sentence of up to 5 years with
probation). With privileged, it operates These
to reduce the penalty by one or two
degree, depending on what the law
provides.
Sufficient threat or provocation:
This is mitigating only if the crime was
committed on the very person who made the
threat or provocation. The common set-up
given in a bar problem is that of provocation
was given by somebody. The person provoked
cannot retaliate against him; thus, the person
provoked retaliated on a younger brother or on
an elder father. Although in fact, there is
sufficient provocation, it is not mitigating
because the one who gives the provocation is
not the one against whom the crime was
committed.
Diminished self control has two criteria:
1) Time has lapsed after the provocation
was initially given (ex. A guy was
insulted at this moment, and retaliated
back after 24 hours. Giving him enough
time to think of his actions)
2) If there is that time element and at the
same time, facts are given indicating
that at the time the offender
committed the crime, he is still
suffering from outrage of the threat or
provocation done to him, then he will
still get the benefit of this mitigating
circumstance.
Vindication of a grave offense, the vindication
need not be done by the person upon whom the
grave offense was committed.
Passion or obfuscation – this stands on the
premise or proposition that the offender is
suffering from a diminished self-control because
of passion or obfuscation. Passion must be
legitimate.
This occurs when an assault on spouse or loved
one is prominent, and because of a jealous
outbreak you end up killing the person
assaulting your spouse or loved-one.
Physical defect is another mitigating
circumstance. Regardless of any physical defect
a person may still commit a crime as the other
parts of the body are fully functioning and could
still commence the crime. Blind, and invalid are
not exempted. Some parts of their body are still
working.
Aggravating Circumstances:
Circumstances that increase the seriousness or
outrageousness of a given crime, and that in
turn increase the wrongdoer's penalty or
punishment.
are the kinds of aggravating
circumstances:
1) Generic or those that can generally
apply to all crime;
2) Specific or those that apply only to a
particular crime
3) Qualifying or those that change that
change the nature of the crime
4) Inherent or those that must of
necessity accompany the commission of
the crime
Distinctions between Aggravating and Qualifying
circumstances
In aggravating:
1) The circumstance could be offset by a
mitigating circumstance,
2) No need to allege this circumstance in
the information, as long as it is proven
during trial. If it is proved during trial,
the court would consider the same in
imposing the penalty;
3) It is not an ingredient of a crime. It
only affects the penalty to be imposed
but the crime remains the same
In qualifying circumstances:
1) The circumstance affects the nature of
the crime itself such that the offender
shall be liable for a more serious crime.
The circumstance is actually an
ingredient of the crime
2) Being an ingredient of the crime, it
cannot be offset by any mitigating
circumstance
3) Qualifying circumstances to be
appreciated as such must be
specifically alleged in the complaint or
information. If not alleged but proven
during the trial, it will be considered
only as generic aggravating
circumstance. If this happens, they are
susceptible of being offset by a
mitigating circumstance
Aggravating circumstances includes:
1) Taking advantage of public position –
this means you use public office as a
medium to commence a crime thinking
that you wouldn’t be convicted (well
guess again!)
2) Disrespect due to age, rank and sex –
this refers to old, young and for the
sex, it’s the female
3) Abuse of confidence – this is not mere
betrayal of trust just because in
example you left your daughter in the
trust of a neighbor and your neighbor
rapes your daughter. That is not