12th Reading Assignment

MITIGATING CIRCUMSTANCES

 Definition – Those circumstance which reduce the penalty of a crime

 Effect – Reduces the penalty of the crime but does not erase criminal
liability nor change the nature of the crime

Article 13. Mitigating circumstances. --

1. Those mentioned in the preceding chapter, when all the requisites necessary
to justify the act or to exempt from criminal liability in the respective cases are
not attendant

Justifying circumstances

a. Self-defense/defense of relative/defense of stranger – unlawful aggression

must be present for Art 13 to be applicable. Other 2 elements not necessary. If 2
requisites are present – considered a privileged mitigating circumstance.

Example: Juan makes fun of Pedro. Pedro gets pissed off, gets a knife and tries to
stab Juan. Juan grabs his own knife and kills Pedro. Incomplete self-defense
because although there was unlawful aggression and reasonable means to repel
was taken, there was sufficient provocation on the part of Juan. But since 2
elements are present, it considered as privileged mitigating.

How, if at all, may incomplete self-defense affect the criminal liability of the
offender?

If the question specifically refers to incomplete self-defense, defense of relative

or defense of stranger, you have to qualify your answer.

First, to have incomplete self-defense, the offended party must be guilty of

unlawful aggression. Without this, there can be no incomplete self-defense,
defense of relative, or defense of stranger.

Second, if only the element of unlawful aggression is present, the other requisites
being absent, the offender shall be given only the benefit of an ordinary mitigating
circumstance.
Third, if aside from the element of unlawful aggression another requisite, but not
all, are present, the offender shall be given the benefit of a privileged mitigating
circumstance. In such a case, the imposable penalty shall be reduced by one or
two degrees depending upon how the court regards the importance of the
requisites present. Or absent.

b. State of Necessity (par 4) avoidance of greater evil or injury; if any of the last 2
requisites is absent, there’s only an ordinary Mitigating Circumstance.

Example: While driving his car, Juan sees Pedro carelessly crossing the street. Juan
swerves to avoid him, thus hitting a motorbike with 2 passengers, killing them
instantly. Not all requisites to justify act were present because harm done to
avoid injury is greater. Considered as mitigating.

c. Performance of Duty (par 5)

Example: Juan is supposed to arrest Pedro. He thus goes to Pedro’s hideout. Juan
sees a man asleep. Thinking it was Pedro, Juan shot him. Juan may have acted in
the performance of his duty but the crime was not a necessary consequence
thereof. Considered as mitigating.

Exempting circumstance
a. Minority over 9 and under 15 – if minor acted with discernment, considered

Privilege mitigating

Example: 13 year old stole goods at nighttime. Acted with discernment as shown
by the manner in which the act was committed.

If the offender is proven to have acted with discernment, this is where the court
may give him the benefit of a suspended sentence. He may be given the benefit of
a suspended sentence under the conditions mentioned earlier and only if he would
file an application therefor.

b. Causing injury by mere accident – if 2nd requisite (due care) and 1st part of 4th
requisite (without fault – thus negligence only) are ABSENT, considered as
mitigating because the penalty is lower than that provided for intentional felony.
Example: Police officer tries to stop a fight between Juan and Pedro by firing his
gun in the air. Bullet ricocheted and killed Petra. Officer willfully discharged his
gun but was unmindful of the fact that area was populated.

c. Uncontrollable fear – only one requisite present, considered mitigating

Example: Under threat that their farm will be burned, Pedro and Juan took turns
guarding it at night. Pedro fired in the air when a person in the shadows refused
to reveal his identity. Juan was awakened and shot the unidentified person.
Turned out to be a neighbor looking for is pet. Juan may have acted under the
influence of fear but such fear was not entirely uncontrollable. Considered
mitigating.

2. That the offender is UNDER 18 YEARS of age or OVER 70 YEARS. In the case of
a minor, he shall be proceeded against in accordance with the provisions of Art
192 of PD 903

Applicable to:
a. Offender over 9, under 15 who acted with discernment

b. Offender over 15, under 18

c. Offender over 70 years

 Age of accused which should be determined as his age at the date of

commission of crime, not date of trial

 Various Ages and their Legal Effects

a. under 9 – exemptive circumstance

b. over 9, below 15 – exemptive; except if acted with discernment

c. minor delinquent under 18 – sentence may be suspended (PD 603)

d. under 18 – privileged mitigating circumstance

e. 18 and above – full criminal responsibility

 f. 70 and above – mitigating circumstance; no imposition of death penalty;
execution of death sentence if already imposed is suspended and
commuted.

If the minor acted with discernment( age 9-15 ), he is entitled to a privileged

mitigating circumstance and by source of authority of Article 68, the
penalty is reduced by two degrees from that prescribed by law for the
crime committed. If the offender is over fifteen and under eighteen years of
age, discernment is no longer in issue but the offender is entitled to a
privileged mitigating circumstance and the reduction is only by one degree.
(Garcia vs. Madrigal, 857 Phil. 651)

3. That the offender had no intention to commit so grave a wrong as that

committed (Praeter Intentionem)

Can be used only when the facts prove to show that there is a notable and
evident disproportion between means employed to execute the criminal act and
its consequences

Intent is an indispensable element of the crime. When the intent is less than the
actual act committed, reason and fair play dictate that a mitigated responsibility
be imposed upon the offender.

Example: Pedro stabbed Tomas on the arm. Tomas did not have the wound
treated, so he died from loss of blood.

 Not applicable when offender employed brute force

Example: Rapist choked victim. Brute force of choking contradicts claim
that he had no intention to kill the girl.

 Art 13, par 3 addresses itself to the intention of the offender at the
particular moment when he executes or commits the criminal act, not to
his intention during the planning stage.
 In crimes against persons – if victim does not die, the absence of the intent
to kill reduces the felony to mere physical injuries. It is not considered as
mitigating. Mitigating only when the victim dies.

Example: As part of fun-making, Juan merely intended to burn Pedro’s

clothes. Pedro received minor burns. Juan is charged with physical injuries.
Had Pedro died, Juan would be entitled to the mitigating circumstance.

 Not applicable to felonies by negligence. Why? In felonies through

negligence, the offender acts without intent. The intent in intentional
felonies is replaced by negligence, imprudence, lack of foresight or lack of
skill in culpable felonies. There is no intent on the part of the offender
which may be considered as diminished.

 Basis of par 3: intent, an element of voluntariness in intentional felony, is

diminished Praeter intentionem

The common circumstance given in the bar of praeter intentionem, under

paragraph 3, means that there must be a notable disproportion between
the means employed by the offender compared to that of the resulting
felony. If the resulting felony could be expected from the means employed,
this circumstance does not avail. This circumstance does not apply when
the crime results from criminal negligence or culpa. When the crime is the
product of reckless imprudence or simple negligence, mitigating
circumstances does not apply. This is one of the three instances where the
offender has performed a felony different from that which he intended.
Therefore, this is the product of intentional felony, not a culpable one.

4. That the SUFFICIENT PROVOCATION OR THREAT on the part of the

offended party immediately preceded the act.

 Provocation – any unjust or improper conduct or act of the offended

party, capable of exciting, inciting or irritating anyone.
 Basis: diminution of intelligence and intent
Requisites:

a. Provocation must be sufficient.

1. Sufficient – adequate enough to excite a person to commit the wrong

and must accordingly be proportionate to its gravity.

2. Sufficiency depends on:

 the act constituting the provocation

 the social standing of the person provoked
 time and place provocation took place

Example: Juan likes to hit and curse his servant. His servant
thus killed him. There’s mitigating circumstance because of
sufficient provocation.

When it was the defendant who sought the deceased, the

challenge to fight by the deceased is NOT sufficient
provocation.

b. It must originate from the offended party

Why? Law says the provocation is “on the part of the offended
party”

Example: Tomas’ mother insulted Petra. Petra kills Tomas

because of the insults. No Mitigating Circumstance because it
was the mother who insulted her, not Tomas.

Provocation by the deceased in the first stage of the fight is

not Mitigating

Circumstance when the accused killed him after he had fled

because the deceased from the moment he fled did not give
any provocation for the accused to pursue and attack him.

c. Provocation must be immediate to the act., i.e., to the commission of the

crime by the person who is provoked
 Why?

If there was an interval of time, the conduct of the offended

party could not have excited the accused to the commission of
the crime, he having had time to regain his reason and to
exercise self-control.

Threat should not be offensive and positively strong because if

it was, the threat to inflict real injury is an unlawful aggression
which may give rise to self-defense and thus no longer a
Mitigating Circumstance

5. That the act was committed in the IMMEDIATE VINDICATION OF A GRAVE

OFFENSE to the one committing the felony (delito), his spouse, ascendants,
descendants, legitimate, natural or adopted brother or sisters, or relatives by
affinity within the same degree.

This has reference to the honor of a person. It concerns the good names and
reputation of the individual. (Pp vs. Anpar, 37 Phil. 201)

1. Requisites:

  there’s a grave offense done to the one committing the felony etc.
  that the felony is committed in vindication of such grave offense.
 Lapse of time is allowed between the vindication and the one doing the
offense (proximate time, not just immediately after)

Example: Juan caught his wife and his friend in a compromising situation.
Juan kills his friend the next day – still considered proximate.

6. That of having acted upon an impulse so powerful as naturally to have

produced PASSION OR OBFUSCATION

Passion and obfuscation refer to emotional feeling which produces excitement so

powerful as to overcome reason and self-control. It must come from prior unjust
or improper acts. The passion and obfuscation must emanate from legitimate
sentiments.
  Passion and obfuscation is mitigating: when there are causes naturally
producing in a person powerful excitement, he loses his reason and self-
control. Thereby dismissing the exercise of his will power.

 PASSION AND OBFUSCATION are Mitigating Circumstances only when the

same arise from lawful sentiments (not Mitigating Circumstance when done
in the spirit of revenge or lawlessness)

 Requisites for Passion & Obfuscation

a. The offender acted on impulse powerful enough to produce passion or

obfuscation

b. That the act was committed not in the spirit of lawlessness or revenge

c. The act must come from lawful sentiments

 Act which gave rise to passion and obfuscation a. That there be an act,
both unlawful and unjust

7. That the offender had VOLUNTARILY SURRENDERED himself to a person in

authority or his agents, or that he had VOLUNTARILY CONFESSED HIS GUILT
before the court prior to the presentation of the evidence for the prosecution.

Mitigating Circumstances present:

1. a)  voluntarily surrendered
2. b)  voluntarily confessed his guilt

If both are present, considered as 2 independent mitigating circumstances.

Mitigate penalty to a greater extent
Requisites of voluntary surrender:

a)   offender not actually arrested

b)   offender surrendered to a person in authority or the latter’s

agent

c)   surrender was voluntary

 Surrender must be spontaneous – shows his interest to surrender

unconditionally to the authorities

Example: Surrendered after 5 years, not spontaneous anymore.

Example: Surrendered after talking to town councilor. Not V.S. because
there’s an external stimulus

 Conduct must indicate a desire to own the responsibility

 Not mitigating when warrant already served. Surrender may be considered

mitigating

if warrant not served or returned unserved because accused can’t be

located.

 Surrender of person required. Not just of weapon.

9. Such ILLNESS of the offender as would diminish the exercise of the will-
power of the offender w/o depriving him of consciousness of his acts.

Basis: diminution of intelligence and intent

Requisites:

a)  illness of the offender must diminish the exercise of his will-power

 b)  such illness should not deprive the offender of consciousness of
his acts If the illness not only diminishes the exercise of the
offender’s will

 power but deprives him of the consciousness of his acts, it becomes an

exempting circumstance to be classified as insanity or imbecility.

deceased mind, not amounting to insanity, may give place to mitigation

10. And ANY OTHER CIRCUMSTANCE of a similar nature and analogous to those
above-mentioned

Examples of “any other circumstance”:

a)  defendant who is 60 years old with failing eyesight is similar to a case of

one

over 70 years old

b)  outraged feeling of owner of animal taken for ransom is analogous to

vindication of grave offense

c)  impulse of jealous feeling, similar to PASSION AND OBFUSCATION

d)  voluntary restitution of property, similar to voluntary surrender

e)  extreme poverty, similar to incomplete justification based on state of

necessity

f)  esprit de corps is similar to passion or obfuscation

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