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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.

These are the:


 Heads of State; and Territoriality:
 Diplomatic officials. This means that penal laws of the
Philippines are enforceable only within its territory.
EXAMPLE: President Bush went to the Philippines We cannot enforce them outside of the Philippines
on a state visit, and upon landing in Manila, the if the crime was committed outside.
first thing that he did was to molest somebody.
Can he be accused of acts of lasciviousness or PROBLEM: A and B are Filipino Citizens. They took
rape? NO. He cannot even be arrested and a tour in Japan. When they were in the tour, A
charged before our courts because he is a head of attacked B in Tokyo, inflicting upon B physical
state. He is immune. injuries. When B came back here, the first thing
that he did was to file a case of physical injuries
You also cannot arrest anybody who holds against A, in Philippine courts.
a diplomatic rank, whether he be a diplomat of any
nation, or an ambassador, ministers Q: Can the Philippine courts try the case of
plenipotentiary, ministers residents, or charge d’ physical injuries, because anyway both parties are
affaires. These are the people who are exempt. residents of the Philippines?
A: NO, because even if the crime of physical
injuries will be admitted by A, it did not happen
SCHNECKENBURGER vs. MORAN here. It happened in Japan. We cannot enforce our
63 Phil. 250 Revised Penal Code for the crime committed
outside of Philippine territory.
HELD: It is well-settled that a consul is not
entitled to the privileges and immunities of an
ambassador or minister, but is subject to the
laws and regulations of the country of which
he is accredited. Q: What is the difference between generality and
territoriality?
A consul does not represent the political A: They are almost the same.
interests of his country, but only the commercial General characteristic Territorial characteristic
interests. In the absence of a treaty to the enforceable upon enforceable only for
contrary, a consul is not exempt from criminal everyone who resides crimes committed in the
prosecution for violations of the laws of the or visits or sojourns in Philippines. They may
country where he resides. the country appear to be
(2) Those who are exempt by virtue of overlapping, but there
treaties is a slight difference
the emphasis is on the the emphasis is upon
When the Philippines enters into a treaty with offender, the person the place only.
a foreign country and grants immunity from who commits the crime, However, the territorial
criminal prosecution of its nationals by agreement whether he is a resident character of criminal
– the best example of such a treaty was the alien or not, tourist or law has known
former US-Philippines Military Bases Agreement citizen – the emphasis exceptions. Meaning,
where for certain crimes committed in the is the person who even if the crime
Philippines by American Servicemen who were commits the crime committed outside
discharging their official duties, they could not be Philippine territory, the
charged in Philippine Courts. They could be offender can still be
charged by the United States under their laws. We charged under
cannot do anything about that because we agreed Philippine laws and tried
to it. That is a treaty. by our courts, even if
the act was not
The principle of generality and its committed here
exceptions are clearly expressed in the Civil Code
of the Philippine which states:
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There are supposed to be five exceptions retroactive effect. You then go back to the general
to the territorial characteristic of criminal law. rule.
These exceptions are found in Article 2 of the
Revised Penal Code. (1) If the new law is expressly made
inapplicable to pending actions or causes of
action.

Prospectivity or Non-retroactive If the law is silent, it should be given


This means that crimes are punished retroactive effect if favorable. Supposing the law
under the law in force at the time of their will say that it is not applicable to pending actions.
commission. None, even if it is favorable, it will not be given
retroactive effect. Meaning, the law provides for
So, if the act becomes a crime today non-retroactivity. That is why such a provision
because the law itself fixed it such that it be must be express.
considered a crime today, you cannot prosecute a
person who had done the act yesterday. Criminal (2) Where the offender is a habitual
law looks forward. That is the general rule. delinquent under Article 65, of the Revised
Penal Code

Q: May a penal law be given retroactive effect?


A: YES, when a law is more favorable to the  CONSTRUCTION OF PENAL LAWS
accused. An example of such penal statute is if a
new law reduces the penalty of your offense. If there is doubt, the doubt is resolved in
favor of the accused. Thus, applying the
EXAMPLE: You commit a crime punishable by 5 constitutional presumption of innocence. But this
years imprisonment. Now, there is a new law rule of construction is applied only where the law
reducing the penalty to 5 months. is ambiguous, and there is doubt as to its
interpretation. Where the law is clear, there is no
Q: Can the offender claim now that, upon room for the application of this rule.
conviction, his penalty should be only 5 months? But there is also a special rule of
A: YES, he is covered & he can claim it. construction. In the construction or interpretation
of the provisions of the Revised Penal Code, the
ORDOÑEZ vs. VINARAO Spanish text is controlling because the Code
was approved by the Philippine Legislature in its
Facts: Somebody was found guilty of Spanish text. This was the language of the
selling marijuana. The law in force at the lawmakers in expressing the intent of the law. If
time of the commission of the offense was there is a conflict between the English version and
the Dangerous Drugs Act (RA 6425), which the Spanish version of the Revised Penal Code, the
penalizes the selling of marijuana with life Spanish text shall prevail.
imprisonment. The convict had been
serving sentence since 1986. PEOPLE vs. MANGULABNAN
99 Phil. 993
In 1995, RA 7659, or the Heinous
Crime Law, was passed amending, among Facts: During the robbery in a dwelling
others, RA 6425. This new law provides for house, one of the culprits fired his gun
a penalty which depend upon the number upward in the ceiling, not knowing that the
of grams or sticks of marijuana that is owner of the house was hiding in the
sold. Insofar as this particular convict is ceiling. The owner was hit by the slug that
concerned, the law had the effect of passed through it and was killed
reducing his sentence, considering that he unintentionally.
sold only two sticks of marijuana.
Article 294 (1) of the Revised
Held: The new law should be given Penal Code provides that the crime is
retroactive application because it is robbery with homicide when by reason or
favorable to the convict. The Director of an occasion of the robbery, the crime of
the Bureau of Prisons was ordered to homicide shall have been committed. The
release the convict from the National Spanish text of the same provision reads:
Penitentiary. cuando con motivo o occasion del robo
resultare homicido (resulting to homicide).
But there are exceptions to the exceptions.
Meaning, even if favorable, it will not be given
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Held: In view of the Spanish text which
must prevail, the crime committed is In 1995, the then Congress passed
robbery with homicide supervened by mere another bill – to be called the Code of Crimes
accident. again. Although it is a different one from the
previous drafts. It was sponsored by Congressman
Sergio Apostol. He conducted public hearings,
People vs. Abilong including in Davao, but it still remains to be seen
whether the bill will be finally enacted into law.

 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.

During that time, the concept of outer


BOOK ONE
space is not yet recognized. That is beyond the
territory of any country. There is only a certain
limit in territorial waters. Only a portion of the sea
ARTICLE 2. Application of its provisions. – Except
is considered as Philippine Territory. These are all
as provided in the treaties and laws of
parts of public international law.
preferential application, the provisions of
this Code shall be enforced not only within
Q: What is the accepted radius?
the Philippine Archipelago, including its
A: It used to be three miles, then it became six.
atmosphere, its interior waters and maritime
Now, it is twelve miles. It also covers the
zone, but also outside of its jurisdiction,
Economic Zone, such as the Spratlys. That is not
against those who:
part of its economic zone. China, Vietnam, Taiwan
are also claiming it. That might become a source
1. Should commit an offense on
of war. That is Philippine Territory.
Philippine Ship or airship;
2. Should forge or counterfeit any coin
As a general rule, the RPC and other penal
or currency note of the Philippine
laws can only be enforced within Philippine
Islands or obligations and securities
Territory. They cannot be enforced outside. There
issued by the Government of the
are Five exceptions to the territorial character of
Philippine Islands;
Criminal Law.
3. Should be liable for acts connected
with the introduction into these
Q: When may the provisions of the RPC be
islands of the obligations and
enforced outside Philippine Territory? What are the
securities mentioned in the preceding
exceptions to the territorial nature of the RPC? In
number;
what instances may the provisions of the RPC be
4. While being a public officer or
given EXTRATERRITORIAL effect?
employees, should commit an offense
in the exercise of their functions; or,
5. Should commit any of the crimes
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1) If the crime is committed on board a Philippine ship or airplane, while it is outside the
Philippine ship or airship. Philippines, flying or sailing, as the case may be, in
international waters or airspace. The problem
The term “airship” instead of “airplane” was comes in if the crime is committed on board a
used because at the time of the drafting of the Philippine ship outside the Philippines where it is
RPC, there were no commercial planes yet. anchored and it is under the territory of another
The means of transportation then were the country.
dirigibles, those which look like big ballons Q: Suppose, a Japanese vessel is in the middle of
(the Lindenburg of American accident fame). the Pacific Ocean, and a Japanese crew member
That is what they mean by the term “airship”. killed another Japanese crew member. Whose law
shall be applied on the prosecution of the crime?
A: I do not know, and I do not care. It did not
happen in our territory. It did not happen in our
A ship or airship, which is of Philippine ship or airship. Presumably, it is the Japanese law,
registry, is considered as Philippine but I do not know Japanese law.
territory.
But if a Philippine ship is in the middle of the
Pacific Ocean and a
PROBLEM: Mr. A, while on board a Philippine crime is committed on board it, no country will
vessel anchored at the Davao Gulf in Sasa, assume any interest there.
commits a crime against Mr. B on board that
vessel. Q: Was it committed in Philippine territory?
A: Of course not, the crime took place while the
Q: Are the provisions of the RPC applicable? vessel was in the middle of the Pacific Ocean.
A: YES, because the crime was committed in
Philippine territory. Sasa is not yet outside of Q: Can the crime be tried in the Philippines?
Philippine territory. That is covered by the opening A: Yes, because of Article 2(1). The crime was
paragraph, because the crime was committed committed outside Philippine territory, but on
within the Philippine territorial waters. So, the board a Philippine ship.
reason is not based on paragraph 1, but because
of the opening paragraph of Article 2.

Q: What is this paragraph 1? But the problem in paragraph 1 comes in when


A: That is when the ship is outside the Philippines. the crime is
What gives jurisdiction to the Philippines is not the committed on board a Philippine ship while the
fact that crime was committed on board a same is in the territory of another country.
Philippine ship under paragraph 1, but because of
the fact that it was committed in Philippine EXAMPLE: While a Philippine ship is anchored in
Territory- because it falls under the exception. This Tokyo Bay, or a PAL plane is about to land at the
is one of the instances when the RPC may be given Narita Airport in Tokyo, a passenger killed another
extraterritorial effect. passenger.

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.
9
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?
11
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

A wants to kill B so, he decided to ambush


ARTICLE 4 – Criminal liability – Criminal liability B in the dark. One night, A waited for B, when he
shall be incurred: thought he saw B coming, A attacked and killed B.
(1) By any person committing a felony Later on, A found out that the person he attacked
(delito) although the wrongful act was not actually B, but X. He killed the wrong guy.
done be different from that which he Of course, A will be prosecuted for the death of X,
intended; and B is very much alive. This is A’s defense: He
(2) By any person performing an act should not be liable for the death of X because he
which would be an offense against (A) did not intent to kill X. He just misidentified
persons or property were it not for the the victim.
inherent impossibility of its
accomplishment or on account of the Q: Is that a valid defense?
employment of inadequate or A: Of course not! A is still liable for the death of X
ineffectual means because although there was a mistake in identity
of the victim, he still had the intention to kill.
Q: Suppose a person commits a felony and the ABERRATIO ICTUS
wrongful act done is precisely what he intended.
For example, B kills A. B aimed his gun towards A This is not mistake in identity, but a
and shoots him, B’s intent was to kill A, and A mistake in the blow. For example, A wanted to kill
died. Does he incur criminal liability? B, A drew his gun, pointed it to B and fired at him.
A: Of course! But this is not mentioned in Article 4 But the bullet did not hit B. Instead, the bullet hit
which says “the wrongful act done be different X, killing the latter. Prosecuted for the death of X,
from that which he intended. Here, it was really A’s defense is that X was not the intended victim.
the intention of B to kill A.
Q: Is A liable for the death of X, although he (A)
Q: But why is B liable when it is not covered by did not even intend to kill him?
Article 4? A: Yes. That defense will not hold any water. A is
A: Article 4 enumerates only the liable for the felony although it was not the one he
EXTRAORDINARY manner of committing a intended.
crime or incurring criminal liability. The
ordinary way is to commit a felony and the So, in error in personae, there is a
wrongful act done was precisely what you correct aim but the actual victim turned out to be
intended. But the wrongful act done is different a person different from the intended victim. In
from that which he intended, that is not normal. aberration ictus, on the other hand, because of a
That does not happen everyday. That is why it is faulty aim, the intended victim is not the person
extraordinary, and that is what is covered by hit.
Article 4. One incurs criminal liability even if his
intention is different from what actually happened. PRAETER INTENTIONEM
You will notice that based on that
definition, the first paragraph of Article 4 applies
14
The result exceeded the intention, Most of US vs. MARASIGAN
the decided cases fall here. 27 Phil. 504

PEOPLE vs. CAGOCO FACTS: The victim here was stabbed.


58 Phil. 524 Because of his refusal to submit to
medical treatment, the wound got
FACTS: The accused had the intention to infected, and the injury became worse.
inflict physical injuries upon the person of Slight physical injuries became serious
B. Approaching B, accused hit him with physical injuries. The accused was charged
his fist. Because of the first blow, B fell with serious physical injuries. Accused
down on the floor. B’s head hit a rock. It claimed he should be liable only for slight
fractured his skull and thus caused his physical injuries, because the victim’s
death. A had no intention of killing B. His serious physical injuries arose from his
intention was merely to inflict upon B (victim’s) refusal to see the doctor.
physical injuries. But B died.
ISSUE: Is the accused liable for serious
ISSUE: Is A liable for homicide although physical injuries?
his intended felony was only physical
injuries? HELD: Yes, the accused is still liable for
HELD: A is liable for homicide, although the serious physical injuries inflicted upon
his intention was merely to inflict upon B, the victim although it was not intended.
physical injuries. It is conceded that under The victim was not obliged to submit to
Article 13, he is entitled to the mitigating medical treatment to relieve the accused
circumstance that the offended did not from the natural and ordinary results of
intended to commit so grave a wrong as the crime. It was his voluntary act which
that committed. But that is beside the disabled the victim and he must abide by
point. The issue here is whether the crime the consequences resulting therefrom.
he committed is homicide or only slight
physical injuries.
PEOPLE vs. MARTIN
US vs. VALDEZ 98 Phil. 18
41 Phil. 497
The husband strangled his wife
FACTS: The accused chased the victim who was then suffering from a heart
with a knife causing the victim to panic disease. While being strangled by the
and run the latter jumped into the sea and husband, the wife suffered a heart attack
drowned. which eventually caused her death. So, the
cause of his wife’s death was not
ISSUE: Is the accused liable for the suffocation but heart attack. The court
drowning of the victim? held that the husband is still liable for the
death of his wife – Parricide.
HELD: Yes, although the drowning was not
intended

PEOPLE vs. QUIAMSON A person, committing a felony, is liable for the


62 Phil. 162 direct, logical and natural consequences of his
criminal act.
The accused inflicted wounds upon
B. The accused stabbed B, but B was
brought to the hospital, so he was saved. In other words, the principle which the
In the hospital, there were many Supreme Court applied is the so – called
instruments attached to him. The victim “doctrine of proximate cause”, and is defined
was restless, while in the hospital bed. as that cause which in the natural and continuous
Then he started removing the bandages on sequence, unbroken by any efficient intervening
his wounds. Eventually, B died. Accused cause, results in a particular felony, without which
said the B’s death was not due to his (A) the felony would not have resulted.
fault. But the court still held the accused
liable for the death of B. Q: In the case of Cagoco, the victim did not die
because of the punch. The victim died because his
head hit a piece of rock. Would you say that the
15
hitting of his head on the rock which caused his cause and effect, then one is liable only up to that
death was something absolutely foreign, point. Beyond that, no more.
something which broke the relation between cause
and effect, between the punching and the death? Take note that the Supreme Court says
A: No, That is not an efficient intervening cause. that one is liable for all the direct, logical and
The immediate cause of death was the fractured natural consequences of his criminal act. The
skull, but the punching was the proximate cause Supreme Court never said that he is liable for all
based on the logic that without the punching, the possible and probable consequences of his act.
there is no falling down. Without the falling down, There are some cases where the factor
there is no head hitting a piece of rock, and if that that intervened between the criminal act and the
did not happen, there will be no death. So, resulting injury was considered as an efficient
everything is traceable to the original criminal act. intervening cause, something totally unexpected,
something absolutely foreign which broke the
So, the principle laid down by the Supreme relation of cause and effect between the original
Court is : “He who is the cause of the cause is act and the resulting injury. So, when you are
the cause of the evil caused.” The cause of liable for a felony, you are liable only up to a
death is actually the cause of the evil caused. certain point.

In other words, the effect is death,


immediate cause – the fractured skull, proximate US vs. DE LOS SANTOS
cause – punching. So, the immediate cause of
death was the fractured skull, but the cause of the FACTS: The accused here inflicted a
fractured skull is the punching. Therefore, the wound upon the victim, which was not
punching is the proximate cause of death. really very serious. It was the type that
would heal in one week or less. So, the
crime is slight physical injuries. But the
ILLUSTRATION: victim said that he wanted to hold the
accused liable for a more serious crime.
Punch victim head hits rock What the victim did was to contaminate his
victim dies wound, deliberately causing it to be
infected. The wound worsened.
(proximate cause) (fractured skull)
effect HELD: The victim’s act of deliberately
immediate cause aggravating or worsening his wound was
considered as an efficient intervening
EXAMPLE: I stabbed A. Because I stabbed A, his cause. The accused here should be liable
wound got infected. And because of the infection, only for slight physical injuries, not for
he died or the wound became worse. QUESTION: serious physical injuries, which is caused
Is the infection, the invasion of bacteria, by the infection no longer in normal
considered as an efficient cause which would break circumstances. It is because of the bad
the relation between cause and effect, between his faith on the part of the victim himself.
death and the initial injury? ANSWER: No.
Normally, jurisprudence would say that
Q: What do you mean by efficient intervening infections are efficient intervening causes, except
cause? in this case of de los Santos, where it was caused
A: An efficient intervening cause is something deliberately.
absolutely foreign and totally unexpected
which intervened and which break the There is also another unique case decided
relation of cause and effect, between the by the Supreme Court where the infection was
original felonious act and the result. considered an efficient intervening cause. There
are some queer cases where the Supreme Court
Generally, infections are all considered as went outside the normal pattern. Because if we
a continuation or the natural effects of what follow the general pattern, when a person injures
happened to the victim. They are not efficient another and the victim suffers an infection maybe
intervening cause. because of carelessness or poor medical
attendance, but not intentional, the accused
The law says that one is not liable if there should be held answerable for everything. That is
are efficient intervening causes. Meaning, if there his burden.
is something which happened in between which is
absolutely foreign between the victim’s death and
the original act, there is a break in the relation of
16
URBANO vs. IAC the direct, natural and logical consequence
157 SCRA 1 of the act of the accused.

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.

PEOPLE v. PANCHO People vs. Lamahang


Prosecuted for  CAUSE
attempted rape Para sa 61 Phil 707
pag gunit sa tiil. Theft, pickpocket. He was trying to pick the pocket
Facts: One night, a group of policemen, of the victim. He was trying to lift the wallet inside
while patrolling on a neighborhood, saw a the pocket or the bag. The owner of the wallet
figure in the dark inside the house. They detected it, and held the hands of the thief. So, he
stopped and observed what the guy was failed to take the wallet. There was the act of
doing. The guy did not know that he was taking but he failed to complete the possession of
being watched by the group of policemen the wallet. The reason here why he failed to
patrolling. What the guy was doing was perform all the acts of execution was because the
that he tried to remove a portion of the owner prevented him. That is a cause other than
wall. He was trying to create an opening to his own spontaneous desistance. So attempted
enter the house. When he was able to thief.
create an opening, and the accused was
already in the act of entering the house in
the middle of the night, that was the time  ACCIDENT
when the policemen caught him. And for
that he was charged for the crime of I want to kill A. I aim the gun. I fired, but the gun
attempted robbery. Meaning, he jammed. It did not explode. So, with that I failed
commenced the commission of robbery by to kill the victim. Well, when I pointed my gun to
over acts by trying to enter the house in the victim, I have already commenced the act of
the Middle of the night. Although he did trying to kill. But the trouble is it did not explode.
not succeed because he was caught. The jamming of the gun was an accident which
prevented the performance of all the acts of
Held: There was no attempted robbery. execution. The crime was not consummated, not
There is no connection between what he because the offender stopped from proceeding,
was doing and the elements of robbery. but because of something else.
Why? How do you commit robbery?
Robbery is committed by taking personal  OTHER THAN YOUR OWN SPONTANEOUS
property belonging to somebody. But here, DESISTANCE
he has not yet commenced the act of
22
If a person commences the commission of a other than his desistance, he is still liable for an
felony, but did not complete it because of his own attempted felony. But if he reaches the subjective
spontaneous desistance, according to Viada, there stage where he can no longer desist, then, he has
is no criminal liability. He is not even guilty of reached either the frustrated stage or
attempted felony on the theory that a person who consummated stage, depending on whether the
is already on the verge of committing a crime but crime is accomplished or not. He has gone beyond
desists or decides not to pursue because his the stage of attempted felony.
conscience bothers him should not be penalized. In
fact, he should be rewarded for hearkening to his
conscience.  FRUSTRATED STAGE

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 person is charged with robbery.


Robbery is committed when, with intent to gain, 1) THERE IS NO DISTINCTION BETWEEN THE
one takes personal property belonging to another ATTEMPTED FELONY AND CONSUMMATED FELONY
with violence or intimidation of persons or force
upon things. The offender is proved to have taken, You have to take note also that in some special
with intent to gain, property of another but there crime the attempted stage and the consummated
was no force upon things, or violence or stage are identical. Meaning, when you do it,
intimidation against persons. consummated. When you attempt to do it, also
consummated. So, there is no distinction between
Q: What crime was proven? the attempted and the consummated because they
A: What was proven is the crime of simple theft. carry the same penalty.

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: Where is the frustrated there?


 GRAVE FELONIES
27
Q: How do you determine whether a felony is 2. light felonies against property.
grave, less grave, or light?
A: It depends on the penalty attached by law In other words, light felonies must be
to the crime committed. This is a manifestation of consummated to be punishable. So, if the felony is
the classical theory of criminal law. There must be light and it is only attempted or frustrated, there is
a proportion between the seriousness of the crime no liability. It is not punishable. In effect, there is
and the penalty. no crime and you are not liable.

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.

Q: How about proposals? Enumerate some 2. It is a statute enacted by the


important crimes in the RPC which are punishable legislative branch, penal in character,
even if they have only reached the proposal stage. which is not an amendment to the
A: More or less the same. They are the following: RPC.
1. proposal to commit treason (Art. 115);
2. proposal to commit rebellion or
Congress can pass a law anytime
insurrection (Art. 136); and
amending the RPC. It is
3. proposal o commit coup d’etat (Art. 136).
incorporated in the RPC.
Congress may also pass a law
Q: Is there a proposal to commit sedition?
adding another crime in the RPC.
A: The RPC is silent. The RPC mentions conspiracy
That is not a special law because
to commit sedition but there is no mention of
a special law is intended to stand
proposal to commit sedition.
separately from the RPC; it is no
CONCLUSION: PROPOSAL TO COMMIT
intended to form part of the RPC.
SEDITION IS NOT PUNISHABLE.
There is conspiracy to commit sedition but Example: law on coup d’etat
there is no proposal to commit sedition. So, we
apply the general rule that mere proposal to
commit a crime is not punishable, unless the law
provides a penalty therefore.
Art 10 is a statement of whether the RPC
In general, mere proposal is not should or should not apply to crimes punished by
punishable. But in crimes of treason, rebellion, special laws. Crimes in this jurisdiction may be
coup d’ tat, the State itself is the victim. If you penalized by the RPC or special laws – mala in se
succeed in your treason or rebellion, the State is or mala prohibita.
the victim. Since the crime is directed against the Q: Does the RPC apply to crimes punishable
State, the State has the absolute power o by special laws?
prosecute you even if you are only preparing to
commit a crime. You do not have to wait for the A: The general rule is NO, It does not. The
commencement. provisions of the RPC do not apply to special laws
because the provisions of the RPC, as a rule, apply
only to felonies. However, if the special law is
Art. 10. Offenses not subject to the provisions of deficient, the provisions of the RPC can apply
this Code. — Offenses which are or in the suppletorily o crimes punished by special laws.
future may be punishable under special laws And in case of conflict between the RPC and the
are not subject to the provisions of this Code. special law, the latter prevail.
This Code shall be supplementary to such
laws, unless the latter should specially
provide the contrary. So, the RPC can still apply to crimes punishable by
special laws in a supplementary capacity to
Q: What are the sources of criminal law? provide what is lacking in the special law. But if
A: There are two. the special law is complete or sufficient, do not
1. the Revised Penal Code; and apply the RPC.
2. special penal laws.

Q: What is a special penal law insofar as the study ILLUSTRATION:


of criminal law is concerned?
A: It has two definitions.
30
A special law is passed penalizing a certain only the principal is held liable because, again,
crime. Somebody attempts to commit the there is no basis for fixing the penalty for these
crime but does not succeed. people, in the absence of rules on graduation of
penalties.
Q: Should the offender be liable for attempted
violation? Moreover, the SC said that as a general rule
the provisions on mitigating and aggravating
A: NO. If the special law does not penalize the
circumstances do not apply to special laws
attempted or frustrated stage of the crime, then,
because they only apply to penalties prescribed by
the conclusion is that it is not punishable because
the RPC. Penalties under special laws do not have
the provisions of Art 6 of the RPC do not apply to
minimum, medium, or maximum periods.
special laws.
A case has been decided by the SC where
the accused was prosecuted for an attempted
violation of the Anti-graft Act. There are many
 EXCEPTION
crimes punishable by the Anti-graft Act, one of
which is when you cause injury to the government. The exception is if the special law is
There was an attempt to cause injury to the insufficient and there is no conflict anyway, then,
government – the cheating of taxes. But they were the provisions of the RPC may be applied in
merely attempts because it was discovered by the supplementary manner.
Bureau of Customs. They were charged with
“Attempted Violation of the Anti-Graft Act”. Q: A special law borrows the penalties under the
RPC, can there be a penalty for the attempted or
Q: Is there such a crime? frustrated crime?
A: The SC ruled that there is none because there A: YES, because there is now an attempt to
is nothing in the Anti-Graft Act which penalizes a borrow the principles in the RPC, you can now
mere attempt. And Art. 6 of the RPC would not apply the RPC in a suppletory manner.
apply.
Q: Why is it that the attempted and frustrated
felonies do not apply to crimes penalized by The perfect example would be RA 7659, he
special laws? Heinous Crime Law, which amended the
Dangerous Drugs Act, adopting the penalties of
A: The reason is because of the penalties. Under the RPC. The penalties in the RPC are now adopted
the RPC, penalties have their own specific in RA 7659. With that, the intention is to make the
nomenclatures, like death, reclusion perpetua, RPC supplementary.
prision mayor, etc., and there is a scale of
penalties. The general rule is that the penalty for
the attempted or the frustrated stage is one or two Q: Suppose, a person is convicted of possession of
degrees lower than the penalty prescribed for the illegal drugs. After he is convicted, what will
consummated felony. happen to the exhibits? Will it be returned to him?
But in special laws, penalties are not A: Of course, NOT. It should be forfeited by the
denominated as prision mayor, etc. if found guilty, State.
you are sentenced to imprisonment for, say, 1 to 5
years or 9 years. That’s the penalty. There is no Q: If the law is silent, what will the court do?
more one or two degrees lower or higher because A: Apply the RPC.
there will be no basis for the penalty. If the special
law says that the act of doing this is a crime, then,
the attempt or frustration to commit it cannot be a Art. 45. Confiscation and forfeiture of the proceeds
crime. or instruments of the crime. — Every penalty
In other words, you cannot apply by analogy imposed for the commission of a felony shall
the attempted or frustrated stage. In he first carry with it the forfeiture of the proceeds of
place, you have no basis for the penalty. The basis the crime and the instruments or tools with
for attempted or frustrated is the penalty for the which it was committed.
consummated crime – prision correctional,
reclusion temporal, etc. – one or two degrees
lower, as the case may be. Such proceeds and instruments or tools
shall be confiscated and forfeited in favor of the
The same principle will control with respect to Government, unless they be property of a third
the liability of the accomplices and accessories person not liable for the offense, but those articles
under Arts. 17 to 20. If the special law does not which are not subject of lawful commerce shall be
penalize the accomplice or the accessory, then, destroyed.
31
You can apply it suppletorily because such mitigating according to the
is not there. There is no conflict between them. nature and effects of the crime
and the other conditions
attending to the commission.
 CIRCUMSTANCES SURROUNDING Examples are: relationship and
CRIMINAL LIABILITY intoxication.
 SYNOPSIS:
NUMBER CIRCUMSTANCE ARTICLE
Q: What are the five circumstances affecting
criminal liability of a person under the RPC? 6 Justifying Art. 11
Describe each and cite two examples.
7 Exempting Art. 12
A: The following are the circumstances affecting
criminal liability: 10 Mitigating Art. 13

(1) Justifying Circumstances – 21 Aggravating Art. 14


those where the act of a person 3 Alternative Art. 15
is said to be in accordance with
law, so that such person is
deemed not to have transgressed
the law and is free from both
JUSTIFYING CIRCUMSTANCES
criminal and civil liability, except
in paragraph 4 (state of
necessity/emergency rule) where Q: What is the definition of that?
the civil liability is borne by the A: Well, the word justifying is a hint.
person benefited by the act. Justifying circumstances are those which, if
Examples are: self-defense, attending the commission of an act, make the act
fulfillment of duty or lawful lawful. The act is lawful; it is justified. It is in
exercise of a right or office. accordance with law. Therefore, the act committed
is not a crime.
(2) Exempting Circumstances
(non-imputability) – those
grounds for exemption from Art. 11. Justifying circumstances. — The
punishment because there is following do not incur any criminal liability;
wanting in the agent of the crime 1. Anyone who acts in defense of his
any of the conditions which make person or rights, provided that the
the act voluntary, or negligent, following circumstances concur;
such as intelligence, freedom of First. Unlawful aggression.
action, intent or negligence. Second. Reasonable necessity of the
Examples are: imbecility and means employed to prevent or repel it.
minority. Third. Lack of sufficient provocation on
(3) Mitigating Circumstances – the part of the person defending himself.
those which, if present in the 2. Any one who acts in defense of the
commission of a crime, do not person or rights of his spouse,
entirely free the actor from ascendants, descendants, or legitimate,
criminal liability, but serve only natural or adopted brothers or sisters, or
to reduce the penalty. Examples his relatives by affinity in the same
are: incomplete self-defense, the degrees and those consanguinity within
offender had no intention to the fourth civil degree, provided that the
commit a wrong as that first and second requisites prescribed in
committed. the next preceding circumstance are
(4) Aggravating Circumstances – present, and the further requisite, in case
those which, if attendant in the the revocation was given by the person
commission of a crime, serve to attacked, that the one making defense
increase the penalty without, had no part therein.
however, exceeding the 3. Anyone who acts in defense of the
maximum penalty provided by person or rights of a stranger, provided
law for the offense. Examples that the first and second requisites
are: treachery and recidivism. mentioned in the first circumstance of
(5) Alternative Circumstances – this Art. are present and that the person
those which must be taken into defending be not induced by revenge,
consideration as aggravating or resentment, or other evil motive.
32
4. Any person who, in order to avoid an That is why the State has a law enforcement
evil or injury, does not act which causes agency, the PNP – to protect the citizens from the
damage to another, provided that the assault of others. But this agency has gained a
following requisites are present; negative image. People believe that the policemen,
First. That the evil sought to be avoided who are supposed to secure, protect and defend
actually exists; us from criminals, are the very same people
Second. That the injury feared be greater involved in crime nowadays. Theoretically, it is the
than that done to avoid it; job of the State to protect us. That’s why we pay
Third. That there be no other practical our taxes for peace and order.
and less harmful means of preventing it.
5. Any person who acts in the fulfillment But the State recognizes the fact that it could
of a duty or in the lawful exercise of a not protect everybody 24 hours a day. That is
right or office. impossible. That is tantamount to asking the State
6. Any person who acts in obedience to to assign one policeman for every citizen. We have
an order issued by a superior for some to be realistic. The State cannot afford it. it does
lawful purpose. not have the manpower to defend everybody 24
hours a day.
1. Anyone who acts in defense of his
person or rights, provided that the following Therefore, if somebody attacks you, and there
circumstances concur; is no policeman to defend you, you defend
yourself. If in the process, it becomes inevitable
First. Unlawful aggression. for you to disable or kill the attacker, you are not
Second. Reasonable necessity of the liable because you are only doing what the State
means employed to prevent or repel it. should be doing for you. So, the State cannot take
Third. Lack of sufficient provocation that against you. You only have assumed the
on the part of the person defending obligations of the State.
himself.
2 It is a recognition of the natural law of self-
Self-defense only applies to crimes against preservation.
persons, as when you are accused of homicide,
murder, or physical injuries. Meaning, it applies to Every living being, whether animal or plant,
crimes against persons when you are accused of has the instinct for self-preservation. So, the
the death of or injuring somebody, and you claim concept of self-defense only acknowledges the
that you had to do it because you had no choice. I natural instincts of man. It is absurd to expect a
had to act in defense of my person. person not to defend himself when he is under
attack because there is a natural instinct for self-
Q: Who bears the burden of proof? preservation.
A: Generally, it is the prosecution’s job to prove
the guilt of he accused who is presumed innocent. To prove self-defense, it requires the
However, as these are matters of defense, the concurrence of these three elements.
burden is shifted to the accused. It is for him to
prove these circumstances; it is not for the
prosecution to prove them.  UNLAWFUL AGGRESSION
Q: Why? Without which, there could be no self-
A: Because when you invoke self-defense, you defense. It is indispensable in the sense that
automatically admit that you killed the other, hat there could be unlawful aggression even without
you are the author of his death (in case of the second and the third elements. But the
homicide or murder). So, you better justify the second and the third cannot exist without the first.
death of the victim. Give a good explanation as to That is really indispensable. The existence of the
why you should not go to jail for killing a human second and third presume the existence of the
being. That is why the SC said that the defense of first. When the first is out, all three are out. And
self-defense should be proved by clear and if either of the second or third element is lacking,
convincing evidence which is approximately proof as long as there is unlawful aggression, it
beyond reasonable doubt. constitutes an incomplete self-defense, which is a
mitigating circumstance.
Q: Why does the law allow self-defense?
A: There are two reasons. Q: Define aggression?
A: Aggression, as contemplated by the law,
1. It is the duty of the State to defend its means a physical attack. An aggression which can
citizens cause you injury or even death, like somebody
33
stabs you or beats you with a club. So, so if there no rule which requires you to run away and then
is no physical aggression, there is no aggression to when you are already cornered, that is the only
speak of. time you can act.

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.

PEOPLE VS. CABUNGCAL


51 PHIL 803 If you will say that the accused will have to wait to
see if the drunk will be able to capsize the banca,
FACTS: The accused is a boatman. His you are running the risk of all possibilities that the
occupation is to transport people across a banca will sink in the middle of the sea. To tarry
channel. Just like the means of for a while might be too late. That is already an
transportation when you go to Samal actual aggression. There will be more dead if the
Island. Once, after the fiesta in the island, accused waited. So, the alleged offender there did
some passengers went on board including not only act in defense of his person, bur also that
a drunk man. In the middle of the sea, of strangers.
this drunk passenger started to rock the
banca. The accused warned him, Don’t do Suppose, you are inside your house in the
that; we might capsized. But the drunken second floor. Then somebody from below shouts
passenger continued to rock the banca. at you, challenging you to fight, wait there and I
will kill you! He’s going to kill you but to beat him
So, the accused hit this drunk and to it. You killed him first. You are now prosecuted
the latter fell. But he surfaced and for his death. You claim self-defense, because
threatened that he would capsize the there was a threat…he was going to kill me.
banca. In so saying, he again started to QUESTION: Is the threatened harm imminent?
rock it, to the point that the women and Take note that he still has to go up. ANSWER:
children passengers panicked. So, the NO, the threatened harm is not at the point of
accused hit him back with the paddle. This realization. A threatening attitude is not
made the drunk to drown and died. equivalent to an actual aggression. So, I doubt
whether that the threatened assault amounts to
actual aggression. That is not self-defense. The
Issue: Was there unlawful aggression? most you can invoke there is the mitigating
circumstance of sufficient provocation or threat on
Held: YES, the accused does not have to the part of the offended party immediately
wait to find out if the drunk passenger was preceding the act, under Article 13(4).
serious or joking. If he was able to turned
it around, they will all die. People will start So, it is a question of evidence. Is there
drowning. harm now or on the point of happening? Is there
death now or on the point of happening? If the
Due to the condition of the river at answer is no, then the threatened harm does not
the point where the deceased started to amount to an unlawful aggression. It is a future
rock the boat, if it had capsized, the aggression. You have no right to act now simply
passengers would run the risk of losing because there is a threat.
their lives, the majority of whom were
women especially the nursing child. The
35
Another important principle in unlawful
aggression is the rule laid down by the Supreme In other words, there seems to be two
Court that you can only act in self-defense when stages of the fight: the first stage where the
the aggression is ongoing or about to begin. But victim was the unlawful aggressor, and the second
once the aggression has ended and because you stage where Alconga became the unlawful
wanted to get even, you hit back, that is no longer aggressor because after the first stage was over,
self-defense. That is retaliation, getting even. by reason of the running away of the unlawful
The rule to remember is when the aggression aggressor, there was no more room for self-
has ceased, there is no more room for defense because the danger to Alconga’s life and
aggression because the danger to life and limb has ceased. That is already retaliation. That
limb has ended. is not the concept of self-defense.

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.

An aggression may also be a provocation. This is called the justifying circumstance on


When I attack you, that could be a provocation on DENFENSE OF RELATIVES. If you act for the
my part for you to be also an aggressor against defense of yourself, there is no reason why
me. My aggression, which should work against you cannot act for the defense of your
me, could be a provocation on my part in order for relatives. This is based on two reasons:
you to also become an aggressor. It is humanitarian and blood ties.
convertible.
Q: Who are considered your relatives?
That is very well illustrated in the case of A: They are:
Alconga. The deceased attacked Alconga with a - spouse
club. So, the deceased is the unlawful aggressor. - ascendants
Then, when Alconga fought back and the deceased - descendants
realized that he was wounded, the deceased ran - brothers and sisters, whether
away. So, there is no more aggression. But legitimate, illegitimate, natural
Alconga pursued him and killed him. Alconga was or adopted
accused for the death of the victim. - relatives by affinity, within the
same degree, like:
Q: Can the victim, who is now the accused, claim parents-in-law
self-defense? son-in-law
A: Let’s find out: daughter-in-law
 Was there unlawful aggression by brother or sister-in-law
Alconga? - relatives of consanguinity
YES, he went after the man to kill him. within the fourth civil degree
(at the second stage of the fight,
Alconga was the unlawful aggressor) Q: What are the elements?
 did he use reasonable means to kill A: The elements are:
Alconga? (1) Your relative must be a
We will assume that. victim of unlawful
 Was there lack of sufficient aggression. If your relative
provocation on the part of the person is the aggressor, and you
defending himself? came to his aid to finish off
NO, Why did Alconga want to kill him? his opponent, you cannot
It was because he wanted to kill claim defense of relatives.
Alconga at the first stage of the fight. So, (2) You have also to use
his aggression earlier became a reasonable means –
provocation on his part in the second stage reasonable necessity of the
of the fight. means employed to prevent
or repel the aggression.
So, if that was what happened, that Alconga was (3) The one making the
the deceased and the deceased was the accused defense had no part
and latter invokes self-defense, still he cannot therein.
claim self-defense because this time, there is the
absence of the 3rd element. That is how you In case your father or brother gave the
correlate those two element. Either way, Alconga provocation to attack, you can still defend him if
could not claim self-defense. you are not part of the provocation. The law does
not say that your relative must be the provocator.

(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.

Another example: As a surgeon, you have EXEMPTING CIRCUMSTANCES


to amputate the leg of a patient because of
gangrene. You have to save his life by amputating Q: What is the essence of an exempting
his leg. And after that, the patient sued for the circumstance?
crime of Mutilation of the second type, which is A: An exempting circumstance is a circumstance
punishable by the RPC. QUESTION: What is the which, if present in the commission of a crime,
surgeon’s defense? ANSWER: That he was in the makes the offender exempt from criminal liability.
lawful exercise of his office. He is not criminally liable for the crime committed
because when he committed the felony, he acted
without intelligence, or without freedom, or
without intent or negligence. And therefore, since
TABUENA VS. SANDIGANBAYAN there is the absence of any of these, the felony
268 SCRA 332 was not committed with voluntariness.
HELD: Tabuena was found by the
SC not liable for malversation of public funds ARTICLE 12. Circumstance which exempt
thru negligence. Tabuenal does not have a
from criminal liability – The following are
choice but to comply with the Presidential exempt from criminal liability:
(1) An imbecile or an insane person, unless
43
the latter has acted during a lucid there is a number reasonable basis
interval. When the imbecile or insane and which would be incredible under
person has committed an act which the the given circumstances to the same
law defines as felony (delito), the court person if he is of compos mentis. An
shall order his confinement in one of the insane person believes in a state of
hospitals or asylum established for things, the existence of which no
persons thus afflicted, which he shall not rational person would believe.
be permitted to leave without first
obtaining the permission of the same (2) Irresistible Impulse Test – A person
court. acts under an irresistible impulse
when by reason of duress or mental
This is known as the exempting circumstance disease, he has lost the power to
of choose between right and wrong, to
IMBECILITY or INSANITY. avoid the act in question, his free
agency being at the time destroyed.
Q: What is the basis of paragraph 1? In other words, he can distinguish
A: Complete absence of intelligence. between right and wrong, but he has
lost the power to choose. He cannot
Q: What is imbecility? resist the urge to commit a crime
A: It is a condition of the mind where the offender because he has no more power to
might be advance in age but the mental choose, although he recognizes the
development is comparable to that of a child difference between right and wrong.
between two and seven years of age.
(3) Right and Wrong Test – A person is
Insanity lays down a condition: unless the insane when he suffers from such
insane person has acted during a lucid interval. perverted condition of the mental and
This qualification applies only to insane people, not moral faculties as to render him
to imbeciles. When you are an imbecile, there is incapable of distinguishing between
no such thing as lucid interval. You are an right and wrong.
imbecile all your life, through and through. You
cannot be a retarded person now, then tomorrow
you are normal. Whereas, there are types of In the Philippines, there is no definite
insanity where there is some period of time when criterion for insanity. But the Supreme Court
he is normal. And if the insane person commits a adopted a definition from the Revised
crime at the time he is normal, he is liable. Administrative Code, Section 1039, which states
Q: What is the presumption? that insanity is a manifestation in language or
A: The presumption is he is insane. But it can be conduct, of disease or defect of the brain or a
rebutted by evidence that he acted during a lucid more or less permanently diseased or disordered
inteval. condition of the mentality, functional or organic,
and characterized by perversion, inhibition, or by
 If there is doubt between sanity and disordered function of the sensory or of the
insanity, sanity prevails. Burden on proof is on the intellective faculties, or by impaired or disordered
defense. If there is doubt, convict the accused. volition.
The general rule that doubt should be resolved in
favor of the accused does not apply, especially in Insanity, as defined above, is evinced by a
this case where one is invoking an exempting deranged and perverted condition of the mental
circumstance. faculties which is manifested in language or
conduct. An insane person has no full and clear
Q: What is the definition of insanity? understanding of the nature and consequences of
A: It has a medical definition. But the legal his act.
concept of insanity is the inability to distinguish
what is right from what is wrong.
PEOPLE VS. MANCAO
PEOPLE VS. DUNGO 49 PHIL 887
199 SCRA 660 FACTS: This is a case involving an
epileptic. During the influence of an
Under foreign jurisdictions, there are three major epileptic fit, he attacked the victim. He
criteria in determining the existence of insanity: committed a crime. He pleaded insanity
as a defense.
(1) Delusion Test – Insane delusion is
manifested by a false belief for which Issue: whether he is liable or not.
44
When such a minor is adjudged to be
Held: Epilepsy is not insanity from the criminally irresponsible, the court, in
medical point of view. But from the point conformity with the provisions of this
of view of the law, that is precisely the and the preceding paragraph, shall
concept of insanity. He cannot distinguish commit him to the care and custody of
what is right from wrong because the his family who shall be charged with his
condition of the mind is not the same. surveillance and education otherwise, he
shall be committed to the care of some
It is important to note, however, that the institution or person mentioned in said
epileptic, to be exempt from liability, must have Article 80. (note: obsolete)
committed the crime at the very moment that he
was under the influence of an epileptic fit. Paragraph 2 and 3 are identical. This is called
Otherwise, even if he is an epileptic, he is not the exempting circumstance of MINORITY.
exempt from liability if he did not commit the
crime during an epileptic attack. - paragraph 2 – a person under nine years of
age;
PEOPLE VS. TANCO - paragraph 3 – a person over nine years of
58 PHIL 255 age and under fifteen

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.

Q: What does “acting with discernment” mean?


(2) A person under nine years of age. A: Discernment means the mental capacity of
the minor to distinguish what is right from
(3) A person over nine years of age and what is wrong. So, if the minor did not act with
under fifteen, unless he has acted with discernment, he is exempt. If he acts with
discernment, in which case, such minor discernment, he is liable, not exempt.
shall be proceeded against in accordance
with the provisions of Article 80 of this Q: Who will prove that?
Code. (note: relate PD 603, 192)
45
A: The rule is that it is for the prosecution to comprises the third element of dolo as a
prove that he acted with discernment because the means of committing a felony, freedom,
presumption is he did not act with discernment, and intelligence being the other two.
therefore, he is exempt. But the presumption can
be overcome by proof of discernment. On the other hand, ‘discernment”
convey thoughts. While both are products
Q: How do you establish discernment? of the mental processes within a person,
A: It depends on the actuation of the minor the former(intent) refers to the desired
before, during and after the crime. effect of one’s act; while the
latter(discernment) relates to the moral
EXAMPLE: The commission of a crime by a minor significance that a person ascribes to the
appears to be well-planned. Everything was said act. Hence, a person may not intend
coordinated and premeditated. That is a sign that to shoot another but may be aware of the
he knew because a minor who acts without consequences of his negligent act which
discernment acts by impulse, not by planning. Or, may cause injury to the same person in
in one case where a minor, after hitting the victim negligently handling an air rifle.
with a stone, shouted: Putang ina mo!
Mabuti nga sa’yo! Mamatay ka! The Supreme It is not correct, therefore, to
Court said that kind of remark is not the remark of argue as accused-petitioner Guevarra
a person who is doing an innocent act. That is a does, that since a minor over 9 but under
sign of discernment. 15 acted with discernment, then he
intended such act to be done. He may
negligently shoot his friend, thus did not
GUEVARRA VS. ALMODOVAR intend to shoot him, and at the same time
196 SCRA 476 recognize the undesirable result of his
negligence.
FACTS: Guevarra was an 11-year old kid
who was playing a rifle with a playmate. Intelligence embraces the concept
Accidentally, the rifle was discharged and of discernment. Discernment is not
exploded fatally hitting his playmate. Of equivalent to intent. Intelligence which
course, he did not really intend to kill his includes discernment is a distinct element
playmate. There was no dolo there. He of dolo as a means of committing an
was charged with reckless imprudence offense. Therefore, discernment is part of
resulting to homicide. intelligence. And there are three things
there to make the act voluntary –
He contended that he should be freedom, intelligence, and intent. Intent is
exempt because, as a minor, he did not in the mind, intelligence is in the mind,
act with discernment. It was for the and discernment is embraced in
prosecution to allege that he acted with intelligence.
discernment in order to hold him liable.
When the prosecutor charged him with In felonies committed by means of
reckless imprudence resulting to homicide, culpa, three elements are indispensable –
that is an automatic admission by the intelligence, freedom of action and
prosecution that there was no criminal negligence. Intent is wanting in such
intent on his part. And therefore, since felonies. However, intelligence remains as
the prosecution admits there was no an essential element. Therefore, it is
criminal intent, then that is an admission necessary that the minor between 9 to 15
that he acted without discernment because be possessed with intelligence in
if there is no criminal intent, automatically committing a negligent act. To be liable,
there is no discernment. he must discern the rightness or
wrongness of the act. ( ART 80 is repealed
Issue: Is the term “discernment” by PD 603)
synonymous with “intent”? (Such that if
there is no intent, there is no discernment) Meaning, I did not shoot you intentionally, but I’m
aware that what happened is wrong. That is what
Held: the word “intent” has been defined is meant by discernment – you know what is
as a determination to do a certain thing, wrong. But you did not intend it to happen.
an aim, the purpose of the mind including
such knowledge as is essential to such
intent; or the design, resolve with which a (4) Any person who, while performing a
person acts. It is this intent which lawful act with due care, causes an injury by
46
mere accident without fault or intention of FACTS: This is a case where some
causing it. American school teachers were murdered
by a band. Accused Baculi was then in a
(5) Any person who acts under the plantation gathering bananas. Upon
compulsion of irresistible force. hearing the shooting, the poor farmer ran
towards the scene of the crime. However,
 ELEMENTS: he was seen by the leader of the band.
(i) that the compulsion is by means of They struck him with the barrel of their
physical force; rifles and compelled him to bury the
(ii) that the physical force must be corpses. He was caught by the authorities
irresistible; and was charged as accessory in the
(iii) that the physical force must come murder of the Americans for concealing
from a third person. the body of the crime.

Held: Baculi was not criminally liable as


(6) Any person who acts under the impulse of accessory for concealing the body of the
an uncontrollable fear of an equal or greater crime of murder committed by the band
injury. because he acted under the compulsion of
an irresistible force.
 ELEMENTS:
(i) that the threat which caused the The second one (uncontrollable fear) is more
fear is of an evil greater than, or at common. The offender is compelled to commit a
least equal to that which he is crime against his will by means of threats. In
required to commit; order to avail of this, there must be a
(ii) that it promises an evil of such demonstration that:
gravity and imminence than the  there is no possibility of defending
ordinary man would have yourself from the threat. Meaning if
succumbed to it. you threaten me with a gun, I have no
The basis of paragraph 5 and 6 is the absence of obligation to fight back just to avoid
freedom of action. There is intelligence, there is committing the crime.
intent, but there is no freedom. You were literally  There is no possibility of escaping from
compelled against your will to commit the felony. the threat. If there is a chance of
Actus invito factus non est meus actus. An act escaping so that you will commit the
done against my will is not my act. crime, then you are not covered.
 The threat must be of equal or greater
Q: Distinguish irresistible force from injury. It must be clear, concrete, not
uncontrollable fear? speculative.
A:
Irresistible force Uncontrollable fear
the offender was the manner by which he PEOPLE VS. MORENO
compelled to commit a was compelled to 77 SCRA 549
crime through the use commit a crime was not
of physical force, like through force, but FACTS: Accused Moreno was charged with
torture. He was through threat or murder for killing fellow filipinos upon
tortured until he had no intimidation order of Major Sasaki of the Japanese
more choice but to Imperial Army. Moreno claimed that he
commit the crime. could not refuse to comply with that order
because the Japanese officer made a
The second is more common than the first. threat. The testimony of Major Sasaki
showed that the threat was not really
When you allege that there is an serious. It was to the effect that if Moreno
irresistible inner force which makes me commit a will not comply, the Japanese soldiers will
crime. I was possessed by a demon. That is NOT take him along with them.
covered. It may be insanity, bur definitely you Held: A speculative, fanciful and remote
cannot invoke irresistible force there. fear is not “uncontrollable fear”. If the
only evidence relating t a sort of a threat is
the testimony of the defendant: As they
US VS. CABALLEROS insisted and I informed them that I could
4 PHIL 350 not do it, Capt. Susuki told me “You have
to comply with that order of Major Sasaki;
otherwise you have to come along with
47
us”, that threat is not of such a serious detain him further, he’d better file the necessary
character and imminence as to create in criminal information in court. If the person
the mind of the defendant an arrested is detained beyond that period without
uncontrollable fear that an equal or greater being lawfully charged in court, the detaining
injury would be inflicted upon him if he did officer is liable.
not comply with the alleged order to kill
the deceased.
ARTICLE 125, RPC. Delay in the delivery of
detained persons to the proper judicial authorities
(7) Any person who fails to perform an act – The penalties provided in the next
required by law when prevented by some preceding article shall be imposed upon the
lawful or insuperable cause. public officer or employee who shall detain
 ELEMENTS: any person for some legal ground and shall
(i) that an act is required by law to be fail to deliver such person to the proper
done; judicial authorities within the period of:
(ii) that a person fails to perform such  twelve (12) hours for crimes or
act; offenses punishable by light
(iii) that his failure to perform such act penalties, or their equivalent;
was due to some lawful or  eighteen (18) hours, for crimes or
insuperable cause. offenses punishable by
correctional penalties, or their
This exempting circumstance applies exclusively to equivalent; and
people who are charged with felony by omission.  thirty-six (36) hours, for crimes or
Here, the offender is not prosecuted for doing an offenses punishable by afflictive or
act, but for failing to do an act. capital penalties, or their
equivalent.
Q: What is your defense when you failed to do an In every case, the person detained shall be
act as required by law? informed of the cause of his detention and
A: I was prevented by a lawful cause or an shall be allowed upon request, to
insuperable cause. That is the defense. communicate and confer at any time with his
attorney or counsel.
EXAMPLE: The accused is a Filipino citizen who is
a priest. Somebody in the confessional confessed Suppose a policeman caught somebody
to him as being a co-conspirator in the crime of without warrant because he was actually
treason. So, the priest learned about it. If he committing murder or homicide in the hinterlands
does not report the matter to the authorities, he – a certain very far away barangay. He was to
violates the law, as criminally liable for misprision bring him to town and to formally charge him in
of treason under Article 116 of the RPC. If he court. But it takes 3 to 4 days to reach the town
reports the matter to comply with the Penal Code, proper from said barangay. So, how can he
he violates the seal of confession. Then later, the comply with his duty within 36 hours (because
conspirator was arrested, investigated and he murder or homicide is a grave felony) to charge
admitted that the person to know about it was the the person arrested. He should keep him within
priest. So, the priest is now charged with 36 hours only, otherwise he should be liable.
Misprision of Treason. QUESTION: What is the
defense of the priest? ANSWER: He was So, necessarily, he detained him for more
prevented by a lawful cause (secrecy of than 36 hours. By the time he reached the town,
confession) from revealing the matter. it is more than 36 hours. So, the policeman is
charged of Delay in the delivery of detained
Q: What do you mean by prevented by an person.
insuperable cause?
A: A cause beyond the control of the peace Q: What is his defense?
officer. A: He was prevented from doing the act because
Example is an officer who is prosecuted under of the cause beyond his control – insuperable
Article 125 for the crime of Delay in the Delivery of cause. How can he do something within 36 hours
Detained Persons to Proper Judicial Authorities. In when it will take him nore than 36hours to reach
case of lawful warrantless arrests, a peace officer the town?
or a private person may arrest another even
without a warrant and detain him. But there is a Q: What is the effect of exempting circumstance
limit as to the maximum number of hours within in general?
which the detaining officer is allowed to detain the
person arrested. If the arresting officer wants to
48
A: When there is an exempting circumstance, the person in the world to induce people to commit
offender is not liable. He is exempt from criminal crimes. It is not a sound practice to allow public
liability. officers who should be the one apprehending the
criminals to be the very person who will induce
Q: How about civil liability? somebody to commit a crime.
A: He is civilly liable because the exemption from
criminal liability does not include exemption from In entrapment, a person has planned, or
civil liability in the cases provided in paragraph 1, is about to commit, a crime, and ways and
2, 3, 5, and 6 of Article 12. So, he is not means are resorted to by a public officer to trap
criminally liable, except in paragraph 4 (accident) and catch the criminal. Entrapment is not a
and paragraph 7 (lawful or insuperable cause). In defense. In entrapment, the person has decided
these two instances, not only is there an to commit a crime and the police officer went
exemption from criminal liability, but also along with him, pretending to be agreeing to its
exemption from civil liability. commission. Then when the criminal is in the act
of committing the crime, the peace officer who
Q: Enumerate at least ten exempting pretended to do along with him will now be
circumstances? instrumental in arresting him. Now, that is not a
A: Seven are in Article 12. Others are: defense when you entrapped. It is not an
 Article 6 – when a person did not exempting circumstance.
perform all acts of execution which
would produce the felony because of For example, a buy-bust operation against
his own voluntary desistance. One drug pusher. A peace officer will pretend to be a
who voluntarily desist from committing user or drug addict and he will buy from the
a crime is exempt from any criminal pusher. Upon giving the signal to his companions,
liability because of public policy. the pusher is arrested. That is entrapment.

 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.

You will notice that the age of a person plays a


Q: Define mitigating circumstance in general?
big role in
A: In general, mitigating circumstances refers to
determining his mental liability, or the proper
those circumstances which, if present in the
imposable penalty under the Penal Code:
commission of a felony, makes the offender liable
but it would reduce or mitigate the imposable
penalty because when he committed the felony, he AGE DESCRIPTION
committed it with a reduction or diminution of EFFECTS
freedom, intent or intelligence.
9 years & Age of Exempting
below complete (Article 12(2)
Therefore, there was less degree of
irresponsibility
voluntariness in committing the crime. Or because
Over 9 under Age of - Exempting, if
the offender has shown in the commission of the
crime or afterwards a lesser degree of moral 15 conditional the minor
depravity or perversity. criminal acted without
responsibility discernment-
Art. 12(3)
- Mitigating, if
ARTICLE 13. Mitigating circumstances – The
he acted with
following are mitigating circumstances:
discernment
(1) Those mentioned in the preceding
chapter, when all the requisites 16 to 17 years Age of Mitigating
necessary to justify the act or to exempt old mitigated (Article 13(2)
from criminal liability in the respective criminal
cases are not attendant. responsibility
18 to 70 years Age of None
This refers to INCOMPLETE JUSTIFYING or old complete
INCOMPLETE EXEMPTING circumstance. For criminal
example – incomplete self-defense, incomplete responsibility
defense of relative, incomplete state of necessity, Over 70 years Age of Mitigating
50
old mitigated (Article 13(2) minor at the time of the commission of the crime.
criminal * Basis: So, if you have the burden of proof, your
responsibility impaired testimony alone does not seem sufficient. You
intelligence have to present corroborative evidence to make it
convincing.
However, the Supreme Court re-examined
the Lugto ruling:
Q: Is a baptismal certificate admissible in
evidence to prove the minority of an accused?
A: If we go by the Rules of Evidence, a baptismal
PEOPLE VS. TISMO
certificate is not competent to prove a person’s
age because it is not recognized as an official
204 SCRA 535
document. It does not prove your name, status,
or age. What is competent is the official birth
certificate. The appellant’s claim that he was
17 years old at the time the crime was
PEOPLE VS. REGALARIO committed, even without any proof to
corroborate his testimony, is sufficient.
220 SCRA 368
Considering that the prosecution failed to
present contradictory evidence, we have
Minority, as a mitigating
applied to appellant therein the privilege
circumstance, is presumed in case of
mitigating circumstance of minority under
doubt. A baptismal certificate or other
the second paragraph of Article 13 of the
evidence of this character may be
Revised Penal Code.
admitted to show minority.
The Lugto ruling appears to be an
That ruling, about legal interpretation of minority,
aberration from the long line of decisions
should not be confused with insanity which must
antedating it. From US vs. Bergantino (3
be proven by clearly and convincingly. For
Phil 118) to People vs. Ebora (141 SCRA
example, I want to prove that the accused is a
282), we have consistently ruled that,
minor through his own testimony.
although the accused did not offer any
evidence to support his claim of minority,
COUNSEL:
this fact will remain as such, until
When were you born?
disproved by the prosecution.
ACCUSED:
I was born on June 2, 1990. (this is theoretically In other words, the answer to the question of
hearsay) whether or not the accused’s lone testimony as to
COUNSEL: his minority would be sufficient, is YES. It can be
How did you know that you were born on that done. That is where we apply the rule on
date? liberality. Anyway, the prosecution will present its
ACCUSED: own evidence, and it is there that we will know if
My mother told me. (this is an exception to the the accused is telling the truth. But if his
hearsay rule…because of family reputation or testimony is unchallenged, then it would suffice.
tradition)
COUNSEL:
Ah, that is self-serving. Maybe you just made that (3) That the offender had no intention to
so that you can prove that you are below 18 years commit so grave a wrong as that
old. committed.

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.

 Sufficient Provocation  Sufficient Threat


rd
It seems to be closely linked to the 3 A threat also amount to provocation
element of self-defense – lack of sufficient because when you are threatening somebody, you
provocation on the part of the person defending are provoking him. Like for example, A: You
himself. So, we will connect this with self-defense watch out! One of these days, I am going to kill
you. B: You are threatening me? It would be
The best illustration is the case of Alconga. good if I kill you first! So, B killed A. that is the
The deceased attacked Alconga with a piece of mitigating because the offended party (A) gave
wood. Alconga defended himself by shooting the sufficient threat preceding the act.
deceased. When the deceased realized he slightly
wounded, he turned his back and ran away. PROBLEM: A wanted to kill B. A drew his gun and
Alconga chased him, overtook him and killed him told B, I’ll kill you now! When B realized that A is
on the spot. QUESTION: Is Alconga entitled to going to kill him, B drew out his gun ahead and
the justifying circumstance of self-defense for the killed A. so, B is accused of homicide for the death
death of the victim? ANSWER: NO, because there of A. B went to a lawyer, who advised him to
was no unlawful aggression. While it is true that invoke the mitigating circumstance under Article
there was unlawful aggression on the part of the 13 (4). QUESTION: Is the lawyer correct?
victim earlier, it has already ceased when the ANSWER: NO, he should invoke self-defense, not
victim ran away. There is no more danger to the the mitigating circumstance of sufficient
life and limb of Alconga, and therefore, there was provocation or threat.
no more reason for him to defend himself. As a
matter of fact, in the second stage of the fight, The rule is when the threatened act is
Alconga became the unlawful aggressor. about to happen, that is equivalent to actual
aggression. That is justifying because the threat is
Q: If Alconga is liable for homicide for the killing imminent, at the point of happening and therefore,
of the victim, is he entitled to any circumstance in that constitutes unlawful aggression. But if the
his favor? threat is still in the future, and not at the point of
A: YES, he is entitled to the mitigating happening, then it is not equivalent to unlawful
circumstance under Article 13 (4) that sufficient aggression. That may constitute the mitigating
provocation on the part of the offended party circumstance under Article 13 (4). So, that is the
immediately preceded the act. connection between the threat here and the
threatened assault in Article 11 (1).
52
laughed. But the deceased made a
mistake. Maybe the joke would not have
(5) That the act was committed in immediate bothered if it were a young man, but to
vindication of a grave offense to the one the old man, it was something else. So,
committing the felony (delito), his the old man left, got an ax. A little later,
spouse, ascendants, descendants, while the deceased was squatting down,
legitimate, natural or adopted brothers or the old man came up behind him and
sisters, or relatives by affinity within the struck him on the head with the ax.
same degree.
Held: He acted in vindication of a grave
The essence of this circumstance is offense committed against him. It was
REVENGE. Somebody commits a wrong, a grave just a joke, but considering his age and
offense to you or a member of your family, a the occasion, it was something serious.
relative, and you seek revenge. Like for example, You should not play jokes on or ridicule me
somebody kills your brother, so you look for the in the presence of others.
killer to kill him. Now, that revenge can never be
justified under the law. It does not exempt you Take note that the law says that you x x x
from liability if you kill somebody because he killed committed the act in the immediate vindication x x
a member of your family. That can never be x you committed the act in immediate
justified. “Revenge is mine”, says the law. vindication. Just like in the previous mitigating
circumstance, that sufficient provocation or threat
However, the law understand the feeling of on the part of the offended party immediately
the accused. He did it because a grave offense preceded the act.
was committed against him, or a member of his
family. So, the law recognizes the “diminution” of However, there is a difference between the
one’s penalty if he acts in retaliation. word “immediate” in paragraph 4 and the word
“immediate” in paragraph 5. In the previous
The relatives mentioned in this paragraph 5 mitigating circumstance, sufficient provocation or
are identical with the relatives mentioned in Article threat on the part of the offended party
11 (2) – defense of relatives. All of them are the immediately preceded the act. In paragraph 4,
same except one, relatives by affinity within the the interpretation of the word “immediate” there is
fourth civil degree. They are not mentioned in this literal. There must be no gap between the threat
Article. or provocation and the crime. You commit a crime
immediately after the provocation or threat. In
Q: What do you mean by “grave offense”? Does paragraph 5, the use of the word “immediate” is
this mean to say you are a victim of a grave not really literal.
felony, as defined in Article 9?
A: NO, the word “grave” here is not identical with Q: For example, a man is killed and after the
the technical definition of grave felony. What it funeral of the deceased, the son looks for the killer
means is somebody offended you seriously. If it is and kills him. And he finds the killer after one
serious, it is not necessarily a grave felony. month. So, he kills the killer for killing his own
father. Would you say that the killing was
Q: And how do you determine if the wrong “immediate” after the grave offense was
committed upon you or your relative is serious? committed against the father?
A: If depends on many factors. You consider the A: It is not. It is not immediate. There was a gap
nature of the act committed by the victim, the age of one month. But there is a relation of cause
of the offender, the social standing. What is and effect between the crime committed by the
serious to one may not be serious to another. killer and the crime which the son now commits
against the killer. So, the word “immediate” there
is a misnomer because the word “immediate” is an
US VS. AMPAR
incorrect translation of the original Spanish word
37 PHIL 201 proxima. The appropriate translation would be
“proximate”. That the act was committed in the
FACTS: There was a party during a fiesta PROXIMATE vindication of a grave offense.
where the accused who is an old man went
to the victim who was serving lechon. Q: What is the difference between “proximate”
Ampar asked for lechon. The victim and “immediate”?
played a joke on Ampar. In the presence A: In “proximate”, the act is not immediate in
of many guests, the deceased insulted the point of time of the grave offense, but what is also
old man, saying: “There is no more. important is that there is still the relation of cause
Come here and I will make roast pig out of and effect between them.
you”. It was a joke, and all the guests
53
PEOPLE VS. CALISO
58 PHIL 283
(6) That of having acted upon an impulse so
powerful as naturally to have produced FACTS: Here, the yaya killed the child
passion or obfuscation. because she was angry, because the
parents of the child scolded her earlier.
Q: What do you mean by “passion or Because of the scolding, she became
obfuscation”? emotional. She got so emotional that she
A: Where a person is overwhelmed by passion or killed the baby.
his mind is obfuscated, he becomes “illusionado”,
his action is more of a product of emotion Held: We cannot accept the fact that you
rather than of a careful knowing. So, somehow, acted under passion or obfuscation
the freedom and intelligence are also impaired. because that was a passion or obfuscation
generated by the spirit of revenge. So, it
Sometimes, we experienced that. When was not a valid emotion.
you become very angry, sometimes you think or
utter words which you will later regret. When you
have cooled down, you realize that you should not 3) the passion and onfuscation must not be
have uttered such words. But why is it that when committed in a spirit of lawlessness
you are angry or when you are not thinking, you
do things which you actually do not mean?
PEOPLE VS. SANICO
Why? Because your mind is obfuscated.
That in the mind, the decision was prompted by Facts: A man was accused of rape. His
emotion rather than by reason. That is why there explanation was : I was in a very scenic
is this nice saying: When you are angry, do not spot. There no people around. Then, I
make any decision. When you are happy, do not saw the victim. She was alone, bathing in
make any promises. That is fair enough. the river. So, my initial instinct was that I
was aroused, I had to rape her. I acted
There are some principles on this: with passion.

1) the passion or obfuscation must arise from Held: That is not the kind of passion
lawful sentiments contemplated by law. That is libido.

US VS. HICKS Q: Now, suppose a person became of an act - a


14 PHIL 217 terrible act committed by the victim against him,
retaliated by killing the victim. So, he says I killed
FACTS: A married man was maintaining him because of sufficient provocation or threat on
an illicit relationship with a woman, a the part of the offended party immediately
concubine. After a while, the concubine preceding the act, so I am entitled to the
told him. I think I have to stop this mitigating circumstance #5 because I committed
relationship. I have no future with you. In the act in the immediate vindication of a grave
the first place, you are married. I want to offense committed against me, and also I am
have my own life. Of course, the man entitled to #6 because I acted on an impulse so
became emotional and killed the woman, powerful as would naturally produce passion. So,
because he could not bear the thought of I am entitled to three mitigating circumstances. Is
this woman separating from him, when that correct?
they have been together for 7 years.
A: No, he is entitled to only one because numbers
In his defense, he pleaded the 4,5 and 6 have the same source. They have a
circumstance of passion and obfuscation, common denominator - that the mind is actually
that he was obfuscated when the girl said overwhelmed by anger or emotion. So, he cannot
that she wanted to part ways with him. claim three mitigating circumstances. Assuming
that all of them will apply, the application of one is
Held: Defense untenable. It was a sufficient. You cannot claim three separate
passion which arose from an ILLICIT mitigating circumstances.
relationship.
 In passion or obfuscation, you lose self-control as
2) the passion or obfuscation must not be to deprive you of reason; you do not lose
committed in a spirit of revenge consciousness.
54
duty recognized private schools, colleges and
(7) That the offender had voluntarily universities, shall be deemed persons in authority.
surrendered himself to a person in authority
or his agents, or that he had voluntarily So, if you surrender to a clerk of the City
confessed his guilt before the court prior to Hall, you will not fall under this because an
the presentation of the evidence for the ordinary clerk of the government is not a person in
prosecution. authority. He is not also an agent of a person in
authority. He must fit the definition in Article 152.
These ( voluntary surrender and voluntary Also, you must surrender yourself. Like in one
confession) are the most common mitigating case, the accused killed somebody. And then, he
circumstances invoked in court. If the two are sent his weapon to the police, the murder weapon.
present, definitely the accused is entitled to two Is that necessary? The Supreme Court said that is
mitigating circumstances. not surrender, because you should surrender your
body, not the weapon.

 Voluntary Surrender Q: When should you surrender?


A: One thing that the Supreme Court has
After the killing, the accused went to the emphasized is that the surrender must be
police and gave up. The reason behind this is that SPONTANEOUS.
he has shown a lesser degree of perversity, that
he is willing to answer for the crime he committed.
He is better that the one who has remained at ESTACIO vs. SANDIGANBAYAN
large. 183 SCRA 12

Q: To whom shall the accused surrender? The mitigating circumstance of


A: The accused should surrender to the right voluntary surrender may properly be
person. To a person in authority or his agent. appreciated in favor of the accused when
the following requisites concur:
 The voluntary surrender need not be in the same
place where the crime took place. You may have  The offender has not actually
committed the crime in Davao and surrendered in been arrested;
Manila.  The offender surrendered
himself to a person in authority or
Q: Who is a person in authority or his agent? an agent of the person in authority
A: The guide is in Book II  The surrender was voluntary.

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

PEOPLE vs. MORATO FACTS: Accused submitted himself to the


224 SCRA 361 custody of the law even though charges
have yet to be filed against him when the
Issue: Is there voluntary surrender if the Barrio Captain went to his house.
accused gave himself up after a shoot-to-
kill order was issued against him and he HELD: No voluntary surrender because it
was persuaded to surrender because of his was the Barrio Captain who went to his
employer? house. It was not him who went to the
person in authority to surrender.
Held: The fact that the Provincial
Commander had announced over the radio
that he would issue a shoot-to-kill order
unless the accused-appellant voluntarily
surrendered, and that the accused-
appellant was persuaded to surrender by  VOLUNTARY CONFESSION OF GUILT
his employer, do not militate against the
consideration of his voluntary surrender as This is manifested in Criminal Procedure
mitigating circumstance. The stone-cold by a plea of guilty entered by the accused during
fact remains that he was not arrested and the arraignment. That is when you voluntarily
that he presented to the Provincial confess your guilt to the court prior to the trial,
Commander. prior to the presentation of evidence by the
The ruling of Morato seems to go against the prosecution.
ruling of the Supreme Court in 1990 decision,
which has the very same fact. A man committed a Q: Can I withdraw? Can a person who entered a
crime. He was convinced by his superior to plea of "not guilty" later on change his mind and
surrender, so he surrendered to the NBI. withdraw that plea and change it to "guilty"? Is he
still entitled to this mitigating circumstance?
A: Yes, because what is important is that he has
PEOPLE vs. PAGSANJAN confessed his guilt before the prosecution has laid
221 SCRA 735 its evidence. In order to prevent speculation on
the part of the accused: If the evidence is strong,
Issue: Is there mitigating circumstance if I will surrender. If the evidence is weak, trial goes
it took 2 years and 5 months after the on!
56
In other words, you should not speculate. insanity, because medically this will be a form of
Even before seeing and knowing the evidence of insanity. An illness of the offender which
the prosecution, you admit your guilt- that shows diminishes the exercise of the will-power of the
that you have less perversity. offender. If you follow the guideline in the case of
Dungo, some countries may recognize this as a
So, you can change your plea of " not type of insanity, by applying what is known as the
guilty" to " guilty". What is important is that you irresistible impulse test.
must confess your guilt prior to the presentation of He cannot resist the impulse to commit a
the evidence for the prosecution. crime. Now, is that recognized in the Philippines?
NO. As a matter of fact, another case where the
Q: Can you change your plea of " not guilty" in the Supreme Court thoroughly discussed this type of
middle of the trial? Can that be done? mental illness is in the 1991 case of People vs.
A: Of course, you can change your mind and Rafanan (204 SCRA 65). The discussion in the
enter plea of " guilty" anytime, even before trial, Rafanan case is related to the test in People vs.
during trial, and even before the trial ends. But if Dugno.
you do it much later, it will no longer be
considered as a mitigating circumstance. That's In the case of Rafanan, the Supreme Court
the difference. adhered to the guidelines it laid down in the
earlier case of People vs. Golez, a 1915 decision.
People vs. Magallanes And the Supreme Court in the case of Rafanan
275 SCRA 222 says: " the required standards of legal insanity
were elaborated in the 1950 case of People vs.
FACTS: In the prosecution for murder, the Golez. And the Supreme Court said: " A linguistic
accused willingly pleaded guilty to a lesser or dramatical analysis of this standard suggest
offense of homicide. The prosecution here did that Golez established two distinguishable tests."
not agree to his plea of guilty to a lesser Of course, this is another viewpoint. There
offense. So, the trial went on. During the are supposed to be three tests according to
trial it was shown that he was not guilty of Dungo. That is correct, but based on another point
murder. of view, based on Rafanan , there are actually two
tests: the test of cognition and the test of volition,
HELD: He is allowed to be credited of the according to the Supreme Court.
mitigating circumstance of voluntary
confession of guilt, where the prosecutor has Q: What is the test of cognition?
not proven the graver crime but only the A: The test of cognition means the complete
lesser crime of homicide. deprivation of intelligence in committing the
criminal act.

(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.

Q: Distinguish one from the other.


(10) And, finally, any other circumstance of a A:
similar nature and analogous to those ORDINARY PRIVILEGED
abovementioned. If there is an ordinary If the mitigating
mitigating circumstance is
So, any circumstance that is similar to any circumstance, the privileged, it is better
paragraph 1 to 9. And the Supreme Court applied penalty is fixed within because, according to
this in so many cases. There was this case of an the minimum period the law, the penalty
old man. He was around 65, but he could hardly within the same should be lowered by
walk, he could hardly see. The Supreme Court penalty. The presence one or two degrees.
gave to his benefit the circumstance analogous to of an ordinary Now, if penalty is
" above 70". Although he was not really above mitigating circumstance punishable by prision
70, considering his physical condition, that is will call for the correcional, the
analogous. imposition of the privilege mitigating
penalty within the circumstance will even
And there was the case of the creditor who minimum period of that lower the penalty not
could not collect form the debtor. Each time he particular penalty. only to the minimum of
would go to the debtor to collect the account, the prision correctional, but
debtor would always tell him to come back the to the penalty next
nest day. One day, the creditor got so sick and lower in degree, which
tired of the debtor's alibis, that he mauled the under the scheme of
latter. Is he liable for physical injuries? According penalties is arresto
to the Supreme Court, the feeling of the creditor is mayor..
analogous to one of passion or obfuscation. So, in An ordinary mitigating A privilege mitigating
this case, the creditor was given the benefit of circumstance is offset circumstance cannot be
mitigating circumstance. by an aggravating cancelled or offset by
circumstance. They an aggravating
Or in the case of a thief who stole the eliminate each other. circumstance.
property of the victim. After one or two days, he
was filled with remorse that he returned the stolen
property. Is he liable for attempted theft? No Q: So, if there is privilege mitigating circumstance,
more. That is already consummated. From the you are entitled to a penalty that is one degree
moment he took the property which then came to lower. But will the aggravating circumstance bring
his possession and control, the theft was already it back to one degree higher?
consummated. Desistance was too late. A: No, that cannot be done because a privilege
Returning the property cannot be desistance. You mitigating circumstance cannot be offset by an
cannot desist when all the elements have already aggravating circumstance.
been completed. But definitely, what he did as a
point in his favor. He is to be given the mitigating
circumstance, analogous to voluntary surrender.
This analogous to somebody who commits a crime Chapter Four
and voluntarily surrenders himself to the CIRCUMSTANCE WHICH AGGRAVATE
authorities or their agents. CRIMINAL LIABILITY

Q: How do we define the concept of aggravating


Q: What are the mitigating circumstance in the circumstances?
Penal Code? A: They are circumstances which, if attending the
A: There are two: commission of a felony, would tend to increase
the prescribed penalty to the maximum
(a) Ordinary Mitigating period of the prescribed penalty.
Circumstance -- these are the
mitigating circumstances Q: Why? What is the reason?
found in Article 13. A: Because the offender has shown a greater
perversity or moral depravity as manifested by the
following:
58
either impose or collect any fine
(i) by the time of the commission of whatsoever and it is likewise true that a
the crime; municipal councilor is not an official
(ii) the place of the commission of designated by law to collect public fines,
the crime; but these facts do not destroy or disprove
(ii) the ways and means employed or the important fact that the accused did by
involved in the commission of the taking advantage of his public position
crime; deceive and defraud the injured parties out
(iii) the motive or motivation behind of the money they paid him.
the crime; or
(iv) because of the personal
background of the offender and ARTICLE 62, PARAGRAPH 1-a, RPC. When in the
the offended party. commission of the crime, advantage was
taken by the offender of his public office, the
You will notice that there are only 10 mitigating penalty to be imposed shall be in its
circumstances under Article 13, there are 21 maximum regardless of mitigating
aggravating circumstance under Article 14. More circumstances.
than double. It simply proves true the statement
that there are more ways to do evil that to do Article 14(1) talks of an ordinary
good, and the road to hell is wider that the road to aggravating circumstance which can be offset also
heaven. by a mitigating circumstance. But Article 62(1) is
a special aggravating circumstance which cannot
be offset by a mitigating circumstance because the
ARTICLE 14. Aggravating circumstances - latter says regardless of any mitigating
The following are aggravating circumstances: circumstance.
(1) That advantage be taken by the offender
of his public position Q: Does this mean that Article 14 is now useless
because of that amendment?
FIRST: This will not apply to private individuals. A: To apply Article 62(1-a), it must be alleged in
The offender here must be a public officer. the complaint. If it is not alleged in the complaint
but is proved during the trial, apply Article 14(1).
SECOND: That not every public officer who If it was alleged in the complaint and proved
commits the crime will automatically be affected. during trial, then you apply Article 62.
The law says that he must take advantage. If he
did not take advantage of his public position, his
liability should not be aggravated. (2) That the crime be committed in contempt
of or with insult tot he public authorities.
US vs. TORRIDA
23 Phil. 189 The best example of this is when the
mayor is conducting an official inspection, or when
Facts: The accused, shortly after entering he is outside of his office, talking to the people, or
upon his duties as councilor of the town of he is inaugurating something, and they you, the
Aparri, ordered that deaths of all large accused commit a crime in his presence -
animals must be reported to him as meaning, his presence did not prevent you from
councilman. As a result of this instruction, committing the crime , and you know he is there.
the owners of several such animals were That would be an insult to him! Then the crime is
induced to pay the accused supposed fines considered aggravated because of the place and
on the belief that such were required by a time. But be sure that the public officer or
municipal ordinance. He spent the money authority is not the victim, that he is just a
paid to and received by him as fines. spectator. You commit a crime in his presence.

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.

People vs. Padilla


60
301 SCRA 265 Q: What was the reason behind this?
A: A man's home is supposed to be his castle. One
HELD: Although the disregard of the who goes to his house to commit a crime against
respect due to the victim by reason of him is more perverse than somebody who offends
his/her age can be taken into account him somewhere else. If the offender waits for you
when the victim is of old age as well as of to go out of your house before he commits a
tender age, the same act can be crime, at least he know to respect the rules of
considered only in cases of crimes against man. It is worse when somebody goes to your
person and honor. house, then goes to your bedroom and attacks you
inside. This guy is more perverse. And the
Here, age gap goes both ways. According to perversity is shown by the place of the commission
Dean, it applies one way only. Why? The law says, of the crime.
“in disregard of the respect…” In our culture, it is
the younger who should respect the older ones. Q: What is meant by "dwelling"?
A: It is supposed to be a structure used for rest or
comfort. Dwelling includes the dependencies of
Sex: the house, the staircase and the enclosure under
The offender and the offended should the house. That's the concept. It includes even
belong to the opposite sexes. Now, this is one the garage beside the house where you clean your
way. The offender here is male: the offended car.
party is female. It cannot be the other way
around. It is absurd that if a woman will maul a "Dependencies" of one includes the jamb
man, then the man will accuse the woman of of the house. The staircases part of the dwelling.
physical injuries with the aggravating circumstance
of disregard for his sex. In other words, there is Q: Is it necessary for the offender to go inside
something wrong there. the house to commit a crime?
A: No. In the case of People vs. Ambo, where the
However, this will not apply if the accused shot the victim from the street- meaning
difference is INHERENT in the crime, like rape or he shot him through the window and killed the
seduction. By nature, the offender is male and the occupant inside the house - the Supreme court
offended party is female. So, you don not say that applied the aggravating circumstance of dwelling.
a man is guilty of raping a woman with the
aggravating circumstance of disregard of respect Also, it is NOT necessary that the crime is
due to the victim because of her sex. But you are finally consummated inside the house of the
not to rape except a woman! victim. Like what happened in one where the
offender went to the house of the victim to kill
Also, when a crime is committed with him. In this case, is dwelling aggravating? Yes,
passion or obfuscation, this paragraph is because the initial attack started in the residence
automatically out. Because you cannot of the victim. " Dwelling" in Spanish is known as
deliberately disregard respect to the victim when the aggravating circumstance of morada.
you are already acting with passion or obfuscation,
because the two are inconsistent positions. Q: When is dwelling not aggravating? When does
dwelling not apply as an aggravating
circumstance?
A: There are several:

1.) It is not aggravating if the offended part has


given provocation.
Mari vs. CA
332 SCRA 475 Meaning, your house is your castle.
People are expected to respect that. They should
The mere fact that the victim is a no go there to commit a crime against you. But
woman does not in itself make it an you should not use this castle as a fortress to
aggravating circumstance. abuse others.

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.

What makes the crime aggravated is the place


(4) That the act be committed with abuse of where it
confidence or obvious ungratefulness. was committed. There are actually four separate
circumstances here:
There are situations here. That the act is
committed with: (i) that it is committed in the place of
the Chief Executive --- Malacanang
(a) abuse of confidence; and Palace. Now, the Chief Executive
(b) obvious ungratefulness need not be there. What is
important is the place.
62
(ii) In the presence of the Chief
Executive. This is wherever he (5) That the crime be committed in the night
may be, for as long as the crime is time, or in an uninhabited place, or by a
committed in his presence. band, whenever such circumstances may
(iii) Where public authorities are facilitate the commission of the offense.
engaged in the discharge of their
duties. A good example is when a There are three circumstances here:
crime is committed in front of a (i) committed in the night time;
judge while he is presiding in the (ii) committed in an uninhabited
courtroom. Of if the crime is place; or
committed in the presence of the (iii) committed by a band
city mayor while he is discharging
his duties at the mayor's office.
Now, suppose the crime is Q: What happens if the felony is committed at
committed inside the courtroom, nighttime, in an uninhabited place and committed
or inside the mayor's office when by a band? So, all the three present, how many
he is already gone. Meaning after aggravating circumstance are there?
the court session has ended or A: There seems to be a conflict here:
after office hours. It is not
aggravating. The law requires that  The authors of many books cite the Supreme
it be committed in his presence. Court of Spain based on the identical
(iv) That the crime be committed in a provisions of the Spanish Penal Code. In one
place dedicated to religious decision, the Spanish Supreme Court said that
worship. Now, suppose there is no the three should be treated only as one.
religious worship. That is  But in another decision, the same Supreme
immaterial. What is important is Court said that there should be three because
that it is committed in a place they do not have any common denominator.
dedicated to worship. There need Night time is aggravating because of the time,
not be a religious ceremony going an uninhabited place because of the place,
on at that time. So, the church, band because of the ways and means
the mosques --- or any other place employed. So, one who commits a crime
where people pray that is when all three are present is more perverse
considered a holy place. This is than one who committed it only with one of
because of all places where you them present.
could commit it, why commit it in
that place? He could commit the
crime anywhere else. Why choose Nocturnidad
to commit it -- of all places-- in a
place dedicated to religious Q: What do you mean by nighttime?
worship. A: Well, we have in the Civil Code, for instance,
Q: How do you compare (iii) with paragraph 2 sunset to sunrise. So, if the crime is committed
-- that the crime be committed in contempt of pr during daytime, it will not be aggravating. In the
wit insult to the public authorities? first place, does daytime facilitates the commission
A: The distinction is: If the public authority is of the crime? On the contrary, in the dark, the
in the discharge of his duties inside his office and possibility of detection, the possibility of being
you commit a crime in his presence, you fall under recognized is low.
paragraph 5. If he is engaged in the discharge of However, not every crime committed at
his duties outside his office and you committed a nighttime becomes aggravating. There are two
crime in his presence, you are covered by tests to determine whether or not the crime is
paragraph 2. That is the difference. aggravating. The objective test and the subjective
test. In order that nighttime may be considered
Moreover, in paragraph 2, a public as aggravating, at least one test should apply.
authority, like a mayor, should not be the victim of
the crime. It was simply committed in his Q: What is the subjective test?
presence. In paragraph 5, he may or may not be A: Subjective test: whether or not nighttime is
the victim of the crime. If you committed a crime purposely sought by the offender in order to
in his presence inside his office, you are covered. successfully commit the crime with impunity.
If you assault the mayor inside his office, while he
is engaged in the discharge of his duties, you are Q: What is the objective test?
covered by paragraph 5.
63
A: Objective test: even if nighttime is not
especially sought for, it facilitated the commission Q: But nobody helped him; nobody came out….
of the crime. A: That is not the test. The test is the very
nature of the place, not the accidental fact that
PROBLEM: Suppose a crime is committed by the nobody went to his rescue.
accused against you inside a moviehouse? You go
to a moviehouse during daytime -- when you have Q: The victim was killed in the middle of Manila
just entered, chances are, you cannot see Bay. He was there fishing. So, the offender
anything because your eyes have not yet adjusted followed him in a motorboat and killed him. What
to the darkness. But after a few minutes, after are the aggravating circumstances present?
you have adjusted to the dark, you can now see. A: There is one - uninhabited place. Nobody
So , at that very moment, the accused assaulted lives in the middle of Manila Bay.
you. Obviously, the darkness of the moviehouse
has facilitated the commission of the crime.
QUESTION: Is that aggravating? ANSWER: No. Quadrilla
Even if it will pass the test, still it is not nighttime.
Nighttime speaks of sunset to sunrise. If you The law gives us the definition of a band:
enter the moviehouse at 12:00 noon, it cannot be wherever more than three armed malefactors shall
nighttime, no matter how you look at it. You have acted together in the commission of an
cannot say that if you are inside the moviehouse, offense, it shall be deemed to have been
it is nighttime. That when you go outside, it is committed by a band.
daytime, and when you enter again, it is nighttime
again. Take note that the law says MORE THAN
THREE, so there are at least four.

Despoblado Q: Suppose 100 people attacked you. Three of


them are armed, the 97 are unarmed. Is the crime
Uninhabited place is also know as the aggravated?
aggravating circumstance of SOLITUDE. A: NO, because the law says that more than three
armed men. Hence more than three should have
Q: When is a place uninhabited? been armed.
A: Where there are no houses around; the place
is of considerable distance from the town proper. Q: Suppose 100 people attacked you. Three of
Or even if there are some houses, they are so far them are armed, the 97 are unarmed. Is band an
from each other that you cannot reach or seek aggravating applicable?
help from your nearest neighbor. The test is on A: Still the answer is NO, because the law says "
whether or not there is a possibility of calling for more than three armed men".
help.
Q: These four or more offenders are armed with
Q: There was a case in which the crime was what?
committed in the middle of the forest. Because A: The law says " armed". Suppose one has a
the offender found it best to commit the crime in a bolo, one has a gun, and the other one has a club.
place where no one could help. But accidentally, Then, if effect they are armed because it is not
there were hunters who were around at that time. necessary that they are armed with firearms or
Was the crime aggravated by despoblado? guns.
A: Yes. It is not sufficient that at that very
moment, there were many people around. That is
not the test. The test is by its very nature. Are
there people there? Meaning, by accident, it turns
out that there were people.
PEOPLE vs. MANLOLO
In the same manner that even if nobody 169 SCRA 394
helps you, if the place in NOT an uninhabited
place, it will not also be aggravating. Facts: Somebody, when he was going
home, was attacked by a group of
Q: A person was attacked at night in the middle of istambays. They hit him and then they get
the subdivision. He was shouting for help, but stones and threw stones and rocks at him.
nobody came out to help him. Does the They were about 4 or 5. This happened in
aggravating circumstance of solitude apply? Pasay City.
A: No, because he was attacked in the middle of
the subdivision.
64
Issue: Whether or not a crime was misfortune. What misfortune? That the
committed by a band. motorlaunch was left just floating out there in the
sea?
Held: Exactly, the offenders, who were
many, attacked the man by throwing When the case reached the Supreme
stones at him. There was an intention to Court, the court rejected the application of the
cause death when the accused threw aggravating circumstance because the misfortune
stones at the victim - thus, including contemplated by the law is not that which will
stones under the term " armed", under the affect only a small number of people in the
phrase " more than 3 armed malefactors motorlaunch. It should be big in magnitude.
acted together'> So, there is an When we say shipwreck, earthquake, it involves a
aggravating circumstance of band. lot of people in a water area rather than the
people who were stuck in the motorlaunch.

(6) That the crime be committed on the


occasion of a (8) That the crime be committed with the aid
conflagration, shipwreck, earthquake, of armed men or persons who insure or
epidemic or other calamity or misfortune. afford impunity.

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.

Q: Suppose a person was convicted before for the


(9) That the accused is a recidivist. crime of homicide, and the case is not now on
A recidivist is one who, at the time of his trial appeal with the Court of Appeals. And now, he is
for one crime, shall have been previously found guilty of the crime of physical injuries, a
convicted by final judgment of another crime Crime Against Person. Can his liability of physical
embraced in the same title of this Code. injuries be aggravated by recidivism?
(10) That the offender has been previously A: Yes. The law does not require service of
punished for an offense to which the law sentence. The law just states x x x has been
attaches an equal or greater penalty or previously convicted by final judgment. Meaning,
for two or more crimes to which it even if he was pardoned, the pardon may erase
attaches a lighter penalty the penalty, but it will not erase the fact of
conviction. The important thing is the conviction,
Q: What are the four types of criminal repetition in not the service of sentence.
the Penal Code? _ meaning , the offender is not
committing the crime for the first time.
A: In the RPC, there are four types of criminal REITERACION
repetition:
Take note that in paragraph 10, habituality
(i) recidivism need not embrace similarity of the previous
(ii) habituality or (reiteration), offense and present offense. Should not be,
(iii) habitual delinquency because if they are embraced in the same title,
(multi-recidivism) then it becomes recidivism.
(iv) quasi-recidivism
For example, a person commits or was
Recidivism and habitually are ordinary aggravating convicted before and punished for a Crime Against
circumstances which are found in Article 14. The Property for which he was sentenced to the
third one, habitual delinquency, is what is called penalty of reclusion temporal. Now, he is found
extraordinary aggravating circumstances. And the guilty of a Crime Against Person. So, it is not
last one, quasi-recidivism, is a special aggravating embraced in the same title of the Penal Code for
circumstance. which he is sentenced by the trial court prision
mayor. Reiteracion applies because he has been
previously punished for another offense for which
REINDINCIA the law attaches a higher penalty.

Q: Who is a recidivist? Q: Suppose the penalty for the first felony is


A: A recidivist is a person, who, while on trial for prision mayor, and the penalty for the new felony
one offense, has been previously convicted by final is also prision mayor?
judgment of another crime embraced within the A: Then reiteracion applies because the law says
same title of the Penal Code. So obviously, he is he has been punished for a crime to which the law
at least a second offender, and he must be found attaches an equal penalty. Either higher or same.
guilty for the second offense.
PROBLEM: Suppose a man, several years
He has a previous criminal record; he has ago, was found guilty of slight physical injuries -- a
a previous conviction for another felony. So, the light felony and he was sentenced to one day of
previous conviction is not of a special law, but for arresto menor. And then after a year, he was
the same felony. And what is important is that the found guilty of slight oral defamation. He was
felony which he previously committed, for which sentenced a penalty of one day imprisonment of
he was convicted, and the present felony for which arresto menor. And now, he is found guilty of
he is now found guilty , are embraced within the rape, and he is punished with the penalty of
same title of the Revised Penal Code. reclusion perpetua. If you look at his record, no
two crimes are embraced in the same title of the
66
Penal Code. The first one is slight physical injuries The liability of the killer only, or should price,
( Crimes Against Persons); slander (Crimes reward or promise be aggravating for both of us?
Against Honor), and Rape ( Crimes against A: IT is not only the one who receives the price,
Chastity). So, he is not a recidivist. but it also includes the giver.
QUESTION: The first offense is a light felony; the Now, in the book of Reyes, he cited some
second offense is also a light felony. As a matter old decisions which appear to be conflicting. The
of fact, he was only sentenced to one day of case of People vs. Parro (36 Phil. 923) and US vs.
arresto mayor. This time the felony (rape) is Maharaja (38 Phil.1), where the Supreme Court
punishable with reclusion perpetua. Is there said that the aggravating circumstance applies
reiteracion? ANSWER: Yes, because he has been both to the one giving the price or reward AND the
previously punished for two offense to which the person who receives the price or reward. But in
law attaches a lesser penalty. another case also cited in his book, the case of
People vs. Talledo (85 Phil.539), the implication
PROBLEM: Suppose a person was found guilty of was that it is only aggravating for the person who
the crime of homicide and was sentenced to a receives the reward or price. It will not affect the
penalty of reclusion temporal, but was pardoned giver because the law says xxx that the crime be
by the President. So, he did not serve any single committed in consideration x x. And the
day in jail. Later on, he was found guilty of implication is that "committed" refers to the one
robbery, another felony? And the penalty for committing it. Meaning, the principal by direct
homicide before was higher. QUESTION: Is there participation, not the mastermind.
reiteracion? ANSWER: NO. What is important in
reiteracion is he was previously punished, not However, the case of Talledo, has been
convicted. misinterpreted because the Supreme Court has
already corrected that in 1971. Whatever
statements that appear in the book of Reyes about
In recidivism, all that the law requires is a the
PREVIOUS FINAL JUDGMENT of conviction. In
reiteracion, the law requires that he has doubt, there is no more doubt as that has been
PREVIOUSLY BEEN PUNISHED, not merely settled. Paragraph 11 is already settled as applied
convicted. to both the participants and the inducer.

PEOPLE vs. ALINCASTRE


40 SCRA 391
(11) That the crime be committed in
consideration of a price, reward or
promise. The price, reward or promise is
aggravating for both not only the receiver but
What makes the crime aggravating is the also the giver. If a person is considered as
motivating power. The best example would be the morally depraved for committing a felony in
hired assassin. You hire somebody to kill for you. exchange of a material reward, then the
That guy has no grudge against the victim; he person who gave the offer to commit the
does not even know the victim. But because he is crime in exchange for a reward is also a
willing to commit a felony - that shows perversity depraved person.
on the part of the offender. Hired guns, hired
killers, guns for hire, mercenaries are best The general rule about aggravating circumstances
examples. The crime was committed in is that even if an aggravating circumstance is not
consideration of price, reward or promise. alleged in the complaint or information, but proven
during the trial, it should be appreciated. It is not
What is contemplated by the law here is that necessary to allege it. The important thing is that
there was a previous proposal and a previous it was established during the trial.
conspiracy. Because, how can you hire somebody
if he will not agree if there is no agreement? So, However, the rule does not seem to apply
they did not stop the conspiracy. In other words, to recidivism because, based on some decisions of
the crime was fully executed by one. We call the the Supreme Court, recidivism should be alleged in
one that hired him as principal by inducement, and the information. To appreciate recidivism, it is
the one that commits the crime is called principal necessary to allege it in the information. Absence
by direct participation under Article 17 of the RPC. of this allegation bars the trial court from allowing
of evidence regarding the matter. So, it should be
Q: If I hire someone to kill my enemy, whose properly alleged.
liability under paragraph 11 will be aggravated?
67
In Spanish, it is called premeditacion. Now,
(12) That the crime be committed by this is the exact opposite of the mitigating
means of inundation, fire, poison, circumstances that the crime was committed with
explosion, stranding of a vessel or passion or obfuscation. In passion or obfuscation,
intentional damage thereto, derailment the offender did not have sufficient time to reflect
of a locomotive, or by the use of any the commission of the crime, so it was more of
other artifice involving great waste and emotion than reason. It is the other way around
ruin. here. He has all the time to reflect; he has all the
time to reconsider, but still he proceeded. Despite
Now, what qualifies it as aggravating is the the careful deliberation, thinking, still proceeded to
manner, the ways and means of the crime. Do not commit the crime.
confuse this with paragraph 7. In paragraph 7, the
crime was committed on the occasion of a This is one of the hardest aggravating
conflagration, or fire, etc. so, the timing x x x ON circumstance to prove because it is not enough
THE OCCASION x x x. Here , the crime was that you prove that the accused committed the
committed BY USE OF x x x. However, this would crime, you must also prove that the accused
not apply if the use of fire is included in the already planned or was determined to commit the
definition of the crime. Like arson, since the crime, even before the date it was actually
means used is fire, fire can no longer be committed. You must have a previous history of
aggravating, being already considered as part of the party.
the elements of the crime.
Another example would be that the crime was And the last requisite is a matter of
committed by means of poison. When you kill computation. There must be sufficient time
somebody by poisoning him under Article 248, the between the determination to commit the crime
crime is murder. That is one of the qualifying and the day the crime was committed to show that
circumstance of murder. If properly alleged in the he has the time t reflect. Now, what is sufficient
information, in which case, the use of poison is no time is relative. Suppose, he planned to commit
loner aggravating. It is already part of the the crime one or two days before it can be, How
elements of the crime. about 15 minutes? The number of hours is
sufficient. The longer the time gap, the better,
However, if a person is charged only with the application- of this circumstance becomes
homicide, and in the course of the trial, it was clearer. The loner the time he has to reflect, the
established that he killed the victim by poisoning premeditation becomes more evident.
him What crime did he commit? Is it still homicide
under the Rules of Criminal Procedure because you
cannot convict a person for an offense higher than
the one being charged. So, the crime is homicide, Evident premeditation WILL NOT APPLY in error
aggravated by the fact that he committed it by in personam.
means of poison. But if it is alleged in the
information, it is called murder, qualified by the
use of poison under Article 248, not under Article PROBLEM: A planned to kill X and he has planned
14. to kill X for so long. He planned and he made
preparations to kill X. One day, he started to
Q: Suppose the husband killed his wife by implement it. He killed X but it turned out to be Y.
poisoning her. The use of poison was alleged in the He did not kill X because of error in personam. Of
information. Is the use of poison aggravating course, based on Article 4, he will not be
under paragraph 12? prosecuted for the death of X because he did not
A: Yes, because if the husband kills the wife, the kill X. He will now be prosecuted for the death of Y
crime is not murder, but PARRICIDE. And the and it was established that he has been planning
qualifying circumstance in parricide is not poison, to kill X for so long. QUESTION: is the killing of Y
but relationship. So, since the qualifying aggravated by evident premeditation? ANSWER:
circumstance is relationship, the use of poison No, there is none because he did not premeditate
becomes an aggravating circumstance under the death of Y. The evidence would show that he
Article 14(12). So, that's how you apply the premeditated the death of X. So, Y was not a part
circumstances in relation to Book II. of that premeditation.

However, that should not be confused with


(13) That the act be committed with the ruling that it is not necessary to premeditate
evident premeditation. for a specific victim. So, for example, where the
accused planned to be amok. He will kill every
person he meets. Is my liability aggravated by
68
evident premeditation? Yes. But I did not ponder.  When they pretended to be the
You did not ponder, but there is no error in co-passengers of the victim in
personam. Why? Because when I premeditate, I a public utility vehicle;
will kill the people I will meet. Whoever I meet is  They posed as customers to
part of my premeditation. There is no error. That buy cigarettes, or as being
is the phrase to whom that may concern. thirsty asking to drink a glass
Therefore, it is a meditated act. of water,etc.

In all those instances, the crime was


(14) That craft, fraud or disguise be aggravated with craft and fraud.
employed. DISGUISE

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.

In Spanish, this is aggravating circumstance


of ALEVOSIA. Now, treachery is defined as when PEOPLE vs. CAÑETE
the offender commits any of the crimes against 44 Phil. 478
persons, employing means, methods, or forms in
the execution thereof which tend directly and Facts: The accused assaulted the
specially to insure its execution, without risk to deceased with a knife and in the course of
himself arising from the defense which the the fight which ensued, inflicted a serious
offended party might make. Based on the cut on his thigh. Upon receiving the
definition, treachery applies only in Crimes Against wound, the deceased turned around and
Persons, like killing somebody, or physical injuries. fled, and was immediately pursued by the
There is no such thing as treachery in Crimes accused. After going a short distance, the
Against Property. deceased fell to the ground face
downwards; and before he could recover
70
his equipoise and resume his fight, the treated as a qualifying circumstance which calls for
accused ran up and delivered a fatal the imposition of the supreme penalty of death.
thrust with his knife in the back of the
deceased.
(18) That the crime be committed after an
Issue: Whether treachery would apply in unlawful
that case. entry. There is an unlawful entry when an
entrance is effected by a way not intended
Held: No, there is none. The first element for the purpose.
is there. When he was stabbed from
behind in that position, he could not PROBLEM: I wan to kill you inside your house.
defend himself. But the mode of attack And I entered your house through the window.
was not previously adopted. In other Then I killed you inside your house. QUESTION:
words, when they attacked each other What are aggravating circumstances?
frontally - the accused could not have ANSWER: There are two:
conceived that in the course of the fight, 1. dwelling; and
the other one will run away, and then 2. unlawful entry
would fall down. He never knew how it
would end. So, the second element is Q: Now, suppose I enter your house through the
missing. door, commit a crime against you and then jump
out to the window. Is there an aggravating
Q: Is treachery applicable in crimes committed circumstance?
through error in personam? A: There is none. The law talks of entry. It does
not talk of exit. So, the law is only concerned with
A: Yes, because treachery refers to the mode of the manner of entry, no the manner of exit.
attack, and the victim has no chance to defend
himself. Whether you attack the right victim or by Take note, however, that the aggravating
mistake, you attack the wrong victim - the effect circumstance do not apply when it is inherent or
is the same. The victim did not have the chance part of the commission of the crime. Like for
to defend himself, that is why it will prejudice him. example, robbery. Robbery in an inhabited house.
Whether it is the right victim or a wrong victim, One of the ways by which a robbery is committed
one thing is clear: the wrong victim did not have is when you enter the building through an opening
the chance to defend himself. So, treachery will not intended for entrance or entry.
apply even in error in personam.
The Spanish term for this is
ESCALAMIENTO.
(17) That means is employed or
circumstances brought about which add
ignominy to the natural effect of the act. (19) That as a means to the commission of
the crime a wall, roof, floor, door or
Ignominia is a circumstance pertaining to the window be
moral order which adds disgrace to the natural broken.
effects of the crime. Another way of saying it, you
are adding insult to injury. The commission of the This is similar to the previous one. Only,
crime was not only criminal, the manner of its in paragraph 18, nothing is broken. Let's say you
commission has made it disgraceful. It was entered through the window. But the windows are
applied in a case where the offenders, before closed. You destroyed it, broke some panes, and
killing the victim, compelled the victim to kiss the you entered. That is already aggravating! And not
toes of their feet. only the windows. This applies also to doors or
floors. To gain entrance to a building, you
It was applied to a case where a married destroyed something. There is the use of force.
woman was raped by the accused in the presence That is why, some text writers called this as the
of her husband. So, the crime was aggravated by aggravating circumstance of FORCIBLE ENTRY.
ignominy. What is aggravating was the manner Unlawful entry aggravated by forcible entry.
the crime was committed.
But do not confuse this with the special
Mind you, under RA 7659, if rape is civil action of forcible entry, where you enter a
consummated, for example, in the presence of the piece of land. Here it is only an aggravating
husband, that is not only considered now, if circumstance.
properly alleged in the information, as an
aggravating circumstance under Article 14. It is
71
(20) That the crime be committed with the cannot say that the killing was accomplished by
aid of persons means of a motor vehicle. No, you did not use the
under 15 years old or by means of a motor motor vehicle to kill him. You use the vehicle to
vehicle, motorized watercraft, airships or escape from the scene of the crime. But since it
other similar means. would facilitate the escape of the offender, then
there is no question - it would not be applicable.
 That the crime be committed with the aid of
persons under 15 years old On the other hand, the Supreme Court
refused to apply this to a case of estafa. The
PROBLEM: Now, some people ask minors to accused swindled and he rode on a car. In other
commit the crime - like theft. They use minors to words, how can a car be used as a means to
steal, or they ask them to enter a house through a swindle? Swindling is by deceit or by the use of
small opening. Then, you direct them to open the fraud, abuse of confidence, it will not apply.
door so that the rest will come in. QUESTION: Is Swindling is not committed by means of a motor
the minor liable? ANSWER: It depends. If the vehicle.
minor is 9 or below, he is exempt because he
might think it's just a game, just part of playing, If Or other means similar to motor vehicle or
the minor is 9 to 15, he may or may not be liable, motorized watercraft. So, for example, I will
depending on whether or not there is discernment. abduct a girl – because in abduction, you have to
But even if there is discernment, the minors is take her away – you have to take her somewhere
liable but his liability is mitigated. else. So, if I abduct the girl, and then I force her
to ride a bicycle, that is not a motorized vehicle.
But definitely, the adult person who is
enlisting the minor's help is aggravated because
the use of minors to help the offender to commit 21 That the wrong done in the commission
the crime is an aggravating circumstance through of the crime be deliberately augmented
and through. by causing other wrong not necessary
for its commission.
 by means of a motor vehicle, motorized
watercraft, airships or other similar means. Briefly, it is called the aggravating
circumstances of cruelty. In Spanish, this is the
It has been applied, for example, when the aggravating circumstance of ENSAÑAMIENTO.
offender abducted a girl. Forcible abduction. Or
when the offender kidnapped a person, brought Q: Distinguish ensañamiento ( cruelty from
him to the car and somewhere. This is very unlawful entry.
common. You can abduct a girl without the use of A: Cruelty only applies to Crimes Against Persons.
a motor vehicle. But chances are, you will be It cannot be appreciated in other crimes. It
caught. The best way to do it to succeed in the applies only when the suffering of the victim was
kidnapping or the abduction of a victim is the use augmented. Meaning, there was no necessity for
of a motor vehicle. the result. You just prolonged his suffering.

Q: Now, suppose the offender did not commit Example:


abduction or kidnapping. Suppose, he committed
robbery - with accomplices, they rob a bank, and  The victim was made to suffer unnecessary
after robbing, they escape form the scene through pain before he was killed.
the use of a motor vehicle. Is that aggravating ? Is  Before killing the baby, the offender burned
the crime of robbery aggravated? the baby little by little with a cigarette.
A: If you read the law, the language seems that  Where the offender, before killing the victim,
the use of motor vehicle is not aggravating in that pulled out his pointed key and used it uto
crime. The law says x x x by means of x x x . remove the eyes of the victim.
Robbery is committed by taking property. So,
when you run towards the motor vehicle, the Q: How do you distinguish ensañamiento from
robbery is finished. It is already consummated. ignominy?
So, the vehicle is used, not as a means to commit A: In ignominy, the victim suffered morally. There
the crime of robbery, but as a means of escape is moral suffering, there is insult addd to injury.
from the scene of the crime. The crime of robbery In ensañamiento, the suffering of the victim is
with the use of motor vehicle will apply. physical.

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.

Q: How do we then classify aggravating CHAPTER 5


circumstances? ALTERNATIVE CIRCUMSTANCES
A: There are two types:
(i) the ORDINARY AGGRAVATING ARTICLE 15. Their concept.- Alternative
under Article 14, and circumstances are those which must be taken into
(ii) the QUALIFYING under Book II, consideration as aggravating or mitigating
Article 248. according to the nature and effects of the crime
and the other conditions attending its commission.
Q: What are the distinctions between the two? They are the relationship, intoxication and the
A: There are three main distinctions. degree of instruction and education of the
ORDINARY QUALIFYING offender. The alternative circumstance of
AGGRAVATING CIRCUMSTANCE relationship shall be taken into consideration as a
Has the effect of mitigating circumstance when the offender has
maximizing the penalty Does not only affect the committed a felony in a state of intoxication, if the
for that felony. The penalty. It charges the same is not habitual or subsequent to the plan to
commit said felony; but when the intoxication is
penalty should be in the nature of the crime.
maximum period. Ordinarily, when you kill habitual or intentional, it shall be considered as an
somebody, it is only aggravating circumstance.
homicide. But if it was
qualified, for example, Q: Why are the circumstances called alternative?
by treachery, the crime A: Because they can be aggravating or mitigating.
is no loner homicide, They are “double-bladed”. They can work in your
but murder. favor, or against you. They can be aggravating or
has the effect of Can never be offset by mitigating, depending upon the nature of the
maximizing the penalty a mitigating crime or upon the other conditions attending the
for that felony. The circumstance. So, if a commission of the crime. So, you can have
penalty should be in the person is accused of nature, effect and other conditions of the
maximum period. murder, qualified by commission of the crime.
treachery, and then
upon arraignment, he There are three alternative circumstances:
pleaded guilty, and then  relationship
upon arraignment, he  intoxication, and
pleaded guilty, we do  degree of instruction and
not say that the plea of education
guilty, which is
mitigating, has canceled RELATIONSHIP
the treachery and that
therefore, the crime The offender and the offended party are
should be homicide. relatives. That is the first thing to be
No, it shall remain as remembered. The relationship must be among
murder, qualified by those mentioned in Article 15. Practically, they
treachery with the are the same relatives mentioned in Article 11 and
mitigating circumstance Article 13, minus relatives by consanguinity within
of plea of guilty. the fourth civil degree.
73
A: There is no exemption. However, by analogy, it
The Supreme Court said that the is not exempting under Article 332, we apply
relationship between ascendants and descendants Article 15. It could be a mitigating circumstance.
include the relationship between the adopting
parents and the adopted children. It is relative by Suppose, the son, at the point of a gun,
analogy, step-parents and step-children. divested his father of his wallet. That is not
covered by Article 332. That is not theft, but
Q: Suppose I commit a crime against my relative, robbery. By analogy, it belongs to Article 15,
is it mitigating or aggravating? since it is a Crime Against Property, it will be
A: It depends on the nature of the crime. mitigating circumstance. That’s the connection
between the two, as to the nature of the crime.
Q: So, what are the rules?
A:  Crimes against chastity: Relationship could be
 Crimes Against Property- Relationship a qualifying circumstance.
could even be exempting. Then, it could be
mitigating. For example, under the Heinous Crimes
Law, if an ascendant rapes a descendant and it is
Examples: Robbery, Theft, Estafa, alleged in the information, it is not merely
Malicious Mischief. aggravating. It can call for a mandatory penalty of
death.
So, I commit any of the above crimes
against my relatives. What is the effect? It could Or if an ascendant seduces a descendant,
be exempting under Article 332. If it is not covered for example, for a brother to seduce his sister
by Article 332, then it is covered by Article 15. -- the relationship is not only aggravating, it
becomes a qualified circumstance which will
ARTICLE 332, RPC. Persons exempt from criminal create the crime of qualified seduction.
liability. – No criminal, but only civil liability, However, if it is not a qualifying circumstance
shall result from the commission of the crime in Crimes Against Chastity, like for example,
of theft, swindling or malicious mischief when a brother rapes his sister ( that is not
committed or cause mutually by the covered by the Heinous Crime Law), then by
following persons: analogy, it becomes aggravating under Article
15.
1.) Spouses, ascendants and
descendants,or relatives by affinity
So that is how we look at the law.
in the same line;
If a special law or rule covers it, that rule will
2.) The widowed spouse with respect
apply. If not, then we apply Article 15.
to the property which belonged to
the deceased spouse before the
If relationship is already inherent
same shall have passed into the
in the crime – that relationship is part of the
possession of another; and
element – then Article 15 will NOT apply.
3.) Brothers , sisters and brothers-in-
Example: Parricide, Adultery, Concubinage.
law and sisters-in-law, if living
together.
The offender and the offended
The exemption established by this article
party are spouses. But outside of adultery or
shall not be applicable to strangers
concubinage, there is another crime where
participating in the commission of the crime.
relationship is inherent, that is qualified
seduction through abuse of confidence, when
It is an exempting circumstance. For
an ascendant seduces a descendant, or a
example, the wife steals from the husband. There
brother seduces a sister.
will be no criminal liability. In other words, you do
not file a case against your wife. Or, a brother
Q: But in other crimes like rape or acts of
swindles another brother. Or, the brother will
lasciviousness, what is the effect of the
destroy the things of his sisters. There is civil
relationship between the offender and the
liability, but NO CRIMINAL liability if the crime of
offended party?
estafa, theft of malicious mischief committed by
A: It is always AGGRAVATING. It will always
the persons enumerated in Article 332. So, that is
aggravate the felony of the accused.
an exempting circumstance by reason of public
policy. That is not even mitigating. However, the
Q; Now, why is it that in crimes against Property,
exemption is limited only to theft, estafa and
the relationship is mitigating and not exempting.
malicious mischief.
But in Crimes Against Chastity, is it aggravating?
Q: Suppose, the crime is robbery?
A: Because of the Nature of the Crime.
74
Q: Now, suppose the victim is of a lower level,
It is not shocking to hear a wife stealing from like injuring your son or the father-in-law
her husband, or a brother swindling his brother. committing physical injuries on the son-in-law,
That is not very shocking to the society. But it is what is the effect?
very shocking to hear of an ascendant raping his A: The effect is the same. Relationship is
own descendant. In other words, it goes against aggravating, except if the felony is light, like
our own culture. It is shocking to the senses. slight physical injuries, then relationship is
mitigating.
Q: Now, how about in Crimes Against Persons?
A: Relationship could even be a qualifying
circumstance. INTOXICATION

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

Q: What do you mean by “ habitual”?


A: It means a confirmed habit, like he is drunk
In Crime Against Persons, assuming it is not everyday. It means that drinking has already
parricide, relationship is always aggravating if the become part of his system, his way of life – habit.
victim is of a higher level.
Q: Now, what is the presumption?
A: The presumption is that it is not habitual,
Killing your father-in-law, or mauling your that it is mitigating. But, if it is habitual, it is
father, that is not parricide. But since the victim aggravating.
is of a higher level, relationship is aggravating.
Relationship is also aggravating when the relative The rule that is mitigating is because
is of an equal level. Killing your brother, sister, it analogous to Article 13(9), the illness of the
brother-in-law, or sister-in-law. offender which will impair his will-power.

ARTICLE 13(9), RPC. Mitigating Circumstances. –


Such illness of the offender as would
75
diminish the exercise of the will-power of is qualified? No more because even the poorest
the offender without however depriving him person has sometimes managed to reach at least
of consciousness of his acts. Grade 1 or Grade 2 only.

The will-power is impaired by the Then, there was somebody who


effects of the alcohol. committed a crime. And really, he was a complete
illiterate. He was a member of a cultural minority
Q: Why is it aggravating when habitual?
group and has not gone to school. The SC said
A: It is because drunkenness or alcohol lessens that it will not apply because the way he
the person’s resistance to criminality. committed the crime, it seems that he has natural
talent. So, what is contemplated by the law is not
So, if a person is always drunk, he always only education but the innate, natural talent.
invites danger. He endangers his position. He
puts himself in a situation in which he is easily
tempted to commit a crime. So, it cannot be
Then in one case, robbery and theft,
appreciated in his favor.
committed by an illiterate. SC said that it is not
There are some who, subsequent to a plan to aggravating. You don’t have to go to school in
commit a crime. Embolden themselves by order to know that to steal or kill is wrong because
drinking alcohol. That’s aggravating. that is part of your conscience. It is against the
natural law and the person is supposed to know
There was a case recently decided by the that without going to school. So, it is not
Supreme Court regarding intoxication. It is in the mitigating.
case of People vs. Capoquian (236 SCRA
655) , where a merry-making turned into a
tragedy. There were friends, they were joking However, in the case of People vs.
around each other. Then this ended up into a Punong, the offender killed an old woman in the
stabbing incident. town because he believed that she was a witch.
That she was supposed to be responsible for the
Justice Florenz Regalado gave a brief epidemic in town. The SC said, if you believe in
comment about the effects of intoxication and witchcraft, you are ignorant, hence, mitigating.
expressed the philosophy behind Article 15.
“Moderate inhibition of liquor can be medicinal, but In the case of People vs.
excessive intake can be hazardous. This case Lacsamana : He was accused of treason. He
illustrates the deplorable past-time of drinking betrayed his country during the war and he was
bout in this country. Starting with conviviality but completely illiterate. SC said, it is NOT mitigating.
ending in animosity. The tragedy is that of such a Love of country and patriotism is in the heart of
diversion, sometimes resorts in one terminated every person. You don’t have to go to school in
existence consigned to the cemetery, and the order to know that.
other suspended life lodged in the penitentiary.”
That is how he described the effect of intoxication. Then in the case of People vs.
Marasigan, which is similar to the Lacsamana
case. He committed treason . The SC said, how
DEGREE OF INSTRUCTION AND EDUCATION can the offender know patriotism if he has not
gone to school?

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:

In every felony, there are generally two  Principals


(2) parties involved:  Accomplices, and
 Accessories
1. The offended party – the
victim; and In Spanish, they call the principals
2. The person who commits the “autores”. The accomplices and
felony. accessories are
called “encubridores”. The “autores” and the
Now, the person who commits the felony “encubridores” are the principal and minor
must be natural person. So, only human characters in the list of characters.
beings are contemplated by law. That is obvious
because in every felony, there is an act or There is an analogy about movies, the
omission. principal or
main actor is the lead, the story revolves around
Act means a physical action, a physical them. Now, what about the accomplice? They are
movement. A corporation has no physical the supporting cast, the minor characters. How
existence. It is only a person under the law. Also, about the accessories? These are the “extras”,
for a person to be liable for a felony, he must they are seen only in a scene or two.
have:
Article 16. Who are criminally liable? – The
 Freedom following are criminally liable for grave and less
 Intelligence and grave felonies:
 Intent 1. Principals;
2. Accomplices;
These are faculties belonging to a human 3. Accessories
being. A corporation can be held liable for The following are criminally liable for light
committing a criminal act, but generally the one felonies:
who will go to jail are the officers because the 1. Principals
corporation can only act through its officers. 2. Accomplices

However, the victim of a corporation can Article 16 immediately gives us the


be a juridical person. You can swindle another principle. For
company and you commit estafa by running away grave and less grave felonies, all of them are
with corporate funds. liable. But for light felonies, only the principals
and accomplices are liable. So, conclusion:
So, a corporation cannot be an offender,
but it can be an offended party. Of course, the
77
accessories are exempt from criminal liability 2. Those who directly force or induce others to
in light felonies. commit it; Those who cooperate in the
commission of the offense by another act
In effect, Article 16 is an exempting without which it would not have been
circumstance based on public policy. The accomplished.
reason
behind this is similar to that in Art. 7 where the While the law divides persons criminally liable
general rule also is : light felonies are only into 3
punishable when they are consummated.
classes, Article 17, further provides or
Q: Why? classifies principals into 3 types:
A: The role of an accessory is very minor. 1.) Those who take a direct part in the
Even in grave or less grave felonies, the execution of the act, known briefly as
penalty given to an accessory is very light, PRINCIPALS BY DIRECT
very much lower than the principal. How PARTICIPATION;
much are more if the felony is light? If the 2.) Those who directly force or induce others
felony is light, even the penalty for the to commit it, who are briefly called
principal is also light. So what would be the PRINCIPALS BY INDUCEMENT OR
penalty for the accessory? Very, very INDUCTION;
negligible. So, there is no more liability. It 3.) Those who cooperate in the commission of
creates an exempting circumstances under the crime by another act without which it
Article 16. would not have been accomplished :
PRINCIPALS BY INDISPENSABLE
So with this, you will notice that there are COOPERATION
certain principles to remember about light felonies.
Light felonies are defined in Art.9. There are 2 When a felony is committed by only one
principles which create exempting circumstances: person and you are asked what you think is his
one is found in Art.7 and the other in Art. 16. role. Then without thinking you say that he is a
principal by direct participation. He cannot be an
accomplice. If he is an accomplice, who is the
EXEMPTING CIRCUMSTANCES principal? There is no accomplice if there is no
principal. So, necessarily, if he is only one, he
1.) Art. 7. When light felonies are must be the principal, and necessarily, he must be
punishable—Light felonies are a principal by direct participation.
punishable only when they have been
consummated with the exception of Now, there would be no principal by
those committed against persons or inducement if there is no principal by direct
property. participation. There could be no principal by
2.) Art. 16. Who are criminally liable. – indispensable cooperation, without a principal by
The following are criminally liable for direct participation. That’s why when you say that
grave or less grave felonies: there is a crime committed by one person without
1. Principals looking you can say that he is a principal by direct
2. Accomplices participation. There could be no other role.
3. Accessories
The following are criminally liable for The problem will arise if there are two or
light felonies: more people involved in the commission of the
1. Principals felony, because it is possible that one is the
2. Accomplices principal, another one is an accomplice, and the
third one is an accessory. Or, principal and
Article 16 says: Only accessories are accessory only, without accomplice.
exempt from criminal liability in light
felonies Or, it is possible that all of them are principals.
regardless of whatever crime that is a light felony, What type of principal? One of them by direct
whether it is against persons or property. participation, another one by inducement, and the
other one by indispensable cooperation. Or,
principal by direct participation and inducement,
without the third. Or, principals by direct
Article 17. Principals. – The following are participation and indispensable cooperation,
considered principals: without the second type. Or, it is still possible that
1. Those who take a direct part in the execution all of them are co-principals by direct participation.
of the act;
78
So, it is possible for a felony to be committed independently, and by coincidence, they entered
by 10 people? YES, they are classifies as the bank together.
principals by direct participation. Therefore, that
is now our problem. And then by instinct A, disarmed the
guard, and B also, by instinct, herded everybody
Q: When do you classify? 2 or more persons as into a corner. C& D without knowing each other
co-principals by direct participation? (because they didn’t know each other), got all the
A: 2 or more persons committing a felony are money and then without any agreement, they all
classified as co-principals by direct participation withdrew from the bank. And accidentally, there
when 2 requisites are present: was somebody waiting (F), then they took a ride.
Then the said to each other, “ What are we? Who
1.) That these people participate in the criminal are you?” (joke,joke,joke!)
resolution
The human mind will be taxed to its limits.
That is tantamount to saying that you were “in That is the essence of criminal resolution because
conspiracy” with each other. There must be a direct proof of conspiracy is very hard and the best
conspiracy between them – a conspiracy which is proof of it is by action.
defined in Art. 8 as an agreement between 2 or
more persons. They agreed. Q: Now, what is the importance of this element of
conspiracy?
So you say that you will present A: The importance of the application of this rule
somebody who was listening when they were that when there is conspiracy, the act of one is the
agreeing. That’s difficult! Chances are, when act of all. Then all of them are equally liable for
two or more persons agree, there are no the crime. All of them will get the same penalty
other persons present then. So you can for robbery. So, they have collective criminal
hardly prove the agreement by direct liability.
evidence. But, the agreement can be proven
indirectly. Why? The agreement is here (in And therefore in that particular sense, A &
the head); it is a meeting of the minds. When B cannot say, “ We are not guilty of robbery
there is a meeting of the minds between two because in robbery, you commit the crime by
persons, there is an agreement. taking the property. We did not take anything!” A
will say, “ What I did was to disarm the security
guard.” B says, “ me too, all I did was to herd off
Q: And what principle to apply? the people. It was C and D who took the money.
A: The best evidence of what is in the minds is Then they shall be liable for robbery because I did
through one’s action. So, the principle has not take anything.” Then E will say, “ Neither will
evolved: I be liable, because I did not even enter the bank.”
In conspiracy, the act of one is the act of all.
When 2 or more persons commit a crime
together, each performing an act in harmony with Or, in one case, 4 or 5 people conspired to
each other, and everything is veered towards the kill the victim. So, they cornered him inside the
same criminal objective, then their action betrays restaurant. So they started to assault the victim
the conspiracy. The conspiracy is proven by their and one of them held the victim. The 4th one
own actions. That is the principle to remember. stabbed him. According to the third member, “ I
am not liable, it was the 4th guy who stabbed the
Example: 3 or more people (A, B, C and D) victim. My job was to hold the victim’s hands. (
simultaneously enter a bank. They are armed. A how sweet!) Then the other one says, “ Neither
will disarm the security guard. B will herd all the will I be liable , I was just at the door. My role is
people in the bank. C and D will start scooping the to prevent the victim from running away.” No, it is
money from the teller’s booth and vault. Then all as if all of you stabbed him. The act of one is the
of them will simultaneously withdraw from the act of all. That’s the importance of conspiracy.
bank. Then the vehicle outside was driven by E;
they ride in the vehicle. Now, I noticed last year, there was a
problem in the BAR and that principle was applied.
Based on what you have witnessed, do you Actually, I already mention this problem earlier.
think there is an agreement among these 5 This is the case of Mambolo. At about 9:30 P.M.,
people? Is there an agreement among them to while Dino and Raffy were walking ( hand in hand,
commit robbery? Or can we say that, “ No, that uuy!) along Padre Faura St. in Manila, Johnny hit
could have been merely a coincidence”. That it is them with a rock, injuring Dino, then Bobby
possible that A, B, C & D were acting stabbed Dino. But suddenly Jerry, Vic,Vaness and
Ken (F4!) surrounded Dino, then Jerry stabbed
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Dino. Vic, Vanness and Ken kept on hitting Dino the crime, one of them went beyond the
and Raffy with rocks. As a result, Dino died. agreement and committed another crime not
Johnny, Jerry, Vic, Vanness and Ken were charged contemplated in the conspiracy? Are his
with Homicide. companion also liable for the crime? Are all co-
conspirators liable for the crime committed by
Q: Is there conspiracy in this case? It is clear that their companion which was not within the scene of
they acted in unison extending, towards the their conspiracy.
culmination of the same criminal resolution. So EXAMPLE: Article 296. Robbery committed by a
what is the conclusion? Band. Paragraph 2- Any member of a band who is
A: There is conspiracy because their action betrays present at the commission of a robbery by the
their agreement. band, shall be punished as principal of any of the
assaults committed by the band, unless it be
There is another problem: Ben, a shown that he attempted to prevent the same.
widower, driven by bestial desire, poked a gun at
his daughter, forcibly undressed her and tied her So, at least 4 persons conspired to commit
legs to the bed. (bad!) He also burned her face robbery. So, they entered the house of A. At the
with a lighted cigarette and like madman, laughed point of a gun, they divested A of his belongings.
while he was raping her. And then, one of them attacked the victim and
killed him. This is robbery with homicide.
Q: What aggravating circumstances are present in
this case? Q: Who is liable for the Robbery with Homicide?
A: 1.) Alternative circumstances of Others would say that, only the one who attacked
relationship and killed A is liable.
2.) Ignominy A: All of them are liable because according to
Article 296 in Robbery by a Band, all of them are
Q: Is it possible that 2 or more persons commit a liable for any assault committed by their
crime and appear to be acting in a conspiracy but companions unless you can show that you tried to
in reality, they are acting independently of each prevent it. So if you don’t try to prevent it, you
other? Meaning, just a coincidence that the are also liable. In a conspiracy, the act of one is
incident happened. Is that possible? the act of all.
A: Yes, because when we say that when 2 or more
persons act together towards the commission of But Article 296 applies to Robbery with
the crime, there is a presumption of conspiracy Homicide and committed by a band. So, if there
because it is very hard to say that there is none. are only three persons, this will not apply.
But suppose it is proven really that they know
each other? Q: Suppose there are only 2 or 3 robbers and they
conspired to commit robbery only and then one of
PROBLEM: A has an enemy, X. B, another person them killed the victim. Will all of them be liable for
is also the enemy of X. One day, A decided to the assault, or only him?
maul X. B, on the other hand, hass already looked A: This time we can apply another principle: That
for X to kill him. And both of them, acting the conspirators are only liable for the crime
independently, started looking for X. A saw X, contemplated in the conspiracy if there is no direct
immediately approached him and started to hit provision on that.
him. At that precise moment, B arrived. During
the fray, B stabbed X. X died. QUESTION: Is there EXAMPLE: X and Y conspired to kill A>
conspiracy? ANSWER: Based on the facts, there Then, X killed B. Now, who is liable for the death
is no conspiracy. of B? The conspirators conspired to kill A, they
never conspired to kill B. X is the only one liable.
Since A’s intention is to inflict physical QUESTION: In another case, the offenders
injuries—and he merely inflicted fist blows upon conspired to injure A. So, all of them mauled A.
the victim, is only liable as a principal by direct But one of the conspirators pulled out a knife and
participation for Physical injuries against the killed A. Who is liable for the Homicide?
victim. On the other hand, who stabbed the victim ANSWER: All of them are liable because in a
is liable as principal by direct participation for the conspiracy the act of one is the act of all.
crime of Homicide. So in effect, there are 2
separate crimes, 2 criminals acting independently. So, there are two principles here that you
That is called individual liability, as distinguished have to balance:
from collective liability. 1.) In a conspiracy the act of one is the
act of all.
Q: Now, what happen if 2 or more persons
conspire to commit a crime, but while committing
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2.) The co-conspirators are not liable for brothers were there at the meeting place,
any act of another conspirator not and they agreed to proceed with the
contemplated in the conspiracy. crime. So, they went with the plan, minus
the other brother.
Q: Now, when do you apply one and when do you
apply the other? How come that in that case
Held: SC said that the one who did not
where 5 people conspired to injure the victim, the
show up is
SC said all of them are implicated. But in another
not liable. The second element is missing.
case, the conspirators conspired to kill A but one
He did not appear at the scene of the
of them killed B, the SC said only the killer of B is
crime. Mere conspiracy is not punishable.
liable.
A:When you try to examine, there really is a
difference. In the first example, the contemplated
victim is A, and the one who was killed was A. So, Q: Was the first element present?
the same victim. Moreover, in Crimes against A: Yes, because evidence shows that he
Persons, when the victim is killed, the physical participated in the planning of the crime. The
injuries are absorbed. The conspirators are not second element is missing. So he could not be a
separately liable. The physical injuries are co-principal because the SC said if he participated
absorbed in the killing. There is still one crime. in the planning only, he is guilty of a conspiracy to
commit a felony.
But in the second example, there were
really 2 crimes, because there were 2 victims. ARTICLE 8,RPC.Conspiracy and Proposal to
The killing of A is a separate crime from the killing commit a Felony. – Conspiracy and proposal to
of B so you do not say that the killing of B is commit felony are punishable only in the cases in
absorbed in the killing of A. Unlike in the first which the law specially provides a penalty
instance, the victim to be killed is A and the therefore.
person killed is A. And the physical injuries are A conspiracy exists when two or more
absorbed in the killing of A. persons come to an agreement concerning the
commission of a felony and decide to commit it.
But in the other case, the intended victim
is killed, another person is also killed. So, there There is proposal when the person who
are 2 crimes. So you cannot say that the death of has decided to commit a felony proposes its
B is absorbed in the killing of A, because there is execution to some other person or persons.
an entirely different victim.

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.
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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.

Let us now review the second type of Q: How do we define proposal?


Principal: Principal by inducement. Those who A: There is proposal when a person who has
directly force and induce others to commit a crime. decided to commit a felony proposes its execution.
Q: How do you fall under this classification? Decided. Not a joke.
A: There are two ways:
1.) You directly force the principal by Let us illustrate. There was a case where
direct participation to commit the a woman claimed that she could no longer bear
crime; or her husband. My husband is like this, like that,
2.) You directly induce him to commit a etc. What shall I do? The friend in a joking
crime. manner said: “Whew, it’s simple, kill your
husband?” So the woman killed her husband. She
FORCE OR INDUCE implicated her friend. When she mad the
proposal, there was no intention to kill. It would
How do you force? By the use of have been an ill advice. The effect was fatal. That
irresistible force or by forcing under uncontrollable is not the type of inducement here.
fear. That is how you do it. However, if you do
that, the principal by direct participation has a Or in one case, somebody needs money.
very good defense—Art. 12. That there was no Then someone advised him and said:” It’s simple,
voluntariness. That there was no freedom. That just hold-up a bank.” He indeed held-up a bank,
leaves you alone liable. but unfortunately, he was caught. He implicate
the other. The statement was not made with the
But the normal way of falling under this intention of procuring the commission of the
classification is when you are induced. When you crime.
persuade the other party to commit the crime and
he agreed to do it, what is now the effect? There Second: Without such inducement, the crime
is a conspiracy again. So principals by direct would not have been committed. The inducement
participator is also in conspiracy with the principal was the only reason for the commission of the
by inducement. So what binds them together will crime. Without it the principal by direct
be conspiracy. participation would not have committed the crime.
Example: Guns-for–hire. You are told to
Q: How do you persuade, how do you induce kill the victim. He said: “Give me a picture in
another or convince him to commit the crime? order to identify him.” He gave you because you
A: There are many ways: By words of are being paid. Without the payment, he will not
inducement, by promises of price, or reward. So ask you. Nothing personal. Everything is
that is one way. And also it becomes an business.. That’s how assassins worked. The
aggravating circumstance—price, reward or assassin would say: “ I will kill people for money
promise. but you, you are my friend. I kill you for nothing.
Normally, I do not kill people if it is not for
To be classified as principal by money. But since you are my friend, I will kill you
inducement, 2 requisites must be present: for nothing. Just to show that it is for free.
 That the principal by
inducement mad the inducement with
the intention of procuring the The words of inducement must be offered PRIOR
commission of the crime (In re: Art. to the commission of the crime. How can you say
8); and that the inducement was the determining cause
 That the inducement was when it is made after the crime? For example,
the determining cause of the somebody approaches you and says: ‘I would like
commission of the crime without which to tell you something. I killed so and so.” You
the crime could not have been killed? Well, congratulations! That’s a good thing.”
I’m not a principal by inducement. The crime has
committed.
already been committed. I only praised you but
First: That the inducement was made with the you do not say that my word is the determining
intention of procuring... meaning the inducer is factor.
serious. He was really interested in committing the
crime. He was not joking. Because the concept of
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And another principle is: The principal by direct But I would also be a principal by indispensable
participation had no reason to commit the crime cooperation.
on his own. That’s why your inducement is the
only determining factor. Q: What’s the difference?
A: The distinction is only on what the cooperation
is all about.
PEOPLE vs. OMINE
61 Phil. 611 Q: In what way do I cooperate?
A: If I cooperate in the execution of the crime, I
Facts: There was a quarrel between A and am principal by direct participation. But if I
B. A is the principal by direct participation . B cooperated by another act without which a crime
is the victim. A was approaching B one night. would not have been committed am a principal by
A was holding a knife and he was approaching indispensable cooperation. So, the cooperation in
B. At that moment, X arrived. X shouted to this type of principal is not in the execution of the
A: “Yes kill him, stab him!”. A killed B with the crime but another act, an act other than the
knife. X who uttered the shouts before the execution of the crime without which the crime
stabbing was impleaded as a principal by would not have been committed.
inducement. Bu the court acquitted him.
Example: A person cooperates with the
Held: Do not tell me that without the principal by another act, other than the execution
shouting of X, A would not have stabbed B. A of the crime. And please take note that what
was really going to stab B. There as a binds a principal by direct participation with a
personal reason on the part of A. So, do not principal by indispensable cooperation is that there
say that if it were not for the shouting of X, A is again an agreement—conspiracy. Hence, what
would not stab B. It is just an additional. In is common between these people is criminal
other words, just a firewood to keep the fire conspiracy. They are in conspiracy. That is why
burning but actual , although without the we apply the rule on conspiracy—the act of one is
shout there was already a reason for the the act of all. They are in conspiracy with each
principal to do that. other.

Q: Principal by inducement is closely related to a


person making a proposal to commit a felony PEOPLE vs. LIMBUANGKO
under Article 8. What are the distinctions? 14 Phil. 184
A: Principal by inducement, there must be a
principal by direct participation. Even if I keep on Facts: The principal by direct
inducing you, but you will not commit a crime, participation got hold of some blank checks
there is still no principal by inducement. But in of somebody. So he planned to forge or
certain crimes, like treason, rebellion, coup d’etat, counterfeit the signature of the drawer and
the mere proposal to commit a felony is encash in the bank the check. But he
punishableto commit a felony is punishableother know he will not succeed because the bank
party will actually commit it. And you do not call a can easily detect that his signature is not
person making the proposal a principal by really that of the drawer. There is an
inducement. He is classified as principal by direct employee in the bank whose job is
participation. This is the distinction between the specifically to compare the specimen. So
two. what did he do? He befriended the
employee in the bank, the signature
verifier. He said to him to cooperate. He
THE THIRD TYPE OF PRINCIPAL succeeded in encashing the check.

Those who cooperate in the execution of


Held: Can we prosecute him for
the offense by another act which the crime would
estafa through falsification of commercial
not have been committed. Briefly, it is called,
document, the complex crime of estafa?
Principal by Indispensable Cooperation.
Who is the principal by direct participation?
The one who forged. He was the one who
Sometimes, there is a confusion on
counterfeited the signature of the drawer.
whether a principal is by direct participation or by
He was the one who encashed it. So he
indispensable cooperation. Because how do you
executed the crime. How about the
become a principal by direct participation with
signature verifier? He did not counterfeit
another person? By cooperating with him. So,
the signature. He was not the one
when I cooperate with you in the commission of a
encashed the check. But he cooperated
crime, I am also a principal by direct participation.
with the principal without such the crime
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would not have been succeeded. So he is are similar. The act of one is the act of all. It
held liable as principal by indispensable does not make one any better than the other. You
cooperation. That is the perfect example. will say: “I’m not a principal by direct
participation; I’m a principal by indispensable
Sometimes it is easy; sometimes it is really very cooperation.” Okay, but the penalty is still the
hard to determine whether you are a principal by same. The act of one is the act of all because of
direct participation or a principal by indispensable conspiracy. As a matter of fact if you look at the
cooperation. In one case, you cooperated with the information filed by the fiscal—it will say that they
other principal. Sometimes, is the act or are co-principals. Then, if you look at the
cooperation in executing, a crime a cooperation by decisions, the court will say that they are co-
another act? principals.

EXAMPLE: I will agree that you kill


somebody. I hold him so he will not escape.
What’s that? What is my cooperation? In the ARTICLE 18 ---Accomplices are persons who,
execution of the crime of Homicide, or by another not being included in Article 17, cooperate in
act? Just like in rape. A wants to rape the girl. the execution of the offense by previous or
So, he sought the help of B and C to subdue the simultaneous acts.
girl, to prevent the girl from disturbing him while
he rapes her. B & C complied. They held the girl, So if you are a principal, you cannot be an
the victim was subdued. And A raped her. There accomplice at the same time. So if you are falling
is no question, B & C are also liable. under Article 17, Article 18 will not apply to you.
QUESTION: How many are the principals? Principal
by direct participation in the crime of rape or Q: How do you become an accomplice?
principal by indispensable cooperation? By direct A: Obviously, if you are not in conspiracy with the
participation or by indispensable cooperation? principal by direct participation—because if you are
in conspiracy, you fall under Article 17. What do
How do you commit rape? No question you do? You cooperate. You cooperate with
about conspiracy. All of them are conspirators. whom? You cooperate with the principal by direct
What type of principal are they? Are B and C participation through previous or simultaneous
principals by direct participation or indispensable acts. That is why we must distinguish what type
cooperation? of cooperation is this. If you commit a crime and I
cooperate with you. I could be a co-principal by
Who believe that they are principals by direct participation; I would be a principal by
direct participation also, that they took direct indispensable cooperation; I could also be an
participation in the commission of rape? How is it accomplice, because an accomplice also
that in the crime of homicide, the one who held cooperates.
the victim and prevented him from running was
considered as principal by direct participation when Q: How do you distinguish cooperation by a
he was not the one who stabbed the victim? principal from cooperation by an accomplice?
A: If the cooperation is pursuant to a conspiracy,
There are cases where the SC said: Well, you are a principal. You fall under Article 17. If
they prevented the girl from struggling or your cooperation is not pursuant to a conspiracy,
resisting, so they are also principals by direct you are under Article 18. As to the exact act,
participation. That is taking part directly in the there is sometimes no difference. It will be your
crime of rape. So all of them are principals by cooperation and his cooperation. The only
direct participation. important question is whether there was a
conspiracy or none.
But there are also some cases where the Therefore, if there is doubt as to whether
SC said that they are also principals by there is conspiracy or there is no conspiracy, the
indispensable cooperation. Because the issue here doubt is resolved in favor of the lesser degree of
is this: How do you commit rape? By having participation, para mahulog ka na accomplice.
sexual intercourse. They did not have sexual
intercourse with the girl. It was only A, but their Q: How to cooperate? How can I cooperate
help was indispensable to the commission of the without being in conspiracy? How will that
crime of rape by virtue of the conspiracy. So there happen? How can you cooperate without an
are 2 sets. agreement?
A: The concept of cooperation by an accomplice is
But, this question is moot and academic that a person is an accomplice who, not being in
because whether you are a principal by direct conspiracy with the principal, but knowing about
participation or by indispensable cooperation, they the criminal intent of the offender, concurs with it
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and cooperated either in a previous or to a conspiracy
simultaneous act. Not being in conspiracy but
knowing of the criminal intent, concurs. Meaning, EXAMPLE: Without the cooperation of the
I agree. So I will just cooperate. signature-verifier, I would not succeed. But: “may
I borrow your gun?” Sure. QUESTION: Is my
Example: You are a taxicab driver. Then lending the gun indispensable or necessary> do
one night 2 or 3 passengers hailed you to take a you mean to tell me without my gun you cannot
ride. The while driving, you overheard their kill him? You can kill him with another gun or with
conversation. You listened. Base on their a knife. You can kill him with a bolo. ANSWER: so,
conversation, they were going to commit robbery. my lending the gun is necessary, but not
You learned about it. When they reached that indispensable. That’s the distinction given by
place, they asked you to wait. “Wait for 30 some. This distinction is correct.
minutes, okay” We are just going to that house Take note, that you are also liable for the
and rob somebody in it.” Okay, you agree. So you same crime committed by the principal although
knew that they are going to rob somebody then the penalty is a little bit lower. That’s why we
after 30 minutes they returned, then drove them have discussed collective liability. You are a co-
off. So in effect, you are the driver of the getaway principal in a conspiracy. The act of one is the act
vehicle. of all. Collective.

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.”

Q: Is the policeman an accessory for the crime of


With that, what happens? The victim is
rape?
declared a missing person because there is no
A: Yes. Well, there is no mention of rape under
evidence that he is dead. So, the most that can
paragraph 3. It only mentions treason. Parricide,
be done is to declare him civilly dead, but not
murder, or an attempt to take the life of the Chief
criminally dead. The prosecution cannot file a
Executive, or is known to be habitually guilty for
murder or homicide case if the proof of death is
some other crime. If the accessory is a public
absent. You can conceal the body by burying it.
officer, he is am accessory for any crime
Or you can destroy the corpse.
committed, provided, that the penalty is light. It
is not limited to those enumerated. The crimes
Or you can conceal or destroy the effects of
specifically mentioned refers to, if the person who
the crime…like the murder weapon...throw it away.
helps you escape is a private individual.
You are not he killer but you assisted. Or you hide
a stolen car. Here, I can be held liable as an
Q: So how do you interpret this?
accessory and under the anti-fencing law. So, one
A: There are 2 persons who can commit as an
who conceals the effects of the crime under
accessory:
paragraph 2 are also liable under the Anti-Fencing
(1) a private person(only those
Law, because that is also one way of concealing
mentioned); or
stolen property under PD 1612.
(2) a public officer( automatically an
accessory regardless of the crime
The third is by harboring, concealing, or
except when the felony is light).
assisting in the escape of the principal of the
crime, provided that the accessory acts with abuse
So, based on the problem, A commits rape
of public functions or whenever the author of the
and he approaches his kumpare who is a private
crime is guilty of treason, parricide, murder, or an
individual. Is he an accessory? He is not, because
attempt to take the life of the Chief Executive, or
he is not one of those enumerated.
is known to be habitually guilty of some other
crime. The one concealed is not the body,--the
PROBLEM: Suppose, the principal commits
effects of the crime, but the criminal himself. You
murder knowing about it, I assisted him to escape.
harbor a criminal.
So, there are 2 cases filed against me and against
Suppose, while I am walking in an
the principal. But he was at large and I am
uninhabited place, I saw A kill B, since there is o
arrested. QUESTION: Can I be tried and convicted
witness, nobody knows who is the killer. So, the
without the principal being arrested and convicted?
wanted criminal is unknown. But I did not report
The cases before decided by the SC said no
it. I remained silent. In effect, I have harbored –
because the guilt of the accessory will depend on
I have assisted the criminal from escaping. That is
the guilt of the principal. The law says that
the net effect. Am I liable as an accessory under
whenever the principal of the crime is guilty, the
Paragraph 3? NO, the act referred to here by the
accessory can be guilty.
law is an active act, not a passive act. Because a
passive act is an omission not covered under
Another reason in the SC, suppose that
Article 19. You may be accused of lack of civil
after the principal is found guilty of homicide and
spirit, but you are not criminally liable as an
not murder, what happens to you? You’re free. So,
accessory.
it is necessary that the principal comes first. But
this reasoning has been reversed. The accessory
can be tried before the principal is convicted. But
88
how do you reconcile that with the law that he But is liable under PD 1829? YES, because it does
must be found guilty? not distinguish. It states “ any offense”. What is
worse is the penalty for the principal is arresto
What it means is that before the accessory menor but under PD 1829, prision correctional…so,
can be convicted, the prosecution must prove that 6 years. Am I saying that that is the answer? I do
the crime was committed and that the principal not say that that is the answer, but that seems to
who is still at large committed it. Hence, the be the answer.
probable of hypothetical guilt of the principal must
first be proved before the accessory can be
convicted. The hypothetical guilt is only used as a People vs. Ortega Jr.
stepping-stone to convict the accessory. For, to July 29, 1997
mean that the principal must first be convicted
would result in a miscarriage of justice. Facts: X stabbed A. Y came along
believing A was already dead assisted X in
concealing the body of A by throwing the body
BINO vs. PEOPLE inside a well. It turned out that A was still alive
178 SCRA 626 and died by drowning.
Held: Y is not only liable as accessory to
Issue: Can the trial of an accessory X’s crime but as a Principal of homicide being
proceed without awaiting the result of the responsible for all the consequences of his
separate charge of the principal? unlawful act.

Held: YES. The corresponding


responsibilities of a principal, accomplice ARTICLE 20. Accessories who are exempt from
and accessory are distinct from each other. criminal liability.----The penalties prescribed for
As long as the commission of the offense accessories shall not be imposed upon those
can be duly established in evidence, the who are such with respect to their spouses,
determination of the liabilities of ascendants, descendants, legitimate, natural
accomplices and accessories may proceed and adopted brothers and sisters, or relatives
independently of that of the principal. by affinity within the same degree, with the
single exception of accessories falling within
In connection with paragraph 3, there is a law the provisions of paragraph 1 of the next
where the language is similar to paragraph 3 but preceding article.
broader. That is PD 1829, also known as Law
Penalizing Obstruction of Justice. What is contemplated by the law is that
SECTION 1, PARAGRAPH c “x x x harboring or the principal and the accessory are related. It is
concealing, or facilitating the escape of any person natural that relatives protect each other. Hence,
he knows, or has reasonable ground to believe the law understands that. So, the relative who
that the suspect has committed any offense under conceals the body or effects of the crime or
existing penal laws in order to prevent his arrest, conceals the criminal who is a relative is exempted
prosecution and conviction. form criminal liability by reason of public policy.
Take note: this is an exempting
For example, A committed rape and asks circumstance. Exception is an accessory under
his friend to help him escape. Is the friend an paragraph 1 who profits or assists the offender to
accessory under the Penal Code? The answer is profit by the effects of the crime. In that situation,
NO, because there is no mention of rape. Can the you have not desired to make the family clean,
friend be liable under PD 1829? YES, because the you have also tainted the family’s name.
law says; “xxx any offense under existing penal
laws”. Similar to Anti-Fencing Act, you are not an
accessory but a principal for obstruction of justice.

Q: Suppose, the crime is drug pushing, are you an Title Four


accessory under the RPC? EXTINCTION OF CRIMINAL LIABILITY
A: No. but, under PD 1829, you can still be liable.
Chapter One
This is the interesting question: you TOTAL EXTINCTION OF CRIMINAL LIABILITY
commit a felony…a slight physical injury. I am a
policeman and I concealed you. So, the public
officer exceeded his function. QUESTION: Is the ARICLE 89. How criminal liability, is totally
policeman liable as an accessory under RPC? extinguished. – Criminal liability is totally
ANSWER: NO, because it is only a light felony. extinguished:
89
1. By the death of the convict, as A: An example of a pecuniary penalty is fines.
to the personal penalties; and
as to pecuniary penalties, Q: Suppose a convict is sentenced to pay a fine.
liability therefor is And then he dies, what happens to his obligation
extinguished only when the to pay the fine?
death of the offender occurs A: This time, the RPC distinguishes whether he
before final judgment. died BEFORE the judgment became final, or AFTER
2. By service of the sentence. the judgment became final.
3. By amnesty, which completely
extinguishes the penalty and For example, while the case is on appeal,
all its effects. he dies, then it is also finished. The obligation to
4. By absolute pardon. pay the fine is extinguished. But, if the pecuniary
5. By prescription of the crime. judgment has become final and executory, then he
6. By prescription of the penalty. dies, the obligation to pay the fine is not
7. By the marriage of the extinguished because the fine can be collected by
offended woman, as provided the State through his assets. Based on his assets,
in Article 344 of this Code. the government can enforce the payment of the
fine. That is the distinction. Distinguish whether
The modes of extinguishing criminal the penalty is personal or pecuniary.
liability. Take note that criminal liability begins
with a crime. Criminal liability starts by incurring How about the civil liability? Suppose, a
it, but there is also an end or extinction to criminal person is convicted by the RTC for homicide,
liability. sentenced to imprisonment and ordered to
indemnify the family of the victim the sum of
Q: What are the grounds for the total extinction of P20,000 by way of compensatory damages. Or,
criminal liability? any other type of criminal case where there is civil
A: There are exactly 7 ways of totally liability. The accused appealed. While the appeal
extinguishing criminal liability under the Revised is pending in the CA, the accused died.
Penal Code.
What happens now to the civil liability?
1. By the death of the convict, as to the personal Can this continue or not? The old rule was, from
penalties; and as to the pecuniary penalties, the moment the convict died, the case would be
liability therefore is extinguished only when dismissed. The civil liability would also be
the death of the offender occurs before final extinguished.
judgment.
However, that ruling – that the case can
What more can you ask of him if he dies? So, no longer continue after the death of the accused
if the accused dies during the trial, after the trial, as to both criminal and civil liability – was reversed
or even while he is serving sentence, it does not starting with the rulings in the case of Torrejos
matter. From the moment he dies, his criminal vs. CA, (67 SCRA 349), reiterated in the more
liability is extinguished. The trial cannot proceed, famous case of People vs. Sendaydiego, (81
the case has to be dismissed. SCRA 120).
We cannot say that we will continue the trial These cases are commentaries on what
for the record. If he is serving his sentence, after happens after the death of the convict, as to civil
his death, that is the end. Who will serve his liability. What will happen to the case on appeal?
sentence after his death? If you will say, “we will The first two cases are followed by a few more
let the family continue—they will inherit the cases, then in 1992, People vs. Badico, (204
penalty.” Is there such a thing as criminal liability SCRA 182) – and among others, about 8 cases
by succession? where upon the death of the accused or convict,
while the case is on appeal, the criminal liability
The death of the convict extinguishes his criminal extinguished but not the civil liability.
liability as to the personal penalties.
Q: But how can the civil liability proceed?
Q: What are personal penalties?
A: They are penalties which consist in A: By substitution of party defendant. In other
imprisonment, loss of rights – like disqualification, words, convert it into a civil case.
suspension. These are what you call personal
liabilities – perpetual disqualification, suspension, Q: What is the basis for that?
civil interdiction. A: The cases for that was Article 30 of the Civil
Code and Section 20, Rule 3 of the 1997 Rules of
Q: How about the pecuniary penalty? Court. Remember Civil Procedure, Sec. 20, Rule
90
3? That’s where after the death of the defendant, and Section 20, Rule 3 of the Rules of Court. In
if there is already a final judgment by the RTC but other words, the SC after several cases said, “We
not yet final, and then the defendant dies, you do made a mistake.”
not dismiss the case anymore but you substitute
with the heir of legal representative. If we were to render the penalty in the
intendment of Art. 100 of the RPC, which provides
ARTICLE 9, CIVIL CODE. When a separate that every person criminally liable for a felony is
civil action is brought to demand civil liability also liable, in such cases extinction of the criminal
arising from a criminal offense, and no criminal action due to the death of the accused pending
proceedings are instituted during the pendency of appeal inevitably signifies the concomitant
the civil case, a preponderance of evidence shall extinction of the civil liability, works only in
likewise be sufficient to prove the act complained absolving. So, meaning, no more substitution.
of. You cannot say, “Okay, we will substitute the heirs
to continue the case as to the civil aspect.”
SECOND 20, RULE 3, RULES OF COURT. Where
claim does not survive. – When the action is for
Q: Don’t you think it is quite unfair—just imagine if
recovery of money, debt or interest thereon, and
you’re a victim of theft or estafa, and there is no
the defendant dies before final judgment in the
more means of getting back what was taken away
RTC, it shall be dismissed to be prosecuted in the
from you?
manner especially provided in these rules.
A: No, what the SC is saying is that you cannot
That was the basis. And that ruling
extinguish the civil liability in the criminal case.
subsisted until the SC en banc – so, doctrinal,
The SC never said you can never collect in the civil
reversed all these previous cases and reverted to
case if the defendant died. What it is saying is
the original rule, in the leading case of People vs.
that you cannot collect the civil liability in the
Bayotas, (236 SCRA 239). This was
criminal cases. It cannot continue. Substitution is
promulgated by the SC en banc on Sept. 2, 1994.
not allowed.

Q: What is the philosophy behind this?


People vs. Bayotas
A: You go back to the Civil Code. Article 1157 of
the Civil Code.
Civil and criminal liability, ONLY
THOSE BASED ON THE CRIME, upon the
ARTICLE 1157, CIVIL CODE. Obligations arise
death of the accused, during the pendency
from:
of his appeal are EXTINGUISHED without
1. Law;
prejudice to the filing of a separate civil
2. Contracts;
action or claim against the estate of the
3. Quasi-contracts;
deceased.
4. Acts or omissions punished by
law; and,
The other sources of obligation are
5. Quasi-delicts.
not extinguished. Those arising either
from:
Number 4, acts or omissions by law – that
a. Quasi-delict;
includes civil liability arising from crimes. That is
b. Contract;
also a source of obligations. But obligations arise
c. Quasi-contract;
not only from crimes; they also arise from quasi-
d. Law.
delict (culpa-aquiliana), quasi-contracts, or
contract, or the law itself.
The civil liability arising from the crime is
extinguished. The SC never said that the civil The SC said, in this case of Bayotas, if the
liability arising from all sources of obligation are obligation to recover is extinguished, with the case
extinguished. is only coming from the crime – the only source of
the obligation is the crime, the death of the convict
Q: Does the death of the accused pending appeal also extinguishes it. However, it is also possible
of his conviction extinguish his civil liability? Does that the obligation to pay arises also from the
such death affect his criminal responsibility and crime and from other sources.
civil liabilities which are the consequences of his
crime? EXAMPLE: You entrusted me to your goods, and
A: Yes. We go back to the old rule. The SC said then I run away with your goods. That is estafa. I
the earlier ruling in Torrejos vs. CA; People vs. will be liable for estafa, abuse of confidence. Do I
Sendaydiego and succeeding cases, are have the obligation to return to you your goods?
abandoned. Why? In these cases, there was a Of course. Why? As a civil liability for the crime of
mistaken reliance on Article 30 of the Civil Code estafa. But even if there is no estafa, I still have
91
to return to you your goods because of the source of obligation upon which the same is
contract of agency. So, the obligation here arises based. If the claim is arising form contract,
from 2 possible sources. you claim against the estate. If it is arising
from quasi-delict, claim by civil action against
Or, for example, you hit a pedestrian while the executor.
you are driving a vehicle. So you are accused of  The private offended party need not fear the
homicide or reckless imprudence. If you are forfeiture of his rights to file a separate civil
convicted, you have to indemnify the family. Your action by prescription.
obligation here arises from a criminal act. But,
even without the criminal act, you are still liable In such case, the statute of limitations
under the source of quasi-delict. Meaning, the does not run. The liability is deemed interrupted
civil liability here can arise from 2 possible during the pendency of the criminal case
sources. conformably with Article 1155 of the Civil Code.
That should avoid any apprehension the possible
If the source of the liability is only the crime, then of right by prescription.
it’s goodbye for you. Death dissolves everything.
But, if aside from the crime the civil liability can be 2. By service of the sentence.
recovered from any other source – for example – 3. By amnesty, which completely
contract or quasi-delict, then you can still recover extinguishes the penalty and all its effects.
despite the death of the defendant. 4. By absolute pardon.

Q: What is the correct procedure? Q: Distinguish amnesty from pardon?


A: The correct procedure is not to continue with A:
the criminal case but to file a separate civil action.
Or, if it is arising from the contract, you can file a AMNESTY PARDON
claim against the estate of the deceased under Covers a group of Individually
Rule 85, under the Rules on Special Proceedings. people
That is the correct procedure now. but definitely Covers Political Crimes May be granted for
you cannot ask the criminal case to be continued only common crimes
and convert it into a civil case. Erases the crime Erases the penalty but
not the crime. The
This distinction presupposes that the civil conviction remains
liability is deemed instituted in the criminal case. Amnesty can come Generally pardon comes
That the victim never made the reservation for an before conviction. after conviction.
independent or separate civil action. Meaning, during or after
conviction. It can be
Do not be afraid because when you file the given anytime.
criminal case where the civil case is deemed Amnesty is an OFFICIAL Pardon is a private act
instituted. ACT. The Executive by the President. And
Department confers it not within the realm of
To summarize the new rulings in the case of and there is no need to judicial notice. In order
Bayotas: present evidence on the to invoke it, one must
amnesty proclamation. present evidence with
 The death of the accused pending of his respect to the pardon.
conviction extinguishes his criminal as well as
the civil liability based solely thereon.
Meaning, the source of the obligation is only
the crime.
 Corollarily, the claim for civil liability survives
notwithstanding the death of the accused if the
same may also be predicated on a source of MONSANTO vs. FACTORAN
obligation other than the crime, citing Article 170 SCRA 190
1157 of the Civil Code.
 Where the civil liability survives as explained in Facts: Linda Lopez was convicted by the
#2 above, an action for recovery thereof may Sandigan Bayan of Estafa and falsification
be pursued but only by way of filing a separate of public documents. She was sentenced
civil action and subject to Sec. 1, Rule 111 of accordingly. She was ordered to pay,
the 1985 Rules on Criminal Procedure. This among others, P5,000.00 representing the
separate civil action or claim may be enforced balance of the amount defrauded. That is
against the executor or administrator of the the civil liability for the crime of estafa.
estate of the deceased, depending on the The case reached the SC, which affirmed
92
the judgment of conviction. During the
pendency of the appeal, Lopez filed a ARTICLE 113, RPC. Obligation to satisfy civil
motion for reconsideration in the SC. In liability.—Except in case of extinction of his civil
the said court, the President extended to liability as provided in the nest preceding article,
her an absolute pardon. By reason of such the offender shall continue to be obliged to satisfy
pardon, she returned to the Department of the civil liability resulting from the crime
Finance and requested that she be committed by hi, notwithstanding the fact that he
reinstated to her former position as Asst. has served his sentence consisting of deprivation
Treasurer which was still vacant. of liberty or other rights, or has not been required
to serve the same by reason of amnesty, pardon,
The Department ruled that Linda may be commutation of sentence or any other reason.
reinstated to her former position without
the necessity of reappointment and  Pardon cannot be given if there is no conviction
directed her to see to it that the sum of by final judgment yet.
P5,000.00 is satisfied. She may be REMEDY: Withdraw the appeal and let it become
reinstated but she has to pay the civil final to avail of the benefit of pardon.
liability. Claiming that she is not obliged
to pay P5,000, Linda appealed to the People vs. Bacang
Office of the President. Even the P5,000,
she would not like to pay . The Office of Facts: While appeal for murder was
the President dismissed the appeal, and pending in the SC, the President granted
her acquittal due to the pardon is the only the pardon.
ground for her reinstatement to her former Held: The pardon is null and void. The
position. That absolute pardon does not accused were re-arrested. The officers
exempt the culprit from paying the civil recommending the accused for pardon to
liability. Mosanto went to the SC. the President were ordered to show cause
within 30 days why they should not be
Held: She will be entitled to apply again. held liable.
The SC based its ruling on the nature of
the pardon. The very essence of pardon is
forgiveness or remission of guilt. Pardon 5. By prescription of the crime.
implies guilt. It does not erase the fact of
the commission of the crime and the Prescription of the crime means the State
conviction thereof. The conviction stays. forfeits or loses its right to prosecute the Offender
Pardon does not was out the moral stain. by reason of the lapse of time. So there is a
It involves forgiveness and not deadline for the filing of a criminal case. Beyond
forgetfulness. Pardon looks to the future. that, the criminal liability is already extinguished.
It is not retrospective. It makes no The periods for the prescription of crimes is found
amends for the past. It affords to relieve in the next article.
from what has been suffered by the
defendant.
6. By prescription of the penalty
Pardon may relieve a person form
disability of fines and forfeitures attendant The State forfeits its right to enforce a
in a conviction. But it cannot erase the given
stain of bad character which has definitely penalty also because of the lapse of time. They
been fixed. Pardon cannot produce such are already all convicted, take note. They have
moral charges as to equate the pardoned been convicted- final, there is already a sentence.
convict in character and conduct with one There is already a penalty.
who was constantly maintained the mark
of good law-abiding citizen. Pardon Suppose, somehow you are able to evade
cannot bring back lost virtue for honesty, the penalty.
integrity and credibility. The penalty cannot be served because you cannot
be found. You disappeared. The State also has a
So, what is the ruling? Lopez is not entitled. The deadline within which to catch you compel you to
pardon does not entitle her to get back her former serve your penalty. Beyond a certain period of
position. There is a missing question: How about time, the penalty also will prescribe. After that,
the civil liability? Art. 113. Pardon extinguishes you can no longer be compelled to serve penalty.
only the criminal aspect; the civil liability in favor
of the government, the fine, yes, but not the civil 7. By the marriage of the offended woman,
aspect of the case. as provided in Article 344 of this Code.
93
166 SCRA 214
This is applicable only to Crimes against (reiterated in the case of
Chastity—rape, seduction, abduction, acts of MAGAT VS. PEOPLE)
lasciviousness. When the victim of the rape, etc.
marries the abduction or the rapist, the criminal
liability of the accused is automatically Facts: A is accused of less serious physical
extinguished. So, from victim to wife. injuries. This is punishable by arresto
mayor, prescriptive period: 5 years. The
case was filed within 1 year after the
incident. So, it was filed on time. The
ARTICLE 90. Prescription of Crime—Crimes case was tried. After trial, the court said:
punishable by death, reclusion perpetua or “ The accused is guilty as charged.” But
reclusion temporal shall prescribe in twenty actually in this case, less serious physical
years. injuries, the injury is only slight. Lesser
Crimes punishable by other afflictive offense. So the court convicted the accuse
penalties shall of the crime of slight physical injuries.
prescribe in fifteen years.
But the charge is less serious
Those punishable by a correctional physical injuries. With that, the accuse
penalty shall prescribe in ten year; with the said:” I move to set aside the conviction
exception of those punishable by arresto including the penalty.” Why? “Because if it
mayor, which shall prescribe in five years.The is slight physical injuries only, I
crime of libel or other offenses shall committed only a light felony. Therefore,
prescribe in one year. the charge against me should have been
filed within 2 months. You filed the
The offenses of oral defamation or information for 1 year.” The prosecutor
slander by deed shall prescribe in six months. said: “But we did not accuse you of slight
Light offenses prescribe in two physical injuries. We accused you of less
months. serious physical injuries, which prescribes
When the penalty fixed by law is a in 5 years. It is only accidental that you
compound one, the highest penalty shall be were convicted of slight physical injuries.”
made the basis of the application of the rules
contained in the first, second and third Held: Prescribed. The information should
paragraphs of this article. have been filed within 2 months. If we will
follow the prosecution’s theory, you can
 Applies ONLY to FELONIES easily beat prescription. That will be one
way of circumventing the law of
Meaning, a case must be filed within a prescription.
certain period. Otherwise, lapsed. The period
starts from the highest to the lowest. From crimes Where the accused has been found
punishable by death, reclusion perpetua—the to have committed a lesser offense
gravity. Then from 15 to 20 years. Afflictive included within the criminal offense
penalties: prision mayor, reclusion temporal, etc. charged, he cannot be convicted of the
lesser offense if it has already prescribed.
Then, crimes punishable by To hold otherwise would be to sanction a
CORRECTIONAL PENALTIES with the exception of circumvention of the law on prescription by
arresto mayor. Suspension, destierro are 10 the simple expedient of accusing the
years. The lowest, arresto mayor is 5 years. So, defendant of the graver offense.
20-10-5, and then light felonies—prescribed
penalty 2 months (60 days). Q: The crime is committed on March 15, 1995.
Slight physical injuries (light felony). The
There are certain crimes with special information was filed on My 15, 1995. Has the
prescriptive periods, like libel, which prescribes crime prescribed, or was the deadline met by the
only in 1 year. Oral defamation and slander by prosecution?
deed are also special crimes. But oral defamation A: What do you mean by months? Months mean
and slander by deed (6 months) refer to grave oral 30 days. March has 31 days. March 15 to April 14
defamation, or serious or grave slander by deed. is one month. April has only 30 days ( April 14 to
If it is slight oral defamation, that’s only 2 months. May 14). Therefore, in the given case, the
That’s only a light felony. information was filed on May 15, so the deadline
to file was supposed to be on May 14. So you
DAMASCO vs. LAQUI must know how to compute.
94
any reason not imputable to him.
Q: Suppose the last day fall on a Sunday. How The term of prescription shall not run
can I file the case on a Sunday? Or, if the last day when the offender is absent from the
is a holiday? Philippine Archipelago.
A: The law on pleadings. If you failed to file an
answer in a civil case, or if the filing of the appeal
falls on a Sunday or a holiday, it can be done on
the next business day. That is found in the The period of prescription commences to
revised Administration Code. Meaning, there is an run from the date the crime is discovered. Take
automatic extension. So, now the failure to file an note, the word is “discovered” and NOT
answer in a civil case, the period to file the notice committed. Normally, the crime is discovered only
of appeal, if it falls on a Sunday, then file it in the when it is committed. It is absurd. When you box
next business day (Only applies in pleadings and in me and you will only discover this fact tomorrow.
civil cases NOT to the filing of criminal complaints You discovered the offense upon commission. But
or information). That was the issue in the case of there are some crimes where the date of discovery
Yapdiangco vs. Buencamino (122 SCRA 713). will not coincide with the date of commission of
the offense.
Q: How do you compute the prescriptive period of
a crime? A good example is murder or homicide. If
A: The prescriptive period under Article 90 applies a victim is killed and his cadaver is buried to
only to those which are in the penal code. It does prevent its discovery. So the person killed is a
not apply to crimes punishable by special laws. In missing person because nobody knows where his
special laws, it provides for its own prescriptive cadaver is. But after one year his cadaver was
period. Well, I think most annotated books, the discovered and identified. In other words, the
author cites an old law which gives the prescriptive discovery came after one year from its
period of crimes punishable by special law. commission.

LLENES VS. DICDICAN Another example is if in a public gathering


260 SCRA you were not there. There, you were defamed by
the accused. He said so many things about you
Act No. 3326 provides for the publicly. So he committed the crime of oral
prescription period for offenses under defamation. But you did not know about it. So
special laws. one day one of those who were present in the
gathering told you that this is what happened. Oh,
 Light offenses prescribes in two months. so I see! How do you compute the prescriptive
period in this case? It is not the day of the
April 15 – committed – 4/15 – 4/30 – 15 commission but on the date of discovery. That is
- 5/01 – 5/31 – 31 how discovery and commission of the offense will
June 15 - filed - 6/01 – 6/15 – 15 not coincide.
Prescribed!!! 61
Bu the law says, not only discovered…
 There are 30 days in one month. discovered by whom? It is discovered by the
Q: What is the prescriptive period for crimes 1. Offended party;
punished by Special Laws? 2. The authorities; or
A: Act No. 3326 provides for the same. 3. His agents.

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.

What is going to prescribe is not the crime


SERMON vs. CA but the penalty already imposed. So, what is the
233 SCRA 155 assumption? The assumption is that the accused
has been tried and convicted. As a matter of fact,
Facts: This involves prosecution of the only thing left is to enforce the penalty but
bigamy. A man has 2 marriage contracts. somehow the convict has evaded sentence and
He was prosecuted for bigamy and he after the lapse of a certain period the penalty will
pleaded prescription. The wife said: “I prescribe. Read Article 92. For example, you are
discovered the second marriage when I convicted to death and you escaped, be sure that
was in the State. The husband said you go in hiding for 20 years.
nothing. Remember the marriage contract
was registered in the civil registry and that GARCIA VS. CA
97
266 SCRA 678 Example: You are found guilty committing a light
felony. You were sentenced to 1 day of arresto
Facts: Wife(husband) knew of the
menor. But you don’t want to go to jail to serve
bigamous marriage of her(his)
that 1 day. So, you must evade that for 1 year.
husband(wife). Only after 15 years that
So, you need 1 year before it will prescribe.
she decided to file a case for bigamy.
Held: The wife is also an offended party
just like the State. Hence, the crime has ENFANTE VS. PROVINCIAL WARDEN
prescribed.
The reason for Article 92 citing
Side Issue: Temporary trips abroad are Viada’s opinion of the Supreme court of
not included to interrupt the prescriptive Spain.
period.
During the period of prescription,
the convict’s life is like an animal which is
If you look at the prescriptive periods hunted. He lives a life of misery,
here, they are almost identical under Article 90- loneliness, etc…
20-15-10-5. In Article 90, the prescriptive period
for a light felony is 2 months. But in article 92,
the prescriptive period for a light felony is one
year. That’s the difference. So for example, you ARTICLE 93. Computation of the prescription
are found guilty of committing a light felony and of penalties.- The period of prescription of
you were sentenced to one day of arresto menor. penalties shall commence to run from the
You do not want to serve that. So you evade for date when the culprit should evade the
one year. So, you need one year before it will service of his sentence, and it shall be
prescribe. interrupted if the defendant should give
himself up, be captured, should go to the
same foreign country with which this
ARTICLE 92. When and how penalties Government has no extradition treaty or
prescribe. - The penalties imposed by final should commit another before the expiration
sentence prescribe as follows: of the period of prescription.
1.) Death and reclusion perpetua, in
twenty years; It commences to run from the date culprit
2.) Other afflictive penalties, in fifteen evade his sentence. So, you must evade, like
years; escaping from jail. Or before you are to go to jail,
3.) Correctional penalties, in ten you evade like what happened to Rolito Go. The
years, with the exception of the prescriptive period had started to run in his favor.
penalty of arresto mayor which The judgement is final. I think that is murder. So,
prescribes in five years; that prescribes in 20 years. But it is interrupted
4.) Light penalties, in one year. when you surrender or you are captured.

Suppose, you are sentenced to a crime


The assumption here is that the accused where the penalty prescribes in 15 years. I evade.
has already been tried and convicted. The only After ten years I was captured. So, I have to
thing left is to enforce the penalty but somehow serve the penalty. Then, I escaped again. How
the convict has evaded serving the sentence and long should I remain at large? 5 years, because
after the lapse of a certain period the penalty will you have a deposit of ten years.
prescribe.
The law says interrupted but it is not
For example: You are sentenced to death. So forfeited. It is also interrupted when you go to a
you’d rather disappear but be sure that you’ll not foreign country where our government has no way
be caught for 20 years. After 20 years, the of acquiring jurisdiction. So, be sure that you are
penalty has already prescribed. here when you want that prescription run in you
favor. Also, be sure that there is no extradition
Prescription of penalties is almost similar treaty in the country where you will hide. Lastly,
to prescription of crimes ( Art. 90). The only you must not commit another crime before the
variation is in Art, 90 the prescriptive period for a expiration of the period of prescription. So, you
light felony is 2 months, whereas in Art. 92 it is 1 must behave while you are in hiding.
year.
98
Q: Is this tantamount to encouraging person to Chapter Two
escape? Why should we reward a person from PARTIAL EXTINCTION OF CRIMINAL
escaping? LIABILITY
A: The philosophy behind this provision was cited
by Viada. There is a similar provision in the
Spanish Penal Code which was quoted by the SC in ARTICLE 94. Partial extinction of Criminal liability
the case of Infante vs. Prison Warden. – Criminal liability is extinguished partially:
1. By conditional pardon;
This is what is says: If a convict under 2. By commutation of sentence; and
confinement, at the risk of being killed, succeed in 3. For good conduct allowances which the
breaking jail and also succeeds in evading re- culprit may earn while he is serving his
arrest for a certain period of time which by no sentence.
means is short, despite the effort of all the
instrumentalities of the government including There are two ways of extinguishing criminal
sometimes the setting of prize or reward on his liability:
head, which here by enlists the aid of the citizenry,  Article 89, Total Extinction
that calls off the search for him, and condones the  Article 94, Partial Extinction
penalty. This against the Government of the
Philippines. This is you against the whole world. Q: What are the modes of totally extinguishing
criminal liability?
So, the fight is not even, the Government A: Article 89.
is stronger than you. So, if you succeed in Q: What are the modes of partially extinguishing
outwitting the government, the Government will criminal liability?
give a sort of amnesty. A: Article 94. So, pardon. There are 2 types: if
total, Article 89; if conditional, Article 94.
But during that period of prescription, the
escaped convict lives a life a hunted animal, hiding In conditional pardon, the President will
mostly in the mountains and forests in constant grant you pardon out with conditions. If you do
mortal fear of being caught. His life is far from not want the conditions, you will not pardoned.
being happy, comfortable and peaceful, is reduced But you must not also commit a violation of the
to a mere existence filled with fear, discomfort, condition or else you will be recommitted in jail.
loneliness and misery. As Viada, the convict who But in absolute pardon, it is different—unless you
evades sentence is sometimes sufficiently commit another crime, that is another story.
punished by his voluntary and self-imposed
banishment, and at times that voluntary exile is Commutation of the sentence is the
more grievous than the sentence he was trying to lowering of the penalty. Another penalty will be
avoid. And at all times he was to utilize every imposed in place of a higher penalty, like you were
ingenuity and means to outwit the Government sentenced to death in the RTC, then the SC will
agencies bent on recapturing him. For all this, the lower it to reclusion perpetua. The President can
government extends to him a sort of a also commute the penalty. He can pardon and he
condonation or amnesty. can also commute. As a matter of fact, when the
1987 Constitution was passed, where the death
Requisite: The period of prescription of penalties penalty could not be imposed anymore unless the
shall commence to run from the date when the Congress revives it because of heinous crimes—so,
culprit should evade the service of his sentence. we had no death penalty from 1987 to 1994. The
Meaning, he must evade. heinous crime law took effect on January 1994.
Now, what happens to those people who were
So for example: escaping from jail or sentenced to death but before it could be imposed
before you could be brought to jail, you hide. But here comes the 1987 Constitution. Is says that all
it is interrupted when the convict: those who were sentenced to death are
automatically commuted. So, this is constitutional
1. Gives himself up; commutation.
2. Is captured;
3. Should go to some foreign country Good conduct allowance is discussed in the
with which the government has no preceding sections. This is being imposed by the
extradition treaty; or Bureau of Prisons. If a prisoner is behaving well,
4. Should commit another crime before they deduct days from his penalty. Just like in
the expiration of the period of ROTC, there is merit if you acted in good conduct.
prescription.
99
Q: Article 94 only gives 3, but there are others  When the civil action is instituted
which partially extinguish criminal liability. What ahead of the criminal action. In this
are they? case, this is now purely State vs.
A: accused because the civil action is
 The system of PAROLE under the litigated separately. With that, you
Indeterminate Sentence Law; and cannot intervene in the criminal action.
 The system of PROBATION under the
Probation Law Q: Suppose a civil case is segregated or reversed,
the question now is: Which of the two should be
decided or litigated first?
A: The general rule is that the criminal case must
Title Five precede the civil case. The civil case must await
the outcome of the criminal case. The civil case is
CIVIL LIABILITY suspended until the criminal case is decided.
Suppose, he is acquitted. How about that? No
CHAPTER ONE problem because Rule 111 says that the extinction
of criminal liability does not extinguish civil
liability.
PERSONS CIVILLY LIABLE FOR FELONIES
In civil cases, only preponderance of
evidence is needed. The evidence may not be
sufficient to convict but it is sufficient to prove
ARTICLE 100. Civil liability of a person guilty your cause of action. But what happens if you
of felony. – Every person criminally liable for already have file the civil case? According to
a felony is also civilly liable. Criminal Procedure, when the criminal case is filed,
the trial of the civil case is suspended to await the
That is a very short article but the outcome of the criminal case unless there is an
ramifications are very complicated. A complete attempt to consolidate the trial. So, the rule is:
understanding of Art. 100 is not confined to The criminal case takes precedence over civil case.
Criminal Law. It also includes some principles in
Civil Law—Obligations and Contracts, Torts and Q: Is there an exception? Is there an instance
Damages, and Criminal Procedure. The procedural where if the civil action is not suspended it will not
ramifications of Article 100 are not found in the await the outcome of the criminal action?
RPC. They are found in Rule 111 of the 1985 A: In other words, let the civil and criminal cases
Rules on Criminal Procedure. What are we going proceed simultaneously—separately, without
to review in Article 100 are only the basic ideas. minding the outcome of either. Is that possible?
This is true if your civil action is classified as an
When a criminal case if filed against you, independent civil action.
whether you like it or not a civil case is also filed.
So in effect, when a criminal case is filed, there is Independent civil actions, according to
automatically or impliedly a civil case for recovery Rule 111 are those found in Arts. 32, 33, 34 and
of civil liability filed. So when you are sentenced, 2176 of the Civil Code. So, the following can be
you are sentenced not only for the criminal offense filed separately from the criminal case.
but you are also sentenced as to your civil liability.
That is why there are 2 aggrieved parties in the The third situation is entirely different.
criminal action. One is the State represented by The civil case takes precedence over the criminal
the prosecutor for the criminal offense. The other case. The pendency of the civil case will suspend
one is the private offended party who is given the the criminal. This is the exact opposite of the first
law the right to recover civil liability. How is this rule. What is this rule? This rule is known as a
litigated? Through representation by the private Prejudicial Question where the innocence or guilt
prosecutor. of the accused depends on the outcome of the civil
case. These principles and their ramifications are
 Bayotas Case: If a person dies, criminal liability treated more in Criminal Procedure.
is extinguished. It follows, of course, that the civil
liability will also be extinguished.
ARTICLE 101. Rules regarding civil liability in
Q: How do you divorce the civil from the criminal? certain cases.- The exemption from criminal
A: liability established in subdivisions 1,2,3,5
 By waiving it, or and 6 of Article 12 and in subdivision 4 of
 The most common—he reserves the Article 11 of this Code does not include
right to file a separate civil action; or exemption from civil liability which shall be
100
enforced subject to the following rules: Q: What is now the present governing law with
First: In cases of subdivisions 1,2 and respect to the civil liability of minors?
3 of Article 12, the civil liability of acts A: It is not Article 221 of the Family code as
committed by an imbecile or insane person, amended by EO 227. This is what Article 221
and by a person under nine years of age, who says:” Parents and other persons exercising
acted without discernment, shall be devolve parental authority shall be civilly liable for the
upon those having such a person under their injuries and damages caused by the acts of their
legal authority or control, unless it appears unemancipated children living in their company
that there was no fault or negligence on their and under their parental authority subject to the
part. appropriate defenses provided by law.
Should there be no person having
such insane, imbecile, or minor under his The liability now devolves upon those who
authority, legal guardianship, or control, or if exercise parental authority. But you can raise
such person be insolvent, said insolvent, said defenses.
insane, imbecile, or minor shall respond with
their own property, excepting property Originally, many thought that this Article
exempt from execution, in accordance with only applies to quasi-delicts (because of Article
the civil law. 180, NCC). Meaning, parents are only civilly liable
Second: In cases falling within for acts or omissions committed by their
subdivision 4 of Article 11, the persons for unemancipated children arising from culpa
whose benefit the harm has been prevented aquiliana subject to defenses. But the SC said in
shall be civilly liable in proportion to the the case of Libi vs. IAC,214 SCRA 16, Article
benefit which they have received. 221 of the Family Code applies also to civil liability
The courts shall determine, in their committed by minors arising from a crime. It is
sound discretion, the proportionate amount not confined only to quasi-delict. The parents are
for which each one shall be liable. liable and be held primarily liable for civil liability
When the respective shares cannot be arising from criminal offenses committed by their
equitably determined, even approximately, or minor children under their authority or control or
when the liability also attaches to the who live in their company unless it is proven that
Government, or to the majority of the the former acted with the diligence of a good
inhabitants o f the town, and in all events, father of a family.
whenever the damage has been caused with
the consent of the authorities or their agents, That primary liability under the provisions
indemnification shall be made in the manner of Article 101 of the RPC with respect to damages
prescribed by special laws or regulations. ex-delicto caused by their children. Such primary
Third: In case falling within liability is imposed pursuant to Article 2180 of the
subdivision 5 and 6 of Article 12, the persons Civil Code. Therefore, ultimately, the civil liability
using violence or causing the fear shall be of parents for the crimes committed by their
primarily liable and secondarily, or if there be children is also governed by Article 2180 of the
no such persons, those doing the act shall be Civil Code. That is on quasi-delict where the
liable, saving always to the latter that part of parents can claim the exercise of a good father of
their property exempt from execution. a family.

That is why LIBI case is doctrinal. Before,


Q: This goes back to those circumstances which the issue was: Can the parents avoid liability by
justify criminal liability. Is there civil liability? claiming exercise of due diligence in the
A: None, except those that fall under subdivision 4 supervision of their children? Well, you will say
of Article 11. In exempting, the general rule is: that it is only possible when I am suing for quasi-
There is civil liability except paragraphs 4 and 7. delict, but here we are talking of civil liability
This is what the discussion of civil liability in those arising from a crime. You cannot use Article 2180
cases. The first is minority or insanity or for this. The SC said, NO! It is because of Article
imbecility. They are exempt from criminal liability 221 of the Family Code, and clarified by the case
but they are not exempt from civil liability. of Libi vs. IAC. This question should have come out
in the bar.
Q: How do you enforce the civil liability of minor
with respect to a crime he has committed? Q: How about state of necessity?
A: The law governing the civil liability of minor is A: Article 101. Well, our example before was that
this Article 101, paragraph 1 of the RPC. But this the fire department destroyed some buildings to
was subsequently amended by PD 603. However, prevent the fire from spreading. Who will shoulder
PD 603 was further modified by Article 221 of the the civil liability? Well, all those who benefited.
Family Code, as amended by EO 227.
101
The third refers to uncontrollable fear and
irresistible force. The person using violence or ARTICLE 103. Subsidiary civil liability of other
cause fear shall be primarily liable civilly. Those persons.- The subsidiary civil liability
who do the act are secondarily liable. So, those established in the next preceding article shall
primarily liable civilly are also criminally liable as also apply to employers, teachers, persons
principals by inducement. and corporations engaged in any kind of
industry for felonies committed by their
servants, pupils, workmen, apprentices, or
employees in the discharge of their duties.
ARTICLE 102. Subsidiary civil liability of
innkeepers, tavern-keepers, and proprietors This is what you call as the subsidiary
of establishments.- In default of the persons liability of employees. The perfect example when
criminally liable, innkeepers, tavernkeepers, you are engaged in a transportation business.
and any other person or corporations shall be That is very common. Your driver, while driving
civilly liable for crimes committed in their the car, hits somebody—homicide through reckless
establishments, in all cases where a violation imprudence. So, your driver is the one charged
of municipal ordinances or some general or criminally. The driver was convicted. The
special police regulations shall have been judgment has become final. He was sent to jail
committed by them or their employees. and to pay the family of the victim the sum of
Innkeepers are subsidiarily liable for the P50,000. He cannot pay. In most cases, that is
restitution of goods taken by robbery or theft what happens. The driver is insolvent.
within their houses from guests lodging
therein, or for the payment of the value What will happen? The employer will pay.
thereof, provided that such guests shall have That is subsidiary. If the driver is insolvent, the
notified in advance the innkeeper himself, or employer shall be liable. Suppose he happened to
the person representing him, of the deposit be my family driver. Can you apply this? NO.
of such goods within the inn; and shall Because there you are not engaged in business.
furthermore have followed the directions There is employer-employee relationship. But you
which such innkeeper or his representative can sue under culpa aquiliana. But not Article
may have given them with respect to the care 103. This one applies only to employees for
of and vigilance over such goods. No liability crimes committed by their employees if they are
shall attach in case of robbery with violence engaged in an industry. He employs a person for
against or intimidation of persons unless his business, not his household.
committed by the innkeeper’s employees.
Q: Is this not the same culpa-aquiliana where for
The first paragraph refers to liabilities of the act of the employee, the employer is liable?
innkeepers, tavernkeepers. These terms are old A: No, here in culpa-aquliana, you can sue directly
English. The modern concept is hotels or lodging the employer. In Article 103, you must wait for
houses. Taverns are bars or restaurants. For the conviction to happen. You must wait for the
example, an ordinance prohibits the selling of finality. You must prove insolvency of the
liquor after midnight. Suppose one customer kills employee before you can recover. What is the
another customer while still serving liquor. So, advantage? The employer cannot say that he
when the crime was committed you were still exercised diligence in the supervision of his
serving liquor. Who is liable criminally? Of course, employee. That is only applicable in culpa
the customer. Who is civilly liable? Of course, the aquiliana. That is not available as a defense
customer. What if he is insolvent? The owner of under Article 103. The defense is that I am not
the bar is liable. This is how you apply the first engaged in an industry, or he is not acting in the
paragraph. discharge of his duties.

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

Held: Subsidiary liability of an employer MUNSAYAC vs. VILLASOR


under Article 103 attaches if the following 185 SCRA 324
requirements are complied with:
1. Employer-employee Facts: Two informations for theft of
relationship exists; jewelry and gold coins were filed against
2. employer is engaged in some Eduardo Asuncion. During the hearing of
kind of industry; the cases, complainant, the victim of the
3. Employee is insolvent; theft, desisted from pursuing the criminal
4. Conviction of a crime cases upon learning that the stolen items
committed while in the were already sold by the accused to
performance of his function. Edilberto and Elena Munsayac. Obviously,
the victim is more interested in recovering
PAJARITO VS. CA the stolen property than in prosecuting the
accused. The cases against Asuncion were
There is no need to file another dismissed based on complainant’s affidavit
case to enforce the subsidiary liability of of desistance. The complainant then filed
the employer. A mere motion in the same in the same criminal cases a motion for
criminal case to enforce employer’s restitution of the stolen properties directed
subsidiary liability is sufficient wherein he against Edilberto and Elena Munsayac.
will be given an opportunity to be heard. The rule is you can recover the properties
in the same criminal case.

Held: The complainant was in error.


Why? Because you can recover when the
Chapter Two criminal case went on and led to a
conviction. But when you desisted from
WHAT CIVIL LIABILITY INCLUDES prosecuting, the case ends there. The
dismissal of the criminal charges at the
ARTICLE 104. What is included in civil complainant’s instance carried the
liability. – The civil liability established in dismissal of the civil aspect of the
articles 100, 101, 102, and 103 of this Code accompanying the filing of the criminal
includes: information of the criminal cases. Without
1. Restitution; any judgment of conviction in the criminal
2. Reparation of damage caused; cases, restitution cannot be ordered.
3. Indemnification for consequential Anyway, said the SC, complainant still has
damages.
103
the right to recover the properties she lost Q: Are moral damages recoverable in a felony?
by filling an entirely new civil action. A: Yes, for the physical anguish, the suffering, the
mental anguish. How about the family, can they
 Between two people who are in good faith. recover? Yes, the law says so: xxx including those
suffered by his family, or by a third person by
 You cannot give something which is not yours. reason of crime.

 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

Facts: Five victims were shot. Two died, 3


almost died. Accused was found guilty for
ARTICLE 107. Indemnification —What is the crime. The court awarded P50,000.00
included. - Indemnification for consequential for the families of the persons who died
damages shall include not only those caused and P20,000.00 for the families of those
by the injured party, but also those suffered who almost died.
by his family or by a third person by reason
of the crime. Held: The award of P50,000.00 was
proper. There is no need for proof other
For physical injuries, you pay damages to than the fact of the victims’ death. The
the victim, loss of earning capacity, actual and award of P20,000.00 is, however, not
compensatory. This is where the law on torts and proper. There is no such thing as an
damages comes in. automatic award for frustrated murder.
There is only entitlement for actual
If you murder somebody, you have to expenses incurred due to the injuries
indemnify the family, actual and compensatory. sustained.
OF course, what is the value of human life? There
is no definite value. You cannot place a value on People vs. Mangahas
how much a life of a human being costs. Based on
practice and policy of the SC as of today, what is Expenses incurred in relation to
the standard rate for the life of a human being? the 9th day, 40 days and death anniversary
P50,000. But it could be higher but not less. That is not included for the damages which is
is the standard minimum. That is automatic. If compensable.
the victim died, the court will decree indemnity for
the family for P50,000. Not only that, there are
other damages under the law.
ARTICLE 108. Obligation to make restoration,
104
reparation for damages, or indemnification an amount equivalent to the extent of such
for consequential damages and action to participation.
demand the same.—Upon whom it devolves.
The obligation to make restoration or What is an example of a person who has
reparation for damages and indemnification participated gratuitously in the proceeds of a
for consequential damages devolves upon the felony? It applies to a person who received, by
heirs of the person liable. way of gift, stolen property. He acquired it
The action to demand restoration, gratuitously. We will assume that the third person
reparation, and indemnification likewise who received a stolen ring, did not know that it
descends to the heirs of the person injured. was stolen, because if he knew he will be an
accessory. Or fence. Now, assuming he is in good
If the victim dies before he can recover faith, he cannot be held criminally liable as a
(damages), his heirs will inherit his right to fence or accessory, but he cannot avoid civil
recover. Suppose, it is accused who died before he liability.
could pay his liability, who will now pay? That law
says, it shall devolve upon the heirs of the Q: How do you compare Art. 111 from Art. 105?
accused. It does not mean to say that the heirs A:
will pay the liability from their own pockets. The
heirs of the accused will pay only out of what they ARTICLE 105 ARTICLE 111
inherited from the deceased. If the deceased or The third person who He is also bound to
accused died a pauper, you cannot tell his family, acquired the property is make restitution
“You raise money for me”. If nothing is left to also required to return
them, you cannot recover. If something is left to it to its owner
you, obligation first before inheritance. So, that is The third person The third person
based on what the accused left behind. Do not acquired stolen property acquired it gratuitously
interpret it in such a way the heirs have to work by lawful means
for raising the money to pay for the liability.
According to the law, such third person is
liable to make a restitution in an amount
equivalent to the extent of his participation. For
ARTICLE 109. Share of each person civilly example, a thief gave his girlfriend a diamond ring
liable..--- If there are two or more persons worth P50,000 as a gift. Then, later they broke
civilly liable for a felony, the courts shall up. The girl sold the ring for P20,000. Later on, it
determine the amount for which each must was established that the ring was stolen. It was
respond. given to her, but she was in good faith. What
happened to the ring? She sold it away. To whom
ARTICLE 110. Several and subsidiary liability did she sell it? She didn’t see her anymore. What
of principal, accomplices and accessories of a is the civil liability of the girlfriend? The P20,000
felony.—Preference in payment. --- should be returned to its owner. But the ring is
Notwithstanding the provisions of the next worth P50,000. You are able to restitute only in
preceding article, the principal, accomplices an amount equivalent to the extent of your
and accessories, each within their respective participation. The benefit or participation of the
class shall be liable severally (in solidum) girlfriend is only worth P20,000. She cannot be
among themselves for their quotas, and made to pay higher than that. That is what it
subsidiarily for those of the other persons means.
liable.
The subsidiary liability shall be Suppose, I steal food, for example, cake
enforced, first against the property of the from the bakeshop worth P 100. I gave it to you,
principal; next against that of that you ate it. And then there is now civil liability in
accomplices, and lastly against that of the favor of the owner of the bakeshop on account of
accessories. the theft. QUESTION: Are you liable because you
Whenever the liability in solidum or acquired the cake gratuitously and you were
the subsidiary liability has been enforced, the satisfied because you ate it? Are you liable for
person by whom payment has been made reparation in the amount of P100. ANSWER: No.
shall have a right of action against the others That is not applicable to that case because this
for the amount of their respective shares. applies only when your fortune is augmented—
when you become richer, your income increases.
ARTICLE 111. Obligation to make restitution
in certain cases.—Any person who has
participated gratuitously in the proceeds of a
felony shall be bound to make restitution in Chapter Three
105

EXTINCTION AND SURVIVAL OF CIVIL


LIABILITY ARTICLE 113. Obligation to satisfy civil
liability. – Except in case of extinction of his
civil liability as provided in the nest
ARTICLE 112. Extinction of civil liability. - preceding article, the offender shall continue
Civil liability established in Articles 100, 101, 102 to be obliged to satisfy the civil liability
and 103 of this Code shall be extinguished in the resulting from the crime committed by him,
same manner as obligations, in accordance with notwithstanding the fact that he has served
the provisions of the Civil Law. his sentence consisting of deprivation of
liberty or other rights, or has not been
Do not confuse extinction of criminal required to serve the same by reason
liability from the extinction of civil liability. amnesty, pardon, commutation of sentence
Extinction of criminal liability is Art.89, Total or any other reasons.
Extinction, Art. 94, Partial Extinction.
The grounds for extinction of criminal
Q: How do you distinguish civil liability? liability are separate and distinct from the grounds
A: According to ART. 112, civil liability is of extinction of civil liability. Pardon by the
extinguished in the same manner as any obligation President, or amnesty may extinguish the criminal
extinguished under the Civil Code. liability, but does not extinguish the civil liability
because that is separate and distinct. The
Q: What are the modes of extinguishing President can pardon the criminal liability, but not
obligations? the civil liability. You have to separate the rules in
A: Civil liability is extinguished by: extinguishing criminal liability from the rules
 Payment or performance; extinguishing civil liability. That is very clear
 Condonation or remission of the debt; under Art. 113.
 Confusion or merger of the rights of the
creditor and debtor; Q: Is there an obligation on the part of the
 Compensation; accused despite the pardon to still pay the civil
 Novation; liability?
 Annulment; A: Article 113 is very clear. Pardon does not wipe
 Rescission; out civil liability.
 Fulfillment of a resolutory condition; and
 Prescription

So, the modes of extinguishing civil


liability are the same with the provisions of the Title Three
Civil Code. There is only mode for extinction of PENALTIES
obligations under the Civil Code which is not
recognized in the Penal Code. That is the loss of Chapter One
the thing due by virtue of fortuitous event. PENALTIES IN GENERAL
Remember, when the obligor is to deliver to the
obligee a determinate thing, and that determinate
thing was lost because of fortuitous event, the ARTICLE 21. Penalties that may be imposed.
obligation is totally extinguished. – No felony shall be punishable by any
penalty not prescribed by law prior to its
PROBLEM: Somebody was stealing cattle. While commission.
the cattle was in his possession, the cows died
because of some disease. Whether you like it or not, the study of
penalties is part of the RPC. Even in the definition
Q: Is the accused, upon conviction, liable to pay of the course, it is a branch or division of law
for the value of the cattle? Or is the obligation which defines crimes, treats of their nature and
extinguished because they died of animal disease? provides for their punishment. So, what is the use
A: He is liable because the loss of the thing due, of defining crime without any penalty?
even if due to fortuitous event, does not extinguish
the obligation to pay for the value of the cattle.
So, that is the only mode not recognized under the For example, under the Penal Code, if you kill
Penal Code. somebody with treachery, you commit murder.
So, what happens to you? With intent to kill, you
stabbed somebody, then he died. When you
attacked him, you did not give him a chance to
106
defend himself—admitted. That the mode of Must be correctional.( That purpose is
attack was blunt--, again, admitted. So, you are correctional—to correct you so that you
guilty of murder—still admitted. What about it? will not repeat it.)
There is no penalty, anyway. That is why the law
on penalties is unavoidable.
Q: What is the purpose of the State in
punishing crimes?
Q: How do you define penalty?
A: Penalty is the suffering that is inflicted by the A: To secure justice. The State has an existence
State for the violation or transgression of a law. of its own to maintain a conscience of its own to
Penalty signifies pain. It is something that you do assert, and moral principles to be vindicated.
not relish because if penalty is something Penal justice must therefore be exercised by the
enjoyable, then everybody would be encouraged to State in the service and satisfaction of a duty, and
commit a crime. rests primarily on the moral rightfulness of the
punishment inflicted.
Q: What are the juridical conditions of penalty
under the Classical Theory of Criminal Law?
A: These are not part of the article, but these are THEORIES JUSTIFYING PENALTY:
the philosophical background behind the penalty. a.) Prevention – The State must permit
The different juridical conditions of penalty are the the criminal to prevent or suppress the
following: danger of the State rising from the
 Must be productive of suffering, without criminal acts of the offender.
however affecting the integrity of the b.) Self-defense—The State has a right to
human personality. ( Suffering: if you punish the criminal as a measure of
suffer, your dignity as human being should self-defense so as to protect a society
also not be impaired. That’s why the from the threat and wrong inflicted by
constitution prohibits unusual punishment, the criminal.
because they are degrading.) c.) Reformation- the object of punishment
 Must be commensurate with the in criminal cases is to correct and
offense—different crimes must be reform the offender.
punished with different penalties. d.) Exemplarity–- The crime must be
(Commensurate: That is one of the punished to serve as an example to
characteristics of the Classical theory. A deter others from committing crimes.
grave felony deserves a higher penalty. A e.) Justice- The criminal is punished to
less grave felony or light felony deserves a serve by the State as an act of
lesser penalty. There must be a retributive justice, a vindication of
proportion. It is absurd when the penalty absolute right and moral law violated
for murder and the penalty for slight by the criminal.
physical injuries are the same. There is
something wrong. It is inequitable; it is
unfair.) Social defense and exemplarity justify the
 Must be personal. –No one shall be penalty of death. When a person has proved
punished for he crime of another. (The himself to be a dangerous enemy of society, the
criminal liability (personal penalt), once latter must protect itself from such enemy by
the convict dies, is totally extinguished. taking his life in retribution for his offense and as
You do not say, he has a son, he will an example and warning to others.
continue the penalty under the law on
Succession.)  Penalties under the RPC have three-fold
 Must be legal. – No one should be purpose:
punished for the crime of another. 1. Retribution or expiation – The penalty is
(Nullum crimen, sine lege. If there is no commensurate with the gravity of the offense.
law, there is no penalty.) 2. Correction or reformation – As shown by
 Must be certain. No one may escape its the rules which regulate the execution of the
effects.( That is a theory. No one may penalties consisting in deprivation of liberty.
escape its effects, theoretically. That is 3. Social defense – As shown by its inflexible
being required by the law. The law should severity to recidivists and habitual deliquents
be fair, whether you are rich or poor.
Only, men have prostituted the law. But
the law itself is supposed to be certain ARTICLE 22. Retroactive effect of penal laws.
and equal.) – Penal laws shall have a retroactive effect
 Must be equal for all; and insofar as they favor the persons guilty of a
107
felony, who is not a habitual criminal, as this jail for 8 years and still has a long time to go
term is defined in Rule 5 of Article 65 of this because of life imprisonment. He said: “If I were
Code, although at the time of publication of prosecuted under the new law, 6 years should
such laws a final sentence has been have been the maximum, prision correctional. I
pronounced and the convict is serving the have been in jail for 8 years now. What should I
same. do? The CIR through its Chairman Sedfery
Ordonez filed a petition for habeas corpus for him,
because the law should be given retroactive effect.
Q: We will give a penal law retroactive effect if it is
favorable to the accused. Even if the accused is The SC said: Yes, applying Article 22 of the
already serving sentence? RPC. They have been in jail for eight years;
A: Yes, it will benefit him in whatever stage he is release them. They should be ordered released.
found, whether before the trial or during the trial. The habeas corpus proceeding decided on
December 1994. As a matter of fact, the SC
Q: What is the reason why a favorable statute may ordered in that case of Ordoñez vs. Vinarao, the
be given retroactive effect? Director of Prisons to submit to this Court a list of
A: The reason: to be consistent with public policy. all prisoners there who were convicted under the
If Congress changes the law, let us say, by old law.
lowering the penalty or eliminating the crime, the
crime has already been eliminated because the The SC ordered their release because it
act, criminal before is no longer a crime now, then was beyond the maximum term under the law. It
it could be inconsistent for the State to still insist is a perfect example of retroactivity of a new law.
on the continued punishment or prosecution of a
person. There might have been already a Q: Is there an exception?
supervening case of policy. A: The law is very clear:
 You will not benefit if you are classifed
So, to maintain consistency why do we as a habitual delinquent under Article
insist that these people be still prosecuted when 62.
there is already a change in the policy of the  It will not be given retroactive effect if
State? That is the reason behind that. That’s why the law makes itself inapplicable to
even if he is in jail, the question is: How do you pending suits.
have a person released from jail when there is
already a final judgment? The remedy is habeas
corpus, because the moment the new law repealed ARTICLE 23. Effect of pardon by the offended
the old law or the new law imposed a lower
party. – A pardon by the offended party does
penalty and you have already gone beyond it, the not extinguish criminal action except as
excess, the penalty, or the confinement
provided in Article 344 of this Code; but civil
automatically becomes illegal. liabilities with regard to the interest of the
injured party is extinguished by his express
That has been applied recently by the SC
waiver.
in the case of Ordoñez vs. Vinarao, a 1994
decision. People who were convicted before the
The offended party cannot pardon,
drug pushing, under the law- under the old law,
because the offense is not against you. It is
the penalty for drug pushing was life
against the People of the Philippines and
imprisonment. Even if you are caught pushing one
technically you are only a witness for the society.
stick of marijuana, life imprisonment. You sell one
So, you cannot “talk” of society. That is the reason
truckload of marijuana, life imprisonment. If you
behind that. If you ask: How come, in practice,
are caught selling one or two sticks, life
there are may cases dismissed because of the
imprisonment.
Affidavit of Desistance, where the witness does not
want to testify? That is what is happening in
But RA 7659 has changed the policy, now
practice. Well, actually there, the fiscal may file a
it’s by gram. For marijuana, it is 750 grams or
motion – not because of pardon. Because if the
more, possession or pushing, the penalty is
fiscal will state in his motion: We move to dismiss
reclusion perpetua to death. From 1 gram to 749
because the accused has already been pardoned
grams, by stages. So, in effect, if you are a small
by the offended party. If I will be the judge, I will
time pusher the penalty under the new law is
deny your motion because you are violating Article
lower. Now, this is the new law, so it benefits
23.
those who were convicted under the old law, those
sentenced to life imprisonment.
Pardon by the offended party is a mere
agreement. Usually the fiscal will state in his
There was a pusher convicted in 1986, life
motion: With the hostility of the principal witness,
imprisonment. In 1994, he has already been in
108
I can no longer prove this case beyond reasonable to do this anymore! Can her pardon be given
doubt. effect?

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.

So, it appears to be penalty in the eyes of  Article 24, (4)


the Penal Code. Why? It is only a measure of
prevention or safety. You are not being penalized. Fine is a penalty under the Penal Code. Also
It is a measure of prevention or safety for you. other corrective measures are considered penalties
So, if you undergo any one of these, you come under the Penal Code. But under the Civil Service
out, we cannot say you are an ex-convict because Act, the CSC can also impose a fine in
you have never been penalized. Unlike a person administrative cases involving those of the
who is sentenced to jail, he served the sentence. government service. And the head of office, the
When he go out from jail, ex-convict. But if you superior office of the government authorized to
go to Art. 24, you are not a convict because it is hand down penalties like fines, suspension, etc.
not a penalty.
So, that is not a criminal fine. That is only
If the person is insane, he is killing people, an administrative fine. You are not considered a
what shall we do? Well, he could be ordered convicted person by being found liable under the
arrested and confined at a mental hospital. Put Civil Service act.
him in the isolation ward. He is like being in
prison. He is being placed there like a sentenced  Article 24,(5)
criminal. How can he be liable? He is even
exempt from criminal liability for being insane. Deprivation of rights which the law may
What is the confinement for? That is only a establish in penal form. Penalty could be
measure of prevention or safety. Because if he deprivation of civil rights—the right to vote, etc.
will be allowed to walk around, he might kill more Now, if you are not careful, you will think of other
people. So, he is not really being penalized. ( things. If you ask somebody: Give an example of
Art.24(2)) deprivation of rights under the penal code? He
might be tempted to say: Actually the example,
Article 80 there has already been taken the penalty you can give there is the penalty of
over by PD 603. This refers to suspended civil interdiction.
sentence for minors. He asks for a suspended
sentence. He is committed to a rehabilitation Civil interdiction is a measure of prevention or
center. So, it is as if he is imprisoned. NO, that is safety which is not a penalty. You are wrong.
not the measure of prevention or safety. How can Civil interdiction is a penalty under the RPC. You
he be penalized when practically there is a look at the next article , Article 25. You look at the
suspension of the sentence? So, it is not accessory penalties.
considered as a penalty.
ARTICLE 25. Penalties which may be
 Article 24 (3) imposed.—The penalties which may be
Actually suspension from employment or imposed, according to this Code, and their
public office is a type of penalty under the RPC different classes, are those included in the
for certain crimes. Once you are found guilty, following:
you are suspended from holding public office. XXX
That is the penalty but the suspension referred ACCESSORY PENALTIES
here is not a penalty because you have not Perpetual or temporary
been convicted. disqualification
Perpetual or temporary special
Like for example: How come that under the disqualification
Anti-Graft Act, if you are a public officer facing a Suspension from public office, the
crime, under the law, the Sandiganbayan will order right to vote and be voted for, the profession
you suspended for 90 days – even a policeman or calling
facing a criminal case? He will be suspended. Are CIVIL INTERDICTION
they already adjudged as guilty? Are they being Indemnification
penalized? No. They are still presumed innocent. Forfeiture or confiscation of
What is that suspension? That is a measure of instruments and proceeds of the offense
prevention or safety. So that you will not use Payment of costs.
your position to influence witnesses for or against
you. So, that is not a penalty, but only a
110
Civil interdiction is included. Civil  Perpetual or temporary absolute
interdiction is not a civil law penalty. It is a disqualification
criminal penalty. You will not be under civil  Perpetual or temporary special
interdiction unless you are found guilty of a crime. disqualification
 Prision mayor
Q: What is meant by Art.24(5)?
A: Deprivation of rights and separation, which the Correction penalties:
civil law may establish in penal form? It means  Prision correctional
that in a civil case you are deprived of a right by  Arresto mayor
the court, where the right deprived is similar to  Suspension
that of someone who is under civil interdiction.  Destierro
Similar to civil interdiction, but not civil
interdiction. Light penalties:
 Arresto menor
So, civil interdiction is not a civil law issue  Public censure
because of the word “civil” is there. Civil
interdiction is criminal penalty. Penalties common to the three preceding classes:
 Fine; and
EXAMPLE: Under Art. 34 of the RPC, one of the  Bond to keep the peace
effects of civil interdiction (if you are found guilty,
you will be placed under civil interdiction) is you
are deprived of your parental authority over your ACCESSORY PENALTIES
children. Now, suppose it is a civil case where a
father or a mother maltreats or abuses his or her  Perpetual or temporary
own child. So, a case is filed in court against the disqualification
parent and the court says: For maltreating or  Perpetual or temporary special
abusing your own child the court will deprive you disqualification
of your parental authority and transfer it to the  Suspension from public office, the
grandfather of the child. right to vote and be voted for, the
profession or Calling
The loss of parental authority is similar to  Civil interdiction
being sentenced to a civil interdiction. You were  Indemnification
not sentenced to civil interdiction, but sentenced  Forfeiture or confiscation of
to that penalty in the civil case. It is not instruments and proceeds of the
considered as a criminal penalty but a civil penalty offense
analogous to civil interdiction. That is what a  Payment of costs.
par.5 of Art.24 means. It does not refer to the
penalty of civil interdiction but to a penalty
imposed by the court in a civil case which is All the penalties known under the Penal
analogous to civil interdiction. Code are found in Art. 25. Art. 25 classifies
penalties into two main classes:
1. the Principal penalties; and
2. the Accessory penalties.
Chapter Two
CLASSIFICATION OF PENALTIES Q: Define principal penalty or define accessory
penalty.
ARTICLE 25. Penalties which may be imposed. - A: Do not say that the principal penalty is for the
The penalties which may be imposed according to principal by direct participation, that accessory
this Code, and their different classes, are those penalty is the penalty for the accessory and I
included in the following: wonder what happened to the accomplice penalty.
The words “accessory” here and “principal” have
SCALE nothing to do with persons criminally liable. It has
nothing to do with principals by direct participation
PRINCIPAL PENALTIES or accessories under Art. 19 of the RPC, the
definition of the principal penalty is:
Capital Punishment:
A principal penalty is the penalty imposed
 Death by the court expressly in a judgment of conviction.
An accessory penalty is a penalty which is deemed
Afflictive Penalties: imposed in the principal even if not mentioned in
 Reclusion perpetua the decision. Another definition is accessory
 Reclusion temporal
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penalty is a penalty which is deemed included in as minimum period, medium period and maximum
the imposition of the principal penalties. period.

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.

The definition of accessory is deemed imposed Classification of penalties according to


even if not mentioned. subject matter:

 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?
112
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: Light? Q: Is there a legal significance of the difference?


A: Arresto menor and public censure. A: I will now show the significance of the
difference. A is accused of slight physical injuries
Q: What is a fine? Where does it fall? which carries the penalty of arresto menor or a
A: It means that fine could be afflictive; it could be fine not exceeding P200. Under the law on
correctional; it could be light. So, it is common. prescription of crime, what is the prescriptive
period for the crime? Under the law, Art. 90, what
is the prescriptive period for the light felony? Art.
90, last paragraph.
ARTICLE 26. Fine. – When afflictive, correctional,
or light penalty. – A fine, whether imposed as
single or as an alternative penalty, shall be Light offenses prescribe in two months.
considered an afflictive penalty, if it exceeds
6,000 pesos; or a correctional penalty, if it
does not exceed 6,000 pesos but is not less PROBLEM: The court upon conviction, sentenced
than 200 pesos; and a light penalty if it be him to pay a fine of P50 with subsidiary
less than 200 pesos. imprisonment in case of insolvency. Here he does
not want to go to jail, he also does not want to pay
That is how you classify fine. You look at the fine. He wants to evade the penalty.
the law, what kind of penalty is that? Fine of QUESTION: What is the prescriptive period for him
P20,000 – afflictive; if it is ranging from P200 – to evade penalty? ANSWER: If the fine is P199, so
P6,000 it is considered correctional penalty which the penalty is light. Art. 92, light penalties
is less than P200. Fine P50 – it must be a light prescribe in 1 year. So, you have to hide for 1
penalty. year.

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.

Q: Is there a conflict between the two articles, or


there is none? If there is a conflict, reconcilable
conflict, which of the two will we follow?
A: Art. 9 is a classification of felonies. Art. 26 is a Chapter Three
classification of penalties. How can there be a DURATION AND EFFECT OF PENALTIES
113
But now, with that 20 years and 1 day, is
Section One. – Duration of Penalties it now a divisible penalty with a fixed duration of
20 years and 1 day but not more than 40 years?
ARTICLE 27. Reclusion perpetua – The penalty of
reclusion perpetua shall be from twenty PEOPLE vs. LUCAS
years and one day to forty years. 232 SCRA 537
Reclusion temporal – the penalty of
reclusion temporal shall be from twelve years The amendment of RA 7659 has
and one day to twenty years. converted the penalty of reclusion
Prision mayor and temporary perpetua into a divisible penalty with a
disqualification – The duration of the fixed minimum and fixed maximum – 20
penalties of prision mayor and temporary years and 1 day to 40 years. Therefore, it
disqualification shall be from six years and is a divisible penalty divisible into 3 parts –
one day to twelve years, except when the minimum period, medium and Maximum –
penalty of disqualification is imposed as an 20 years and 1 day to 40 years.
accessory penalty, in which case, its duration
shall be that of principal penalty. However, there was a Motion for Reconsideration
Arresto mayor – The duration of the penalty filed before the First Division. If you claim now
of arresto mayor shall be from one month that because of the amendment reclusion perpetua
and one day to six months. is converted into a division penalty, then what
Arresto menor – The duration of the happens to this article? Many got confused with it.
penalty arresto menor shall be from one day But they decided to resolve the issue en blanc. So,
to thirty days. the SC had to review the original ruling in the First
Bond to keep the peace – The bond to keep Division and Arrived at a certain decision decided
the peace shall be required to cover such after 8 months on January 5, 1995. (People vs.
period of time as the court may determine. Lucas, 240 SCRA 66). The ponente was still
Justice Davide Jr.
The first important amendments
introduced by the Heinous Crimes Law, RA 7659, Do not confuse the Lucas decision found in
is he amendment of the first paragraph of Art. 27 232 SCRA with the Lucas decision found in 240
which radicalized the penalty of reclusion SCRA. The one in 232 SCRA was the original
perpetua. The law says: The penalty of reclusion decision. The one in the 240 SCRA was the
perpetua shall be from 20 years and one day to 40 resolution of the Motion for Reconsideration where
years. the SC changed its stand. In the second one, the
SC ruled that despite the fact that as stated now in
This is now the new law. Before the the law, that reclusion perpetua is from 20 years
amendment, if the person is sentenced to and 1 day to 40 years – however, the amendment
reclusion perpetua, he shall be pardoned after 30 has not made it a divisible penalty, it is still an
years unless the President does not consider him indivisible penalty.
worthy of pardon. Therefore, there is really no
duration. The President may or may not pardon
him after 30 years. But now, the law says: “20 Reclusion perpetua, despite the amendments,
years and 1 day to 40 years”. Meaning, remains to be an INDIVISIBLE penalty.
continuation na ng reclusion temporal because
reclusion temporal is 12 years and 1 day to 20
years. And therefore because of the amendment, Because the SC connected it with Art. 63
the question is asked: (Rules for the application of indivisible penalties)
of the RPC, Art. 76(Legal period of duration of
Q: What kind of penalty is reclusion perpetua? divisible penalties). Art. 41 (Reclusion perpetua
Is it divisible or an indivisible penalty? and reclusion temporal), and Art. 61 (Rules on
A: There is no question what it is prior to the graduating penalties). The SC noted that all these
amendment. Prior to amendment, the rule on articles are related which were not touched by the
reclusion perpetua was that it was an indivisible amendments. Therefore, if you will say the
penalty. It had no fixed duration. What the law amendment of Art. 27 had converted reclusion
provided was that you shall be pardoned after 30 perpetua into a divisible penalty, it will cause
years unless the President does not consider you confusion and render nugatory the articles of the
worthy of pardon. So you may be pardoned after Penal Code. To avoid that, the SC said it is still an
30 years, 31, 35, etc, --because there is no indivisible penalty.
duration.
So with that, because of the case of Lucas,
the original decision, the SC sentenced the
114
accused to a specific term of 34 years, 6 months, not the same as life imprisonment. Every
which obviously was wrong! The SC admitted. judge should take note of this distinction.
When you sentence a person with perpetua, the And the SC speaks. “Henceforth, no trial
judge says: “You are hereby sentenced to judge should mislead one for the other.
reclusion perpetua”. Do not say any number of
years, months or days. It means to say you may PEOPLE vs. SAMILLANO
be pardoned after 20 years and 1 day or after 20
years and 2 days. Meaning, you wait for your The Court is cognizant of the
pardon. If no pardon is given, after 40 years you practice of the lower courts equating the
are a free man. Do not state any specific number penalty of Reclusion perpetua with life
of years or months. imprisonment. Such an erroneous practice
must be curtailed. It is an oft-repeated
Take note that it is a common error by all rule that a judgment for conviction of a
courts throughout the country in equating the felony the court must specify the
penalty of reclusion perpetua with the penalty of appropriate name of the penalty inasmuch
life imprisonment. as under the specific felony in the RPC, the
principal penalty for a felony has its own
Q: Distinguish reclusion perpetua from life specific duration and corresponding
imprisonment? accessory penalties. The proper penalty
A: which should have been imposed is
reclusion perpetua. There is no penalty of
RECLUSION LIFE IMPRISONMENT life imprisonment in the scheme of
PERPETUA penalties under the RPC.
Imprisonment ranging Whereas, life
from 20 years and 1 day imprisonment has no PEOPLE vs. ADRIANO
to 40 years within which definite duration. You 266 scra 131
the President may pardon cannot know if you
me. may be pardoned after The Court takes this opportunity to
20 or 25 years. It is catch the attention of the trial judges in
really for life. the use of the proper term in imposing
carries accessory does not carry any penalties. The term “reclusion perpetua” is
penalties under the Penal accessory penalty. not synonymous with life imprisonment,
Code which is a penalty imposed by special laws.
involves heinous crimes The penalty for crimes This Court has, through
penalized under the not under the RPC Administrative Circular No. 68-92,
RPC. but under special reminded judges to strictly follow the
laws. correct application of the penalties of
reclusion perpetua and life imprisonment
The perfect example of that life for offenses punishable under the Penal
imprisonment is that of illegal recruitment under Code and special laws, respectively. Future
the Labor Code. You look at the Labor Code – the lapses on the part of the trial judges on
penalty is life imprisonment. It is not reclusion this matter will merit proper administrative
perpetua. The SC has been very emphatic on the sanctions.
difference. There are many things that are
mentioned in the new cases. PEOPLE vs. LUCERO

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
115
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”.

Q: Define preventive imprisonment? BASBACIO vs. OFFICE OF THE SECRETARY


A: Preventive suspension is the imprisonment 238 SCRA 5
being undergone by a person who has been
accused of a crime but not yet found guilty. He has Facts: The accused was found guilty. He
to be in jail because he is facing a criminal case, was undergoing imprisonment. Then, he
there was a warrant for his arrest. Why is he in appealed. On appeal, his conviction was
jail? Because of 2 possible reasons: Either the reversed. He was acquitted on the ground
offense is non-bailable or it may be bailable but he of reasonable doubt. Upon his release, he
cannot put up the required bail bond. So he has to filed for compensation. The DOJ said; “You
be there while the case is on going. What do you are not unjustly accused, convicted and
call that prisoner? A detention prisoner, as imprisoned”. He said; “when the court
116
acquitted me, automatically it means that I penalties of perpetual or temporary absolute
was unjustly accused, convicted and disqualification for public office shall produce
imprisoned”. So, based on this argument, the following effects:
every person who is acquitted will
automatically be paid. 1. The deprivation of the public offices
and employments which the offender
Held: Sec. 3-A of the law requires that the may have held, even if conferred by
claimant was unjustly accused, convicted popular election.
and imprisoned. The fact that the previous 2. The deprivation of the right to vote in
convection is reversed, and the accused is any election for any popular elective
acquitted is not in itself a proof that the office or to be elected to such office.
previous conviction is unjust. Not every 3. The disqualification for the offices or
person who is acquitted automatically public employments and for the
proves that the conviction is unjust. exercise of any of the rights
mentioned.
To say that the accused has been
unjustly convicted has to do with the In case of temporary disqualification, such
matter of his conviction rather than his disqualification as is comprised in
innocence. It is not an issue whether you paragraphs 2 and 3 of this Article shall
are innocent. No, that is not the issue. The last during the term of the sentence.
issue here is: How were you convicted?
Was the judge unfair to you? Were your 4. The loss of all rights to retirement pay
rights violated? That’s what unjust meant. or other pension for any office
If an accused be on appeal acquitted formerly held.
because he did not commit the crime but
does not necessarily mean that he is ARTICLE 31. Effects of the penalties of perpetual
entitled to compensation for having been a or temporary special disqualification. – The
victim of unjust conviction. penalties of perpetual or temporary special
disqualification for public office, profession,
If the conviction is due to an error or calling shall produce the following effects:
in the appreciation of evidence, the 1. The deprivation of the office,
conviction while erroneous is not unjust. employment, profession or calling
That is why it is not correct to say that affected.
under the law the liability of compensation 2. The disqualification for holding similar
depends entirely on the innocence of the offices or employments either
accused. perpetually or during the term of the
sentence, according to the extent of
such disqualification.
How do you say that you are unjustly convicted?
Meaning, the conviction is unjust. It is tantamount ARTICLE 32. Effects of the penalties of perpetual
to say that the judge committed a crime of or temporary special disqualification for the
rendering an unjust judgment under the penal exercise of the right of suffrage. – The perpetual
code, which is one of the hardest crimes to prove. or temporary special disqualification for the
The judgment could be wrong, but not necessarily exercise of the right of suffrage shall deprive
unjust. How do you prove that the judge the offender perpetually or during the term of
knowingly rendered an unjust judgment? the sentence, according to the nature of said
penalty, of the right to vote in any popular
In this case, the SC interpreted the scope election for any public office or to be elected
of the State’s liability under RA 7309 which to such office. Moreover, the offender shall
provides compensation for persons who are not be permitted to hold any public office
unjustly accused, convicted and imprisoned but on during the period of his disqualification.
appeal, acquitted from liabilities.
ARTICLE 33. Effects of the penalties of suspension
from any public office, profession, or calling, or the
right of suffrage. – The suspension from public
Section Two. --Effects of the penalties office, profession, or calling, and the exercise
according to their respective nature. of the right of suffrage shall disqualify the
offender from holding such office or
exercising such profession or calling or right
ARTICLE 30. Effects of the penalties of perpetual of suffrage during the term of the sentence.
or temporary absolute disqualification. – The
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The person suspended from holding public For example, a father loses parental
office shall not hold another having similar authority over his children, although the mother is
functions during the period of his suspension. already gone. If he is a guardian over anybody or
over person or of property, the guardianship is
ARTICLE 34. Civil Interdiction. – Civil automatically removed. He cannot manage the
interdiction shall deprive the offender during community of property, conjugal or absolute. So,
the time of his sentence of the rights of the wife, for example, has the sole power of
parental authority, or guardianship, either as administration. He cannot even manage his own
to the person or property of any ward, of property. Somebody must manage it. And he
marital authority, of the right to manage his cannot convey any property inter vivos. Inter vivos
property, and of the right to dispose os such means to take effect during your lifetime. So, you
property by any act or any conveyance inter cannot sell your property. The sale is defective.
vivos. You cannot donate. You cannot enter into a
contract because you cannot convey your property
ARTICLE 35. Effects of bond to keep the peace. – inter vivos.
It shall be the duty of any person sentenced
to give bond to keep the peace, to present Suppose, a convict during his civil
two sufficient sureties who shall undertake interdiction prepared a last will and testament
that such person will not commit the offense where he said: After my death, this property goes
sought to be prevented, and that in case such to A, that property goes to B. Is there a valid will
offence be committed they will pay the and a valid disposition considering the fact that he
amount determined by the court in its is under civil interdiction? Will the civil interdiction
judgment, or otherwise to deposit such invalidate the disposition? No. Because the
amount in the office of the clerk of court to disposition is not inter vivos but mortis causa. So
guarantee said undertaking. any convict under civil interdiction validly execute
a last will and testament? Yes, because that is not
The court shall determine, according to its covered by Article 34.
discretion, the period of duration of the bond.

Should the person sentenced fail to give


bond as required he shall be detained for a ARTICLE 36. Pardon; its effects. – A pardon
period which shall in no case exceed six shall not work the restoration of the right to
months, if he shall have been prosecuted for hold public office, or the right of suffrage,
a grave or less grave felony, and shall not unless such rights be expressly restored by
exceed thirty days, of for a light felony. the terms of the pardon.

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
120
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?
122
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
123
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);
124
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.

Q: When is the constitutional proscription against Q: When will that happen?


the imposition of the death penalty dated? Give A: They are:
the legal basis of your answer. 1. When you commit a complex crime, as
A: The Heinous Crime Law took effect after 15 defined in Article 48;
days following its publication in at least 2 2. When the offender commits a special
newspapers of general circulation. It was complex or composite crime; or
published on December 16, 1994. So, with that 3. When the accused is found to have
the effectivity is December 31, 1994. committed a continuous crime or delito
continuado.
Q: When is the death penalty commuted under the Q: What is a complex crime?
same Code? A: There is a complex crime when a single act
A: This… Article 47. constitutes 2 or more grave or less grave felonies,
or when the offense is a necessary means of
committing the other.

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.

There are supposed to be two types of Compound crime or delito compuesto


plurality of crimes. The 1st case is material or real
plurality, as distinguished from formal or ideal A person throws a hand grenade to the
plurality of crimes. ground and in so doing he killed 10 people and
almost killing 5 bystanders. Are there 10 crimes
1. Materiality or plurality means that the of multiple murder with multiple frustrated
person performs 2 or more criminal acts murder? NO, there is only one complex crime of
after the other and he is liable for every multiple murder with multiple frustrated murder.
criminal act that he commits because There is only one act of throwing the hand
every crime is motivated by a separate grenade, although as a result of that act, several
criminal intent from the other. grave or less grave felonies result.

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.

2. There are as many light felonies as The error of the prosecution is in


there are victims. They are treated as believing that when, for example, with one
different crimes. You cannot complex negligent act, you hit 2 people – killing one
them. They are to be prosecuted and causing slight physical injuries to
severally. another, the impression is that there are 2
crimes. Homicide and slight physical
For example, I throw a stone at A, it hit injuries. But actually, there is only one
him; but the same stone hit B. You cannot say crime. That is the crime of committing an
that the crime of slight physical injury committed imprudent act. The crime is reckless
against A absorbed the injury of B. He cannot be imprudent. How about the homicide?
prosecuted for double slight physical injuries How about the physical injuries? Those
126
are only effects of the imprudent act which
is determinative of the penalty and the Complex crime proper or delito complejo
civil liability.
There are two acts. It is not a single act.
Article 48 applies when a single act You commit the felonies one after the other. But
results to two or more grave or less grave the first felony is not the ultimate object. It is only
felonies. But here, you cannot consider the stepping stone to commit another offense.
the homicide, the injury, as separate. You commit this not because that is your intention.
Article 48 does not apply to culpable It is only the first step to commit another. One is
felonies. the means to commit the other.

But, there is only a single act which produces one ILLUSTRATION:


felony. Why? Homicide is a felony. Serious or less
serious physical injuries is a felony. The felony is delito compuesto
not the homicide or physical injuries. It is the ----- Compund Crimes
reckless imprudence. When you commit an Complex Crimes (Art. 48)
imprudent act, the felony is the imprudent act. delito complejo
The imprudent and reckless imprudent is the
felony. Homicide, serious or slight physical Formal or
injuries, is only to determine what is the penalty. Ideal ----- Special Complex Crime
The felony is not the homicide or the physical Crimes (Composite Crime)
injuries. The felony is the imprudent act because
according to Article 3, a felony is an act or ----- Continuous Crime
omission punishable by law. The homicide and the delito continuado
physical injury will only determine the penalty.
The error, said the SC, is because of the title given
by fiscals to the information – Homicide through Q: What are the good examples of these?
Reckless Imprudence. It creates the impression A:
that the homicide is the crime. But actually, that  Estafa through Falcification of
is not the crime but only the effect of the felony. Commercial Documents
I will falsify the
VERANO VS. CA check by counterfeiting the signature of
115 SCRA 82 the drawer and encash the check. So, the
falcification was the crime committed as a
This reiterates the ruling in the Buan necessary means to defraud the bank –
case. What is the felony? It is the imprudent act. estafa.

LONTOK VS. GORGONIO  Forcible Abduction with Rape


89 SCRA 632 When the offender, with lewd
design abducted a woman and drove her
Facts: The felony is the homicide, the somewhere and through force and
physical injuries. The imprudent act is intimidation, had carnal knowledge with
only the manner of committing the felony her. The forcible abduction preceded the
because, according to Article 3, a felony is rape. The SC said that the crime is forcible
committed either by dolo or culpa. The abduction with rape.
culpa is not the felony, but only the
manner.  Malversation through Falsification of
Public Document
If you follow this case then, if the felony is
the injury, you cannot complex. There  Kidnapping with Murder
must be two, otherwise, there is double You kidnap somebody and demand
jeopardy, because one crime is different ransom. When there is no ransom paid,
from the other. you kill the hostage. It is very common.

Q: What is the crime committed?


A: The crime committed is the crime of
REODICA VS. CA Kidnapping with Murder. The kidnapping was used
292 SCRA 887 as means to effect the killing.

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.

Assuming, there is no Article 48. You killed PEOPLE vs. DE LEON


three people, there will naturally be reclusion
temporals. And even if they will give you the Facts: The suspect stole two roosters. So,
minimum of 12 years and 1 day, it will still turn there are two acts of taking. But it turned
out to be higher than the penalty in the maximum. out that there are also two owners.

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.

Issue: How many offense are there?

Continuous Crimes Held: There is double jeopardy. A


comparison of the two cases will tell us
The third type of formal or ideal plurality is that they refer to a series of acts
the concept of continuous crime or the so-called amounting to what is known as a
DELITO CONTINUADO. It is supposed to be a continuing offense. A single crime
crime which consists of a series of acts but all consisting of a series of acts but all arising
coming or emanating from one criminal resolution. from a criminal resolution. It is a
129
continuous unlawful acts or series of acts continuing act involving the same
set by a single impulse. Although there are transaction or as done in the same
series of acts, there is only one crime occasion. An American court held that a
committed. The crime of Mallare, although contrary rule will violate the conditional
a series of acts, was set on both by a guaranty against putting a man in
single intent or impulse to defraud jeopardy twice of the same offense.
Capaoan of the total of P3,000.
Another court observed that the
Actually, the original victim was doctrine of a single larceny rules that since
Capaoan. There is only one deceit that is a separate charge could be filed for each
committed by Mallare on the two victims. act, the accused may be sentenced for the
Because by mere betrayal of faith, the penalty for the rest of his life.
second victim, Saclolo had been dragged
into the swindle by reason of Capaoan The Supreme Court said that the 32
having only P1,500. at the time. That amended informations aver that the offenses were
there were two victims, however, will not committed on the same period of time that is, on
convert the crime into two separate or about October 17, 1988. The strong probability
offenses as the determining factor is the even exists that the approval of the application for
unity or the multiplicity of the criminal the legalization of the stay of the 32 aliens was
intent of the transactions. So, that is the done by a single stroke of the pen as when the
basis. approval was embodied in the same document.
One document, covering the 32 aliens, carried only
Santiago vs. Garchitorena one signature.
228 SCRA 214
However, for example, I am the cashier of
Facts: Miriam Defensor-Santiago was a corporation. Today, I ran away with the money.
charged criminally for the violation of the One week from now, I will spend again the money.
Anti-Graft and Corrupt Practices Acts, And after one week, nothing is left. That is not
allegedly by favoring aliens to benefit the continuado. The intent to defraud today is different
Alien Legalization Program. However, the from the intent to defraud next week. What results
prosecution sought to change the charges is a real plurality. There are as many crimes as
by filing 32 amended information since 32 there are as many left.
aliens were benefited. When the case
reached the Supreme Court, it directed the Q: Are delito continuado and complex crime the
prosecution to consolidate the 32 same?
informations into one information, A: No. They cannot be the same. Delito
charging only one crime. The court said continuado is not governed by Article 48. In
that the concept of delito continuado, complex crime, there is a single act which
although a product of the Spanish Penal produces two or more grave or less grave felonies.
Code, has been applied to crimes penalized In delito continuado, the offender performs a
under a special law. series of acts. One offense is not necessary to
commit the other. So, you do not say that we will
Issue: Is delito continuado applicable to maximize the penalty. Article 48 does not apply.
special laws? They have the same concept in the eyes of the
law, albeit there is complex crime and a special
Held: YES. Under Article 10 of the Penal complex crime. Delito contiuado is not governed
Code, the code is supplementary to special by Article 48.
laws, unless the latter provide the
contrary. Therefore, although that Q: Differentiate delito continuado from a
principle developed from the old Penal continuing crime?
Code, it may be applied in a A: There is no difference, it is the same. Delito
supplementary capacity to crimes punished continuado is in Spanish. It means a series of acts
by special laws. Delito continuado is also emanating from one criminal resolution. However,
recognized in American jurisprudence. The there is another continuing crime under Criminal
question of whether a series of criminal Procedure. That “when the ingredients of the
acts over a period of time raises a single crime took place in two or more places – and the
offense or separate offenses has also crime may be filed in the place where the crime
troubled American courts, as shown by was committed, or where any one of its essential
several theories. The American court, ingredients took place.”
following the Single Larceny Doctrine,
looks at the different criminal acts as one
130
For example, kidnapping. You are frustration of another crime, if the
kidnapped in Davao and then brought to Cotabato. law prescribes a higher penalty for
QUESTION: Where should the case be filed? either of the latter offenses, in
ANSWER: Either of the two places. That is also which case the penalty provided
called continuing crime. The place where the crime for the attempted or the frustrated
started, or where it continued. crime shall be imposed in its
maximum period.
The issue there is where the case is to be
prosecuted. The issue in delito continuado is how Q: What is the penalty for the felony committed
many crimes are committed. So, it is a different if it is different from the felony intended?
kind of continuing crime. That is why in order to A: According to Article 49, if the penalty for
avoid the confusion, in Criminal Procedure the felony committed is higher than the felony
term is rather called TRANSITORY CRIME, where intended, then the penalty should be based on the
the elements occur in two or more different places. felony intended, but it has to be in its maximum
And in order to confuse it with Criminal Procedure, period. On the other hand, if the penalty for the
the issue here is there is only one criminal impulse felony committed turns out to be lower than the
resulting in two or more acts. penalty for the felony intended, then the penalty
should be based on the felony committed, the
So, to properly answer the preceding same to be imposed in its maximum period.
question: Initially, you should say that they are
the same. One is in Spanish, and the other is in However, since the law speaks of felony
English. However, you should, if what is meant by committed and felony intended, then obviously it
continuing crime is a transitory crime under the refers to Article 4 (1), because that is the only
rule in Criminal Procedure, then this is the provision in the Revised Penal Code which uses
difference. In delito continuado, the issue is to those phrases “felony committed” and “felony
determine how many crimes are committed, and intended”. Under Article 4(1), a person incurs
whether there are two or more penalties; whereas criminal liability if he commits a felony although
in transitory crime, the issue here is to determine the wrongful act done is different from that which
in what court should the person be prosecuted. he intended. In other words, the question refers to
Because continuing crime could mean a crime that provision. And there are three situations
committed where the essential ingredients took contemplated here:
place in more than one place; or as delito
continuado.  praeter intentionem -- result
exceeded the intention
 aberration ictus – mistake of blow
 error in personae – mistake of
ARTICLE 49. Penalty to be imposed upon the identity
principals when the crime committed is different
from that intended. – In cases in which the
felony committed is different from that which Applying Article 49 to these three situations:
the offender intended to commit, the
following rules shall be observed:
1. If the penalty prescribed for the Praeter intentionem
felony committed be higher than
that corresponding to the offense The accused intended only to commit a
which the accused intended to crime of slight physical injuries punishable by
commit, the penalty corresponding arresto menor, but the victim died. So, the felony
to the latter shall be imposed in its committed is homicide punishable by reclusion
maximum period. temporal.
2. If the penalty prescribed for the
felony committed be lowered than Q: For what crime should he be prosecuted? If
that corresponding to the one we apply Article 49, he should be prosecuted for
which the accused intended to homicide because the penalty is higher. But once
commit, the penalty for the former he is found guilty, the penalty should be arresto
shall be imposed in its maximum menor, only to be imposed in its maximum period.
period. This is a crazy answer. Why will a person be
3. The rule established by the next sentenced to homicide and penalized for slight
preceding paragraph shall not be physical injuries? So, it will arrive at an absurd
applicable if the acts committed by conclusion by applying Article 49.
the guilty person shall also A: The correct answer is: he should be
constitute an attempt or prosecuted for homicide and, if found guilty, we
131
should impose the penalty for homicide, which is Q: Is he liable for the death of B?
reclusion temporal. However, we will give him the A: Yes, the crime he committed is murder. So,
mitigating circumstance that he did not intended the intended felony is murder of A, but the actual
to commit so grave a wrong as that committed. felony committed is murder of B.

Now, we say the penalty for the crime


Article 49 does NOT apply to praeter intended is higher. Both are murder. Whether it’s
intentionem, otherwise, an absurdity will a murder of A or a murder of B, it is still murder.
result. You do not say the penalty for this murder is
higher than the penalty for that murder. So, there
is no effect. You cannot say that the murder of A
carries a higher penalty than the murder of B, they
Aberration ictus are still the same.

The accused, with intent to kill A, fired his


gun towards A but because of his poor aim, he did
not hit A, but instead killed B. QUESTION: Is he Article 49 does NOT apply to error in personae
liable for killing B, although the latter is not the
intended victim? ANSWER. Yes.
Q: Where will you use Article 49?
Q: What is the proper penalty? A: I intend to kill my father. So, I shot my father
A: Obviously, that is a complex crime because a but when I looked closely, it turned out that it is
single act produced 2 felonies consummated not my father but someone who looks like my
homicide and attempted homicide. Since, it’s a father. So, the crime intended is parricide. The
complex crime under Article 48, the correct crime committed is homicide.
penalty is NOT based on the lower offense. It
should be based on the higher offense, to be Q: What is the penalty for parricide, the crime
imposed in its maximum period. You do not base intended?
the penalty on the attempted homicide but on the A: Reclusion temporal.
consummated homicide which should be
maximized. Q: What crime did I commit?
A: I am liable for the crime of homicide because I
This is the exact opposite of Article 49, killed a stranger. But the penalty of reclusion
where the impossible penalty is based on the lower temporal should be maximized.
penalty, which should be maximized. Under Article
48, it should be based on the higher penalty to be That illustrates Article 49, paragraph 2. If
maximized. the penalty prescribed for the felony committed be
lower than the corresponding to the one which the
accused intended to commit, the penalty for the
Q: Which will prevail between the two? former shall be imposed in its maximum period.
A: Obviously, Article 48 will prevail because it is
a complex crime. Suppose, we reverse the previous
problem. I attacked a stranger and killed him. But
when I looked at him, it was not a stranger but my
Article 49 does NOT apply to aberratio ictus father. So, the felony intended is homicide, but the
because it will conflict with Article 48. felony committed is parricide. QUESTION: For
what crime will I be prosecuted? ANSWER: For
parricide because I killed my father. But I did not
really intend to kill him but I intended to kill
Error in Personae somebody. So, if you are found guilty of parricide,
the court will not impose reclusion perpetua to
The accused, with intent to murder A, death, but only reclusion temporal in its
waits for him in the dark. The felony intended – maximum period because Article 49, paragraph 1
murder of A. So, he approached the intended says: If the penalty prescribed for the felony
victim from behind without giving the latter a committed be higher than that corresponding to
chance to defend himself and stabbed him to the offense which the accused intended to commit,
death. But it turned out it is not A, but a stranger the penalty corresponding to the latter shall be
B. imposed in its maximum period.

ARTICLE 50. Penalty to be imposed upon


132
principals of a frustrated crime. ---The such penalty.
penalty next lower in degree than that The lower or higher penalty shall be
prescribed by law for the consummated taken from the graduated scale in which is
felony shall be imposed upon the principal in comprised the given penalty.
a frustrated felony. The courts, in applying such lower or
higher penalty, shall observe the following
ARTICLE 51. Penalty to be imposed upon graduated scales.
principals of attempted crimes.--- A penalty
lower by two degrees than that prescribed by SCALE NO. 1
law for the consummated shall be imposed
upon the principals in an attempt to commit 1. Death
felony. 2. Reclusion perpetua
3. Reclusion temporal
ARTICLE 52. Penalty to be imposed upon 4. Prision mayor
accomplices in consummated crime. --- The 5. Prision correccional
penalty next lower in degree than that 6. Arresto mayor
prescribed by law for the consummated shall 7. Destierro
be imposed upon the accomplices in the 8. Arrersto menor
commission of a consummated felony. 9. Public censure
10. Fine
ARTICLE 53. Penalty to be imposed upon
accessories to the commission of a SCALE No. 2
consummated felony. --- The penalty lower
by two degrees than that prescribed by law 1. Perpetual absolute disqualification
for the consummated felony shall be imposed 2. Temporal absolute disqualification
upon the accessories to the commission of a 3. Suspension from public office, the
consummated felony. right to vote and be voted for, the
right to follow a professional
ARTICLE 54. Penalty imposed upon calling
accomplices in a frustrated crime. --- The 4. Public censure
penalty next lower in degree than prescribed 5. Fine
by law for the frustrated felony shall be
imposed upon the accomplices in the
commission of a frustrated felony. ARTICLE 60. Exception to the rules established in
Articles 50-57. --- The provisions contained in
ARTICLE 55. Penalty to be imposed upon Articles 50-57, inclusive, of this Code shall
accessories of a frustrated crime.--- The not be applicable to cases in which the law
penalty lower by two degrees than that expressly prescribes the penalty provided for
prescribed by law for the frustrated felony a frustrated or attempted felony, or to be
shall be imposed upon the accessories to the imposed upon accomplices or accessories.
commission of a frustrated felony.
Q: What is the penalty for the crime of homicide?
ARTICLE 56. Penalty to be imposed upon A: According to Article 249, the penalty for
accomplices in an attempted crime.--- The homicide is reclusion temporal.
penalty next lower in degree than that
prescribed by law for an attempt to commit a Q: Reclusion temporal is the penalty for homicide
felony shall be imposed upon the accomplices against whom, the principal, the accomplice or the
in an attempt to commit the felony. accessory?
A: According to Article 46, when the Penal Code
ARTICLE 57. Penalty to be imposed upon prescribes a penalty, it is understood as referring
accessories of an attempted crime.--- The to the penalty for the principal.
penalty lower by two degrees than that
prescribed by law for the attempted felony Q: What kind of homicide -- consummated, frustrated
shall be imposed upon the accessories to the or attempted?
attempt to commit a felony. A: Again, under Article 46, it is understood that
the penalty prescribed by the law is the one
ARTICLE 71. Graduated scales. --- In the applicable to the consummated. So, reclusion
case in which the law prescribed a penalty temporal is the penalty for the principal if the
lower or higher by one or more degrees than homicide consummated.
another given penalty, the rules prescribed in
Article 61 shall be observed in graduating
133
CONSUM FRUSTRA ATTEMPT This is, therefore, the manner of
MATED TED ED determining the penalty for attempted, frustrated
felony and accomplices and accessory.
Principal 0 1 2
But Article 60 says the penalty for the
accomplice or for the accessory, or the frustrated
or attempted felony (under Articles 50-57) should
not apply where the Penal Code provides a
Accomplic 1 2 3
separate exception. Because there are instances
e
when the penalty for the accomplice and the
Accessori 2 3 4 penalty for the principal is the same.
es
ARTICLE 268, RPC. Slight Illegal Detention -
- The penalty of reclusion temporal shall be
imposed upon any private individual who
shall commit the crimes described in Article
Q: What is the penalty for the accomplice and the 267 without the attendance of any of the
accessories in a consummated homicide? What is circumstances enumerated therein. The same
the penalty for the principal, accomplice and penalty shall be incurred by anyone who shall
accessory in a frustrated homicide? furnish the place for the perpetration of the
A: That is where Articles 50 to 57 will come in the crime x x x.
above graph is a summary of the entire Articles 50
to 57. Your starting point is zero (Article 46) SITUATION: If I detain somebody, I am the
principal. But if I use your house and you allowed
Q: If reclusion temporal is the penalty for the it, you are an accomplice. Under article 268, the
principal in a consummated homicide, what is the penalty for you and the penalty for are the same.
penalty for the principal if the homicide is It should not be one degree lower for you. So, this
frustrated? is an exception. There is no distinction between an
A: It is supposed to be 1 degree lower from the accomplice and a principal. The principal and
principal in a consummated homicide. accomplice fall under the same liability. That is the
application of Article 60.
Q: What is 1 degree lower from reclusion
temporal? ARTICLE 346, RPC. Liability of ascendants,
A: Article 71 will now apply. One degree lower is guardians, teachers, or other persons
the penalty of prision mayor. That is also the entrusted with the custody of the offended
penalty for the accomplice in a consummated party. -- The ascendants, guardians, curators,
homicide. teachers and any person who, by abuse of
authority or confidential relationship, shall
Q: Suppose, the homicide is only attempted, what cooperate as accomplice in the perpetration
is the penalty for the principal? of the crime embraced in Chapters Second,
A: Two degrees lower than the principal in the Third, and Fourth of this Title, shall be
consummated homicide. So, the penalty should punished as principals x x x.
be within the range of prision correccional. The
same answer for the penalty for the accomplice in The crime here is against chastity, which
a frustrated homicide, and penalty for the may either be rape, acts of lasciviousness,
accessory in a consummated homicide. So, all seduction corruption of minors, and abduction.
three are 2 degrees lower.
PROBLEM. A woman is raped. The accomplices
Q: What is the penalty for an accomplice in an of the rapist are parents or guardians. According
attempted homicide? to Article 346, the penalty for the rapist and the
A: It should be 3 degrees lower from the principal penalty for the accomplices are the same.
in a consummated homicide or arresto mayor. The
same thing for the accessory in a frustrated ARTICLE 121, RPC. Flight to enemy's
homicide. country -- The penalty of arresto mayor shall
be inflicted upon any person who owing
Q: What is the penalty for the accessory in an allegiance to the Government, attempts to
attempted homicide? flee or go to an enemy country when
A: Four degrees lower from the principal in a prohibited by competent authority.
consummated homicide. So, that is within the
range of destierro. PROBLEM. So, if you go to the enemy country
when you are not supposed to go there because
134
there is war, when you come back, you can be
prosecuted.

QUESTION. Suppose, you are attempting yet


(meaning you have not yet left), but you were
already caught, what is the penalty?
ANSWER. Still the same, as if you have already
gone there because the mere attempt to flee is the
same as consummated. So, this is another
example when the penalty for the attempt or the
consummation is the same.

ARTICLE 76. Legal period of duration of


divisible penalties. - The legal period of
duration of divisible penalties shall be
considered as divided into three parts,
forming three periods, the minimum, the
medium, and the maximum in the manner
shown in the following table:
135

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.

The medium period starts from 14 years, 8


months and one day + 2 years and 8 months = 16 ARTICLE 61. Rules for graduating penalties -- For
years, 16 months and 1 day. So, we have the purpose of graduating the penalties
transpose 12 months there to make that 17 years. which, according to the provisions of Articles
You subtract 12 months. It becomes 4 months. It 50 to 57, inclusive, of this Code, are to be
shall be 17 years and 4 months. imposed upon persons guilty as principles of
any frustrated or attempted felony, or as
Now, the maximum starts from 17 years, 4 accomplices or accessories, the following
months and 1 day, then you add again the same 2 rules shall be observed:
years and 8 months: 17 years, 4 months and 1 1. When the penalty prescribed for
day + 2 years and 8 months = 19 years, 12 the felony is single and indivisible,
months, or exactly 20 years. the penalty next lower in degrees
shall be that immediately following
Now, you find out if your answer that indivisible penalty in the
corresponds to the duration of the penalty. respective graduated scale
Minimum of the minimum is 12 years and 1 day. prescribed in Article 71 of this
The maximum of the maximum is 20 years. That is Code.
supposed to be the duration of the entire penalty. 2. When the penalty prescribed for
If you look at the table in Article 76, the answer is the crime is composed of two
the same. indivisible penalties, or of one or
more divisible penalties to be
The only penalty where our formula will impose to their full extent, the
not work is the penalty of arresto mayor. It will penalty next lower in degree shall
not tally. Let's try to demonstrate. Well, of course, be that immediately following the
arresto mayor has a duration of 1 month and 1 lesser of the penalties prescribed
day to 6 months. If you will look at Article 76, the in the respective graduated scale.
official partitioning of arresto mayor, it says there 3. When the penalty prescribed for
the minimum starts from 1 month and 1 day to 2 the crime is composed of one or
months, the medium is 2 months and 1 day to 4 two indivisible penalties and the
months and the maximum is 4 months and 1 day maximum period of another
to 6months. We will apply our formula and try to divisible penalty, the penalty next
find out whether our answer will be the same. lower in degree shall be composed
of the medium and minimum
6 months maximum - 1 month minimum = periods of the proper divisible
5 months. So, arresto mayor has a duration of 5 penalty and the maximum periods
months divided by 3. To make it easier, we will of the proper divisible penalty and
138
the maximum period of that homicide, parricide. That is the penalty for
immediately following in said robbery with homicide.
respective graduated scale.
4. When the penalty prescribed for Now, supposed I am only an accomplice
the crime is composed of several where the penalty is 1 degree lower. What is one
periods, corresponding to different degree lower? According to Article 61(2), the
divisible penalties, the penalty penalty which follows the lesser of the two. Now,
next lower in degree shall be which is the lesser of the two? Perpetua. What
composed of the period follows perpetua? Reclusion temporal. So, the
immediately following the penalty for an accomplice is reclusion temporal.
minimum prescribed and of the
two next following, which shall be Q. What is the penalty for the accessories?
taken from the penalty prescribed, A. What follows reclusion temporal? Prison
if possible: otherwise from the mayor. That's Rule #2, or when the penalty is
penalty immediately following in composed of one or more divisible penalties. The
the above mentioned respective penalty is composed of 2 divisibles, for example;
graduated scale. when the penalty of the crime is prision mayor to
5. When the law prescribes a penalty reclusion temporal. It is the entire range of 6
for a crime in some manner not years and 1 day to 20 years. That's the entire
especially provided for in the four duration. Two divisibles combined.
preceding rules, the courts,
proceeding by analogy, shall Now, what is the penalty for the
impose corresponding penalties accomplice? One degree lower. What is one
upon those guilty as principals of degree lower? The penalty which follows the
the frustrated felony or of attempt lesser of the two. Prision Mayor. So, the penalty
to commit the same, and upon which follows prision mayor is one degree lower.
accomplices and accessories. So, it's prision correccional followed by arresto
mayor.
Sometimes it is easy because you just follow
Article 71. What follows temporal? Prision Mayor. 3. When the penalty prescribed for the crime is
What follows Prision Mayor? Prision Correccional. composed of one or two indivisible penalties and
But sometimes, it might be difficult to determine the maximum period of another divisible penalty,
the graduation if the penalty is something the penalty next lower in degree shall be
different. So, Article 61 is the continuation of composed of the medium and maximum periods
Articles 50-57. of the proper divisible penalty and the maximum
period of the proper divisible penalty and the
1. When the penalty prescribed for the felony is maximum period of that immediately following in
single and indivisible, the penalty next lower said respective graduated scale.
in degree shall be that immediately following
that indivisible penalty in the respective There is only one example that you can
graduated scale prescribed in Article 71 for give there -- reclusion temporal maximum to
this Code. death, because death is indivisible. Reclusion
perpetua is indivisible followed by reclusion
Suppose, the penalty for the crime is temporal maximum, which is supposed to be
death, which is mandatory. Single, it is divisible.
indivisible. One degree lower is perpetua,
another degree lower is temporal. The same So, that is the rule. The trouble is you
thing with reclusion perpetua. This is just easy. cannot use it because under the Penal Code,
there is only one crime which carries that penalty
2. When the penalty prescribed for the crime is -- murder. But the trouble is the Heinous Crime
compound of two indivisible penalties, or of Law changed the penalty of murder to reclusion
one or more divisible penalties to be impose perpetua to death. So, there is no crime in the
to their full extent, the penalty next lower in Penal Code now which carries this kind of penalty.
degree shall be that immediately following the
lesser of the penalties prescribed in the 4. When the penalty provided for the crime is
respective graduated scale. composed of several periods, corresponding to
different divisible penalties, the penalty next lower
There is only one example: Reclusion in degree shall be composed of the period
perpetua to death. In the light of People vs. immediately following the minimum prescribed and
Roxas, perpetua is still indivisible penalty. That is of the two next following, which shall be taken
the penalty for murder. That is the penalty for from the penalty prescribed, if possible; otherwise
139
from the penalty immediately following in the degree lower. So, two degrees already, by
above mentioned respective graduated scale. analogy.

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
140
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
141
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.
142

Now, under paragraph 5 or Article 62, Q: Distinguish habitual delinquency from


where the culprit who is a habitual delinquent recidivism.
commits less serious physical injuries, he will be A:
penalized for such crime. But this time, the court RECIDIVISM HABITUAL
will have to impose upon him an additional DELINQUENCY
penalty. He shall be sentenced to an additional Recidivism is broader. But to be a habitual
penalty, ranging from prision correccional Any two offenses, all delinquent, the crimes
medium to maximum, and upon his 4th that is necessary is for are more specific. These
conviction, prision mayor minimum to medium. the two offenses are all limited to those
committed before and mentioned in Article 62.
You commit the same crime and you are now are embraced in
convicted for the 5th or 6th time. For every the same title of the
commission, the penalty should now range from Penal Code.
prision mayor maximum to reclusion temporal The second conviction is There must al least be a
minimum, a possible 10 years and 8 months. So, sufficient to make a third conviction.
you will notice that the additional penalty given is person a recidivist.
higher by 1,000 or 2,000 times than the principal There is no time The time gap between
penalty. limitation between the the previous conviction
prior conviction and the and present should not
Q: Is habitual delinquency a crime in itself? present conviction. It be more than 10 years.
A: No, even if it carries a penalty. It is a sort of could be twenty years
extraordinary aggravating circumstance which, if ago.
present in the commission of the felony, will call This simply maximize This cause for the
for the imposition of an additional penalty which the principal penalty for imposition of a separate
is separate and distinct of the principal penalty the new crime. and distinct additional
for the present crime committed. penalty.

Q: Can a person be a habitual delinquent and at


the same time a recidivist?
A: Yes. For example, my first conviction is PEOPLE vs KAPINITAN
robbery; the 2nd conviction is theft. Actually, upon
the second conviction, I am already a recidivist. Issue: May the court admit evidence to
My 3rd conviction is estafa. You will notice that prove habitual delinquency if the same was
the three offenses are all covered by Article 62. not alleged in the information, and the
So, I am a habitual delinquent, but I am also a evidence is previously objected to by the
recidivist because all crimes are embraced in the defense?
same title of the Penal Code. They are all crimes
against property. So, I am both a recidivist and, Held: In a previous ruling, that of People
at the same time, a habitual delinquent. vs Partinada, the Court ruled that if
recidivism is not alleged in the information,
Q: How will that affect the penalty? and it was vigorously objected to by the
A: Simple, since you are a recidivist, the penalty defense, the prosecution should not be
for present crime will have to be imposed in the allowed to prove it because it must be
maximum period. And because I am also a alleged in the information.
habitual delinquent, I will receive additional bonus
penalty under Article 62. So, there is no conflict Recidivism and habitual delinquency are
between the 2 sets of offenses. But the person almost the same. They belong to the same
can definitely also be a habitual delinquent family. There is no reason why the ruling in
without being a recidivist, if no 2 crimes out of Partinada will not apply. Hence, the trial court
the 3 are embraced in the same title of the Penal was correct in excluding the prosecutions,
Code. evidence with respect to the aggravating
circumstance of recidivism and habitual
For example, 1st conviction is serious delinquency, because these were not alleged in
physical injuries; 2nd conviction is estafa; 3rd the information and the presentation was
conviction is falsification. You will notice that not objected to vigorously by the defense counsel.
one of the three is embraced under the same title
in the Penal Code. Physical injuries is against While it is true that to prove recidivism. It
persons. Estafa is against property. Falsification is is necessary to prove the charge in the
against public interest. So, I am not a recidivist, information and to attach thereto certified copies
but definitely I am a habitual delinquent. of the sentences rendered against the accused
143
such aggravating circumstances may still be you surrender, the court will still impose the death
given credit thereto by the trial court if the penalty. Of course, you cannot also increase it
accused does not object to the presentation of because it is the highest. The same situation
evidence. applies if the penalty of the crime is perpetua
because it is still considered as indivisible. It shall
It is written that this pronouncement be imposed by the court regardless of any
applies specifically to recidivism. But we do not mitigating or aggravating circumstance.
see any reason why this cannot be applied by
analogy to habitual delinquency, which is also a Q: What happens if the crime carries reclusion
form of plurality of crimes. perpetua to death? What is now the effect of
mitigating or aggravating?
A: It depends. If there is an aggravating
circumstance, you impose the higher penalty, like
ARTICLE 63. Rules for the application of indivisible death. If there is a mitigating circumstance, and
penalties -- In all cases in which the law no aggravating circumstance, you impose the
prescribes a single indivisible penalty, it shall lower of the two -- perpetua. If there are two
be applied by the courts regardless of any mitigating and no aggravating, you still impose
mitigating or aggravating circumstances that perpetua.
may have attended the commission of deed.
In all cases in which the law So, in other words, either the higher or the
prescribes a penalty composed of two lower, upstairs or downstairs. But it shall not go
indivisible penalties, the following rules shall lower. The only way of lowering this to the penalty
be observed in the application thereof: much lower in degree is by privilege mitigating
1. When the commission of the circumstance. Ordinary mitigating has no more
deed there is present only one effect.
aggravating circumstance, the
greater penalty shall be applied. This is the reason cited by the SC in the
2. When there are neither second lucas decision, because in the original
mitigating nor aggravating decision, the SC ruled that perpetua is already a
circumstances and there is no divisible penalty. But upon reconsideration by the
aggravating circumstance, the SC en banc, it ruled despite RA 7659, which says
lesser penalty shall be applied. that perpetua has a duration of 20 years and 1 day
3. When the commission of the act to 40 years, it remains an indivisible penalty. Then
is attended by some mitigating the SC cited, as one of its reasons, Article 63,
circumstances and there is no when the penalty for the crime is composed of two
aggravating circumstance, the indivisible and there is only one example, perpetua
lesser penalty shall be applied. to death. Now, if you will say that perpetua is
4. When both mitigating and divisible, then Article 63 becomes obsolete.
aggravating circumstances
attended the commission of the
act, the court shall reasonably
allow them to offset one another ARTICLE 64. Rules for the application of
in consideration of their number penalties which contain three periods. -- In
and importance, for the purpose cases in which the penalties prescribed by
of applying the penalty in the law contain three periods, whether it be a
accordance with the preceding single divisible penalty or composed of three
rules, according to the result of different penalties, each one of which forms a
such compensation. period in accordance with the provisions of
Article 76 and 77, the court shall observe for
Q: What happens if a person is sentenced of a the application of the penalty the following
heinous crime, which carries a penalty of death rules, according to whether there are or are
only? So, the penalty is single and indivisible; only not mitigating or aggravating circumstances:
one penalty. There are many crimes now heinous
which prescribe the penalty of only death, 1. When there are neither
mandatory. aggravating nor mitigating
A: It should be imposed by the court regardless of circumstances, they shall impose
any mitigating or aggravating circumstances. So, the penalty prescribed by law in its
there is no more effect of mitigating. medium period.
2. When only a mitigating
Any ordinary mitigating circumstance can circumstance is present in the
no longer lower it, even if you plea guilty. Even if commission of the act, they shall
144
impose the penalty in its minimum that it may deem applicable, according to the
period. number and nature of such circumstances.
3. When both mitigating and
aggravating circumstance id For example, Vhenigna Vangkbiyud was
present in the commission of the convicted of
act, they shall impose the penalty homicide. The rial court appreciated the following
in its maximum period. modifying circumstance:
4. When both mitigating and  the aggravating
aggravating circumstances are circumstance of
present, the court shall reasonably nocturnity
offset those of one class against  the mitigating
the other according to their circumstance of passion
relative weight. and obfuscation
5. When there are two or more  the mitigating
mitigating circumstances and no circumstance of no intent
aggravating circumstances are to commit so grave a
present, the court shall impose the wrong
penalty next lower to that  illiteracy
prescribed by law, in the period  voluntary surrender
that it may deem applicable,
according to the number and The imposable penalty for homicide is
nature of such circumstances. reclusion temporal, the range of which is 12 years
6. Whatever may be the number and and 1 day to 20 years. Taking into account the
nature of the aggravating attendant mitigating and aggravating
circumstances, the courts shall not circumstances, and applying the Indeterminate
impose a greater penalty than that Sentence Law, determine the proper penalty to be
prescribed by law, in its maximum imposed upon the accused.
period.
7. Within the limits of each period, You can fix the maximum. There is 1
the court shall determine the aggravating. But the mitigating are many-- 4.
extent of the penalty according to What is the penalty? If we apply paragraph 4. 1
the number and nature of the mitigating offset the aggravating. So, there is a
aggravating and mitigating balance. And there is still 3 mitigating left. The
circumstances and the greater and penalty should be lowered by one degree because,
lesser extent of the evil produced according to paragraph 5, when there are two or
by the crime. more mitigating circumstance, the court shall
impose the penalty next lower that that prescribed
EXAMPLE: The crime is punishable by prision by law. But this will not apply because the law
mayor minimum, medium, maximum period. says two or more mitigating and no aggravating is
Alright, no mitigating, no aggravating. According present. So, when there is one aggravating,
to Article 63, the penalty should be somewhere paragraph 5 will not apply.
within the medium period. That would be ranging
from 8 years and 1 day to 10 years. If there is a In other words, the correct penalty there is
mitigating, the penalty should be fixed somewhere paragraph 2 -- the penalty should be in the
in the minimum period. On the other hand, if there minimum period. The condition laid down in
is an aggravating, it should be fixed within the paragraph 5 for the lowering of the penalty by 1
maximum period of prision mayor. degree if there are 2 or more mitigating
circumstances without any aggravating is not
Just like that. It all depends on any present. The law is very clear.
mitigating or aggravating. Now, if you know them,
try to offset them with each other. And after So, for example, when the crime,
offsetting, try to find out if there is a balance in punishable by reclusion temporal, was committed,
favor of either mitigating or aggravating. If there there was voluntary surrender, passions or
is no balance, then you apply Rule #1. It should obfuscation, no aggravating circumstance is
be within the medium. present, paragraph 5 should be applied. The
penalty should be lowered to prision mayor, 1
5. When there are two or more mitigating degree lower. However, since the problem states
circumstances and no aggravating circumstances that there is an aggravating circumstance of
are present, the court shall impose the penalty nocturnity, paragraph 5 can no longer apply. In
next lower to the prescribed by law, in the period other words, the penalty should still remain within
the range of reclusion temporal.
145
Code, and there is a distinction between reclusion
Now, suppose it is the other way around. perpetua and life imprisonment. That is why, the
There are 2 or more aggravating without any provisions of the RPC on the penalties will now
mitigating. Should the penalty be increased by 1 apply to the Dangerous Drugs Act.
degree? No, because of paragraph 5. No matter
how many aggravating circumstances are present, Q: How about in illegal possession of firearms?
you cannot increase the penalty by 1 degree The simple illegal possession under PD 1866, the
higher. The complete definition of aggravating penalty is reclusion temporal in its maximum
circumstance is, if present in the commission of period to reclusion perpetua. Now, can we apply
the crime, will call for the imposition of the Article 64 there? What is the maximum, medium,
maximum penalty without exceeding the penalty minimum period?
prescribed by the law. A: The only solution there is this: perpetua is
indivisible. That should be the maximum penalty;
Q: What happens of the penalty should be within the maximum period!
the medium period of prision mayor -- 6 years and
1 day to 10 years. Now, reclusion temporal maximum is
A: Now, according to paragraph 6, the court actually a divisible penalty. It has a range of 17
should sentence the accused to a specific penalty years, 4 months and 1 day to 20 years. The
stating the exact number of years, months and medium and the minimum must necessarily come
days within that range. Therefore, I can sentence from that penalty. How do you do it? By splitting
him to 6 years and 1 day. That us the least. I can the upper part and the lower part.
sentence him to 10 years, or any combination
within. So, practically there are 700 possibilities. 20 years minus 17 years and 4 months.
We will have to make this 19 years and 12 months
The SC has once said that the court should minus 17 years and 4 months. The difference is
be careful in fixing penalties because any error two years and 8 months. Divide it into two: 1 year
may have varied consequences, like in a case, and 4 months. Therefore, the minimum years
where the prison term imposed upon the accused should range from 17 years, 4 months and 1 day
has been increased erroneously, to unduly prolong to 18 years and 8 months.
the confinement of the accused even for just one
day is unjust in every sense of the word. And then to continue, it is 18 years, 8
moths and one day to 20 years. That is the
Take note that in divisible penalty, there medium. The lower part is the minimum; the
should be a maximum, medium and minimum for upper half is the medium. Perpetua, which you
the purpose of applying Article 64. cannot split is the maximum. That is the solution.

Q: Can we apply Article 64 to the crime of drug


pushing?
A: Now, technically the provisions of Article 64 PEOPLE vs. MISAL
does not apply to special laws except when that 244 SCRA 166
special law adopts the nomenclature of the
penalties in the Penal Code. When the special law The formula adopted by the Supreme
starts to use perpetua temporal, then the Court to apply Article 64 is: The penalty for the
provisions of the RPC will now apply. On the other single illegal possession of firearms is reclusion
hand, when the special law says: the penalty is 1 temporal maximum to reclusion perpetua. The
year and 10 months, obviously, this will not apply. maximum period perpetua; the medium is the
upper half of reclusion temporal maximum. The
In other words, there is no perpetua or minimum is the lower part of the reclusion
prision mayor or 1 degree lower in special laws. temporal maximum.
Because the rule on aggravating or mitigating is
only peculiar to crimes under the Penal Code, with
their own distinct names for penalties. When the ARTICLE 69. Penalty to be imposed when the
special law adopts the penalties in the Penal Code, crime committed is not wholly excusable. -- A
the provisions of the RPC. penalty lower by one or two degrees than
that prescribed by law shall be imposed if the
That is very clear in the case of People deed is not wholly excusable by reason of the
vs.Simon because before the Heinous Crime Law, lack of some of the conditions required to
the penalty for drug pushing was life justify the same or to exempt from criminal
improsonment to death, but ubder the Heinous liability in the several cases mentioned in
Crime Law, the penalty is reclusion perpetua to Article 11 and 12, provided that the majority
death. So, it adopted now the rules in the Penal of such conditions be present. The courts
146
shall impose the penalty in the period which it as an ordinary mitigating circumstance, where
may be deemed proper, in view of the we will apply only the minimum period. That is
number and nature of the conditions of how we reconcile Article 69 with Article 13(1).
exemption present or lacking.

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?

PEOPLE vs. CRISTOBAL Article 70. Successive service of sentence –


94 SCRA 244 When the culprit has to serve two or more
penalties, he shall serve them simultaneously
In order to avail the benefit of PD 603, a if the nature of the penalties will so permit
minor must be below 18 years at the time he otherwise, the following rules shall be
committed the crime, at the time he tried, at the observed:
time he was convicted, and at the time he applied In the imposition of the penalties, the
for suspended sentence. It is absurd when an order of their respective severity shall be
adult will be mixed with minors. Instead, if he followed so that they may be executed
wanted to apply for suspended sentence, he can successively or as nearly as may be possible,
avail it in another law, PD 968, but not PD 603 should a pardon have been granted, as to the
penalty or penalties first imposed, or should
Now, suppose, he committed the crime at age 14 they have been served out.
and was convicted at 21 years old, and he applied For the purpose of applying the
for the mitigating circumstance to lower the provisions of the next preceding paragraph
penalty by 2 degrees. The court denied it, the respective severity of the penalties shall
claiming that he is no longer a minor and be determined in accordance with the
sentenced him to reclusion temporal. This time, following scale:
the judge is wrong because the reckoning point of 1. Death,
the mitigating circumstance is not your age now, 2. Reclusion Perpetua,
but your age at the time you committed the crime. 3. Reclusion Temporal,
You cannot be deprived of that benefit because 4. Prision Mayor,
you cannot deny the fact that you are a minor at 5. Prision Correccional,
the time you committed the crime. So, do not 6. Arresto Mayor,
confuse this with PD 603. 7. Aresto Menor,
8. Destierro,
Q: Is it possible for a person to be sentenced one 9. Perpetual absolute
after the other simultaneously for several disqualification,
penalties? 10. Temporal absolute disqualification
A: It is possible 11. Suspension from public office, the
Suppose, you have many cases. You have right to vote and be voted for, the
three cases here in Davao City in the RTC. Every right to follow a profession or
branch you have a case. And you also have cases calling, and
in Tagum City. You have many convictions with 12. Public censure.
different penalties. All your convictions are now Notwithstanding the provisions of
final. How will you serve your penalties? the rule next preceding, the
According to Article, are these penalties capable of maximum duration of the
being served simultaneously? convict's sentence shall not be more than
three-fold the length of time corresponding
to the most severe of the penalties imposed
upon him. No other penalty to which he may
ARTICLE 69. Penalty to be imposed when the be liable shall be inflicted after the sum total
crime committed is not wholly excusable. – A of those imposed equals the same maximum
penalty lower by one or two degrees than period.
that prescribed by law shall be imposed if the Such maximum period shall in no
deed is not wholly excusable by reason of the case exceed
lack of some of the conditions required to forty years. In applying the provisions of this
justify the same or to exempt from criminal rule the duration of perpetual penalties (pena
liability in the several cases mentioned in perpetua) shall be computed at thirty years.
150
However, this is subject to the three-fold
If allowed, they should be served rule. According to the rule, the maximum stay in
simultaneously. If not possible, or their nature will jail for a person should not exceed the most
not allow it, then serve them successively. severe multiplied by 3.
Meaning, one after the other.
For example, for one offense, you are
Q: What penalties can be served simultaneously? sentenced to 1 year of prision correccional.
A: Those which are possible to be served Another offense, 6 months of arresto mayor;
simultaneously. For example, in one crime, I was another offense, 6 months. And then for another
sentenced to 6 years of prision correccional. In offense, you are sentenced to 8 months. Another
other crimes, I was sentenced to 15 years of crime 8 months, another crime 5 months, and still
temporary disqualification, or 20 years of absolute another crime 5 months.
disqualification. There is no imprisonment in
disqualification, but your right has been Now, if we are to let him serve the
suspended. Is it possible for me to serve them sentence one after the other, what is the total?
simultaneously? Yes. Four years and two months. So, that is your
penalty if you will serve them one by one. But if
But there are penalties which you cannot you will look at the nost serious, you multiply that
serve simultaneously because their nature will not by 3, so shorter by 1 year and 2 months. Under
allow it. For example, for one penalty, you are the three-fold rule, after serving three years, you
sentenced to 2 years of prision correccional. For should be released.
another penalty, you are sentenced for 2 years of
destierro. How can you be outside the jail and at Q: What happens to the 1 year and 2 months?
the same time within the jail? So, it is not allowed. A: It is as if served already. This is for the benefit
of the convict. Therefore, the three-fold rule does
Or, if all of them are of the same nature, not apply when the application of the rule will not
all imprisonment. Alright… for this crime 6 years benefit the convict.
of prision correccional, this one 4 years, another
one 1 year, then 6 months of arresto mayor, 40 For example, a penalty of one year for a
days of arresto menor. They are all the same crime, another crime is 6 months, another crime is
however, you cannot say that tomorrow, I will 2 months, 3 months and 1 month. Adding these
serve the prision correccional, the other day I all up totals two years. So, if you will apply the
served arresto menor, etc… you cannot do that. three-fold rule, six years. If served one after the
other, only two years. So, instead of shortening,
Meaning, after you are in jail for one day, you are prolonging. That is an instance of
you are only for one day for one penalty. So, misapplication of the three-fold rule.
these are the instances where the penalties would Now, suppose a person was found guilty of
not be served simultaneously. So, what will five counts of murder. He was sentenced to 25
happen? You serve them successively, one after years of reclusion perpetua for every murder. The
the other. total is 125 years. So, if we will apply the three-
fold rule, it would be shorter than 50 years. Now,
Q: How will I serve them? suppose he will survive. Will he be released,
A: You serve them in the order of severity. applying the three-fold rule? No, because of the
second to the last paragraph states, such
maximum period shall in no case exceed 40 years.
Severity Meaning, after 40 years, he should be released.
What happens to the remaining years? Never
For example, "Miss Vhenigna Vangkhiyud, mind it.
you are sentenced to death. Another crime, you
are sentenced to 20 years of reclusion temporal. Under the RPC, there is no such thing as
Still another crime, you are sentenced to 5 days of imprisonment for life. Because this article is
arresto menor. QUESTION: Which should be automatic. Even if I will sentence you for 100
served first? ANSWER: You first serve the death times of reclusion perpetua, after 40 years you
penalty. should be released because of this provision. So,
technically, under the RPC, there is no such thing
Q: Now, what happens to the reclusion temporal, as perpetual imprisonment, except the perpetual
to the arresto menor? disqualification, which, according to Article 41, will
A: Never mind, you are already dead! It is not the be for the rest of your life.
other way around. You start from the most severe
going down. So, that is the order of service. ARTICLE 41, RPC. Reclusion perpetua and
reclusion temporal, their accessory penalties. -
151
The penalties of reclusion perpetua and
reclusion temporal shall carry with them that ARTICLE 48, RPC. Penalty for complex crimes –
of civil interdiction for life or during the When a single act constitutes two or more grave
period of the sentence as the case may be, or less grave felonies, or when an offense is a
and that of perpetual absolute necessary means for committing the other, the
disqualification which the offender shall penalty for the most serious crime shall be
suffer even though pardoned as to the imposed , the same to be applied to its maximum
principal penalty, unless the same shall have period.
been expressly remitted in pardon. Let us compare the order of penalty with the
graduation of penalty:
That is why every country has its own system of
penalties. Our system is different from other Asian
countries. There are 3 systems of penalties which ARTICLE 71, RPC. Graduated Scales – In the
are recognized. One system is called “MATERIAL case in which the law prescribed a penalty
ACCUMULATION SYSTEM”. .Meaning, if you lower or higher by one or more degrees
commit 2 or more crimes and you are sentenced than another given penalty, the rules
to 2 or more penalties, you have to serve all of prescribed in Article 61 shall be observed in
them, even if it goes beyond the rest of your life. graduating such penalty.
Literally, you will die in jail of old age. If you will The lower or higher penalty shall be
not die after serving them all, you will be released. taken from the graduated scale in which is
If you will die earlier, it’s o.k. But that is practically comprised the given penalty. The courts, in
saying there is no hope for you. applying such lower or higher penalty, shall
observe the following graduated scales:
Another system is called “JUDICIAL
ACCUMULATION SYSTEM”. When you reach a SCALE NO. 1
certain point, you should be released already.
1. DEATH
The third system is the “ABSORPTION SYSTEM”. 2. RECLUSION PERPETUA
You only serve the highest penalty. The minor 3. RECLUSION TEMPORAL
penalties are deemed absorbed by the service of 4. PRISION MAYOR
the highest penalty. 5. PRISION CORRECCIONAL
6. ARRESTO MAYOR
Q: Which of the 3 is recognized by the RPC? 7. DESTIERRO
A: All of the 3 are recognized 8. ARRESTO MENOR
9. PUBLIC CENSURE
 The accumulation system is evident in the 10. FINE
first part of Article 70. That when the
nature of penalties will not allow a SCALE NO. 2
continuous service, he should serve them
in the order of severity. He should serve 1. PERPETUAL ABSOLUTE
them simultaneously under the material DISQUALIFICATION
accumulation system. 2. TEMPORAL ABSOLUTE
 The judicial accumulation system is DISQUALIFICATION
manifested in the 2nd part of Article 70 -- 3. SUSPENSION FROM PUBLIC
the “three – fold rule”. That the maximum OFFICE, THE RIGHT TO VOTE
system should not exceed the most severe AND BR VOTED FOR, THE RIGHT
multiplied by 3 and in no case should a TO FOLLOW A PROFESSION
person be confined for more than 40 OR CALLING
years. 4. PUBLIC CENSURE
 The “absorption system” is manifested in 5. FINE
article 48 – the penalty for the complex
crimes. The penalty for the complex In Article 70, the sequence of penalties
crimes is based on the higher offense to from arresto mayor down is arresto menor and
be imposed in the maximum period. destierro. If you will look at article 71, there are
differences. It’s in the reverse.
Q: What happens to the penalty for the lower
offense? Q: What penalty follows arresto mayor?
A: No more. It is absorbed. You only serve the A: The correct answer is: under Article 70, it is
highest penalty for the complex crime. So the 3 arresto menor followed by destierro; whereas in
systems are all recognized in the Revised Penal Article 71, it is destierro followed by arresto
Code. menor.
152
Q: Why is it that in Article 70, it is the reverse?
Q: Is there a conflict between these two articles? Arresto
A: There is no conflict because these 2 articles are Menor, which is a light penalty comes first before
talking of 2 different topics. destierro
which is correctional penalty. Why?
In Article 71, the issue is graduation of A: Destierro is a correctional penalty and does not
penalties; whereas in Article 70, the issue is involve the
successive service of sentence. imprisonment, but only banishment. Our common
sense will tell
EXAMPLE: A, B, and C are charged criminally. A us that the penalty which consists in the
as principal, B as accomplice, and C as accessory. deprivation
Suppose, all of them are found guilty. The penalty of freedom is more severe than a penalty which is
for A is arresto mayor. What is the penalty for B as not
an accomplice and C as an accessory? confinement.

What article do we have to apply there?


Article 70? Or Article 70? So, the issue in the Article. 72. Preference in the payment of the
above problem is not that whether you are civil liabilities. – The civil liabilities of a
sentenced to two or more penalties, but the issue person found guilty of two or more offenses
is what is one degree or two degrees. So, the shall be satisfied by following the
article to apply there is Article 71, because the chronological order of the dates of the final
issue is graduation – what is one degree or two judgments rendered against him, beginning
degrees lower. So, based on that, the answer is: with the first in order of time.
B as an accomplice should be sentenced to the
penalty of destierro, whereas C, as an accessory,
should be sentenced to arresto menor. Section three – Provision common in the last
two preceding sections
If you will apply Article 70, it is reversed.
It is now the accomplice who will be sentenced to Article 73. Presumption in regard to the
arresto menor and the accessory will be for imposition of accessory penalties. –
destierro. So, since that is the problem, the issue Whenever the courts shall impose a penalty
there again is the graduation of penalty and not which, by provision of law, carries with it
the successive sentence. other penalties, according to the provisions
of Articles 40, 41, 42, 43, 44 and 45 of this
Next, A is charged criminally for three Code, it must be understood that the
separate offenses, and he was found guilty in all of accessory penalties are also imposed upon
the crimes. For one crime, the court sentenced the convict.
him for 6 months or arresto mayor. For the second Article 74. Penalty higher than reclusion
crime, the court sentenced him for 6 years of perpetua in certain cases. – In cases in which
destierro, and for the third crime, he was the law prescribes a penalty higher than
sentenced to 5 days of arresto menor. QUESTION: another given penalty, without specifically
How will A serve these penalties? That is not designating the name of the former, if such
graduation, but that is the succession of higher penalty should be that of death, the
sentences. ANSWER: So, he has to serve first the same penalty and the accessory penalties of
penalty of 6 months of arresto mayor. After that, Article 40, shall be considered as the higher
he has to serve 5 days of arresto menor. After penalty.
that, he will now serve the penalty of destierro . PEOPLE VS. QUENALES
297 SCRA 667
So, we will not apply Article 71 because
what is asked is service of sentence. So, the
answer depends on what the question is. ARTICLE 66. Imposition of fines - - In imposing
fines, the courts may fix any amount within
Q: Now, why is that in Article 71, destierro is the limits established by the law; in fixing the
higher than arresto menor ? amount in each case attention shall be given,
A: It is because destierro is a correctional penalty, no only to the mitigating and aggravating
while circumstances, but more particularly to the
arresto menor is a light penalty. Obviously, a wealth or means of the culprit.
correctional
penalty ranks higher than a light penalty. Very Q: Are fines divisible into periods? Minimum,
simple. medium or maximum?
A: No, fines are not divisible into periods.
153
Prison From 6 From From 2 From 4
Q: Can they be graduated into degrees? 1 degree correc months 6 years 4 years, 2
lower, one cional and 1 month months months
degree higher? How do they graduate fines by suspe day to s and and 1 day and 1
degrees? nsion 6 years 1 day to 4 years day to 6
A: It is found in Article 75. and to 2 and 2 years
destie years months
rro and 4
ARTICLE 75, RPC: Increasing or reducing the month
penalty of fine by one or more degrees — s
Whenever it may be necessary to increase or Arrest From 1 From From 2 From 4
reduce the penalty of fine by one or more o month 1 to 2 months months
degrees, it shall be increased or reduced, mayor and 1 month and 1 day and 1
respectively, for each degree, by one- fourth day to s to 4 day to 6
of the maximum amount prescribed by law, 6 months months
without however, changing the minimum months
The same rules shall be observed with Arrest From 1 From From 11 to From 21
regard of fines that do not consist of a fixed o to 30 1 to 20 days to 30
amount , but are made proportional meno days 10 days
ARTICLE 76. Legal period of duration of r days
divisible penalties. - The legal period of
duration of divisible penalties shall be
considered as divided into three parts,
forming three periods, the minimum, the
medium, and the maximum in the manner ARTICLE 77. When the penalty is a complex one
shown in the following table: composed of three distinct penalties – In cases
in which the law prescribes a penalty
PENA ENTIR MINI MEDIUM MAXIM composed of three distinct penalties, each
LTIE E MUM UM one shall form a period, the lightest of them
S DURAT shall be the minimum the next the medium
ION and the most severe the maximum period.
Reclu From From From 14 From 17 Whenever the penalty prescribed does
sion 12 12 years, 8 years, 4 not have one of the forms specially provided
tempo years years months months for in this Code, the periods shall be
ral and 1 and 1 and 1 day and 1 distributed ,applying by analogy the
day to day to to 17 years day to prescribed rules.
20 14 and 4 20 years
years years months Q: What is a complex penalty?
and 8 A: A complex penalty is a penalty prescribed by
month law for a
s complex crime which is based on the higher
Prison From 6 From From 8 From 10 offense to be
mayor years 6 years and years imposed on its maximum period. This definition
, and 1 years 1 day to 10 and 1 sounds
absol day to and 1 years day to correct, but it is wrong. A complex penalty has
ute 12 day to 12 years nothing to do
disqu years 8 with complex crime. According to article 77, a
alifica years complex
tion penalty is a penalty composed is a penalty
and composed of three
specia distinct penalties each one shall form a period.
l
tempo The best example is the penalty for the
rary crime of treason committed by a resident alien,
disqu under Article 114, last paragraph. Treason may be
alifica committed by a Filipino citizen or a resident alien.
tion
Q: Suppose, a person who committed treason is
an alien, but
residing in the Philippines. Under Article 114, last
paragraph,
154
what is the penalty for that crime? Q: When is a period treated a degree? And when is
A: The penalty for a resident alien who commits a degree
treason is treated as a period? For example, a crime
reclusion temporal to death. So, there are 3, but punishable by
in one reclusion temporal in its maximum period .
penalty. In effect there are 3 penalties. A: For that crime, reclusion temporal maximum is
not a period,
but a degree. That is why, in determining what is
Q: Is that divisible? one degree
A: Yes, under Article 77, that is a divisible penalty. lower under Article 61, the medium is one degree
lower. That
Q: What is the maximum period? The minimum? is not a degree. That is why, it will have its own
A: According to Article 77, the lightest of them period. This
shall be the is when a period becomes a degree.
minimum. The next, the medium, and the most
severe is the Q: When is degree treated as a period?
maximum. With that, you can apply the effect of A: Death is normally is one degree. Reclusion
mitigating temporal is still
or aggravating circumstances under Article 64. If another degree. But in situations enumerated in
there is no Article 77,
mitigating, the penalty should be reclusion the three of them together as one, and each part
perpetua. If there is a period.
is aggravating, the alien will be sentenced to
death. And if
there is mitigating and no aggravating, the penalty
should be CHAPTER FIVE
in the range of reclusion temporal.
EXECUTION AND SERVICE OF PENALTIES
Q: What do you mean by degree, and what do you
mean by a Section One – General Provisions
period? What do you mean by a degree under the
law on ARTICLE 78. When and how a penalty is to be
penalty and what do you mean by a period? When executed – No penalty shall be executed
is a period except by virtue of a final judgment.
considered a degree and when is a degree
considered a A penalty shall not be executed in any
period? other form than that prescribed by law, nor with
A: A degree is a given penalty. It is the penalty any other circumstances or incidents than those
prescribed by expressly authorized thereby. In addition to the
law for the offense. Like for example, reclusion provisions of the law, the special regulations
temporal. prescribed for the government of the institutions in
That is one degree. Prision mayor, that is another which the penalties are to be suffered shall be
degree. observed with regard to the character of the work
Prision correccional, another degree. to be performed, the time of its performance, and
other incidents therewith, the relations of the
Q: What is a period? convicts among themselves and other persons, the
A: A period is 1/3 portion of the divisible penalty. relief which they may receive and their diet.
For
example, reclusion temporal, there are 3 The regulations shall make provisions for
parts: the separation of the sexes in different institutions,
or at least into different departments and also for
 reclusion temporal maximum the correction and the reform of the convicts.
 reclusion temporal medium
 reclusion temporal minimum
ARTICLE 79 Suspension of the execution and
So, reclusion temporal is a degree; reclusion service of the penalties in case of insanity.—
temporal When a convict shall become insane or an
maximum is a period. Reclusion temporal medium imbecile after final sentence has been
is another period. pronounced, the execution of the said
sentence shall be suspended only with
regard to the personal penalty, the
155
provisions of the second paragraph of right to defend himself, to present his evidence.
circumstance no. 1 of article 12 being And he is
observed in the corresponding cases. not competent to testify. So, his rights will be
If at any time the convict shall recover his violated if we
reason, his sentence shall be executed, will continue the trial.
unless the penalty shall have prescribed in
accordance with the provisions of this Code. Q: Suppose, he became insane when he was
The respective provisions of this Section already sentenced? What is the effect?
shall be observed if the insanity or imbecility A: Article 79. It is a ground to suspend the
occurs while the convict is serving the execution or service of the penalty.
sentence.

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
156
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
157
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.

Q: What is that radius? Section 1 states that the application of the


A: The court will specify that you are not allowed Indeterminate Sentence Law is mandatory.
to enter Because the law says, hereafter, imposing prison
the radius of not more than 250 kilometers or the sentence for the offense punished by the Penal
minimum, Code, the court SHALL sentence x x x What the
not less than 25 kilometers. law says is if a person is found guilty of a crime, a
sentence should cover a certain range. There
should be a maximum and a minimum.

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.

Second, are there privileged mitigating Q: Since there is no mitigating, there is no


circumstances? The application of Articles 68 and aggravating, should we not divide prision mayor
69. And then, the application of ordinary also into 3 parts – minimum, medium, maximum?
mitigating … in Article 64. You have to exhaust Meaning, if the maximum is within the range of
first all the known provisions of the RPC in finding reclusion temporal medium, the minimum should
the maximum sentence. also be within the range of prision mayor medium?
A: NO.
And then, after you have determined the
maximum, the next step is to determine the In other words, Article 64 is only for the
minimum sentence. You do not look for the maximum. Here, the discretion of the judge is
minimum and then go to the maximum. You have wider – the range of the entire penalty without
to look first for the maximum before you look for regard to any period. So, the best thing that you
the minimum. can get is the indeterminate sentence ranging
from 6 years and 1 day of reclusion temporal as
Example: A is accused of Homicide, as principal. maximum. Or, the worst thing – 12 years of
He was found guilty. There was no mitigating prision mayor as minimum to 17 years and 4
circumstance in his favor. There was also no months of reclusion temporal as maximum. That
aggravating. Now, impose the proper penalty will now be the penalty.
under the RPC and Indeterminate Sentence Law.
Q: Suppose, A was found guilty of homicide with
So we, will find out in the case of one mitigating circumstance. What will be the
Homicide, the penalty is reclusion temporal, with penalty?
its 3 periods: A: Applying Article 64, if there is a mitigating
circumstance, the penalty should be within the
Minimum : 12y, 1d to 14y8m minimum period. The best thing is 12 years and 1
Medium: 14y,8m,1d to 17y4m day as maximum.
Maximum : 17y,4m, 1d to 20y
Q: What is the minimum?
So, we will determine. Homicide is A: The same answer. That will be 6 years and 1
punishable by reclusion temporal and, in the day of prision mayor as minimum.
problem, there is no mitigating nor aggravating.
Applying the RPC, the penalty should be within the Or, if there is an aggravating
medium. As judge, you now have to impose the circumstance, apply Article 74 to the maximum of
exact numbers—the years, the months, and the reclusion temporal. It will now become 17 years,
days. And you have many choices. You can give 4 months and 1 day to 2 years and the minimum
him 14 years, 8 months and 1day. That is the is the same – 6 years and 1 day.
best. But you can impose upon him 17 years and
4 months. That is the worst. Or, any combination EXAMPLE: A is sentenced to 6 years and 1 day of
in between. prision mayor as minimum to 17 years and 4
months of reclusion temporal as maximum. You
So, for example, the court says, I will are now serving.
sentence you to 14 years, 8 months and 1 day
because I’m very liberal. That will now be the QUESTION: What happens after 6 years and 1
maximum sentence. The next step will be finding day? Can you demand a release?
the minimum. ANSWER: Of course, not. You cannot demand
such because that is not really your sentence.
The law says that the minimum should be Your sentence is 17 years and 4 months. There is
within the range of the penalty next lower in only a minimum under the Indeterminate
degree. So, what is the penalty next lower in Sentence Law. The real penalty is 17 years and 4
degree to reclusion temporal? It is prision mayor. months.
And what is the range of prision mayor? It is 6
years and 1 day to 12 years. Q: So, what is 6 years and 1 day for?
A: When you reach 6 years and 1 day, the
Now, the law says that you must now minimum, you are now qualified for parole. If you
impose the minimum within the range of 6 years go to the Board of Pardon and Parole, you will be
and one day. So, it would be 6 years and 2 days, considered. You will be released through parole.
etc… up to 12 years. Now, we will say that the But you have to comply with certain conditions. At
court will give him the best thing. I will give you least, you can enjoy with the society. If you
159
violate the conditions, you will be arrested to finish law for each. So, what will be our starting
your sentence. penalty? Prision mayor or Reclusion Temporal?
Lower the penalty by one degree because of
Remember, that you will not be Article 68(2). So, it goes down to Prision Mayor.
automatically paroled. You are only a candidate Then impose the proper penalty under the RPC
for parole. But whether you’re paroled or not will and the Indeterminate Sentence Law.
depend also on your stay within 6 years and 1
day. If, for example, during the 6 years and 1
day, your record is very bad, you cannot be PROBLEM: Vhenigna Vangkhiyud was convicted of
paroled. It will depend now on how you behave. homicide. The trial court appreciated the following
modifying circumstances. The aggravating
Now, suppose 6 years and 1 day have circumstance of nocturnity and the mitigating
passed. It is now the 7th year and no parole yet I circumstance of passion and obfuscation, no intent
favor for you until the 17th year. There, you will to commit so grave a wrong as that committed,
be released because you have reached your illiteracy and voluntary surrender. The imposable
maximum. That is the meaning of the penalty for homicide is reclusion temporal, the
Indeterminate Sentence Law. range of which is 12 years and 1 day to 20 years.

Q: What is the purpose for this?


A: According to the SC in the case of People vs. QUESTION: Taking into account the attendant
Docusin, the purpose of Indeterminate Sentence aggravating and mitigating circumstances and
Law is to uplift and redeem the value of all human applying the Indeterminate Sentence Law,
material and to prevent unnecessary and determine the proper penalty to be imposed on the
excessive deprivation of personal liberty and accused.
economic usefulness. That is the exact language ANSWER: Determine the maximum by applying all
of the SC. the known provisions of the RPC on penalties.
Well, the problem says there is one aggravating.
To simplify this, the individual, even during But there are 4 mitigating circumstances offsetting
his sentence can be useful to society. When the aggravating circumstances of nocturnity. With
paroled, he is not anymore in jail, but can mix with one aggravating and four mitigating, there is a
the community, look for a job, and feed his family. balance of 3 mitigating in favor of the offender.
And also for this reason, the government is
benefited. It would lessen the inmates in the jails, Applying Article 64(5), since there are 4
thereby lessening mouths to feed and mitigating, I will fix the penalty 1 degree lower –
decongesting prisons. prision mayor – because Article 64(5) says if there
are two mitigating without any aggravating x x x
Now, under the Indeterminate Sentence Even if you still have a balance of three, you only
Law, do not start from the minimum period going apply the provision that it should be within the
up to maximum period because the maximum minimum period.
might still so down, or go up.
Therefore, the maximum penalty should be
Q: How do you determine the maximum? within the range of reclusion temporal. It is not
A: By applying all the applicable provisions of the necessary for you to give the precise number of
Revised Penal Code. years. It is enough if you’ll just say within the
PROBLEM: X is accused of a complex crime of range of reclusion temporal minimum.
homicide with less serious physical injuries. Take
note that homicide is punishable by reclusion And now, under the Indeterminate
temporal. Less serious physical injuries is Sentence Law, the proper penalty should be within
punishable by arresto mayor. However, it is the range of prision mayor, the penalty next lower
established during trial that he was only 17 years in degree anywhere within the range of the entire
old at the time he committed the crime. And after penalty. You do not have to say how many years.
its commission, he voluntarily surrendered to the
authorities, plus the fact that he entered a plea of But suppose there is no aggravating
guilty upon arraignment. QUESTION: Based on circumstance and there are four mitigating
these facts, impose the proper penalty under the circumstances. Therefore, applying Article 64, the
RPC and under the Indeterminate Sentence Law. penalty should be lower by one degree. Meaning
the maximum should be within the range of prision
Q: What is the rule? mayor, and the minimum should be within the
A: First, look for the maximum… He is accused of range of prision correccional. There is a danger if
a complex crime of homicide with less serious you start determining the penalty from the
physical injuries, with the penalty prescribed by minimum going up. You should start from the
160
maximum going down. That is the correct at the time of approval of this Act, except as
application of the Indeterminate Sentence Law. provided in Section 5 hereof.

Q: Is the Indeterminate Sentence Law applicable There is no such thing as reclusion


to crimes punished under special laws? perpetua as minimum and death as the maximum.
A: Yes, because according to Section 1, x x x if the Or if the person is sentenced to life imprisonment,
offense is punished by another law, the court shall the sentence will be within that period.
sentence the accused to an indeterminate
sentence, the maximum term of which shall not Suppose, the penalty is reclusion
exceed the maximum term fixed by said law and perpetua. Obviously, life imprisonment is not the
the minimum shall not be less than the minimum same as reclusion perpetua. However, by
term prescribed by the same. As a matter of fact, practice, the Supreme Court, for the purpose of
it is easier to apply the Indeterminate Sentence the Indeterminate Sentence Law, has considered
Law to crimes punished by special laws. life imprisonment and reclusion perpetua as
analogous because, when a person is sentenced to
Q: Give an example of a penalty found in special reclusion perpetua, the court will just simply say:
laws. You are hereby sentenced to reclusion perpetua
A: For example: Anyone who is found guilty of without any minimum. They will just impose it
violation of this Act shall, upon conviction, be without a minimum penalty.
punished by imprisonment ranging from 1 year to
5 years. For example, a person commits a crime
punished by reclusion perpetua to death. The
That is not prision correccional. One year crime is a heinous crime. But since, for example,
to five years. That’s it. There is no more degrees he is entitled to a privileged mitigating
lower or higher. Under the Indeterminate circumstance, the penalty will be lowered. It will
Sentence Law, it will sentence you to the go down to reclusion temporal. QUESTION: Is he
maximum, the maximum would be anywhere entitled to the benefit of the Indeterminate
within that range, and the minimum should also be Sentence Law? That the range must be within the
within that range. So, I can say one year as period of prison mayor and reclusion temporal?
minimum to five years as maximum. Or, one year
as minimum to four years as maximum.
Anywhere between one to five, for as long as it
does not go down to less that one, or exceed five. PEOPLE vs. ROQUE
For penalties under special laws, there is no such
thing as periods, no such thing as one degree The Supreme Court applied the
lower. This is easier. Just fix it anywhere within Indeterminate Sentence Law despite the
the prescribed penalty. fact that the accused committed a capital
offense. Because since the penalty will be
In other words, the court will just impose lowered by one degree, the imposable
the straight penalty, only the maximum without penalty is reclusion temporal. Since the
any minimum. So, obviously, the convict has no penalty is now reclusion temporal, the
chance of being paroled or commutation. These Indeterminate Sentence Law is applicable
are out of the question. because the imposable penalty is not
death, reclusion perpetua or life
imprisonment.

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.

 To those convicted of treason, It is awkward that only minors are entitled


conspiracy of proposal to commit to suspended sentence. Because we cannot deny
treason; the fact that not everybody is a natural-born
 To those convicted of misprision of criminal. When we commit a mistake only once, it
treason, rebellion, sedition or is too harsh that you have no choice but to go to
espionage; jail. So, in the same manner that a minor proves
 To those convicted or piracy; to reform, the suspended sentence will be
 To those who are habitual forgotten. That should also be applied to adults.
delinquents; We call him the probationer. In the same pattern
 To those who shall have escaped that the child will apply for suspended sentence
from confinement or evaded with the court, the convict adult must also apply
sentence; for probation.
 To those who having been granted
conditional pardon by the Chief With the minor, the court will refer him to
Executive shall have violated the the DSWD. With the adult, the case will be
terms thereof; referred to the Probation Administration. So, there
 To those who maximum term of is a city probation officer, provincial probation
imprisonment does not exceed one officer for case study and recommendation. If the
year; recommendation is favorable and there is nothing
 Not to those already sentenced by in law which disqualifies you, the court will
final judgment at the time of suspend your sentence, subject to certain
approval of this Act, except as conditions. If you break the conditions, then you
provided in Section 5 hereof. serve your sentence. If you do not break the
conditions during the period of probation, then you
So, definitely, if you are charged with pass. Forget about your sentence. You are a free
arresto menor, there is no indeterminate sentence man. That is what the Probation Law is all about.
there. That is straight. Even in arresto mayor, it’s
the same. In the first place, there is no Board of
Pardon and Parole in the city jail. It is only the
national penitentiary. SECTION 4: Grant of Probation. -- Subject to
the provisions of the Decree, the trial court
162
may, after it shall have convicted and application. Instead, he would file a notice
sentenced a defendant, and upon application of appeal.
by said defendant within the period of
perfecting an appeal, suspend the execution The court a quo said that he could
of the sentence and place the defendant on not do that anymore because under
probation for such period and upon such Section 4, from the moment he filed an
terms and conditions as it may deem best; application for probation, he is waiving his
Provided, that no application for probation right to appeal.
shall be entertained or granted of the
defendant has perfected the appeal from the Held: The trial court is wrong. Probation
judgment or conviction. and appeal are both for the benefit of the
Provision may be granted whether the accused. He can change his mind. The
sentence imposes a term of imprisonment or important thing is that he is not availing of
a fine only. An application for probation shall both, and provided he does one of the two
be filed with the trial court. The filing of the within 15 days. The choice is not
application shall be deemed a waiver of the irrevocable so long as it is done within 15
right to appeal. days.
An order granting or denying
probation shall not be appealable.
SECTION 9. Disqualified Offenders. – The
Actually, the Probation Law applies not benefits of this Decree shall not extend to
only to people who are sentenced to those:
imprisonment, but including those who have been A.) sentenced to serve a maximum of
sentenced to pay fine with subsidiary imprisonment of more than 6
imprisonment in case of insolvency. They are also years;
covered by that. B.) convicted by subversian, or any
crime against the national security
Now, one important point about Section 4 or the public order;
is that when you are convicted in a court, you C.) who have previously been
have two options: convicted by final judgment of an
offense punished by imprisonment
 Appeal, or of not less than one month and
 Apply for probation. one day and/or a fine of not less
than P200;
And you must apply for probation within the period D.) who have been once on probation
to appeal. You cannot apply for probation after 15 under the provisions of this
days. You choose between the two. Decree; and,
E.) who are already serving sentence
Q: Can I appeal and later on, when I am found at the time the substantive
guilty and the judgment become final, apply for provisions of this Decree became
probation? applicable pursuant to Section 33
A: Under the law, you cannot have your cake and hereof.
eat too. When you file a petition for probation,
you are automatically waiving your right to appeal. Q: Who are disqualified offenders:
You are accepting the correctness of the decision. A: They are people who are not qualified. Even if
If you appeal, than you stake your future in that they will apply, the application will be
appeal. In the event that your conviction is automatically denied. But there are also people
affirmed, then you cannot say that you will now who are not disqualified under Section 9, but the
apply for probation. Now, you go to jail. court may still deny the probation because of
Probation and appeal cannot go together. Section 8.

Yusi vs. Morales


121 SCRA 653
SECTION 8. Criteria for Placing an Offender on
Facts: The accused was convicted. What Probation – In determining whether an
the lawyer did was, within 15 days, he offender may be placed on probation, the
applied for probation. Four or five days court shall consider all information relative to
after the date of the application, the the character, antecedents, environment,
accused changed his mind. So, through mental and physical condition of the
his lawyer he sought to withdraw his offender, and available institutional and
community resources. Probation shall be
163
denied if the court finds that: Held: She is not entitled to probation.
A.) the offender is in need of The language of the law is that when you
correctional treatment that appeal, you cannot apply for probation.
can be provided effectively She has already appealed.
by his commitment to an
institution; Should an appeal bar an accused
B.) there is an undue risk that from applying for probation, if the appeal
during the period of is reduced the penalty within the
probation the offender will probational limit…while the proposition is
commit another crime; or, equitable to allow the accused to apply for
C.) probation will depreciate probation, we are not yet prepared to
the seriousness of the accept this interpretation under existing
offense committed. laws and jurisprudence.

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.

Now, if you pass the period of probation,


no problem. You will be disbarred. If you will not
pass or if you violated the conditions, you will be
arrested, then summary hearing to determine or
to prove that there was violations. And then the
probation is lifted. You will not serve
imprisonment.

Suppose you pass. The court, according to


Section 16, will now order your final discharge and
the final discharge of the prabationer shall operate
to restore to him all civil rights lost or suspended,
as a result of his conviction, and to fully discharge
his liability for any fine imposed as to the offense
for which the probation was granted.

Meaning, of you are sentenced to pay a


fine with subsidiary imprisonment and you apples
for probation, the probation will erase the payment
of the fine forever. Try to compare that with the
subsidiary penalty under Article 39, which provides
that the service of the subsidiary imprisonment will
not relieve you from paying the fine in the future if
you become solvent. In probation, payment of the
fine is discharged.

Q: What happens to the civil liability? Will


probation extinguish the civil liability?
A: No, the civil liability is distinct and separate
from the criminal. Section 16 only discharges the
accused from payment of the fine. There is no
mention of civil liability. It will still have to be paid
to the offended party.

Q: How do you distinguish parole from probation?


A:
PAROLE PROBATION
Under the Under the Probation Law
Indeterminate Law
You have to serve first You do not have to
your sentence. You serve anything. The

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