of fire. So, the use crime. I am a recidivist. He is a first offender.
of fire under Article 14 will no longer be considered Recidivism will affect me but does not affect him.
as aggravating in arson because it is the use of fire
which is the very crime of arson itself. So, when it comes to these circumstances,
they will only affect the person concerned. Does
o When it is included in the definition of the this not violate the rule on conspiracy, that the act
crime; of one is the act of all? It does not. When the law
says it in conspiracy, it simply means that we are
EXAMPLE: The crime of robbery committed all liable, but the law does not say that in
in the house, under Article 299. That is with the conspiracy, your mitigating is also my mitigating,
use of force upon things. When you enter the or my aggravating is also your aggravating.
house to rob it, the fact that the crime is
committed in the dwelling of the offended party is 4. The circumstance which consist in the
no longer aggravating because dwelling. Or the material execution of the, or in the means
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employed to accomplish it, shall serve to robbery, estafa and
aggravate or mitigate the liability of those falsification;
persons only who had knowledge of them at 3) there must be a time gap of
the time of the execution of the act or their not more than ten years
cooperation therein. between convictions
Q. How about circumstances which refer to the Q: When will you compute? What is the starting
manner which the crime is committed or the ways point in computing the period?
and means employed to commit the crime? A: The law says either from the date of final
A. It will affect the person who employed the conviction or last release, because if you
ways and means, and the accused who have count it only from the last conviction, it will
knowledge of it. be more than ten years, but it still within ten
years from release.
EXAMPLE: I will hire a killer to murder X,
paying the former P100,000. I will leave to him Q: What is the cut-off point of the period? Is it
the manner of killing X. He used treachery to kill the conviction or is it the commission of the
the victim. Now, will treachery affect me because offense for the 2nd time?
I am the one who ordered him to kill, but I have
no idea of how he will di ot. Now, under Rule #4, For example, it is now my 3rd time to
treachery will affect the killer, but it will not affect commit theft or robbery or estafa or falsification
me because I have no knowledge. or serious physical injuries. It is my 3rd time
within 10 years, so today is exactly the 10th year,
But supposed, I will say You kill that guy but definitely, I will be found guilty not today. It
but tell me exactly how you will do it. I will have will take time. So, if you will look at the date
to approve your method. So, I have the when I will be convicted, it will definitely be
knowledge of the manner the crime is to be beyond 10 years.
committed. Under #4, this affects my liability.
Even it did not employ treachery, I will still be QUESTION: Is habitual delinquency applicable?
affected because I have the knowledge as to the ANSWER: No, because the cut-off point is not
ways and means employed. the date of the commission of the offense for the
3rd or 4th time, but the date of the conviction for
Q: How #3 differentiated from #4? the offense. It is evident that the law says he is
A: In paragraph 3, the circumstance affects only found guilty of any of the said offense a 3rd time.
the person concerned regardless of the fact So, it is the cut-off period, the date of the
whether he has knowledge or not. But, if the conviction, and not the date of the commission of
circumstance affects the ways and menas the offense.
employed, the knowledge, although he did not
employ that manner, will sufficiently affect him. Suppose, I am found guilty of robbery as a
principal -- 1st offense. On the 2nd offense, as an
accomplice, and the 3rd offense of robbery, as an
HABITUAL DELINQUENCY accessory. So, definitely, the crimes I committed
are all mentioned there. But for the three times
This is the third instance of criminal that I have been found guilty of these crimes, I
repetition. The first two were recidivism and was in different capacities. Now, I am convicted
reiteracion or individuality. A person is a habitual for the 3rd time as an accessory.
delinquent if within a period of ten years from the
date of his release or last conviction of the crime QUESTION: Am I habitual delinquent?
of serious or less serious physical injuries, robo, ANSWER: Yes, because what is important is that
hurto, estafa, or falsification, he is found guilty of I am found guilty to these crimes without regard
any of said crimes a third time oftener. to the manner of participation, whether principal,
accomplice or accessory.
Elements
1) there must be a third Suppose, I was found guilty for the 1st
conviction; time of consummated robbery; then 2nd time
2) the crime committed by the frustrated theft; 3rd time attempted estafa.
offender for the 3rd, 4th, or 5th
times should be among those QUESTION: Am I habitual delinquent?
mentioned in Article 62 , like ANSWER: Yes, because the law does not care
serious physical injuries, less about the stages of the execution. What matters
serious physical injuries, theft, is the crime, irregardless of whether it is
attempted, frustrated or consummated.
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When you commit a crime and there is an ARTICLE 68. Penalty to be imposed upon a person
incomplete justifying or incomplete exempting under eighteen years of age.-- When the
circumstance, the penalty should be lowered by 1 offender is a minor under eighteen years and
or 2 degrees. his case is one coming under the provisions
of the paragraph next to the last of Article 80
Q: So, what is Article 69? of this Code, the following rules shall be
A: It is a privilege mitigating circumstance where odserved:
the penalty is lowered by at least one degree. But 1. Upon a person under fifteen but
this is just a repetition of Article 13, paragraph 1. over nine years of age, who is not
Under Article 13 on mitigating circumstance, the exempted from liability by reason
first mitigating circumstance is incomplete of the court having declared that
justifying, incomplete exempting, and it is also a he acted with discernment, a
mitigating circumstance with one difference. In discretionary penalty shall be
Article 13, incomplete justifying/exempting is only imposed, but always lower by two
an additional circumstance, whereas in Article 69, degrees at least than that
it is a privileged mitigating circumstance. prescribed by law for the crime
which he committed.
A perfect example is self-defense, where 2. Upon a person over fifteen and
not all requisites to justify the act is present. So, under eighteen years of age the
incomplete self-defense. You are charged with penalty next lower that that
homicide. Your claim is self-defense. You were prescribed by law shall be
able to prove some requisite, but there is lacking - imposed, but always in the proper
- less than three. Applying Article 69, the penalty period.
for you, you should be convicted for homicide but
the penalty should be lowered by 1 or 2 degrees. This is the law on suspended sentence on
Assuming only 1 degree, so from reclusion youthful offenders. Under Article 189 of PD 603, a
temporal, you will be penalized to prision mayor. person is over 9 but below 18 -- so, it covers a
minor over 9 up to 15 who acted with
If we apply Article 13 to you, the penalty discernment, or a minor from 16 up to 17. It is
should be within the range of reclusion temporal classified as youthful offender. What is the effect
minimum, and such incomplete self-defense can of that?
be offsetted by an aggravating circumstance. If we
apply Article 69, your penalty will go down to ARTICLE 189, PD 603. Youthful offender,
prision mayor, or even as far down to prision defined. -- A youthful offender is a child, minor or
correctional, and incapable of offsetting by an youth, including one who is emancipated in
aggravating. accordance with law, who is over nine years but
under eighteen years of age at the of the
Q: Which will prevail: Article 69 or Article 13 (1)? commission of the offense.
A: No one will prevail: Sometimes, Article 69 A child of nine years of age or under at the
applies; sometimes Article 13 (1) applies time of the commission of the offense shall be
exempted from criminal liability and shall b
Q: When will Article 13(1) apply, or when will committed to the car of his or her father or
Article 69 apply? When will incomplete justifying or mother, or nearest relative or family friend in the
incomplete exempting be treated as privileged discretion of the court and subject to its
mitigating, when will it be treated as ordinary supervision. The same shall be done for the child
mitigating? over nine years and under fifteen years of age at
A: The clue is in Article 69. We apply Article 69 the time of the commission of the offense, unless
when the majority of the requisites are present. he acted with discernment, in which case shall be
Majority. So, in self-defense, two out of three. So, proceeded against in accordance with Article 192.
incomplete self-defense becomes a privileged The provisions of Article 80 of the Revised
mitigating circumstance. Penal Code are hereby repeated by the provisions
of this chapter.
But suppose, it is one out of the three as
only unlawful aggression was proven, but the ARTICLE 192, PD 603. Suspension of Sentence
means used was unreasonable, plus the fact that and Commitment of Youth Offender -- If after
the accused gave provocation, then, we shall treat hearing the evidence in the proper proceedings,
147
the court should find that the youthful offender suspended, he has behaved properly and has
has committed the acts charged against him the shown his capability to be a useful member of the
court shall determine the imposable penalty, community, even before reaching the age of
including any civil liability chargeable against him. majority, upon recommendation of the DSWD, it
However, instead of pronouncing judgment of shall dismiss the case and order his final
conviction, the court shall suspend all further discharge.
proceedings and shall commit such minor to the
custody and care of the Department of Social Of course, the recommendation of the
Welfare or to any training institution operated by DSWD is inadequate or not conclusive. The court
the government, or to duly licensed agencies or will be the one to discharge. It does not follow
any other responsible person, until he shall have simply that the recommendation is like this, and
reached twenty one years of age or, for a shorter the court will follow.
period as the court may deem proper, after
considering the reports and recommendations of PEOPLE vs. GALIT
the Department of Social welfare or the agency or 230 SCRA 486
responsible individual under whose care he has
been committed. Recommendation alone is not sufficient to
The youthful offender shall be subject to warrant the release of a youthful offender. In
visitation and supervision by a representative of reviewing the DSWD’s recommendation, the trial
the Department of Social Welfare or any duly judge must not base his final judgment on mere
licensed agency or such other officer as the Court conclusions, but out of concrete material and
may designate subject to such conditions as it relevant facts to confer that the youthful offender
may prescribe. has indeed reformed. Whether he is reedy to re-
enter into society as productive and law-abiding
Under the new Family Courts Act, there is person. The youthful offender must not be tried
no need for the guilty minor to petition for a anew for the same act for which he was charged.
suspension of the sentence. The court, upon This is not a trial for the same act or crime for
proper evidence of his age, will automatically which he is found guilty.
refer him to the rehabilitation center for minors
operated by the DSWD, or any other NGO's, like The inquiry is not a criminal prosecution
in the Don Bosco Boy's Home in beautiful Cebu. but rather limited to the defendant’s proper
education during his confinement in the
Q: How long will be the duration of the rehabilitation center, including his commitment
confinement with the DSWD? and the moral and social fitness to re-join the
A: Until he will have reached the age of 21 or community.
sooner. It depends on the reformation of the
minor. Q: What happens if it is the other way around? If
Q: Are there minors who are disqualified from this the recommendation is adverse and, according to
privilege? the DSWD, from the very first day he entered into
A: Yes. If a minor below 18 years has already the rehabilitation center, the center became the
enjoyed this benefit before. He cannot enjoy the hive of criminals because he corrupted all the
same during his minority. He can only enjoy it other minors there. No matter how the
once; When the crime is punishable by death or Department tried its best to discipline him, He
life imprisonment, or in the RPC -- reclusion cannot be disciplined. Meaning, the minor is
perpetua; incorrigible.
A: If the report is unfavorable, the court will
relieve the suspension of the sentence and will re-
Q: What happens if he is still inside? impose the penalty. This time, when he will go out
A: Actually, it depends on how he will behave, on of the courtroom, he will be put in jail.
what will be the final report of the DSWD.
ARTICLE 197, PD 603. Return of the youthful
For example, during his stay there, it offender to court – Whenever the youthful offender
turned out that he is a reformed minor. He has been found incorrigible or has willfully failed to
committed a crime but he is not really criminally comply with the conditions of his rehabilitation
inclined. So, the report is favorable Corrigible. program, or should his continued stay in the
The court will order his final discharge. What training institution be inadvisable, he shall be
happens to the suspended sentence? Forget it! returned to the committing court for the
pronouncement of the judgment.
ARTICLE 196, PD 603. Dismissal of the case – If When the youthful offender has reached
it is shown to the satisfaction of the court that the the age of 21 while in commitment, the court shall
youthful offender whose sentence has been determine whether to dismiss the case in
148
accordance with the next preceding article or to It should be two degrees lower because of Article
pronounce the judgment of conviction. In the 68(1). It should only be prision correccional.”
latter case, the convicted offender may apply for
probation under PD 968. ARTICLE 68, RPC. Penalty to be imposed upon a
In any case covered by this article, the person under 18 years of age. – x x x
youthful offender shall be credited in the service of 1. Upon a person below fifteen but over
his sentence with the full time spent in actual nine years of age, who is not
commitment and detention under the provision of exempted from liability by reason of
this chapter. the court having declared that he
acted with discernment, a
Q: Can a minor avail of the suspension of discretionary penalty shall be imposed,
sentence under another law? but always lower by two degrees at
A: Yes, he can avail under PD 968 – Probation least than that prescribed by law for
Law. However, It is doubtful whether he can the crime which he committed.
qualify under the law. Probation Law is for the xxx
suspension of sentence for actual offenders only.
That is the counterpart of PD 603. Suppose, the judge will say I will not give
you two degrees lower because you are
However, the law says that the period of incorrigible. QUESTION: Is the judge correct?
time spent in the rehabilitation center is credited ANSWER: The judge is wrong. The fact that the
already. Actually, if you analyze it, it is not a minor is incorrigible is not a ground to deny him of
penalty. the benefit of Article 68. Being incorrigible is only
a ground to nullify the suspension of the sentence.
ARTICLE 24, RPC. Measures of prevention or
safety, which are not, considered penalties. – The We should separate article 69 of the RPC
following shall not be considered as penalties: from PD 603. We are talking here only on whether
xxx the suspended sentence will remain suspended or
not. We are not talking here of what is the
2. The commitment of the minor to any of appropriate penalty. You cannot deny the fact
the institutions mentioned in Article 80 and for the that he was 16 years at the time he committed the
purposes certified therein. crime. Under Article 68, he is entitled to two
degrees lower.
Q: What are the measures of suspension of
penalties? If he is incorrigible in the rehabilitation
A: One of them is the commitment of the minor. center, it is not a ground to deny him of the
It is not supposed to be a penalty, but still it is benefit of Article 68.
considered to be equivalent to a preventive
imprisonment. 100% credited. Same effect as Suppose, the minor is found guilty of a
Article 29. light felony. The sentence is only 30 maximum.
Is he entitled to suspension of sentence? Yes,
ARTICLE 29, RPC. Period of preventive because PD 603 does not state that only those
imprisonment deducted from the term of charged with grave felony are entitled. That is one
imprisonment – Offenders or accused who have of the differences between PD 603 and the old
undergone preventive imprisonment shall be Article 80 on suspended sentence.
credited in the service of their sentence consisting
of deprivation of liberty with the full time during So, a minor may avail the privileges of
which they have undergone preventive suspended sentence whether the felony is grave,
imprisonment if the detention prisoner agrees less grave, or light. If it turned out that he is
voluntarily in writing to abide by the same incorrigible, and the penalty has to be re-imposed,
disciplinary rules imposed upon convicted then his minority will be treated as ordinary
prisoners, except x x x mitigating.
Suppose, a minor 16 years old when he Q: A minor committed a malum prohibitum crime
committed the crime of homicide and he applied punishable by a special law. IS PD 603 applicable?
for suspended sentence. After 4 years the report Or this is only under the crime charged under
was unfavorable. So, the court will now say RPC?
Alright you are incorrigible. We will relieve the A: It is applicable to any crime whether under a
suspension and I sentence you to reclusion special law or the Revised Penal Code.
temporal. That is the penalty for homicide. But
the minor will say: “Your honor, that is not correct. Suppose, a minor was 13 years old when
he committed the felony – homicide. He remained
149
at large for 5 years. HE was apprehended at the articles 11 and 12, provided that the majority
age of 18 years old. He was convicted when he of such conditions be present. The courts
was 21 years old. QUESTION: Is he entitled to shall impose the penalty in the period which
suspension of sentence? ANSWER: The youth is may be deemed proper, in view of the
not entitled. What will he do in the boys town? number and nature of the conditions of
He is already old. Suppose, he was convicted exemption present or lacking.
when he was 25 or 30, will he be included with the
young? There is something wrong there. But how When do you apply Article 13? When do you
do you reconcile this with Article 189, which states apply Article 69?
that he must be a minor at the time of the
commission of the offense?
We have to wait that the judgment will ARTICLE 81. When and how the death penalty is
become final. In case of an appeal, you cannot to be executed — The death sentence shall be
force the accused to serve his sentence. executed with preference to any other
penalty and shall consist in putting the
Q: When will the execution of the penalty be person under sentence to death by
suspended? electrocution. The death sentence shall be
What is the ground for suspending a penalty? executed under the authority of the Director
A: According to Article 79, in the course of serving of Prisons , endeavoring so far as possible to
the mitigate his sufferings of the person under
penalty or the portion of the penalty, the accused sentence during the electrocution as well as
becomes during the proceedings prior to the
insane. We do not penalize in a penal institution execution .
the person If the person under sentence so desires,
who becomes insane. He should be brought to the he shall be anaesthetized at the moment of
mental electrocution.
hospital for the recovery of his insanity. And
once This article is already amended, like the
he recovers, he has to continue serving penalty. manner of execution -- from electrocution to lethal
injection. But some of the parts are still true. The
Q: State the legal effects of insanity of the death sentence should be carried out not later
accused. than 1 year after the judgment has become final.
A: The answer should be based on the questions: Within 1 year, it should be carried out. Unless he
When it will will be pardoned by the President or commute his
take effect? When did he become insane? When he sentence. So, there will be no prolonged delay.
is insane
at the time he commits a crime, he is exempt. The law says the death sentence shall be
executed with preference to any other. This jibes
Suppose, he was normal, but when he is well with Article 70. In executing 2 or more
charged in court, he becomes insane. Meaning, he penalties, you start at the most severe, going
became insane after the information was filed. He down to the less severe. And therefore, if a
is no longer exempted. person is sentenced to death for one crime, and 5
days for arresto menor, you do not start with
Q: But can we proceed for the trial of this guy? arresto menor going to death.
A: Definitely, we cannot.
PEOPLE VS JOSE
Q: So, what is the effect?
A: Under Criminal Procedure, in Rule 116, that is a FACTS: Four boys, one of them a
ground for Bosconian, were charged with the rape of
the suspension of an arraignment of the accused Maggie de la Riva. Each of them was
on the charged four times. That is the law on
ground of insanity. multiple rape. You are not only liable for
raping the victim, but also to the other
rape where you helped your co-accused.
Q: Now what happens if the accused was sane, but So, all of them were found guilty by the
after he trial court. All of them were meted the
was arraigned, he become insane? penalty of death penalty.
A: That is a ground to suspend the trial until he
recovers The trial court said that legally speaking,
because otherwise, it will violate his each of them should be sentenced to death
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4 times because they have been found - if the woman is pregnant - let us
guilty of rape for four counts. One rape is not kill the fetus. It is the mother who
one death penalty. So, each of them is guilty, not the child.
should be sentenced to death four times, - a woman within 1 year after
but since they have only one life to give, delivery - Let us allow her to nurse
the court cannot sentence them four the child. After 1 year, after she
times. So, the court is saying that despite delivered the baby, let us kill her with
the fact that they deserved to be impunity.
sentenced for four times, the court - When the convict is over 70 years
sentenced them to death only once. old.
HELD: The Court on appeal, affirmed the ARTICLE 47, RPC. In what cases the death
decision and sentenced them to death four penalty shall not be imposed – The death
times. The other three death penalties are penalty shall be imposed in all cases in which
not useless. It has the effect when the it must be imposed under existing laws,
President pardons a convict. Thus, the except when the guilty person is below 18 at
convict is not really spared from death the time of the commission of the crime, or is
even if pardoned because there are still more than 70 years of age or when upon
three death penalties to be observed. The appeal or automatic review of the case by the
president has to pardon the convict to be Supreme Court, the required majority vote is
spared from the death penalty. not obtained for the imposition of the death
penalty, in which case the penalty shall be
This provision about sentencing a person reclusion perpetua.
for two or more death penalties, if he
deserves it, is a check on the pardoning Q: Now, how do you compare Article 47 from
power of the President. Now, who is this Article 83?
kind of president who will risk his neck and A: In Article 47, when the accused is over 70 years
political popularity four times to you? He of age, he
will not risk his reputation before the should not be sentenced to death. There should
Filipino people by pardoning the convict. be an
He might risk it only once. automatic commutation to reclusion perpetua. In
Article 83,
To say that the four penalties could not be when the accused is over 70 years of age, the
carried out because it is impossible to carry out for death penalty
4 times is also wrong. It can be carried out four should be suspended. So there will only be
times because under Article 70, when a person is suspension of
sentenced to two or more penalties, he will serve sentence.
them SIMULTANEOUSLY, unless it is not possible.
When you are sentenced to four death penalties, Q: Now which is which? Will it be a permanent
and you are lethally injected, that is a reprieve from
simultaneous service of the four penalties. a death penalty under Article 47, or will there be
a
suspension? Is there a conflict between Article 47
and
ARTICLE 83. Suspension of the execution of the Article 83?
death sentence — The death sentence shall not A: It could be both, reprieve or suspension.
be inflicted upon a woman within the 3 years
next following the date of the sentence or Suppose, you were 69 years old when you
while she is pregnant, nor upon any person were convicted by the lower court. You appealed
over 70 years of age. In this last case, the but it was affirmed. You are safe when the
death sentence shall be commuted to the judgment becomes final. Under Article 47, it
penalty of reclusion perpetua with the should be commuted to reclusion perpetua . But
accessory penalties provided in Article 40. the President has to commute it, it is not
In all cases where the death sentence automatic. While we are waiting for his official
has become final, the records of the case act, the execution will be suspended. That is how
shall be forwarded immediately by the to reconcile Article 47 and Article 83.
Supreme Court to the Office of the President
for possible exercise of the pardoning power. Q: When a minor, who is below 18 years of age,
his minority
Q: When should the death penalty be suspended? could either be mitigating or Privileged mitigating.
A: There are 3 instances: How about
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70 years old. Is it ordinary mitigating or privileged day. It could be served in the city jail, or in the
mitigating? municipal jail,
A: Under Article 13, over 70 is only ordinary or even in the residence of the accused, under the
mitigating. It is surveillance of the police officer. But the judge will
not considered as privileged Except only when a have to
person over provide for a valid reason.
70 years of age will be sentenced to death and
because of
Article 47, it will be commuted to reclusion
perpetua. INDETERMINATE SENTENCE LAW
ACT 4103
So, in that sense, it will have the effect of
the privilege. But that’s the only instance. If he is
sentenced to reclusion perpetua, it will not be SECTION 1. Hereafter, in imposing a prison
commuted. Old age could never be a privileged sentence for an offense punished by
mitigating, except when the imposable penalty is the Revised
death. Because under Article 47, it has to be Penal Code, or its amendments, the court
commuted automatically to one degree lower. shall sentence the accused to an
indeterminate
ARTICLE 87. Destierro -- Any person sentenced sentence the maximum period of which shall
to destierro shall not be permitted to enter be that which, in view of the attending
the place or places designated in the circumstances, could be properly imposed
sentence, nor with in the radius therein under the rules of the said Code, and
specified , which shall not be more than 250 the minimum
and not less than 25 kilometers from the which shall be within the range of the penalty
place designated. next lower to that prescribed by the
Code for the
Q: How do you classify destierro? offense; and if the offense is punished by
A: Actually, it is a correctional penalty which has another law, the court shall sentence
the same the accused to
duration as prision correccional. It is not less than an indeterminate sentence, the maximum
6 months term of which shall not exceed the
and 1 day to 6 years. The court will tell you that maximum term
you are not fixed by said law and the minimum shall not
allowed on that particular place, within that be less than the minimum term
particular period prescribed by the
( 6 months and 1 day to 6 years). same.
ARTICLE 88. Arresto menor – The penalty of Q: What happens with the medium period?
arresto menor shall be served in the A: There is no such thing as a medium sentence
municipal jail, or in the house of the because the
defendant himself under the surveillance of word maximum here does not carry the same
an officer of the law, when the court so meaning as
provides in its decision, taking into maximum period in divisible penalties.
consideration the health of the offender and Q: What is the procedure?
other reasons which may seem satisfactory A: First, the court should determine the maximum.
to it. This is done by applying the RPC.
Q: What is the consideration?
Q: Now, where will you serve it? A: There are so many. You take into consideration
A: They do not bring you to the Davao Penal what is the penalty for the crime, whether it is
Colony for one frustrated or attempted. So, you have to apply
graduation of penalties – one degree, two degrees.
158
Whether the accused is a principal, accomplice or now 6 years and 1 day of prision mayor to 14
accessory to the crime. years, 8 months and 1 day or reclusion temporal.
SECTION 2. This Act shall not apply to persons PEOPLE vs. CONMAN
convicted of offenses punished with death
penalty or life imprisonment; to those Facts: A person is accused of murder
convicted of treason, conspiracy or proposal punishable by death, reclusion perpetua,
to commit treason; to those convicted of but because of privileged mitigating
misprision of treason, rebellion, sedition or circumstances, the penalty went down to
espionage; to those convicted of piracy; to reclusion temporal. So the imposable
those who are habitual delinquents; to those penalty is at most 20 years.
who shall have escaped from confinement or
evaded sentence; to those who having been Held: The Supreme Court did not apply
granted conditional pardon by the Chief the Indeterminate Sentence Law because
Executive shall have violated the terms this is covered by the exception. The
thereof; to those whose maximum term of crime was punishable by death.
imprisonment does not exceed one year, not
to those already sentenced by final judgment Q: What is the difference between the two cases?
161
A: In the Roque case, the SC considered the Q: How about prision correccional (6 months and
penalty to be imposed, not the penalty prescribed 1 day to 6 years)?
for the crime. Even if the crime is punishable with A: If the penalty is six months and 1 day to 1
the death penalty or perpetua, if however, the year, the Indeterminate Sentence Law will not
actual penalty is not death or perpetua, the apply. It is when you exceed one year that the
Indeterminate Sentence Law will apply. law will apply.
But in the case of Conman, because the Another exception not found in the law is
law says persons convicted of offenses punishable when the principal penalty to be imposed is
with the death penalty, or life imprisonment. Even suspension or destierro. Because 1 degree lower
if the penalty imposed is not death or life than destierro is arresto menor. It is absurd to
imprisonment, since the crime is punishable by say that the minimum penalty is 1 month of
death or life imprisonment, you are now entitled to arresto menor and the maximum is 5 years of
the Indeterminate Sentence Law. destierro. Destierro does not involve
imprisonment.
Q: Which of the two is correct?
A: There are many other cases which came after
that, which upheld the older ruling. Even if the
crime is punished by death or life imprisonment, if PROBATION LAW OF 1976
the imposable penalty, after the mitigating PD 968, as amended
circumstances are applied, will not be perpetua to
death, the SC will give him the benefit.
Q: How do you describe probation?
The other exceptions are based on the A: Probation is simply the law on suspended
following. The benefit of the law does not apply to sentence for adult offenders. This is the
certain crimes. If you are accused of these counterpart of PD 603, which is the law on
crimes, even if the penalty is very low, like prison suspended sentence for youthful offenders. In the
correctional, still you are not entitled to a same manner, we can call PD 603 as the probation
minimum sentence. law for youthful offenders.
Under Section 8, there are still other It is simply contrary to the clear
grounds for the court to consider. But these are express mandate of Section 4 of the
discretionary or based on the sound judgment of Probation Law, as amended, which states
the court. We are more interested in Section 9 that no application for probation shall be
because really, the law disqualifies. entertained if the defendant has perfected
an appeal from the judgment of conviction.
Six years and 1 day is already disqualified. That is what the law says. And when the
So, those who are sentenced to prison mayor up law does not distinguish, the court should
are disqualified. Obviously, based on the law on not distinguish. Where the law does not
jurisdiction now, no crime triable by the RTC is make an exception, neither shall the
probationable. courts. That is the literal approach.
PROBLEM: In case of violation of Section 8 of RA EXAMPLE: You are charged 5 times for the same
6425 (Dangerous Drugs Act), accused Vhenigna crime committed on different occasions. That
Vangkhiyud was given the benefit of the mitigating usually happens when you commit a crime against
circumstance of voluntary plea of guilty and the individual several times and the maximum
drunkness, not habitual. She was sentenced to penalty, assuming, for each crime, is 2 years. So
suffer the penalty of 6 years and 4 days and to there are 5 informations. So, there is a joint trial
pay the fine of P60,000.00 with the accessory – all 5 cases are consolidated. After trial, the
penalty provided by law plus costs of probation. accused is found guilty beyond reasonable doubt
QUESTION: If you were the judge, what action on all 5 charges. Therefore, the court sentenced
will you take on the probation? ANSWER: If I the accused to 2 years imprisonment for every
were the judge, I will deny the application because crime. Total maximum is 10 years. Now, he
the problem says that despite the 2 mitigating applies for probation.
circumstances, she was sentenced to suffer the
penalty of 6 years and 4 days. According to Q: Is he entitled?
Section 9 (a), the benefits of the Probation Law A: The accused is entitled. You look at the
shall not extend to those sentenced to serve the individual crimes, not the totality. The sum of the
maximum term of imprisonment of more that 6 multiple terms imposed against an applicant
years and 4 days. She is disqualified. should not be determined of his eligibility or his
disqualification from probation. The multiple prison
Francisco vs. CA terms are distinct from each other, and if none of
240 SCRA 24 the terms exceeds the limit set out in the
Probation Law, that is, not more than 6 years,
Facts: The accused was convicted for a then he is entitled to probation.
crime for which she was sentenced to a
maximum penalty of 10 years, she What is important is that the penalty for
seasonably appealed her conviction. While each crime does not exceed 6 years, unless he is
affirming the judgment of conviction, the specifically disqualified by other laws. The number
appellate court reduced the penalty to a of offenses is immaterial. As long as all the
maximum of 4 years and 4 months. penalties imposed taken separately are within the
Taking into consideration certain qualifying probationable period… for Section 4 uses the term
circumstances, the accused now applies for “maximum” not “total”. The law does not intend to
probation. sum up the penalties imposed, but to take each
penalty separately and distinctly.
Issue: Will her application be favorably
acted upon?
164
Q: When a crime is punishable by 6 years and 1 must reach the sentence is suspended
day, that is an afflictive penalty. The crime is minimum before from the very start.
already grave. But 6 years down, the crime is less getting a parole.
grave. Why did the law make the years the cut- The Board of Pardon The trial court which
off? and Parole of the convicted the accused
A: The purpose of the law is to exclude grave Bureau of Prisons grants the probation.
felonies. It is nit the intention of the law to exclude grants the parole.
less grave. Therefore, if you commit 2 or more less The parole system is The system of prabation
grave felonies, you do not say five less grave administered by the is administered by the
equals grave. No. There is no such thing. Even if Bureau of Prisons. Probation
you are convicted 100 times of that offense, the Administration.
penalty is still for less grave. You do not consider
the total. These are different concepts, although
they are considered as modes of partially
One thing to remember is that when you extinguishing the criminal liability even though it is
are under probation, you will be under the not mentioned here.
supervision of a probation officer. There are
conditions to be imposed under Section 10.