Professional Documents
Culture Documents
Justifying Circumstances
Justifying Circumstances
Chapter Two
Imputability, defined.
Imputability - the quality by which an act may be ascribed to a person as its author or owner.
It implies that the act committed has been freely and consciously done and may, therefore,
be put down to the doer as his very own.
Responsibility, defined.
Responsibility - the obligation of suffering the consequences of crime. It is the obligation of
taking the penal and civil consequences of the crime.
Meaning of “guilt.”
Guild - an element of responsibility, for a man cannot be made to answer for the
consequences of a crime unless he is guilty.
JUSTIFYING CIRCUMSTANCES
Definition
Justifying circumstances are those where the act of a person 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
criminal and civil liability.
ARTICLE 11. JUSTIFYING CIRCUMSTANCES. - THE FOLLOWING DO NOT INCUR ANY
CRIMINAL LIABILITY:
Self-defense.
In self-defense, the burden of proof rests upon the accused. His duty is to establish self-
defense by clear an convincing evidence, otherwise, conviction would follow from his
admission that he killed the victim. He must rely on the strength of his own evidence and not
on the weakness of that for the prosecution.
The Plea of self-defense cannot be justifiably entertained where it is not only uncorroborated
by any separate competent evidence but in itself is extremely doubtful.
Requisites of self-defense
1. Unlawful aggression
- is equivalent to assault of an immediate and imminent kind. There is unlawful
aggression when the peril to one’s life, limb or right is either actual or imminent. There must
be actual physical force or actual use of weapon.
- there must be an actual physical assault upon a person, or at least a threat to inflict real
injury.
- it presupposes an actual, sudden, and unexpected attack, or imminent danger thereof, and
not merely threatening or intimidating attitude.
The attacked made by the deceased and the killing of the deceased by the defendant
should succeed each other without appreciable interval of time.
- In order to justify homicide on the ground of self-defense, it is essential that the killing of
the deceased by the defendant be simultaneous with the attack made by the deceased, or at
least both acts succeeded each other without appreciable interval of time.
- When the killing of the deceased by the accused was after the attack made by the
deceased, the accused mut have no time nor occasion for deliberation and cool thinking.
The belief of the accused may be considered in determining the existence of unlawful
aggression.
There is self-defense even if the aggressor used a toy pistol, provided the accused believed it
was a real gun.
When only minor physical injuries are inflicted after unlawful aggression has ceased to exist,
there is still self-defense if mortal wounds were inflicted at the time the requisites of self-
defense were present.
Perfect equality between the weapon used by the one defending himself and that of the
aggressor is not required, because the person assaulted does not have sufficient tranquility of
mind to think, to calculate and to choose which weapon to use.
“Sec. 26. Battered Women Syndrome as a Defense. -- Victim-survivors who are found by the
courts to be suffering from battered women syndrome do not incur criminal and civil liability
notwithstanding the absence of any of the elements for justifying circumstances of self-
defense under the Revised Penal Code.
More graphically, the battered woman syndrome is characterized by the so-called “cycle of
violence,” which has three phases:
(1) the tension-building phase;
(2) The acute battering incident; and
(3) The tranquil, loving (or, at least, nonviolent) phase.
Requisites:
1. Unlawful aggression;
2. Reasonable necessity of the means employed to preven or repel it; and
3. The person defending be not induced by revenge, resentment, or other evil motive.
“Damage to another.”
This term covers injury to persons and damage to property.
“That the injury feared be greater than that done to avoid it.”
“The greater evil should not be brought about by the negligence or imprudence of the actor.”
“When the accused was not avoiding any evil, he cannot invoke the justifying circumstance
of avoidance of a greater evil or injury.”
“The evil which brought about the greater evil must not result from a violation of law by the
actor.”
Requisites:
1. That the accused acted in the performance of a duty or in the lawful exercise or a right or
office;
2. That the injury caused or the offense committed be the necessary consequence of the due
performance of duty or the lawful exercise of such right or office.
Requisites:
1. That an order has been issued by a superior.
2. That such order must be for some lawful purpose.
3. That the measn used by the subordinate to carry out said order is lawful.
Both the person who gives the order and the person who executes it, must be acting within
the limitations prescribed by law.
When the order is not for a lawful purpose, the subordinate who obeyed it is criminally liable.
When subordinate is not liable for carrying out an illegal order of his superior, if he is not
aware of the illegality of the order and he is not negligent.
EXEMPTING CIRCUMSTANCES
Definition
- are those grounds for exemption from punishment because there is wanting in the agent of
the crime any of the conditions which make the act voluntary or negligent.
Basis
- the exemption from punishment is based on the complete absence of intelligence, freedom
of action, or intent or on the absence of negligence on the part of the accused.
3. A PERSON OVER NINE YEARS OF AGE AND UNDER FIFTEEN, UNLESS HE HAS
ACTED WITH DISCERNMENT, IN WHICH CASE, SUCH MINOR SHALL BE
PROCEEDED AGAINST IN ACCORDANCE WITH THE PROVISIONS OF ATICLE 80
OF THIS CODE.
4. ANY PERSON WHO, WHILE PERFORMING A LAWFUL ACT WITH DUE CARE,
CAUSES AN INJURY BE MERE ACCIDENT WITHOUT FAULT OR INTENTION OF
CAUSING IT.
Insanity at the time of the commission of the felony distinguished from insanity at the time
of the trial.
- when he was sane at the time of the commission of the crime, but he becomes insane at the
time of the trial, he is liable criminally. The trial, however, will be suspended until the mental
capacity of the accused be restored to afford him a fair trial.
Paragraph 3, Article 12 of the RPC impliedly repealed by Republic Act No. 9344.
Children above fifteen but below eighteen years of age who acted without discernment
exempt from criminal liability.
- a minor under eighteen but above fifteen must have acted with discernment to incur
criminal liability. The minor is presumed to have acted without discernment since the phrase
“unless he/she acted with discernment” indicates an exception to the general rule that a
minor under 18 but above 15 has acted without discernment.
- Thus, it is incumbent upon the prosecution to prove that a minor who is over 15 but under
18 years of age has acted with discernment, in order for the minor not to be entitled to this
exempting circumstance.
Meaning of “discernment.”
- Discernment means the capacity of the child at the time of the commission of the offense to
understand the difference between right and wrong and the consequence of the wrongful act.
Elements:
1. A person is performing a lawful act;
2. With due care;
3. He causes an injury to another by mere accident;
4. Without fault or intention of causing it.
What is an accident?
- an accident is something that happens outside the sway of our will, and although it comes
about through some act of our will, lies beyond the bounds of humanly foreseeable
consequences. If the consequences are plainly foreseeable, it will be a case of negligence.
Elements:
1. That the compulsion is by means of physical force.
2. That the physical force must be irresistible.
3. That the physical force must come from a third person.
- this exempting circumstance also presupposes that a person is compelled to commit a crime
by another, but the compulsion is by means of intimidation or threat, not force or violence.
Elements:
1. That the threat which causes the fear is an evil greater than or at least equal to, that which
he is required to commit;
2. That it promises an evil of such gravity and imminence that the ordinary man would have
succumb to it.
Requisites:
1. Existence of an uncontrollable fear;
2. The fear must be real and imminent; and
3. The fear of an injury is greater than or at least equal that committed.
“Actus me invito factus non est meus actus.” (“An act done by me against my will is not my
act.”
PARAGRAPH 7 - ANY PERSON WHO FAILS TO PERFOR AN ACT REQUIRED BY
LAW, WHEN PREVENTED BY SOME LAWFUL OR INSUPERABLE CAUSE.
Elements:
1. That an act is required by law to be done;
2. That a person fails to perform such act;
3. That his failure to perform such act was due to some lawful or insuperable cause.
In justifying circumstances, there is neither a crime nor a criminal. No civil liability, except
in Par. 4 (causing damage to another state of necessity).
2. In exempting circumstances, there is a crime but no criminal liability. The act is not
justified, but the actor is not criminally liable. There is civil liability, except in Pars. 4 and 7
(causing an injury by mere accident; failing to perform an act required by law when
prevented by some lawful or insuperable cause) of Art. 12.
Assurance of immunity by a public officer does not exempt a person from criminal liability.
MITIGATING CIRCUMSTANCES
Definition
- are those which, if present in the commission of the crime, do not entirely free the actor
from criminal liability, but served only to reduce the penalty.
B. Art. 69. Penalty to be imposed when the crime committed is not wholly excusable -
a penalty lower by one or two decrees than that prescribed by law, provided that the
majority of such conditions are present.
C. Art. 64. Rules for the application if penalties which contain three periods. When there are
two or more mitigating circumstances and no aggravating circumstances are present, the
court shall impose the penalty next lower to that prescribed by law, in the period that it may
deem applicable, according to the number and nature of such circumstances.
Distinctions
1. Ordinary mitigating is susceptible of being offset by any aggravating circumstance; while
privilege mitigating cannot be offset by aggravating circumstance.
2. Ordinary mitigating, if not offset by an aggravating circumstance, produces only the effect
of applying the penalty provided by law for the crime in its minimum period, in case of
divisible penalty; whereas, privileged mitigating produces the effect of imposing upon the
offender the penalty lower by one or two degrees than that provided by law for the crime.
Paragraph 1 of Article 13 is applicable only when unlawful aggression is present but the
other two requisites are not present in any of the cases referred to in circumstances Nos. 1,2
and 3 of Article 11.
Paragraph 2, Article 13 of the RPC impliedly repealed by Republic Act No. 9344
- whereas before, an offender fifteen or over but under eighteen years of age is entitled only
to the benefits provided under Article 68 of the RPC, under R.A. No. 9344, such offender
may be exempt from criminal liability if he/she acted without discernment. On the other
hand, if such offender acted with discernment, such child in conflict with the law shall
undergo diversion programs provided under chapter 2 of R.A. No. 9344.
Meaning of Diversion and Diversion Program under Republic Act No. 9344
- Diversion refers to an alternative, child-appropriate process of determining the
responsibility and treatment of a child in conflict with the law on the basis of his/her social,
cultural, economic, psychological, or educational background without resulting to formal
court proceedings.
- Diversion Program refers to the program that the child in conflict with the law is required
to undergo after he/she is found responsible for an offense without resorting to formal court
proceedings.
This circumstance can be taken into account only when the facts proven show that there is a
notable and evident disproportion between the means employed to execute the criminal act
and its consequences.
Article 13, paragraph 3, is not applicable when the offender employed brute force.
- to prove this circumstance, the accused testified that “my only intention was to abuse her,
but when she tried to shout, I covered her mouth and chocked her and later I found out that
because of that she died.” The Supreme Court: “It is easy enough for the accused to say that
he had no intention to do great harm. But he knew the girl was very tender in age, weak in
body, helpless and defenseless. He knew or ought to have known the natural and inevitable
result of the act of strangulation, committed by men of superior strength, specially on an
occasion when she was resisting the onslaught upon her honor. The brute force employed by
the appellant, completely contradicts the claim that he had no intention to kill the victim.”
What is provocation?
- is understood as any unjust or improper conduct or act of the offended party, capable of
exciting, inciting, or irritating any one.
Requisites:
1. That the provocation must be sufficient;
2. That it must originate from the offended party; and
3. That the provocation must be immediate to the act, i.e., to the commission of the crime by
the person who is provoked.
Requisites:
1. That there be a grave offense done to the one committing the felony, his spouse, ascendants,
descendant, legitimate, natural or adopted brothers or sisters, or relatives by affinity within
the same degrees;
2. That the felony is committed in vindication of such grave offense. A lapse of time is allowed
between the vindication ad the doing of the grave offense.
Passion or obfuscation MAY lawfully arise from causes existing only in the honest belief of
the offender.
When the warrant of arrest had not been served or not returned unserved because the
accused cannot be located, the surrender is mitigating.
The law does not require that the surrender be prior to the order of arrest.
The Revised Penal Code does not make any distinction among the various moments when
the surrender may occur.
The surrender must be by reason of the commission of the crime for which defendant is
prosecuted.
Physical defect must restrict means of action, defense, or communication with fellow beings.
- physical defect referred to in this paragraph is such as being armless, cripple, or a stutterer,
whereby his means to act, defend himself or communicate with his fellow beings are limited.
Requisites:
1. That the illness of the offender must diminish the exercise of his will-power.
2. That such illness should not deprive the offender of consciousness of his acts.
When the offender completely lost the exercise of will-power, it may be an exempting
circumstance.
- when a person becomes affected by:
A. Dementia praecox
B. Manic depressive psychosis
3. From any other personal cause, shall only serve to mitigate the liability of the principals,
accomplices, and accessories as to whom such circumstances are attendant.
Example: A, 16 years old and acting with discernment, inflicted serious physical injuries on
C. B, seeing what A had done to C, kicked the latter, thereby concurring in the
criminal purpose of A and cooperating with him by simultaneous act. The circumstance of
minority arose from other personal cause and it shall mitigate the liability of A only. It
shall not mitigate the liability of B, an accomplice.
Chapter Four
Circumstances Which Aggravate Ciminal Liability
20. THAT THE CRIME BE COMMITTED WITH THE AID OF PERSONS UNDER
FIFTEEN YEARS OF AGE, OR BY MEANS OF MOTOR VEHICLE, AIRSHIPS, OR
OTHER SIMILAR MEANS.
21. THAT THE WRONG DONE IN THE COMMISSION OF THE CRIME BE
DELIBERATELY AUGMENTED BY CAUSING OTHER WRONG NOT NECESSARY
FOR ITS COMMISSION.
It must be alleges in the information. If not alleged, they may still be considered in the award
of damages.
Definistion:
Aggravating circumstances are those which, if attendant in the commission of the crime,
serve to increase the penalty without, however, exceeding the maximum of the penalty
provided by law for the offense.
3. Qualifying - those that change the nature of the crime to a graver or more serious crime.
- Cannot be offset by any mitigating circumstance.
- it must be alleged during the information and prove during trial.
4. Inherent - those that must of necessity accompany the commission of the crime.
Example: Evident premeditation is inherent in robbery, theft, estafa, adultery and
concubinage.
- this is applicable only when the person committing the crime is a public officer who takes
advantage of his public position.
- “When a public officer commits a common crime independent of his official functions and
does acts that are not connected with the duties of his office, he should be punished as a
private individual without this aggravating circumstance.
If the accused could have perpetrated the crime even without occupying his position, there
is no abuse of position.
If all the four circumstances are present, they have the weigh of one aggravating
circumstances only.
Held: That the provocation (the illicit relations) was not given immediately prior to the
commission of the crime. Dwelling is still aggravating.
Even if the defendant came to know of the illicit relations immediately before he went to the
house of the deceases, the aggravating circumstance of dwelling may still be considered
against the defendant because the provocation (the illicit relations) did not take place in that
house.
Prosecution must prove that no provocation was given by the offended party.
Even if the offender did not enter the dwelling, this circumstance applies.
- it is not necessary that the accused should have actually entered the dwelling of the victim
to commit the offense; it is enough that the victim was attacked inside his own house,
although the assailant may have devised means to perpetrate the assault from without.
Even if the killing took place outside the dwelling, it is aggravating provided that the
commission of the crime began in the dwelling.
- but dwelling was not aggravating in a case where the deceased was called down from his
house and he was murdered in the vicinity.
When the deceased had two houses where he used to live, the commission of the crime in any
of them is attended by the aggravating circumstance of dwelling.
Dwelling was found aggravating in the following cases although the crimes were committed
not in the dwelling of the victims.
1. The victim was raped in the boarding house where she was a bedspacer.
2. The victims were raped in their paternal home where they were guests at the time and did
not reside there.
3. The victim was kiled in the house of her aunt where she was living with her niece. Dwelling
was considered aggravating because dwelling may mean temporary dwelling.
4. The victims, while sleeping as guests in the house of another person, were shot to death in
that house.
Dwelling is aggravating when the husband killed his estranged wife in the house solely
occupied by her.
In case of adultery
- when adultery is committed in the dwelling of the husband even if it is also the dwelling of
the unfaithful wife, it is aggravating because besides the latter’s breach of the fidelity she
owes her husband, she and her paramour violated the respect due to the conjugal home and
they both thereby injured and committed a very grave offense against the head of the house.
BUT the rule is different if both the defendants (the wife and her paramour) and the offended
party were living in the same house because the defendants had the right to be in the house.
The aggravating circumstance present in such case is abuse of confidence, if the offender
availed himself of the favorable position in which he was placed by the very act of the injured
party, thus grossly abusing the confidence of the latter in admitting him into his dwelling.
Abuse of confidence.
- this circumstance exists only when the offended party has trusted the offender who later
abuses such trust b committing the crime.
Requisites:
1. That the offended party had trusted the offender
2. That the offender abused such trust by committing a crime against the offended party.
3. That the abuse of confidence facilitated the commission of the crime.
Note: There is no abuse of confidence in attempted rape where on the day of the crime, the
accused was in the company of the offended girl, not because of her confidence in him, but
because they were partners in a certain business.
The confidence between the offender and the offended party must be immediate and
personal.
- the mere fact that the voters had reposed confidence in the defendant by electing him to a
public office does not mean that he abused their confidence when he committed estafa against
them.
Place where public authorities are engaged in the discharge of their duties (par.5),
distinguished from contempt or insult to public authorities. (par.2)
1. In both, the public authorities are in the performance of their duties.
2. Under par. 5, the public authorities who are in the performance of their duties must be in
their office; while in par. 2, the public authorities are performing their duties outside of their
office.
3. Under par.2, the public authority should not be the offended party; while under par. 5, he
may be the offended party.
Offender must have intention to commit a crime when he entered the place.
Facts: At the time of the commission of the crime, both the deceased and defendant were
inside a chapel. The deceased placed his hand on the right thigh of defendant girl, who pulled
out with her right hand a fan knife and stabbed him.
Held: The aggravating circumstance that the killing was done in a place dedicated to
religious worship cannot be legally considered, where there is no evidence to show that the
defendant had murder in her heart when she entered the chape on the fatal night.
Nighttime
- that period of darkness beginning at the end of dusk and ending at dawn. Nights are from
sunset to sunrise.
The commission of the crime must begin and be accomplished in the nighttime.
When the place of the crime is illuminated by light, nighttime is not aggravating.
The lighting of a matchstick or use of flashlights does not negate the aggravating
circumstance of nighttime.
Uninhabited place.
- the fact that the persons occasionally passed in the uninhabited place and that on the night
of the murder another hunting party was not at a great distance away, does not matter. It is
the nature of the place which is decisive.
By a band
What is a band?
- whenever more than three armed malefactors shall have acted together in the commission
of a offense, it shall be deemed to have been committed by a band.
- the armed men must act together in the commission of the crime.
- all the armed men, at least four in number, must take direct part in the execution of the act
constituting the crime.
Basis
- in the midst of a great calamity, instead of lending aid to the afflicted, adds to their suffering
by taking advantage of their misfortune to despoil them.
Requisites:
1. That the armed men or persons took part in the commission of the crime, directly or
indirectly.
2. That the accused availed himself of their aid or relied upon them when the crime was
committed.
Exceptions:
1. This aggravating circumstance shall not be considered when both the attacking party and
the party attached were equally armed.
2. This aggravating circumstance is not present when the accued as well as those who
cooperated with him in the commission of the crime acted under the same plan for the same
purpose.
“With the aid of armed men” (Par. 8), distinguished from “by a band.” (Par. 6)
- by a band requires that more than three armed malefactors shall have acted together in the
commission of an offense. Aid of armed men is present even if one of the offenders merely
relied on their aid, for actual aid is not necessary.
Who is a recidivist?
- a recidivist is one who, at the time of his trial for one crime, shall have been previously
convicted by final judgment of another crime embraced in the same title of the Revised Penal
Code.
Requisites:
1. That the offender is on trial for an offense;
2. That he was previously convicted by final judgment of another crime;
3. That both the first and the second offenses are embraced in the same title of the Code;
4. That the offender is convicted of the new offense.
No recidivism if the subsequent conviction is for an offense committed before the offense
involved in the prior conviction.
There is recidivism even if the lapse of time between two felonies is more than 10 years.
Pardon does not obliterate the fact that the accused was a recidivist; but amnesty
extinguishes the penalty and its effects.
Requisites:
1. That the accused is on trial for an offense;
2. That he previously served sentence for another offense to which the law attaches an equal
or greater penalty, or for two or more crimes to which it attaches lighter penalty than that
for the new offense; and
3. That he is convicted of the new offense.
Habitual delinquency.
- there is habitual delinquency when a person, within a period of ten years from the date of
his release or last conviction of the crimes or serious or less serious physical injuries, robbery,
theft, estafa or falsification, is found guilty of any of said crimes a third time or oftener. - In
habitual delinquency, the offender is either a recidivist or one who has been previously
punished for two or more offenses (habituality). He shall suffer an additional penalty for
being a habitual delinquent.
Quasi-recidivism.
- any person who shall commit a felony after having been convicted by final judgment, before
beginning to serve such sentence, or while serving the same, shall be punished by the
maximum period of the penalty prescribed by law for the new felony.
Price, reward or promise must be for the purpose of inducing another to perform the deed.
- if without previous promise it was given voluntarily after the crime had been committed as
an expression of his appreciation for the sympathy and aid shown by the accused, it should
not be taken into consideration for the purpose of increasing the penalty.
- when another aggravating circumstance already qualifies the crime, any of these
aggravating circumstances shall be considered as generic aggravating circumstance only..
- When there is not actual design to kill a person in burning a house, it is plain arson even if
a person is killed.
- When the crime intended to be committed is arson and somebody dies as a result thereof,
the crime is simply arson and the act resulting in the death of that person is not even an
independent crime of homicide, it being absorbed.
- On the other hand, if the offender had the intent to kill the victim, burned the house where
the latter was, and the victim dies as a consequence, the crime is murder, qualified by the
circumstance that the crime was committed “by means of fire”.
- but if a house was set on fire after the killing of the victim, there would be two separate
crimes of arson and murder or homicide. There would not be an aggravating circumstance
of “by means of fire”.
Essence of premeditation.
- the essence of premeditation is that the execution of the criminal act must be preceded by
cool thought and reflection upon the resolution to carry out the criminal intent during the
space of time sufficient to arrive at a calm judgment.
The date and time when the offender determined to commit the crime is essential.
- the date and, if possible, the time when the offender determined to commit the crime is
essential, because the lapse of time for the purpose of the third requisite is computed from
that date and time.
Craft
- involves intellectual trickery and cunning on the part of the accused.
- is chicanery resorted to by the accused to aid in the execution of his criminal design. It is
employed as a scheme in the execution of the crime.
Fraud
- insidious words or machinations used to induce the victim to act in a manner which would
enable the offender to carry out his design.
Disguise
- resorting to any devise to conceal identity.
When the attach was made on the victim alternately, there is no abuse of superior strength.
There is abuse of superior strength when weapon used is out of proportion to the defense
available to the offended party
Meaning of treachery
- there is treachery when the offender commits any of the crimes against the person,
employing means, methos or forms in the execution thereof which tend directly and specially
to insure its execution, without risk to himself arising from the defense which the offended
party might make.
- the offended party was not given opportunity to make a defense.
When the meeting between the accused and the victim is casual and the attach impulsively
done, there is no treachery even if the attack was sudden and unexpected.
Requisites of treachery:
1. That at the time of the attach, the victim was not in a position to defend himself; and
2. That the offender consciously adopted the particular means, method or form of attach
employed by him.
In treachery, it makes no difference whether or not the victim was the same person whom
the accused intended to kill.
The mastermind should have knowledge of the employment of treachery if he was not
present when the crime was committed.
Treachery is inherent in murder by poisoning.
Ignominy, defined.
- is a circumstance pertaining to the moral order, which adds disgrace and obloquy to the
material injury caused by the crime.
Applicable to crimes against chastity, less serious physical injuries, light or grave coercion,
and murder.
What is cruelty?
- there is cruelty when the culprit enjoys and delights in making his victim suffer slowly and
gradually, causing him unnecessary physical pain in the consummation of the criminal act.
Requisites of cruelty:
1. That the injury caused be deliberately increased by causing other wrong;
2. That the other wrong be unnecessary for the execution of the purpose of the offender.
The mere fact of inflicting various successive wounds upon a person in order to cause his
death, no appreciable time intervening between the infliction of one wound and that of
another to show that the offender wanted to prolong the suffering of his victim, is not
sufficient for taking this aggravating circumstance into consideration.
Chapter 5
Alternative Circumstance
Definition
- alternative circumstances are those which must be taken into consideration as aggravating
or mitigating according to the nature and effects of the crime and the other conditions
attending its commission.
I.Relationship.
- the alternative circumstance of relationship shall be taken into consideration when the
offended party is the --
A. Spouse,
B. Ascendant,
C. Descendant,
D. Legitimate, natural, or adopted brother or sister, or
E. Relative by affinity in the same degree of the offender.
- in view of the provision of Article 332, when the crime committed is (1)theft, (2)swindling
or estafa, or (3)malicious mischief, relationship is exempting.
- it is aggravating in crimes against persons in cases where the offended party is a relative of
a higher degree than the offender, or when the offender and the offended party are relatives
of the same level, as killing a brother, a brother-in-law, a half-brother, or adopted brother.
- when the crime against persons is any of the serious physical injuries, even if the offended
party is a descendant of the offender, relationship is an aggravating circumstance.
- if the offense of serious physical injuries is committed by the offender against his child,
whether legitimate or illegitimate, or any of his legitimate other descendants, relationship is
aggravating. But the serious physical injuries must not be inflicted by a parent upon his child
by excessive chastisement.
When the crime is less serious physical injuries or slight physical injuries, the ordinary rule
applies.
- but when the offense committed is less serious physical injuries; or slight physical injuries,
relationship is a mitigating circumstance, if the offended party is a relative of a lower degree
of the offender; and an aggravating circumstance, if the offended party is a relative of a
higher degree of the offender.
When the crime is against persons is homicide or murder, relationship is aggravating even
if the victim of the crime is a relative of lower degree.
II. Intoxication.
A. Mitigating - (1) if intoxication is not habitual, or (2) if intoxication is not subsequent to the
plan to commit a felony.
B. Aggravating - (1) if intoxication is habitual; or (2) if it is intentional (subsequent to the
plan to commit a felony).
It is intentional when the offender drinks liquor fully knowing its effects, to find in the liquor
a stimulant to commit a crime or a means to suffocate any remorse.
Note: If he was aware of everything that occurred on that day and he was able to give a detailed
account thereof, intoxication is not mitigating.
The question of lack of instruction cannot be raised for the first time in the appellate court.
- it is the trial court rather than the appellate court to find and consider the circumstance of
lack of instruction.