\ COMPREHENSIVE REVIEWER IN CRIMINAL LAW Books |.& tt Revised Penal Code and Special Laws Atty. Leonor D. Boado FIRST EDITION 2004 ane JAN @ vaA MEFUNDAMENTAL PRINCIPLES 1, Penal laws are acts of the Legislature prohibiting certain acts and establishing penalties for their violations. Those that define crimes, treat of their nature and provide for their pun- ishment. (Lacson vs. Executive Secretary, 301 SCRA 298, Janu- ary 1999) 2. Criminal law is a branch of public law because it treats of acts or omissions which are primarily wrongs against the State. 3, Constitutional limitations on the power of Congress to en- act penal laws among the Bill of Rights: a, ‘The law must be general in application (equal protec- tion), b. _ Itmust observe substantive and procedural due proc- 58, ._Itshould not impose cruel and unusual punishment or excessive fines. . Itshould not operate as a bill of atlainder. fe. Itmust not operate as an ex post fecto law. 4. The prohibition on ex post facto law applies solely to penal Iaws. It cannot prohibit the retroactivity of procedural laws such as one that prescribes rules of procedure by which courts applying laws of all kinds can properly administer justice, such as the Extradition Treaty. (Wright vs. CA, G.R. No. 113213, August 15, 1994) 5. Provisions in the Code complementing ex post facto law: 1a, Article 21: no felony shall be punishable by any penalty not prescribed by law prior to its commission. b. Article 22: penal laws shall have a retroactive effect in- sofar as they favor the offender who is not a habitual 1(COMPREHENSIVE REVIIWEK IN CHIMINALLAW delinquent. Therefore, a law which increases the pen- alty for an act or omission cannot be given retroactive effect. 6 Examples of ex post facto law: 2 a, b. e Makes an act or omission criminal which when com- mitted was not criminal. Aggravates the seriousnens of the crime than when it ‘was committed. Imposes a penalty that is higher than when the crime was committed. ‘i Makes it easier for the prosecution to establish the guilt of the accused than when the ¢rime was committed, Requires a lesser quantum of evidence than when the crime was committed. Alters, in relation to the offemw or ita consequences, the situation of a person to his dimad vantage Assumes to regulate civil righty and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful. Deprives a person accused of crimeof some lawful pro- tection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proc- Jamation of amnesty. (Lacson vs. Executive Secretary, G.R. No, 1280%6, January 20, 1999) Characteristics of penal law: b. Generality — (persons to be governed!) — penal law is binding on all persons who reside or sojourn in the Phil- ippines whether citizens or not, : Basis — Art. 14, Civil Code; Art. HI(), 1987 Con- stitution ‘Territoriality — Gurisdiction or the place where appli- cable) — the law is applicable to ail crimes committed within the limits of Philippine terntory. FUNDAMENTAL PRINCIPLES 3 Basis — Art. 2, Revised Penal Code c _ Prospectivity — (when the law shall be applicable) — the law should have only prospective application ex- cept if it is favorable to the offender, (rretrospectivity prohibits the retroactive application of penal laws.) Basis — Arts, 21 and 22, Revised Penal Code ‘Art. 11122), Constitution (ex post facto) Art. 4, Civil Code 8 Doctrinal application of the prospectivity rule: a. The prospectivity rule applies to administrative rulings whi Plcliars aud to judicial decsions which though not laws, are evidence of what the laws mean, Thus Under Art. 8 of the New Civil Code, judicial decisions applying the laws or the Constitution form part of the legal system. Legis interpretato legis wim obtinet, This is especially true in the construction and application of criminal laws, where it is necessary that the punishability of an act be reasonably foreseen for the ‘guidance of society. (Co vs. CA, G.. No. 10076, Octo- ber 28, 1993) b. Lex prospicit, non respicit. The law locks forward not back- ward, The rationale against retroactivity is that a law usually derides rights which may have already become vested or impairs the obligations of contract, hence, un- constitutional. Prior to the statute's nullification it must have been in force and had to be complied with (doc- trine of operative fact). It would be to deprive the law ofits quality of faimess and justice if there be no recog- nition of what had transpired prior to such adjudica- tion. (id.) c. Incase of conflict between the mala prohibita doctrine and the prospectivity rule, the latter should prevail be- ‘cause all doubts must be resolved in favor of the ac- cused. (id.) Moreover, ex post facto aw isa constitutional edict hence is superior to any doctrine or rule.9. Philosophies under! ‘COMPREHENSIVE REVUIWII IN CRIMINAL LAW Classical or juristie 1. Basis of criminal liability — human free will, 2. Purpose of the penalty — retribution, for the right of the State and /or the privateoffended party must be observed. 3. Imposable penalty — predetermined penalty for every crime the gravity of which is directly pro- portionate to the crime committed. 4, Emphasis of the law —- on the offense. Under the clavoical theory on which the penal code is mainly based, the basis of criminal liability is human free will, Man is essentially a moral creature with an absolutely free will tu choose between good and evil. When he commits a felonious or criminal act (delito doloso), the act is presumed to have been done volun- tarily, ic. with freedom, intelligence and intent. Man therefore, should be adjudged or held accountable for ‘wrongful acts so long, ax free will appears unimpaired. (People vs. Genosa, G.R. No, 135981, September 29, 2000) Positivist or reatistc 1, Basis of criminal liability ~ the co man is inherently good but because of his envi- ronment and upbringing he becomes socially sick. 2, Purpose of the penalty — corrective or curative to reform the offender, 3. Determination of penalty —on an individual ba- sis after considering his circumstances. The Inde- terminate Sentence Law, Probation Law, etc. exem- plify this 4. Emphasis —on the actor. Ecclectic (or mixed) combines the good features of both the classical and the positivist theories. Ideally, the clas- FUNDAMENTAL PRINCIPLES 5 sical theory is applied to heinous crimes, whereas, the positivist is made to work on economic and social crimes. ‘A heinous crime is a grievous, odious and hateful offense which by reason ofits inherent or manifest wick- edness, viciousness, atrocity and perversity, is regarded ‘as seriously outrageous to the common standards or norms of decency and morality ina just, civilized and orderly society. (RA 7659) ‘4. Utilitarian orprotective theory under which the primary function of punishment in criminal law is to protect society from potential and actual wrongdoers. The re- tributive aspect of penal laws should be directed against them. The law should not be applied to further materi- alism and opportunism. (Magno vs. CA, GR.No. 96132, June 26, 1992) 10, Penal laws are construed strictly against the State and liber- ally in favor of the accused. Whenever two interpretations of law or appreciation of evidence are possible, the exculpa- tory interpretation shall prevail, consistent with the rule on presumption of innocence. This principle, for instance, is manifested in the three-fold rule, the niles on mitigation of crimes and the requirement that qualifying circumstance should be proved by the same quantum of evidence neces- sary to establish guilt, among others. Under the equipoise rule, when the evidence of the prosecution and the defense are equally balanced, the scale Should be tilted in favor of the accused in obedience to the constitutional presumption of innocence. (Ursua vs. CA, 256 ‘SCRA 147, 70SCAD, April 1996; Corpuzvs. People, 194SCRA 73, February 1991) Where the State fails to meet the quan- tum of proof required to overcome the constitutional pre- sumption of innocence, the accused is entitled to acquittal, ‘as a matter of right regardless of the weakness or even the absence of his defense. For any conviction must rest on the strength of the prosecution's case and not on the weakness of the defense, (Cosep vs. People, 290 SCRA 378, May 1998)‘ (COMPREHENSIVE HUVHGWINEIN CRIMINAL LAW FUNDAMENTAL PRINCIPLES 7 M1. Classification of crimes d. As to count — composite, compound, complex, As to commission (Article 3) 1. Dolo or felonies committed with deliberate intent 2. Culpa or those committed by means of fault As to stage of execution (Article 6) 1. Attempted 2. Frustrated 3. Consummated Related to this is the elasuification of felonies as to: 1. Formal felonies, those which are always consum- mated because the offender cannot perform the act necestary for their execution without consumumat- ing the offense, for instance physical injuries which are punished ayo result, whether serious, less se- rious, or slight. ‘The degree of injury cannot be de- termined without firit consummating the offense. 2. Material felonies, or those which have various stages of execution. 3. Crimes which huve no frustrated stage, such as, rape because its essence is carnal knowledge. Hence, even thie slight penetration of the female ‘organ consummates the crime. (People vs. Clopino, GAR. No. 110353, May 21, 1998) Likewise arson can only be attempted or consummated, because the slightest burning of the property consummates the crime of arson especially since the amount of dam- age in the property has been deleted in the amend- ments to the faw on arson. As to gravity (Art.9) 1. Grave feloni 2. Less grave felonies; and 3, Light felonies. e. ce : continued, continuing, As to nature — mala in se and mala prohibita 12, Crimes mala in se and mala prokibita Anact or omission may either be inherently evil (mala inse) or evil because there is a law prohibiting the same (mala prohibita), Generally, felonies under the Code are mala in se whereas those in laws are mala prohibita. However, it is really the nature of the act or omission that makes a crime either mala in se or mala prohibita. Also, even if a special law uses the terms of penalties in the Code, that alone will not make the act or omission a crime mala in se, The law may only intend to make the Code apply suppletorily thereto. For instance, Presidential Decree No. 533 is an amendment of Arts. 308, 309, and 310 of the RPC. Thus, cattle rustling is still malurm in se, (Taer vs. CA, 186 SCRA 598, June 1990) ‘Mala in se involve moral turpitude whereas mala pro- hibita do not. The doing of the act itself and not its pro- hibition by statutes fixes moral turpitude. It does not include such acts as are not of thersselves immoral but whose illegality lies in its positively being prohibited. (Dela Torre vs. COMELEC, 258 SCRA 483, July 1996) Distinctions: In mala in 5 1, Basis —_moral state of the offender hence, good faith or lack of criminal intentis a defense. 2° Modifying circumstances — taken into account in imposing the penalty on the cffender because his ‘moral trat is the basis ofthis crime. 3. Degree of participation — penalty is computed on the basis of whether he is a principal offender, or merely an accomplice or accessory.13. 4. ‘COMPREHENSIVE REVIEWER IN CRIMINAL LAW. 4, Stage of accomplishment — the penalty imposed depends on whether the crime is consummated, frustrated, or attempted. tn mala preubitr 1. Basis — voluntarinesy, hence, good faith of lack of criminal intent is not a defense, unless intent is an element of the crime as in Sec. 3(¢) of R.A. No. 3019, 2. Modilying circumstances -- not considered be- cause the law intends to discourage the commis- sion of the act specially prohibited. 3, Degree of participation — the penalty on the oF fenders is the same as they are all deemed princi- pals, 4. Stage of accomplishment — violation of law is punished only when accomplished or consum- mated. Effect of repeal of penal law on the accused: a, Absolute or total repeal or express repeal — the act cr omission is decriminalized. 1. Pending case — dismissed whether the accused is, habitual delinquent ornot.* 2. Offender iy convieted and/or serving sentence — released if he is not a habitual delinquent or the law provides that detention isto coritinue. b, Partial or relative repeal, or implica! repeal or repeal by re-enactment. 1. First law will govern if the accused is habitual de- linquent oF when the favorable second law pro- hibits retroactivity. 2. Second law will gover who is not habitual del as to its retronctivity. favrable to the offender yjuvt or the law is silent ‘The Spanish version should prevail over the English version for the Cade was originally approved and enacted in Eng- FUNDAMENTALPRINCIPLES ° lish (Section 15, Revised Administrative Code).For instance, Article 267 of the Code uses the term “lockup” (encerrar) rather than “kidnap” (secuestar or raptar), thus, the Spanish version should prevail in the interpretction of that Article. (People vs. Astorga, 283 SCRA 420, December 1997) 15. Finality of acquittal rule: the fundamental philosophy high- lighting this rule cuts deep into the humanity of the laws and in a jealous watchfulness over the rights of the citizen, when brought in wiequal contest with the State. The State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an al- leged offense, thereby subjecting him toembarrassment, ex- pense and ordeal and compelling him to live ina continuing state of anxiety and insecurity, as well as enhancing the pos- sibility that even though innocent, he may be found guilty. (People vs. Velasco, G.R. No. 127444, 340 SCRA 207, Septem- ber 13, 2000) ARTICLE 2— Scope of application of the Code 1, Two applications of the Code: a, Intra-territorial application — within the Philippine ar- chipelago, including its atmosphere, interior waters and ‘maritime zone. b, Extra-territorial — the Code may be given application even to those crimes committed outside the Philippine territorial jurisdiction. (Note: when the question asks for the exceptions to the ap- plication of the Code, do not include in the answer the intra- territorial application in paragraph one for that is the gen- eral rule.) 2, Treaties and laws of preferential application prevail over the provisions of the Code such as R.A. No. 75 on immunity of diplomatic representatives of foreign countries. Under inter- national laws, sovereigns, heads of states and their official representatives enjoy immunity from suits.3. (COMPREHENSIVE RIIVIEWLR IN CRIMGNAL LAW {In the case of international bodies, mere invocation of the immunity clause (ADB, in this case) does not ipso facto result in the dropping of the charges in court. There is still a need to inquire whether the accused is covered by the provision of the immunity clause. Under the Vienna Convention on Diplomatic relations, a diplomatic agent enjoys immunity from criminal jurisdiction of the receiving state except in the case of an action relating (o any professional or commercial activity exercised by the diplomatic agent in the receiving state outside of his official functions. (Liang vs. People, 323 SCRA 692, January 2000) First exception —crime committed within a Philippine ship/ airship: subject to the limitation that the vessel is not within the territorial jurisdiction of another country, otherwise, the latter's laws will govern because penal laws are primarily territorial. But f the foreign country did not assume jurisdiction, the Philippines will have jurisdiction. b. The country of registry «letermines the nationality of the ship or airship, not its ownership. Thus a Filipino owned ship registered in a forelygn country is a foreign ship. ¢. French/English Rules refer o the jurisdiction over mer- chant vessels of one country located in another coun- try. The rule does not apply 1o war vessels, The effect on jurisdiction over the crime under either rule com- mitted in a merchant vewsel In about the same because the general rule of one is the exception in the other. Thus: 1. French rule recognizes flag or nationality of ves- sel. The country of registry will have jurisdiction but when the crime violated the peace and order of the host country (wuch as drug-trafficking), the host country will have jurisdiction, (Memory aid ~ ~ French - Flay) 2, English rule adheres strictly to the territoriality principle orsitus of the crime ‘The country of regis- FUNDAMENTAL PRINCIPLES n try will have jurisdiction only where the crime re~ lates tointernal management of the vessel. In other cases (such as drug-trafficking) the host country will have jurisdiction. 5, Second and third exceptions: a. Forgery is committed by giving toa treasury or bank note or any instrument payable to bearer or to order the appearance of a true genuine document or by eras ing, substituting, counterfeiting or altering by any means the figures, letters, words or signs contained therein. (Art. 169) b. If forgery was committed abroad, it must refer only to Philippine coin, currency note or obligations and secu- tities. 6. Fourth exception: a public officer/employee who commits a crime related to the exercise of his office. Without this rela- tion, they are actingin their private capacity and hence bound by the law of the host country. 7. Under the fifth exception: crimes against national security and the law of nations include ‘Treason, Espionage, Provok- ing War and Disloyalty in Case of War, Piracy and Mutiny but not sebellion. When rebellion is committed abroad, the Philippine courts will not have jurisdiciion because rebel- lion is a crime against public order. & The referral to the Government of the Philippine Islands should be changed to Government of the Republic of the Philippines. ARTICLE 3 1. Felony refers exclusively to acts or omissions punished un- der the Code, 2 Intent is the use of a particular means to effect the desired result, The use of alethal weapon would show the criminal intent to kill although death did not result.(COMPREHENSIVE REVBEWEK IN CRIMINAL LAW Intent is a mental state thus the need to determine it by the means used. This intent in demonstrated by the overt acts of a person. Asa general rule, crimina nin presumed such as intent to kill when the victim dies. But where intent is an element ‘of the crime (specific criminal intent, such as intent to gain in theft), or if the act results to variant crimes, such as inju- ries which could give rise (o either attempted / frustrated homicide or physical injuries; actw of lasciviousness or at- tempted rape, intent cannot be jprewumed lt must be estab- lished. ‘Two instances when the offender can be eriminally Liable even if there is no criminal int a, Felonies commi ed by cul, and b. Offenses mala prohibit ‘Actus non facit reum, nisi mens si rea ~ the act cannot be crimi- nal unless the mind is criminal. (Llamoso vs, Sandiganbayan, G.R. Nos. L-63408 & 640126, August 7, 1985) A felony requires criminal intent. Hence, when intent ia absent as the mind is not criminal, no crime is committed. This doctrine applies only to dalo, Motive is the moving power or force (such as vengeance) which impels a person to a desired result, Generally, motive is immaterial in determining, criminal liability, except: fa. When the act brings about variant crimes, eg. kidnap- ping or robbery (People va, Puno, GR, No. 97471, Feb- ruary 17, 1990); b. There is doubt whether the accused committed the crime, of th identity of the accused! is doubtful; and The evidence on the commission of the crime is purely circumstantial. Where the identity of the assailant is in dispute, motive becomes relevant, andl when motive is supported with suffi- FUNDAMENTAL PRINCIPLES 2 lent evidence for a conclusion of guilt, a conviction is sus- tainable. (People vs. Macoy, GR. Nos. 96649-50, July 1997) 8. Art. 3 compared with Art. 365: in Art. 3, culpa is a mode of committing a crime hence killing, for instance, is denomi- nated homicide through reckless imprudence. In Art. 365, culpa itself is the crime punished, thus the killing is denomi- nated reckless imprudence resulting to homicide. While a criminal negligent acts nota simple modality ofa willful crime, (Quizon vs. Justice of the Peace of Bacolor, GR. No. L-6641, July 28, 1995) but a distinct crime in the Penal Code, designated as a quasi-offense however, a conviction for the former can be had under an information ‘exclusively charging the commission ofa willful offense upon the theory that the greater includes the lesser offense. (Cabello vs, Sandiganbayan, 197 SCRA 94, May 14, 1991) 9, Intelligence is the capacity to understand what is right and what is wrong. Discernment is relevant to intelligence, NOT tointent. It does not mean though, that when a person acted. with discernment, he intends the crime or the wrong done. (People vs, Cordova, 224 SCRA 319, July 1993) Intelligence isan element of both dalo and culpa, thus, whether the result- ing felony is intentional or culpable, discernment is an ele- ment. Absent discernment, there is no offense whether dolo nor culpa. 1. When insanity is interposed as a defense or a ground of a motion to quash the burden rests upon the accused to estab- lish that fact, for the law presumes every man to be sane. Hence, in the absence of sufficient evidence to prove insan- ity, the legal presumption of one’s sanicy stands. (Zosa vs. CA, GR. No. 105641, March 10, 1994) ARTICLE 4 1. Article 3 deals with how a felony is committed; Article 4, ‘who commits a felony, There are two kinds of offenders here: those who commita felony, whether doly or culpa, and those who commit an impossible crime.4 COMPREHENSIVE REVIHWIK IE CUMINAL. LAW There are two clauses in no. of this article: a. “By any person committing a felony (delito)" referring to both dole and culpa, Note that the article specifically included in parenthesis the word delito. b. “Although the wrongful act done be different from that which he intended,” referring to dolo because of the pres- ence of intent(note the word “intended”). The elements in the second clause are: 1. Anintentional felony is committed, 2. The wrong done is the dlirect, natural, and logical consequence of the felony committed even though dif- ferent from that intended, Factors affecting intent and correspondingly the criminal li- ability: a. Mistake of fact; b. Aberratio ictus (mistake in the vietim of the blow); c. Error in personae (mistake in identity); d. Practer intentionem (so yeave a wrong caused than that intended); and ¢ cause (the cause of the cause is the cause of eel). Mistake of fact is that which had the facts been true to the belief of the offender, that act he did can be justified, hence, will negative criminal liability (jgnorantia facti excusat), for, the element of criminal intent is absent, Thus, mistake of fact is relevant only in dolo, hence, if the offender is negligent in ascertaining the true state of facts, he may be free from dolo but not from culpe, Mistake of fact refers to the situation itself, and does not apply to identity because in the latter there is criminal intent. In aberratio ictus or error in the victim of the blow the of- fender intends the injury on one person but the harm fell on ce. Proxima the evi | i ' FUNDAMENTAL PRINCIPLES 6 another, There are three persons involved: the offender, the intended victim and the actual victim. Consequently, the act ‘may result in a complex crime (Art. 48) or in two felonies, although there is just one intent. Thus, aberratio ictus may result toa greater criminal liability to the offender. 5. Ervor in personae ormistake in identity involves only one of- fended party but the offender committed a mistakein ascer- taining the identity of the victim Unlike in aberratoictus there are only two persons involved: the actual but unintended victim and the offender, 7. ‘The effect of error in personae depends upon the intended crime and actual crime committed: 8, IF these are of different gravity, Article 49 shall apply — the lower peralty between the intended and the actual felony committed shall be imposed. In effect error in personae is extenuating circumstance. b. _Iftheactual and intended crimes arethe same, then there is no mitigation of penalty for the mistake in the iden- tity of the victim carries the same gravity as when the accused zeroes in on his intended victim. The main rea~ son behind this conclusion is the fact that the accused had acted with such a disregard for the life of the vic- tims without checking carefully the latter’s identity as to place himself on the same legal plain as one who kills another willfully, unlawfully and feloniously. (People vs. Pinto, G.R, No, 39519, November 21, 1991) In practer intentionem, the injury is on the intended victim but the resulting consequence is much more grave than in- tended. Itis a mitigating circumstance (Art. 13, no. 3). But if the means employed in the commission of the crime would logically and naturally bring about the actual felony com- mitted, practer intentionem will not be appreciated. It does not apply to culpa; “intentionem” denotes in- tent. ‘The mitigating circumstance of lack of intent to commit 50 grave a wrong as that committed should be appreciated5 ‘COMPREHENSIVE REVIEW IN CRIMINAL LAW where the accused had no intent to Kill but only to inflict injures when he attacked the victim. People vs. Flores, in- fra 9. Proximate cause is that cause which, in its natural and con- tinuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the result would not have occurred. Proximate cause is to be considered gener- ally in determining whether the consequence of the act should also be borne by the offender, (Art, 4, no.1) ‘The perceived delay in giving medical treatment does ‘not break at all the causal connection hetween the felonious act of the offender and the injuries sustained by the victim. It does not constitule an efficient intervening cause since the victim's death is still duc: (o the injuries inflicted by the of- fender, for which the latter is criminally responsible. (People vs. Acuram, G.R. No. 117954, April 27, 2000) ‘Thus, anyone who inflicts injury voluntarily and with intent is liable for all the consequences of his criminal act, such as death, that supervanes as a consequence of the injue ries. Here, accused-appeliant is liable for the demise of the 1im for such was caused by the violent kicks which he inflicted on the vital parti of the vietim's body. (People vs. Flores, 252 SCRA) Impossible Crime: 1. Elements: a. The acts performed would have been a crime against persons or property; b. There is criminal intent; ©. Ttisnot accomplished! because of the inherent impossi- bility or because the means employed is inadequate or ineffectual. 2. ‘The act performed by the oflenwier cannot produce an offense against persons or property because: (a) the commission of the offense is inherently imparsible of wcomplishment; or FUNDAMENTAL PRINCIPLES wv (b) the means employed is either: (1) inadequate or (2) inef- fectual. (Intod vs, CA, G.R. No. 103119, Cetober 21, 1992) 3. Impossible crime is punished to suppress lawlessness or to teach a lesson to the offender. Subjectively, the offender is a criminal although objectively no crime hes been committed, ‘There is no attempted or frustrated stage. 4, There is now the impossible crime of repe because of the amendment brought about by the Anti-Rape Law which re- classified Rape under Crimes Against Persons as anew chap- ter and renumbered Art. 266 A to D. 5, There is legal impossibility where the intended acts, even if completed would not amount to a crime. Example: stealing property that turned out tobe owned by thestealer. It would apply to those circumstances where: a. Themotive, desire, and expectation isto perform an act in violation of law; >. Thereis an intention to perform the physical act; There is a performance of the intended physical act; d. The consequence resulting from the intended act does not amount toa crime. 6. Physical impossibility is present when extraneous circum- stances unknown to the actor or beyond his control prevent the consummation of the intended crime. Example: stealing, from a vault that isempty. 7. The offender must not know the circumstance which made the crime an impossible crime. For instance killing a person who is already dead, Homicide/murder requires intent to kill. Had the offender known that the victim is already dead, intent to kill will be absent. At most, it will amount to des- ecration of the dead. ARTICLE 5. ‘Nulun crimen mula poena sine lege — there is no crime when there is no law that defines and punishes it. As a civil law coun-6 CCOMPREHIINSIVE REVIEWER IN CRIMINAL. LAW tryin the Philippines penal laws are enacted. Crime is the prod- uct of the law; no matter how evil an act is it is not a crime unless there is a law punishing it. Mc -over, Article 2 prohibit the im- position of a penalty not preseribed by law prior to the commis~ sicn of a felony; and, the Constitution prohibits the retroactive application of a penal law (ex post facto), On the other hand a common law crime is one that is mani- festly contrary to good customs and public policy even though not expressly punished by law. As distinguished from statutory aw created by enactment of legislature, common law comprises the body of those principles and rules of action relating to the government and security of persons and property, which derive their authority solely from usages and customs of i antiquity, or from judgments and decrees of the courts recogniz~ ing, affirming and enforcing such usages and customs, It does rot rest for authority upon any express and positive declaration of the will of the legislature. (Iilack’s Law Dictionary) ARTICLE 6 L In the consummated stage all acts of execution are present, hence the offender is in the objective stage as he no longer has control over the outcome of his acts having performed all that is necessary to accomplish his purpose. In the frustrated stage, the offender haw also reached the ob- jective stage of the offense for he has performed all the acts which would produce the felony but the crime was not com- mitted for reasons independent of his will If the reason is dependent on his will, as when in homicide, the wound is, fatal but he himself brought the victim to the hospital hence the victim survived, it is not frustrated homicide but some other crime like physical injurien. For the attempted felony, the olfender iy still in the subjec- tive stage becaume he hax not performed all acts necessary for its accomplishment, Therefore, he still has control as he may or may not continue his overt acts, The important phrases here are: FUNDAMENTAL FRINCIPLES » a, “Overt acts” or external acts — those which if allowed to continue will logically result in a felony; itis the start of criminal liability. Preparatory act refers toa prior act. Example: buy- {ing poison to kill the intended victim. Preparatory acts are as a rule not criminal unless these acts are in them- selves penalized as independent crimes. Example: Pro- posal and conspiracy to commit a crime are not pun- ished except in those cases provided for by law, e.g. pro- posal and conspiracy to commit retellion: b. ("Directly” — The offender shall be liable for the at- {empted stage of the felony that is directly linked to the overt act irrespective of his intention. Example: a per- son intending to rob a store forced open the window of the building but before he could enter he was appre- hended. He cannot be charged with attempted robbery even if that was his intention because the overt act of forcing open the window is not directly linked with rob- bery. He may be charged with attempted trespass be- cause that actis directly related to entering the store. ¢. “Desistance” —is an absolutory circumstance true only, in the attempted stage. The attempted stage exists up to that time when the offender still has control of his acts. The moment he has lost control of the outcome of his acts the subjective phase is passed; the stage is now either frustrated or consummated (objective phase) where desistance is merely factual and produces no le- gal effect, hence, will not exempt the offender from criminal lability. When the cause of the non-performance of all the acts necessary for the commission of the offense is other than the offender's spontaneous desistance, the felony is attempted. (People vs. Pareja, G.R. No, 88043, Decem- ber 9, 1996) 4, Criteria to determine whether the crime is material or for- mal:0 (COMPREHENSIVE REVIEW1 IN CRIMINAL.LAW “The offender cannot possibly perform all the acts of ex- ‘ecution to bring the desired result without consummat- ing the offense, such ax slander, When the Code defines the felony in such a manner that it cannot be frustrated. lance, since the grava- men of Rape is carnal knowledge, the slightest penetra- tion of the female organ consummates the felony, Since the burning of even a portion of the building is consid ‘ered arson, the mere searching thereof consummates the crime. When the crime requires the concurrence of the will of two parties, there is 1s frustrated stage, as in Corrup- the moment the public officer accepts the gilt, promise ur cunwideration in Bribery, the crime of Corruption ix consummated! but when the pub- licofficer refuses to be corrupted, the crime is attempted only. When the crime is treated ly the Cade in accordance with the results, i., thn result should be there before liability can be determined, eg, physical injuries, the crime is only in the consummated stage. In Physical Injury it cannot b nine whether the injury will be slight, less serious, ar serious unless consummated, Between attempted! and frustrated! felonies a, a As to acts of execution -- in attempted, not all acts of ‘execution had been done whereas in frustrated, all acts of execution had been performed, As to causes of non-accomplishment — in attempted, it is a couse or accident other than the offender's own spontaneous desistance; in frustrated it is some cause independent of the will of the perpetrator, In attempted stage, the offender still in the subjective phase as he still has control of his acts; whereas in the frustrated stage, lw is already in the objective phase. Example: in attempted homicide, the wound is not ‘mortal, hence the oltender should still need to deal an- FUNDAMENTAL PRINCIPLES 2 other blow on the victim, which he was not able to do because he was apprehended, In frustrated homicide, the wound is mortal, sufficient to bring about death hhence, there isno need of another blow but death nev- ‘ertheless did not supervene because of timely medical attendance. ARTICLE 7 1. When light felonies are punishable: a. Only when consummated except for crimes against persons or property. b. _Inall stages ifthe crime is against persons or property. 2. Who are punishable — principals and accomplices. Acces- sories are nat criminally liable for light felonies. (Article 16) ARTICLE 8 1. When the proposal is accepted, it becomes conspiracy. The essence of conspiracy is community of criminal intent. (Peo- ple vs. Tilos, 349 SCRA 281, Jantsary 16,2001) 2, Itisessential for one to be liable for the acts of the others that there be intentional participation in the transaction with a view to the furtherance of the common design. Except when he is the mastermind in a conspiracy, it is necessary that a conspirator should have performed some overt act as a di- rect or indirect contribution in the execution of the crime planned to be committed. The overt act may consist of: ‘a. Active participation in the actual commission of the crime itself; b. Moral assistance to his coconspirators by being present at the commission of the crime; or c._ Bxerting moral ascendancy over the other co-conspira- tors. (Pecho vs. People, G.R. No. 111399, September 27, 1996)COMPREHENSIVE REVIEWENIN CRIMINAL LAW ‘Two concepts of conspiracy: a. Asacrime by itself, the subject of conspiracy is not yet committed but the mere wet of conspiring is defined and punished as a crime, for inwtance, proposal and con- spiracy to commit treason ar rebellion, b. Asa basis of incurring liability, theexecution of the plan is commenced. Conipiracy by itself ceases to be the crime but is absorbed, Hence, the crime above is no longer conspiracy to commit rebellion but Rebellion under Art. 135, ‘Asa basis of incurring lability it ly necessary to determine: a. Whether there was prior agreement on how to commit the crime, in which case, « conspirator is liable as long icone of the crime unless he is the lity ofthe conspiratorsis only for the crime agreed upon excey 1. When the ather crime was committed in their pres- ‘ence and they did not prevent its commission; 2, When the ather crime Ip the natural consequence of the crime planned, ¢.g, homivide resulting, from physical Injuries; 3. When the resulting crime was a composite crime. infra) b, Whether it is implied conspiracy, that is, the offenders acted in concert during the commission of the crime. Here it is essential that the conspirator participated in the commission of the crime to be liable. His mere pres- ence or approval of the crime without more will not make him liable because there would be no basis for deducing conspiracy as to him as there is absent crim- inis particeps. Mere knowledge, acquiescetice to or ap- proval of the act without cooperation or agreement to cooperate, is not enough to constitute one a party to a conspiracy absent the intentional participation in the act with a view to the furtherance of the common de- FUNDAMENTAL PRINCIPLES B sign and purpose. (People vs. Bragaes, GR. No.62359, November 14, 1991) Necessarily, conspiracy as a crime cannot be implied conspiracy. It can only be by pre-agreement or planned. Direct proof of previous agreement to commit a crime is not necessary for conspiracy may be deduced from the mode ‘and manner in which the offense was perpetrated, or inferred from the acts of the accused themselves when such point to a joint purpose and design, concerted ection and commu- nity of interest. Implied conspiracy is one that is deduced from the mode ‘and manner in which the offense was committed. The con- certed acts of the parties to achieve the same objective nify conspiracy, People vs. Guevarra, 179 SCRA 325, Novem- ber 13, 1989 held that “The act of the appellant in holding the victim from behind immediately before the latter was. stabbed by Eduardo constitutes a positive and overt act to- wards the realization of common criminal intent which may be classified as instantaneous. The act was impulsively done ‘on the spur of the moment. Itsprang from the turn ofevents, thereby uniting the criminal design of the slayer immedi- ately before the commission of the offense.” (Gubayco vs. Sandiganbayan, GR, Nos. 117267-117310, August 22, 1996) . Conspiracy is not presumed, Like the physical acts consti- tuting the crime itself, the elements of conspiracy must be proved beyond reasonable doubt. Whileconspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before, during and after the com- mission of crime, all taken together, however, the evidence ‘must be strong enough to show community of criminal de- sign. (Magsuci vs, Sandiganbayan, G.R.No. 101545, January 3, 1995; Pecho vs. People, G.R. No. 111399, September 27, 1996) . One who joins a criminal conspiracy adapts in effect the criminal design of his co-conspirators, end he canno longer repudiate the conspiracy after it has materialized. Convic- tion is proper upon proof that the accused acted in concert.2% 10 0. (COMPRERINSVE RUVIEWER IN CHIMINAT. LAW ‘The act of one then becomes the act of all, and each of the accused will thereby be deemed! equally guilty as co-princi- pals of the crime committed Even if appellant never fited a gun, he would still be principally liable as a co-conspirator in the killing of the vic- tims, for while only Benito might have inflicted the fatal blows or wounds, nevertheless, appellant rust be held li- able under the principle that the act of a conspirator is the act of all co-conspirators. ‘Th: clugrev of actual participation in the commission of the crime is immaterial in a conspiracy. (People vs. Maranion, C18, Nos, 90672-73, July 18, 1991) Although conspiracy is a joint act, thereis nothing irregular if a supposed co-conspirator is acquitted and others con- victed. Generally, conspiracy i only a mwans by which crime is committed: the mere act of conspiring is not by it- self punishable. Hence, it does not follow that one conspi tor alone cannot be convicted when there is a conspiracy. ‘As long as the acquittal of 0 co-conspirator does not remove the basis of a charge of conspiracy, other conspirators may be found guilty of the offense, People vs, Tiguman, GR. Nos. 130502-03, May 24, 2001) Mere knowledge, acquiescence or agreement to cooperate is not enough to constitute one ava conspirator absent any ac- tive participation in the commission of the crime pursuant to the common design and purpose. Conspiracy transcends companionship. (People vs. Compo, GR. No. 112990, May 28, 2001) Mere presence at the scene of the incident, know]- ge of the plan or acquiescence thereto is not sufficient ground to hold a person liuble as a co-conspirator. The mere fact that the accused had prior knowledge of the criminal design of the principal perpetrator of the crime does not ipso facto make him as co-conspirator. Participation in the crimi- ‘nal act is essential for he may yet be an accomplice. (People vs. Samudio, G.R. No. 126168, March 7, 2001) ‘An overt act in furtherance of the conspiracy may consist in actively participating in the actual commission of the crime, in lending moral assistarwe to his co-conpirators by being FUNDAMENTAL PRINCIPLES 3 present at the scene of the crime, or in exerting moral as- cendancy. (People vs. Pablo, G.R. Nos. 120394-97, January 16, 2001) 12, Vor conspiracy to exist, there must be a conscious design to ‘commit an offense, Conspiracy is not the product of negli- sence but of intentionality on the part of cohorts (“decides to commit it”). (Magsuci vs. Sandiganbayan, January 3, 1995, supra.) 15. When may the head of a goverment office be held liable as corprincpal for the acts of his subordinates? If he by an act ‘of reckless imprudence brought about the commission of ‘stafa thru falsification, or malversation through falsification, without which the crime could not have been accomplished. Wher, however, that infraction consists inthe reliance in good faith, albeit misplaced by a head of office on a subordinate upon whom the primary responsibility rests, absent a clear case of conspiracy, the Arias doctrine must be held to pre- vail. (id.) M4, Under the Arias doctrine all heads of offices have to rely toa reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies, or enter into negotiations. There has to be some added reason why he ‘should examine each voucher in such detail. Any executive head of even small government agenciesor commissions can attest to the volume of papers that must be signed. There are hundreds of documents, letters, memoranda, vouchers, and supporting papersthat routinely pass through his hands, The umber in bigger offices or departments is even more ap- palling, (Arias vs. Sandiganbayan, G.R. No. 81563, 180SCRA 309, December 19, 1989) ARTICLE 9 — Grave, less grave, light folonies 1. Grave felonies are penalized by capital punishment or afflic- tive penalties in any of its period, ie, theminimum, medium or maximum period of the penalty is an afflictive penalty. ‘Afflictive penalties cover prision mayor, disqualification, re- lusion temporal ard reclusion perpetua.% (COMPREHENSIVE RILVIEWER IN CRIMINAL LAW 2. Less grave felonieware punished with penalties which in their maximum period are correctional, thus the maximum pe- riod of the penalty musi be correctional, that is, destierr, sus pension, arresto mayor, or prision correccional. 3. Light felonies are infractions punished with arresto menor or fine of P200.00 or below. (In Art. 26, a P200 fine is correc- tional) 4. The classification of felonies ax to severity is significant to determine: If the felony is punishable; (Art. 7 on light felonies) Whether the accessory is llable; (Art. 16) Whether a complex crime was committed; (Art. 48) ‘The duration of the subsidiary penalty; (Art. 39, no, 2) ‘The duration of the detention in case of failure to post the bond to keep the peace; (Art. 35) {Whether the crime has prescribed; (Art. 90), and The proper penalty for quus/offenses, (Art. 365) sae ge ARTICLE 10 — Special Laws 1, Special penal laws define andl penalize crimes not included in the Code; they are different from those defined and pun- ished therein. 2. The law has long divided crimes into acts wrong in them- selves (mala in se) and acts which would not be wrong but for the fact that positive law forbids them (mala prohibita), This distinction is important with reference to the intent with which a wrongful act is done. In acts mala prohibita, the only inquiry is, has the law been violated? When an act is legal, the intent of the offender is immaterial, (Ounlao vs, CA, GR. No. 111343, August 22, 1996) 3. The general rule is that special laws arv not subject to the provisions of the Revised Penal Code. (Art, 10, first sentence) For instance, the circumstances affecting, criminal liability CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY u (Art, 11 1015) are not applicable to violations of special laws. However, the Code shall have supplementary application to the special laws (second sentence) whenever the latter uses the nomenclature of penalties in the Code, thus indicating the intent of Congress to make the Code apply suppletorily, necessarily, with its duration, correlation and legal effects under its system of penalties. (People vs. Simon, GR. No. 930280, July 29, 1994) 4, ‘The suppletory effect of the Code to special laws under this atticle cannot be invoked where there is legal or physical impossibility of or a prohibition in special law against such supplementary application, Where the special law expressly grants the court discretion in applying the penalty prescribed for the offense, there is no room for the application of the Code. (id.) 5. Dolo is not required in crimes punished by a special statute like the Anti-Fencing Law of 1979 because it is the act alone, irrespective of the motives which constitute the offense. Ver- ily, when it was proved that petitioner committed the un- lawful acts alleged in the information, it was properly pre- sumed that they were committed with full knowledge and with criminal intent, and it was incumbent upon him to re- but such a presumption. (Lim vs. CA, GR. No. 100311, May 18, 1993) CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 1. Inthe Philippines, penal laws subscribe to the classical theory hence there is a predetermined penalty for each crime. It is, the office of modifying circumstances toincrease or decrease the penalty depending upon their presence or absence. 2. The circumstances which affect or modify criminal liability are: a. Justifying — Art. 11 b, Exempting — Art. 12% ‘COMPREHENSIVE RUVIIWEH IN CRIMINAL, LAW. Mitigating —Arts, 13 and 15 Aggravating — Arts. 14 and 15 Absolutory —exempting circumstances outside Art, 12 Extenuating — mitigating circumstances not found in Art. 13, such as concealment of dishonor in abortion and abandonment in adultery Absolutory circumstances: arr) a, Instigation due to public policy; b. Art. 6(3) — spontaneous desistance in the attempted stage unless the overt act committed constitutes another crime; Art. 7 — attempted / frustrated light felonies except those against pervons or property; Art. 16 — accessories in light felonies; Art. 20 — accessories-relatives other than profiting in the crime; {Art 247 — injucies except serious physical injuries; Art. 332 — certain relatives in thelt, estafa and mali- cious mischief; fh. Somnambulismy; i. Mistake of facts j. Total repeat of penal law. Entrapment is the employment of ways and means for the purpose of trapping or capturing 4 lawbreaker; the idea to commit the crime originates {rom the accused, In induce- ‘ment or instigation the criminal intent originates in the mind of the instigator and the accused is lured into the commis- sion of the offense charged! in order to prosecute him, (Peo- ple vs. Ramos, Jr, G.R. No. BAIOL, October 28, 1991) ‘A buy-bust is a form of entrapment that in recent years has bbeen accepted as.a valid means uf arresting violators of the Dangerous Drugs Law. It is commonly employed by police 2. ‘CIRCUMSTANCTS AFFECTING CRIMINAL LABILITY 2» officers as an effective way of apprehending law offenders in the act of committing a crime. Inentrapment, itis necessary that a buy-bust operation ‘occurred, otherwise it will be consideredin case of doubt as, instigation, Instigation is an absolutory cause akin to an ex- cempting circumstance. (People vs. dela Paz, G.R, No, 104277, 43 SCAD 284) ‘Even without the money to buy the marijuana so long as the police officer went through the motion as a buyer and his offer was accepted by the appellant and the marijuana delivered to police officer, the crime was consummated by the delivery of the goods. (People vs. Utoh Lakibul, January 1993) Instigation and frame-up cannot be both present in 2 case for they are incompatible. In instigation, the crime is actu- ally performed by the accused except that the intent origi- nates from the mind of the inducers. In frame-up, however, the offense is not committed by the accused. Precisely, the accused is only framed or set up in a situation leading to a false accusation against him. ‘An allegation of frame-up and extortion by police of- ficers is a commonand standard defense in most dangerous drug cases. Itis viewed by the court with disfavor, fort can be easily concocted, To substantiate such defense, including instigation, the evidence must be clear and convincing be- ‘cause of the presumption that public officers acted in the regular performance of their official duties. Distinctions: ENTRAPMENT INSTIGATION a. The mens rea originated evil idea originated from the from the accused who peace officer who induced was merely trapped by the accused to commit the the peace officer in fla act grante delicto0 ‘COMPREHENSIVE REVIUWER IN CKIMINAL LAW b. This is not absolutory as to the offender since he authored the evil iden c. Consistent with public policy d. Trap for the unwary criminal (People vs. Marcos, G.R. No. 63525, 185 SCRA 154) ce. The peace officer is with- ‘out criminal liability tor their acts are in aceord- ance with law. absolutory by reason of public policy ‘contrary to public policy ‘Trap for unwary innocent ‘The peace officer is a prin- cipal by mducement (Peo- ple vs. Ramos, supra) ARTICLE 11 — Justifying Circumstances 1 Justifying circumstances un: those whem the acts of the ac- tor are in accordance with Inw and hence he ingurs.ne srimi- ‘Thus, Article 101 slates, “in cases falling with subdivision 4 of article 11, the persons fur whose benefit the harm has been prevented shall be civilly liable in proportion to the benefit which they may have received.” ‘The civil lability is not on the actor but on those who ber from the act, ‘The justifying circumstances are: a. Defense of self, of rel latives, and of strangers; b. State of necessity; Fulfillment of duty; d. Obedience to superior onter. Self-defense includes defense of life, chastity, property and honor of the accused who must prove with clear and con- vincing evidence the following elements: a. Unlawful aggressi 6 10. n. ‘CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 2 b. _ Reasonable necessity of the means employed to prevent or repel it; and . _Lackof sufficient provocation on the part of the person defending himself. ‘The effect of invoking self-defense is to place the burden in the accused to prove to the satisfaction of the court the fact of legitimate defense because thereby headmits the act com- plained. ‘Unlawful aggression is the primordial requisite which must Atall times be present. When unlawful aggression is absent, there is no self-defense whether complete (Article 11) or in- complete (Articles 69 and 13{1)). It must be actual, sudden, unexpected attack or imminent danger thereof, and not merely a threatening or intimidat- ing attitude. The accused must present proof of positively strong act of real aggression. Unlawful aggression must be such as to put in real peri the life ox personal safety of the person defending himself or of others peing defended and. hot an imagined threat. People vs. Bausing, G.R. No. 64965, 199 SCRA 355, July 8, 1991) Unlawful aggression must be real or at least imminent. Real aggression means an attack with physical force or with a weapon such as to cause injury or danger to life or personal safely. Aggression is imminent if an atlack is impending or at the point of happening. Itmustbe offensive and positively strong. ‘That petitioner sustained injuries does not signify that he was a victim of unlawful aggression. (Roca vs. CA, G.R. No. 114917, 350 SCRA 414, January 29, 2001) When the aggression no longer exists, such as when the ag- ‘gressor ran away after the attack or when the defender was, able to wrest the weapon from the aggressor, thereis noneed for self-defense, : 4 ‘The presence and severity of the number of wounds on the part ofthe victim disprove self-defense, so do they belie theM4 1, 1. COMPIIIENSIVE HEVIWIO IN CRIMIIVAL.LAW claim of incomplete defense of one's relative and indicate not the desire to dletend one's relative but a determined ef- fort to kill. (People vs. Santos, G.R. Nos. 99259-60, 69 SCAD 716, March 29, 1996) Reasonable necessity of the means employed depends upon the circumstances surrounding the aggression, the state of mind of the aggressor and the available weapon at the de- fender’s disposal. ‘There isno reasonable necessity of the means of defense when the unlawful aggression on the part of the victim has ceased. It does not imply commensurability belween the means of the attack and defense — the law requires a rational equiva- lence which is determined by the emergency, the imminent danger to which the person attacked is exposed, and the in- stinet, more than the reason, that moves or impels the defense. ‘The proportionateness thereof does not depend upon the harm done, but rests upon the imminent danger of such in- jury. (People vs. Gutual, (,R. No. 115233, 64 SCAD, 254SCRA 37, February 22, 1996) The presence of a large number of wounds inflicted on the victim clearly indicates a determined effort on the part of the accused to kill his prey and belies the reasonableness of the means adopted to prevent or repel an unlawful act of an aggressor. (People vs. Arizala, G.R. No. 10708, October 22, 1999) “Stand ground when in the right” is the rule which applies when the aggressor is armed with a weapon and is espe- cially more liberal if the person attacked ts a peace officer in the performance of his duty, This rule hax superseded the Principle of “retreat to the wall” which makes it a duty of a person assailed to retreat as far as he can before he meets the assault with force. Lack of sufficient provocation on the part of the person de- fending himself shows that there may have been provoca- tion but it should not be sufficient and it must not immedi- 18. 19, 21, 2. 2. CCIRCUMSTANCDS AFFECTING CRIMINAL LABILITY = ately precede the act. It is not enough that the provocative ‘act be unreasonable or annoying. , 3 In defense of one’s chastity, there must be imminent an immediate danger of rape to justify Killing, If it were only acts of lasciviousness, killing is an unreasonable means. But it Slander may be a necessary means to repel slander. ‘must not be more than needed to defend himself from the defamatory remarks. ili tin In defense of property killing is not justified. There mus! addition be the necessity to save another life. If the aggres- sion is on property even if there was no attack on the de- fender or owner oF possessor defense is proper but not to the extent of killing the aggressor otherwise the means us to repel or prevent the aggression will be not reasonable, (People vs. Narvaez, GR. Nos. L-33466-67, 21 SCRA 389, Aprit 20, 1983) "| For defense of relatives the third requisite becomes: “in case the provocation was given by the person attacked, the per- son defending had no part therein.” For defense of strangers, the third requisite is that the per- son defending is not induced by revenge, resentment or other evil motives. Beyond 4 degrees of consanguinity is defense of strangers a the third element in defense of relatives will bereplaced. ‘The presence or lack of all or some of the requisites for the defense have the following effects: : a, All requisites are present — justifying circumstance; (Art. 11) b. Tworequisites are present, unlawful aggression plus an- other — privileged mitigating circumstance; (Article 69) One requisite present which mustbe unlawful aggres- sion — ordinary mitigating circumstance. (Article 13, no. 1)26. 27. The elements of state of necessity ai ‘COMPREHENSIVE REVIEWH IN CHIMIVAL-LAW a. The evil sought to be avoided actually exists; b. The injury feared be greater than that done to avoid it; and © There is no other practical and less harmful means of preventing it The state of necessity must not be caused by the negli- ‘gence or violation of the law of the actor otherwise this ben- fit cannot be invoked; Under Art. 101, the civil liability shall be borne not by the actor but the ones benefited by the avoidance of the evil, The elements of fulfillment of duty or exercise of right or office are: a. The offender acted in the performance of a duty or the lawful exercise of a right or office; b. The injury caused or the offense committed is the nec- essary consequence ofthe du performance of such ight or office. Under the doctrine of “self-help” in Art. 429 of the Civil Code, the law justifies the act of the owner or lawful posses- sor of a thing in using force necessary to protect his propri- etary or ory Tights. He must however exercise this right at the very moment that he is being deprived of his property. If sufficient time elapsed from the deprivation, he must seek the help of the proper authorities in reclaiming his property, otherwise he could be liable for coercion. Appellant was not in the performance of his duties at the time of the shooting for the reason that the girls he was at- tempting to arrest were not committing any act of prostitu- tion in his presence. [fat all, the only person he was author- ized to arrest during the time was “R,” who offered him a service of a prostitute, for acts of vagrancy. Even then, the fatal injuries that the appellant cause the victim were not a necessary consequence of appellant's performance of his duty asa police officer. His duty to urrent the female suspects did ‘CIRCUMSTANCES AFFECTING CRIMINAL ABILITY 3 not include any right to shoot the victim to death. (People vs, Peralta, G.R. No, 128116, 350 SCRA 158, January 24, 2001) 28, ‘The elements of obedience to superior order are: a. Anorder has been issued by a superior; "The order is for a legal purpose; ¢. The means used to carry out such order is lawful. Even if the order is illegal if it is apparently legal and the subordinate is not aware of its illegality, the subordinate is not liable. (Tabuena vs. Sandiganbayan, G.R. Nos. 103501- 03, 268 SCRA 332, February 17, 1997) ARTICLE 12 — Exempting circumstances 1. The exempting circumstances are: a. Imbecility/insanity b. Minority c Accident Compulsion of irresistible force fe. Impulse of uncontrollable fear £._Insuperable or lawful cause 2. Distinctions between justifying and exempting circumstances JUSTIFYING EXEMPTING a, Theactis legal ‘The actis criminal, ‘There is no crime, hence There is a crime, hence a no criminal criminal. c. Since there is no crime, There is a crime and civil li- there is no criminal and ability but the law exempts civil liabilities the actor from criminal li- abilities. . ‘The emphasis of the law ‘The emphasis of the law is is on the act on theactor.(COMPREHENSIVE REVIEWEK IN CRIMINAL LAW . Insanity under Section 1039 of the Revised Administrative Code is “a manifestation in language or conduct of disease or defect of the brain or a more or less permanently diseased or disordered condition of the mentality, functional or or- ganic, and characterized by perversion, inhibition, oF disor- dered function of the sensory ot of the intellective faculties or by impaired or disordered volition.” |. There must be a complete deprivation of intelligencein com- ‘mitting the act, that is, the accused is deprived of reason, he acts without the least discernment because there is complete absence of power to discem, or there is atotal deprivation of freedom of the will. (People vs. Dungo, G.R. No, 89420, July 31, 1991) Mere abnormality of the mental faculties will not ‘exclude imputability. (People vs, Dana, November 1992) . When insanity is interposed as a defense or a ground of a motion to quash the burden rests upon the accused to estab- lish that fact, for the law presumes every man to be sane, ‘Hence, in the absence of sufficient evidence to prove insan- ity, the legal presumption of one’s sanity stands. (Asticle 800, Civil Code) (Zosa vs. CA, G.K. No. 105641, 231 SCRA 22, March 10, 1994) The law presumes all acts to be voluntary. Not every aberration of the mind or exhibition of mental deficiency is insanity. (id.) When insanity is alleged, the evidence on this point must refer to the time preceding the act or to the very moment of its execution. If the evidence pointed to the insanity subse- quent to the commission of the crime, the accused cannot be acquitted. He is presumed (o be sane when he committed it. (id) 7. Insanity is a defense in the nature of confession and avoid- ance, and as such must be proved beyond reasonable doubt. 1. Article 79 refers to the insanity occurring, after the commis- sion of the crime, whereas, insunity in article 12 refers to that at the very moment the crime ix being committed. “When the convict shall become insane or an imbecile after final sen- tence has been pronounced, the execution of said sentence shall be suspended only with regard to the personal penalty, 10. i. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY a the provisions of the second paragraph of circumstance tuarber 1of article 12 being observed in the corresponding, ‘cases, fat any time the convict shall recover his reason his sentence shall be executed, unless the penalty shall have pre- teribed in accordance with the provisions of {the] Code, Where the imbecile or an insane has committed a felony, the court shall order his confinement in one of the hospitals or asylums established for thus afflicted, which he shall not ke permitted to leave without frst ob- taining the permission of the same court. (People vs. Rafanan, Jn, GR. No, 54135, 204 SCRA 65, November 21, 1991) Care must be taken to distinguish between lack of reason (insanity) and failure to use reason or good judgment due to extreme anger (passion). Mere mental depravity or moral insanity which resulls not from any disease of mind, but from. a perverted condition of the moral system, where the person js mentally sane, does not exempt one from the responsibil- ity for crimes committed under its influence. Thus, before the defense of insanity may be accepted as an exempting cir- ‘cumstance, there must be a complete deprivation of intelli- igence— not only ofthe will — in committing the criminal ett, In the case of Refanan, the fact that the appellant threat- toned the victim with death in case she reported her ravish- tment indicated thathe was aware of the reprehensible moral depravity of that assault and that he was not deprived of intelligence. In Dungo, that the accused knew the nature of what he had done negated his claim thathe was insane when he fatally stabbed the victim. In Aquino, appellant who ‘consumed cough syrup and 3 marijuana sticks before rap- ing his victim and killing her had some form of mental ill zness which did not deprive him of intelligence. Mere abnor- ality of the mental faculties does not exclude criminal cul- pability. (People vs. Medina, G.R. No. 113691, 286 SCRA 44, February 6, 1998) “The two tests are: (a) Cognition test or complete deprivation of intelligence in committing the crimiral act, and (b) Voli- tion test ora total deprivation of the freedom of the will. TheRD 2B. uu 15. (COMPREHENSIVE REVIEW IN CRIMINAL LAW volition test does not suffice to exempt from liability; it must bbe accompanied by the cognition test which alone is suffi- cient to exempt from I (id) loss of intelligence it is al most a mitigating circumstance under Article 13(9) of the Revived Penal Code: “such illness of the offender as would diminish the exercise of the will- power of the offender without however depriving him of the consciousness of his acts.” ia been described! as a chronic mental disorder characterized by inability to dintinguishbetween fantasy and reality, and often accompanied hy hallucinations and delu- sions. Formerly called dementia praecox, it is said to be the ‘most common form of psychinin and unally develops be- tween the ages of 13 and 30, (1d.) In cases where schizophrenia way interposed, it has mostly been rejected for if there was impairment of the men- tal faculties, such impairment wos not so complete as to de- prive that accused of intelligence or the consciousness of his acts. Schizophrenic reaction, although not exempting because itdoes not completely deprive the offender of the eonscious- ness of his acts, may be considered as a mitigating circum- stance under Article 13(9). Imbecility, like insanity, is a delernse which pertains to the mental condition of a person. The same standards in respect of both insanity and imbecility obtain. (Peuple vs. Buenaflor, GAR. No, 93752, 211 SCRA 492, July 15,1992) ‘There is legal and jurispructential lacuna with respect to the so-called “battered woman syndrome” as a possible modi- fying circumstance that could affect the criminal liability or penalty of the accused. The syndrome deserves serious con- sideration, especially in the light of its possible effect on her very life. Itcould be that very thin line divides between death and life or even acquittal. The Court cannot, for mere techni- cal or procedural objections, deny appellant the opportunity to offer this defense, for any criminal conviction must be “CIRCUMSTANCES AFFECTING CRIMINALLIABILITY » based on proof of guilt beyond reasonable doubt. Accused persons facing the possibility of the death penalty must be given fair opportunities to proffer all defenses possible that could save them from capital punishment. (People vs. Genosa, G.R, No, 135981, 341 SCRA 493, September 29, 2000) ‘The trial judge is not a psychiatrist or psychologist equipped with the specialized knowledge of determining the state of a person’s mental health. 16. The youthful offenders are: a. Nine (9) or under where the law itself presumes lack of intelligence hence no proof will be admitted to prove the contrary even if the minor has superior intelligence. b, Over9 but under 15 who is not criminally liable: unless he acted with discernment. But even if he did so, he is ‘ALWAYS entitled to AT LEAST two degrees’ lowering of penalty. (Article 68) However, discernment is not rel- evant to intent but to intelligence. While there may be discernment, it does not necessarily mean that the mi- nor intended the crime, (People vs. Cordova, july 1993) If intent is not likewise proved, the accused will be ac- ‘quitted from the offense charged. ¢ 1Sbutunder18, Under PD 603 as amended by PD.1179, aminor 15 years old but less than 18 may apply for sus- pension of sentence provided that: 1. The penalty prescribed for the crime is not death of life imprisonment; 2. He must not have been given a suspended sen- tence before since the privilege is available once only; and 3. Atthe time sentence is promulgated, he is still be- low 18 and qualified for commitment to reforma- tory. 17, The allegation that the minor committed the imputed acts ‘with intent to kill” has been held as sufficient compliance to the requirement of allegation in the information that the18 19. 2. COMPREHENSIVE REVI IN CRIMINAL. LAW child had acted with discernment. (People vs. Cordova, et al, July 1993) For accident to be appreciated, the following must concur: a. theaccused was performing, lawful act with due care; b. the injury is eaused by mere accident; and there was no fault or intent of causing the injury, (Peo- ple vs. Mal-an, December 1992) “This is because when the act is with fault, it will fall ‘under culpa; when with intent it will become an intentional felony. The accident must not he foreseeable or there will be fault or criminal negligence. ‘The exemption from criminal liability for accident is based. ‘on the lack of criminal intent. For an accident to become an ‘exempting circumstance, the act has to be lawful. The act of firing a shotgun at another ia not a lawtul act. (People vs. Agliday, G.R. No. 140794, 367 SCRA 273, October 16, 2001) Having claimed that the shooting was accidental, petitioner must prove the same by clear and convincing evidence. However, the burden of proving the commission of the crime remained with the prosecution. (People vs. CA, G.R. No. 1036613, 352 SCRA 599, Hebruary 23, 2001) Anaccident is an accurrence that “happens outside the sway of our will, and although il comes about through some act of ‘our will, lies beyond the hounds of humanly foreseeable con- sequences.” It connotes the absence of criminal intent, In- tent is a mental state, the existence of which is shown by a person's overt acts. In the case at bar, appellant got his shot- ‘gun and returned to the kitchen to shoot his son, who had intervened in the quarrel between the former and Conchita. A shotgun would not have fired off without first being ‘cocked. Undoubtedly, appellant cocked the shotgun before discharging it, showing a cleur intent to fire it at someone. {People ve Aglday, G.R.No. 140794, 367 SCRA 273, October 16, 2001) ‘CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY a 22, Negligence is the omission to do something which a reason- able man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the do- ing of something which a prudent and reaconable man would not do, (Raynera vs, Hiceta, G.R. No. 120824, April 21, 1999) Drivers of vehicle who bump the rear of another vehi- cle are presumed tobe the cause of the accident, unless con- tradieted by other evidence. The rationale behind this pre- sumption is that the driver ofthe rear vehicle has fll control “of the situation as he isin a position to observe the vehicle in. front of him. Consequently, the responsibility to avoid the collision with the front vehicle lies with the driver of the rear Vehicle. His is the last chance of avoiding the accident, (Id.) In case of accident, the actor must not abandon the vic- tim or else he will be liable for abandonment in Art. 275. 23, The elements of impulse of uncontrollable fear are: ‘4, Threat which caused the fear of an evil greater than or at least equal to that which the accused was required to commit; bb. Itpromised an evil of such gravity and imminence that the ordinary man would have sucoambed to it. 24, Irresistible force has the following elements: a. The force must be physical, must come from an outside source, and the accused must act not only without a will but also against his will. b. ‘The actor must be reduced to a mere instrument, such that the element of freedom is wanting, c. The duress, force, fear or intimidation must be present, imminent and impending and of such a nature as to induce a well-grounded fear of death or serious bodily injury if the act is not done. 25, Insuperable cause is an exempting circumstance which ap- plies to felonies by omission. The law imposes a duty on the offender to perform an act but his failure to do sois due toa lawful or insuperable cause. For instance, Asticle 125 pro-‘COMPREHENSIVE REVIEWHR IN CRIMINAL LAW vides for the number of hours when a person arrested must be delivered to the udicial authorities. ARTICLE 13 — Mitigating Circumstances 1 Mitigating circumstances shows lesser perversity of the of- fender and are considered to lower the penalty imposable generally to the minimum period of the penalty prescribed in the law. They are matters of defense which do not have to be alleged inthe information, Article 13 enumerates ordinary mitigating circumstances. Outside of Article 13, are extenuating circumstances such as concealment of dishonor on the part of the mother in infan- ticide which have the effect of reducing the penalty. Unlike in aggravating circumstance, there are analogous mitigating circumstances. ‘The rationale behind the whole concept of mitigating circum- stance is to show mercy anid some extentof leniency in favor ‘of an accused who has nevertheless shown lesser perversity in the commission of an offense, Thus, where the evidence on record bespeaks of vilenoss and depravity, no mercy nor leniency should be accorded an accused who should be made to suffer in full for acts perpetrated with complete voluntari- ness and intent for their tragic consequences. (People vs. Santos, supra.) Kinds of mitigating circumstances: a. Ordinary — lowers the penalty to the minimum period. Privileged — lowers the penalty prescribed by one or ‘more degrees whether it is a divisible or indivisible pen- alty. ©. Specific — applies to a specific felony like concealment of dishonor in the case of aborticn by the pregnant woman. Distinctions between ordinary and privileged mitigating ciz- cumstances: (CIRCUMSTANCES AFFECTING CRIMINAL LABILITY * a. Ordinary can be offset by generic aggravating circum- stance; Privileged cannot be offset by any kind of ag gravating circumstance. b. Ordinary mitigating lowers the penalty prescribed to Seki evcptin cle wher thereat? ordinary mitigating and no aggravating circumstance in which case the penalty is lowered by one degree only. Privileged mitigating lowers the penalty by degree. ‘Thus, if a provision of the Revised Penal Code states that the penalty for a particular felony is lowered by one or two degrees in view of the presence of a particu- lar circumstance, that is a privileged mitigating circum~ ‘stance which cannot be offset by any genericaggravat- ing. Example Article 69 on incomplete | justification/ex- emption. c. Ordinary mitigating is not considered in the determi- nation of the proper penalty when the penalty pre- scribed is a single indivisible penalty. Privileged is con- sidered whatever penalty is imposeble. (One and the same fact should not give credit to more than ‘one mitigating circumstance in favor of the accused. For in- stance, passion, vindication of a grave offense or provoca- tion cannot co-exist if all are based upon the same fact, hence only one circumstance should mitigate the criminal liability ofthe offender. |. The mitigating circumstances are: Incomplete justifying or exempting circumstances; Minority /senility: Praeter intentionem; (supra,) Sufficient provocation or threat; Immediate vindication of a grave offense; Passion or obfuscation; Voluntarily surrender; Voluntarily plea of guilt; Ferme ao ee“ (COMPREHENSIVE REVIEW IN CRIMINAL LAW Deaf and dumb, blind or physical defect; j. Miness; k. Analogous circumstances. 9, The first mitigating circumstance pertains to the incomplete- ness of the requirements lo justify the act or exempt from criminal liability under Articles 11 and 12, This should be related to Article 69 which prescribes a privileged mitigat- ing circumstance if majority of the requisites to exempt or justify are present, Otherwise, Article 13, no. 1 shall apply, and the penalty shall be lowered o theninimum period only. Any first year law stuclent knows that unlawful aggres- sion is not a mitigating circumstance. (Estoya vs, Singson, ‘Adm. Mat, RTJ-91-759, Sept. 1994) It is not unlawful aggres- sion but the incompleteness of the requisite for defense that is mitigating. 10, Minority is always a privileged mitigating circumstance be- cause: a, Article 47 dictates that if the death penalty is imposed, the penalty will be lowered to reclusion perpetua, (if the minor is less than 15 the penalty should be lowered to reclusion temporal) b. Article 68(1) mandates that if the minor is over 9 but under 15, and he acted with discernment he shall al- ways be entitied toat lvasl two degnes reduction of the penalty, and Article 68(2) requires that if the minor is over 15 but under 18, he shall be entitle! to a wcluction of penalty to the next lower penalty bul in the proper period. . fhe is exactly 15, following the rule on liberal interpre- tation, he should be classilied under paragraph 1 of Article 68 but the Supremw Court on one occasion placed the 15 year-old in no. 2 TL Inone instance, appellant was only 16 yearsof age when she committed the offense. I she were prusecuted under the 2 1B 4 15 16. cv CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY s Code, she is entitled to a reduction of penalty by one degree (Art. 68, RPC). But the benign provisions of the Code are not applicable to offenders prosecuted under special laws. (Peo~ ple vs. Ondo, 227 SCRA 562) PD. 603 is not applicable to: ‘a. One who has once enjoyed its benefits; b. One whois convicted for an offense punishable by death or life imprisonment; c Ayouth who has been convicted for an offense by the Military Tribunals. Suspension of sentence shall not apply toa youthful offender who is convicted of an offense punishable by death or life imprisonment. A eee ig ecrliment and ‘was sentenced to suffer ty of life imprisonment clearly falls under the exception provided for by the Child and Youth Welfare Code, (i.) It can be inferred from Article 191 of RD. 603 that the provi- sion is operative only during the trial or pending appeal. Nevertheless the law uses the word “may,” which denotes that it is directory in nature and implies discretion on the partof the tral court to place the minor under the custody of his or her parents or any suitable person. (id.) What Article 189 of PD 603 modified is Article 80 of the Re- vised Penal Code on suspension of sentence; and not para graph 2, Article 13 of the same Code which treats of minor- ity asa mitigating circumstance. Thus, for minority tobe con- sidered as 8 mitigating circumstance, the offender must be lunder 18 years of age at the time the crime was committed. “The age of the minor is reckoned at the time of the commis- sion of the crime to determine if he is qualified for suspen- ‘ion of sentence, but the age at the time of rendition of ser tence is considered ifthe application will be granted. ‘The judge committed error in suspending the sentence since the crime of the minor, robbery with homicide, is punish- able by reclusion perpetua to death. However, since the deci18, 19. 21. (COMPREHENSIVE REVIEWER IN CRIMINAL LAW sion has become final, even the Supreme Court can no longer alter that judgment no matter how erroneous it may have been. (People vs. Galit, GR. No. 97432, March 1, 1994) Itis not for the Supreme Court to order the release of the minor from the training school without the benefit of a re- view of the recommendation of the DSWD by the trial court. Under Art. 196 of PD 603, it is the trial court who should review the report and recommendation which per se is not sufficient to warrant the release of youthful offender, The court should seek out concrete, material and relevant facts to confirm thathe had indeed been reformed and is ready to reenter society as a productive and law abiding citizen. But, he is not to be tried anew for the same act he was charged with. The inquiry isnot a criminal prosecution but the deter- mination of his proper education and rehabilitation during, his commitment in the Center and his moral and social fit- ness to rejoin the community. (id,) . Penal laws should be liberally construed in favor of the of- fender, Thus, considering the gravity of the offense and in the interest of justice, the Supreme Court allowed the pres- entation of and admitted the birth certificate of the accused to prove minority although said birth certificate was not px sented or offered in the trial court. An official document pre- pared by the DSWD in the exercise ofits functions and which document is incorporated in the records of this case can be taken judicial notice ex mero motu. (People vs. Regalario, 220 SCRA 368) ‘To benefit from PD 603, the accused must be a youthful of- fender not only at the time of the commission of the crime but also at the time of trial, When the accused is no longer a youthful offender at the time of sentencing, he cannot ‘anymore avail of the benefit of suspension of sentence. Nei- ther can his “minority” [19 years old] at the time of commis- sion of the crime be appreciated as a mitigating factor. (Peo- ple vs. delos Reyes, G.R. No. 44112, October 22, 1992) ‘Arminor found criminally responsible may still escape pen- alty for Article 196 of PD 603 provides that if it is shown to 22. 24, 26. m7. ” “CARCUMSTANCES APLECTING C the satisfaction of the court that the youthful offender whose sentence has been suspended has behaved properly and has shown his capability to be a tuseful member of the commu nity, even before reaching the age of majority, upon recom- mendation of the DSWD, it shall dismiss the case and order his final discharge. Under Sectinn 197, the youth is to be returned to court for pronouncement of judgment if he has shown himself to be incorrigible, he failed to comply with the condition of his rehabilitation or his continued stay tn training institution is not advisable. Senility (over 70) iv an otlinary mitigating circumstance ex- cept when the penalty imposable Is death in which case, it Shell be reduced to clusion perpetua pursuant Article 83, thus partaking the nature ofa privileged mitigating circumstance. “The elements of sufficient provocation are: a, The provocation must be suffident; b. Tt must be immediate to the commission of the crime; c._ It must originate from the offended party. Provocation is immediate if ro interval of time elapsed be- tween the provocation and the commission of the crime, (Peo ple vs, Pagal, 79SCRA 570) ‘Accused cannot claim that he was provoked when the of- fended ran away from him becnuse the hapless victim feared for his life having been beaten up twice by his assailants that same evening, To flee when danget lurks is human andcan never be regarded asa source of tion sufficient within the ambit of the Code. In fact, when an offended party flees from his apgressor, the latter has no reason to pursue and attack him. (People vs, Padilla, GR.No.75508, June 10, 1994) Sufficient provocation as a requisite of incomplete self- defense is different from sufficient provocation as a mitigat- ing circumstance, As an clement of self-defense, it requires its absence on the part of the person defending himeelf;as a sitigating circumstance, itpertainsto its presence on thepart31. 32. (COMPREHENSIVE KEVIEWIICIN CRIMINAL.LAW of the offended party. (People ve. CA, Gk, No, 103613, Feb- ‘ruary 2001) Inimmediate vindication of grave offense “offense” need not be a crime. It may be any act or event which offends the ac- cused causing mental agony tohim and moves him to vindi- cate himself of such offenne. For instance, insulting an old man (US. vs. Ampar, 37 Phil. 301) or eluping with the of- fender's daughter. (People vs. Diokno, 63 Phil. 601) “Immediate” means proximate, unlike in sufficient provo- cation, and allows an interval of time between the commis- sion of the offense and its vindicution as long as the offender ig till eufering from the mental agony brought about by the “offense” to him, (People vs, Varana, 64 Phil. 331) ‘The benefit of mitigating circumstance of immediate vindi- cation of a grave offense cannot be considered in favor of the accused when he had sufficient time to recover his serenity. (People vs. Santos, supra.) In passion or obfuscation il iy necessary that it arose from awful sentiments, There must be an acl unlawful and suffi- cient to excite passion or obfuscation on the accused. Said act must not be farremovedl [rom the commission of the crime by a considerable length of time during which the offender might have recovered his serves, ‘The court will not appreciate passion or obfuscation inas- much as the anger of Eduardo at Francis dlid not arise from lawful sentiments. The delay of Francis in obeying Eduardo’s request to buy a balleasterbearing is too trivia a matter as to fairly and justly cause such overreaction on the part of Eduardo, (People vs, Tiongco, September 1994) The acts of the accused were done in the spirit of revenge and lawless- ness, for which no mitigating circumstance of passion or ‘obfuscation can arise. (People vs. CA, G.8. No. 103613, Feb- ruary 23, 2001) Voluntary surrender and voluntary plea are independent of ‘each other and can be separately considered in favor of the offender. 34. ‘CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY * ‘The elements of voluntary surrender are: a. The offender surrendered to a person in authority or his agent; b. The offender surrendered before arrest is effected; It must be voluntary, i, spontaneous and must show the intentof the accused tosubmit himself uncondition- y to the authorities, either because he acknowledges i guilt or he wishes to save them the trouble and ex- ‘pense incidental to his search and capture; d. There is no pending warrant of arrest or information led. (People vs. Taraya, GAR. No, 195851, October 27, 2000) For instance, when Ampie leamed that the police were looking for him for the death of Salvador, he im- mediately wentto the police stationwherehe confessed to killing Salvador in self-defense. However, the said surrender does not constitute as a mitigating circum: stance for atthe time of his surrender, he had a pending, warrant of arrest issued five days before his: surrender. His arrest by that time was imminent. (id) Voluntary surrender can be appreciated even if the accused turned themselves one week after the crime, The fact is they voluntarily surrendered to the police before arrest could be effected, (People vs. Amaguin, G.R. Nes. 54344-45, January 10, 1994) Since it was the police officer who wert looking for the ac- ‘cused immediately after obtaining information from eyewit- nesses as to who had fated the crime even if he did rnot resist arrest or deny his criminal act, this cannot be equated with voluntary surrender. (People vs. Rebamontan, 305 SCRA 609, April 1999) ‘On the day following the killing, accused surrendered to the Provincial Commander. That the Provincial Commander announced over the radio thathe would issue a shoot-to-kill order unless accused voluntarily surrerders, and that he was persuaded to surrender by his employer do not militate40. 41. 2, ‘COMPREHENSIVE REVIIWUN IN CRIMINAL LAW against the consideration of his voluntary surrender. The stubbom fact was that he was not arrested and that he pre- sented himself to the Provincial Commander to surrender. (People vs. Morato, 224 SCRA 361, July 1993) ‘The offender himself should surrender. Ifthe offender did not submit himself to the authorities and it was his superior who surrendered him to the custody of the court, such is not the voluntary surrender contemplated by law. (People vs. Acuram, supra.) ‘That accused surrendered because of fear of reprisal does not detract from the spontaneity of his surrender and the fact that he had saved the State the time and trouble of search- ing for him. (People vs. Amazan, G.R. No. 136251, Jan. 16, 2001) The fact that accused yielded his weapon at the time of the incident albeit with some persuasion should be consid- ‘ered in his favor. (People vs, Anion, G.R No, 140511, March 1, 2001) ‘The elements of voluntary plea of guilty are: a. The plea was made in open court (judicial confession) b. It was spontaneous and unconditional c. Made before presentation of the evidence by the pros- ecution An extra-judicial confession ix not mitigating because not made in open court, The court must be one of original juris- diction because it must be made at the earliest opportunity and before the presentation of the prosecution's evidence. Voluntary plea of guilty is mitigating because itis an act of repentance and respect for the law. It indicates a moral dis- position in the accused favorable to his reform. Plea of guilty in capital offenses must not be accepted with alacrity but the accused must be made tv understand fully thenature of his plea and its consequences. The accused must be acquitted if the only evidence of his guilt is his improvi- dent plea due to the prodding of his PAO lawyer. (People vs. Mendoza, 231 SCRA 264, March 1994) 45. 46. 47. “CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY a ‘Accused did not plead to a lesser offense but pleaded guilty to the rape charges and only bargained for a lesser penalty. In short, he did not plea bargain but made conditions on the penalty to be imposed. This is erroneous because by plead ing guilty to the offense charged, he should be sentenced to the penalty to which he pleaded. It isthe essence ofa plea of ‘guilty that the accused admits absolutely and uncondition- ally his guilt and responsibility for the ojfense imputed to him. Hence, he may not foist a conditional plea of guilty on the court by admitting his guilt provided that a certain pen- alty will be meted unto him. (People vs Magat, GR. No. 130026, 332 SCRA 517) ‘The offender’s being deaf and dumb or blind or otherwise suffering from some physical defect must be related to the offense committed because the law requires that the defect has the effect of restricting his means of action, defense, or ‘communication to his fellow beings. Illness must only diminish and not deprive the offender of the consciousness of his acts. Otherwise he will be exempt from criminal liability. Analogous circumstances must be similar to those enumer- ated in Article 13. Examples of these are: ‘a, Restitution of the questioned funds by petitioner may be considered mitigating circumstance in malversation of public funds (Nizurtado vs, Sandiganbayan, 239 SCRA 33, December 1994) as analogous to voluntary plea of guilty. b. That petitioner voluntarily took the cow to the munici- pal hall to place it unconditionally in the custody of the Authorities and thus save them the trouble of recover- ing the cow, can be analogous to voluntary surrender, (Canta vs. People, G.R. No. 140937, February 28, 2001) c. Extreme poverty is not among the mitigating circum- ‘stances enumerated in Article 13 of the Code and it is doubtful whether it may be considered as a circum- stance of a similar nature or analogous to those men-a2 CCOMPREHUNSIVE REVIWVENC IN CRIMINAL LAW tion in said Article, (Gallardo vs. Tabamo, Je, Adm. Mat. RTJ-92-881, June 1994) d. Even if their formal education were ignored, such at- tenuating circumstance is nonetheless unavailing. The fact that defendants belong to the non-Christian cultural minorities cannot reduce from the subjective point of view their awareness of the gravity of the offense for robbery and killing are by their very nature just as wrong to the ignorant as to the enlightened. ARTICLE 14 — Aggravating Circumstances 1. Aggravating circumstances are those which show greater perversity of the offender, hence, they have the effect of in- creasing the penalty. 2. Aggravating and mitigating circumstances may be distin- ‘guished in the following manner: a. ‘The list in Article 13 includes analogous circumstances showing the liberality of the law in favor of the accused; in Article 14, the list is exclusive to curtall discretion of the judge to determine what other circumstances may increase the penalty. b. Mitigating cizcumstance may lower the penalty by de- agrees as in the case of Article 64, no. 5; aggravating cix- ‘cumstances, no mater how many can only increase the penalty to the maximum period within that penalty prescribed by law. The inerense can never be by degree. Mitigating circumstance is a matter of defense which does not have to be alleged in the Information; aggra~ vating circumstances must be alleged in the Informa- tion before they can be proved and appreciated. 3. Examples of 2b: a, Where the accused killed 3 persons by reason or on the ‘occasion of the robbery the ine of multiplicity of homi- cide was the subject of conflicting views. In some cases. it was held that the wdditional rapes/homicides com- CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 3 mitted on the occasion of robbery would not increase the penalty; while in other cases, the ruling was, the multiplicity of rapes/homicides committed would be appreciated as an aggravating circumstances. People 0s. Regala settled the issue where the court ruled that no Jaw provides that the additional rape or homicide should be considered as aggravatingcircumstance. (Peo- ple vs. Gano, GR. No. 134373, February 28, 2001) b. Immoral motive, while it may find support in evidence may not be considered as it does not fall under any of the aggravating circumstances enumerated in Article 14 of the Revised Penal Code. (People vs. Villaver, G.R. No. 1-32104, March 25, 1983) 4, The four kinds of aggravating circumstances are: a. Generic aggravating circumstances which: 1. Have the effect of the penalty being imposed in the maximum period. Note that the penalty pre- seribed in Book If of the Code is the maximum imposable, thus the increase in the penalty cannot bbe to the next higher degree but only to the maxi- mum period; 2. Apply toall felonies; and 3, Can be offset by an ordinary mitigating circum- stance. Prior to the amendment of the Rules on Criminal Procedure, aqualifying circumstance not alleged in the Information but proved may be appreciated as.a generic ‘aggravating circumstance because this is not an element ofthe crime, hence, its appreciation does not violate the right of the accused to be informed of the nature of the accusation against him. However, with the Revised Rules on Criminal Procedure, the Information must specify the qualifying and aggravating circumstances. ‘Gection 8, Rule 110) ‘A cursory examination of the Information filed against accused-appellant would show that the aggra-COMPREHENSIVE RUVIEWER IN CRIMINAL. LAW vating circumstances of nighttime and dwelling are not specified therein. Now, at the time the trial court ren- dered its decision, the non-allegation of generic aggra- vating circumstances in the information was immate- rial, since the rule then prevailing was that generic ag- ‘gravating circumstances duly proven in the course of the trial could be taken into account by the trial court in determining the proper imposable penalty even ifsuch circumstances were notalleged in the information. (Peo- ple vs, Deberto, 205 SCRA 291; People vs. Legaspi, 357 SCRA 240) ‘The circumstances enumerated in Article 14 are generic circumstances although some are qualifying in particular crimes such as treachery, evident premedita- tion, ete. in murder. (Qualifying circumstances which: 1. Cannotbe offset by any mitigating circumstance. 2. Change the nature of the crime and the designa- tion of the offense. 3. Must be alleged! in the information, otherwise it cannotbe considered agains! the offender as such because it will violate right of the accused to be informed of the nature of the secusation against him since a qualifying circumstance changes the nature of the offense. ‘This is beside the fact that the Revised Rules on Criminal Procedure now re- quires specification of qualifying, circumstances in the Information, 4. Must be proved as conclusively as the guilt of the offender because it changes the nature of the offense with corresponding increase in the penalty. For instance, homicide is penalized with reclusion temporal (20 years maximurn). With one qualify- ing circumstance, it becomes murder penalized with reclusion perpetua (40 years maximum), thus the penalty is doubled, c. ‘CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 35 Special or specific aggravating, circumstances which apply 2 Particular felony. They do not change the cheracter of the offense charged but guide the court in imposing the proper penalty. (People vs. Agguihao, March 10, 1994) The same rae os in genes agra ing applies to special aggravating as) as apPange te cheracer of the offense charged. RA 7659 added the circumstance of “organized / ted group" in Article 62(1a). Thisis a special ag- gravating circumstance because Article 14 was not cor Fespondingly amended to include the same. The maxi- mum penalty shall be imposed if the offense was com- mitted by any person belonging to an organized /syn- dicated crime group which is defined as a group of 2 or ‘more persons collaborating, confederating, Or ‘mutually helping one another for purposes of gan in the commis- sion of any crime. Inherent aggravating circumstance whichis an element of the felony thus no longer considered against the of- fender in the determination of the genalty. (Art. 62, no. 2) ‘The Revised Rules of Criminal Proceduse (effective Decem- ‘ber 1, 2000) requires that every complaint or information must expressly and specifically allege not only the qualifying but Slso the genoric aggravating circumstances; otherwise, the Jame will not be considered by the courteven it proved dur- ing the trial. The Revised Rules is applicable in. all criminal aces, notonly in cases where the aggravating circumstances would increase the penalty to death. (Pecple vs. Legaspi, G.R. Nos. 1336164-5, April 20, 2001) Prior to the Revised Rules the norvallegation of generic aggravating circumstances duly proven in the course ofthe trial could be taken into account by the trial court in determining the imposable; penalty. (Peo- ple vs. Legaspi, GR, Nos, 136164-65, April 20, 2001) ,. The rationale for the requirement to be informed of the ex- jstence of the qualifying circumstance is for accused to pre- pare properly for his defense to meet head-on the qualifying Prrourrstance and because such circumstance changes the% ‘COMPREHENSIVE RIEVIEWR IN CRIMINAL LAW nature of the charge against him. (People vs. Abuyen, Sep- tember 1992) 7. Article 335 as amended by RA 7659, (now 266-A, RA. 8353) prescribes the death penalty when the rape victim is under ‘Band the offender is a parent, ascendant, step-parent, guard- iany relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent ofthe vic- tim. The relationship of the accused and the victim and the ‘minority of the offended party must be specifically pleaded in the Information to be appreciated for the purpose of im- posing the death penalty, (People vs. Ranilla, July 1999) For instance, the description of the offender in the Information as uncle is insufficient to inform the offender as the law re- quires “affinity within third civil degree." It mightbe that he is an uncle being a cousin of the victim's parent, outside of the third civil degree. 8 Where one of the aggravating circumstances has been used as a qualifying circumstance, the others will be deemed as generic, Since treachery has already been used to qualify the Crime as murder, evident premeditation should be consid- ered as only a yeneric aggravating circumstance, (People vs. Fabros, October 1992) 9. Conspiracy is neither apgravating nor qualifying but is ‘manner of incurring collective criminal liability among every co-conspirator in an equal degree such that the act of one becomes the actof all. The presence of conspiracy cannot per se qualify a killing to murder, (People vs. Feran, October 1992) Taking advantage of official position 1. Intaking advantage of official position the testis: “Did the accused abuse his office in order to commit the crime? If he imestance i present, (Sanchez vs. Demetriou, ered present when for instance the offender falsifies a document in connection with the duties of his o!- fice which consist of either making or preparing or other- wise intervening in the preparation of a document, (Layno vs. People, September 1992) (See notes under Article 62) ‘CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY a 2. ‘That accused appellant used his service firearm in shooting the victim should not be considered as taking advantage of public position. For such to be considered aggravating, the Public official must use the influence, prestige and ascend Ency whichis office gives him in realizing is purpose. (Peo- ple vs. Amion, G.R. No. 140511, March 1,201) In contempt of or with Insult to public authorities: 1. Requisites: a. _ The public authority is engaged in the discharge of his duties; 'b. Offender knows the identity of the public authorit The crime was committed in his emus not be against the person in authority for then the crime would be direct assault and this circumstance will be absorbed being inherent therein. 2, A person in authority is one vested with jurisdiction or au thority. A chief of police is a public authority because he is specifically duty bound to prosecute ard apprehend viola- were of the laws and municipal ordinances. He heads and supervises the entire police force in the municipality. A Barangay Chairman is also a person in authority ‘because he has jurisdiction over the barangay and as expressly provided under the Local Government Code. ‘Ago, Sex, Rank, Dwelling 1, There are four circumstances in this paragraph but only one credit should be given if al are present for they all refer to the circumstance of lack of respect duetto the offended. 2. There must be proof that offender deliberately intended to offend or insult the age or sex of the offended, Thus, this Circumstance cannot co-exist with passion or obfuscation. because here the offender lost his contol or reason. 3, Themere fact thatthe victim is a female does not suffice. The aggravating circumstance of sex is not sustained solely by‘COMPREHENSIVE RAVIIWIN IN CRIMINAL, LAW. the fact that the victim was a woman, It must further appear that in the unlawful taking of her life, there was some spe- cific insult or disrespect shown to her womanhood. (People vs. Ursal, 121 SCRA 409) ‘These are considered in crimes against persons, security or honor. It is not considered in crimes where gender is an ele- ment as in parricide, rape, abduction, or seduction; or in crimes against property such as the special complex crime of robbery with homicide. (People vs. Paraiso, G.R. No. 127840, November 29, 1999) However, in People vs. de los Reyes, (October 1992, the aggravating circumstance of dwelling was taken into account in the imposition of the proper penalty because robbery with homicide can be committed without necessarily tranegressing the sanctity of the home. "Rank" should be given a plain, ordinary meaning, hence refers to high social position or standing, It is absorbed in the crime of direct assuult since rank is an element there- of, It should be clearly demonstrated that the accused deliber- ately intended to act with insult or in disregard of the re- spect due the victim on account of his rank. That the accused ‘was cognizant of the rank of the deceased police officer or that he articulated hatred against all policemen in general does not per se sulfice to prove this aggravating circumstance. (Or when the raiding police officers were not even in uni- form. (People vs. Verchez, June 1954) ‘Age refers to both the elderly and the youth, For instance, Jayvee was barely six years old when cuthlessly stabbed fourteen times before his body was submerged in the pail. It was error for the court not to have considered his age as an aggravating circumstance, (People vs. Lapan, July 1992) “Dwelling” (morada) includes dependencies, staircase, and enclosures under the house. Its not necessary that the house be owned by the offended. It includes a room in a boarding house. Home is that which the law seeks to protect or up- 10, nN. rv 2B. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 2 hold against any intruder whether the dweller is a lessee, 2 boarder or a bed spacer. ‘A dwelling must bea building or structure exclusively used for rest and comfort. Where the crime was committed in a store which is about fifteen meters away from the complain- ant’s house, the aggravating circumstance of dwelling can- notbe considered. Obviously, the store cannot be considered 2 dwelling or even a dependency of complainant's home, (People vs. Joya, October 1993) Dwelling is not aggravating when: . the offended has given provocation b. both the offended and offender live therein c. dwelling is inherent in the crime such as trespass to ‘dwelling or robbery in an inhabited place Reason for this aggravating circumstance — the offender's greater perversity in deliberately invading the tranquility of another's domicile. (People vs. Lapan, July 1992) Im the crimes of abduction and illegal detention where the offended is taken from his house, dwelling may ‘be taken as an aggravating circumstance, However, this ‘circumstance has no effect when the imposable penalty isindivisible. (Article 63) (People vs. Grefiel, November 1992) Itis not necessary that the accused should have entered the dwelling of the victim to commit the offense; it is enough that the victim was attacked inside his cwn house, although the assailant may have devised means to perpetrate the as- sault from outside the house, Thus, although the attack was ‘made not from inside but from below the floor of the hoisse, ‘dwelling may be considered as in fact the target victim was hitinside his own house (People vs. Dacibar, G.R. No. 111286, February 2000) or when the victim was abducted while she ‘was in the staircase, (People vs. Magat, GR. No, 130026, 332 SCRA S517)@ ‘COMPREHENSIVE REVIEWEI IN CRIMINAL LAW Abuse of confidence/obvious ungratefulness 1. Requisites of abuse of confidence /obvious ungratefulness: a. Offended had trusted the offender b, Offender abused such trust c. Such abuse of confidence facilitated commission of the crime 2, The confidence between the parties must be immediate and personal. Committed in the palace of the Chlof Executive, etc. 1. Performance of function is not necessary in the circumstances of the offense being committed in the palace of the Chief Executive, in a place devoted to religious worship or in the presence of the Chief Executive. 2. Offender must have sought any of the four places in para- graph 5 for the commission of the crime. Nighttime, uninhabited place, band, ald of armed men 1. “Nighttime” isthe period of darkness beginning at dusk and ‘ending at dawn or from sunsot to sunrise, The crime must be committed exclusively at nighttime and not started at daytime. It is not considered in crimes where nighttime is a mereaccident or has no influence in the perpetration thereof. 2, Nighttime is absorbed in (reachery if its part of the treach- ‘erous means to insure execution of crime. (People vs. Ong, January 30, 1975) 3. The aggravating circumstance of nocturnity cannot be con- sidered where the prosecution vatablished no more than the simple fact that thecrime was committed at night, Nighttime must be deliberately sought in the perpetration of the crime. (People vs. Ferrer, 255 SCRA) 4. The crime must be covered by darkness. Ifthe light was bright enough to see whal was going, on and lo recognize the as- sailants, nocturnity docs not qualify as an aggravating cir- 5. 10. u CURCUNSTANCES AFFECTING CRIMINAL LIABILITY a cumstance under either the subjective or objective tests. (Peo- ple vs, Bigcas, July 1992) By and of itself, nightiimeis notan aggravating circumstance, It becomes so only when it is especially sought by the of- fender, or taken advantage by him to facibtate the commis- sion of the crime (objective test) or to ensure his immunity from capture (Subjective test). (People vs. Pasiliao, October 1992) Nighttime is nota qualifying circumstanceunder Article 248 of the Code, (People vs. Valeriano, ‘September 1993) Ininhabited place” is determined by the reasonable possi- bility of the victim receiving some help or where there are no people or any number of houses within a perimeter of less than 200 meters. Band consists of more than three (at least four) armed mal- efactors organized with the intention of carrying out any unlawful design. They should have acted together in the ‘commission of the crime. (People vs. Rebiego, November 1993) Bands inherent in brigandage. Its similar to abuse of supe- rior strength whose essence is the utilization of the combined strength of the assailants to overpower the victim to con- summate the offense, : ‘The elements of aid of armed men are: a, Armed men or persons took part in the commission of the crime, directly or indirectly, and b. The accused availed himself of their aid or relied upon them when the crime was committed, Compared with the circumstance of aid of armed men: a. Inband there must be at least four armed men; in aid of ‘armed men, there is no required number of malefac- tors. b. The band members are all principa for they take part in the commission of the felony under the same plana (COMPREHENSIVE REVAWEK IN CRIMINAL LAW and for the same purpose. The armed men who aided the principal offencler are miereaccomplices for they give material and moral aicl and encouragementin the com- mission of the crime, Band absorbsaid of armed men. (On the occasion and by means of calamity or misfortune ‘The “other calamity or misfortune” in paragraph 7 refers to the occasion of conflagration, shipwreck, earthquake of epidemic when the offense was commitied. In paragraph 12, the calamity is the means in the commission of the crime. Aggravating because ofthe offender instead of lending aid to the victims, adds to their sufferings. Recidivism, reiteracion, habitual delinquency and quast-recidivism 1. There are four forms of habituality, to wit: recidivism, reiteracion, habitual delinquency (Article 62, No.5) and quasi- recidivism (Att. 160). Arecidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of an- other crime embraced in the same tlle of thy Code. There must be two convictions. 3, "Final judgment” means executory, i. a. 15 days have elapsed from Its promulgation without the convict appealing the conviction; b, offender started serving s nee; che expressly waived his right to appeal; or d. he applied for probation 4. Recidivism cannot be appreciated where the prosecution failed to present “certified true copies of the judgment of conviction” in the other case since the same is not cured by the failure of the accused to abject to such lack of presenta- tion. Recidivism isan affirmative allegation whenever alleged ‘CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY ° in the information and when the accused enters a plea of not ‘guilty to such information, there is a joirder of issues not only as tohis guilt orinnocence but also asto the presence or absence of the modifying circumstances s9 alleged. (People vs, Molina, G.R. Nos, 1477-8, July 24, 2600) . Inreiteracion, the offender has been previously punished (has served sentence). The first offense was punished with an ‘equal or greater penalty; orhe committed two or more crimes previously where he was meted lighter penalty. The ration- ‘ie here is that despite the previous punishment, offender did not learn his lesson. ;. Recidivism compared with reiteracion: ‘a. _ Recidivism requires a previous conviction by final judg- ‘ment; reiteracion requires service ofsentence. b. In recidivism the offenses are under the same Title; in reiteracion, itis not so required. ¢. Inthe former, here is no requirement as to penalty; in the latter the prior crime must have been imposed with a penalty equal to or greater than the second crime or he must have served for two or more crimes carrying lighter penalty. 1, Habitual delinquency is a special aggravating circumstance and unlike the other kinds of aggrava:ing circumstances ‘which mercly increases the penalty for the offense commit- ted, habitual delinquency has its own penalty which escalates with the increase in the number of convictions. Thus the pen- ally is for the felony committed plus forthe habitual delin- {quency the total of which should not be more than 30 years. A person is a habitual delinquent if within a period of ten years from the date of his release or last conviction of the ‘crimes of Falsification, Robbery, Estafa, Theft, Serious or Less Serious Physical Injuries (memory aid — FRETSeL) he is found guilty of said crimes a third time or oftener. Falsifica- tion is a crime against public interest, Robbery, a and ‘Theft are against Property and the last two are against per- sons. An offender may be a recidivist and a habitual delin-10, 12, CCOMPREHENAVE REVIEWER IN CRIMINAL LAW quent at the same time if he was convicted for the third time of the crimes within the same title of the Code. ). There must be three convictions within 10 years of the cov- ered crimes. The 10-year period is counted from the date of release if he had been released when again convicted. Comparing recidivism and habitual delinquency: a. _Inrecidivism, a second conviction is enough; in habitual delinquency, a third conviction is necessary. b. Recidivism requires that the crimes involved be both under the same Title af the Code; in habitual delin- quency, the crimes are specifi c._ Recidiviem does not prescribe because there is no time limit between the Ist and 2nd convictions; habitual de- linquency prescribes if the time limit between convic- tions is exceeded. d. Recidivism isa generic aggravating circumstance which ‘can be offset by an ordinary mitigating cizcumstance; habitual delinquency is a special aggravating circum- stance which must be considered by the court in the imposition of penalty |. Quasi-recidivism isa special aggravating circumstance which may not be offset by an ordinary mitigating circumstance. ‘The offender has been previously convicted by final judg- ment and before beginning lo serve such ventence, or while serving the same he committed a felony. Quasi-recidivism is penalized in addition to habitual delin- quency because of the opening, phrase in Article 160, thus: “Besides the provisions of rule 5 of article 62.” The effect is to penalize the convict with the maximum period forthe new felony committed plus the penalty for the original convic- tion plus the penally for the habitual delinquency. If (1) in the service of the first conviction, he reached! the age of 70, or (2) he shall complete the service of the original conviction after that age, he shall be pardoned, unlens he is a habitual criminal or his conduct or other circumstances show thathe is not worthy of pardon. (CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY « Price, promise or reward Price, promise or reward affects equally the offeror and the acceptor The offeror is a principal by inducement, and the accep- tor the principal by direct participation. The inducement is the primary consideration in the commission of the crime for this cir- cumstance to be aggravating. Evident premeditation 1. The elements of evident premeditation are: a. The TIME whenthe offender determined to committhe crime; b. An ACT manifestly indicating that he has clung to his determination; and c. Sufficient LAPSE of time between such determination and execution to allow him to reflect upon the conse- ‘quences of his act. 2, It must be shown when the plan to kill was hatched or the length of time that elapsed before it was carried out for the essence of evident premeditation is stubborn adherence to a decision to commit.a felony. Otherwise stated, the execution of the plan must be preceded by cool thought and reflection of the resolution to carry out the criminal intent during the space of time sufficient to arrive at a calm judgment. 3, Evident premeditation cannot be appreciated to qualify a \alling to murder in the absence of evidence, not only of suf- ficient lapse of time, but also of the planning and prepara” tion to Kill when the plan was conceived. (People vs. Nell, 84 SCAD) The information that Edgardo heard Arturo was “hunting” him because of competition over a girl is not suf- ficient to prove evident premeditation (People vs. Wencesla0, ‘August 1992) or of alleged resentment does not constitute conclusive proof of evident premeditation. (People vs. Padama, G.R. No. 132137, October 1999) 4, Evident premeditation means the lapse of period: sufficient in a judicial sense to afford full opportunity for meditation6 ‘COMPREHENSIVE REVIEWER IN CRMINAL LAW and reflection and sufficient to allow the conscience of the actor to overcome the resolution of his will. 31/2 hours from the plan toa cect a suficen ine fo the ese ispassionately reflect upon the consequences of his act or to desist from is execution. 5. Bvident premeditation is notinherentin sobbery with hom:- cide. In such an offense, the evident premeditation must re- late to the killing and not to the robbery. (People vs. ‘Manansala, July 1992) ‘6. If the attack upon the village is planned, the killing of any individual during the attack is attended also by evident pre- meditation. 7. Under normal conditions, where conspiracy is directly es- tablished, with proof of the attendant deliberation and se- lection of the method, time and means of executing the crime, the existence of evident premeditation canbe presumed. But notin the case of implied conspiracy betause evident premedi- {ation may not be appreciated in the absence of proof as to how and when the plan fo kill the victim was or ‘what time elapsed before it was carried out for the accused to have “sufficient time between its inception and its ‘tlfllment dispassionately to consider and accept the con- sequences.” (People vs, Manansala, id; People vs. Padlan, May 1998) Craft, fraud, disguise 1. Craftis cunning or intellectual trickery or chicanery resorted toby te acs to cary out hisevil design. the ofender assumed position of authority to gain entry ina house; feign- ing friendship to lure victim to an uninhabited place. If used toingure the commission of the crime against persons) with- ‘out risk to offender, it is absorbed by treachery. 2. Fraud constitutes deceit manifested by insidious words or machinations. Disguise is resorted to conceal the identity. If in spite of thé disguise, the offender was recognized, such cannot be aggravating. Not aggravating if it did not facii- tate the commission of the crime or itis not taken advantage CRCUMSTANCES AFFECTING CRIMINALLIABILITY o of by the offenderin the course of the assault. If erat, fraud or disguise was used to insure the commission of the crime {against persone) without risk to offender, they are absorbed by treachery. ‘Abuse of superior strength , Abuse of superior strength is intentionally employing ex- in censive force outef proportion to the means of defense avail- able to the offended party. There must be a notorious inequal ity of forces between the victim and the aggressor. 2 Su in number does not necessarily mean that the StBedrsSoused thee superior strength or that means are employed to weaken the defense. It must be proved that the ‘attackers cooperated in such a way as to securé advantage from superiority of strength. 3, ‘This is not taken into account if the assault was character. ized with passion or obfuscation or made during a quarrel Itis inherent in parricide as generally the husband is physi- cally stronger than the wife; and in rape it is absorbed in the element of force, hence already taken into account in fixing the penalty. 4, Anattack by a man with a deadly weapon upon an unarmed ‘and defenseless woman constitutes abuse of superior ‘which his sex and weapon afforded him. (People vs. Espina, GR. No. 123102, February 29, 2000) or where the aggressors, who were all armed, first hit the legs of theiz ‘unarmed victim, causing the latter to fall kneeling; then, stabbed him above the knee; and, having deprived him of hismeansstand orrun, took turns in inflicting mortal wounds ‘on him. (People vs. Apelado, GR. No. 132137, October 1, 1999) ‘Treachery (alevosia) 1. When itis shown that the attack was not made with alevosia (treachery), thenumber of the assailants and the simultane- ity of the attack upon a defenseless person may constitute(COMPRENENSIVE REVIEWERIN CRMINALLAW | abuse of force. This is manifest where the victim was ur armed and wasting toflee while thetwo felons were armed ‘weapons in perpetrating the crime. (People velar July 9 Penn - Where three persons assaulted the victim inside his house and the appellant stabbed the deceased while the latter was firmly held by the two other companions, treachery cannct be appreciated because it is included in abuse of superiar strength. . Treachery must (1) insure that the offended was not able to put up any. defense, not even token defense; and (2) the ‘means, manner, and form was consciously and deliberately, chosen. (People vs. Magallanes, August 1997) The means, methods or forms of the execution of the crime must be com sciously adopted because the law requires that the same in- ssure its execution. The attack must be intended to facilitate the perpetration of the killing without risk to the offender from a defense the victim might offer. ‘Treachery may be appreciated even when the victim warmed of the danger to his person, for what le deceive is that thé execution of the attack made it impossible for the iin fo defend hinself or retait, (People v,Landicha It is a special aggravating circumstance because present in crimes against persons only. It is qualifying in murder, In serious physical injuries, itis a special aggravating circum- stance which increases the penalty. 7 ‘There is no treachery if the attack is an impulse of the ac- cused or when the killing is due to passion or when the ac- ‘cused did not make any preparation to kill the deceased 50 as to insure the commission of the crime, 7. When the attack is frontal, generally, there is no But there is treachery when the aiac although frontal sudden and made in such a mane that end drecty and ly to insure its execution free from danger id wit ‘out risk to the offender. are ‘CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY a 8, Whereas the essence of evident premeditationis cool thought and reflection, the essence of treachery is the swiftness and the unexpectedness of the attack uponthe unsuspecting and unarmed victim, who does not give the slightest provoca- tion. (People vs. Rebamontan, April 1999) 9. Generally, it must be present at the inception of the attack. If the attack was without treachery at its inception, there must ea break or interruption in the attack for it to be considered ifttheattack was consummated with treachery. After the com- mencement of such an attack, and before its termination, an accused person may have employed means or methods which were of « treacherous character, and yet such means ormethods would not constitute the circumstance of alevosia. ‘One continuousattack cannot be broken up into twoormore parts, ‘Where the one witness wasnot able to observe the com- mencement of the assault, he could not testify on how it all began and developed. Absent any pacticulars as to the man- net in which theaggression commenced or how the act which resulted in the death of the victim unfolded, treachery can- not be appreciated to qualify the killing to murder 10. ‘Treachery mustbe proved as convincingly as the crime itself because it cannot be presumed. It cannot be inferred just from the location of the wound because the evidence should show the manner of the attack and how the victim reacted thereto. 11, If the victim isa young child, there is treachery even if the manner of the attack isnot shown. There is a blatant inequal- ity of strength between the offender and the victim, but abuse ‘of superior strength cannot be appreciated as it is necessar- ily absorbed in treachery. 12, The allegation in the Information that the victims are both minors is to be considered compliance with the above-men- tioned rule. It is commonly understood in practice that when ‘the victim in physical injuries, homicide or murder casesiaa child of tender years, he is described in the information asa minor, Minority in such cases should not be equated with its” (COMPREHENSIVE REVIEWER IN CEMINAL LAW statutory meaning — thats, below 18 years of age. Itis used notso much as to state the age of the victim; rather itis more of a description of the state of helplessness of the young vic- tim. (People vs, Abuyen) 13, Treachery absorbs both nighttime and taking advantage of superior strength in the light of the circumstances of the case at bar. Considering that treachery qualifies the killing of the four victims in this ease, the accused-appellant is guilty of four counts of murder. (People vs. Bechayda, August 1992) 14, Treachery may be appreciated in aterratio ictus. When the offender fired at his adversary but missed, the victims were helpless to defend themselves. Their deaths were murders not simply homicide since the acts were qualified by treach- ery. (People vs. Hlora, June 23, 2000) 15. The “retaliation” relevant in the appreciation of treachery rust come from the victim, not from anyone else, That the site of the crime was heavily populated where others could thus intervene is not significant at all. (People vs. Costelo, GR.No. 134311, October 1999) Ignominy and cruelty 1. Ignominy pertains to the moral order which adds disgrace and obloquy to the material injury caused by the crime. It produces more suffering on account of its humiliating ef fects. It was not appreciated in a case where the sexual as- sault was not shown as having been done by the accused !o ‘put the victim to shame before killing him, (People vs. Diaz, GR No. 134311, October 13, 1999) 2. Ignominy relates to moral suffering whereas cruelty refers to physical sufiering. There is cruelty when the culprit d=- lights in making his victim suffer slowly and gradually, caus- ing unnecessary moral and physical pain in the consumma- tion of the criminal act which he intended to commit. The number of wounds alone does not indicate cruelty as itis ‘essential to shai that these were inflicted unnecessarily while the yictim was alive to prolong his physical suffering. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY n . The mere fact that there were numerous stab wounds will . notcause appreciation of the creamsiance of cruelty because the offender may be overwhelmed by passion or obfusca~ tion or it may be that the victim was already dead when the stab wounds were inflicted and can 20 longer suffer pain in excess of that necessary to commit the crime, 4, Assuming that the victim was still alive during the entire of the ardeal to which he was subjected, there could possibly be cruelty since appellants deliberately augmented the wrong they committed. On the other hand, ifthe victim died immediately after he was stabbed, then appellants could bbe held to have outraged his corpse when they fiendishly slashed his intestines to pieces. Further, the intervening time between the initial attack and subsequent acts must be sulfi- ciently established to enable the Court to determine whether they were one continuous series of acts or were so deliber- ately spaced as to constitute either eruelty or outrage. (PE0- ple vs. Balisteros, October 1994) : ‘was done with cruelty, by deliberately or inbu- e Saag wating the suring of he victim or Oxtaping ‘or scoffing at his person or corpse. No greater outrage, in- sult or abuse can a person commit upon a corpse than to sever the head therefrom. The head represents the dignity of the person and any violence direced towards it cannot be interpreted inany other manner than an outrage to his corpse. (People vs. Binondo, October 1992) i. victim rolled unconscious after she was ravished, : al slant sll hacked hey almost spliting her face in v0. ‘Such bestiality isa form of cruelty and perversity which ag- gravated the crime, it being unnecessary to the commission thereof, and manifestly an outrage on the victim's perton. (People vs. Nescio, December 1994) ‘Unlawful entry, breaking of door, etc. ‘There is unlawful entry when an entrance is effected by a ‘way not intended for that purpose. But breaking a doorto enter is not unlawful entry since this is covered by paragraph 19 of Arti-‘COMPREHENSIVE REVIEWER IN CRININALLAW le'14 which states that “as a means to the commission of the crime a wall, roof, floot, door, or window be broken” showing that un- lawful entry excludes ingress by means of such breaking. Ald of minor, use of motor vehicle 1 Y, ‘These are two distinct circumstances: with the aid of minor WJuti showing greater perversity of the offender and the use by gyi ‘modem ciminas of faster means of conveyance to commit crime, Considered when the motor vehicle was purposely used to facilitate the commission of the offense or when it is shown that without it the offense charged could nothave been com- mitted or when it was intentionally sought to insure the suc- cess of the act. “Other similar means” should refer to other means of trans- portation that are similar to motor vehicles or airships, e.., motor cycles under the principle of “ejusdem generis” Pedicab is not included. It is not aggravating if the vehicle was not ‘used directly or indirectly to facilitate the criminal act. (People vs. Amion, GR. No. 140511, March 1, 2001) ‘The use by criminals of motorized means of conveyance to commit the crime is penalized because they pose difficulty to the authorities in apprehending them. mals A ARTICLE 15 — Altemative Circumstances 1, Alternative circumstances are those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and other conditions attend- ing its commission. They are considered only when they in- fluenced the commission of the crime. - ‘The three tive circumstances antrelationship, intoxi- cation, and Gegree of instruction and education of the of fender. Relationship is taken into consideration when the offended party is the Spouse, Ascendant, Descendant legitimate, natu- S060 Pr tal, or adopted Brother or Sister or relative by Affinity Chive peu Sumotance should no ae mannlatory ‘CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY [memory aid —SADBroSA] of the offender. Stepparents and. stepchildren are included by analogy, but Hess 4, Itis daitigating in crimes Against 5 of art 52 whi exe orth, estafa_and malicious In serious physical injuries committed against the child due to the parent's excessive chastisement, relationship is not aggravating. 8, Incimes against chastity such as acts of lasciviousness,re- h “M471” Jationship isaaggravating. (People vs. Marifio, G.R. No. antitg Netter aggravating nor mitigating rations Pi ‘uth 141183, January 18, 2001) “of the cine butch aa in parricide Jf what was ecg hmicde nnd algeria atone tyeoncf becomes ing circumstance because the ac opt cans ret nha wart urged apart ; him. haa. : Soap “itl whe father-daughter relationship in rape cases is a Special baie rcumstance which makes the imposition of the death pen- ehemant alty mandatory. ; ip as an tive Gr- longer be applied in vew ofthe amendments introduced by RA 7639. It may be point however, that without the foregoing amendment, relation ship would sill be an aggravating circumstance in the _. cHimes of rape and acts of lascviousness. (People vs ie Manhuyod, May 1998) (tntoxicaliga should affect the offender’s mental faculties. . 4 ‘Mére drinking of liquor prior to the commission of the crime ide. does nanecssrly produce state of intoxication 0&2 Jerson pleading intoxication as a mitigating circum- stance ust show that (1) he has taken a quantity of alco- holle beverage prior to the commission ofthe crime, sul cient to produce the effect of ol snota habitual drinker and did not take with the intention to reinforce his resolve to commit the cine. (People vs. Pinca, G.R. No, 129256, Nor(COMPREHENSIVE REVIEWER IN CRIMINAL LAW ; jicatioimay be considered as amtigaing or aggravating depending upon thenature ofthe crime committed. If the crime is basically wrong, such as ‘parricide, theft or rape, itis immaterial whether the offender is schooled or not. Thehigh; should be taken in relation to the crime committed whether ‘education puts him into” ‘wetter position than the ordinary offenders Itis notilliteracy alone but the lack of intelligence of the of fender that is considered. If one is not literate but is intelli- gent or mentally alert or comes from a family of profession- als that he easily realizes the significance of his act, there is ‘no mitigation, CAVEAT: the degree of instruction or education may already have been considered in the penalty prescribed such as in abortion practiced by physician, in which case it should not be considered anymore. 10. nL ARTICLE 16 — Who are criminally Hable 1. For grave and less grave felonies: Principals, Accomplices and Accessories 2. For light felonies: Principals and Accomplices. Accessories are not liable for ight felonies. Light felonies are those pun- ished with arresto menor or fine not exceeding two hundred pesos. . 3, Why are accessories not liable for light felonies? Because the law does not deal with trfles. (de minimis non curat lex) 4. To whom do refer? Tc G je yt commit a crime which requires a willfal purpose, voluntariness or malicious intent. ARTICLE 17 — Principals 1, Qrincipalsby direct participation are those who materially execute the crime, They. tthe scene of the crime CIRCUMSTANCES AFFECTING CRIMINALLIABILITY and performs necess ‘in the commission of the! tobe liable. Treonopi i aggeement, ee Fila by dis , In i rior 2 rae to oes not appear athe scene of te ce is not liable becauses—— Cad ‘a. His non-appearance is deemed Gesistance) which is favored and encouraged; — >. merely Phe woul echoes ‘conspiring the would’ y Committed any crime unless he would appear at the Seone of the crime and perform ang act directly or indi- reclly in the accomplishment of the conspiracy; ‘There is no basis for criminal liability because there is 5 Pandy s AV pai Foam hus |] | ead Pecageo fies | 717 [x mined te commu the ng. acts, / [esis ents ene ne possess dominance or moral ascendancy over the offender {will not make him a principal by inducement. AL Theinducer is generally liable as en accomplice because the Jaw favors alesser penalty. “The fac that it was Manalili and not petitioner whodealt directly with said fixers cannotexculpate petitioner from the% (COMPREHENSIVE REVIEWER IN CRIMINAL LAW charge of falsification. He is a principal by induéement in the commission of said crime. (id.) ‘CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY be committed, the liability is that of an accomplice. Thus, in ‘ People vs. Sotte Pump boat owner who 6, Art. 17 of the Code provides that(@findipalpystithose who IAduceluent hhelped the offenders by pretending that his pump beat iiss forse ar induce others to commit an ffense. One ba @ needed towing by the passing boat of the victims was held. 'sinduced to commit a crime eller by a command (precep) fy 4 fo be merely an accomplice Here, the offenders transfered ‘or fora consideration (pacto),orby any other similar act which 4 2) tothe boat of the victims and later mbbed and killed them. constitutes thereal and moving cause of thecrimeand which 2. was done forthe purpose of inducing ‘such criminal act and ‘was sufficient for that purpose. People vs. Dumancas, GR. Nos, 133527-28, December 13, 1999) 7. To be considered as a yal by it - tion, there must be sigh ‘act without which the cr id not have e act must be of such inn thet ‘the crime would dorhira bees conned wittous htalee thathe patelpted therein. Otherwise he cannatbeconsié- ered a principal by indispensable tion. (People Fronda, May 1993) ete ‘A principal by indlepenssble soopertion may be 3 spirator under the doctrine of implied acy. E Eioy antwemandic comer oto ae Zoncurrence of a Talan beescatad Corocqueny is a co-conspirator By indispensable cooperation, although the common design or purpose was neverbottled up by pre- vious undertaking. (Subayco vs. Sandiganbayan, supra.) 8 10. The participation of the cooperator must be indispensable to the commission of the crime. If his perticipation is dispensa- bl with or without his particpation, eh) > asics uly stutes Re pd |F wun Ving Ceuay, i theod * ‘The court ruled that the offenders could have asked for the Lied help of other pump boat owners, hence, the accused's coop- eration was not indispensable. Ril. ‘The cooperation that the law punishesis the assistance know- ingly or intentionally rendered which cannot exist without previous of the intended criminal act. It is re- {quired to be liable either as a principal by indispensable co- ration of as an accomplice that the accused unite with oper the criminal design of the principal by direct participation. ‘There is indeed nothing on record to show that appellant ‘knew that Bemales was going to stab Palma, thus creating a ‘doubt as to appellant's criminal intent. (People vs. Jorge, April 1994) ‘cooperation ard ‘cognizance or approval of an illegal act is required to establish conspiracy. ‘The eye defect of said accused for which he was known as “hulag” or blind in the locality raises doubt as to his ability to perform therole of a supposed lookout. (People vs. Tabuso, GR. No. 113708, October 1999) ARTICLE 18 — Accomplices 1. Accomplices are those who ate not principals but cooperate inthe execution of the offense by previous or simultaneousacts. ‘They are also called accessories before the fact. Conspiracy is not a requirement for he is not a principal but supplies material or moral aid to the ‘in an effica- cious way. Accomplices participete in the execution of the offence by simultaneous acts, which bore a-relation to the‘COMPREHENSIVE REVIEWER IN CRIMINALLAW acts done by the principal sans a conspiracy. (People vs. ‘Lacao, Sr., supra.) He knows of the criminal design of the principal and ie co- operates knowingly or intentionally in a manner which is not indispensable to the commission of the crime. ‘Two elements are required: He takes part in the execution of the crime by previous or simultaneous acts; and, b. _Hejintends to take part in the commission of the crime. 3. Mere presence in the scene of the crime does not of itself constitute a simultaneous act of cooperation sufficient to make one an accomplice. . An accomplice’s role in the perpetration of the crime is of a minor character. (People vs. Fronda, May 1993) If there is ample evidence of criminal participation but a doubt exists as to the nature ofliability, courts should resolve to favor the milder form of responsibility, that of an accomplice. (id) . Between a principal by inducement and an accomplice: a. Aprincipal by inducement induces the other offenders to commit an act in such a way that without the induce- ‘ment the crime would not be committed. His induce- ment must ke obeyed by exerting influence or moral ascendancy over the other malefactors. An accomplice’s inducement or utterance is immaterial for with or with- ‘out such utterance, the crime would be committed. b. ‘The cooperation of the principal inthe offense is indis- pensable without which the crime would not be com- mitted whereas the cooperation of the accomplice is in aminor way. «Both the principal and the accomplice act before or dur- ‘ing the commission of the crime. 3. A lookout who was not part of the conspiracy but partic- pated only after such decision was reached incurs criminal ‘CIRCUMSTANCES AFFECTING CRIMINALLIABILITY n liability as an accomplice since he is merely an instrument of the crime who cooperates after the decision to commit the same had already been made. (People vs. Suarez, 267 SCRA 119; People vs. De Vera, August 18, 1999) Conversely, a “lookout” who was a co-conspirator in deciding the course of action to be taken in the eriminal design is a principal as hhe is & co-author of the crime and provides his companions effective means and encouragement to carry out the same. His being a lookout is necessary part of the concerted ac- tion to achieve the desired result. (People vs. Loreno, 130 ‘SCRA 311) ARTICLE 19 — Accessories 1. Accessories are those who: a. Have knowledge of the commission of the crime; Have not participated therein; and ‘Take part subsequent to its commission (accessory af- ter the fact) in any of the following three manners: 1 ting or assisting the offender to profit from Testee ofthe eine 2. By concealing or destroying the body of the crime (corpus delict) or effects or the instruments thereat to prevent its discovery; and 3. Byharboring, concealing orassisting in the escap= of the principal: a, Incase of a public officer for any crime if he acts with abuse of public functions; \ b. In case of private individuals when the au- thor of the crimeis guilty of Treason, Attempt ‘on the life of the Chief Executive, Murder, Parricide or is known to be habitually guilty of some other crime. 2. Accessories may be liable as principal in another crime ifhis act or omission is also penalized in a special law. In crimes‘COMPREHENSIVE REVIEWER IN CRIMINAL LAW under special laws or crimes mala prohibita, the offenders generally are penalized as principals unless otherwise pro- vided. 3. Between an accomplice and an accessory: a 4 ‘An accomplice participates before or during the com- mission of the offense; accessory, subsequent thereto Anaccomplice knows of the criminal design of the prin- cipal; an accessory knows of the commission of the offense ‘The former provides material or moral aid in an effica~ cious way but not in a manner indispensable to the offense; the latter acts in the three ways specified in ar- tide 19 Accomplices have no exemption from liability; someac- ‘cessories are exempted uncler Article 20 of the Code 4, Accessories by profiting If the crime is Robbery or Theft and one bought, sold, possessed, or in any other manner dealt with the article which he knew or should have known are proceeds of robbery or theft, he is a principal in the crime of Fenc- ing, If ee were not charged with Fencing in another in- formation, then he is liable only as an accessory of the principals in the crime of Robkery or Theft. Ifthe crime is Brigandage and he profited from the loot, ‘he should be charged with Abetting Brigandage - an accomplice of brigands. He should be charged in an- other information otherwise he would be merely liable as an accessory. A person who received any property from another, and used it, knowing that the same property had been sto- Jen is guilty as an accessory because he is profiting by the effects of the crime. By employing the two carabaos in his farm, Taer was profiting by the objects of the cat- tle rustling. (Taer vs. CA, supre.) ‘CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY n 5, Accessories by concealing or destroying the body of the crime ‘The body of the crime or corpus delicti is the body or substance of the crime and in ts primary sense refers 0 the fact that a crime has actually been committed. AS applied toa particular offense, itmeans the actual com- mission by someone of the particular crime charged. Corpus delctiis a compound factmade up of two things: 1. Theexistence of a certain act or result forming the basis of the criminal charge; and 2. ‘The existence of a criminal agency as the cause of this act or result. Otherwise stated, its elements are: a) the proof of the occurrence of a certain event and b) come Person's ‘qriminal responsibility. (People vs. june ‘Fhus in dra sale, itrtustbe established thatan legal sale of the regulated drug took place; and the accused, ‘were the authors thereof. 6. Assisting the principal to escape a b “The offender to be assisted must be a principal; assist- ing an accomplice is not incluced. [A police officer who was present when the crime was committed abused his official function when he failed to effect the immediate arrest of the offender and aon- duct a speedy investigation of the crime committed, but instead left the scene of the crime together with the of- fender, thus assisting the offender to escape. Being a public officer, he is an accessory to the crime. (People vs. Antonio, July 14, 2000) ‘Those who assist the principal to escape may be pros- cecuted under PD. No, 1829— obstruction of justice — notas accessory but as. principal provided thata sepa rate Information shall be prepared for the crime of ob- struction. When heis convicted thereunder, the penalty tobe imposed is the penalty uader PD. No. 1829 orany@ (COMPREHENSIVE REVIEWER IN CRININAL LAW other law, including the Revised Penal Code, which ever is higher. (Sec. 1, last paragraph) 4. Obstruction of justice is committed by any person who Knowingly or willfully obstructs, impedes, frustrates, or delays the apprehension of suspects and the investi- gation and prosecution of criminal cases. PD, No. 1822 does not distinguish between a public officer and a pri- vate person who assists the prindpal. ARTICLE 20 — Accessories exempt from criminal liability 1. The offender's Spouse, Ascendant, Descendant, legitimate, natural, and adopted Brothers and Sisters, or relatives by ‘Adinity within the same degrees as the foregoing entumer- ated relatives. 2. They are exempt for acts enumerated in Article 19 except for or assisting the offender to profit by the effects of the crime, When the relatives assist the principal by concea- ing or destroying the body of the crime or by assisting in his escape, the law recognizes that they are motivated by natu- ral affection for the offender. However, when they profit or assist the offender in profiting by the effects of the crime, they are doing so because of greed, hence, they are liable. PENALTIES 1. Penalties are the punishment imposed by lawful authority ‘upon a person who commits a delikerate or negligent ac. (Moreno, Philippine Law Dictionary, 3d ed., of People vs. Moran, 44 Phil. 431) 2. Penalties are prescribed by statutes and are essentially and exclusively legislative in character. Judges can only interpret and apply them and have no authority to modify or revise their range as determined exclusivelyby thelegislature. (Peo- ple vs. Dela Cruz, December 1992) 3. Under the Code, penalties are: a. Graduated; ee PENALTIES 8 Divided into three periods unless indivisible; Classified into principal or accessory; 4. Understood to be’a degree for purposes of lowering the penalty under the Indeterminate Sentence Law or ow- ing to the privileged mitigating cixcumstances; ce. Imposed onthe principal offenderin the consummated stages ‘Themaximum imposable, iz, thecourt cannot increase the penalty prescribed by any degree no matter how many aggravating circumstances are present, For in stance, in homicide, even if there are 10 aggravating cir- ‘cumstances without any mitigating, the penalty can only be increased to the maximum period of reclusion tempo- ral and cannot be increased to redusion perpetua. 4, Courts must employ the proper nomenclature specified in the Code, such as recusion perpetua not life imprisonment; 0 ten days of aresto menor not ten days of imprisonment. (Pec ple vs. Latupan, G.R. Nos, 112453-56, June 28, 2001) ° ARTICLES 21-22 1. Article 21 states the principle that nulum: crimen nulla poena ne lege. No felony shall be punishable by any penalty nat ‘prescribed by law prior to its commission. Unless there isa Taw penalizing an act or omission, the offender cannot be penalized, no matter how reprehensible the act may be. 2. The prospectivity characteristic of penal laws mandates that Trae cell have only prospective aplication. Art. 22 the ‘exception to the rule, that is, when the law shall be given retroactive application. 3. The favorable provisions of R.A. 7689 on dangerous drugs can be given retroactive effect to entitle the offender to a lesser penalty. Although RA 6425 was enacted as a special law, by fotce of Article 10 of the Code, the beneficent pro- visions of Artide 22 applies to and shall be given effect to crimes punished by special laws. Habitual delinquencyms ‘COMPREHENSIVE REVIEWER IN CRIMINALLAW would not apply to those convicted of drug offenses since itrefers to convictions for the 3rd time or more of the crimes of Falsification, Robbery, Estafa, Theft, SErlous and Less serious physical injuries. (FRETSeL) (People vs. Simon, July 19,4994) 4. The court can sua sponte apply Article 22 even when not in- -voked by the accused otherwise, the plain precept thereof would be useless and nugatory if the courts were not under obligation to fulfill such duty, irrespective of whether or not the accused has applied for it, just as would also all provi- sion relating to the pressiption of he cme and the pene alty. (id.) ARTICLE 23 — Pardon by the offended ARTICLE 36 — Pardon by the Chief Executive (See notes under Article 69) ARTICLE 24 1. The five measures in this Article are not considered as pen- alties otherwise, they will violate the constitutional provi- ssionon pres ‘of innocence. However, Art.29 provides that the period of preventive imprisonunent willbe deducted from term of imprisonment. 2. Preventive suspension pending investigation is not a pen- alty but a measure intended to enable the disciplining au- thority to investigate the charges against respondent by pre- venting the later from intimidating or in any way infituenc- ing witnesses against him. If the investigation is not finished and a decision is not rendered within that period, the sus- pension willbe lifted and he will automatically be reinstated. Ifafter investigation respondent is exonerated, he should be reinstated. (Gloria vs. CA, GR. No. 131012, April 1999) 3, Preventive suspension is not a penalty for it isnot imposed as a result of judicial proceedings. in fact, if acquitted, the respondent shall be entited to reinstatement and to the sala- rieS and benefits he failed to receive. Sarttiago vs. Sandigan- bayan, GIR. No. 128055, April 2001). PENALTIES 8 ARTICLE 29 — Deduction of preventive imprisonment 1. Preventive imprisonment (for detention prisoners) is for the purpose of preventing the accused from going into hiding. 2, The accused is detained if the offense is not bailable, or if bailable he cannot post bail and he isnot qualified for recog nizance. 3, No bail shall be granted to those charged with an offense, which under the law et the time of its commission and at the time of the application for bail is punishable by reclusien when evidence of guilt is strong. (Sec. 3, Rule 114, ‘Rules of Court) There can be no pretense that such unequivo- cal and explicit provisions in the Corstitution and the Rules of Court would admit of any exception, qualification or dis- tinction. (Reyes vs. CA) 4, Full credit for the preventive detention shall be granted if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed on convicts unless: a. They arerecidivists (convicted previously twice or mare of any crime) b. When upon being summoned for the execution of their sentence they have failed to surrender voluntarily. 5. Credit shall be4/5 of the sentence when he does notagreeto be treated similarly as convicted prisoners, 6. When the maximum penalty imposable is destierro, the ac- cused shall be released after 30 days of preventive imprison- ment because arresto menor is more severe penalty than destierro under Art. 70. 7, The deduction of the period of preventive imprisonment applies where the accused is senterced to destierro becanse destierro constitutes deprivation of liberty also. (Péople vs. Balasa, infta.) 8. This allowance should be made even where the penalty im- ‘posed is reclusion perpetua because it does not make any dis- tinction between temporal and perpetual penalties. (People6 (COMPREHENSIVE REVIEWER IN CRINNALLAW vs. Corpuz, March 1994) More 50, a8 reclusion perpelua now hhas a fixed period although still indivisible. (People vs. Lucas, supra.) ARTICLE 25 — Classification of penalties 1. Principal penalties are those specified in Book If the Code on specific felonies. They must be imposed by the court ex- pressly in the dispositive portion of the decision. 2. Accessory penalties are those which follow the principal ‘penalties by operation of law. They are deemed imposed to- gether with the principal penalty, As such, they need not be expressly stated in the decision. (Article 73) 3. There are three scales of penalties in the Code: a, Art.25 classifies the penalties into principal and acces- sories. b. _Art.70 provides for the scale when there are two or more sentences to be served, including the 3-fold rule. Art. 71 graduates the penalties into the order of its se- verity for purposes of applying the rules tinder Art. 61 in relation to Articles 50-57. 4. RA. No. 7659, which reimposed the death penalty on cer- tain heinous crimes, took effect on December 31, 1993. That is fifteen days after its publication in the December 16, 199 issues of the Manila Bulletin, Phil. Stat, Malaya and Phil ‘Times Journal, and not on January 1, 1994, as is sometimes misinterpreted. (People vs. Simon, supra, People vs. Godoy, December 1995) 1 5, An automatic appeal of a death sentence opens the entire record for review. Hence, though not raised as an issue by the parties, the propriety of the penalty imposed may be looked into. (People vs. Boco, G.R.No129676, June 23, 1999) 6. Under Art.47, the following are the cases when death pen- alty is not impésed (automatic commutation): a, *When the convict is below 18 at the time of the commis- sion of the offense (thisis true even without the amend- 10. nL PENALTIES @ ment of RA. No, 7659 because minors under 18 are al- ‘ways entitled to the privileged mitigating circumstance ‘of minorit ity or at least one degree lower). b. When the convicts over 70 years old. In death penalty, old age is in effect a privileged mitigating circumstance Decatise the penalty is lowered by ane degree. Inallother cases, senility is merely a generic aggravating circum- stance. Pursuant to Article 83 the death penalty is suspended (auto- matic reprieve) a. Uponawoman while sheis pregnant or within one year after delivery. b. Uponany person over 70 (thisis inappropriate because sentence is not suspended but commuted, above). ‘The Code has its own legal designaticn of the penalty for offenses therein, thus life imprisonment should not be inter- changed with reclusion perpetua, Distinctions between reclusion perpetua and life imprisonment: Life Imprisonment Reslusion Perpetua a. Under special laws a. Under the RPC b, Hasnofixed duration b, With fixed duration c. Withoutaccessory penal ¢. With accessory penal- ties ‘ties As early as 1948, it was made clear that reclusion perpetua is not the same as life imy 3. Thus, S.C. Adm. Circular 6-A-92 (une 21, 1993) amending Circular 6-92 (October 12, 1992) enjoins triel judges to strictly observe the distinction ‘between lifeimpzisonment and reclusion perpetua to curb the erroneous practice of using them i ly in theim- ‘position of penalty for serious offenses like murder. (People ‘vs. Narca, July 1997) Reclusion perpetua now has a definite term, however, it re- mains an indivisible penalty because there is no clear legis-88 ‘COMPREHENSIVE REVIEWER IN CRIMINAL LAW lative intent to alter its original classification as such for Can- gress did notaccordingly amend Arts. 63 and 76, the law on what are considered divisible penalties and what should be the duration of the periods thereof. Other provisions involv- ‘ing reclusion perpetua such as Art. 41 on accessory penalties and paragraphs 2 and 3 of Art. 61 were not also amended. (People vs. Lucas, January 9, 1995 in relation to People va. Reyes) 12. Since inal the graduated scales of penalties reclusion perpetua is the penalty immediately higher than reclusion terapord, it follows that the minimum of reclusion perpetua is 20 years and one day with a maximum duration of 40 years pursuant to Art. 70 since the maximum period for the service of penal- ties shall notexceed 40 years. It would be legally absurd and violative of the scales of penalties to reckon the minimum of reclusion perpetua at 30 years since there would thereby be a resultant lacuna whenever the penalty exceeds the maximum 20 years of reclusion temporal but is less than 30 years. (Peo- ple vs. Reyes, 212 SCRA; People vs. dela Petia, July 1997) 13. Article 70 of the Code provides that in applying the three- {fold rule, the duration of pena perpetua shall be computed at 30 years, The imputation of 30-year duration is only to serve as.a basis for determining the convicts eligibility for pardon ‘unless he is deemed unworthy of such pardon or for theap- plication of the three-fold rule in the service of multiple pen- alties. (People vs. Tena, October 1992) 14, Reclusion perpetua compared to death penalty: a. There ismandatory automatic review of death penalty by the Supreme Court; there is none for reclusion perpetua, If the convict does not appeal his conviction, the penalty of reclusion perpetua will become final and executory. (Garcia vs. People, G.R. No. 106531, Novem- ber 18, 1999) Because review of death penalty is mandatory, escape of the convict will not foreclose review of the convic- tionby the Supreme Court, whereas in reclusion perpetua, PENALTIES e escape of the convict ipso facto mekes the decision of the tzial court final and executory. . The death penalty can be imposed only for heinous times and cannot be imposed by operation of law; re- clusion perpetua can be imposed by operation of law such asin qualified felonies. d. When death penalty is not executed by reason of com- mutation or pardon, the accessory penalty shall be thet provided in Article 40 (perpetual absolute disqualifica- tion and civil interdiction for 30 years following the date of sentence, unless such accessory penalties have been expressly remitted in the pardon. When reclusion perpetua is imposed as a result cf the operation of law, such as in case of qualified theft, [Article 310 in relation to Article 309, no, 1], the accessory penalty shall like- ‘wise be that provided under Article 40 of the Code. (Peo- ple vs. Canales, G.R. No, 126319, October 12, 1998) 15. When recusionprpetunis imposed asa penalty two degrees next higher than that provided by law the accessory penalty ‘tobe imposed shall be that under Article 40 but the offender shall not be given the benefit of the provision of Article 27 until 40 years have elapsed, otherwise, there could beno dif- ference at all between reclusion perpeiua when imposed as a next higher in degree and when it is imposed as a penalty fixed by law. (People vs. Bago, 330 SCRA 115) 16. Bond to keep the peace is a principal penalty yet there is no crime in Book Il of the RPC for which it can be imposed be- cause, being a principal penalty, it must be specifically pre- Siibed nok tote Code fr «pate felony There being none, the penalty is unenforcesble by virtue of Article 21, which states that no felony shall be punishable by any penalty not prescribed by law prior toits commission. 17. Compared with bond for good behavior: a, Bond for good behavior (BGB) is a principal penalty which cannot be imposed; Bond to keep the peace (BKP) is a penalty specifically applicable to grave and light threat only.18, 19. (COMPREHENSIVE REVIEWER INCRMINALLAW | b. Failure to post BGB will make the accused suffer destierro; failure to post BKP will make him liable to su- fer detention. Disqualification is both a principal and an accessory pen- alty. Itis a principal penalty when imposed in Book TI asa penalty for a particular crime; an accessory penalty when the principal penalty to which itis attached is imposed. In the scheme of penalties in the Revised Penal Code, the following are examples where the lesser offense absorbs the graver offense: a, The lesser offense of rebellion punished with prision mayor, absorbs the graver offense of murder punished ‘with reclusion perpetua to death, it committed in further- ance of rebellion; b. The lesser offense of forcible abduction, which is pun- ished by reclusion temporal, absorbs the graver offense of illegal detention of a woman, which is punished by reclusion perpetua to death, « Thelower offense of slavery involving kidnapping ofa person, which is punished by prision mayor, absorbs the higher offense of kidnapping which is punished by re- clusion perpetua to death. (People vs. Quijada, July 1996, dissent of Justice Regalado) Al prisoners whether under preventive detention or serv- {ng final sentence, cannot practice their profession or engage in any business or occupation, or hold office, elective or appointive as a necessary consequence of arrest and deten- tion. As a matter of law, when a person indicted for an offense is arrested, he is deemed placed under the custody of law. He is placed in actual restraint of liberty in jail so that he may be bound to answer for the commission of the offense. He must be detained in jail during the pendency of the case against him unless he is authorized by the court to be re- leaged on bail or on recognizance. An attorney cannot prac- fice law during that period except where he would appear éwi val in courtto defend himself. (People vs. Maceda, Minute Reso- lution, January 24, 2000) 21. Publiccensure is classified under Article 25 of the Code as a light penalty, and is considered under the graduated scale provided in Article 71 as a penalty lower than arresto menor. ‘The offense of reckless imprudence resulting in slight physi- cal injuries penalized with public censure is therefore a light felony. (Reodica vs. Memoracion, July 1998) 2. The medium period of prision mayor is from 8 years and 1 day to 10 years, (Bernabe vs. Memoracion, August 1997) ARTICLE 34 — Civil interdiction 1. Article 38 of the New Civil Code defines civil interdiction as ‘one of the restrictions on capacity to actbut does not exempt the offender from certain obligations, aswhen the latter arise from his act or from property. relatiors. It is an accessory penalty imposed upon person sentenced to the principal penalties of reclusion perpetua and reclusion temporal, 2. . Acivilly interdicted convict cannot appoint an agent for the actof the agents the act ofthe principal. Otherwise he would bbe doing indirectly what the law prohibits to be done di- rectly. Moreover, one of the causes for the extinction of agency is civil interdiction. 9 What the law prhibts isthe disposition of property by an act inter vivos. The will ofthe testator does not dispose of property atthe time of its making but: the inecthie dest ARTICLE 38 — Pecuniary Liabilities |. The pecuniary lebilities of the offender are those owing to the offended party for reparation of the damage caused and indemnification of consequential damages (Article 104) and fe eee ere ne ‘| of proceedings. 2. They are to be settled in the onder given: indemnification, next fine and lastly costs Fees =2 (COMPREHENSIVE REVIEWER IN CRIMINAL LAW ings, if the means of the convict are not enough to settle them all. 3. Fine is a pecuniary punishment imposed by a lawful tribu- nal upon a person convicted of a crime. Cleatly, the fine pro- vided for in BP 22 was intended as an additional penalty for the act of issuing a worthless check. This is the only logical conclusion since the law does not require that there be dam- ‘age or prejudice to the individual complainant by reason of the issuance of the worthless check. (Lazaro vs CA, Decem- ber 1993; Esler vs. Ledesma, 52 Phil. 114) 4, In Article 9, a P200 fine is a light penalty but in Article 26, it is already a correctional penalty. Article 9 should prevail ‘when the issue is prescription of crime because it is within the Title of the Code pertaining to felonies and how they are committed, Article 26 should prevail when the issue is pre- scription of penalty because within the Title of the Code on penalties, ; 5. Fine whether imposed singly or alternatively ist a. Afflictive/ grave if more than P6000.00 b. Correctional /less grave if P200.00 — P6,000.00 c. Light ifless than P200.00 ARTICLE 39 — Subsidiary imprisonment 1. Subsidiary penalty takes the place of the fine for insolvent 1 convicts. Itis neither a principal nor accessory penalty, buta substitute penalty for fine only. The subsidiary penalty may be in the form of imprisonment or deprivation of right de- pending upon the principal penalty imposed on the convict 2. Subsidiary penalty is computed at one day for each P8.00 of fine but in no case to exceed one yearat the most. Ifthe per- alty is: a. Purely a fine and the félony committed is grave or less grave, the subsidiary imprisonment chall not exceed 6 months; iflight felony, not more than 15 days. J PENALTIES 3 b. Fine and Imprisonment of not more than Prision Correccional (6 years), the subsidiary imprisonment is, computed at 1/3 of the principal penalty or the quo- tient of Fine divided by P8.00 or 1 year, whichever of these three is least. Hine and Destierra which must be of a fixed duration: destierro also in accordance with the above rules. The same goes with Fine and Suspension. 3. Subsidiary penalty is not proper when: a. The principal penalty imposed is more than prision correccional (more than 6 years); b. The principal penalty consists in other than prison sen- tence which is not of fixed duration; Subsidiary penalty is not expressly stated in the sen- tence to take the place of fine in case of insolvency; and d. The sentence imposed does not indude fine. 4. The court must expressly state that subsidiary penalty shall be served in case of insolvency because this is not an acces- sory penalty that follows the principal penalty as a matter of course. 5. Subsidiary penalty is also imposable in violations of special penal laws such as B.P. 22. ARTICLE 45, Confiscation/ forfeiture of the proceeds or instruments of the crime is automatically imposed unless: 1, They were the property of 3rd person who has no complic- ity in the crime, or 2. If the property is not within the jurisdiction of the court be- cause it was not submitted thereto. Notwithstanding the foregoing confiscation shall pro- ceed ifthe said articles are by themselves contraband or not subject of lawful commerce.o COMPREHENSIVE REVIEWER IN CRIMINAL LAW ARTICLE 48 — Complex Crimes 1. Article 48 speaks of two kinds of plurality of offenses: a. “When a single act constitutes two or more grave or less grave felonies” otherwise called compound crime (or delito compuesto). D. “When an offense is a necessary means for committing the other" also knownas complex crime proper (or deli complejo). 2, Compound crimes are those committed when a single act resulis to two or more grave or lesa grave felonies. The felo nies committed may be: (a) two or more grave felonies or (b) two or more less grave felonies or (c) one grave and one less ‘grave felonies. The resultant light felony shall be treated as a separate offense. 3. The basis of compound crimes is the singularity of the act. For instance, the single act of throwing hand grenade, Kill- ing some and ceriously wounding anumber of persons. (Peo- ple vs. Guillen, 47 O.G. No. 7, 3433) However, in recent deci- sions of the Supreme Court, a single act of pulling the trig- ger of a mackine gun and several bullets come out, killing several persons is not complex crime because of the special property of the automatic gun. (But does not the offender know also of the special property of grenade which will nec- essarily result to multiple deaths /injuries?) 4, If the act or acts complained of resulted from a single crimi- nal impulse, such as throwing hand grenade, it constitutes a single offense. Since the three 3 murders and attempted. murders were produced by a singleact (the explosion caused by the hurling ofa grenade into the bedroom of the victim), the case comes under Art. 48 of the Revised Penal Code on lex crimes. (People vs. Carpo, GR. No. 132676, April 4, 2001) Also, the act of taking two roosters belonging to two different persons in the same place and on the same o¢ca- sion cannot give rise to two crimes having an independent existence of their own, because there are not two distinct appropriations nor two intentions that characterize two sepa- rate crimes. PENALTIES s 5, Only 1 information should be filed for 3 murders and an al- tempted murder produced by an explosion caused by the hurling of a hand grenade inio the bedroom of the victims. ‘The death penalty should be imposed as the penalty for the ‘more serious crime, which in this casei reclusion perpetua to death, should te applied in the maximum period. (People vs. Carpo, etal, April 4, 2001) 6, Complex crime proper is a felony committed when one offense is necessary to commit another. This means that the first offense is committed to insure and facilitate the com- mission of the next crime. It does not include: a. A crime to conceal another because stich is not neces- sary to commit but to conceal the other crime. b. Acrime whichis an element of theother for in that case, the former shall be absorbed by the latter such as tres- passing which is an element of robbery. Actime which has the same element as the other crime committed. For instance, estafa and falsification of pzi- vate documents have the same element of damage. One and the same damage cannot bring about two crimes. ‘Thus, there is NO complex crime of estafa thru falsifi- cation of private documents. But falsification of public, official or commercial documents does not have the el- ement of damage, hence, there is a complex crime of estafa through falsification of public, or official, or com- mercial documents. 7. The penalty for complex crimes under article 48 is the pen- alty for the most serious crime in the maximum period. Such 4s beneficial to the accused because of the fact that is given a single penalty whereas if the crime is consid- ered separate, the offender shall be given as many penalties as there are crimes committed. 8. As anexception to the “single act” mule the Supreme Court held as constituting a complex crime, the case of People 2s, Caldito, February 1992 that: Jn Lawas, the accused and other members of the Home Guard commenced firing at a large group of Maranaos at a‘COMPREHENSIVE REVIEWER IN CRIMINALLAW signal from Lawas, and continued firing until Lawas gave a ceasefire signal, About 50 Maranaos died in the slaughter, ‘The accused were held guilty of the complex crime of multi- ple homicide because the evidence positively shows that the falling was the result ofa single impulse, which was induced by the order of the leader to fire, and continued with the intention to comply therewith, as the fring stopped as soon as the leader gave the order to that effect. There was no in- tent on the part of the appellants either to fire at each and every one of the victims as separately and distinctly from each other. Theres absolutly no evidence as tothe umber of persons killed by each and every one of the appellants, 80 even if we were induced to hold each appellant responsible for each and every death caused by him, itis impossible to ‘that desire into effect as itis impossible to ascertain the individual deaths caused by each and everyone. 1. In determining the proper penalty to be imposed for com plex crime in relation to the indeterminate sentence on the convict: ‘a. First, determine the penalty for the most serlous offense, b, Second, for purposes of determining the next lower degree, the full range of the penalty prescribed by law for the offense, not merely the imposable penalty be- cause ofits complex nature, should, a prior, be consid- ered, (The ruling in People vs. Gonzales, 73 Phil. 549, a5 to that of People vs. Fulgencio, 92 Phil. 1069, i the correct rule), ¢. This one-degree lower penalty should be imposed in its maximum period following Art. 48 on the penalty for complex crimes. 4. The presence of mitigating circamstance would result 4n imposing a period the court may deem applicable. Considering, however, that the penalty has to be im- in the maximum period, the only effect of this additional mitigating circumstance’ to impose only the + minimum portion of that maximum period. (Nizurtado vs, Sandiganbayan, December 1994) PENALTIES ” 10, There is no complex crime of arson with homicide. If death results by reason or on the occasion of arson, the crime is aggravated arson (spécial complex crime) although the imposable penalty is recusion perpelua to death. The deaths hhere are not separate crimes but are merely qualifying cir- ‘cumstances. 11. Example: The accused killed 4 persons and the house was ‘bummed to conceal the killing. In the course of the arson, a baby in the house was burned to death. How many crimes were committed? ‘One arson resulting to death of the infant and 4 counts of murder, each count aggravated by dwelling. For the ar- sonwhere death resulted, they should be sentenced toa sepa- rate term of reclusion perpetua [RA 7659 was not yet effec tive], and for the 4 counts of murder, 4 terms each of reclu- sion perpetua to be served successively in accordance with “Article 70 of the Code. (People vs. Cedonio, January 1994) 12, Theother kinds of plurality of crimes where a single penalty isimposed are: a. Composite crimes or special complex crimes; b. Continued crime or delito continuado; and ¢. Continuing crimes or transitory crimes. 13. Composite crimes'are those which are treated as single indi- visible offenses although comprising more than orie specific crime and with specific penalty. They are also called special complex crimes, such as those found under Article 294 on robbery with homicide, etc and deemed a product of one criminal impulse. They are not complex crimes. 14. Between composite crimes (special complex crime) and com- plex crimes: 2. In composite crime, the offenses comprised are fixed by law, eg. robbery with rape, robbery with mutilation. Incomplexcrime, the combinaticn of the offenses is nct specified but generalized, thatis, grave and/or less8 (COMPREHENSIVE REVIEWER IN CRIMINAL LAW _grave;or one offense being the necessary means to.com- mit the other, 'b. Incomposite crime, the penalty for the specified com- bination of crimes is also specific. For instance, in rob- bery with homicide, the penalty prescribed is reclusion perpetua to death. In complex crime, the penalty is not specific but is for the most serious offense in the maxi- ‘mum period, cn complex crimes, the light felony resulting from the same actistreated separately. In special complex crimes, the other felonies are absorbed. Thus, in robbery with homicide, the homicides deemed generic and includes the slight physical injuries. 15. When one of the crimes in an information charging complex crimesis not proved the effect is that the accused can be con- victed of the other. For instance, in the crime of rape with homicide, if the rape was not proved, the accused may be convicted of homicide. If there is an allegation of qualifying circumstarice, conviction for murder is also proper because the term “homicide” as used in special complex crime ofrape with homicide is to be understood in its generic sense, and indudes murder and slight physical injuries committed by reason or on the occasion of rape. But unless there are alle- gations in the information, the offender is presumed to have no independent knowledge of the facts that constitute the offense (People vs. Gallarde, GR. No. 133025, February 17, 2000) and cannot be convicted of an offense higher than that for which he istried. It matters not how conclusive and con- vincing the evidence of guilt may be, an accused cannot be convicted of any offense unless itis charged in the complaint or information for which hes tried, or is necessarily included in that which is charged. 16. While the information sufficiently aleges the forcible taking ‘of complainant the same fails to allege “lewd designs.” When a complex crime is charged, such as forcible abduction with rape, the prosecution must allege and prove the presence of all the elements of forcible abduction, as well as all the ele- 7 19. PENALTIES ” ments of rape. When appellant, using a blade, forcibly took away complainant for the purpose of sexually assaulting her as in fact he did zape her, the rape may then absorb forcible abduction, Hence, the crime committed by appellant is sim- Ber rape only. (People va. Sabredo, G.R.No. 126114, 331 SCRA Incontinued crimes also known as “deli continuado” or“con- tinued crime” and sometimes referred to as “continuous crime,” the offender is impelled by a single criminal impulse ‘but committed a series of overt act at about the same time in about the same place and all the overt acts violate one and the same provision of law. Only one crime shall be charged. For instance, in the case of Santiago vs. Garchitorena, 228 SCRA, the original information charged petitioner with perform- ing a single criminal act — approving the application for le galization of aliens not qualified under the law to enjoy such privilege. The original information also averred that the criminal act: (i) was in violation of a law — EO No. 324 dated April 3, 1988, (i) caused an undue injury to one offended party, the Government, and (iii) was done on a single day, on or about October 17, 1988. Delito continuado, although an outcrop of the Spanish Penal Code, has been applied to crimes penalized under special laws,eg., violations of R.A. No. 145 penalizing the charging of fees for services rendered following up claims for war veteran's benefits. (People vs. Sabun, 10 SCRA 156) Under Article 10, the Code shall be supplementary to special laws, unless the latter provide the contrary. Hence, legal princi ples developed from Penal Code may be applied in supple- mentary capacity to crimes punished under special laws. (Id) ‘The trend in theft cases isto follow the so-called “single la- ceny doctrine,” that is, the taking of several things, whether belonging to the same or different owners, at the same time and place constitutes but one larceny, Abandoned is the “separate larceny doctrine,” under which there was a dic- tinct larceny as to the property of each victim. Also abar- doned was the doctrine that the government has the discre-100 21. (COMPREHENSIVE REVIEWERIN CRININALLAW tion to prosecute the accused for one offense or for as many distinct offenses as there are victims. (Annotation, 37 ALR, ‘3rd 1407, 1410-14) (Id.) Some examples of delito continuado: a ‘The theft of13 cows belonging todifferent owners com- mitted by the accused at the same place and at thesame period of time. (People vs. Tumlos, 67 Phil. 320) ‘The theft of 6 roosters belonging to 2 different owners from the same coop and at the same period of time. (Peo- ple vs, Jaranitlo, 55 SCRA 563) ‘The theft of 2roostersiin the same place and onthesame ‘occasion. (People vs. De Leon, 49 Phil. 437) ‘The illegal charging of fees for services rendered by Iawyer everytime he collects veteran’s benefits on be- halfofa client, who agreed thatthe attorney's fees shall ‘be paid out of said benefits. (People vs. Sabbun, 10SCRA 156) The collections of the legal fees were impelled by the same motive, that of collecting fees for services ren- dered, and all acts of collection were made under the samectiminal impulse. (People vs. Lawas, 97 Phil. 975) ‘Cases when the concept of delito continuado was not applied: © ‘Two estafa cases one of which was committed during the period from January 19 to December 1955 and the other from January 1956 to July 1956. (People vs. Dichupa, 113 Phil. 306) The said acts were committed on different occasions. ‘Several malversations comuritted in May, June, and July 11986 and falsifications to conceal the said offenses com- mitted in Augusk and October 1936. The malversations and falsification were not the result of only one pur pose or of only one resolution to embezzle and falsity. (People vs. Cid, 66 Phil. 354) ‘Two estafa cases, one committed in December 1963 in- - volving failure of the collector to turn over the Sateen eaves PENALTIES 101 installments for a radio and the other in June 1964 in- volving pocketing of installments for a sewing machine. (People vs. Ledesma, 73 SCRA 77) ‘Bestafacases committed by the conversion by the agent of collections from customers of the employer madeon different dates. (Gamboa vs. CA, 68 SCRA 308) 23, Acontinuing crime is; a b. In the Rules of Court, one where any of the elements of the offense were committed in different localities, such_ that, theaccused may be indicted in any of those losali- ties. Any offense which is continuing in time, eg, rebellion which may have been started years ago by the offend- ers and continuing up to the present. 24. Examples of continuing crime: Rebellion, insurrection, conspiracy and proposal to com rit such crimes, setting them apart from the common offenses, aside from their essentially involving a mas- sive conspiracy of nationwide magnitude. (Gancia- Padilla vs. Enrile, 121 SCRA) Squatting, hence even if the illegal occupancy of the Property of another commenced prior to the promul- gation of PD 772 on August 2(, 1975, since it continued up to the filing of the information, the offender can be “held liable under the law. (Dacutanan vs. People, Au- gust 1990, Minute Resolution; People vs. City Court, General Santos City, April 1952) Violation of BP. Big. 22. Venue is determined by the place where the elements of making, issuing, or dmw- ing of the check and delivery thereof are committed. ‘Thus, a person indicted with a transitory offense may be validly tried in any jurisdiction where the offense ‘was in part committed. The place where the bills were written, signed, or dated doesnot necessarily fix ox de- ‘termine the place where they were executed. Whatis ofry ‘COMPREHENSIVE REVIEWER IN CRIMINAL LAW decisive importance is the delivery thereof. The deliv ery of the instrument isthe final act essential to its con- ‘summation as an obligation. (Ibasco vs. CA, Septembe: 1996) d. Abduction, kidnapping and illegal detention. 25, When an act or acts constitute more than one offense, th accused may be liable either for: a. A single crime, with one crime absorbing the other offenses b. Acomplex rime when the offenses constitute grave or less grave felonies or when one crime is the necessary to committhe other c. Aspecial complex crime, with each offenses constitul- ing elements of the composite affense Two separate crimes For instance, the taking of woman forcibly and thereaf- (er, rape was committed on her. How should the offenders, be charged? ‘a. If the original intent is to rape, the taking is merely a means to commit the intended offense in. which case, the crime is simple rape, the abduction being a neces- sary means to bring about the desired result, b. Ifthe intention is to take the woman against her will with lewd designs, there is the complex crime of forci- ble abduction with rape. c._ Ifthe original intentions to kidnap the woman for ren- som and thereafter, rape is committed as an after- thought, the offense committedis special complex crime of kidnapping with rape; 4. Ifin (b) above, there were several counts of rape, the first rape shall be complexed with the forcible abduc- .. tion and the subsequent rapes treated as separate crimes of rape. | | | | | PENALTIES cr) ARTICLE 49 1. The penalties for the intended and the actual crime commit- ted are compared and the lower penalty is imposed in the ‘maximum period, For instance, ifthe intended crimeis homi- cide but due toerror in personae, the actual crime committed is parricide, the penalty shall be forhomicide. Ifthe intended crime, on the other hand is parricide and the actual crime ‘committed is homicide, the penalty shall likewise be for the homicide. 2. Article 49 provides for the imposition of the lower penalty in the maximum period, whereas article 48 prescribes the Penalty forthe moet serious offense in the maximum pe- ios 3. Compare the penalty for the intended crime and for the ac- tual crime committed. Impose the lower penalty in the maxi- ‘mum period. Exception: if the crime committed constitutes an attempt or frustration of anothe: with a higher penalty and the law provides a higher penalty for the frustrated or attempted, the penalty for the latter shall be imposed in the maximum period. ARTICLES 50-57 — Penalty for attempted and frustrated felonles on the accomplices and accessories ARTICLE 64 — Rules for graduating penalties ARTICLE 71 — Graduated se: 1, Art71 provides the scale from which the penalty prescribed in the rules in Art. 61 shall be taken. Art. 61 prescribes the rules for applying the penalty net ower in degree in Aes 2. In the application of the rules in Article 61, it is to be under- stood that each penalty prescribed by law for every felony is a degree, Thus, generally when the penalty imposed com- ‘prises of two periods, the two-period penalty is one degree and the penalty next lower in degree should be composed of two periods aiso.a 104 ‘COMPREHENSIVE REVIEWER IN CRIMINAL LAW ‘The penaltiesin Book I of the Code are understood to be: (a) the principal penalties imposed (b) upon the principal of- fender (c) for the consummated felony. (Article 46) Hence, there is a need to provide the rules when the crime is not consummated, and when the offenders include accomplices and/or accessories. Mlustrating Articles 50-57, the penalty for the three stages against the offenders: Principal Consummated Frustrated Attempted less Odegree less Idegree less 2 degrees Accomplice less 1degree less 2degrees less3 degrees Accessory less 2degrees less Sdegrees less 4 degrees Additional deductions from the penalties are provided in Articles 250 of one degree for frustrated and attempted parricide, murder or homicide because of the gravity of the penalty prescribed. Accarding to Art. 71, the penalty next lower in degree than arresto mayoris destierro and notarresto menor, whereas undet Art. 70, destiero follows arresto menor in the degree of sever~ ity The rules for graduating penalties under Article 61 are as follows: When the penalty prescribed is single arld indivisible thenextlower in degree is the penalty immediately fol- lowing under Art. 71. Thus, Reclusion Perpetua is one degree lower than Death. For two indivisible penalties, the next lower is thatim- mediately following the minimum so for Reclusion Perpetua to Death, the penalty next lower is Reclasion Temporal. ‘When the penalty prescribed is composed of one or more divisible penalties to be imposed to their full extent, the ‘PENALTIES 0 penalty next lower in degree shall be that immediately following the lesser, eg., prision mayor to reclusion tert- poral, the penalty next lower is prision correccional. Incase of one or more indivisible penalties and the maxi- mum of a divisible penalty, the next lower in degree shall be composed of the medium and minimum peri- ‘ods of that divisible penalty and the maximum period of that immediately following, Thus, one degree lower kan Reis Teor maximum to Death Pre ‘maximum to Reclusion Temporal medium. ple vs. Paredes, November 1996) — ‘The penalty for brigandage under Article 306 is prision ‘mayor in its medium period to reclusion in its minimum period, a penalty composed of three periods corresponding to different divisible penalties, The pen- aly next lower shal likewise be composed of thre e- rods thus: Maximum — prision mayor, minimum Medium — prision correccional, maximum Minimum — prision correccional, medium ARTICLE 62 1, The different kinds of modifying circumstances referred to ‘here are: a. Those which in themselves constitute a crime (para- b graph) such as “by means of fire" or arson. ‘Those included by law in defining a crime and ing the penalty (paragraph 1);eq lyinghands pon person in authority in Direct Assault. ‘Those inherent in the crime (paragraph 2) ¢., evideat premeditation in robbery. sienna ‘These circumstances shall no longer be considered in imposing the penalty becausein (a) and (b) they were already considered by the law in prescribing the pen-106 (COMPREHENSIVE REVIEWER IN CRIMINAL LAW alty for the offense arid in (c) the circumstance is ab- sorbed by the crime committed. 4. Those pertaining to the moral attributes of the offender orhis relations with the offended or any other personal ‘causes (paragraph 3) — only the offender having such attribute shall be affected, as for instance, only the one blinded by passion or obfuscation shall have his liabil- ity mitigated. In rape, the relationship of one of the of- fender will be considered against him only and not against the other offenders. Habitual delinquency will be considered against the one to whom it pertains and will not aggravate the crime of the other offenders. 2. The inserted provision of Art. 62(1)(a) of the Code of syndi- cated or organized crime group is the deed of a group of at least two in number, which is organized for the ‘purpose of committing crimes for gain. This special aggra- vating circumstance requires proof that the group is organ- ized for the general purpose of committing crimes for gain, ‘which is the essence of syndicated / organized crime group. (People vs. Alberca, June 1996) 3. Another new provision referring to the aggravating circum- stance of abuse of official position where the penalty shall be imposed in the maximum period regardless of the mitigat- ing circumstances. This complement the constitutional pre- ‘cept of public office isa public trust. Itis submitted however that when the penalty imposable is reclusion perpetua to death under Art. 63 and there are mitigating circumstances con- curring , or when the aggravating circumstance of abuse of official position concurs with a privilege mitigating circam- stance, this provision under Art. 62(1.2) should give way. 4, The phrase “same rule” in no. 2 of Art. 62 should refer to paragraph 1 of no. 1 without regard to no. 1(a) because the latter was a mere insertion. Thus, the same rule, ie., aggra- vating circumstances which are inherent in the crime to such degree that it shall of necessity accompany the offense shall no longer increase the penalty therefor. ‘PENALTIES ra ARTICLE 63 — Rules for application of indivisible penalties 1. There are two classes of penalties in his article each with Its own rules: a. Single indivisible penalty under par. 1 — (reclusion perpetua OR death) (Memory Aid — SIP) — modity- ing circumstances are never considered, b. Two indivisible penalties under par.2— _(reclusion perpetua TO death) (Memory Aid— TIP). Here, the rules are: ‘Modifying Circumstance Penalty to be imposed 1 mitigating — reclusion perpetua aggravating — death No aggravating/no mitigating — reclusion perpetua Some mitigating/some — offset, then apply aggravating the foregoing rules, 2. Thepenalty cannot be lowered by one degree no matter how ‘many mitigating circumstances are present. The courts can only impose the lesser penalty, which is Reclusion Perpetaa, ‘The rule in Article 64[5] which allows one degree deduction when there are two or more mitigating with no aggravating circumstances present does not apply in Article 63. 3. ‘The mitigating circumstances referred to in Articles 63 and 64 are ordinary mitigating circumstances because privileged mitigating circumstances are alwaysconsidered whether the penalty imposed is divisible or indivisible. 4. While Art. 248 of the Code punishes murder with “rect perpetua to death,” it does not follow that courts should in- pose these two indivisible penalties, What should be imposed is one or the other depending on the presence of modifying circumstances. (People vs, Rabanille, May 26, 1999) 5. Under the amendatory sections of R.A. No. 7659, the pen- alty of reclusion perpetua to death is also imposed on treason108 (COMPREHENSIVE REVIEWER IN CRIMINAL LAW ‘a Filipino (Sec. 2), qualified piracy (ec. 3), particide (Sec. Spmurter ee 6, Kidnapping and scious legal detention (Sec. 8) robbery with homicide (Sec. 9), destructive arson (Sec. 10), rape committed under certain circumstances (Sec. 11) and plunder (See. 12). (d.) Since reclusion perpetua is an indivisible penalty, it has no minimum, medium or maximum period. (People vs. Villanueva, 254 SCRA) And where the law prescribes a sin- gle indivisible penalty, it shall be applied, regardless of any ruitigating or aggravating circumstances that may have at- tended the commission of the crime. (People vs. Dones, 254 SCRA) ARTICLE 64 — Rules for application of Divisible penalty 1. The rules when the penalty imposable is a divisible penalty are: : Modifying Circumstances Proper Period a. No aggravating and'no — Medium mitigating b. Mitigating only — Minimum — Aggravating only — Maximum 4. Some of both circum- offset then apply the stances present above rules @ Two or more mitigating _ one degree lower in and no Aggravating the proper period 2. Art. 64 is important in the application of Indeterminate ‘Sentence Law (ISLAW) because the modifying circumstances are first considered in the determination of the maximum, penalty. On the basis of the maximum penalty imposed, the minimum penalty shall be computed. 3. The court shall impose the penalty next lower to that pre- scribed by the Code in the period that it may deem applica ble depending upon the number and nature of tie mitigat- ing circumstances pursuant to paragraph § of this Article PENALTIES 108 For instance, in the crime of homicide which is punishable with reclusion temporal, where there are two mitigating with ‘no aggravating cizcumstances, the imposable penalty is one degree lower or zrision mayor. Applying the Indeterminate Sentence Law, the convict must be me‘ed the penalty with the minimum within the range of prisiox correccional and the __maximum thereof within the range of prision mayor. (People vs, Germina, May 1998) 4. Courts cannot: a. Lower the penalty by degree when there is an aggravat- ing circumstance even if the net effect of the offsetting is two or more mitigating circumstances left (par. 5); b, Impose a greater penalty than that prescribed by law no matter how many aggravating circumstances are ‘present. 5. Article 64 does not apply to quasi-offenses because Article 365, paragraph 5 provides that in the imposition of the pen- alties for impradence, the courts shall exercise their sound discretion without regard to the rules prescribed in Article 64. Modifying circumstances substitute for the discretion of the judge in the imposition of the penalties, hence when these circumstances are not applicable, the judge is given leeway to exercise his sound discretion. 6. The significance of one day in the beginning of the period of penalty is that it separates one degree from the other. For instance, prision correccional (6 months and 1 day to 6 years) ‘is ceparated from prision mayor (6yearsend 1 day to 12 years) by one day. The one-day difference determines whether a ‘convict shall be eligible for probation or not; whether sub- sidiary penalty can be imposed or not; etc. ‘The 1-day difference separates redusion temporal from reclusion perpetua which determines whether the rules in ar- ticle 63 or article 64 will be applied in determining the proper period of penalty in view of the presence or absence of the modifying circumstances.no (COMPREHENSIVE REVIEWER IN CRIMINALLAW ARTICLE 65 — Rules when penalty not composed of 3 periods ARTICLE 76 — Legal duration of penalty 1. Art.76is the law on duration of divisible penalties which is that divisible penalties shall be considered as divided into3 periods: the minimum, medium and maximum. The dura~ tion of the period of a divisible penalty is computed as fol- lows: Using as an example prision mayor with a period of 6 years and 1 day to 12 years: Step 1— Deduct the beginning of the period from the end of the period. ‘12 years minus 6 years = 6 years Step 2— Divide the difference by 3 corresponding te the 3 periods of minimum, medium and maximum. 6 years divided by 3=2 years Step 3— Add the quotient in step 2 to the beginning of ‘each period starting with the minimum. 6 years and 1.day plus 2 years = 8 years. Hence: Minimum — 6 years and 1 day to 8 years ‘Medium— 8 years and 1 day to 10 years ‘Maximum — 10 years and 1 day to 12 years 2. Art. 65 applies when the penalty is divisible but is not com- posed of 3 periods. For instance, robbery in an uninhabited place is penalized by prision correccienal in its medium and ‘maximum periods (Art. 302). The duration of this penalty is, years, 4 mos, and 1 day to 6 years. 3, Harmonizing these two provisions, the penalty shall be con- ‘verted into one with three periods to comply with the legal duration of the penalty. The steps are: ‘a. Get the duration of the penalty 6yrs. less? yrs. 4 months =3 yrs. and 8 mos. or 44:mos. PENALTIES a b. Divide the duration of the penalty by 3 to get the dura- tion of each period. 44 mos. / 3= 14 mos. and 10 days each period & Ad the quotient to the minimum ofeach period, The owestis the minimum period, thesecond the medium, and the highest the maximum. Thus, Minimum =2 yrs. 4 mos. 1 day to 3 yrs. 6 mos. 10 days ‘Medium =3 yrs. 6mos, 11 days to4 yrs. 8 mos. 20 days ‘Maximum = 4 yrs, 8 mos. 21 days to 6 yrs. ARTICLE 66 — Imposition of fines. 1, The factors to consider in the imposition of fines to the cul prit are: a. Presence of mitigating and aggravating circumstances, 3h one case, the Supreme court reduced the fine of 10,000.00 to only P2,000.00 in view of the presence of three mitigating circumstances. (Nizurtado vs. Sandiganbayan, supra.) b. Moreparticularly, the wealth or means of culprit. Thus, the fine to be imposed may be reduced if, notwithstand- ing the presence of aggravating circumstance, the cul- prit canno afford the correct fine. ARTICLE 68 — Penalty on minors 1. For over 9 but less than 15 who acted with discemment — take note that the 2-degree reduction is AT LEAST and AL- WAYS; thus it could be 2 degrees, 3 degrees or more but never less than 2. It is mandatory in the serse that the penalty un- der paragraph 1 of this article should always be lowered in all cases, and discretionary in that the judge has the disere- tion to lower it by two or more degrees. 2. For over 15 butunder 18 — one degree lower but always in the proper period. 3 The age is reckoned at i Sine ofthe commission of the offer fo be ented pf aos ee FESSIONAL SUHUO} ATENEO LIBRARYun (COMPREHENSIVE REVIEWER IN CRIMINAL LAW 4. Under this Article, when the accused is less than 15 years of age, the penalty shall always be lowered by at least two de- ‘grees. Ifthe felony committed is punishable with death, two degrees lower than that is reclusion temporal. Article 47, on. the other hand states that the death penalty shall be lowered to reclusion perpetua for offenders less than 18. Itis submitted that it is Article 68 that shall be applica- ble for offenders less than 15 because in case of ambiguity, the law is to be construed in favor of the accused, especially {for a child of tender age. Moreover, Article 68 emphasized that penalty shall be AT LEAST two degrees ALWAYS. ‘Thus, considering the gravity of the offense and in the interest of justice, the Supreme Court admitted the birth cer- tificate of the accused to prove the mitigating circumstance ‘of minority although said birth certificates werenot presented ‘or offered in the trial court (Peoplevs. Regalario, March 1993) 5. When the accused is exactly 15, the lawisnot clear as tohow the penalty should be redisced. It is submitted that the ten- derness of the law be applied and include them in paragraph 1 of Article 68. 6, When an accused is no longer 18 years of age at the time of sentencing, he cennot anymore avail of the benefit of sus- pension of his sentence under the Code. (People vs. delos Reyes, 215 SCRA) The full time he spent in actual commit- ‘ment and detention during trial shall, however, be credited in the service of his sentence. (PD 603, Art. 197, par.3) 7. The burden of proof that accused was a minor at the time of the commission of the offense is on him. 8, Theminor was 17 years old when he committed the offense. Minority under paragraph 2, Article 68 should be appreci- ated inhis favor. The penalty prescribed for the crime of rob- bery with rape is reclusion perpetua to death. The aggravat- ing circumstanceof nocturnity and abuse of superior strength attended the commission of the crime. With two aggravat- ing circumstances present with no ordinary mitigating cir- cumstances to offset them, the penalty shall be imposed in. PTS 8 A PENALTIES m its maximum period. The imposable penalty prescribed by Jaw therefore is reclusion temporal in its maximum period. (One degree lower than reclusion perpetua to death because of the privileged mitigating circumstance of minority) Ap- plying the Indeterminate Sentence Law, he is meted the in- determinate sentence of 10 years and 1 day of prision mayer in its maximum period to 18 yeare, 2 months and 21 dayst reclusion temporal in its maximum period. (People vs. Mendoza, July 1998) ARTICLE 69 — Penaity for Incomplete justification and exemption 1. The penalty may be reduced by one cr two degrees if major ity of the conditions required to justify or exempt from crimi- nal liability are present. In such case, the incomplete justif- cation or exemption is a privileged mitigating circumstance, 2. Ifthereis present ess than a majority of the conditions, there will only be an ordinary mitigating circumstance, which will Jower the penalty to the minimum period. 3. Penalty lower by one or two degreesshall be imposed if the deed is not wholly excusable. Ifmajority of the for defense of property are present, the penalty may be low- ‘ered by two degrees to prision correccional. And when incom- plete self-defense is coupled by two more mitigating circum- stances, the penalty under Article 61(5) may further be ve- duced by one degree, that is, arreste mayor, because of the presence of 2 mitigating circumstances and no aggravating ‘circumstance. (People vs. Narvaez, 121 SCRA) 4, Arts, 11 and 12 vis-a-vis Art, 69 and Art. 13(1): All requisites present — exempting justifying, 2or more requisites present — privileged mitigating rcumstance Lonly present — ordinary mitigating circumstanceut (COMPREHENSIVE REVIEWER IN CRIMINAL LAW But, int defense of self, relatives or strangers, unlawful aggression must always be present otherwise there is noth- ing to defend. : : 5, Incomplete justification is a special or privileged mitigat- ing circumstance, which, not only cannot be offset by ag- ‘gravating circumstances but also reduces the penalty by ‘one or two degrees than that prescribed by law, The instant ‘case would have fallen under Art. 11, par. 5 had the 2 con- Gitions therefor concurred which, to reiterate: first, that the accused acted in the performance of a duty or the lawful exercise of a right or office; and second, that the injury or ‘offense committed be the necessary consequence of the due performance of such duty or the lawful exercise of such Hight or office. But here,-only the first condition was ful- filled. Hence, Art. 69 is applicable, although “that the majority of such conditions be present,” is immaterial since there are only 2 conditions that may be taken into account, ‘Axticle 69 is cbviously in favor of the accused as it vvides for a penalty lower than that prescribed by law w! the crime committed is not wholly justifiable. The inten tion of the legislature is to mitigate the penalty by reason of the diminution of either freedom of action, intelligerce or intent or of the lesser perversity of the offender. (People vs, SPOI Ulep, G.R. No. 132547, September 20: 2000) ‘Article 249 prescribes for homicide the penalty of redu- sion temporal, the range of which is 12 years and 1 day to20 years. For an incomplete justifying circumstance of fulfillment of duty, the penalty should be 1 degree lower, ie,, from reclusion temporal to prision mayor, pursuant to Art, 69, in relationto Art. 61, par.2, and Art, 71, tobe imposed in its minimum period since accused —voluntarily surrendered to the authorities and there wasno aggravating circumsta1ce to offset this mitigating circumstance. (id.) ARTICLE 70 — Successive service of sentences 1. When the culprit is given multiple sentences, the same must bbe served simultaneously if the nature of the penalties per- PENALTIES ms mits it Otherwise, the penalties shall beserved successively, Sintultaneous service is the rule, whereas successive service is the exception. ‘The penalty is to be served in the order herein prescribed observing the following limitations: ‘a. The maximum duration of the conviet’s sentence shall not be more than three-fold the length of time corre- sponding to the most severe ofthe penalties imposed. No other penalty to which he may be liable shall be in- flicted after the total of those imposed equals the same maximum period, (Three-fold rule) b. Such maximum period shall in no case exceed forty years. , Stops to determine the duration of sentence to be served: fa. get the most severe penalty (érom Art. 70) b. multiply by3 c. add the duration of the different sentences d. compare the results of b and ¢ fe, accused to serve the lesser period which shall not ex- ceed 40 years. ‘This Article deals with SERVICE of sentence, not with impo- sition, hence, for the prison Director to follow, not for the ‘courts. The courts should impose the correct penalties even. if these will amount to more than the lifetime of the pris- ‘oner, The reason is that “should a pardon be granted as to the penalty or penalties first imposed” (Art. 70, par. 2), the remaining sentences shall be servec in the order of sevedty. Consequently, all the sentences on the prisoner imposed by any court for whatever crimes whenever filed should be awv- ered by this rule. . Ifthe penalties imposed are all equal, the period thereof shall be considered as the most severe when applying the 3-fold rule.6 (COMPREHENSIVE REVIEWER IN CRIMINAL LAW 7, When the death sentenceis executed, all the death sentences ‘when more than one is meted are deemed simultaneously served. 8. When the most severe penalty is reclusion perpetua or life imprisonment (pena perpetua), the imputed duration shall be ‘30 years, thus 3) multiplied by 3 is 0 years. Theculprit shall servenot 90 but 40 years because of the express limitation in article 70. ARTICLE 75 — Increasing or reducing fine Fines are reduced by one or two degrees when the felony is attempted or frustrated or when imposed upon the accessory or the accomplice. For each degree, — of the maximum amount is taken. The penalty as computed shall in no case be lower than the minimum prescribed by law. For instance, if the fine prescribed by law is P50 to P200, — of the maximum amouint of P200is taken, that is, P50. Ifthe penalty is to be reduced by 2 degrees, the pen- alty is computed as follows: Step 1 — P200 divided by 4=P50 2 — P50multiplied by 2 degrees = P100 8.— P20 minus P 100 =P 100 ‘The penalty as lowered by two degrees therefore is P50 to P100. ARTICLE 77 — Complex penalty 1. A.complex penalty is one which is composed of three dis- tinct penalties each forming a period, the lightest of which shall be the minimum, the next shall be the medium and the most.severe the maximum. (Not to be confused with com- plex crime under art. 48) 2. In People vs, Simon, the Court corrected the error in RA 759 ‘which imposed in Sec. 20 a complex penalty composed of four periods — prision correccional to reclusion perpetua—by construing the same to be prision correcional to reclusion tent- poral. [INDETERMINATE SENTENCE LAW w 3. Apenalty which provides for a penalty of reclusion temporal inits maximum period to reclusion perpetuais a complex and divisible penalty consisting of 3 periods. (People vs. Lian, 255 SCRA) ‘The 2nd paragraph of Art. 77 of the Code which deals with complex penalties, provides that “whenever the pen- alty prescribed does not have one of the forms specially pro- vided for in this Code, the periods shall be distributed, ap- _plying by analogy the prescribed rules,” that ig, those in Arts. 61 and 76, Hence, where the penalty provided by Sec. 1 of PD 1866, as amended, is reclusion temporal in its maximum pperiod to reclusion perpelua, the minirram period thereof is 17 years, 4 months and 1 day to 20 years and the maximum ‘period is reclusion perpetua, (i) INDETERMINATE SENTENCE LAW 1. ‘Modifies the imposition of penalties under both the Revised ‘Penal Code AND special laws. The sentence must fix a mini- mum and a maximum period of penalty. 2. Itisindeterminate after the convicthesserved the minim alty when he becomes eligible for parole: ‘contin- {red stay in prison shall depend upon is conduct inside. The ‘minimum mustbe served. When released the rest of his sere tence is served cut of prison under the supervision of a pro- bation officer. 3, Thephilosophy underlying the Indeterminate Sentence Law is that of redeeming valuable human material and prevent- {ng unnecessary deprivation of personal liberty and economic ‘usefulness with due regard to the protection of the social order (Vaca vs. CA, supra.) Thus, ater serving the minimum ‘and-upon showing that has reformed, the prisoner is given parole. 4, The law is not applicable: a. Inindivisible penalties of death and life imprisonment. ‘Also in case of relusion perpetue, pursuant to Article 3, ‘paragraph 1 which provides that when the penalty im-m8, ‘COMPREHENSIVE REVIEWER IN CRIMINAL LAW posed is single and indivisible, the same shall be im- posed without regard to any modifying circumstance, b. Prison terms of not more than 1 year (one year or less) ‘Crimes of: Treason, Proposal or Conspiracy to Commit ‘Treason, Misprision of Treason, Rebellion, Espionage, Sedition, Piracy 4. Offenders who are: habitual delinquents, escapees from ‘confinement, evaders of sentence, violators of condi- tional pardon granted by the Chief Executive. Recidivists are entitled to.an indeterminate ser- tence. (People vs. Jaranilla, February 22, 1974) Offender isnot disqualified to avail of the benefits of the law even if the crime is committed while he is on parole. (People ‘vs, Calreon, CA78 O.G. 6701, November 19, 1982) fe. Non-prison sentences of destino, disqualification, ete. (Sec. 1) How ISLAW operates: a, The sentence must state: “Within the range of (for in- stance) prision mayor as minimum, and within the range of reclusion temporal as maximum.” This is necessary because of the accessory penalties, >. ‘Themaximum period is determined by considering the presence of modifying circumstances applying the rules, ‘on Art. 64, Privileged fing circumstances must first be considered before applying the said rules. c. The minimum is fixed at otie degree lower than that provided by the Code. ‘The minimum thereof shall be taken from any pe- riod of the penalty next lower in degree. (People vs. Lian, 255SCRA) The penalty next lower should be based on the penalty prescribed by the Code for the offense, with- out first considering any modifying circumstance at- + tendant to the commission of the crime. The determi- ration of the minimum penalty is left by law to the INDETERMINATE SENTENCE LAW 1» sound discretion of the court ard it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdi- ‘vided. The modifying circumstances are considered only in the imposition of the maximum term of the indete- minate sentence. (People vs. Saley, July 1998) . For complex crimes, the penalty for the most serious offense shall be the basis for applying the Indeterminate Sentence ‘Law. The one degree lower penalty should, conformably with the penalty for complex crimes, be imposed in its maximum period. The of the third mitigating circumstance of praeter intentionem would result in imposing a period the court ‘may deem applicable. Considering, however, that the pen- alty has to be imposed in the maximum period, the only ef- fect of this additional mitigating circumstance is to impose only the minimum portion of that maximum period. (Nizurtado vs. Sandiganbayan, supra) /. Therequirement of imposing a definite maximum and mini- mum terms is mandatory. (Bacar vs. de Guzman, Jr, 271 SCRA) The fact that the lesser offense, and its necessarily lower pen- alty, resulted from a plea bargaining agreement is of no mo- ‘ment as far as the penalty to be imposed is concerned. Ples- 1s authorized by the present Rules and isin fact required to be considered by the trial court at the pre-trial conference. (Ladino vs. Garcia, 265 SCRA) In determining whether an indeterminate sentence and not a straight pen- alty is proper, what is considered is the penalty actually im- posed by the trial court, after ‘the attendant cir- cumstances, and not the imposable penalty. It would bean ‘unduly strained postulate that a sentence arrived atby a court after a valid plea bargaining should constitute an exception, to the Indeterminate Sentence Law in addition to those emu erated in Section 2 thereof. (Ladino vs. Garcia, 265 SCRA) . Parole under the Indeterminate Sentence Law and pardon: a. In parole, the minimum sentence must be served; in pardon, service is not required,(COMPREHENSIVE REVIEWER IN CRIMINAL LAW 1b, Parole is a benefit granted by law, specifically the Inde- terminate Sentence Law; Pardon is an exercise of the power of the President under thie Constitution. 10, Notwithstanding the absence of any petition for a writ of habeas corpus or any similar judicial relief, release from im- prisonmentis in order after the maximum of the recomputed penalty under the amended Dangerous Drugs Law has been, served. (People vs. Simon) PROBATION 1. Itis a special privilege granted by the State to qualified of fenders. It essentially rejects appeals and encourages an oth- cerwise eligible convict to immediately admit his ability and. save him the time, effort, expenses to jettison an appeal. (Fran- cisco vs. CA, April6, 1995) 2. The grant of probation rest primarily upon the discrétion of the court whichis lo be exercised primarily for the benefit of thesociety as a whole and only incidentally for the benefit of the accused. 3. Probation is a mere privilege, not a right. Its benefits cannot extend to those expressly excluded. It is an act of grace and clemency or immunity conferred by theState which may be granted by the court toa seemingly deserving defendant who thereby escapes the extreme rigors of the penalty imposed bby law for the offense. (id.) 4, ‘The convict should not assume that his application would automatically be granted. A hearing is required by due proc «55 of law to give the prosecution a chance to be heard if itis inclined to oppose the application. 5., Objectives: a, Topromote correction and rehabilitation of offender by giving him individualized treatment (positivist theory); b. Taprovide abetter opportunity for the offender to r=- form; PROBATION ma c. Toprevent further commission of crimes as he is placed ‘under the supervision of probation officer; To decongest our jails; and @. To save the government much needed funds which ‘would be spent on maintaining him inside the jail. . The application must be filed within the period for perfect- ing an appeal as prescribed by Sec. 4. Prevailing jurispru- dence treats appeal and probation as mutually exclusive rem- ‘edies. Consequently, probation should be availed of at the first opportunity by convicts who are willing to be reformed and rehabilitated, who manifest spontaneity, contrition and remorse. id.) ”. Section 4 of the Law clearly mandates that no application for potion sil be entstaine or granted f the dafndent perfected the appeal from the judgment of conviction. ‘Therefore, that an appeal should not bar the. accused from applying for probation if the appeal is taken solely to reduce the penalty fo “qualify” for probation is contrary to the mandate of the lew. (id.) . Appeal presupposes that the convict disagrees with the find- ing of his guilt whereas probation admits his guilt and im- plies remorse on his part. Thus, appeal and probation are mutually exclusive remedies because they oppose one an- 1. Disqualified offenders: Those: a, Sentenced to a maximum term of more than 6 years; (Probationable penalty is 6 years and below) b. Convicted of subversion or any crime against national, secutity or the public order; ¢. Previously convicted by final judgment of offense pun- ished by imprisonment of not less than 1 month and 1 day and/or fine of not less than P200.00; d. Whohave been once on probation (available only once}: Already serving sentence upon the effectivity of proba- tion law;10. nL 13. (COMPREHENSIVE REVIEWER IN CRIMINAL LAW f Who have perfected an appeal. “Maximum” is the term used by the law/henceif the convict ‘was sentenced to multiple prison terms, those terms will not be added together to determine whether the convictis quali fied for probation if the total does not exceed 6 years but ‘what will be considered isthe maximum among the sentences imposed. Ina case the accused issued three bad checks to one com- plainant, three separate informations were filed, one case was assigned to one Branch which convicted the accused and imposed a fine of P4,648,00 while the two other cases were assigned to another Branch of the same court, which also held him guilty of the same violation and imposed 30 days’ imprisonment in each case, the accused should be disqual- fied for probation. The earlier conviction imposed a fine of more than P200.00 and under ection (), the accused should be disqualified as the word “previous” refers to the convic- tion, net to the commission of the offense, notwithstanding that the crime arose out of a single act or transaction. The probation law is not a penal statute; the principle of liberal interpretation does not apply. (Pablo vs, Judge Castillo, Au- gust 3, 2000) ‘An order granting probation is tainted with grave abuse of discretion and should be set aside where the accused who ‘was convicted for 54 counts of violations of B.P. 22, resorted to devious chicanery and artifice to evade the implementa- tion of a writ of execution against her by executing a simu- lated “Deed of Sale” over her Benguet property and therety render unenforceable the judgment. Verily, she is not the penitent offender who is eligible for probation within legal ‘contemplation. Her demeanor manifested that she is inca- able to be reformed and will only be a menace to society ‘should she be permitted to co-mingle with the public. To al- low her to be placed on probation would depreciate the seri- cousness ofher wrongdoings. (Santos vs. CA, December 1999) Conditions imposable on the grantee: t a. Mandatory conditions which are: PROBATION wm 1 Toreportto the designated probation officer within ‘72.hours after receipt of the order a2 To report periodically to the officer at least once a ‘month or sooner as the latter may deem b. Discretionary conditions which depend upon the court ‘to impose. These must be constructive and not unduly restrictive of the offender's liberty and not offensive to his conscience. 14. The decision of the trial court on the application for proba- tion is not appealable. The proper remedy is to petition for certiorariif the decision is made without the benefit ofa hear- ing. 15. Thelegal effectof probationis only to suspend the execution of the sentence. The conviction of fencing which involves ‘moral turpitude subsists and remains totally unaffected not withstanding the grant of probation. In fact, a judgment of conviction in a criminal ease becomes ipso facto final when the accused applies for probation, although it is not execu- tory pending resolution of his application. (Dela Torre vs. ‘COMELEC, July 1996) 16. Probation and Indeterminate Sentence Law (ISL) compared: Probation IsL Sentence must not be more than must be more than 1 than 6 years year Penalty imprisonment or fine imprisonment only Disposition sentence is suspended minimum to be served Violation _entiresentence shall be unexpired portion is served tobe served Appeal —_forecloses right to pro- no effect on law/s op- bation eration ‘Available only once as long as case not excludedme (COMPREHENSIVE REVIEWER IN CRIMINAL LAW - Article 80/Presidential Decree No. 603 1. Chapter Il of FD 603 (Child and Youth Welfare Code) has expressly repealed Article 80. Article 189 of PD 603 defines “youthful offender” as a child, mins, or youth, including one who is emancipated in accordance with law, who is over 9 years but under 18 years of age at the time of the commission of the offense. Obviously, the trial court erred in considering the age of the accused at the time of trial. The testimony of the appellant that he was only 15 when he committed the offense is material because Article 68(2) imposes upon a person over 15 and under 18 a penalty next lower but in the proper period. (People vs. Paredes, November 1996) Note: Article 68, like article 12 contains a lacuna in the ages of exactly 15 and exactly 9, respectively. In the Paredes ‘case, the court classified exactly 15 under paragraph 2 of ‘Article 68, which gives to the youthful offender a one-de- ‘gree deduction instead of under paregraph 1 of at least two- degree deduction] 2. Nor is the fact that the youth has not shown himself to be incorrigible, a ground for reducing his penalty. This is a ground for suspension of judgment of youthful offenders, ie, those over 9 but under 18. But this could no longer be ordered since atthe time the trial court rendered its decision petitioner was already over 18. This is not a mitigating cir- ‘cumstance and should not be used as basis for reducing the penalty. (David vs. CA, July 1998) 3, Ifthe accused alleges minority and the prosecution does rot disprove his claim by contrary evidence, such allegation can be accepted as.a fact. While the evidence to this point is rot entirely satisfactory, yet it is sufficient to raise a reasonable doubt upon this material question to the benefit of which the defendantis entitled. The baptismal certificate or other evidence of this character if obtainable, should have been introduced. [PROBATION ms ARTICLE 81 — Executon of death penalty R.A. No, 8177 — LETHAL INJECTION LAW 1. The power of the Supreme Court to review a decision i- posing the death penalty cannot be waived either by the ac- cused or by the courts. The judgment of conviction and sen- tence by the trial court does not conclude the trial until the Supreme Court has reviewed the facts and the law as ap- plied thereto by the court below. The judgment of convic- tion entered on the trial court is not final, cannot be executed, and is wholly without force or efféct until the case has been passed upon by the Supreme Court In a sense the trial court acts as a Commissioner who takes the testimony and reports thereon to the Supreme Court with his recommendation. (chegaray vs. Sec. of Justice, October 1998) 2. ‘The death penalty per seis not cruel, degrading or inhuman. Punishmentsare cruel when they ivolve torture or alinger- {ng death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution, Itim- plies there something inhuman ard barbarous, something ‘more than the mere extinguishment of life. id.) (Harden vs. Director of Prisons) 3. The “court” which designates the date of execution is the trial court which convicted the accused after the Supreme Court has reviewed the entire records of the case and has aifirmed the judgment of the lower court. Thereupon, the judgment is entered 15 days after its promulgation, and 10 days thereafter, the records are remanded to the court below including a certified copy of the judgment for execution. (id) 4, ‘The death sentence shall be carried out not earlier than 1 ‘year nor later than 18 months afterthe judgmenthas become final and executory, without prejudice to the exercise by the President of his executive clemency powers at all times. Hence, the déath convict is in effect assured of 18 months from the time of the finality of judgment imposing the death ‘wherein he can seek executive clemency and attend to all his temporal and spiritual affairs. (id.)26 ‘COMPREHENSIVE REVIEWER IN CRIMINAL LAW 5. Any infliction of pain in lethal injection is merely inciden- tal in carrying out the execution of the death penalty and does not fall within the constitutional proscription against cruel, degrading or inhuman punishment. In a limited sense, anything is cruel which is calculated to give pain or dis tress, and since punishment imports pain or suffering to the convict, it may be said that all punishments are cruel. But the Constitution does not mean that crime, for this reason, is to go unpunished. The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life hu- manely. The few minutes of pain does not rise to a consti tutional violation. (id.) 6. While Art. 83 , as amended by Section 25 of RA 7659, sus- pends the implementation of the death penalty while a ‘woman is pregnant or within 1 year after delivery, Secticn 17 of the implementing rules omits the 1 year period follow- ing delivery as an instance when the death sentence is sus- pended, and adds a ground for suspension of sentence no longer found under Art. 83, which isthe three-year reprieve after a woman is sentenced, This additions tantamount toa ‘gender-based discrimination, while the ortission is an im- permissible contravention of the applicable law. As Section 17 finds no support in Art. 83 as amended, it must be de- clared invalid. 7. Since the votes of the 5 justices fall short of the majority 8 votes needed to affirm the death sentence, the penalty of e- clusion perpetua should be imposed following Article 47 of the Code, as amended by R.A. 7659. (supra.) 8, Inno case shall the burial of the person sentenced to desth be held with pomp which constitutes violation of Art. 153 ‘on Public Disturbance. 9, ‘The features of the Lethal Injection Law are: a. The death penalty shall be given preference over any __ other penalty and shall consist in putting the person to death by lethal injection. PROBATION w ‘>. The death sentence shall be carried out not earlier than ‘Lyear nor more than 18 months after the judgment has become final and executory without prejudice to the exercise by the President of his executive clemency pow- ers atall times. ¢. Persons already sentenced by judgment, which has be- come final and executory, awaiting death by electrocu- tion or gas poisoning shall be covered by that Act. ARTICLE 69 — Total extinction of criminal liabllity ARTICLE 94 — Partial extinction ARTICLE 36 — Pardon by the Chief Executive ARTICLE 23 — Pardon by the Offended 1, Causes of total extinction: Death of conviet (pecuniary liability is extinguished if death occurs before final judgment); b. Service of the sentence; Amnesty; 4. Absolute pardon; e. Prescription of crime; £ & h Prescription of penalty; Marriage of the offended woman under Art. 266-c; Express repeal of penal law (act decriminalized). 2. Partial extinction: a, Conditional pardon; b. Commutation of sentence; Good conduct allowance; 4. Parole under the ISLAW; fe. Probation under PD 968; £ Implied repeal or amendment of penal law lowering the penalty,us (COMPREHENSIVE REVIEWER IN CRIMINAL LAW 3. Death of convict extinguishes criminal liability at any stage of the proceeding; civil liability if death occurs before final judgment. The reason is that the penalty.requires personal service of sentence. If death occurs there will be nobody to serve the penalty for the crime. (People vs. Bayotas, Septem- ber 1994) “Final” judgment refers to executory judgment. 4, Civil liability ex-delicto is rooted in the court's pronource- ‘ment of the guilt or innocence of the accused, In such cases, extinction of the criminal action due to the death of the ac- ‘cused pending appeal inevitably ‘the concomitant ‘extinction of the civil lability. The final determination ofthe criminal liability is a condition precedent to the prosecution. of the civil action, hence, when the criminal action is extin- ‘guished by the death of the accused pending appeal thereof, said civil action cannot survive. The claim for civil action survives notwithstanding the death of the accused ifthesame ‘may also be predicated in a source of obligation other than delict (e.g., quasi-delict, law, contract, quasi-contract) (id.) 5, The period of time during which the evader of sentence was at large his four escapes should not be included in the service of his sentence in fixing the date of his release. ‘During that period he cannot be regarded as in service of sentence which consists of deprivation of his liberty. He can- not be said to have been deprived of his liberty during the periods he was at large. Moreover, Article 89 stipulates that ies shall be served in a penal institution, (Martin vs. ‘Eduardo, 121 SCRA) ' 6. Distinguish between amnesty and absolute pardon: AMNESTY PARDON generally to politi- generally to ordi- al crimes and of- nary ctimesand of fenders fenders Effect on convict obliterates the ef- relieves the of- . fects of conviction fender of penalty as if the act were but the effects of not criminal conviction stay Application & PROBATION ™ Congress concurrence concurrence not required needed ‘When given ‘even before convic- after final convic- tion tion ‘Towhom given usually toaclassof to a specific indi- persons vidual Nature public act of the private act of the President President Evidentiary value judicial notice -—-s must be pleaded taken and proved by ac- cused Pardons given by the Chief Executive and as such itis a private act which must be pleaded and proved by the per- s0n pardoned, because the courts takeno notice thereof; while amnesty is by Proclamation of the Chief Executive with the concurrence of Congress, and itis a public act of which the courts should take judicial notice. Pardon looks forward and relieves the offender from the consequences of an offense of which he has been con- ‘victed, that ig, it abolishes or forgives the punishment, and for that reason does ‘not work the restoration of the rightsto hold public office, or the rights of: ranless such rights ‘be expressly restored by the terms of the parson,’ and it ‘in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence’ (Article 26, Revised Penal Code) While amnesty looks backward and abolishes and puts into oblivion the offense itself, it so over- looks and obliterates the offenses with which he is charged that the person released by amnesty stands before the law precisely as though he had commit‘ed no offense. (People vs. Casido, March 1997) ‘The limitations on the pardoning power of the Chief Execs tive are’ a, That the power be exercised after final conviction, ke- cause where the President is not so prevented by the30 (COMPREHENSIVE REVIEWER IN CRIMINALLAW Constitution, not even Congress can impose any restric- tion to prevent a presidential folly; and Before an appellant may be validly granted par- don, he must fist ask for the withdrawal of his appeal, te, the appealed conviction must first be brought to f- nality. b. ‘That such power does not extend to cases of impeach- ment, (People vs. Salle, December 1995) 8 Ajudgment of conviction becomes firal a. When no appeal is seasonably perfected; b. When the accused commences to serve the sentence; c When the right to appeal is expressly waived in writ ing, except where the death penalty was imposed by the trial court; @. When the accused applies for probation, thereby waiv- ing his right to appeal. 9. Pardon of the offended compared with partion by the Chief Executive: a. Executive Pardon extinguishes criminal liability; par- donby the offended doesnot extinguish criminal liabil- ity exceptin Arts, 266-C (Anti-Rape Law) and 344, b. Executive Pardon is granted after final conviction; par- don by the offended must be granted before institution of the action because when the case is finally filed in court, the State is regarded as the primary offended party and the private offended party is relegated to the role of a complaining witnesses. Hence, the prosecu- tion of the case becomes the prerogative of the State. (Under thenew Anti-Rape law however, itappears that the pardon may now be at anytime because the law stated pending action shall be dismissed). c. Executive Pardon cannot extinguish the civil lability _ of offender; the offended may be expressly waive the civil liability. PROBATION 1 10, “An affidavit of desistance is merely an additional ground to ‘buttress the accused’s defenses, not the sole consideration that can result fn acquittal. There must beother circumstances which, when coupled with the retraction or desistance, cre~ ate doubts as to the truth of the testimony given by the wit- nesses at the trial and accepted by the judge. (People vs. Ballabare, November 1996) Denial and alibi cannot outweigh the positive identification and convincing testimanies given by the prosecution. Hence the affidavit of desistance which the victim herself intended to disregard must have no bear- {ng on the criminal prosecution againstthe accused particu- larly on the trial court's jurisdiction over the case. (People -vs. Echegaray, February 1997) 11. There are authorities holding that pardon miust be granted notonly by the parents of an offended minor but also by the minorherself to be effective as an express pardon under Ar ticle 344, (Article 266-C, RA 8953) Thus, People vs. Lacson, Jr, [CA] 55 OG 9460, held the pardon by the parents, standing alone, is inefficacious. Too, the express partion of a person guilty of attempted abduction of a minor, granted by the lat- ter’s parents, is not sulficent to remove criminal responsi- bility, but must be accompanied by the express pardon of * the git! herself. (US vs. Luna, 1 Phil. 361) tn the present case, the supposed pardon of the accused was allegedly granted by the mother without the concurrence of the offended mi- nor. Hence, even if it be assumed that the inital desistance of the mother from taking any action against the accused. constitutes pardon, such pardon is ineffective without the ‘express concurrence of the minor herself. (People vs. Tadulan, April 1997) 12, Prescription of crime refers to the loss of the rightof the State toprosecute offenders, Itcannot be waived or extended since itis for the benefit of the accused. Once prescription has set in, the courts automatically lose jurisdiction. In prescription of crime: a. The basis is the higher penalty ifthere were several.132 14, 15. (COMPREHENSIVE REVIEWER IN CRIMINALLAW b. Running of the period starts from discovery by the of- fended or the authorities or their agents, This list is ex- clusive. c. Therunning of the period is interrupted by the filing of the complaint or information or when the offender is out of the country. 4. The period runs again when the proceedings are termi- nated without acquittal or conviction for reasons not attributable to the offender. Prescription of penalty occurs when the convictescapes from detention or evades the service of his sentence. Evasion of service of sentence is condition precedent to the running of the period. ‘Tolling of period of prescription of penalty occurs when ‘he commits another crime, or is captured or goes to another country with which the Philippineshas no extradition treaty. ‘The law on prescription would be meaningless if the delay in the prosecution of crimes would be fatal to the State and the offended parties. In fixing the different prescriptive peri- ods on the basis of the gravity of the penalty prescribed, the law takes into account or allows reasonable delays in the prosecution thereof. Ina number of cases, a delay of 17 days, 35 days or even 6 months by a victim of rape in reporting the attack on herhonor does not detract from the veracity ofher charge. (People vs. Gecomo, 254 SCRA) It is entirely incorrect to state that only the State is the of- fended party, and therefore, only the State's discovery of the crime could effectively commence the running of the period of prescription. Article 91 of the Code provides that the pe~ riod of prescription shall commence to run from the day on which the crime is discovered by the offended party, the au- thorities, or their agents. This rule makes no distinction be- tween a public crime and a private crime. In both cases then, the discovery may be by the offended party, the authorities, or their agents. (Garcia vs. CA, January 1997) PROBATION rey 16. Article 91 does not define the term offended party. Its defini- tion is in Section 12, Rule 110 of the Rules of Court as ‘the person against whom or against whose property the offense ‘was committed.” More specifically itis easonable to assume the offended party is to whom the offender is civilly liable, in the light of Article 100 of the Code. The private individual to whom the offender is civilly liable is the offended party. (id) 17, Txtps abroad do not constitute the “absence” contemplated in Article 91. 18. If the Civil Code is to be resorted to in the interpretation of the length‘of the month, so should it be resorted to in the computation of the period of prescription. Besides, Article 18 of the Civil Code expressly directs that any deficiency in any special law (such as the Revised Penal Code) must be supplied by its provisions. As the Revised Penal Code is de- ficient in that it does not explicitly define how the period is to be computed, resort must be had toits Article 13, which contains in detail the manner of computing a period. ‘The other question is whether a month mentioned in Asticle 90 should be considered as the calendar month and not the 30-day month. Itis to be noted that no provision of ~ _ theRevised Penal Code defines the length of the month. With the approval of the Civil Code, R.A. 386, a month is to be considered as theregular 30-day month Article 13). This pro- vision of the new Civil Code has been intended for general application in the interpretation of the laws, As the offense in the information in the case at bar took place on May 28, 1958, after the new Civil Code had come into effect, this new provision should apply, and in accordance there: with the month in Article 90 ofthe Revised Penal Code should bbe understood to mean the regular 3¢-day month. (People vs. Del Rosario) . ARTICLE 95 — Conditional pardon 1. Aconditional pardon is in the nature of a contract between the Chief Executive and the convict to the effect that the3 (COMPREMENSIVE REVIEWER IN CRIMINAL LAW former will release the latter subject to the condition that if ‘he does not comply with the terms of the pardon, he will be recomuitted to prison to serve the unexpired portion of the sentence or an additional one. (Alvarez. vs. Dir. Of Prison, 80 Phil. 50) By the pardonee’s consent to the terms stipulated in this contract, the pardonee has thereby placed himself un- der the supervision of the Chief Executive or his delegate who is duty-bound to see to it that the pardonee complies with the terms and conditions of the pardon, Under Sec. 54(1) of the Revised Administrative Code, the Chief Executive is authorized to order “the arrest and re-incarceration of an such person who, in his judgment, shall fail to comply wit the condition, or conditions of his pardon, parole, oF sus- pension of sentence.” (Torres vs. Dir. of Bureau of Correc- ‘tions, December 1995) Conditional pardon can be extended to the convict in three ways: a. ‘Through the operation of the Indeterminate Sentence Law; b. Through the grant of probation under the Probation Law; and Through the exercise of the President motu proprio of the power under the Constitution, conditional pardon, when granted does not extinguish the civil liability arising from the crime, (Mosanto vs. Facloran, Jr, 170SCRA190 [1989]; People vs Nacional, September1995) Itmust be given after FINAL judgment and must be accepted because of the conditions which must be strictly complied with, When conditions violated, the offender is: a. Rearrested and reincarcerated by order of the President under the Revised Administrative Code; OR b. Prosecuted under Art, 159 of the RPC, ‘The exercise of presidential judgment is beyond judicial scru- finy. The determination of the violation of the conditional PROBATION us pardon rests exclusively in the sound judgment of the Chief Executive, The pardonee, having consented to place his Iit- erty on conditional pardon upon the judgment of the power that has grantedit, cannot invoke the aid of the courts, how- ever erroneous the findings may be upon which his recom. ‘mitment was ordered. (Tesoro vs. Dir. of Prisons, 68 Phil. 154) A final jadicial pronouncemert as to the guilt of a pardonee is nota requirement for the President to determine ‘whether or not there has been a breach of the terms of a con ditional pardon. There is likewise nila basis for the courts to effectuate the reinstatement of a conditional pardon revoked. by the Presidentin the exercise of powers undisputedly solely and absolutely lodged in his office. (Torres vs. Dir. of Bureats of Corrections, December 1995) Iematters not that Torres had allegedly been acquitted in two of the three criminal cases fied against him subse- ‘quent to his conditional pardon, and that the third case re- mains pending for thirteen (13) years in apparent violation of hs right to a speedy trial. (id.} 7. Habeas Corpus is not the remedy of the reincarcerated. pardonee, Habeas corpus lies only where the restraint of a ‘person’s liberty has been judicially adjudged as illegal or unlawfal. The incarceration of Torres remains legal consid- ering that, were it not for the grant of conditional pardon which had been revoked because of a breach thereof, the determination of which is beyond judicial scrutiny, he would have served his final sentence for kis first conviction until November 2, 2000. id.) Ultimately, solely vested in the Chief Executive, whoin the first place was the exclusive author af the conditional pardon and of its revocation, is the corollary prerogative to reinstate the pardon if in his own judgment, the acquittal of the pardonee from the subsequent charges filed against him, ‘warrants the same, Courts have no aathority to interfere with the grant by the President of a pardon to a convicted erimi- nal. (id.)136 (COMPREEENSIVE REVIEWERIN CRIMINAL LAW ARTICLE 98 — Deduction for loyalty 1. Leaving without returning within the time period prescribed —1/8 addition to the remaining sentence which should net bemore than 6 months, that is, 1/5 of the balance of the ser- tence to be served or 6 months whichever is lesser. 2. Leaving and thereafter retuming within the time period pre- seribed — 1/5 deduction from his sentence as provided un der Article 98. 3. Not leaving — no deduction for what is given premium is the loyalty shown by returning, not fhe “martyrdom” of not Teaving jail in the face of calamity. tis submitted that the deduction for loyalty under Ar- ticle 98 should be based on the original sentence. As the Ar- ticle did not qualify the word “sentence” unlike in Artide 158 which expressly stated that the sentence to be added shall tbe based on the period “still remaining to be served.” Under the familiar rulein statutory construction, when the law dos not qualify, neither should the court do. Moreover, Article 158 specified that the additional sentence should not exceed 6 months showing the intent of Congress to limit the penalty to the accused, whereas in Article 98, there is no such quali- fication. Finally, the rule is all doubts must be construed in favor ofthe accused. Since itis more favorable to the accused that the lowering is on the basis of the original sentence, then that construction should be followed. ARTICLES 100-113 — Civil liability 1. Every person criminally liable for a felony is also civilly li- able, Civil liability, in case the felony involves death, covers indemnification for consequential damages (Art, 104) includ ing those suffered by his family or third persons by reason of the crime. (Art:107) 2, Acquittal of the accused does not automatically extinguish his civil liability for the quantum of proof in criminal pros- ecttions is different from that in the civil. Acquittal shall bar PROBATION 197 the civil action arising from crime where the judgment of acquittal holds that: é a. The accused did not commit the acts imputed to him; or that b. * He was not guilty of criminal or civil negligence. But, his acquittal will NOT bar a civil actionin the following cases: a, Where the acquittal is based on reasonable doubt as only 1a preponderance of evidence is required in civil cases; b. Where the court declared that accused's liability is not criminal but only civil in nature; c. Where the civil liability does not arise from or is not based upon the criminal act of which the accused was acquitted. . Acquittal of the accused, even if based ora finding that he is rot guilty, does not carry with it the extinction of the civil liability based on quasi-delict. A separate civil action lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, pro- vided that the offended party is not alowed, ifhe is actually charged also criminally to recover damages on both scores. He would then be entitled only to the bigger award in the two cases. In other words, the extinction of civil liability referred to in Rule 111, Sec. 2(b) (Rules of Court) refers exclusively to ‘civil liability founded in Article 100 of the Revised Penal. Code, Whereas the civil lability for the same act considered ‘quasi-delict only and not as a crime is mot extinguished even by a declaration‘in the criminal case that the criminal act charged has not heppened or has not been committed by the accused. ‘The civil case for damages is not barred since the cause of action of the heirs in based on quasi-delict. Even if the dam ages are sought on the basis of crime and not quasi-delict, the ‘acquittal of the bus driver will not bar recovery of damages(COMPREHENSIVE REVIEWER IN CRIMINAL LAW | Decause the acquittal was based not on a finding that he was not guilty but only on reasonable doubt. (Guaring, Jr. vs. CA, March 1997) . What is included in civil liability: a, Restitution . Reparation of damage caused c._ Indemnification for consequential damages Restitution is the return of thing itself whenever possi- ble. Otherwise, reparation ofthe thing should be made. There are only two pecuniary liabilities — Restitution OR repara- tion and indemnification. Reparation shall only be made if restitution is not possible. This is in accord with Article 38, which states that the pecuniary licbilities owing to the of- fended party are reparation of the damage caused and in- dennification of consequential damages. Indemnification for consequential damages shall in- ude not only those caused the injured party, but also those suffered by his family or by a third person by reason of the crime. The Civil Code enumerates those cases when third persons can recover damages by reason of the crime. (Arti- cles 2206, 2219) . . Civil liability in particular cases (101) a. By insane, imbecile, under 9, over 9 but under 15: 1, It devolves upon the person who has control or authority upon them, unless he is without fault or negligence. 2. Intherebeno such person, or ifkieis insolvent, the property of the minor or insane shall answer for the liability except for those exempt froin execu- tion. b. Person who avoided a greater evil or injury (Art. 11, par. 4) — the one who benefited from such avoidance is liable. Itthere were several persons benefited, the court * shall determine their proportionate share, PROBATION 18 ¢. Incase ofiresistible force or unconirollable fear — those ‘who employed the force or caused the fear shall be pri- rarily liable; secondary liability is on the actor. 6. When the commission of a crime results in death, the civil obligations arising therefrom are governed by penal laws, subject to the provisions of Art. 2177, and of the pertinent provisions of Chapter 2, Preliminary Title on Human Rela- tions, and of TitleXVII of Book IV, regulating damages. (Art 1161, Civil Code) Thus: 2. Asindemnity for the death of the victim of the offense —P12,000 {now P50,000], without the need on any evi- dence or proof of damages, and even though there may have been mitigating circumstances attending the com- mission of the crime, b. _Asindemnity for loss of earning capacity of the deceased —an amount tobe fixed according to the circumstances of the deceased related to his actual income at the time of death and his probable life expectancy, the said in- demnity to be assessed and awarded by the court as a matter of duty, unless the deceased had no earning ce pacity at said time on account of permanent disability not caused by the accused. If the deceased was obliged ~ to give support, under Art. 291, Civil Code, the recip. ‘ent who is not an heir, may demand support from th= accused fornot more than five years, the exact duration, to be fixed by the court. c Asmoral damages for mental anguish —an amount to be fixed by the court. This may be recovered even by the illegitimate descendants and ascendants of the de- ceased. 4. Asexemplary damages, when the crime is attended by one or more aggravating circumstances — an amount to be fixed in the discretion of the court, the same to be considered separate from fines. e. As attorney's fees and expenses of litigation — the ac- tual amount thereof, (but only when a separate civilMo (COMPREHENSIVE REVIEWER IN CRIMINALLAW action to recover civil liability has been filed or wen exemplary damages are awarded), £ _ Interestsin proper casés. The recovery of attorney's fees in the concept of actual or compensatory damage is allowed under the ‘Grcumstances provided for in Article 2208 of the Cvil ‘Code, one of which is when the court deems itsjust and equitable that attorney’s fees and expensesiof litigation eam @eople vs. Bergante, February27, 1998) io Inaddition tothe above, actual damages for hospitalization/ funeral expenses which should be proved by receipts. In a case, however, the reason Arlene's father was unable to present the receipt for the funeral parlor was because the latter's representative refused to issue a receipt until he had fully paid the entire amount, which he had not done at the time of the trial, Under Art. 2224 of the Civil Code, temper- ate damages may be recovered if itis shown that such perty suffered some pecuniary loss but the amount cannot, from the nature of the case, be approved with certainty. As there isno doubt the heirs of the victim incurred funeral expenses, although the amount thereof has not been proved, itis ap- propriate to award P15,000.00 by way of temperate damages to the heirs of the victim. (People vs. Principe, G.R. No. 135862, May 2, 2002) tis error for the judge to lump all the award of damages in ‘one because the moral, actual, exemplary, etc. damages are of different nature and are founded on different considera- tions, ‘Some doctrinal pronouncements on damages: a. The indemnities for loss of earning capacity of the de- ceased and for moral are recoverable sepa- rately from and in addition to the fixed sum of P50,000 to the indemnity for the sole factof death, and that these damages may, however, be respectively increased or lessened according to the mitigating or aggravating circumstances. (People vs. Techarikee, Jr, October 1995) ‘The lower court however erred in categorizing the award of P50,000 to the offended party as moral dam- ages. In Gertentiza January 1998] the indemnity catego tized as civil lability ex delicto for the offended party, in the afnount authorized by the prevailing judicial policy and aside from other proven actual damages, is itself equivalent to actual or comy ‘damages in civil law, Its not to be considered as moral damages there- under, the latter being based on different jural founda tions and assessed by the court in the exercise of sound discretion. (People vs. Victor, July 1998) Indictments for rape continue unabated and the legis- lative response has been in the form of higher penal- ties, On like considerations, the urisprudential pathan the civil aspect should also follow the same direction. Hence, starting with the case at bar, if the crime of rape is committed or effectively qualified by any of the cx- cumstances under which the death penalty is author- ized by the present amended law, the indemnity for the victim shall be in the increased amount of not less than 75,000. This is not only a reaction to the apathetic societal perception of the penal law and the financial fluctuations over time, but also en expression of the dis- pleasure of the court over the incidence of heinous crimes against chastity.(Id.) In Rape, civil indemnity to the offended woman for the wrong done to her is separate and distinct from the award of moral damages. The indemnity provided in criminal law as civil liability isthe equivalent of actual or compensatory damages in civil law, and is distinct from moral damages. As currently fixed, the indemnity for rape is P50,000.00; but if qualified by any of the cir- cumstances which would justify the imposition of the death penalty, the indemnity shall be not less than P75,000.00. (People vs. Malapo, 123115, August 25, 1988)cred (COMPREHENSIVE REVIEWER IN CRMINALLAW In Zulueta vs. Pan Am (43 SCRA), the award for moral damages was reduced because the plaintiff contributed to the gravity of the defendant's reaction. In the case at bar, the victims not only contributed but they actually provoked the attack by damaging appellant's property and business. Considering appellant's standing in the ‘community, being married toa municipal councilor, the victims’ actuations were designed to humiliate him and destroy his reputation, Thus, the moral and material suffering of the appellant and his family deserves leni- ency as to his civil lability. (People vs. Narvaez, supra.) ‘Where the crime resulted in the death of the victim, the civil indemnity granted by the Court has commonly ‘been P50,C00, in the absence of unusual circumstances warranting a higher indemnity, In the instant case, a heavier indemnity is appropriate, bearing in mind the tender age of the victim and the close blood relation- ship (uncle and niece) that existed between appellant and the victim. These circumstances indicate an unu- sual degree of moral depravity. Accordingly, exemplary damages of P20,000 and moral damages of P30,000, ia addition to the regular indemnity for death of P50,0(0 is proper. (People vs. Remolle, October 1993) Under Article 2229 of the Civil Code, in addition to the award of moral damages, exemplary or corrective dam- ‘ages may be adjudged in order to deter the commission of similar acts in the future. The award for exemplary damages is designed to permit the courts!to mould behavior that has socially deleterious consequences. Its imposition is required by public policy to suppress the ‘wanton acts of an offender. Appellants unprovoked aggression snuffed the life of “Maree, a iin the prime of her youth, Maureen an compenions were down by in eee fering of his victims and their families, Considering the ‘soaring crime rate, the imposition of exemplary dam- PROBATION 1% ages o deter others from taking thelives of people with- out any sense of sin is proper. Moreover, since the kill- ‘ing was attended by treachery and pursuant to Art. 2229 of the New Civil Code P2,000,000 pesos as exemplary damages is awarded. (People vs, “echankee, Jr,, Octo- ber 1995) i. Theloss or damage that dependen's and intestate heirs of the deceased may sustain by reason of the latter’s death is not the full amount of the deceased earnings, but the support they received or would have received from him had he not died. (People va. Alvero, June 1993) j_ The civil indemnity which, by reason of the added re- ugnance of the bestial act being committed on a preg- nant woman in the presence of her husband, is increased 0 P50,000.00 or each rape committed. (People vs. Reyes, July 1995) The offended party in the crime of rape is entitled to moral damages in the amount of at least 50,000.00. Where multiple rapes were committed, as where the victim suffered four rapes by four men, the victim should be awarded no less than the amount of 'P200,000.00 as moral damages. (People vs. Malapo,G.R. No. 123115, August 25, 1988) 10. Without a special power of attorney, the counsel for the ac- ‘cused cannot bind nor compromise his clients civil liability. Both Art. 1878 of the Civil Code and Sec. 25 of Rule 138 of the Rules of Court require a special authority from the client tovalidly compromise the client's civil liability. That the trial court approved the compromise did not legalize it for being violative of law and jurisprudence. (People vs. Carpo, etal, April 4, 2001) IL. Article 345 provides that persons guilty of rape, seduction or abduction, shall be sentenced fo: (a) indemnify the of- fended woman; (b) acknowledge the offspring, unless the Jaw should prevent him from doing so;and (c) in every case to support the offspring. Under Article 283 of the Civil Code, the father is obliged to recognize the child as his natural child in cases of rape, abduction, and seduction when the periodrr 2 2B. (COMPREHENSIVE REVIEWER IN CRIMINAL LAW of the offense coincides, more or less, with the period of con- ception. It has been held, howeves that acknowledgment is disallowed ifthe offender is a married man, with only sup- port for the offspring as part of the sentence, Acticle 176 of the Family Code confers parental author- ity over illegitimate children’ on the mother and likewise pro- vides for their entitlement to’ support in conformity there- with, As such there is no more need for the prohibition against acknowledgment of the offspring of the offender who is a married man which would vest parental authority in him. ‘Therefore, under Article 345, the offender in a rape case who is married can only be sentenced to the victim and support the offspring, if therebe any. In the instant case then, the accused should also be ordered to support hisille- gitimate offspring but in the light of Article 201 of the Fam- ily Code, theamount and terms thereof are tobe determined by the trial court only after due notice and hearing. (People vs, Bayani, October 1996) Compulsory acknowledgment, as well as the support of the child is indeed proper there being no legal impedi- ‘ment in doing so, as it appears that complainant and appel- lant are both single. The crime of rape committed by the ac- cused carries with it, among others, the obligations to ac- knowledge the offspring if the character of its origin does not prevent it and to support the same. (People vs. Luchico, 49 Phil. 689; People vs. Namayan, July 95) Persons subsidiarily liable: Innkeepers, tavern-keepers and proprietors of estabiish- ments (102); b. Employers, teachers, persons, and corporations engeged in any kind of industry (103). ‘The basis of subsidiary liability is the employer-employee relationship. The employer should be engaged in any kind of industry which means an undertaking for profit where labor and capital are utilized. 1A. A separate action against the employer for civil Hability is Af Recessay becntve the latter's Haoity forthe employ- e's crime is absolute as long as the following conditions are present: a, The employer-employee relationship is established; b. The crime was committed by the accused during the performance of his assigned task; The employer is engaged in an industry; 4. The accused was convicted and civil liability goes with the conviction. (If the employee died and hence could not be sued, the action must be pursued under the Civil +s Code); . Judgment was final and executory but the writ of ex- Oey vas resumed uncetslel because the acised have no property. The offended should then file a mo- tion for the issuance of a ‘wait of execution ‘with notice to the employer so that the latter may be heard thereon. 15. ‘Theenforcement of subsidiary liability in the same criminal proceedings is sanctioned on the thesis that it really is a part of, and merely an incident in, the execution process of the judgment. But execution against the employer must notis- Larabee asd rat ceateenety solve in a hearing set for the purpose applicability and propriety of the employer’s liability. This is mandatory even when it appears prima face that execution against the ‘employee cannot be satisfied. The Court must convince it- self that the convicted employee isin truth in the employ of the employer; that the latteris engaged in an industry ofsome ind; that the employee has committed the crime to which civil liability attaches while in the performance of his duty as sucky and that execution against the employee is unsuc- ‘cessful by reason of insolvency. (Yonaha vs. CA, March 1996) 16, It isa basic postulate in criminal law that the criminal act of ‘one person cannotbe charged to another without a showing, that he participated directly or constructively in the actor46 (COMPREHENSIVE REVIEWERIN CRIMINALLAW that there was conspiracy. In cases of employer-employee relations, an employer is not criminally liable for the-acts of his employee or agent unless he, if some ways, participates, ih, counsels or abets his employee's acts or omissions. Insuch. ‘case, the employer himself becomesa participant o the crimi- nal act ofhis employee. His liability under the circumstances, is direct and criminal. However, under Article 102, in rela- tion to Article 103, the employer's liability for the criminal negligence of his employee is subsidiary. in nature andis lim ited only to civil indemnity. (Fernando vs. Ocampo, 37 SCRA 311) Thus, an employer is party toa criminal case for the criminal negligence of his employee by reason of hid sub- airy civil liability under the law. (Yusay vs. Adil, 164SCRA 494) “TITLE! CRIMES AGAINST NATIONAL SECURITY i a i Treason Coinspiracy and proposal to commit treason. Misprision of treason Espionage Inciting to war and giving motives for reprisal Violation of neutrality Correspondence with hostile country Flight to enemy country Piracy and mutiny 2. Crimes againstnational sécurity are committed during a state er of war except for: . & Espionage b. Inciting to war or giving motives for reprisal Violation of neutrality 4. Mutiny and piracy 3. Rebellion is included in the Revised Penal Code in erfmes against public order thus it excluded from the extra tertito- tion of the Code under Article 2. ARTICLES 114-117 1. A citizen owes nota qualified of temporaryput an absohate and permanent allegiance, allegiance being the obligation of fidelity aid obedience to the government in retum to the “7