CRIMINAL LAW I

Definition

Criminal law is that branch or division of public law which defines crimes, treats of their nature,
and provides for their punishment.

Crime is defined as an act committed or omitted in violation of public law forbidding or

commanding it. It is a positive or negative act in violation of penal law; an offense against the
state. (Black’s Law Dictionary)

Accused is a person formally charged in court for having violated a penal law – either the
Revised Penal Code or a special law; a person against whom an accusation is made. (Black’s
Law Dictionary)

Sources of Philippine Criminal Law

1. The Revised Penal Code (Act No. 3815) which took effect on January 1, 1932, and its
amendments;
2. Special laws defining acts and providing penalties for them passed by the legislative
department or branch of Philippine Government known variously in Philippine history as
Philippine Commission, Philippine Assembly, Philippine Legislature, National
Assembly, Batasang Pambansa and Congress of the Philippines;
3. Presidential Decrees of Pres. Ferdinand E. Marcos during his term; and
4. Executive Orders of former Pres. Corazon C. Aquino during her incumbency.

Rights of the Accused

A. Constitutional Rights
1. Right to bail except those charged with offenses punishable by reclusion perpetua
(and/ or death) when evidence of guilt is strong. (Sec. 13, Art. III)
2. To be presumed innocent until the contrary is proved, to be heard by himself and
counsel, to be informed of the nature and cause of the accusation against him, to
have a speedy, impartial and public trial, to meet the witnesses face to face, and
the right to compulsory process to secure attendance of witnesses, and production
of evidence. (Sec. 14, Art. III)
3. Not to be compelled to be a witness against himself. (Sec. 17, Art. III)
4. Right against excessive fines or cruel, degrading or inhuman punishment. (Sec.
19, Art. III)
5. Right not to be put twice in jeopardy of punishment for the same offense. (Sec. 2,
Art. III)
B. Statutory Rights
1. To be presumed innocent until the contrary is proved beyond reasonable doubt.
2. To be informed of the nature and cause of accusation against him.
3. To be present and defend in person and by counsel at every stage of the
proceedings; to defend himself in person when it sufficiently appears to the court
that he can protect his rights without the assistance of counsel.
4. To testify as a witness in his own behalf.
5. To be exempt from being compelled to be a witness against himself.
6. To confront and cross-examine the witnesses against him.
7. To have a compulsory process issued to secure the attendance of witnesses and
production of other evidence in his behalf.
8. To have a speedy, impartial and public trial, and
9. To have the right to appeal in all cases allowed and in the manner prescribed by
law. (Sec. 115, Rules of Court)

• It must be taken note of that the right to appeal is not a constitutional right. Congress may
therefore pass a law eliminating or taking away this right.
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3 Main Characteristics or Components of Philippine Criminal Law

1. General
-meaning that Philippine criminal laws are binding on all persons who live or sojourn in
the Philippines. Whoever you are, whatever be your creed, religion, sex or nationality, as
long as you reside in the Philippine territory, penal laws of the Philippines shall apply on
you. Thus, the contention of the accused that being an American citizen he can not be
prosecuted for, much less convicted of, Illegal Possession of Firearm because it is a
constitutional right of the citizens of the U.S.A. “to keep and bear arms” without need of
securing government license therefore is untenable since the Philippines, as a sovereign
state, has a right to uphold its law and maintain order within its domain, and with the
general jurisdiction to punish persons for offenses committed within its territory. (People
vs. Galacgac, C.A. 54 O.G. 1027)

Exceptions to the general application of criminal law:

A. Principles of Public International Law

Thus, sovereigns and other chiefs of state, Ambassadors, Ministers plenipotentiary,

Minister residents, and charges d’affaires even if residing or sojourning in the
Philippines, and committing crimes herein are not subject to our penal laws.

B. Treaties or Treaty Stipulations

The persons who are exempted from the operation or application of our criminal laws
under the provisions of the treaties entered into by the Philippines with another
country are likewise exempted. Under the defunct Military Bases Agreement entered
into by Philippines and U.S.A. on March 14, 1947- any offense committed outside the
bases by any member of armed forces of the United States where the offended party
is also a member of the said armed forces is not cognizable by Philippine courts.

C. Laws of Preferential Application

An example is Sec. 11 of Art. VI of the Constitution which provides that “No

member shall be questioned nor be held liable in any other place for any speech or
debate in Congress or in any committee thereof”. Thus, if Senator A delivers a
libelous speech in Congress against B, he can not be punished or be held liable even
if he is residing in the Philippines.

2. Territorial

-in that our criminal law undertakes to punish crimes committed only within the
Philippine Territory. Outside of the parameters of the Philippine archipelago, Philippine
criminal laws can not be enforced.

There are exceptions however. Under Art. 2 of the Revised Penal Code, there are five (5)
instances where the provisions shall be enforced outside of the jurisdiction of our country
against those who:

A. Should commit an offense while on a Philippine ship or airship.

B. Should forge or counterfeit any coin or currency note of the Philippines or obligations
and securities issued by the Government of the Philippines.
C. Should be liable for acts connected with the introduction into the Philippines of the
obligations and securities mentioned in the preceding number.
D. While being public officers or employees, should commit an offense in the exercise of
their functions; or

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 E. Should commit any of the crimes against national security and the law of nations
defined in Title One of Book Two of this Code. [Treason, Conspiracy and Proposal to
Commit Treason, Espionage, Mutiny, Rebellion, Conspiracy to Commit Rebellion,
Sedition, Coup d’ etat]

3. Prospective

-meaning that a penal law can not make an act punishable when it was not punishable
when committed. In other words, crimes are punished under the laws in force at the time
the same were perpetrated. It is in consonance with the constitutional prohibition against
Ex Post Facto Law. It reflects the maxim: nullum crimen sine poena; nulla poena sine
lege- that is, there is no crime without a penalty and there is no penalty without law.

Exception however is provided by for by Article 22. It says:

Penal laws shall have a retroactive effect insofar as they favor the person guilty of
a felony who is not a habitual criminal, as this term is defined in Rule 5 of Article
62 of this Code xxx.

The retroactive effect shall benefit the accused even if at the time of the publication of the
law, a final judgment has been pronounced and the convict is serving sentence.

Even if the law uses the words “felony” and “habitual criminal as this term is defined in
Rule 5 of Article 62”, this is applicable to special laws which provide more favorable
conditions to the accused. (People vs. Soliman)

The retroactive effect shall benefit the accused even if at the time of the publication of the
law, a final judgment has been pronounced and the convict is serving sentence.

There is no retroactive effect however, even if the law is favorable to the accused if he is
a habitual delinquent or where the law is expressly made inapplicable to pending actions.
(Tavera vs. Valdez)

INTERPRETATION IN CASE OF DOUBT

Where doubt exists, the penal law must be interpreted liberally in favor of the accused
and strictly against the state.

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 AN ACT REVISING THE PENAL CODE AND OTHER PENAL LAWS
(December 8, 1930)

Preliminary Article — This law shall be known as "The Revised Penal

Code."

BOOK ONE
GENERAL PROVISIONS REGARDING THE DATE OF
ENFORCEMENT AND APPLICATION OF THE PROVISIONS
OF THIS CODE, AND REGARDING THE OFFENSES, THE
PERSONS LIABLE AND THE PENALTIES

Preliminary Title

DATE OF EFFECTIVENESS AND APPLICATION

OF THE PROVISIONS OF THIS CODE

Article 1. Time when Act takes effect. — This Code shall take effect on the
first day of January, nineteen hundred and thirty-two.

Art. 2. Application of its provisions. — Except as provided in the treaties and

laws of preferential application, the provisions of this Code shall be
enforced not only within the Philippine Archipelago, including its
atmosphere, its interior waters and maritime zone, but also outside of its
jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or airship
2. Should forge or counterfeit any coin or currency note of the Philippine
Islands or obligations and securities issued by the Government of the
Philippine Islands;
3. Should be liable for acts connected with the introduction into these
islands of the obligations and securities mentioned in the presiding number;
4. While being public officers or employees, should commit an offense in the
exercise of their functions; or
5. Should commit any of the crimes against national security and the law of
nations, defined in Title One of Book Two of this Code.

Title One
FELONIES AND CIRCUMSTANCES
WHICH AFFECT CRIMINAL LIABILITY
Chapter One
FELONIES

Art. 3. Definitions. — Acts and omissions punishable by law are felonies

(delitos).
Felonies are committed not only be means of deceit (dolo) but also by means
of fault (culpa).
There is deceit when the act is performed with deliberate intent and there is
fault when the wrongful act results from imprudence, negligence, lack of
foresight, or lack of skill.

Discussion:
• Felonies are acts and omissions punishable by law. (Art. 3, par.1). They

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 are committed not only by means of deceit (dolo)- that is when the act is
performed with deliberate intent, but also by means of fault (culpa)
meaning, when the wrongful act results from imprudence, negligence,
lack of foresight, or lack of skill. (Art. 3, pars. 2 and 3)
• Felonies take the form of a positive act- like killing a person- Homicide
or Murder, or taking unlawfully personal property- Theft or Robbery, or
an omission or failure to perform an act, like failure to issue a receipt of
a public officer entrusted with collection of taxes (Illegal Exaction) or
failure to deliver within the prescribed time a person arrested (Delay in
the Delivery of Detained Person). In felony by omission however, there
must be a law requiring the doing or the performance of an act. Thus,
mere passive presence at the scene of a crime, mere silence and failure to
give the alarm, without evidence of agreement or conspiracy is not
punishable. Where therefore R, about a meter away from M, her live-in
partner, did not do anything despite M’s threat that he would burn the
house which he actually put on fire, she can not be held criminally liable
with M, there being no proof of conspiracy between them. (People vs.
Silvestre & Atienza)

CLASSIFICATION OF FELONIES

A. According to manner or mode of execution (Art. 3)

1. Intentional Felonies- committed by means of deceit or malice
Example: Murder, Estafa
2. Culpable Felonies- where the wrongful acts result from imprudence,
negligence, lack of foresight or lack of skill
Example: Homicide thru Reckless Imprudence or Reckless
Imprudence resulting to Homicide

B. According to stage of execution (Art. 6)

1. Consummated- when all the elements necessary for its execution and
accomplishment are present
2. Frustrated- when the offender performs all the acts of execution
which would produce the felony as a consequence but which
nevertheless do not produce it by reason of causes independent of the
will of perpetrator
3. Attempted- when the offender commences the commission of a
felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause
or accident other than his own spontaneous desistance.

C. According to gravity (Art. 9)

1. Grave felonies- those to which the law attaches the capital
punishment or penalties which in any of their periods are afflictive in
accordance with Art. 25 of the Revised Penal Code

Example: Rape, Parricide

2. Less Grave Felonies- those which the law punishes with penalties
which in their maximum period are correctional.

Example: Attempted Homicide, Illegal Discharge of Firearm

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 3. Light felonies- those infractions of law for the commission of which
the penalty of arresto menor or a fine not exceeding two hundred
(P200.00) pesos, or both, is provided.

Example: Slight Physical Injuries, Alarm and Scandal under Article

155

MALA IN SE AND MALA PROHIBITA, DISTINGUISHED

• Mala in se are crimes which are wrong from their nature, such as murder,
theft, rape, etc., while those that are mala prohibita are wrong, merely
because they are prohibited by statute, like Illegal Possession of Firearm
or violation of the Omnibus Election Law.
• Crimes mala in se are those so serious in their effects on society as to call
for the almost unanimous condemnation of its members, while crimes
mala prohibita are violations of mere rules of convenience designed to
secure a more orderly regulation of the affairs of society.

Art. 4. Criminal liability. — Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful act
done be different from that which he intended.
2. By any person performing an act which would be an offense against
persons or property, were it not for the inherent impossibility of its
accomplishment or an account of the employment of inadequate or
ineffectual means.

Discussion:
INCURRENCE OF CRIMINAL LIABILITY
Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the wrongful act
done be different from that which he intended, and
2. By any person performing an act which would be an offense against
persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or
ineffectual means. (Art. 4)

Three (3) Scenarios Under Paragraph 1 of Article 4

A. Error in personae (mistake in the identity of the victim)
-Two (2) peace officers were ordered to arrest Balagtas, an escaped
notorious convict and proceeding to the latter’s house, saw a man
sleeping with his back towards the door and fired at him but the man
turned out to be Serapio Tecson, the Supreme Court ruled that they are
guilty of murder. (People vs. Oanis, et.al.)

When they fired on the sleeping man without making any inquiry and
believing him to be the notorious escapee, the peace officers were
committing a felony. Their wrongful intent was to hit or kill Balagtas but
the wrongful act that was done was the killing of Serapio Tecson.

B. Aberratio ictus (mistake in the blow)- Thus, if X, intending to kill Y,

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 fired at the latter but the shot hit Y only superficially and killed Z, his
own father, he (X) is criminally liable for Attempted Homicide with
Parricide. When X shot Y, he was perpetrating a felony with the
wrongful intent to kill Y. The wrongful act committed was the killing of
his own father which he never intended.

C. Praeter intentionem (injurious result is greater than that intended)- Thus,

if A slapped his wife who fell on the ground, her head hitting a hard
pavement rendering her unconscious and thereafter died, A is liable for
Parricide. When he slapped his wife, A was committing a felony. His
wrongful intent is only to cause injury but the wrongful act done was
greater- the killing of the spouse.

The wrong done, however, must be the direct and natural consequence of
the felonious act. Stated otherwise, the felony committed must be the
proximate cause of the resulting injury. Proximate cause has been
defined as “that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and
without which the result would not have occurred”. (Vda. De Batacan, et.
Al. vs. Medina)

In Bringas vs. People, et. Al., 125 SCRA 687, where the conductor shouted
“Lusacan, Lusacan” knowing that the train would reach the Lucasan Station full
three (3) minutes more and deceased Martina Bool, a passenger, walked towards
the left front door facing the direction of Tiaong, Quezon carrying a child with
one hand and holding her baggage with another, and when the train that slowed
down suddenly picked up speed causing Martina Bool and the three (3) year old
she was carrying to fall from the door, causing their deaths, the Supreme Court
said:

“The proximate cause of the death of the victims was the premature and
erroneous announcement of the conductor. This announcement prompted
the two (2) victims to stand and proceed to the nearest exit. Without said
announcement, the victims would have been safely seated in their
respective seats when the train jerked as it picked up speed. The
connection between the premature and erroneous announcement of the
accused and the deaths of the victims is direct and natural, unbroken by
any intervening efficient causes.”

Even if other causes cooperated in producing the fatal result as long as the
wound inflicted is dangerous, that is, calculated to destroy or endanger life, the
actor is liable. This is true even though the immediate cause of death was
erroneous or unskilful medical or surgical treatment, refusal of the victim to
submit to surgical operation, or that the deceased was suffering from
tuberculosis, heart disease or other internal malady or that the resulting injury
was aggravated by infection. (U.S. vs. Marasigan, 27 Phil. 504)

There must however be no efficient intervening cause. In U.S. vs. Valdez, it was
ruled that if a person against whom a criminal assault is directed, reasonably
believes himself to be in danger of death or great bodily harm and in order to
escape, jumps into the water, impelled by the instinct of self-preservation, the
assailant is responsible for Homicide- the death resulting from drowning owing

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to his possible inability to swim or the strength of the current. The inability to
swim and the strong current can be considered intervening causes but not
efficient ones since they are not acts or facts absolutely foreign from the
criminal act. On the other hand, in People vs. Rockwell, 39 Mich. 503), an
American case, the assailant was not held responsible for the death of a person
whom he knocked down with his fist but who was jumped on by a nearby horse
killing him, because the act of the horse constitutes an efficient intervening
cause.

Art. 5. Duty of the court in connection with acts which should be repressed
but which are not covered by the law, and in cases of excessive penalties. —
Whenever a court has knowledge of any act which it may deem proper to
repress and which is not punishable by law, it shall render the proper
decision, and shall report to the Chief Executive, through the Department
of Justice, the reasons which induce the court to believe that said act should
be made the subject of legislation.

In the same way, the court shall submit to the Chief Executive, through the
Department of Justice, such statement as may be deemed proper, without
suspending the execution of the sentence, when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive
penalty, taking into consideration the degree of malice and the injury
caused by the offense.

Discussion:
Is there a Common Law Crime in the Philippines?

No, as par. 1 of Art. 5, RPC provides that whenever a court has knowledge of
any act which it may deem proper to repress and which is not punishable by law,
it shall render the proper decision, that is, dismiss the case, and shall report to
the Chief Executive through the Department of Justice, the reasons which
induced the court to believe that said act should be made the subject of penal
legislation.

B.P. Blg. 22 is a product of this article, considering the difficulty of securing a

conviction for Estafa committed by issuing a postdated check under Art. 315,
par. 2[d] since the defense of having been issued in payment of a pre-existing
obligation has always come as a ready-made defense. Under this law, even if the
dishonoured check was issued in payment of a pre-existing obligation, and the
drawer or maker commits no deceit, he is criminally liable.

DUTY OF COURT WHEN PENALTY IS EXCESSIVE

The court shall submit to the Chief Executive through the Department of Justice,
such statement as may be deemed proper, without suspending the execution of
the sentence, when a strict enforcement of the provisions of this Code would
result in the imposition of a clearly excessive penalty, taking into consideration
the degree of malice and the injury caused by the offense.

A daughter who killed her father while he was sleeping because the latter had
raped her, resulting in her pregnancy, should be punished with death by the court

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since Parricide is punishable by reclusion perpetua to death, and there is an
aggravating circumstance of treachery. The ordinary mitigating circumstance of
vindication of a grave offense, or passion or obfuscation will not affect the
imposable penalty as the same is an indivisible penalty. (Art. 63) However, the
judge may write the President of the Philippines for the granting of Executive
Clemency to the poor daughter on account of the circumstances of the case.

In People vs. Veneracion, 249 SCRA 244, it was ruled:

“We are aware of the trial judge’s misgivings in imposing the death sentence
because of his religious convictions. While this Court sympathizes with his
predicament, it is its bounden duty to emphasize that a court of law is no place
for a protracted debate on the morality or propriety of the sentence, where the
law itself provides for the sentence of death as a penalty in specific and well-
defined instances. The discomfort faced by those forced by law to impose the
death penalty is an ancient one but it is a matter upon which judges have no
choice.”

Art. 6. Consummated, frustrated, and attempted felonies. — Consummated

felonies as well as those which are frustrated and attempted, are
punishable.

A felony is consummated when all the elements necessary for its execution
and accomplishment are present; and it is frustrated when the offender
performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of a

felony directly by overt acts, and does not perform all the acts of execution
which should produce the felony by reason of some cause or accident other
than this own spontaneous desistance.

Discussion:
STAGES OF EXECUTION

Felonies could be attempted, frustrated or consummated. It is consummated

when all the elements necessary for its execution and accomplishment are
present. Thus, if A, intending to kill B, shoots the latter to death, the crime is
consummated Homicide or Murder, as the case may be.

A felony is frustrated when the offender performs all the acts of execution which
would produce the felony as a consequence but which nevertheless do not
produce it by reason of causes independent of the will of the perpetrator. In the
example above, if A hit B on a vital portion of the body which injury could
cause the death of B but because of timely medical attention B did not die, this is
a case of Frustrated Homicide or Frustrated Murder.

There is an attempt when the offender commences the commission of a felony

directly by overt acts, and does not perform all the acts of execution which
should produce the felony by reason of some cause or accident other than his

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own spontaneous desistance. So, if in the above-cited example, A shot B but
missed or hit B only on a superficial part of his body which would not cause B’s
death, A is liable only for Attempted Homicide or Attempted Murder. In the
same vein, if A poked a gun at B and squeezed the trigger but it jammed and no
bullet was fired, the attempted stage has been reached.

HOW TO PROPERLY DETERMINE THE STAGE OF EXECUTION

In determining whether the felony is attempted, frustrated or consummated, it is

important to consider (1) the nature of the crime; (2) the elements constituting
the offense; and (3) the manner of committing the same.

Thus, considering the nature of the crime of Arson when a building is set on fire,
it is not necessary that it should be entirely consumed in order to constitute the
consummated stage, nor is it affected by the prompt extinction of the fire. (U.S.
vs. Po Chengco, 23 Phil. 487)

With respect to Theft, the same is consummated once the offender takes or gets
hold of the material possession of the property with intent to gain. It is not
necessary that he able to carry it away. Thus, the accused who abstracted a
leather belt from a Japanese tourist and placed it in the drawer of his desk, he
being an inspector of the Bureau of Customs, is guilty of Consummated Theft
(U.S. vs. Adiao, 38 Phil. 754). So also, where the accused, after untying a
carabao from a tree near the offended party’s house, was apprehended after
pulling the carabao away by about two (2) or three (3) meters, the crime is
Consummated Qualified Theft.

This is to be distinguished from Estafa where damage to the offended party is

one of the elements to consummate it. In U.S. vs. Dominguez, 41 Phil. 408, the
accused, a salesman was held liable only for Frustrated Estafa even if the
proceeds of the sale which he failed to turn over to the cashier was found out to
be in his pocket. There was no damage yet to the owner of the store because of
the timely discovery.

In Robbery with Force Upon Things, where the accused had entered the building
or house, and had removed the property he intended to steal but was
apprehended before he could get out, the crime is Frustrated Robbery. (People
vs. Jose Del Rosario, C.A. 46 O.G. 332). If he was caught in the act of removing
the property, the crime would be Attempted Robbery. If he was able to bring the
property out of the house or building, he would be guilty of Consummated
Robbery.

Anent the manner of committing crime, there are offenses which are
consummated in one instant and the act cannot be split into parts to be
categorized as attempted or frustrated like Slander or Libel. They are called
Formal Crimes.

There are also crimes which are consummated by mere attempt, proposal or
overt act. Thus, the crime of Flight to Enemy’s Country (Art. 121) is
consummated by mere attempt. In Abuses Against Chastity (Art. 245), mere
solicitation or proposal consummates the offense. So also, Art. 185

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(Machinations in Public Auctions) which punishes any person who shall solicit
any gift or promise as a consideration for refraining from taking part in any
public auction.

In material crimes like Homicide, Rape, Murder, etc., there are three (3) stages
of execution. Thus, if A would stab or shoot B, missing him or injuring him only
superficially, the crime is Attempted Homicide or Murder; but if he hit B and
inflicted injuries which otherwise would have been fatal were it not for timely
medical attention, it is Frustrated; if B dies, the case is Consummated Homicide
or Murder.

In the crime of rape, the accused who placed himself on top of a woman, raising
her skirt and unbuttoning his pants, the endeavour to have sex with her very
apparent, is guilty of Attempted Rape.

Note: If the effort to have sex is not clear, the crime is only Acts of
Lasciviousness

On the other hand, entry on the labia or lips of the female organ by the penis,
even without rupture of the hymen or laceration of the vagina, consummates the
crime. (People vs. Tayabas, 62 Phil. 559; People vs. Royeras, 56 SCRA 666;
People vs. Amores, 58 SCRA 505)

This brings us to the question of Frustrated Rape. In People vs. Orita, 184 SCRA
105, the Supreme Court said:

Clearly, in the crime of rape, from the moment the offender has carnal
knowledge of his victim, he actually attains his purpose and, from that
moment all the essential elements of the offense have been accomplished
(xxx) the felony is consummated. (xxx) Any penetration of the female
organ by the male organ is sufficient. (xxx) Necessarily, rape is attempted
if there is no penetration of the female organ because not all acts of
execution was performed. The offender merely commenced the
commission of a felony directly by overt acts. Taking into account the
nature, elements and manner of execution of the crime of rape and
jurisprudence on the matter, it is hardly conceivable how the frustrated
stage in rape can ever be committed.

The court continued that the case of People vs. Erina, 50 Phil. 998, where the
accused was found guilty of Frustrated Rape, appears to be a “stray” decision in
as much as it has not been reiterated in their subsequent decisions, and that the
particular provision on Frustrated Rape in Art. 335 as amended by R.A. No.
2632 and R.A. No. 4111 is a dead provision prompted probably by the Erina
case. (NOTE: R.A. No. 7659, Sec. 11 also contains the provision that when the
Rape is attempted or frustrated and a Homicide is committed by reason or on the
occasion thereof, the penalty shall be reclusion perpetua to death).

Art. 7. When light felonies are punishable. — Light felonies are punishable
only when they have been consummated, with the exception of those
committed against person or property.

Discussion:

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LIGHT FELONIES

Light felonies are punishable only when they have been consummated, with the
exception of those committed against persons or property. Thus, a person who,
within any town or public place, attempts to fire or to discharge his gun is not
criminally liable even if his acts would fall under Art. 155 punishing Alarms and
Scandals in its attempted stage as this light felony is a crime against public
order.

Likewise, in light felonies, only the principals and accomplices are liable (Art.
16) so that a policeman who assists in the escape of a person who slightly
injured another (Slight Physical Injuries) is not liable. (NOTE: See P.D. No.
1829 however)

Art. 8. Conspiracy and proposal to commit felony. — Conspiracy and

proposal to commit felony are punishable only in the cases in which the law
specially provides a penalty therefor.

A conspiracy exists when two or more persons come to an agreement

concerning the commission of a felony and decide to commit it.

There is proposal when the person who has decided to commit a felony
proposes its execution to some other person or persons.

Discussion:

Conspiracy and Proposal to commit felony are punishable only in the cases in
which the law specially provides a penalty therefor.

Conspiracy to commit a felony as well as Proposal to commit a felony are,

generally speaking, not crimes. As such, they are not punishable. Thus, although
conspiracy to murder a person is apparent, the conspirators cannot be held
criminally liable because there is no law punishing Conspiracy to Commit
Murder.

If what was done however was Conspiracy to Commit Rebellion, then the
conspirators are liable because there is a law that punishes Conspiracy to
Commit Rebellion (Art. 136). The same is true with Proposal to commit a
felony. Unless there is a law that punishes Proposal to commit a crime, the
proponents are not liable.

Art. 115 punishes Conspiracy and Proposal to Commit Treason, while Sec. 5 of
R.A. No. 6989 penalizes Conspiracy and Proposal to Commit Coup d’etat. On
the other hand, Conspiracy to Commit Sedition (not proposal) is punishable
under Art. 141, while Sec. 8 of P.D. No. 1613 punishes Conspiracy (not
Proposal) to Commit Arson.

A conspiracy exists when two or more persons come to an agreement

concerning the commission of a felony and decide to commit it. It could be
evidenced by a written agreement among the conspirators or by their verbal
covenant, or it could be inferred from the conduct of the accused before, during
and after the commission of the crime. (People vs. Manuel, 234 SCRA 532)

12
There is proposal when the person who has decided to commit a felony proposes
its execution to some other person or persons. To constitute proposal, in law, the
proponent himself must be determined to commit the crime so that if he only
aired his grievances against the government and made suggestions on how to
fight the authorities, he cannot be considered liable for Proposal to Commit
Rebellion.

Under Section 7 of P.D. No. 1613, Conspiracy to commit Arson shall be

punished by prision mayor in its minimum period. It would seem that like in
Sedition there is no crime of Proposal to Commit Arson.

On matters of conspiracy, it is a settled rule that it need not be proved by direct

evidence of prior agreement on the commission of the crime as the same can be
inferred from the conduct of the accused before, during and after the
perpetration of the offense showing that all the accused acted in unison with
each other, evincing a common purpose or design. (People vs. Pablo, et. al. 349
SCRA 79).

Art. 9. Grave felonies, less grave felonies and light felonies. — Grave felonies
are those to which the law attaches the capital punishment or penalties
which in any of their periods are afflictive, in accordance with Art. 25 of
this Code.
Less grave felonies are those which the law punishes with penalties which in
their maximum period are correctional, in accordance with the above-
mentioned Art.
Light felonies are those infractions of law for the commission of which a
penalty of arresto menor or a fine not exceeding 200 pesos or both; is
provided.

Art. 10. Offenses not subject to the provisions of this Code. — Offenses which
are or in the future may be punishable under special laws are not subject to
the provisions of this Code. This Code shall be supplementary to such laws,
unless the latter should specially provide the contrary.

Discussion:
OFFENSES NOT SUBJECT TO THE CODE
Special Laws

Offenses which are or in the future may be punishable under special laws are not
subject to the provisions of this Code. This Code shall be supplementary to such
laws, unless the latter should specially provide the contrary.

Thus, in case of conflict between the provisions of the Special Laws and those of
the Revised Penal Code, the former shall prevail. The provisions of the latter
however shall be supplementary to special laws whenever applicable. In People
vs. Simon, 234 SCA 555, citing People vs. Macatanda, 109 SCRA 35, it was
held:

“While these are special laws, the fact that the penalties thereunder are

13
 those provided for in the Revised Penal Code lucidly reveals the statutory
intent to give the related provisions on penalties for felonies under the
Code the corresponding application to said special laws, in the absence of
any express, or implicit proscription in these special laws.”

Chapter Two
JUSTIFYING CIRCUMSTANCES
AND CIRCUMSTANCES WHICH EXEMPT FROM CRIMINAL
LIABILITY

There are five (5) circumstances affecting the criminal liability of an individual.
They are justifying, exempting, mitigating, aggravating, and alternative
circumstances.

Art. 11. Justifying circumstances. — The following do not incur any

criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur;
First. Unlawful aggression.
Second. Reasonable necessity of the means employed to prevent or repel it.
Third. Lack of sufficient provocation on the part of the person defending
himself.

Discussion:
SELF- DEFENSE
Anyone who acts in defense of his person or rights incurs no criminal liability
provided that the following circumstances concur:
a. Unlawful aggression
b. Reasonable necessity of the means employed to prevent or repel it
c. Lack of sufficient provocation on the part of the person defending
himself.
This includes defense of honor, defense of home as defense of property.

Unlawful aggression on the part of the injured or the victim is the first element
of self-defense. This is an indispensable requisite even in incomplete self-
defense (People vs. Deopante, G.R. No, 102772, Oct. 30, 1996). Without this
requisite, we cannot speak of complete self-defense as a justifying circumstance,
or incomplete self- defense as a mitigating circumstance.

Unlawful aggression means an assault or attack, or a threat in an imminent and

immediate manner which places the defendant’s life in actual peril. (Philippine
Law Dictionary by Moreno, 3rd Ed., 1980) There must be an actual assault or a
threat but in case of the latter, it must be imminent and positively strong to
palpably show the wrongful intent to cause injury. Mere intimidating attitude is
not sufficient. Thus, barging on the door of the accused with shouts of threats to
kill cannot be considered Unlawful Aggression. (People vs. Trsison, G.R. No.
106345-46, Sept. 16, 1996) Likewise, if the accused agrees to fight, Unlawful
Aggression is wanting because by accepting the challenge and immediately
approaching the victim, the accused places himself in an unlawful status and
himself becomes an unlawful aggressor, as aggression as an incident of the fight
is bound to arise. (People vs. Galas, G.R. No, 114007, Sept. 24, 1996)

14
To give rise to self-defense, the aggression must not be a lawful one like the
attack of a husband against a paramour of his wife whom he surprised in an
uncompromising situation, or a chief of police who threw stones at the accused
who was running away to elude arrest for a crime committed in his presence.
Their aggression was not considered unlawful.

Unlawful aggression contemplates an actual, sudden and unexpected attack or

imminent danger thereof, and not merely a threatening or intimidating attitude
but when its author does not persist anymore in his purpose or when he
discontinues his attitude to the extent that the object of his attack is no longer in
peril it ceases to be an unlawful aggression and does not warrant self-defense.
(People vs. Geneblazo, 361 SCRA 573)

The second element is Reasonable Necessity of the Means Employed to prevent

or repel it. There must be a reasonable necessity of the course of action taken,
and reasonable necessity of the means used. In People vs. Jaurigue, 76 Phil.
174, while it was ruled that when the deceased place his hand on the upper thigh
of the lady accused, there was unlawful aggression but when the latter
immediately stabbed him with a knife killing him, there was no reasonable
necessity of her course of action since in the chapel where the killing took place,
there were many people including her father, it was well lighted and there is no
possibility of her being raped. Consequently, she was convicted.

When the deceased laid down his gun, unlawful aggression had already ceased
and it was no longer necessary for accused-appellant to have fired successfully
the way he did at the victim. (People vs. Rabanal, 387 SCRA 685)

The means employed by the person making a defense must be rationally

necessary to prevent or repel an unlawful aggression. What the law requires is a
rational equivalence, in the consideration of which will enter as principal factors
the emergency, the imminent danger to which the person attacked is exposed,
and the instinct more than the reason that moves or impels the defense.

On the other hand, whether the means employed is reasonable or not depends
upon the nature and quality of the weapon used by the aggressor, his physical
condition, character and size, as well as of the person defending and the place
and occasion of the assault.

Self-defense and accidental shooting cannot both be raised by the accused as a

defense. If accused is acting in self-defense, then he could only have deliberately
used the gun to repel the alleged aggression. On the other hand, if the shooting
was accidental, then it was immaterial whether the accused employed reasonable
means to repel the alleged aggression. (People vs. Florague, 360 SCRA 587)

The third element- Lack of Sufficient Provocation on the part of the person
defending himself- pictures a situation where there was total lack of provocation
on the part of the accused as when he was attacked without any reason at all, or
when the accused gave provocation but is not sufficient for the offended party to
assault him, or where provocation is sufficient but is not immediate to the act
(U.S. vs. Laurel, 22 Phil. 252) or where the sufficient provocation was given by
the companion of the accused of which the latter had no part.

15
2. Any one who acts in defense of the person or rights of his spouse,
ascendants, descendants, or legitimate, natural or adopted brothers or
sisters, or his relatives by affinity in the same degrees and those
consanguinity within the fourth civil degree, provided that the first and
second requisites prescribed in the next preceding circumstance are
present, and the further requisite, in case the provocation was given by the
person attacked, that the one making defense had no part therein.

Discussion:
DEFENSE OF RELATIVES
The law speaks only of spouse, ascendants, meaning parents, grandparents, great
grandparents, etc., descendants, meaning children, grandchildren, great
grandchildren, etc., brothers and sisters, relatives by affinity in the same degrees,
that is, parents-in-law, children-in-law, and brothers or sisters-in-law as
relatives. Outside of these people, the persons are considered, in criminal law, as
strangers.

There are three (3) requisites- first is unlawful aggression, second is reasonable
necessity of the means employed to prevent or repel it, and third is that the
relative being defended gave no provocation. Anent the third requisite however,
the law gives a leeway- that is, even if the relative being defended gave the
provocation, if the relative making the defense had no part therein, he can
successfully invoke defense of relative.

3. Anyone who acts in defense of the person or rights of a stranger,

provided that the first and second requisites mentioned in the first
circumstance of this Art. are present and that the person defending be not
induced by revenge, resentment, or other evil motive.

Discussion:
DEFENSE OF STRANGER

Outside of himself, and those relatives mentioned in Art. 11, par. 2, any person
who acts in defense of the person or rights of another can legitimately claim the
defense of stranger. The first two (2) requisites however, that is, unlawful
aggression and reasonable necessity of the means employed to prevent or repel
it, must be present. The law adds another requisite, which is, that the person
defending be not induced by revenge, resentment or other evil motive.

Thus, one who, seeing his seventy-eight (78) year old neighbour held down on
the ground by a strong and robust young man and in serious danger of being
throttled, furnished the person assaulted with a gaff, as he himself is also old and
may not be able to cope with the assailant, with which his neighbour used to
inflict mortal wound on the assailant is entitled to the claim of defense of
strangers. (U.S. vs. Subingsubing, 31 Phil. 376)

4. Any person who, in order to avoid an evil or injury, does not act which
causes damage to another, provided that the following requisites are
present;
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid it;
Third. That there be no other practical and less harmful means of

16
preventing it.

Discussion:
AVOIDANCE OF GREATER EVIL OR INJURY

The fourth justifying circumstance speaks of a person who, in order to avoid an

evil or injury, does an act which causes damage to another. The following
however must be present: first, that the evil sought to be avoided actually exists,
second, that the injury feared be greater than that done to avoid it, and third, that
there be no other practical and less harmful means of preventing it.

The doctor who had to kill a foetus to save the mother where both could not be
saved, and he is running out of time, may invoke this defense. This is different
however from Euthanasia- the so-called mercy killing which is not justified in
our jurisdiction. A captain of a ship caught by storm and huge waves in his
journey, who ordered the jettison of cargoes against the will of the owners to
prevent the ship from sinking and save the passengers, can shield criminal
liability behind this provision.

5. Any person who acts in the fulfilment of a duty or in the lawful exercise
of a right or office.

Discussion:
FULFILLMENT OF DUTY OR EXERCISE OF RIGHT OR OFFICE

The fifth justifying circumstance provides that no criminal liability shall be

incurred by any person who acts in the fulfilment of a duty or in the lawful
exercise of a right or office.

Thus, a policeman who killed an escaping prisoner after making the warning
shot and shouting to him not to continue with his escape, and who prior to that
even attacked him with a spear, acted in the lawful fulfilment of duty.

A person incurs no criminal liability when he acts in the fulfilment of a duty or

in the lawful exercise of a right or office. But we must stress there are two (2)
requisites for this justifying circumstance: (a) that the offender acted in the
performance of a duty or in the lawful exercise of a right, and (b) that the injury
or offense be the necessary consequence of the due performance of such right or
office. (People vs. Belbes, 334 SCRA 161)

So also if A hit B with his fist inside a running passenger jeep because B was
snatching his watch, and as a consequence B fell from the jeep, his head hitting
the hard pavement causing his death, A acted in the lawful exercise of a right.
And the executioner of convicts sentenced to die, who would make the lethal
injection in the Bureau of Corrections on the day and time scheduled by the
Court, does so in the lawful exercise of an office.

6. Any person who acts in obedience to an order issued by a superior for

some lawful purpose.

17
Discussion:
OBEDIENCE TO AN ORDER OF A SUPERIOR

It is also a justified act if a person acts in obedience to an order issued by a

superior for some lawful purpose.

This justifying circumstance needs an order issued by a superior officer of the

accused which was for a lawful purpose and the latter obeyed the order. Where
the order of arrest was issued by his superior for the purpose of delivering the
person’s subject of the order to the commanding officer who made the request
that they be apprehended and arrested for a crime they committed but because
they resisted arrest, the accused killed them, this justifying circumstance is
applicable.

EXEMPTING CIRCUMSTANCES

Art. 12 enumerates person who are exempted from criminal liability. Unlike in
justifying circumstances, here there was a crime committed, there is a criminal
but for reasons of public policy, no penal liability shall be inflicted on him.

Art. 12. Circumstances which exempt from criminal liability. — the following
are exempt from criminal liability:
1. An imbecile or an insane person, unless the latter has acted during a
lucid interval.
When the imbecile or an insane person has committed an act which the law
defines as a felony (delito), the court shall order his confinement in one of
the hospitals or asylums established for persons thus afflicted, which he
shall not be permitted to leave without first obtaining the permission of the
same court.

Discussion:
In the eyes of the law, insanity exists when there is a complete deprivation of
intelligence in committing the act. Mere abnormality of the mental faculties will
not exclude imputability. The accused must be “so insane as to be incapable of
entertaining a criminal intent”. He must be deprived of reason and act without
the least discernment because there is a complete absence of the power to
discern or a total deprivation of the freedom of the will.

Since the presumption is always in favor of sanity, he who invokes insanity as

an exempting circumstance must prove it by clear and positive evidence. And
the evidence on this point must refer to the time preceding the act under
prosecution or to the very moment of its execution. (See People vs. Estrada, 333
SCRA 669; also People vs. Valledor, 383 SCRA 653)

An imbecile is a person marked by mental deficiency while an insane person is

one who has unsound mind or who suffers from mental disorder. An insane
person may have suffered from mental disorder. An insane person may have
lucid intervals but an imbecile has none. (People vs. Ambal, 100 SCRA 325,
citing 1 Viada, Codigo Penal, 4th Ed.)

Imbecility is defined as feeble-mindedness or a mental condition approaching

that of one who is insane. It is analogous to childishness and dotage. An

18
imbecile within the meaning of Article 12 is one completely deprived of reason
or discernment and freedom of will at the time of committing the crime. While
advanced in age, he has a mental development of children between two (2) and
seven (7) years of age. (People vs. Nunez, G.R. No. 412429-30, July 23, 1947)

In People vs. Dungo, 199 SCRA 860, it was held that one who suffers from
insanity at the time of the commission of the offense cannot in a legal sense
entertain a criminal intent and cannot be held criminally responsible for his acts.
In People vs. Formigones, 87 Phil. 658, the ruling was that, in order that a
person could be regarded as an imbecile within the meaning of Art. 12 of the
RPC so as to be exempt from criminal liability, he must be deprived completely
of reason or discernment and freedom of the will at the time of committing the
crime.

Any deprivation therefore of reason or discernment at the time of the trial is not
an exempting circumstance.

2. A person under nine years of age.

3. A person over nine years of age and under fifteen, unless he has acted
with discernment, in which case, such minor shall be proceeded against in
accordance with the provisions of Art. 80 of this Code.
When such minor is adjudged to be criminally irresponsible, the court, in
conformably with the provisions of this and the preceding paragraph, shall
commit him to the care and custody of his family who shall be charged with
his surveillance and education otherwise, he shall be committed to the care
of some institution or person mentioned in said Art. 80.

Discussion:
Amended by Juvenile Justice and Welfare Act, R.A. 9344
• 15 years of age and under- exempt, they will be subject to intervention
• Over 15 years of age and under 18- exempt, unless acted with
discernment
-those who acted with discernment are entitled to privilege mitigating
circumstance of minority, they will undergo diversion programs
• Exemption does not include exemption from civil liability
• The reckoning point is the age of the child when the offense was
allegedly committed

What if the act was done while still a minor but the promulgation of the sentence
was after he reached 21?
• He will be sent to an agricultural camp. The promotion of the welfare of
a child in conflict with the law should extend even to one who has
exceeded the age limit of twenty-one years, so long as he/she committed
the crime when he/she was still a child. The offender shall be entitled to
the right to restoration, rehabilitation and reintegration. The age of the
child in conflict with the law at the time of the promulgation of the
judgment of conviction is not material. What matters is that the offender
committed the offense when he/she was still of tender age. (People vs.
Jacinto)

Two Presumptions Under R.A. No. 9344

1. Presumption of minority

19
 2. Presumption of no discernment

What is discernment?
• The mental capacity to understand the difference between right and
wrong.

4. Any person who, while performing a lawful act with due care, causes an
injury by mere accident without fault or intention of causing it.

Discussion:
So, one driving his car duly licensed to do so, in the proper lane and within the
limits prescribed by law, who hits a boy who suddenly darted into the street is
exempt from criminal liability due to accident.

Problem: A armed with a .38 caliber and B, who has no weapon, robbed a store;
but in the course thereof, were seen by P, a policeman who was armed with a .45
caliber gun, and when he demanded for the surrender of A and B, A shot him
but missed, and so P repelled the attack. In the exchange of shots, A was killed,
together with B, and C, the owner of the store. The three were killed by the
bullets fired from a .45 caliber. In such case, P is not liable for the death of A
due to self- defense as all the three (3) elements are present. He is also not liable
for the death of B, not because of self- defense because the latter being
weaponless can not commit unlawful aggression, but because of performance of
duty. For the death of C, the store owner, P, is also not criminally liable
obviously not because of self- defense nor of fulfilment of duty but because of
accident provided for in par.1 of Art. 12.

5. Any person who act under the compulsion of irresistible force.

Discussion:
IRRESISTIBLE FORCE
Elements: 1. Force must be physical, come from an outside force and the
accused must act not only without his will but even against his will
2. The accused was reduced to a mere instrument, no more freedom
3. 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.

Thus, a person who was compelled to bury the body of one who was murdered
by the killers, striking him with the butts of their guns, threatening to kill him
too, is not criminally liable as an accessory.

6. Any person who acts under the impulse of an uncontrollable fear of an

equal or greater injury.

Discussion:
Uncontrollable fear of an equal or greater injury
Elements: 1. Fear of an evil greater than or at least equal to that which the
accused was required to commit.
2. Evil was of such gravity and imminence that the ordinary man would have
succumbed to it.

20
If A with a revolver in his hand threw a knife at B, and ordered him to kill C, a
person sleeping nearby otherwise he will shoot B, the latter can ask exemption
from criminal liability if he stabbed C to death.

7. Any person who fails to perform an act required by law, when prevented
by some lawful or insuperable cause.

Discussion:

A policeman who arrested a man who had just killed another in his
(policeman’s) presence, at 6:00 p.m. of a Saturday in a small town in the
province, is not liable under Article 125 of the RPC when he filed the criminal
complaint only in the morning of the following Monday (more than thirty six
(36) hours as required by the said Article) since there was no court where to file
the complaint. He was prevented by a lawful or insuperable cause to comply
with the requirement of the law.

ABSOLUTORY CAUSES

Absolutory causes are those where the actors are granted freedom from charge
or immunity from burden for reasons of public policy and sentiment even if their
acts constitute a crime.

They are:
1. Accessories with respect to spouse, ascendants, descendants, brothers
and sisters or relatives by affinity within the same degrees except those
falling under par. 1 of Art. 19. (Art. 20, RPC)
2. Spouse or parents who inflicted Less Serious or Slight Physical Injuries
on his/ her spouse or their daughters living with them, whom they
surprised in the act of sexual intercourse with another. (Art. 247, RPC)
3. Any person who entered another’s dwelling to prevent serious harm to
himself, the occupants of the dwelling or a third person or rendered some
service to humanity or justice, or entered cafes, taverns, inns and other
public houses while the same were open. (Art. 280, par. 3)
4. In case of theft, swindling or malicious mischief committed or caused
mutually by spouses, ascendants and descendants or relatives by affinity
in the same line, and brothers and sisters and brothers-in-law and sisters-
in-law if living together. (Art. 332)
5. Instigation, where the actor otherwise innocent, was induced by a public
officer to commit the crime such that the latter himself becomes a
principal by inducement or by indispensable cooperation.

Chapter Three
CIRCUMSTANCES WHICH MITIGATE CRIMINAL LIABILITY

Mitigating circumstances are those which do not entirely free the actor from
penal responsibility but serve only to lessen or reduce the penalty imposable.
There are two (2) classes- Ordinary Mitigating which can be offset by
aggravating circumstances and which if present tends to reduce the penalty by
periods, and Privileged Mitigating which cannot be offset by any aggravating

21
circumstance, and which if present tends to reduce the penalty by degrees.

Art. 13. Mitigating circumstances. — The following are mitigating

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

Discussion:
INCOMPLETE JUSTIFYING AND INCOMPLETE EXEMPTING
CIRCUMSTANCES

• Must always have unlawful aggression

• Without unlawful aggression, no complete or incomplete self-defense
• Becomes a privileged mitigating circumstance if unlawful aggression is
present with another element of self-defense
• Only unlawful aggression is present- ordinary mitigating circumstance
• Unlawful aggression + another element- privileged mitigating
circumstance

2. That the offender is under eighteen years of age or over seventy years. In
the case of the minor, he shall be proceeded against in accordance with the
provisions of Art. 80.

Discussion:
Minority/ Oldies
• R.A. 9344 did not repeal Art. 68. It merely amended it.
• If the minor is between 15-18 years of age and acted with discernment,
he is still entitled to the privileged mitigating circumstance under Art.
68(2)
• Minority is always a privileged mitigating circumstance
• This is personal to the accused and cannot be extended to another co-
accused
Example: A 16 year old and a thirty year old killed someone. Minority as
mitigating circumstance can only be appreciated to the 16 year old.
• What about old age?
Example: The accused was charged with rape. He was 83 years old. Old
age is considered mitigating circumstance.

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

committed.

Discussion:
LACK OF INTENT TO COMMIT SO GRAVE A WRONG

Intention partakes of the nature of a mental process, an internal act. It can be

gathered from and determined by the conduct and external acts of the offender
and the results of the acts themselves. So, the accused who was charged with
Rape with Homicide, and who admitted that “My only intention was to abuse
her, but when she tried to shout I covered her mouth and choked her, and later I
found that because of that she died”, is not entitled to this mitigating
circumstance, for he knew that the girl was very tender in age (six (6) years old),

22
weak in body, helpless and defenseless and he ought to know the natural and
inevitable result of the act of strangulation. (People vs. Yu, 1 SCRA 199)
A husband who slaps his wife who fell down her head hitting a hard pavement
and died as a result can avail of this mitigating circumstance.

But this attenuating circumstance is not applicable in case of several accused

where conspiracy was proven for in conspiracy the act of one is the act of all.
(People vs. Bautista, 38 SCRA 184).

Praeter Intentionem
• Intent is determined by weapons, words, conduct before, during and after
the incident

4. That sufficient provocation or threat on the part of the offended party

immediately preceded the act.

Discussion:
SUFFICIENT PROVOCATION OR THREAT

The sufficient provocation or threat on the part of the victim must immediately
precede the act of the offender. A killed his father-in-law who warned him to be
careful because he would kill him before the end of the day, after he told said
father-in-law that he cannot live anymore with his adulterous wife, the daughter
of the deceased, whom he caught in flagrante with her paramour. He is entitled
to this mitigating circumstance. (People vs. Rivero, 242 SCRA 354) He could
have interpreted this warning as a serious threat which prompted him to decide
to eliminate his father-in-law before he could carry out such threat.

Requisites: 1. It must be sufficient

2. It must be immediate to the commission of the crime
3. It must originate from the offended party

Sufficient provocation is unjust or improper conduct/ act of the offended party,

capable of exciting, inciting or irritating anyone. It must be adequate enough to
excite a person to commit a wrong. (Licayo vs. People)

The provocation need not be in words, but can also be in action. When the
victim entered the accused person’s property and started gathering crops, this
constituted sufficient provocation. (People vs. Arquiza)

5. That the act was committed in the immediate vindication of a grave

offense to the one committing the felony (delito), his spouse, ascendants, or
relatives by affinity within the same degrees.

Discussion:
IMMEDIATE VINDICATION OF A GRAVE OFFENSE

The word “immediate” in par. 5 is not an accurate translation of the Spanish text
which uses the term “proxima” and somehow a lapse of time is allowed between
the grave offense and the vindication unlike in provocation or threat (par. 4) that
should immediately precede the act.

23
Thus, in People vs. Parna, 64 Phil. 331, where it was after a few hours from the
time he was slapped by the deceased in the presence of many people, when he
killed said deceased, the Supreme Court considered this mitigating circumstance
in his favor since the influence of said offense “by reason of its gravity and
circumstances under which it was inflicted, lasted until the moment the crime
was committed”. However, in People vs. Pajares, 210 SCRA 237, where the
brother of the accused was mauled by the victim’s companion and the victim
himself ten (10) hours earlier, the accused who killed the deceased was adjudged
not entitled to the benefits of this circumstance since such interval of time was
more than sufficient to enable him to recover his serenity.

It would seem that the rule is that, the court

must consider the lasting effect and influence of the grave offense to the
offender when he resorted to commit the crime to vindicate such grave offense.

• Grave offense is not the grave offense in Art. 9. Here, it might not even
be a felony at all. It can be an assault to one’s honor. It includes insult.
• Test if the assault is grave, depends on:
1. Social standing of parties
2. Time, place and occasion when offense was committed

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

produced passion or obfuscation.

Discussion:
PASSION AND OBFUSCATION

• It must arise from lawful sentiments

• Exercise of a lawful right by the offended party cannot be a proper
source of passion/ obfuscation. As when the offended party came to
regain his land. (People vs. Lopez)

To be considered mitigating, the same must arise from lawful sentiments

provoked by prior unjust or improper acts of the offended party.

While watching a TV show, the ballcaster of the swivel chair on which the
accused was seated broke and got detached, and so he called F, his stepson, to
buy one but because it took time for the latter to awaken, accused started
shouting bad words to F who finally got up, got dressed and went to the comfort
room to brush his teeth. This further angered the accused who boxed him (F),
and when F got out of the house, accused followed him, and because he could
not see F at once, he shot him when finally he saw him returning to the house.
Held: No mitigating circumstance of passion or obfuscation as the anger of the
accused did not arise from lawful sentiments. The delay in obeying his request
to buy the ballcaster is too trivial matter as to fairly and justly cause such
overreaction on his part. (People vs. Tiongco, 236 SCRA 458)

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;

24
Discussion:
VOLUNTARY SURRENDER
Elements: 1. Surrendered to a person in authority or his agent
2. Surrendered before arrest is effected
3. Surrender must be voluntary (spontaneous and unconditional)

Plea of Guilt
Elements: 1. It must be in open court.
2. It must be spontaneous and unconditional
3. It must be done prior to the presentation of evidence of the prosecution

Accused who went into hiding for two and a half (2 1/2) years after killing the
victim cannot claim this mitigating circumstance for in order that voluntary
surrender may be appreciated, it is necessary that the same be spontaneous in
such manner that it shows the intent to surrender unconditionally to the
authorities, either because he acknowledges his guilt or because he wishes to
save them the trouble and expense necessarily incurred in his search and capture.
(People vs. Ablao, 183 SCRA 658, citing People vs. Lingatong, G.R. No. L-
34019, Jan. 29, 1990)

So also, it must be surrender of the body of the accused to the persons in

authority or their agents. So the surrender of his gun, not himself, by handing
over the weapon through the balustrade of the faculty room, and the surrender
being made to his brother who was not a person in authority nor an agent can not
be considered an attenuating circumstance. He holed in the faculty room, in
effect holding some teachers and students as hostages, as the faculty room was
surrounded by soldiers and there was no escape open to him. (People vs. Tac-an,
182 SCRA 601)

Voluntary surrender requires that the offender had not been actually arrested;
that he surrendered himself to a person in authority or to the latter’s agent; and
that the surrender was voluntary. (People vs. Callet, 382 SCRA 43) For surrender
to be voluntary, it must be spontaneous and show the intent of the accused to
submit himself unconditionally to the authorities either because (1) he
acknowledges his guilt or (2) he wishes to save them the trouble and expense
incidental to his search and capture. (People vs. Zeta, 382 SCRA 141)

SPONTANEOUS PLEA OF GUILTY

To be appreciated as an attenuating circumstance, the plea of guilty must be

made before the prosecution presents its evidence and it must be an
unconditional plea. (People vs. Serafica, 27 SCRA 123) However, if it is a plea
to a lesser offense- let us say, where the charge is murder and the offer is a plea
of guilty to Homicide, and the court allows the prosecution to present evidence
to prove the qualifying circumstance, and it fails to establish the aggravating
circumstance that would qualify the killing to murder, the accused is entitled to
this mitigating circumstance. The forum however must be the court that has
jurisdiction over the offense.

8. That the offender is deaf and dumb, blind or otherwise suffering some
physical defect which thus restricts his means of action, defense, or

25
communications with his fellow beings.

Discussion:
ILLNESS WHICH RESTRICTS MEANS OF ACTION
The law says that the offender is deaf and dumb, meaning not only deaf but also
dumb, or that he is blind, meaning blind in both eyes, but even if he is only deaf
and not dumb or dumb only but not deaf, or blind only in one eye, he is still
entitled to a mitigating circumstance under this article as long as his physical
defects restrict his means of action, defense or communication with his
fellowmen. The restriction however must relate to the mode of committing the
crime. Thus, even if he is armless or somehow limping because he was a polio
victim in his younger days, if the charge is libel or oral defamation, his illness
does not give him the privilege to mitigate his criminal liability for the said
crime.

9. 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.

Discussion:
ILLNESS DIMINISHING WILL POWER

• If illness deprived the offender of his consciousness of his acts, he will

be exempt from liability.
• Illnesses considered: 1. Psychosis 2. Schizophrenia

If the illness not only diminishes the exercise of 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.

Feeblemindedness of the accused who, in a fit of jealousy, stabbed his wife, then
carried her up to the house, laid her on the floor and then lay down beside her,
warrants the finding in his favor of this mitigating circumstance. (People vs.
Formigones, 87 Phil. 658)

10. And, finally, any other circumstances of a similar nature and analogous
to those above mentioned.

Discussion:
ANALOGOUS CIRCUMSTANCES

Return of the property stolen is analogous to voluntary surrender, testifying for

the prosecution by a co-accused divulging the truth of what really transpired is
akin to plea of guilty; esprit de corps is similar to passion or obfuscation; over
sixty (60) years old with failing sight is analogous to over seventy (70). (See The
Revised Penal Code by Reyes, 1993 Ed., pp. 312-314, citing People v.
Villamora, 86 Phil. 287; People vs. Reantillo and People vs. Navasca, 76 SCRA
72)

26
 Chapter Four
CIRCUMSTANCE WHICH AGGRAVATE CRIMINAL LIABILITY

Those which if present in the commission of the crime serve to increase the
penalty imposable, without however exceeding the maximum period prescribed
for the offense.

Unlike in mitigating circumstances, the list in Article 14 is exclusive. No

analogous circumstances. The aggravating circumstances must be alleged in the
information.

Different Kinds of Aggravating Circumstances

1. Generic

Those which generally, can be applied to all offenses like dwelling,

recidivism, in consideration of price, reward or promise.

2. Qualifying

Those which if attendant, alter or change the nature of the crime

necessarily increasing the penalty, such as by means of poison, with aid
of armed men in killing persons or grave abuse of confidence which
makes stealing one of qualified theft. These Circumstances however
must be alleged in the information to make them qualifying.

3. Special or Specific Aggravating

Those that apply only to some particular crimes like disregard of respect
due the offended party on account of rank, sex or age which are
applicable only to crimes against persons or honor. Ignominy which
applies only to crimes against chastity; cruelty which applies only to
crimes against person.

4. Inherent

Those which necessarily accompany or inhere in the commission of the

crime like evident premeditation in theft or robbery.

Where one of the aggravating circumstances has been used as a qualifying

circumstance, the others will be deemed as generic.
Example: Treachery qualifies homicide into murder. Evident premeditation
becomes a generic circumstance.

R.A. 7659 added a new aggravating circumstance of “organized/ syndicated

group” in Art. 62
• It’s a special aggravating circumstance because Art. 14 (which
are generally generic) was not correspondingly amended.
• An organized/ syndicated crime group means a group of 2 or
more persons collaborating, confederating or mutually helping
one another for purposes of gain in the commission of any crime
(not exclusive to robbery- as long as there is profit, like estafa,
kidnapping for ransom)

27
Art. 14. Aggravating circumstances. — The following are aggravating
circumstances:

1. That advantage be taken by the offender of his public position.

Discussion:
ABUSE OF OFFICIAL POSITION

Under Sec. 23, 1(a) of R.A. No. 7659, when in the commission of the crime,
advantage was taken by the offender of his public position, the penalty to be
imposed shall be in its maximum regardless of mitigating circumstances.

It would seem that when this aggravating circumstance is present in the

commission of heinous crimes, it cannot be offset by any mitigating
circumstance.

For this circumstance to be appreciated as aggravating, the accused must be a

public official who used his influence, prestige and ascendancy which his office
gives him in realizing his purpose.

If the accused could have perpetrated the crime without occupying his position,
then there is no abuse of public position. Since no evidence was adduced to
prove that the killing was in any way facilitated by the public position of the
accused, in fact, it was not even shown whether the accused wore his uniform or
used his service firearm, this aggravating circumstance is not present. (People
vs. Sumaoy, 263 SCRA 460)

However in People vs. Madrid, 88 Phil. 1, this circumstance was considered

against the accused, a law officer, as he committed the crime (Robbery with
Homicide) with the aid of a gun which he had been authorized to carry as a
peace officer, and he succeeded in going through the check point unmolested
and unsuspected because of his official position. Where the public position is an
element of the offense like Bribery (Direct – Article 210, Indirect- 211, or
Qualified Bribery – Sec. 4, R.A. No. 7659), this circumstance cannot be taken
into consideration.

Test: Did the accused abuse his office in order to commit the crime?
Public official must use the influence, prestige and ascendancy which his office
gives him in realizing his purpose.

• There must be an intimate connection between the offense and the office
of the accused.
• The offender’s being a public officer does not ipso facto make it
aggravating. If the public officer could have committed the crime
without the use of public position, it is not aggravating.
• Using one’s service firearm in shooting someone does not fall under this
Aggravating Circumstance. In People vs. Villamor, the accused used a
gun officially issued to him by virtue of his office. The court said he
could have shot him even without a gun from the police.
• When a policeman keeps quiet while his other police officers were
robbing a polio guy and his sister, the quiet policeman is guilty of abuse
of public position. He could have prevented the others from robbing the

28
 victim. But he didn’t. His silence made him liable. (Fortuna vs. People)
• Does not apply if inherent in the crime. Example: Falsification by a
public officer of a public document

2. That the crime be committed in contempt or with insult to the public

authorities.

Discussion:

Public authorities are public officers directly vested with jurisdiction and who
have the power to govern and execute the laws. They are also called persons in
authority. So that if X, despite his knowledge of the presence of the Mayor or
Governor or a Judge, who made known of his presence to him, still continued to
assault his opponent, this circumstance must be taken against him, If it were
however, a policeman or an NBI agent, this aggravating circumstance cannot be
considered, as a policeman or an NBI agent is a mere agent of a person in
authority.

Elements: 1. Public authority is engaged in the discharge of his duties

2. Not the person against whom the crime is committed
3. The offender knows that he is a public authority

Example: A Barangay Captain is considered a person-in-authority. He was

playing cards, then accused shot him. Insult to public authorities? No. Barangay
Captain was the victim, and he was not performing his duty at that time. He was
playing tong-its. (People vs. De Mesa)

3. That the act be committed with insult or in disregard of the respect due
the offended party on account of his rank, age, or sex, or that it be
committed in the dwelling of the offended party, if the latter has not given
provocation.

Discussion:
INSULT OR DISREGARD OF RANK, AGE OR SEX

Considering the fact that the deceased, Silvina Cuyos, was already sixty (60)
years old at the time she was killed by the accused who was then only twenty-
three years old, whom witnesses saw as if wrestling with the said deceased who
sustained fatal injuries at the neck, there is disregard of the respect due the
offended party on account of her age. (People vs. Rubio, 257 SCRA 528)

A clerk in the Cash Section of the Civil Service Commission who attacked the
Assistant Chief of the Personnel Division of the said government office has
committed a crime aggravated by disrespect due the offended party on account
of his rank. (People vs. Benito, 74 SCRA 271)

Where the accused took turns in hitting the victim, a seventy (70) year old
woman, with pieces of wood they brought in going to the house of the said
victim, the circumstance of disregard of the respect due the offended party on
account of her sex and age is present. (People vs. Lapaz, 171 SCRA 539)

NOTE: While night time is absorbed in treachery, the aggravating circumstance

29
of disregard of sex and age cannot be similarly absorbed, as Treachery refers to
the manner of commission of the crime, while the latter pertains to the
relationship of the victim with the offender.

DWELLING
It must be taken note of, that dwelling is a building or structure exclusively used
and devoted for rest and comfort, and it includes every dependency of the house
which forms as integral part thereof. It may mean only the room of the
bedspacer in a house. Thus, the crime of rape against the offended party who
was renting a bedspace in a boarding house is aggravated by dwelling. (People
vs. Daniel, 86 SCRA 511)

Dwelling includes every dependency of the house that forms an integral part
thereof including staircase of the house, and much more its terrace. (People vs.
Rios, G.R. No. 132622, June 19, 2000)

In People vs. Perreras, 362 SCRA 202, it was ruled: He who goes to another’s
house to hurt him or do wrong is more guilty than he who offends him
elsewhere. For the circumstances of dwelling to be considered, it is not
necessary that the accused should have actually entered the dwelling of the
victim to commit the offense- it is enough that the victim who gave no
provocation was attacked inside his own house, as the assailant might have
devised means to perpetrate the assault from the outside.

Where the complainant was forcibly taken from her house, brought to a nearby
Barangay where she was raped, dwelling is an aggravating circumstance.
(People vs. Lacanieta, 330 SCRA 519)

To consider it however, as an aggravating circumstance, the victim must not

have given provocation. However, even if the attacker was outside the house,
and the victim was inside his dwelling when he was fired upon, as long as the
latter had not provoked the offender, there is dwelling as an aggravating
circumstance. So also, if the assault was commenced inside the dwelling and
terminated outside the same, dwelling can be considered. The victim should be
the owner, occupant or lessee of the house. However, in People vs. Balansi, 187
SCRA 566, it was held that the victim need not be the owner or occupant of the
dwelling where he was shot, since “the stranger, as an invited guest, is sheltered
by the same roof and protected by the same intimacy of life it affords. It may not
be his house, but it is, even for a brief moment, home to him”.

While this aggravating circumstance cannot be considered in Trespass to

Dwelling or Robbery in an Inhabited House as it is included necessarily in these
crimes (Art. 62), it can be considered in Robbery with Homicide because this
kind of Robbery can be committed without the necessity of transgressing the
sanctity of the house. (People vs. Pareja, 265 SCRA 429)

4. That the act be committed with abuse of confidence or obvious

ungratefulness.

Discussion:
ABUSE OF CONFIDENCE OR OBVIOUS UNGRATEFULNESS

30
Requisites: 1. The offended had trusted the offender
2. The offender abused such trust
3. Such abuse of confidence facilitated the commission of the crime

Essential that the confidence is immediate and personal such that it gives the
accused some advantage and makes it easier to commit the crime. (People vs.
Arojado)

Where the accused is the uncle of the victim and who had taken shelter in the
house of the victim’s parents, the rape that he committed against his niece is
attended with Abuse of Confidence and Obvious Ungratefulness. (People vs.
Cabresas, 244 SCRA 362)

5. That the crime be committed in the palace of the Chief Executive or in

his presence, or where public authorities are engaged in the discharge of
their duties, or in a place dedicated to religious worship.

Discussion:

To consider the palace of the President, or a place dedicated to religious

worship, the accused must have the intention to commit the crime in such place
so that if the meeting of the offender and the victim was only casual, this
circumstance cannot be considered.

In a place where authorities are engaged in the discharge of their duties, it is

necessary that actual fulfilment of functions be going on, so that if the Judge
declared a recess, and during such recess a crime was committed in his
courtroom, this circumstance is not present. However, if it is a place dedicated to
religious worship, any offense committed thereat even if no ceremony is taking
place, is aggravated by this circumstance.

Only in the third circumstance (public authorities engaged in the discharge) is

performance of function necessary.

If done in the palace of the President, in his presence, or in a place dedicated to

religious worship, performance of function is not necessary.

6. That the crime be committed in the night time, or in an uninhabited

place, or by a band, whenever such circumstances may facilitate the
commission of the offense.
Whenever more than three armed malefactors shall have acted together in
the commission of an offense, it shall be deemed to have been committed by
a band.

Discussion:

Night has been defined as a period of time from sunset to sunrise. (Art. 13, Civil
Code) Viada poetically defines it as the beginning of dusk to the end of dawn.
(See The Revised Penal Code by Reyes, p. 356). It is not however the period or
the time that is material. It is more of the darkness or nocturnity that enshrouds
the situation. Thus, if at 10:30 p.m. a killing occurred in a dance party where the
place was bright or keenly illuminated, there is no night time to speak of.

31
Night Time (Nocturnity) becomes an aggravating circumstance only when:
1. Sought by the offender; 2. Taken advantage by him to facilitate the
commission of the crime; 3. Ensured his immunity from capture, and 4. The
place where the crime was committed was not illuminated.

There must be evidence that night time was sought for, or the nocturnity
facilitated the commission of the offense. (People vs. Dela Cruz)

Night time is absorbed in treachery if it is part of the treacherous means to insure

execution of the crime.

And even if it was really dark, for nocturnity to be considered as an aggravating

circumstance, it must have been particularly sought for by the accused, or taken
advantage of by him to facilitate the commission of the crime or to ensure his
immunity from capture or otherwise to facilitate his getaway. (People vs.
Pareja, 265 SCRA 429)

So also if the criminal act was commenced while the atmosphere or environment
was still bright, and terminated when it was already dark, this aggravating
circumstance is not present. Contrariwise, if the offender began to perpetrate the
crime while it was still dark, but finished it already at daybreak where the place
is already bright, there is likewise no night time as an aggravating circumstance.

In the case of Forcible Abduction with Rape which was committed at 2:00 a.m.,
it was held that the aggravating circumstance of night time should be considered.
(People vs. Grefiel, 215 SCRA 596)

In People vs. Cabangcala, 362 SCRA 361, it was ruled that for night time to be
appreciated as an aggravating circumstance, the Court must be convinced that
the cover of darkness was purposely sought for the purpose of ensuring the
consummation of the crime, or where the accused took advantage of the
blankness of the night.

There is a band whenever more than three (3) armed malefactors shall have
acted together in the commission of the offense. (People vs. Landicho, 258
SCRA 1) Thus, at least four (4) must be the number (People vs. Polones, 230
SCRA 279) and they must be armed although the arms need not be limited to
firearms. When the two (2) groups are almost similarly armed, like where the
group of the offended party numbered five (5) but only three (3) were armed so
that there is no band, while the offenders were four (4) who were all armed and
therefore constituted a band, there is no aggravating circumstance as it did not
facilitate the commission of the crime. Likewise, if the meeting is casual, the
homicide committed by the killers comprising a band is not aggravated.

The uninhabitedness of a place is determined not by the disturbance of the

nearest house to the scene of the crime but whether or not in the place of the
commission, there was reasonable possibility of the victim receiving some help.
Considering that the killing was done during night time and many fruit trees and
shrubs obstructed the view of neighbors and passersby, there was no reasonable
possibility for the victim to receive any assistance. (People vs. Desalisa, 229
SCRA 35)

32
7. That the crime be committed on the occasion of a conflagration,
shipwreck, earthquake, epidemic or other calamity or misfortune.

If the crime coincidentally took place during the occasion of the misfortune or
calamity, this aggravating circumstance is not present because the offender did
not take advantage of the situation. It must be noted that the reason behind this
circumstance is found in the debased form of criminality met in one who, in the
midst of a great calamity, instead of lending aid to the afflicted, adds to their
suffering by taking advantage of their misfortune to despoil them. (U.S. vs.
Rodriguez, 19 Phil. 150)

8. That the crime be committed with the aid of armed men or persons who
insure or afford impunity.

Discussion:

The law uses the words “men” and “persons” – meaning in the plural form and
so at least two (2) persons are involved.

If the accused relied on the presence of armed men, availing himself of the aid
of the latter, his liability is aggravated. However, where it appeared that
appellants were not merely present at the scene of the crime but were in
conspiracy with the assailant, shooting the victim and leaving the scene together
after apparently accomplishing their purpose clearly evincing conspiracy, this
circumstance cannot be appreciated. (People vs. Umbrero, 196 SCRA 821)

If accused, upon assurance of policemen A and B that they would not patrol the
area so that he could commit theft or robbery thereat, the commission of
burglary in the said area where no routine patrolling was done is aggravated by
the aid of persons who insure or afford impunity.

9. That the accused is a recidivist.

A recidivist is one who, at the time of his trial for one crime, shall have been
previously convicted by final judgment of another crime embraced in the
same title of this Code.

Discussion:

The law defines recidivist as one who, at the time of his trial for one crime, shall
have been previously convicted by final judgment of another crime embraced in
the same Title of the Revised Penal Code.

Where accused was convicted of Homicide on September 15, 1983 and there
being no appeal, judgment became final on October 1, 1983 and the second
conviction was rendered on October 26, 1983 for murder, he is a recidivist.
(People vs. Lagarto, 196 SCRA 611)

If accused committed Theft on June 1, 1990 and Robbery on July 1, 1990 but
after his apprehension, the trial for the two (2) crimes were consolidated in one
hearing as there was only one victim, and thereafter the court rendered a Joint
Decision finding him guilty of both offenses, there is no recidivism as there was
no previous final judgment of conviction. While he was convicted of Theft

33
committed on June 1, 1990 when the same was promulgated, there was no prior
or previous final judgment. His conviction for theft was not yet final. Another
requisite is that the crimes involved must be embraced in the same title under the
Revised Penal Code; so that if the previous conviction is for Homicide and when
it was already final there is a subsequent conviction for Rape- recidivism exists
as Rape is now a crime against persons. (R.A. No. 8353)

10. That the offender has been previously punished by an offense to which
the law attaches an equal or greater penalty or for two or more crimes to
which it attaches a lighter penalty.

Discussion:

The crimes should not be embraced in the same title of the Code for accused will
then be classified as a recidivist. Thus, if A has been convicted of Murder, and
after grant of parole committed Homicide, he labors under this paragraph known
as reiteracion, but he is also suffering from recidivism (reincidencia). In such a
case, he will be considered only as recidivist, and par. 10 will no longer apply to
him.

The previous crimes for which accused underwent punishment must be at least
two (2) in number if the law imposes a penalty lower that the crime he had been
currently convicted; but if the penalty is equal or greater, a single offense is
sufficient. Thus, if A had been punished for Slight Physical Injuries in 1985 and
then underwent punishment again for Perjury in 1986, and later on committed
Rape, his liability for the last offenses will be aggravated by reiteracion. On the
other hand, if the previous conviction is Homicide, and later on the conviction is
for Falsification (lighter than Homicide), reiteracion is also present.

Different forms of habituality

1. Recidivist is one who
• At the time of his trial for one crime
• Shall have been previously convicted
• By final judgment
• Of another crime embraced in the same title of the Code
-Hence, there’s a need for two convictions (first, by final
judgment and it must take place prior to the second conviction)
• Accused committed robbery on December 23. He then committed
theft on December 30. He was convicted for theft. After, he was
charged for robbery. Is the accused a recidivist? No. The second
crime must be committed after the first conviction. (People vs.
Baldera)
2. Reiteracion
• The offender has previously served his sentence
• The first offense must have been punished with an equal or
greater penalty
• He has committed two or more crimes previously to which the
law attaches a lighter penalty
• Does not require that the offenses be covered under the same title
of the Code

Recidivism Reiteracion

34
 Antecedent Previous conviction by
final judgment
Offense Under the same Title of the
Code
Penalty No requirement as to
penalty imposed in the
prior conviction
Service of sentence
Need not be under the same
Title of the Code
Prior crime must have been
penalized with an equal or
greater penalty or 2 or more
crimes with lighter penalty

3. Habitual Delinquency
• Within a period of 10 years from the date of his release or last
conviction of the crimes of falsification, robbery, estafa, theft,
serious or less serious physical injuries
• Found guilty of said crimes a third time or oftener
• Special aggravating circumstance for which an additional penalty
is imposed which escalates with increase in the number of
convictions (Art. 62)
• Need for 3 convictions. The third conviction must be committed
within ten (10) years from the second conviction.

Recidivism Habitual Delinquency

Convictions Two are enough Three are required
Crimes covered Must be both under the The felonies are
same Title of the Code specified

Prescription None as no time limit Prescribes if the 10-year

given by law between limit between the
the 1st and 2nd second and third
convictions convictions are
exceeded
Nature Generic, can be offset Special, cannot be offset
Penalty Increase is to the Entails additional
maximum penalty penalty which increases
with the number of
convictions

4. Quasi-recidivism (Art. 160)

• Offender has been previously convicted by final judgment
• Before beginning to serve such sentence or while serving the
same, he commits a felony
• Special aggravating, cannot be offset
• Penalizes the convict with the maximum period for the new
felony committed
• Example: The accused is serving his sentence for the crime of
homicide. Then he kills someone in prison. He will get the
maximum period for his second homicide.

11. That the crime be committed in consideration of a price, reward, or

promise.

Discussion:

35
To consider this circumstance, the price, reward or promise must be the primary
reason or the primordial motive for the commission of the crime. Thus, if A
approached B and told the latter what he thought of X, and B answered “he is a
bad man” to which A retorted, “you see I am going to kill him this afternoon”,
and so B told him “If you do that, I’ll give you five thousand (P5,000.00)” and
after killing X, A again approached B, told him he had already killed X, and B,
in compliance with his promise, delivered the five thousand (P5,000.00), this
aggravating circumstance is not present.

Whenever present however, this aggravating circumstance affects not only the
accused who perpetrated the crime because of the money or consideration but
also the accused who offered, as the former becomes a principal by direct
participation while the latter, a principal by inducement. (People vs. Geraloga,
263 SCRA 143)

Mere promise, as long as it is the reason why the offense was done is sufficient.

12. That the crime be committed by means of inundation, fire, poison,

explosion, stranding of a vessel or intentional damage thereto, derailment of
a locomotive, or by the use of any other artifice involving great waste and
ruin.

Discussion:

The purpose in employing the means- that is, inundation, fire, poison, etc., must
be to kill the offended party to consider it as aggravating. Thus, where the
purpose of the offenders in putting flames the polo shirt of the victim was for
further merriment because the victim continued to dance even while his clothes
were on fire, to the delight of the crowd, there is no aggravating circumstance of
by means of fire, as obviously the objective of using fire to kill the victim is not
present.

Under R.A. No. 8294 which amends P.D. No. 1866, when a person commits any
crime under the Revised Penal Code or special laws with the use of explosives
including but not limited to pillbox, Molotov cocktail bombs, detonation agents
or incendiary devices resulting in the death of a person, the same is aggravating.
(Sec. 2)

13. That the act be committed with evident premeditation.

Discussion:
EVIDENT PREMEDITATION

Elements: 1. Time when the offender determined to commit the crime

2. An overt act manifestly indicating that he has clung to his determination
3. Sufficient lapse of time between such determination and execution to allow
him to reflect upon the consequences of his acts. (People vs. Annibong)
So where A and B had a fistic fight and A found himself at the receiving end
despite his size and threatened to kill B shouting, after they separated
“Hanggang bukas na lang ang buhay mo” and thereafter forgot everything but
when he saw B in the afternoon of that day, he stabbed him, there is no evident

36
premeditation to speak of because requisite no. 2 is lacking. However, if after
making the threat A went to his friends borrowing firearm, and when nobody
lent him, he bought a bolo, sharpened it the whole morning of the following day
and looked for B whom he killed with the said bolo, evident premeditation shall
be taken against him.

In People vs. Mojica, 10 SCRA 515, the lapse of one (1) hour and forty-five (45)
minutes (4:15 p.m. to 6 p.m.) was considered by the Supreme Court as
sufficient. In People vs. Cabodoc, 263 SCRA 187, where at 1:00 p.m., the
accused opened his balisong and uttered, “I will kill him (referring to the
victim)”, and at 4:30 p.m. of the said date accused stabbed the victim, it was
held that the lapse of three and a half hours (3 ½ hours) from the inception of the
plan to the execution of the crime satisfied the last requisite of evident
premeditation.

Where it appears that after the fight was broken up, the accused returned to kill
the victim after four (4) hours, it cannot be deduced with certainty that he clung
to his decision to kill the victim. There is no evident premeditation. (People vs.
Nell, et. al., G.R. No. 109660, July 1, 1997)

Evident pre- meditation while inherent in crimes against property, may be

considered in robbery with homicide if there is pre-meditation to kill besides
stealing. So also, where treachery obtains in this special complex crime, such
treachery is to be regarded as a generic aggravating circumstance although it
will not qualify the killing to murder, robbery with homicide being a case of a
composite crime with its own definition, and special penalty in the Revised
Penal Code. (People vs. Cando, 344 SCRA 331)

14. That the craft, fraud or disguise be employed.

Craft is present since the accused and his cohorts pretended to be bonafide
passengers of the jeep in order not to arouse suspicion; when once inside the
jeep, they robbed the driver and other passengers. (People vs. Lee, 204 SCRA
900)

However, in People vs. Aspile, 191 SCRA 530, appellants are ruled not to have
employed craft since they had already boarded the vessel when they pretended
to buy Tanduay Rum in exchange for the dried fish and chicken they were
carrying. Even without such pretense, they could nonetheless have carried their
unlawful scheme.

While craft is a circumstance characterized by trickery or cunning resorted to by

the accused (People vs. Barrios, 92 SCRA 195), fraud involves acts, or spoken or
written words, by a party to misled another into believing a fact to be true when
it is not so. (Antazo vs. People, 138 SCRA 292) Thus, where A armed with a
knife and ready to meet B, who was holding a lead pipe, told the latter that if he
(B) would just drop his weapon their differences would be settled amicably but
once B dropped his lead pipe, A immediately attacked him with his knife, fraud
is said to be present.

There is only a hairline distinction between craft and fraud and the Supreme
Court in various cases has used them interchangeably. Justice Luis Reyes in his

37
book, The Revised Penal Code, Book I, 1993 Ed., p. 399, has distinguished the
two (2) terms, in that when there is a direct inducement by insidious words or
machinations, fraud is present; otherwise, the act of the accused done in order
not to arouse the suspicion of the victims constitutes craft.

Disguise is the use of any device or artifice by the accused to conceal his
identity. Thus, where the accused wore masks to cover their faces, even if the
masks subsequently fell down, thus paving the way for their identification, this
aggravating circumstance is present as there could have been no other purpose
but to conceal their identities. (People vs. Cotabato, 160 SCRA 98)

If the offender put charcoal on his entire naked body, entered the house of his
neighbour and raped her, the crime of rape is aggravated by this circumstance.

But the accused must be able to hide his identity during the initial stage, if not
all throughout, the commission of the crime and his identity must have been
discovered only later on, to consider this aggravating circumstance. If despite
the mask worn by the accused, or putting of charcoal over his body, the offended
party even before the initial stage knew him, he was not able to hide his identity
and this circumstance cannot be appreciated.

15. That advantage be taken of superior strength, or means be employed to

weaken the defense.

Discussion:

The accused who, with sand in his hand, threw the same into the eyes of the
offended party when they were about to strike each other causing the momentary
blindness on the part of the latter has employed means to weaken the defense.

The fact however that there were two persons who attacked the victim does not
per se establish that the crime was committed with abuse of superior strength.
To take advantage of superior strength means to purposely use excessive force
out of proportion to the means available to the person attacked to defend
himself. (People vs. Casingal, 243 SCRA 37)

Where appellants’ group numbered more than five (5), two (2) of whom were
armed with bladed weapons while the victim was unarmed surrounded by the
group, with his hand held by at least one (1), and was stabbed fatally sustaining
two (2) frontal wounds and other injuries, the crime is aggravated by abuse of
superior strength in as much as no alevosia was proven as the appellants did not
consciously adopt their mode of attack. (People vs. Daen, Jr., 244 SCRA 382)

Had treachery or alevosia been proven, it would have absorbed abuse of superior
strength. (People vs. Panganiban, 241 SCRA 91)

The attack of the three (3) men all armed with bladed weapons against an
unarmed woman whose body bore seventeen (17) stab wounds, clearly shows
the presence of this circumstance.

16. That the act be committed with treachery (alevosia).

There is treachery when the offender commits any of the crimes against the

38
person, employing means, methods, or forms in the execution thereof which
tend directly and specially to insure its execution, without risk to himself
arising from the defense which the offended party might make.

Discussion:
TREACHERY

There is treachery or alevosia when the offender commits any of the crimes
against the person, employing means, methods or forms in the execution thereof
which tend directly and specially to insure its execution, without risk to himself
arising from the defense which the offended party might make.

For treachery to be present, two conditions must concur: (a) the employment of
means of execution which would ensure the safety of the offender from
defensive and retaliatory acts of the victim, giving said victim no opportunity to
defend himself, and (b) the means, method and manner of execution were
deliberately and consciously adopted by the offender. (People vs. Malabago,
265 SCRA 198)

Where the accused, suddenly and without any warning, shot the deceased from
behind, knowing he was carrying a bolo, there is treachery. (People vs.
Escander, 265 SCRA 444)

Even if the attack is frontal, treachery may also be considered if the attack on the
victim, although preceded by a warning “Tara Sergio”, was undoubtedly sudden
and unexpected and prevented the unsuspecting victim, who had just stood up,
from defending himself. (People vs. Estanislao, 265 SCRA 810)

For treachery to be appreciated however, this circumstance must be present at

the inception of the attack and if absent, and the attack is continuous, treachery
at a subsequent stage is not to be considered. (People vs. Escoto, 244 SCRA 382)
However, if there is a break in the continuity of the aggression, it is not
necessary that treachery be present in the beginning of the assault; it is sufficient
that when the fatal blow was inflicted, there was treachery. (U.S. vs. Balagtas,
19 Phil. 164)

As a rule, a sudden attack by the assailant, whether frontally or from behind, is

treachery if such mode of attack was coolly and deliberately adopted by him
with the purpose of depriving the victim of a chance to either fight or retreat.
(People vs. Real, 242 SCRA 671) However, mere suddenness of the attack, or
one made from behind, does not necessarily compel a finding of treachery for
the essence of this circumstance lies in the adoption of ways and means that
minimize or neutralize any resistance which may be put up by the offended
party. (People vs. Gonzagan, Jr., 247 SCRA 220)

17. That means be employed or circumstances brought about which add

ignominy to the natural effects of the act.

Discussion:

Ignominy is a circumstance pertaining to the moral order, which adds disgrace

and obloquy to the material injury caused by the crime, so that killing a man in

39
the presence of the wife does not constitute ignominy (People vs. Abaigar, 2
Phil. 417) but raping her in the presence of the husband shows ignominy and
aggravates the offense.

Where before the victim, a landowner, was killed, he was made to kneel in front
of his househelpers, this aggravating circumstance would be present. (U.S. vs. de
Leon, 1 Phil. 163)

The victim must still be alive. (People vs. Fuertes)

The ruling that if robbery with homicide was committed with additional killings
and/ or rape, the additional killings or the rape shall be considered aggravating
circumstances has been rendered obsolete by the Supreme Court’s decision in
People vs. Regala, 329 SCRA 709 holding that there is no law providing that
additional rape/s or homicide/s committed on the occasion of robbery should be
considered as aggravating circumstance. A penal law is liberally construed in
favour of the offender and no person should be brought within its terms if it is
not clearly made so by the statute.

18. That the crime be committed after an unlawful entry.

There is an unlawful entry when an entrance of a crime a wall, roof, floor,
door, or window be broken.

Discussion:

In taking away certain valuable articles from the house, accused entered through
the window. The crime committed is Robbery; but because this circumstance is
not alleged in the information, the offense is classified as Theft. However, the
crime is aggravated by Unlawful Entry. (People vs. Sunga, 43 Phil. 205)

19. That as a means to the commission of a crime a wall, roof, floor, door or
window be broken.

Discussion:

The breaking of the parts of the house must be made as a means to commit the
offense. So, if A entered the door of his neighbour and after killing him, escaped
by breaking the jalousies of the window or the door, this aggravating
circumstance is absent.

While the law uses the words “wall, roof, floor, door or window”, in one case,
where accused entered a field tent by cutting the ropes at the rear of the tent, and
killed the victim soldiers sleeping thereat, the Supreme Court considered the
crime of Murder, attended by the aggravating circumstance of forcible entry.

20. That the crime be committed with the aid of persons under fifteen years
of age or by means of motor vehicles, motorized watercraft, airships, or
other similar means. (As amended by RA 5438).
21. That the wrong done in the commission of the crime be deliberately
augmented by causing other wrong not necessary for its commissions.

Discussion:

40
CRUELTY

There is cruelty when the offender deliberately and inhumanly augmented the
suffering of the victim.

The fact that the victim’s decapitated body bearing forty- three (43) stab
wounds, twenty-four (24) of which were fatal was found dumped in the street is
not sufficient for a finding of cruelty where there is no showing that the accused,
for his pleasure and satisfaction caused the victim to suffer slowly and painfully
and inflicted on him unnecessary physical and moral pain. (People vs. Ilaoa, 233
SCRA 231)

AGGRAVATING CIRCUMSTANCES NOT PROVIDED UNDER

REVISED PENAL CODE

A. Under the Influence of Dangerous Drugs

Sec. 17 of B.P. Blg. 179 promulgated on March 2, 1982 provides:

“The provision of any law to the contrary notwithstanding, when a crime is

committed by an offender who is under the influence of dangerous drugs,
such state shall be considered as qualifying aggravating circumstance.”

B. Organized/ Syndicated Group

The maximum penalty shall be imposed if the offense was committed by any
person who belongs to an organized/ syndicated crime group.

An organized/ syndicated crime group means a group of two or more persons

collaborating, confederating or mutually helping one another for purposes of
gain in the commission of any crime. (Art. 23, R.A. No. 7659)

Chapter Five
ALTERNATIVE CIRCUMSTANCES

They are those circumstances which must be taken into consideration as

aggravating or mitigating according to the nature and effects of the crime and
the other conditions attending its commission.

Art. 15. Their concept. — Alternative circumstances are those which must
be taken into consideration as aggravating or mitigating according to the
nature and effects of the crime and the other conditions attending its
commission. They are the relationship, intoxication and the degree of
instruction and education of the offender.

The alternative circumstance of relationship shall be taken into

consideration when the offended party is the spouse, ascendant, descendant,
legitimate, natural, or adopted brother or sister, or relative by affinity in
the same degrees of the offender.

The intoxication of the offender shall be taken into consideration as a

41
mitigating circumstances when the offender has committed a felony in a
state of intoxication, if the same is not habitual or subsequent to the plan to
commit said felony but when the intoxication is habitual or intentional, it
shall be considered as an aggravating circumstance.

Discussion:
RELATIONSHIP

Relationship shall be considered when the offended party is the spouse,

ascendant, descendant, brother or sister, or relative by affinity in the same
degree of the offender, like parents-in-law, children-in-law, or brothers-in-law or
sisters-in-law. The relationship of step-daughter and step-father is included.
(People vs. Tan, Jr., 264 SCRA 425) but not that of uncle and niece. (People vs.
Cabresos, 244 SCRA 362)

When is relationship a mitigating circumstance? In crimes against property, it is

mitigating, applying by analogy Art. 332 which provides that there is no
criminal but only civil liability in case of theft, swindling or malicious mischief
committed or caused mutually by spouses, ascendants, descendants, brothers
and sisters, and relatives by affinity in the same line, with a proviso that in case
of brothers or sisters and brothers-in-law or sisters-in-law they must be living
together.

In crimes against persons, except serious physical injuries, where relationship is

always aggravating the rule is where the offended party is a relative of a higher
degree, or where he is of the same level as the offender, relationship is
aggravating, otherwise it is mitigating. If it results in the death of the victim
even if he is of a lower level, the relationship is aggravating. However, this rule
is subject to the “other conditions attending the commission of the crime”.

INTOXICATION

The ordinary rule is that, intoxication may be considered either aggravating or

mitigating, depending upon the circumstances attending the commission of the
crime. Intoxication has the effect of decreasing the penalty, if the intoxication is
not habitual or subsequent to the plan to commit the crime; upon the other hand,
when intoxication is habitual or intentional, it is considered as an aggravating
circumstance. The person pleading intoxication must present proof that he had
taken, a quantity of alcoholic beverage prior to the commission of the crime,
sufficient to produce the effect of blurring his reason; and at the same time, he
must prove that not only was intoxication not habitual but also that his imbibing
the alcoholic drink was not intended to fortify his resolve to commit the crime.
(People vs. Buenaflor, 211 SCRA 492)

DEGREE OF INSTRUCTION AND EDUCATION OF THE OFFENDER

High degree of education and instruction of the offender is always aggravating,

never mitigating when applicable. In a case for Homicide or Murder, the liability
of the offender is not aggravated even if he is a bar or board examination
topnotcher, and has graduated summa cum laude from his college degree. On the
other hand, the liability of an accountant or a lawyer who commits Estafa by
means of “Kiting” or violation of the Trust Receipts Law shall be aggravated

42
since he used his high degree of education and knowledge in committing the
criminal act.

Low degree of instruction or education, on the other hand is always mitigating,

never aggravating when applicable. Where the accused did not finish even the
first grade in elementary school, the murder he committed is attenuated by this
alternative circumstance (People vs. Limaco, 88 Phil. 35); so also in perjury
where the affidavit is written in English this mitigating circumstance is present.

The rule however is that not only illiteracy, but also lack of sufficient
intelligence, is necessary to successfully avail of this alternative circumstance as
mitigating.

In Molesa vs. Director of Prisons, 59 Phil. 407, the Supreme Court ruled:

“This Court has held that the mitigating circumstance of lack of instruction
should not be taken into consideration in connection with the crime of rape. Xxx
No one is so ignorant as not to know that the crime of rape is wrong and
violation of the law.”

Title Two
PERSONS CRIMINALLY LIABLE FOR FELONIES

Who are the particeps criminis- that is, those participants in the crime? They are
the principals, accomplices, and accessories. However, for light felonies, the
persons criminally liable are only the principals and the accomplices. (Art. 16)

By the personal nature of criminal liability, only natural persons can be the
active subject of a crime. However, corporations and juridical persons can be
ordered to pay fine as a punishment under some special laws, like the
Corporation Law, General Banking Act, Omnibus Election Code, etc. In some
cases, the officers of the corporation and/ or partnerships are the ones personally
held liable.

Art. 16. Who are criminally liable. — The following are criminally liable for
grave and less grave felonies:
1. Principals
2. Accomplices
3. Accessories

The following are criminally liable for light felonies:

1. Principals
2. Accomplices

For light felonies, accessories are not liable because the light felonies are
punished with arresto menor. Accessories are given the penalty two degrees
lower than the principals. There is nothing two degrees below arresto menor.

Art. 17. Principals. — The following are considered principals:

1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it;
3. Those who cooperate in the commission of the offense by another act

43
without which it would not have been accomplished.

Discussion:

There are three (3) Classes of Principals- (a) Principals by Direct Participation-
that is, those who take a direct part in the execution of the act; (b) Principals by
Inducement or Induction- those who directly force or induce others to commit
the crime; and (c) Principals by Indispensable Cooperation, those who cooperate
in the execution of the offense by another act without which the crime would not
have been accomplished.

Principal by Direct Participation are those who, participating in the criminal

resolution, proceed to perpetrate the crime and personally take part in its
realization, executing acts which directly tend to the same end. (People vs.
Guballo, 16401-R, Feb. 19, 1957) To hold liable thus as principals by direct
participation, they must have conspired with each other (and with other
participants if there are any) and went to the scene of the crime to personally
execute what they agreed upon, their acts tending towards the same objective.

Thus, if A, B, C and D conspired with each other to kill X and then proceeded to
the house of X, but before reaching the same, D pretending to answer the call of
nature went out of the way and did not join A, B and C anymore when the three
(3) [A, B & C] killed X, D cannot be considered a principal by direct
participation since even if he conspired with the three, he did not proceed to the
scene of the crime.

So also, if X, Y and Z passed by the house of W who was apparently not in the
mood and upon Z’s loud calling, went out of his house with a bolo, and while
grappling with W, the latter’s wife came out from nowhere and stabbed Z with
her spear, W cannot be classified as a principal by direct participation as he did
not conspire with his wife in killing Z even if he was at the scene of the crime.

The acts of the participants must be towards the same end in carrying out their
plan. So that in the first example above, even if A only acted as look-out in the
yard of X’s house, and B just accompanied C to the room where X was sleeping,
ready to assist C if the need arises, and it was only C who fired the gun that
killed X, all the three (3) meaning, A, B and C are principals by direct
participation.

Where the accused conspired with his three (3) co-accused to kill the two (2)
victims and the role assigned to him was to kill one of the victims which he did,
he is a principal by direct participation in the two (2) murders.

Where conspiracy has been adequately proven, there is collective criminal

responsibility, for in conspiracy, the act of one is the act of all. On the other
hand, if there is no conspiracy proven, individual criminal liability may ensue.
Principal by Direct Inducement are of two (2) classes: those who directly
induce others to commit the crime, and those who directly force another to
perpetrate the offense. The one forced or induced is the principal by direct
participation.

There are two (2) ways of directly inducing another to commit a crime:

44
(a) By giving price, reward or promise. To fall under the scenario, the price,
reward or promise must be the primordial consideration why the principal by
direct participation proceeded to commit the crime. So that if he would commit
the offense just the same with or without the price, promise or reward, the one
who gave the price or reward is not liable. Necessarily, there must be conspiracy
between the giver of the consideration, and the doer of the act.

(b) By using words of command. To hold the principal by inducement liable, it

is necessary that the inducement be made directly to secure the commission of
the crime and that such inducement be the determining cause of the execution of
the act by the principal by direct participation.

Mere suggestion, or a thoughtless expression or a chance word spoken without

any intention or expectation that it would produce the result cannot hold the
utterer liable as principal by inducement. Thus, if A, in response to B who was
narrating to him his (B’s) bitter experience with X in a chance conversation told
B, “Kung ako ikaw eh papatayin ko yang si X”, and later on, B killed X, A
cannot be considered a principal by inducement.

Even if the inducement be directly made, with the inducer insistent and
determined to procure the commission of the crime, he still cannot be classified
as principal by induction if the inducement is not the determining cause for
committing the crime. Thus, if the actor has reason of his own to commit the
offense, there can be no principal by induction.

Those who directly forced another to commit a crime are also categorized as
Principals by Inducement.

Thus, with a gun in his hand, A gave B a knife and ordered him to kill X who
was sleeping nearby otherwise he (A) would shoot him (B). If B would stab X to
death, A is a principal by inducement directly forcing another to commit a
crime. B, on the other hand, is a principal by direct participation although he
would be exempt from criminal liability under Article 12, par. 6.

Does the Principal by Direct Inducement have to be in the scene of the crime to
be liable? No, they are liable even if they did not appear in the crime scene.

Principals by Indispensable Cooperation are those who cooperate in the

commission of the offense by another act without which it would not have been
accomplished. Like in the case of Principal by Inducement, it presupposes the
existence of the principal by direct participation otherwise with whom shall he
cooperate with indispensably.

The cooperation spoken here is assistance knowingly or intentionally rendered

which cannot exist without previous cognizance of the criminal act intended to
be executed. (Phil. Law Dictionary by Moreno, 3rd Ed., p. 213) In other words,
before an accused can be tagged as a principal by indispensable cooperation, he
must have conspired with the principal by direct participation or must have a
unity of criminal purpose and intention with him immediately before the
commission of the offense, but his cooperation is in the performance of another
act without which the criminal act would not have been accomplished.

45
Where both accused conspired and confederated to commit rape, and one had
sex with the offended party while the other was holding her hands, and
thereafter the latter was the one who raped the victim, both are principals by
direct participation and by indispensable cooperation in the two (2) crimes of
rape committed. (People vs. Fernandez, 183 SCRA 511)

Where A, a municipal treasurer, conspired with B for the latter to present a false
receipt and which receipt was the basis of the reimbursement approved by A,
and both thereafter shared the proceeds, A is the principal by direct participation
and B by indispensable cooperation in the crime of Malversation.

Does the Principal by Indispensable Cooperation have to be in the crime scene?

No.
Example: A, who lives in the US, gives B poison to kill C. B used the poison to
kill C here in the Philippines. A is Principal by Indispensable Cooperation and B
is Principal by Direct Participation.

Art. 18. Accomplices. — Accomplices are those persons who, not being
included in Art. 17, cooperate in the execution of the offense by previous or
simultaneous acts.

Discussion:
An Accomplice is one who not being a principal, cooperates in the execution of
the offense by previous or simultaneous acts. To be an accomplice, the offender
should take part in the execution of the crime by previous or simultaneous acts
and intends to take part in the commission of the crime.

The existence of an accomplice presupposes the existence of a principal by

direct participation. The accomplice does not conspire with the principal
although he cooperated in the execution of the criminal act.

If A approached B, borrowing the latter’s gun, telling him that he (A) is going to
kill X, and B knowing A’s criminal design, lent his gun with which A shot and
killed X, B is an accomplice cooperating by previous act.

In the above example, take note that while B did not conspire with A to kill X,
he (B) concurred with A in his purpose. Had he conspired with A, B is a
principal by indispensable cooperation. The act of A however must have a
relation to the participation of B. Thus, if while B, knowing A’s purpose to kill
X, still lent his gun to A, but A used a bolo in killing X, then B cannot be
considered an accomplice.

While X was choking Y, W went behind Y without any knowledge of X and

once within striking distance, stabbed Y. Even upon seeing the stabbing made
by W, X continued choking Y, who died of stab wounds. Choking contributed to
the death of Y. In this case, W is an accomplice cooperating by simultaneous
act.

If the offender, however, even if performing the acts of an accomplice, has

participated as a principal, he will be punished as a principal and no longer an
accomplice.

46
Example: A killed B. C was the lookout. But while B was being stabbed by A, C
stole from B. What is the liability of C?
Accomplice to the murder of B and Principal to the crime of robbery of B.

Art. 19. Accessories. — Accessories are those who, having knowledge of the
commission of the crime, and without having participated therein, either as
principals or accomplices, take part subsequent to its commission in any of
the following manners:
1. By profiting themselves or assisting the offender to profit by the effects of
the crime.
2. By concealing or destroying the body of the crime, or the effects or
instruments thereof, in order to prevent its discovery.
3. By harboring, concealing, or assisting in the escape of the principals of
the crime, provided the accessory acts with abuse of his public functions or
whenever the author of the crime is guilty of treason, parricide, murder, or
an attempt to take the life of the Chief Executive, or is known to be
habitually guilty of some other crime.

Discussion:

Accessories are those who have knowledge of the commission of the crime
without having participated therein but who took part subsequent to its
commission in any of the following means:

1. Profiting or assisting the offender to profit from the effects of the crime.

The most common example is a person who, without having participated as

principal or accomplice in Robbery or Theft but knowing that the property being
offered to him is the proceeds or subject matter of the said crime, bought or
purchased or dealt in any manner with such property, obtaining benefit from said
transaction or helping the thief or robber to profit therefrom. If the robber or
thief requests him to sell the property stolen, and he does so and thereafter given
a share, he is also an accessory.

Under P.D. No. 1612, otherwise known as “Anti-fencing Law”, any person who,
with intent to gain for himself or for another, shall buy, receive, possess, keep,
acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner
deal in any article, item, object or anything of value which he knows, or should
have known to have been derived from the proceeds of the crime of robbery or
theft shall be punish depending on the value of the property involved. (Sec. 2)

The accessory however should not take the property without the consent of the
principal or accomplice in possession of the same, otherwise he is a principal in
the crime of theft since a stolen property can also be the subject of theft or
robbery.

A person who profits or assists the offender to profit by the effects of the crime
is also illustrated in a kidnapping case where the kidnappers ask a person who
has not participated in the actual kidnapping, to contact the parents of the victim
to negotiate the delivery of ransom money, and having successfully done so,
receives a share from the same. He is also an accessory.

47
But if a person being a co-conspirator in theft or robbery, sold some of the
property stolen, he should no longer be punished as an accessory since he will be
held already as a principal.
Profiting or assisting the offender to profit
• Intent to gain is not enough, there must have been some gain or material
benefit.
• A person who received any property from another and used it, knowing
the property was stolen, is guilty as an accessory by profiting.
• If the crime is robbery/ theft and one bought, sold, possessed, or profited
from the goods stolen, what is he guilty of?
-Principal for the crime of fencing
-Accessory to the principals in the crime of robbery or theft
• One who receives part of the ransom/ loot from kidnapper/ robbery with
homicide is an accessory to the crime of kidnapping/ robbery with
homicide.

2. By concealing the body of the crime or effects or the instruments thereof to

prevent its discovery;

Where A, knowing that B and C had killed X, buried the corpse to prevent the
discovery of the killing, he is an accessory.

The body of the crime however does not only mean the body of the person
killed. This phrase refers to CORPUS DELICTI- that is, the body or the
substance of the offense. (People vs. Bantagan, 54 Phil. 841). Corpus Delicti
simply means the fact that a crime has actually been committed. (People vs.
Madlangbayan, 94 SCRA 685)

Placing a weapon in the hand of the deceased who was killed by his friend, to
make it appear that his friend had killed the victim in self-defense constitutes an
act of an accessory.

Where the wife misled the authorities by informing them that the person who
killed her husband was a thief who has fled, when in truth, the killer was her
paramour, the wife is liable as an accessory for concealing the body of the
crime.

If A, after killing a person, went to B and told the latter to hide the gun he used,
which B did with the objective of concealing the crime, B is an accessory by
concealing the instrument of the crime. So also, if X would deliver the car he
had carnapped, to Y, telling the latter of the carnapping he did, and asking him
to conceal the car so that the crime would not be discovered, and Y did so, he is
an accessory by concealing the effects of the crime.

3. By harboring, concealing or assisting the escape of the principal of the

crime, provided the accessory acts with abuse of public functions, or whenever
the author of the crime is guilty of treason, parricide, murder or an attempt to
take the life of the Chief Executive, or is known guilty of some other crime.

2 Kinds: a. By a public officer who acts with abuse of public functions, he is

liable whatever crime may have been committed by the offender and

48
b. By a private individual and only when the author of the crime is guilty of
treason, attempt on the life of the Chief Executive, murder, parricide or is known
to be habitually guilty of some other crime.

So a private individual will only be liable as an accessory for harbouring the

escape of the offender for those crimes enumerated. Compare this to the public
officer who is guilty for whatever crime. Take note that in the second instance,
the principal must have been adjudged guilty.

If the one who harbors or assists in the escape of the principal is a public officer,
whatever be the crime committed by the said principal provided it is not a light
felony, will make him an accessory. Thus, if A rapes a woman, and he is assisted
in his escape by a public officer, the latter is liable as an accessory.

However, if the one who assists the rapist in his escape is a private individual, he
is not liable as an accessory under this article because in case of a private
individual assisting the escape of the principal, the crime committed must be
treason, parricide, murder or an attempt to take the life of the Chief Executive.

Thus, if A and B agreed to fight, and after killing B, A was assisted by private
individual C in his escape, C is not liable as an accessory because the crime
committed by A is only Homicide there being an agreement to fight.

While accessories’ liability is subordinate to that of the principal, the acquittal of

the latter does not mean acquittal of the accessory. So that if A, charged as
principal in a murder case, with B indicted as accessory for helping him escape
before he was finally arrested, and A was acquitted because of self-defense or
that the court adjudged the crime to be only Homicide, B is not liable as an
accessory. But if A was acquitted because of insanity, or the case against him
dismissed because he died during the trial, B can still be held liable as an
accessory as long as it is proven that the crime was murder, and he assisted A in
his escape.

In connection with this matter, Presidential Decree No. 1829 provides that the
penalty of prision correccional in its maximum period, or a fine ranging from
one thousand (P1,000.00) to six thousand (P6,000.00) pesos or both, shall be
imposed upon any person who knowingly or wilfully obstructs, impedes,
frustrates or delays the apprehension of suspects and the investigation and
prosecution of criminal cases by harbouring or concealing, or facilitating the
escape of any person whom he knows, or has reasonable ground to believe or
suspect, has committed any offense under existing penal laws in order to prevent
his arrest, prosecution and conviction. This is what is properly known as
Obstruction of Justice.

Art. 20. Accessories who are exempt from criminal liability. — The penalties
prescribed for accessories shall not be imposed upon those who are such
with respect to their spouses, ascendants, descendants, legitimate, natural,
and adopted brothers and sisters, or relatives by affinity within the same
degrees, with the single exception of accessories falling within the provisions
of paragraph 1 of the next preceding article.

Discussion:

49
Who are exempt?
• Spouse
• Ascendant
• Descendant
• Legitimate, natural and adopted brothers and sisters
• Relatives by affinity within the same degrees

Why? Natural affection for the offender.

Exempt for acts in Art. 19 EXCEPT if they profit or assist the offender to profit
Example: A killed B, told sister C to hide the body of B. A and C buried B. The
sister is exempt. Got to preserve the cleanliness of one’s name. It compels one to
conceal crimes by relatives.

Title Three
PENALTIES
Chapter One
PENALTIES IN GENERAL

Penalty is the punishment imposed by lawful authority upon a person who

commits an unlawful, deliberate or negligent act. (People vs. Moran, 44 Phil.
431)

Art. 21. Penalties that may be imposed. — No felony shall be punishable by

any penalty not prescribed by law prior to its commission.

Discussion:
• Only penalties prescribed by law prior to its commission can be imposed
on the offender
• Article 21 of the Revised Penal Code provides that no felony shall be
punishable by any penalty not prescribed by law prior to its commission
but the law cannot impose cruel and unusual punishment as the
Constitution prohibits it. In a judgment of conviction for any crime, the
court should specify the appropriate name of the penalty provided for in
the Revised Penal Code or in special laws. (People vs. Aquino)

Art. 22. Retroactive effect of penal laws. — Penal Laws shall have a
retroactive effect insofar as they favor the persons guilty of a felony, who is
not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this
Code, although at the time of the publication of such laws a final sentence
has been pronounced and the convict is serving the same.

Art. 23. Effect of pardon by the offended party. — A pardon of the offended
party does not extinguish criminal action except as provided in Article 344
of this Code; but civil liability with regard to the interest of the injured
party is extinguished by his express waiver.

Art. 24. Measures of prevention or safety which are not considered penalties.
— The following shall not be considered as penalties:
1. The arrest and temporary detention of accused persons, as well as their
detention by reason of insanity or imbecility, or illness requiring their
confinement in a hospital.

50
2. The commitment of a minor to any of the institutions mentioned in
Article 80 and for the purposes specified therein.
3. Suspension from the employment of public office during the trial or in
order to institute proceedings.
4. Fines and other corrective measures which, in the exercise of their
administrative disciplinary powers, superior officials may impose upon
their subordinates.
5. Deprivation of rights and the reparations which the civil laws may
establish in penal form.

Chapter Two
CLASSIFICATION OF PENALTIES

Art. 25. Penalties which may be imposed. — The penalties which may be
imposed according to this Code, and their different classes, are those
included in the following:
Scale
Principal Penalties
Capital punishment:
Death.
Afflictive penalties:
Reclusion perpetua,
Reclusion temporal,
Perpetual or temporary absolute disqualification,
Perpetual or temporary special disqualification,
Prision mayor.
Correctional penalties:
Prision correccional,
Arresto mayor,
Suspension,
Destierro.
Light penalties:
Arresto menor,
Public censure.
Penalties common to the three preceding classes:
Fine, and
Bond to keep the peace.
Accessory Penalties
Perpetual or temporary absolute disqualification,
Perpetual or temporary special disqualification,
Suspension from public office, the right to vote and be voted for, the
profession or calling.
Civil interdiction,
Indemnification,
Forfeiture or confiscation of instruments and proceeds of the
offense,
Payment of costs.

Discussion:
CLASSIFICATION OF PENALTIES

51
Principal Penalties

Capital Punishment
-death
Afflictive Penalties
-Reclusion Perpetua
-Reclusion Temporal
-Perpetual or Temporary Absolute Disqualification
-Perpetual or Temporary Special Disqualification
-Prision Mayor

Correctional Penalties
-Prision Correccional
-Arresto Mayor
-Suspension
-Destierro

Light Penalties
-Arresto Menor
-Public Censure

Principal Penalties are those expressly imposed by the court while Accessory
Penalties are those that are deemed included in the principal penalties imposed.

In the order of severity and for the purpose of successive service of sentences,
the penalties have the following scale:

1. Death
2. Reclusion Perpetua
3. Reclusion Temporal
4. Prision Mayor
5. Prision Correccional
6. Arresto Mayor
7. Arresto Menor
8. Destierro
9. Perpetual Absolute Disqualification
10. Temporary Absolute Disqualification
11. Suspension from public office, the right to vote and be voted for, the
right to follow profession or calling
12. Public Censure

The maximum duration however of the convict’s sentence shall not be more
than threefold the length of time corresponding to the most severe of the
penalties imposed. Said maximum period shall in no case exceed forty (40)
years. (Art. 70)

With respect to Reclusion Perpetua and Life Imprisonment which more often
than not become somehow confusing, the following are their differences:
1. Reclusion Perpetua is imposed by the Revised Penal Code while Life
Imprisonment is imposed by Special Law
2. Reclusion Perpetua entails imprisonment for only thirty (30) years
after which the convict becomes eligible for pardon while Life

52
 Imprisonment does not appear to have definite extent or duration;
and
3. Reclusion Perpetua carries Accessory penalties, while it is not so in
Life Imprisonment. (People vs. Abapo)
For the purpose of graduating the penalties in the light of the mitigating and
aggravating circumstances present in the commission of the offense, the courts
shall observe the following scales:

SCALE NO. 1 SCALE NO. 2

1. Death 1. Perpetual Absolute
2. Reclusion Perpetua Disqualification
3. Reclusion Temporal 2. Temporary Absolute
4. Prision Mayor Disqualification
5. Prision Correccional 3. Suspension from public
6. Arresto Mayor office, the right to vote and
7. Destierro be voted for, and the right
8. Arresto Menor to follow a profession or
9. Public Censure calling
10. Fine 4. Public Censure
5. Fine (Art. 71)

A fine, however, whether imposed as a single or as an alternative penalty, shall

be considered afflictive if it exceeds six thousand (P6,000.00); correctional
penalty if it does not exceed six thousand (P6,000.00) but not less than two
hundred (P200.00), and light if it be less than two hundred (P200.00)

Art. 26. When afflictive, correctional, or light penalty. — A fine, whether

imposed as a single of as an alternative penalty, shall be considered an
afflictive penalty, if it exceeds 6,000 pesos; a correctional penalty, if it does
not exceed 6,000 pesos but is not less than 200 pesos; and a light penalty if it
less than 200 pesos.

Chapter Three
DURATION AND EFFECTS OF PENALTIES
Section One. — Duration of Penalties

Art. 27. Reclusion perpetua. — Any person sentenced to any of the

perpetual penalties shall be pardoned after undergoing the penalty for
thirty years, unless such person by reason of his conduct or some other
serious cause shall be considered by the Chief Executive as unworthy of
pardon.
Reclusion temporal. — The penalty of reclusion temporal shall be from
twelve years and one day to twenty years.
Prision mayor and temporary disqualification. — The duration of the
penalties of prision mayor and temporary disqualification shall be from six
years and one day to twelve years, except when the penalty of
disqualification is imposed as an accessory penalty, in which case its
duration shall be that of the principal penalty.
Prision correccional, suspension, and destierro. — The duration of the
penalties of prision correccional, suspension and destierro shall be from six
months and one day to six years, except when suspension is imposed as an

53
accessory penalty, in which case, its duration shall be that of the principal
penalty.
Arresto mayor. — The duration of the penalty of arresto mayor shall be
from one month and one day to six months.
Arresto menor. — The duration of the penalty of arresto menor shall be
from one day to thirty days.
Bond to keep the peace. — The bond to keep the peace shall be required to
cover such period of time as the court may determine.

Discussion:
Amended by Section 21 of R.A. No. 7659 which provides:
Section 21. Article 27 of the Revised Penal Code, is hereby amended to read as
follows:
Article 27. Reclusion Perpetua. – The penalty of reclusion perpetua shall
be from twenty (20) years and one (1) day to forty (40) years.

Reclusion Temporal- The penalty of reclusion temporal shall be from

twelve (12) years and one (1) day to twenty (20) years.

Prision Mayor and temporary disqualification- The duration of the

penalties of prision mayor and temporary disqualification shall be from six
(6) years and one (1) day to twelve (12) years, except when the penalty of
disqualification is imposed as an accessory penalty, in which case, its
duration shall be that of the principal penalty.

Prision correccional, suspension and destierro- The duration of the

penalties of prision correccional, suspension, and destierro shall be from
six (6) months and one (1) day to six (6) years, except when suspension is
imposed as an accessory penalty, in which case, its duration shall be that of
the principal penalty.

Arresto mayor- The duration of the penalty of arresto mayor shall be from
one (1) month and one (1) day to six (6) months.

Arresto menor- The duration of the penalty of arresto menor shall be from
one (1) day to thirty (30) days.

Reclusion perpetua, despite its “defined duration” in R.A. No. 7659- twenty (20)
years and one (1) day to forty (40) years- is still to be classified as an indivisible
penalty (People vs. Lucas), and should be imposed in its entire duration in
accordance with Art. 63 of the Revised Penal Code. (People vs. Magallano)

Art. 28. Computation of penalties. — If the offender shall be in prison, the

term of the duration of the temporary penalties shall be computed from the
day on which the judgment of conviction shall have become final.

If the offender be not in prison, the term of the duration of the penalty
consisting of deprivation of liberty shall be computed from the day that the
offender is placed at the disposal of the judicial authorities for the
enforcement of the penalty. The duration of the other penalties shall be
computed only from the day on which the defendant commences to serve
his sentence.

54
Art. 29. Period of preventive imprisonment deducted from term of
imprisonment. — Offenders who have undergone preventive imprisonment
shall be credited in the service of their sentence consisting of deprivation of
liberty, with the full time during which they have undergone preventive
imprisonment, if the detention prisoner agrees voluntarily in writing to
abide by the same disciplinary rules imposed upon convicted prisoners,
except in the following cases:
1. When they are recidivists or have been convicted previously twice or
more times of any crime; and
2. When upon being summoned for the execution of their sentence they
have failed to surrender voluntarily.
If the detention prisoner does not agree to abide by the same disciplinary
rules imposed upon convicted prisoners, he shall be credited in the service
of his sentence with four-fifths of the time during which he has undergone
preventive imprisonment. (As amended by Republic Act 6127, June 17,
1970).
Whenever an accused has undergone preventive imprisonment for a period
equal to or more than the possible maximum imprisonment of the offense
charged to which he may be sentenced and his case is not yet terminated, he
shall be released immediately without prejudice to the continuation of the
trial thereof or the proceeding on appeal, if the same is under review. In
case the maximum penalty to which the accused may be sentenced is
destierro, he shall be released after thirty (30) days of preventive
imprisonment. (As amended by E.O. No. 214, July 10, 1988).

Discussion:
PREVENTIVE AND SUBSIDIARY IMPRISONMENT

Preventive imprisonment is the incarceration undergone by a person accused of

a crime which is not bailable, or even if bailable cannot afford to post the bond.
During the trial of his case, he is detained in jail. He is known as detention
prisoner.
Subsidiary imprisonment, on the other hand, is the personal penalty prescribed
by law in substitution of the payment of fine embodied in the decision when the
same cannot be satisfied because of the culprit’s insolvency. (People vs.
Jarumayan)

Example: If the trial of A for attempted homicide is still going on for more than
six (6) years, and he has been detained from the beginning of the trial for failure
or inability to post bail bond, he shall be ordered immediately release, for the
crime is punishable by prision correccional (Art. 249 in relation to Articles 6 and
51), and the range of this penalty is six (6) months and one (1) day to six (6)
years only. (Art. 27) But the trial shall proceed so that in case of acquittal, he
will have no criminal record. In case of conviction, he will not be imprisoned
anymore.

The preventive imprisonment undergone by the accused shall be credited fully,

to be subtracted from his sentence, if he agrees in writing to abide by the
disciplinary rules imposed on convicted prisoners; otherwise, only four-fifths of
the time during which he has undergone preventive imprisonment shall be
deducted.

55
 The following are exceptions however:
1. If the convict is a recidivist or has been previously convicted
twice or more of any crime;
2. When upon being summoned for the execution of his sentence, he
shall have failed to surrender voluntarily. (Art. 29, RPC)

There is no subsidiary imprisonment if the penalty is more than six (6) years.
Moreover, the subsidiary imprisonment shall not exceed one third (1/3) of the
principal penalty or one (1) year whichever is lesser.

Section Two. — Effects of the penalties

according to their respective nature

Art. 30. Effects of the penalties of perpetual or temporary absolute

disqualification. — The penalties of perpetual or temporary absolute
disqualification for public office shall produce the following effects:
1. The deprivation of the public offices and employments which the
offender may have held even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular office
or to be elected to such office.
3. The disqualification for the offices or public employments and for the
exercise of any of the rights mentioned.
In case of temporary disqualification, such disqualification as is comprised
in paragraphs 2 and 3 of this article shall last during the term of the
sentence.
4. The loss of all rights to retirement pay or other pension for any office
formerly held.

Art. 31. Effect of the penalties of perpetual or temporary special

disqualification. — The penalties of perpetual or temporary special
disqualification for public office, profession or calling shall produce the
following effects:
1. The deprivation of the office, employment, profession or calling affected;
2. The disqualification for holding similar offices or employments either
perpetually or during the term of the sentence according to the extent of
such disqualification.

Art. 32. Effect of the penalties of perpetual or temporary special

disqualification for the exercise of the right of suffrage. — The perpetual or
temporary special disqualification for the exercise of the right of suffrage
shall deprive the offender perpetually or during the term of the sentence,
according to the nature of said penalty, of the right to vote in any popular
election for any public office or to be elected to such office. Moreover, the
offender shall not be permitted to hold any public office during the period
of his disqualification.

Art. 33. Effects of the penalties of suspension from any public office,
profession or calling, or the right of suffrage. — The suspension from public
office, profession or calling, and the exercise of the right of suffrage shall
disqualify the offender from holding such office or exercising such
profession or calling or right of suffrage during the term of the sentence.

56
The person suspended from holding public office shall not hold another
having similar functions during the period of his suspension.

Art. 34. Civil interdiction. — Civil interdiction shall deprive the offender
during the time of his sentence of the rights of parental authority, or
guardianship, either as to the person or property of any ward, of marital
authority, of the right to manage his property and of the right to dispose of
such property by any act or any conveyance inter vivos.

Art. 35. Effects of bond to keep the peace. — It shall be the duty of any
person sentenced to give bond to keep the peace, to present two sufficient
sureties who shall undertake that such person will not commit the offense
sought to be prevented, and that in case such offense be committed they will
pay the amount determined by the court in the judgment, or otherwise to
deposit such amount in the office of the clerk of the court to guarantee said
undertaking.
The court shall determine, according to its discretion, the period of
duration of the bond.
Should the person sentenced fail to give the bond as required he shall be
detained for a period which shall in no case exceed six months, if he shall
have been prosecuted for a grave or less grave felony, and shall not exceed
thirty days, if for a light felony.

Art. 36. Pardon; its effect. — A pardon shall not work the restoration of the
right to hold public office, or the right of suffrage, unless such rights be
expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence.

Art. 37. Cost; What are included. — Costs shall include fees and indemnities
in the course of the judicial proceedings, whether they be fixed or
unalterable amounts previously determined by law or regulations in force,
or amounts not subject to schedule.

Art. 38. Pecuniary liabilities; Order of payment. — In case the property of

the offender should not be sufficient for the payment of all his pecuniary
liabilities, the same shall be met in the following order:
1. The reparation of the damage caused.
2. Indemnification of consequential damages.
3. The fine.
4. The cost of the proceedings.

Art. 39. Subsidiary penalty. — If the convict has no property with which to
meet the fine mentioned in the paragraph 3 of the next preceding article, he
shall be subject to a subsidiary personal liability at the rate of one day for
each eight pesos, subject to the following rules:
1. If the principal penalty imposed be prision correccional or arresto and
fine, he shall remain under confinement until his fine referred to in the
preceding paragraph is satisfied, but his subsidiary imprisonment shall not
exceed one-third of the term of the sentence, and in no case shall it continue
for more than one year, and no fraction or part of a day shall be counted
against the prisoner.

57
2. When the principal penalty imposed be only a fine, the subsidiary
imprisonment shall not exceed six months, if the culprit shall have been
prosecuted for a grave or less grave felony, and shall not exceed fifteen
days, if for a light felony.
3. When the principal imposed is higher than prision correccional, no
subsidiary imprisonment shall be imposed upon the culprit.
4. If the principal penalty imposed is not to be executed by confinement in a
penal institution, but such penalty is of fixed duration, the convict, during
the period of time established in the preceding rules, shall continue to suffer
the same deprivations as those of which the principal penalty consists.
5. The subsidiary personal liability which the convict may have suffered by
reason of his insolvency shall not relieve him, from the fine in case his
financial circumstances should improve. (As amended by RA 5465, April
21, 1969).

Discussion:
This provision was amended by Republic Act No. 10159

REPUBLIC ACT NO. 10159 April 10, 2012

AN ACT AMENDING ARTICLE 39 OF ACT NO. 3815, AS AMENDED,

OTHERWISE KNOWN AS THE REVISED PENAL CODE

Be it enacted by the Senate and House of Representatives of the Philippines in

Congress assembled:

Section 1. Article 39 of Act No. 3815, as amended, is hereby further amended to

read as follows:

Art. 39. Subsidiary Penalty. – If the convict has no property with which to meet
the fine mentioned in paragraph 3 of the next preceding article, he shall be
subject to a subsidiary personal liability at the rate of one day for each amount
equivalent to the highest minimum wage rate prevailing in the Philippines
at the time of the rendition of judgment of conviction by the trial court,
subject to the following rules:

1. If the principal penalty imposed be prision correctional or arresto and fine,

he shall remain under confinement until his fine referred in the preceding
paragraph is satisfied, but his subsidiary imprisonment shall not exceed one-
third of the term of the sentence, and in no case shall it continue for more than
one year, and no fraction or part of a day shall be counted against the prisoner.

2. When the principal penalty imposed be only a fine, the subsidiary

imprisonment shall not exceed six months, if the culprit shall have been
prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if
for a fight felony.

3. When the principal penalty imposed is higher than prision correctional, no

subsidiary imprisonment shall be imposed upon the culprit.

4. If the principal penalty imposed is not to be executed by confinement in a

penal institution, but such penalty is of fixed duration, the convict, during the
period of time established in the preceding rules, shall continue to suffer the
same deprivations as those of which the principal penalty consists.

58
5. The subsidiary personal liability which the convict may have suffered by
reason of his insolvency shall not relieve him from the fine in case his financial
circumstances should improve." (As amended by Republic Act No. 5465, which
lapsed into law on April 21, 1969.)

(xxx)

Section Three. — Penalties in which other accessory penalties

are inherent

Art. 40. Death; Its accessory penalties. — The death penalty, when it is not
executed by reason of commutation or pardon shall carry with it that of
perpetual absolute disqualification and that of civil interdiction during
thirty years following the date sentence, unless such accessory penalties
have been expressly remitted in the pardon.

Discussion:

Republic Act No. 9346 June 24, 2006

AN ACT PROHIBITING THE IMPOSITION OF DEATH PENALTY IN

THE PHILIPPINES

Be it enacted by the Senate and House of Representatives of the Philippines in

Congress assembled:

SECTION 1. The imposition of the penalty of death is hereby prohibited.

Accordingly, Republic Act No. Eight Thousand One Hundred Seventy-Seven
(R.A. No. 8177), otherwise known as the Act Designating Death by Lethal
Injection is hereby repealed. Republic Act No. Seven Thousand Six Hundred
Fifty-Nine (R.A. No. 7659), otherwise known as the Death Penalty Law, and all
other laws, executive orders and decrees, insofar as they impose the death
penalty are hereby repealed or amended accordingly.

SEC. 2. In lieu of the death penalty, the following shall be imposed.

(a) the penalty of reclusion perpetua, when the law violated makes use of
the nomenclature of the penalties of the Revised Penal Code; or

(b) the penalty of life imprisonment, when the law violated does not
make use of the nomenclature of the penalties of the Revised Penal
Code.

SEC. 3. Person convicted of offenses punished with reclusion perpetua, or

whose sentences will be reduced to reclusion perpetua, by reason of this Act,
shall not be eligible for parole under Act No. 4180, otherwise known as the
Indeterminate Sentence Law, as amended.

SEC. 4. The Board of Pardons and Parole shall cause the publication at least one
a week for three consecutive weeks in a newspaper of general circulation of the
names of persons convicted of offenses punished with reclusion perpetua or life
imprisonment by reason of this Act who are being considered or recommend for
commutation or pardon; Provided, however, That nothing herein shall limit the
power of the President to grant executive clemency under Section 19, Article
VII of the Constitutions.

59
SEC. 5. This Act shall take effect immediately after its publication in two
national newspapers of general circulation.

Art. 41. Reclusion perpetua and reclusion temporal; Their accessory

penalties. — The penalties of reclusion perpetua and reclusion temporal
shall carry with them that of civil interdiction for life or during the period
of the sentence as the case may be, and that of perpetual absolute
disqualification which the offender shall suffer even though pardoned as to
the principal penalty, unless the same shall have been expressly remitted in
the pardon.

Art. 42. Prision mayor; Its accessory penalties. — The penalty of prision
mayor, shall carry with it that of temporary absolute disqualification and
that of perpetual special disqualification from the right of suffrage which
the offender shall suffer although pardoned as to the principal penalty,
unless the same shall have been expressly remitted in the pardon.

Art. 43. Prision correccional; Its accessory penalties. — The penalty of

prision correccional shall carry with it that of suspension from public office,
from the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, if the duration of said
imprisonment shall exceed eighteen months. The offender shall suffer the
disqualification provided in the article although pardoned as to the
principal penalty, unless the same shall have been expressly remitted in the
pardon.

Art. 44. Arresto; Its accessory penalties. — The penalty of arresto shall carry
with it that of suspension of the right to hold office and the right of suffrage
during the term of the sentence.

Art. 45. Confiscation and forfeiture of the proceeds or instruments of the

crime. — Every penalty imposed for the commission of a felony shall carry
with it the forfeiture of the proceeds of the crime and the instruments or
tools with which it was committed.
Such proceeds and instruments or tools shall be confiscated and forfeited in
favor of the Government, unless they be property of a third person not
liable for the offense, but those articles which are not subject of lawful
commerce shall be destroyed.

Discussion:
OTHER EFFECTS OF PENALTY

Every Penalty imposed for the commission of a felony shall carry with it the
forfeiture of the proceeds of the crime and the instruments or tools with which it
was committed. Such proceeds and instruments or tools shall be confiscated in
favor of the Government unless they be property of a third person not liable for
the offense; but those articles which are not subject of lawful commerce shall be
destroyed. (Art. 45)
This forfeiture or confiscation of instruments and proceeds of the offense is
provided for as an accessory penalty under Article 25. If A stole the gun of B
who is duly licensed to possess it, and used it in killing C, the gun will no longer
be confiscated in favor of the government but would be returned to C. If the
proceeds or tools cannot be the subject of lawful transaction like marijuana or
60
shabu, then they shall be ordered burned or destroyed.

Chapter Four
APPLICATION OF PENALTIES
Section One. — Rules for the application of penalties
to the persons criminally liable and for the graduation of the same.

Art. 46. Penalty to be imposed upon principals in general. — The penalty

prescribed by law for the commission of a felony shall be imposed upon the
principals in the commission of such felony.
Whenever the law prescribes a penalty for a felony is general terms, it shall
be understood as applicable to the consummated felony.

Art. 47. In what cases the death penalty shall not be imposed. — The death
penalty shall be imposed in all cases in which it must be imposed under
existing laws, except in the following cases:
1. When the guilty person be more than seventy years of age.
2. When upon appeal or revision of the case by the Supreme court, all the
members thereof are not unanimous in their voting as to the propriety of
the imposition of the death penalty. For the imposition of said penalty or for
the confirmation of a judgment of the inferior court imposing the death
sentence, the Supreme Court shall render its decision per curiam, which
shall be signed by all justices of said court, unless some member or
members thereof shall have been disqualified from taking part in the
consideration of the case, in which even the unanimous vote and signature
of only the remaining justices shall be required.

Art. 48. Penalty for complex crimes. — When a single act constitutes two or
more grave or less grave felonies, or when an offense is a necessary means
for committing the other, the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period.

Discussion:
When a single act constitutes two or more grave or less grave felonies, or when
an offense is a necessary means for committing the other, the penalty for the
most serious crime shall be imposed, to be applied in its maximum period.

Art. 48 is not applicable in case of special complex crimes specifically provided

for in the Revised Penal Code like Robbery with Homicide or Rape or with
Arson (Sec. 9, R.A. No. 7659 amending par. 1 of Article 294), or rape with
Homicide (Sec. 11, R.A. No. 7659 amending Article 335) and applies only when
no specific penalty is stated in the law.

Art. 48 speaks of two (2) types of complex crimes: (1) when a single act
constitutes two or more grave or less grave felonies, otherwise known as
compound crime, and (2) when an offense is a necessary means of committing
the other, which is the complex crime proper.

An example of No. 1- that is, compound crime, is when A with a revolver shot
B, missing him but the bullet hit X who is A’s father. A committed the crime of

61
Attempted Homicide with Parricide. Or, when in recklessly driving his car, Y hit
the car of W which in turn hit the car of A, the damages suffered by the two (2)
cars resulting in grave or less grave felonies (not merely light).

• An example of No. 2- that is, complex crime proper, is when the

Municipal Treasurer, who received ten thousand (P10,000.00) from a
taxpayer, placed in the duplicate original of the receipt the amount of one
thousand (P1,000.00) and then misappropriated the difference of nine
thousand (P9,000.00) is guilty of Malversation through Falsification of a
Public Document because Falsification is a necessary means to commit
Malversation.
• In Complex Crimes, one offense should not be punishable under another
law. Both must be a violation of the Revised Penal Code.

Continuing Crime (Delito Continuado)

• A single crime consisting of a series of acts arising from one criminal
resolution or intent not susceptible of division. (Philippine Law
Dictionary by Moreno)
• In People vs. Encila, 76 O.G. 5824, it was defined as a continuos,
unlawful act or series of acts set on foot by a single impulse and operated
by an unintermittent force however long a time it may occupy.
• Where in a train, the accused-twins run amuck killing eight (8) persons
during that occasion, it was to be a single crime of Multiple Murders to
be punished by one penalty only. (People vs. Toling, 62 SCRA 17) The
taking of several cows belonging to different owners while admittedly
committed through several acts was held to be punished only as one
crime when done or perpetrated during the same occasion.

Art. 49. Penalty to be imposed upon the principals when the crime committed
is different from that intended. — In cases in which the felony committed is
different from that which the offender intended to commit, the following
rules shall be observed:
1. If the penalty prescribed for the felony committed be higher than that
corresponding to the offense which the accused intended to commit, the
penalty corresponding to the latter shall be imposed in its maximum period.
2. If the penalty prescribed for the felony committed be lower than that
corresponding to the one which the accused intended to commit, the penalty
for the former shall be imposed in its maximum period.
3. The rule established by the next preceding paragraph shall not be
applicable if the acts committed by the guilty person shall also constitute an
attempt or frustration of another crime, if the law prescribes a higher
penalty for either of the latter offenses, in which case the penalty provided
for the attempted or the frustrated crime shall be imposed in its maximum
period.

Art. 50. Penalty to be imposed upon principals of a frustrated crimes— The

penalty next lower in degree than that prescribed by law for the
consummated felony shall be imposed upon the principal in a frustrated
felony.

Art. 51. Penalty to be imposed upon principals of attempted crimes. — A

penalty lower by two degrees than that prescribed by law for the

62
consummated felony shall be imposed upon the principals in an attempt to
commit a felony.

Art. 52. Penalty to be imposed upon accomplices in consummated crime. —

The penalty next lower in degree than that prescribed by law for the
consummated shall be imposed upon the accomplices in the commission of a
consummated felony.

Art. 53. Penalty to be imposed upon accessories to the commission of a

consummated felony. — The penalty lower by two degrees than that
prescribed by law for the consummated felony shall be imposed upon the
accessories to the commission of a consummated felony.

Art. 54. Penalty to imposed upon accomplices in a frustrated crime. — The

penalty next lower in degree than prescribed by law for the frustrated
felony shall be imposed upon the accomplices in the commission of a
frustrated felony.

Art. 55. Penalty to be imposed upon accessories of a frustrated crime.— The

penalty lower by two degrees than that prescribed by law for the frustrated
felony shall be imposed upon the accessories to the commission of a
frustrated felony.

Art. 56. Penalty to be imposed upon accomplices in an attempted crime. —

The penalty next lower in degree than that prescribed by law for an
attempt to commit a felony shall be imposed upon the accomplices in an
attempt to commit the felony.

Art. 57. Penalty to be imposed upon accessories of an attempted crime.— The

penalty lower by two degrees than that prescribed by law for the attempted
felony shall be imposed upon the accessories to the attempt to commit a
felony.

Art. 58. Additional penalty to be imposed upon certain accessories. — Those

accessories falling within the terms of paragraphs 3 of Article 19 of this
Code who should act with abuse of their public functions, shall suffer the
additional penalty of absolute perpetual disqualification if the principal
offender shall be guilty of a grave felony, and that of absolute temporary
disqualification if he shall be guilty of a less grave felony.

Art. 59. Penalty to be imposed in case of failure to commit the crime because
the means employed or the aims sought are impossible. — When the person
intending to commit an offense has already performed the acts for the
execution of the same but nevertheless the crime was not produced by
reason of the fact that the act intended was by its nature one of impossible
accomplishment or because the means employed by such person are
essentially inadequate to produce the result desired by him, the court,
having in mind the social danger and the degree of criminality shown by the
offender, shall impose upon him the penalty of arresto mayor or a fine from
200 to 500 pesos.

Discussion:

63
IMPOSSIBLE CRIME

An act performed with malice which would have been an offense against
persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or ineffectual
means. This is the only crime provided for in Book I of the Revised Penal Code.
The court, having in mind the social danger and the degree of criminality shown
by the offender shall impose the penalty of arresto mayor or a fine ranging from
two hundred (P200.00) to five hundred (P500.00).

The requisites are:

A. The act performed would be an offense against persons or property like

Parricide, Murder, Homicide, Abortion, Duel or Physical Injuries, or
Robbery, Brigandage, Theft, Usurpation, Culpable Insolvency, Estafa
and Other Deceits, Chattel Mortgage, Arson and Malicious Mischief.

B. That the act was done with evil intent.

C. That its accomplishment is inherently impossible or that the means

employed is either inadequate or ineffectual.

Examples: Inherent Impossibility (Legal and Physical)

A saw B lying down whom he thought was only sleeping. So with intent
to kill, he stabbed B several times on his chest. It turned out that B had
been dead twenty (20) or thirty (30) minutes ago.

Legal Impossibility

X stole the ring which Y inadvertently left on his desk. It turned out that
the said ring was the one X lost two (2) days ago.

Physical Impossibility

A, B, C, D & E, all armed, proceeded to the house of X whereupon A

pointed to the room that X used to occupy and all fired at the said room.
Nobody was hit as no one was inside the room. This is a case of
Impossible Crime to commit Murder. (Intod vs. Court of Appeals, et. al.,
215 SCRA 52)

Ineffectual means- giving a person a drink mixed with sugar which accused
believed to be a poison

Inadequate means- if it were really poison, the quantity is not sufficient to kill

In case of inadequate means, the intended victim should not suffer any injury
otherwise the crime could be attempted or frustrated homicide or murder as the
case may be.

Art. 60. Exception to the rules established in Articles 50 to 57. — The

provisions contained in Articles 50 to 57, inclusive, of this Code shall not be

64
applicable to cases in which the law expressly prescribes the penalty
provided for a frustrated or attempted felony, or to be imposed upon
accomplices or accessories.

Art. 61. Rules for graduating penalties. — For the purpose of graduating the
penalties which, according to the provisions of Articles 50 to 57, inclusive,
of this Code, are to be imposed upon persons guilty as principals of any
frustrated or attempted felony, or as accomplices or accessories, the
following rules shall be observed:
1. When the penalty prescribed for the felony is single and indivisible, the
penalty next lower in degrees shall be that immediately following that
indivisible penalty in the respective graduated scale prescribed in Article 71
of this Code.
2. When the penalty prescribed for the crime is composed of two indivisible
penalties, or of one or more divisible penalties to be impose to their full
extent, the penalty next lower in degree shall be that immediately following
the lesser of the penalties prescribed in the respective graduated scale.
3. When the penalty prescribed for the crime is composed of one or two
indivisible penalties and the maximum period of another divisible penalty,
the penalty next lower in degree shall be composed of the medium and
minimum periods of the proper divisible penalty and the maximum periods
of the proper divisible penalty and the maximum period of that
immediately following in said respective graduated scale.
4. When the penalty prescribed for the crime is composed of several
periods, corresponding to different divisible penalties, the penalty next
lower in degree shall be composed of the period immediately following the
minimum prescribed and of the two next following, which shall be taken
from the penalty prescribed, if possible; otherwise from the penalty
immediately following in the above mentioned respective graduated scale.
5. When the law prescribes a penalty for a crime in some manner not
especially provided for in the four preceding rules, the courts, proceeding
by analogy, shall impose corresponding penalties upon those guilty as
principals of the frustrated felony, or of attempt to commit the same, and
upon accomplices and accessories.

TABULATION OF THE PROVISIONS OF THE CHAPTER

Penalty Penalty to be Penalty to be Penalty to be Penalty to

Prescribe imposed upon imposed upon imposed upon be imposed
for the the principal the principal the accessory upon the
crime in a frustrated in an in a frustrated accessory in
crime, and attempted crime, and the an
accomplice in crime, the accomplices in attempted
a accessory in an attempted crime
consummated the crime
crime consummated
crime and the
accomplices in
a frustrated
crime.
First Death Reclusion Reclusion Prision Mayor Prision
Case Perpetua Temporal Correccional

65
Second Reclusion Reclusion Prision Mayor Prision Arresto
Case Perpetuato Temporal Correccional Mayor
Death
Third Reclusion Prision Prision Arresto Fine
Case Temporalin Mayor in its correccional in Mayorin it s and Arresto
its maximum its maximum maximum Mayor in its
maximum period period period minimum
period to to reclusion to prision to prision and medium
death temporal in its mayor in its correccional inperiods
medium medium its medium
period period period
Fourth Prision Prision Arresto Fine Fine.
Case Mayor in correccional inmayorin its and Arresto
its its maximum maximum Mayorin its
maximum period period minimum and
period to prision to prision medium
to reclusion mayor in its correccional in periods
temporal in medium its medium
its medium period. period.
period.

Section Two. — Rules for the application of penalties with regard to the
mitigating and aggravating circumstances, and habitual delinquency.

Art. 62. Effect of the attendance of mitigating or aggravating circumstances

and of habitual delinquency. — Mitigating or aggravating circumstances
and habitual delinquency shall be taken into account for the purpose of
diminishing or increasing the penalty in conformity with the following
rules:
1. Aggravating circumstances which in themselves constitute a crime
specially punishable by law or which are included by the law in defining a
crime and prescribing the penalty therefor shall not be taken into account
for the purpose of increasing the penalty.
2. The same rule shall apply with respect to any aggravating circumstance
inherent in the crime to such a degree that it must of necessity accompany
the commission thereof.
3. Aggravating or mitigating circumstances which arise from the moral
attributes of the offender, or from his private relations with the offended
party, or from any other personal cause, shall only serve to aggravate or
mitigate the liability of the principals, accomplices and accessories as to
whom such circumstances are attendant.
4. The circumstances which consist in the material execution of the act, or
in the means employed to accomplish it, shall serve to aggravate or mitigate
the liability of those persons only who had knowledge of them at the time of
the execution of the act or their cooperation therein.
5. Habitual delinquency shall have the following effects:

(a) Upon a third conviction the culprit shall be sentenced to the penalty
provided by law for the last crime of which he be found guilty and to the
additional penalty of prision correccional in its medium and maximum
periods;
(b) Upon a fourth conviction, the culprit shall be sentenced to the penalty

66
provided for the last crime of which he be found guilty and to the additional
penalty of prision mayor in its minimum and medium periods; and
(c) Upon a fifth or additional conviction, the culprit shall be sentenced to
the penalty provided for the last crime of which he be found guilty and to
the additional penalty of prision mayor in its maximum period to reclusion
temporal in its minimum period.
Notwithstanding the provisions of this article, the total of the two penalties
to be imposed upon the offender, in conformity herewith, shall in no case
exceed 30 years.
For the purpose of this article, a person shall be deemed to be habitual
delinquent, if within a period of ten years from the date of his release or last
conviction of the crimes of serious or less serious physical injuries, robo,
hurto, estafa or falsification, he is found guilty of any of said crimes a third
time or oftener.

Art. 63. Rules for the application of indivisible penalties. — In all cases in
which the law prescribes a single indivisible penalty, it shall be applied by
the courts regardless of any mitigating or aggravating circumstances that
may have attended the commission of the deed.
In all cases in which the law prescribes a penalty composed of two
indivisible penalties, the following rules shall be observed in the application
thereof:
1. When in the commission of the deed there is present only one aggravating
circumstance, the greater penalty shall be applied.
2. When there are neither mitigating nor aggravating circumstances and
there is no aggravating circumstance, the lesser penalty shall be applied.
3. When the commission of the act is attended by some mitigating
circumstances and there is no aggravating circumstance, the lesser penalty
shall be applied.
4. When both mitigating and aggravating circumstances attended the
commission of the act, the court shall reasonably allow them to offset one
another in consideration of their number and importance, for the purpose
of applying the penalty in accordance with the preceding rules, according to
the result of such compensation.

Discussion:
APPLICATION OF MITIGATING AND AGGRAVATING
CIRCUMSTANCES

The court must first consider whether the penalties imposable are Divisible or
Indivisible. Indivisible penalties are those which have no fixed duration like
death, reclusion perpetua, perpetual absolute or special disqualification, and
public censure; while Divisible penalties are those having fixed duration and can
be divided into three (3) periods).

In case the law prescribes two indivisible penalties, like reclusion perpetua to
death (the penalty for Infanticide, Parricide, Murder, etc.), the presence of one
mitigating circumstance would result in the application of the lesser penalty,
while the presence of an aggravating circumstance would mean the application
of the greater penalty. If there is no mitigating and no aggravating circumstance,
the lesser penalty shall be applied. If there be present both mitigating and
aggravating circumstances, the court shall reasonably allow them to offset one

67
another. (Art. 63)

When the penalty is single indivisible, like the penalty for Piracy under Article
122 as amended by Sec. 3, R.A. No. 7659- which is reclusion perpetua, such
penalty shall be applied regardless of any mitigating or aggravating
circumstance present, except, in case of privileged mitigating circumstance such
as minority, in which case, the penalty may be reduced by a degree. Such is also
the rule in case of two (2) indivisible penalties like reclusion perpetua to death.
If the mitigating circumstance in attendance is privilege mitigating, the penalty
shall be lowered by one degree. Thus, when the crime proven is Murder, the
penalty is reclusion perpetua to death under Art. 248, Revised Penal Code as
amended by Sec. 6, R.A. No. 7659), and the accused is a minor below sixteen
(16) years old, the penalty shall be reclusion temporal.

Art. 64. Rules for the application of penalties which contain three periods. —
In cases in which the penalties prescribed by law contain three periods,
whether it be a single divisible penalty or composed of three different
penalties, each one of which forms a period in accordance with the
provisions of Articles 76 and 77, the court shall observe for the application
of the penalty the following rules, according to whether there are or are not
mitigating or aggravating circumstances:
1. When there are neither aggravating nor mitigating circumstances, they
shall impose the penalty prescribed by law in its medium period.
2. When only a mitigating circumstances is present in the commission of the
act, they shall impose the penalty in its minimum period.
3. When an aggravating circumstance is present i
n the commission of the act, they shall impose the penalty in its maximum
period.
4. When both mitigating and aggravating circumstances are present, the
court shall reasonably offset those of one class against the other according
to their relative weight.
5. When there are two or more mitigating circumstances and no
aggravating circumstances are present, the court shall impose the penalty
next lower to that prescribed by law, in the period that it may deem
applicable, according to the number and nature of such circumstances.
6. Whatever may be the number and nature of the aggravating
circumstances, the courts shall not impose a greater penalty than that
prescribed by law, in its maximum period.
7. Within the limits of each period, the court shall determine the extent of
the penalty according to the number and nature of the aggravating and
mitigating circumstances and the greater and lesser extent of the evil
produced by the crime.

Discussion:

When the penalty is divisible and there is neither aggravating nor mitigating
circumstance, the penalty shall be applied in medium period. If there is one
ordinary mitigating circumstance it shall be applied in its minimum period, and
if there is one (1) aggravating circumstance, the penalty shall be imposed in its
maximum period. If the mitigating circumstance present is privileged one, the
reduction of the penalty shall be by degree, not only by period. If there are both
mitigating and aggravating circumstances, the court shall reasonably offset them

68
according to their relative weight.

If the commission of the crime was attended by both mitigating and aggravating
circumstances, the rules in Art. 62 are as follows:
1. Aggravating circumstances which in themselves constitute a
crime specially punishable by law or which are included by the
law in defining a crime shall not to be taken into account for the
purpose of increasing the penalty.
Example: “By means of fire” (Art. 14, par. 12) shall not be
considered in the crime of Arson. That the crime was committed
in the dwelling of the offended party (Art. 14, par. 3) shall not
aggravate the liability of the offender convicted of Trespass to
Dwelling.
So also, “by means of poison” (Art. 14, par. 4) will not be
considered to increase the liability in Murder qualified by using
poison.
2. Aggravating circumstances which are inherent in the crime to
such a degree that they must be of necessity accompany the crime
shall not increase the penalty.
Example: Abuse of confidence (Art. 14, par. 4) shall no longer be
considered in Qualified Theft with grave abuse of confidence to
increase the penalty.
3. Aggravating or mitigating circumstances which arise from the
moral attributes of the offender or from his private relations with
the offended party or from any personal cause shall serve to
aggravate or mitigate the liability of the culprit to whom they are
attendant.
Example: X,Y and Z, conspiring with each other, killed W who is
X’s brother-in-law. Z committed it with evident premeditation
while Y is a recidivist. The aggravating circumstance of evident
premeditation applies only to Z, the fact that the victim is X’s
brother-in-law would affect the liability only of X while
recidivism which is personal to Y shall increase the liability of Y
only.
4. The circumstances which consist in the material execution of the
act, or in the means employed to accomplish it shall aggravate or
mitigate the liability of those who had knowledge of them at the
time of the execution of the act.
Example: A, B and C agreed to kill X and so armed with guns,
they proceeded to the house of the latter whereupon A told B and
C that he would just stay in the yard to prevent any relative of X
from helping the victim. When B and C entered the room of X,
and saw him sleeping, it was C who shot him. The treachery that
attended the commission of the crime shall also affect B and not
only C who treacherously killed X in his sleep because B had
knowledge of the employment of the treacherous act being
present actually during the shooting. A’s liability is not
aggravated by treachery as he had no knowledge of it, being in
the yard.
So also, A, B and C agreed to kill X and in a drinking spree, A
saw the opportunity and put poison in the glass of X. B saw A
pouring the poison while C did not see it and was unaware of it.

69
 X died after taking the poisonous drink. The aggravating
circumstance of “by means of poison” affects only A and B.

Art. 65. Rule in cases in which the penalty is not composed of three
periods. — In cases in which the penalty prescribed by law is not composed
of three periods, the courts shall apply the rules contained in the foregoing
articles, dividing into three equal portions of time included in the penalty
prescribed, and forming one period of each of the three portions.

Art. 66. Imposition of fines. — In imposing fines the courts may fix any
amount within the limits established by law; in fixing the amount in each
case attention shall be given, not only to the mitigating and aggravating
circumstances, but more particularly to the wealth or means of the culprit.

Art. 67. Penalty to be imposed when not all the requisites of exemption of the
fourth circumstance of Article 12 are present.— When all the conditions
required in circumstances Number 4 of Article 12 of this Code to exempt
from criminal liability are not present, the penalty of arresto mayor in its
maximum period to prision correccional in its minimum period shall be
imposed upon the culprit if he shall have been guilty of a grave felony, and
arresto mayor in its minimum and medium periods, if of a less grave felony.

Art. 68. Penalty to be imposed upon a person under eighteen years of age. —
When the offender is a minor under eighteen years and his case is one
coming under the provisions of the paragraphs next to the last of Article 80
of this Code, the following rules shall be observed:
1. Upon a person under fifteen but over nine years of age, who is not
exempted from liability by reason of the court having declared that he acted
with discernment, a discretionary penalty shall be imposed, but always
lower by two degrees at least than that prescribed by law for the crime
which he committed.
2. Upon a person over fifteen and under eighteen years of age the penalty
next lower than that prescribed by law shall be imposed, but always in the
proper period.

Art. 69. Penalty to be imposed when the crime committed is not wholly
excusable. — A penalty lower by one or two degrees than that prescribed by
law shall be imposed if the deed is not wholly excusable by reason of the
lack of some of the conditions required to justify the same or to exempt
from criminal liability in the several cases mentioned in Article 11 and 12,
provided that the majority of such conditions be present. The courts shall
impose the penalty in the period which may be deemed proper, in view of
the number and nature of the conditions of exemption present or lacking.

Art. 70. Successive service of sentence. — When the culprit has to serve two
or more penalties, he shall serve them simultaneously if the nature of the
penalties will so permit otherwise, the following rules shall be observed:
In the imposition of the penalties, the order of their respective severity shall
be followed so that they may be executed successively or as nearly as may
be possible, should a pardon have been granted as to the penalty or
penalties first imposed, or should they have been served out.

70
For the purpose of applying the provisions of the next preceding paragraph
the respective severity of the penalties shall be determined in accordance
with the following scale:
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Arresto menor,
8. Destierro,
9. Perpetual absolute disqualification,
10 Temporal absolute disqualification.
11. Suspension from public office, the right to vote and be voted for, the
right to follow a profession or calling, and
12. Public censure.
Notwithstanding the provisions of the rule next preceding, the maximum
duration of the convict's sentence shall not be more than three-fold the
length of time corresponding to the most severe of the penalties imposed
upon him. No other penalty to which he may be liable shall be inflicted after
the sum total of those imposed equals the same maximum period.
Such maximum period shall in no case exceed forty years.
In applying the provisions of this rule the duration of perpetual penalties
(pena perpetua) shall be computed at thirty years. (As amended).

Art. 71. Graduated scales. — In the case in which the law prescribed a
penalty lower or higher by one or more degrees than another given penalty,
the rules prescribed in Article 61 shall be observed in graduating such
penalty.
The lower or higher penalty shall be taken from the graduated scale in
which is comprised the given penalty.
The courts, in applying such lower or higher penalty, shall observe the
following graduated scales:
SCALE NO. 1
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Destierro,
8. Arresto menor,
9. Public censure,
10. Fine.

SCALE NO. 2
1. Perpetual absolute disqualification,
2. Temporal absolute disqualification
3. Suspension from public office, the right to vote and be
voted for, the right to follow a profession or calling,
4. Public censure,
5. Fine.

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Art. 72. Preference in the payment of the civil liabilities. — The civil
liabilities of a person found guilty of two or more offenses shall be satisfied
by following the chronological order of the dates of the judgments rendered
against him, beginning with the first in order of time.

Section Three. — Provisions common in the last two preceding sections

Art. 73. Presumption in regard to the imposition of accessory penalties . —

Whenever the courts shall impose a penalty which, by provision of law,
carries with it other penalties, according to the provisions of Articles 40, 41,
42, 43 and 44 of this Code, it must be understood that the accessory
penalties are also imposed upon the convict.

Art. 74. Penalty higher than reclusion perpetua in certain cases. — In cases
in which the law prescribes a penalty higher than another given penalty,
without specially designating the name of the former, if such higher penalty
should be that of death, the same penalty and the accessory penalties of
Article 40, shall be considered as the next higher penalty.

Art. 75. Increasing or reducing the penalty of fine by one or more degrees. —
Whenever it may be necessary to increase or reduce the penalty of fine by
one or more degrees, it shall be increased or reduced, respectively, for each
degree, by one-fourth of the maximum amount prescribed by law, without
however, changing the minimum.
The same rules shall be observed with regard of fines that do not consist of
a fixed amount, but are made proportional.

Art. 76. Legal period of duration of divisible penalties. — The legal period of
duration of divisible penalties shall be considered as divided into three
parts, forming three periods, the minimum, the medium, and the maximum
in the manner shown in the following table:

TABLE SHOWING THE DURATION OF DIVISIBLE PENALTIES AND

THE TIME INCLUDED IN EACH OF THEIR PERIODS

Penalties Time Time Time Time

included included included included
in the in its in its in its
penalty minimum medium maximum
in its period period
entirety
Reclusion temporal From 12 From 12 From 14 From 17
years years and years, 8 years, 4
and 1 1 day to months months
day to 14 years and 1 and 1 day
20 and 8 day to to 20
years. months. 17 years years.
and 4
months.
Prision mayor,absolute From 6 From 6 From 8 From 10
disqualification and years years and years years and

72
 special temporary and 1 1 day to and 1 1 day to
disqualification day to 8 years. day to 12 years.
12 10
years. years.
Prision From 6 From 6 From 2 From 4
correccional,suspensionmonths months years, 4 years, 2
and destierro and 1 and 1 day months months
day to 6 to 2 years and 1 and 1 day
years. and 4 day to 4 to 6
months. years years.
and 2
months.
Arresto mayor From 1 From 1 From 2 From 4
month to 2 months months
and 1 months. and 1 and 1 day
day to day to 4 to 6
months. months. months.
Arresto menor From 1 From 1 From 11 From 21
to 30 to 10 to 20 to 30
Art. days. days. days. days. 77.
When the
penalty is a complex one composed of three distinct penalties. — In cases in
which the law prescribes a penalty composed of three distinct penalties,
each one shall form a period; the lightest of them shall be the minimum the
next the medium, and the most severe the maximum period.
Whenever the penalty prescribed does not have one of the forms specially
provided for in this Code, the periods shall be distributed, applying by
analogy the prescribed rules.

Chapter Five
EXECUTION AND SERVICE OF PENALTIES
Section One. — General Provisions

Art. 78. When and how a penalty is to be executed. — No penalty shall be

executed except by virtue of a final judgment.
A penalty shall not be executed in any other form than that prescribed by
law, nor with any other circumstances or incidents than those expressly
authorized thereby.

In addition to the provisions of the law, the special regulations prescribed

for the government of the institutions in which the penalties are to be
suffered shall be observed with regard to the character of the work to be
performed, the time of its performance, and other incidents connected
therewith, the relations of the convicts among themselves and other
persons, the relief which they may receive, and their diet.

The regulations shall make provision for the separation of the sexes in
different institutions, or at least into different departments and also for the
correction and reform of the convicts.

Art. 79. Suspension of the execution and service of the penalties in case of
insanity. — When a convict shall become insane or an imbecile after final

73
sentence has been pronounced, the execution of said sentence shall be
suspended only with regard to the personal penalty, the provisions of the
second paragraph of circumstance number 1 of Article 12 being observed in
the corresponding cases.
If at any time the convict shall recover his reason, his sentence shall be
executed, unless the penalty shall have prescribed in accordance with the
provisions of this Code.
The respective provisions of this section shall also be observed if the
insanity or imbecility occurs while the convict is serving his sentence.

Art. 80. Suspension of sentence of minor delinquents. — Whenever a minor

of either sex, under sixteen years of age at the date of the commission of a
grave or less grave felony, is accused thereof, the court, after hearing the
evidence in the proper proceedings, instead of pronouncing judgment of
conviction, shall suspend all further proceedings and shall commit such
minor to the custody or care of a public or private, benevolent or charitable
institution, established under the law of the care, correction or education of
orphaned, homeless, defective, and delinquent children, or to the custody or
care of any other responsible person in any other place subject to visitation
and supervision by the Director of Public Welfare or any of his agents or
representatives, if there be any, or otherwise by the superintendent of
public schools or his representatives, subject to such conditions as are
prescribed herein below until such minor shall have reached his majority
age or for such less period as the court may deem proper.
The court, in committing said minor as provided above, shall take into
consideration the religion of such minor, his parents or next of kin, in order
to avoid his commitment to any private institution not under the control
and supervision of the religious sect or denomination to which they belong.

The Director of Public Welfare or his duly authorized representatives or

agents, the superintendent of public schools or his representatives, or the
person to whose custody or care the minor has been committed, shall
submit to the court every four months and as often as required in special
cases, a written report on the good or bad conduct of said minor and the
moral and intellectual progress made by him.

The suspension of the proceedings against a minor may be extended or

shortened by the court on the recommendation of the Director of Public
Welfare or his authorized representative or agents, or the superintendent of
public schools or his representatives, according as to whether the conduct of
such minor has been good or not and whether he has complied with the
conditions imposed upon him, or not. The provisions of the first paragraph
of this article shall not, however, be affected by those contained herein.

If the minor has been committed to the custody or care of any of the
institutions mentioned in the first paragraph of this article, with the
approval of the Director of Public Welfare and subject to such conditions as
this official in accordance with law may deem proper to impose, such minor
may be allowed to stay elsewhere under the care of a responsible person.

If the minor has behaved properly and has complied with the conditions
imposed upon him during his confinement, in accordance with the

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provisions of this article, he shall be returned to the court in order that the
same may order his final release.

In case the minor fails to behave properly or to comply with the regulations
of the institution to which he has been committed or with the conditions
imposed upon him when he was committed to the care of a responsible
person, or in case he should be found incorrigible or his continued stay in
such institution should be inadvisable, he shall be returned to the court in
order that the same may render the judgment corresponding to the crime
committed by him.

The expenses for the maintenance of a minor delinquent confined in the

institution to which he has been committed, shall be borne totally or
partially by his parents or relatives or those persons liable to support him,
if they are able to do so, in the discretion of the court; Provided, That in
case his parents or relatives or those persons liable to support him have not
been ordered to pay said expenses or are found indigent and cannot pay
said expenses, the municipality in which the offense was committed shall
pay one-third of said expenses; the province to which the municipality
belongs shall pay one-third; and the remaining one-third shall be borne by
the National Government: Provided, however, That whenever the Secretary
of Finance certifies that a municipality is not able to pay its share in the
expenses above mentioned, such share which is not paid by said
municipality shall be borne by the National Government. Chartered cities
shall pay two-thirds of said expenses; and in case a chartered city cannot
pay said expenses, the internal revenue allotments which may be due to said
city shall be withheld and applied in settlement of said indebtedness in
accordance with section five hundred and eighty-eight of the
Administrative Code.

Section Two. — Execution of principal penalties.

Art. 81. When and how the death penalty is to be executed. — The death
sentence shall be executed with reference to any other and shall consist in
putting the person under sentence to death by electrocution. The death
sentence shall be executed under the authority of the Director of Prisons,
endeavoring so far as possible to mitigate the sufferings of the person under
sentence during electrocution as well as during the proceedings prior to the
execution.
If the person under sentence so desires, he shall be anaesthetized at the
moment of the electrocution.

Art. 82. Notification and execution of the sentence and assistance to the
culprit. — The court shall designate a working day for the execution but not
the hour thereof; and such designation shall not be communicated to the
offender before sunrise of said day, and the execution shall not take place
until after the expiration of at least eight hours following the notification,
but before sunset. During the interval between the notification and the
execution, the culprit shall, in so far as possible, be furnished such
assistance as he may request in order to be attended in his last moments by
priests or ministers of the religion he professes and to consult lawyers, as
well as in order to make a will and confer with members of his family or

75
persons in charge of the management of his business, of the administration
of his property, or of the care of his descendants.

Art. 83. Suspension of the execution of the death sentence. — The death
sentence shall not be inflicted upon a woman within the three years next
following the date of the sentence or while she is pregnant, nor upon any
person over seventy years of age. In this last case, the death sentence shall
be commuted to the penalty of reclusion perpetua with the accessory
penalties provided in Article 40.

Art. 84. Place of execution and persons who may witness the same.— The
execution shall take place in the penitentiary of Bilibid in a space closed to
the public view and shall be witnessed only by the priests assisting the
offender and by his lawyers, and by his relatives, not exceeding six, if he so
request, by the physician and the necessary personnel of the penal
establishment, and by such persons as the Director of Prisons may
authorize.

Art. 85. Provisions relative to the corpse of the person executed and its
burial. — Unless claimed by his family, the corpse of the culprit shall, upon
the completion of the legal proceedings subsequent to the execution, be
turned over to the institute of learning or scientific research first applying
for it, for the purpose of study and investigation, provided that such
institute shall take charge of the decent burial of the remains. Otherwise,
the Director of Prisons shall order the burial of the body of the culprit at
government expense, granting permission to be present thereat to the
members of the family of the culprit and the friends of the latter. In no case
shall the burial of the body of a person sentenced to death be held with
pomp.

Art. 86. Reclusion perpetua, reclusion temporal, prision mayor, prision

correccional and arresto mayor. — The penalties of reclusion perpetua,
reclusion temporal, prision mayor, prision correccional and arresto mayor,
shall be executed and served in the places and penal establishments
provided by the Administrative Code in force or which may be provided by
law in the future.

Art. 87. Destierro. — Any person sentenced to destierro shall not be

permitted to enter the place or places designated in the sentence, nor within
the radius therein specified, which shall be not more than 250 and not less
than 25 kilometers from the place designated.

Art. 88. Arresto menor. — The penalty of arresto menor shall be served in
the municipal jail, or in the house of the defendant himself under the
surveillance of an officer of the law, when the court so provides in its
decision, taking into consideration the health of the offender and other
reasons which may seem satisfactory to it.

Title Four
EXTINCTION OF CRIMINAL LIABILITY
Chapter One

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 TOTAL EXTINCTION OF CRIMINAL LIABILITY
Art. 89. How criminal liability is totally extinguished. — Criminal liability is
totally extinguished:
1. By the death of the convict, as to the personal penalties and as to
pecuniary penalties, liability therefor is extinguished only when the death of
the offender occurs before final judgment.
2. By service of the sentence;
3. By amnesty, which completely extinguishes the penalty and all its effects;
4. By absolute pardon;
5. By prescription of the crime;
6. By prescription of the penalty;
7. By the marriage of the offended woman, as provided in Article 344 of this
Code.

Discussion:

Criminal liability is totally extinguished by:

1. Death of the convict;
2. Service of the sentence;
3. Amnesty;
4. Absolute Pardon;
5. Prescription of the crime;
6. Prescription of the penalty;
7. Marriage of the offended woman as provided for in Art. 344.

On the other hand, it is partially extinguished by:

1. Conditional Pardon;
2. Commutation of the sentence; and
3. Good conduct allowances which the culprit may earn while serving sentence.

The grant of probation may be considered as a form of extinction of criminal

liability which was bestowed while accused who has never been incarcerated,
was out on bail, may thus be categorized as total extinction thereof. However, if
it was granted after the conviction of the accused who was in jail, it can be
considered as partial extinction only. It must be noted however, that unlike in
service of sentence, in probation, the probationer is still required to report to a
Probation Officer at a certain period until the duration of the probation period.

1. Death of the Accused

If the accused dies, at whatever stage of the case, personal penalty is totally and
permanently extinguished. You cannot imprison a dead person. With respect to
pecuniary liabilities like fine or costs of the proceedings, they are extinguished
only when the death of the offender occurs before final judgment.

With respect to civil liability of the accused, if he dies after the judgment has
become final, the same is not extinguished and it can be enforced against the
estate of the deceased. If he dies however, before promulgation of sentence, or
even after, but the same is not yet final, on account of an appeal or a motion for
reconsideration duly filed, the civil liability is also extinguished. The offended
party nevertheless is allowed to file a separate civil action, this time based on
contract, quasi-contract, law or quasi- delicts (the other sources of obligation

77
under Article 1157 of the Civil Code). The statute of limitations on the civil
liability in such a case is deemed interrupted during the pendency of the criminal
case. (People vs. Bayotas, 236 SCRA 239)

2. Service of Sentence

When the accused has fully served his sentence, his personal or criminal liability
is to be considered permanently terminated.

3. Amnesty and Absolute Pardon

Amnesty is a sovereign act of oblivion for past acts, granted by the Government
to a certain class of persons, charged or guilty of crime, usually political
offenses, and often conditioned upon their return to obedience and duty within a
prescribed time. (Black’s Law Dictionary, 4th Ed., p. 108)

Pardon is an act of grace which exempts the individual on whom it is bestowed

from the punishment the law inflicts for the crime he has committed. (De Leon
vs. Dir. Prisons, 31 Phil. 60)

It is the Chief Executive who can grant both but in the case of Amnesty, it needs
concurrence of Congress. While pardon looks forward and relieves the offender
from the consequences of an offense of which he has been convicted. Amnesty
looks backward and abolishes and puts into oblivion the offense itself; it so
overlooks and obliterates the offense with which he is charged that the person
released by amnesty stands before the law precisely as though he had committed
no offense. (Barrioquinto, et. al. vs. Fernandez, et. al., 82 Phil. 642). Thus, Art.
89 says “… by amnesty which completely extinguishes the penalty and all its
effects.”

Thus, if A was convicted of Homicide and was granted Absolute Pardon, and
later on committed Murder or Homicide, he will be considered a recidivist.
However, if his first offense is Rebellion and was granted amnesty and later on
was found guilty of sedition, recidivism cannot be considered against him.
Pardon, to be considered as a mode of extinction of criminal liability should be
pardon by the President of the Philippines and not pardon by the offended party
which only extinguishes civil liability. (Art. 23, RPC) Pardon by the offended
party, however, in cases of Adultery, Concubinage, Rape, Acts of
Lasciviousness, Seduction or Abduction when granted before the institution of
the criminal action also extinguishes criminal liability. (Art. 344, RPC) Under
R.A. No. 8353, in the crime of rape, if it is the husband who is the offender, the
subsequent forgiveness by the wife shall extinguish the criminal action or the
penalty except when the marriage is void ab initio. (Sec. 2)

Art. 90. Prescription of crime. — Crimes punishable by death, reclusion

perpetua or reclusion temporal shall prescribe in twenty years.
Crimes punishable by other afflictive penalties shall prescribe in fifteen
years.
Those punishable by a correctional penalty shall prescribe in ten years;
with the exception of those punishable by arresto mayor, which shall
prescribe in five years.
The crime of libel or other similar offenses shall prescribe in one year.

78
The crime of oral defamation and slander by deed shall prescribe in six
months.
Light offenses prescribe in two months.
When the penalty fixed by law is a compound one, the highest penalty shall
be made the basis of the application of the rules contained in the first,
second and third paragraphs of this article. (As amended by RA 4661,
approved June 19, 1966).

Discussion
PRESCRIPTION OF CRIME

It is the forfeiture or loss of the right of the State to prosecute the offender or file
criminal action after the lapse if a certain period of time. (See The Revised Penal
Code, Book I by Luis B. Reyes) Crimes punishable by death, reclusion perpetua
or reclusion temporal shall prescribe in twenty (20) years; those punishable by
other afflictive penalties (like prision mayor), in fifteen (15) years; and those by
correctional penalty, in ten (10) years except those by arresto mayor which shall
prescribe in five (5) years while grave oral defamation and grave slander by
deed prescribe in six (6) months. Light offenses shall prescribe in two (2)
months. When the penalty imposable is a compound one, the highest penalty
shall be made the basis of the application of the rules on prescription. (Art. 90)’

The period of prescription shall commence to run from the day of discovery of
the crime by the offended party, the authorities or their agents. (Art. 91) Thus, if
A witnessed the killing of X by B, and since A not being related to X, got
scared, and did not report the crime to the authority, the crime (Murder or
Homicide) will never prescribe. But if A is the son of X, or even if not related to
X, he reported to the police authorities what he witnessed, and no complaint is
filed in court within twenty (20) years, then the crime will prescribe, and after
twenty (20) years and one (1) day from the discovery of the crime, no charge
can be filed against B anymore.

The period shall be interrupted by the filing of the complaint or information, and
shall commence to run again when such proceedings terminate without the
accused being convicted or acquitted, or are unjustifiably stopped for any reason
not imputed to him.

The filing of the complaint even with the Fiscal’s office only (Francisco vs.
Court of Appelas, 122 SCRA 538; Calderon-Bargas vs. RTC-Pasig, Mtero
Manila, 227 SCRA 56) or with the court shall interrupt the prescriptive period.
Thus, in the example above, if B was charged before the court or the
prosecutor’s office on the tenth (10th) year from discovery, the prescriptive
period is interrupted. If one (1) year after the filing of the complaint or
information, the proceedings were stopped without fault on the part of B, or was
dismissed, the period shall begin to run again, and after nine (9) years and one
(1) day, the crime of B shall be deemed prescribed since the ten (10)- year
period that lapsed without filing any criminal complaint shall be considered so
that only nine (9) years and one (1) day would be needed to complete the
prescriptive period of twenty (20) years.

Criminal cases, however, which are covered by the Rule on Summary Procedure
under the Rules of Court must be filed with the Court, otherwise, they shall

79
prescribe even if filed with the Fiscal’s office, after the lapse of sixty (60) days.
(Zaldivia vs. Reyes, et. al., 211 SCRA 277)

Prescription of Falsification of Public Documents shall begin from registration

of the falsified document with the Register of Deeds since the registration is the
official notice to the whole world; but the crime of Bigamy shall commence to
prescribe from discovery by the offended party or the authorities of the crime,
and not from the time the bigamous marriage was registered with the Local Civil
Registrar since marriage is not property which would be registered in the place
where it is located, and a bigamous marriage is generally entered into in a place
where the offender is not known to be a married person, in order to conceal his
legal impediment. (Sermonia vs. Court of Appeals, et. al., 233 SCRA 155)

Even if libel is punishable by prision correccional, it prescribes not in ten (10)

years but in one (1) year as expressly provided for in Article 90. With respect to
offenses punished with a fine, to determine their prescriptive period, such fine
should not be reduced or converted into a prison term and should be considered
as afflictive, correctional or light under Article 26 of the Revised Penal Code.

Art. 91. Computation of prescription of offenses. — The period of

prescription shall commence to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents, and shall
be interrupted by the filing of the complaint or information, and shall
commence to run again when such proceedings terminate without the
accused being convicted or acquitted, or are unjustifiably stopped for any
reason not imputable to him.
The term of prescription shall not run when the offender is absent from the
Philippine Archipelago.

Discussion:

Art. 92. When and how penalties prescribe. — The penalties imposed by
final sentence prescribe as follows:
1. Death and reclusion perpetua, in twenty years;
2. Other afflictive penalties, in fifteen years;
3. Correctional penalties, in ten years; with the exception of the penalty of
arresto mayor, which prescribes in five years;
4. Light penalties, in one year.

Discussion:

Prescription of the penalty is the loss or forfeiture of the right of the State to
execute the final sentence of conviction after the lapse of a certain period of
time.

The penalties of death and reclusion perpetua prescribe in twenty (20) years;
other afflictive penalties (like reclusion temporal and prision mayor), in fifteen
(15) years while correctional penalties except arresto mayor which prescribes in
five (5) years, prescribe in ten (10) years. Light penalties shall prescribe in one
(1) year.

The penalty, to be subject of prescription must have been imposed by final

80
judgment. Thus, if A after conviction by the trial court, appealed the decision,
and escaped from jail where he has been detained during trial, the penalty will
never prescribe. In prescription of penalty, the offender must be serving
sentence, and must have escaped, committing the crime of Evasion of Sentence.
From the day he escaped, the prescription of penalty commences to run. If the
penalty imposed is death or reclusion temporal, for fifteen (15) years. If within
the prescriptive period he should give himself up, or be captured. Or would go to
a foreign country with which the Philippines has no extradition treaty, or should
commit another crime, then the period is interrupted and the penalty will not
prescribe anymore.

Problem:

A was sentenced to reclusion temporal for Homicide and while serving

sentence, escaped on January 1, 1980. He must be able to elude authorities up to
January 2, 1995 to consider the penalty prescribed. Suppose he was arrested
after five (5) years of escape- that is, on January 1, 1985, and was able to re-
escape on January 1, 1986, he must hide for just ten (10) more years. The five
(5) year period during his first escape must have to be considered for purposes
of completing the fifteen (15) year period for the prescription of the penalty of
Homicide.

Reason for Prescription of the Crime and/ or Penalty

During the period that the accused/ convict escaped, he lives a life of a hunted
animal, hiding mostly in the mountains and forest in constant mortal fear of
being caught. His life, far from being happy, comfortable and peaceful, is
reduced to a mere existence filled with fear, discomfort, loneliness and misery.
As the distinguished penal commentator Viada said, the convict who evades
sentence is sometimes sufficiently punished by his voluntary and self-imposed
punishment, and at times, his voluntary exile is more grievous than the sentence
he was trying to avoid. And all the time he has to utilize every ingenuity and
means to outwit the Government agencies bent on recapturing him. For all this,
the Government extends to him a sort of condonation or amnesty. (See Infante
vs. Provincial Warden, 92 Phil. 310)

Marriage of the Offended Party with the Offender

In cases of Seduction, Abduction, Rape and Acts of Lasciviousness (SARA), the

marriage of the offender with the offended party shall extinguish the criminal
action or remit the penalty already imposed upon him. The provision of this
paragraph shall also be applicable to the co-principals, accomplices and
accessories after the fact of the above-named crimes. (Art. 344, last par.)

In other crimes, marriage of the complainant and the accused does not
extinguish criminal liability. In the crimes of SARA (Seduction, Abduction,
Rape and Acts of Lasciviousness), the marriage must be entered into in good
faith, and if undertaken only to avoid criminal prosecution, such marriage does
not result in the extinction of penal liability. (People vs. Santiago, 51 Phil. 68) If
done in good faith however, the marriage benefits the accessory or accomplice
even if he is already serving sentence. (Laceste vs. Santos, 56 Phil. 472) Under
R.A. No. 8353, the subsequent valid marriage between the offender and the

81
offended party in the crime of rape shall extinguish the criminal action or the
penalty imposed.

Art. 93. Computation of the prescription of penalties. — The period of

prescription of penalties shall commence to run from the date when the
culprit should evade the service of his sentence, and it shall be interrupted if
the defendant should give himself up, be captured, should go to some
foreign country with which this Government has no extradition treaty, or
should commit another crime before the expiration of the period of
prescription.

Chapter Two
PARTIAL EXTINCTION OF CRIMINAL LIABILITY

Art. 94. Partial Extinction of criminal liability. — Criminal liability is

extinguished partially:
1. By conditional pardon;
2. By commutation of the sentence; and
3. For good conduct allowances which the culprit may earn while he is
serving his sentence.

Discussion:

Conditional Pardon by the Chief Executive partially extinguishes the penal

liability of a convict. It is that pardon granted to a prisoner which is subject to
some conditions, one of which is that he will not commit any crime anymore.
Oftenly, this kind of pardon is delivered to a convict still serving sentence who
must accept the condition in order to be effective. Thus, part of his sentence is
remitted which he will no longer undergo.

Art. 95. Obligation incurred by person granted conditional pardon. — Any

person who has been granted conditional pardon shall incur the obligation
of complying strictly with the conditions imposed therein otherwise, his
non-compliance with any of the conditions specified shall result in the
revocation of the pardon and the provisions of Article 159 shall be applied
to him.

Art. 96. Effect of commutation of sentence. — The commutation of the

original sentence for another of a different length and nature shall have the
legal effect of substituting the latter in the place of the former.

Discussion:

Commutation is the substitution of a lesser penalty for that of a greater

punishment imposed on the convict by the Chief Executive. Thus, instead of
pardon, the President may commute the death penalty to reclusion perpetua, or
if the penalty is reclusion temporal, he ay grant a commutation altering or
changing the penalty to prision mayor. There is no doubt a partial extinction of
criminal liability occurs. The commutation of the original sentence for another
of a different length and nature shall have the legal effect of substituting the
latter in the place of the former. (Art. 96) Unlike in conditional pardon, the
commutation of penalty in favor of the convict does not need his acceptance.

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Art. 97. Allowance for good conduct. — The good conduct of any prisoner in
any penal institution shall entitle him to the following deductions from the
period of his sentence:
1. During the first two years of his imprisonment, he shall be allowed a
deduction of five days for each month of good behavior;
2. During the third to the fifth year, inclusive, of his imprisonment, he shall
be allowed a deduction of eight days for each month of good behavior;
3. During the following years until the tenth year, inclusive, of his
imprisonment, he shall be allowed a deduction of ten days for each month
of good behavior; and
4. During the eleventh and successive years of his imprisonment, he shall be
allowed a deduction of fifteen days for each month of good behavior.

Discussion:

With respect to Good Conduct Allowances, Art. 97 provides for the guidelines
which by its nature may be expanded or supplemented by the prison’s authority.
The prisoner however, to be entitled must be serving his sentence. If the accused
is enjoying liberty under conditional pardon, he cannot be entitled to the good
conduct allowances. (People vs. Martin, 68 Phil. 122)

Art. 98. Special time allowance for loyalty. — A deduction of one-fifth of the
period of his sentence shall be granted to any prisoner who, having evaded
the service of his sentence under the circumstances mentioned in Article 58
of this Code, gives himself up to the authorities within 48 hours following
the issuance of a proclamation announcing the passing away of the calamity
or catastrophe to in said article.

Art. 99. Who grants time allowances. — Whenever lawfully justified, the
Director of Prisons shall grant allowances for good conduct. Such
allowances once granted shall not be revoked.

Title Five
CIVIL LIABILITY
Chapter One
PERSON CIVILLY LIABLE FOR FELONIES

Art. 100. Civil liability of a person guilty of felony. — Every person

criminally liable for a felony is also civilly liable.

Discussion:

If A committed Murder, Theft or Rape, aside from Imprisonment, he is obliged

to pay the offended party the civil liability which includes restitution, reparation
of the damage caused, and indemnification for consequential damages. (Art.
104) Of course, if the crime is one from which no civil liability may arise, like
Illegal Sale, Transport or Possession of Prohibited or Regulated Drugs, the
convict incurs no civil liability.

If an accused however was not held criminally liable, it does not mean he is not

83
civilly liable. In fact, under the Rules of Court, in case of acquittal, unless there
is a clear showing that the act from which the civil liability might arise did not
exist, the judgment shall make a finding on the civil liability of the accused in
favour of the offended party. (Rule 120, Sec. 2)

Civil Liability of Parents and/ or Guardians

For the crimes committed by minors and insane persons who are exempt from
criminal liability, the civil liability shall devolve upon those having legal
authority or control over them unless it appears that there was no fault or
negligence on their part or that they are insolvent, in which case, the property of
the minor or the insane shall be liable, excepting property exempt from
execution.

Art. 101. Rules regarding civil liability in certain cases. — The exemption
from criminal liability established in subdivisions 1, 2, 3, 5 and 6 of Article
12 and in subdivision 4 of Article 11 of this Code does not include
exemption from civil liability, which shall be enforced subject to the
following rules:
First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability for
acts committed by an imbecile or insane person, and by a person under nine
years of age, or by one over nine but under fifteen years of age, who has
acted without discernment, shall devolve upon those having such person
under their legal authority or control, unless it appears that there was no
fault or negligence on their part.
Should there be no person having such insane, imbecile or minor under his
authority, legal guardianship or control, or if such person be insolvent, said
insane, imbecile, or minor shall respond with their own property, excepting
property exempt from execution, in accordance with the civil law.
Second. In cases falling within subdivision 4 of Article 11, the persons for
whose benefit the harm has been prevented shall be civilly liable in
proportion to the benefit which they may have received.
The courts shall determine, in sound discretion, the proportionate amount
for which each one shall be liable.
When the respective shares cannot be equitably determined, even
approximately, or when the liability also attaches to the Government, or to
the majority of the inhabitants of the town, and, in all events, whenever the
damages have been caused with the consent of the authorities or their
agents, indemnification shall be made in the manner prescribed by special
laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of Article 12, the persons
using violence or causing the fears shall be primarily liable and secondarily,
or, if there be no such persons, those doing the act shall be liable, saving
always to the latter that part of their property exempt from execution.

Art. 102. Subsidiary civil liability of innkeepers, tavernkeepers and proprietors

of establishments. — In default of the persons criminally liable, innkeepers,
tavernkeepers, and any other persons or corporations shall be civilly liable
for crimes committed in their establishments, in all cases where a violation
of municipal ordinances or some general or special police regulation shall
have been committed by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods taken by

84
robbery or theft within their houses from guests lodging therein, or for the
payment of the value thereof, provided that such guests shall have notified
in advance the innkeeper himself, or the person representing him, of the
deposit of such goods within the inn; and shall furthermore have followed
the directions which such innkeeper or his representative may have given
them with respect to the care and vigilance over such goods. No liability
shall attach in case of robbery with violence against or intimidation of
persons unless committed by the innkeeper's employees.

Discussion:

In default of the persons criminally liable, innkeepers, tavern-keepers and any

other persons or corporations shall be civilly liable for the crimes committed in
their establishments, in all cases where a violation of municipal ordinances or
some general or special police regulations shall have been committed by them or
their employees. (Art. 102)

Art. 103. Subsidiary civil liability of other persons. — The subsidiary liability
established in the next preceding article shall also apply to employers,
teachers, persons, and corporations engaged in any kind of industry for
felonies committed by their servants, pupils, workmen, apprentices, or
employees in the discharge of their duties.

Chapter Two
WHAT CIVIL LIABILITY INCLUDES

Art. 104. What is included in civil liability. — The civil liability established in
Articles 100, 101, 102, and 103 of this Code includes:
1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.

Art. 105. Restitution; How made. — The restitution of the thing itself must
be made whenever possible, with allowance for any deterioration, or
diminution of value as determined by the court.
The thing itself shall be restored, even though it be found in the possession
of a third person who has acquired it by lawful means, saving to the latter
his action against the proper person, who may be liable to him.
This provision is not applicable in cases in which the thing has been
acquired by the third person in the manner and under the requirements
which, by law, bar an action for its recovery.

Art. 106. Reparation; How made. — The court shall determine the amount
of damage, taking into consideration the price of the thing, whenever
possible, and its special sentimental value to the injured party, and
reparation shall be made accordingly.

Art. 107. Indemnification; What is included. — Indemnification for

consequential damages shall include not only those caused the injured
party, but also those suffered by his family or by a third person by reason
of the crime.

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Art. 108. Obligation to make restoration, reparation for damages, or
indemnification for consequential damages and actions to demand the same;
Upon whom it devolves. — The obligation to make restoration or reparation
for damages and indemnification for consequential damages devolves upon
the heirs of the person liable.
The action to demand restoration, reparation, and indemnification likewise
descends to the heirs of the person injured.

Discussion:

If A was found guilty of killing B, and was sentenced to reclusion perpetua and
to pay the heirs of B, fifty thousand (P50,000.00) but died while serving
sentence, his (A’s) heirs are bound to pay the heirs of B the said amount of fifty
thousand (P50,000.00) if he left properties sufficient to cover the civil liability.

Art. 109. Share of each person civilly liable. — If there are two or more
persons civilly liable for a felony, the courts shall determine the amount for
which each must respond.

Art. 110. Several and subsidiary liability of principals, accomplices and

accessories of a felony; Preference in payment. — Notwithstanding the
provisions of the next preceding article, the principals, accomplices, and
accessories, each within their respective class, shall be liable severally (in
solidum) among themselves for their quotas, and subsidiaries for those of
the other persons liable.
The subsidiary liability shall be enforced, first against the property of the
principals; next, against that of the accomplices, and, lastly, against that of
the accessories.
Whenever the liability in solidum or the subsidiary liability has been
enforced, the person by whom payment has been made shall have a right of
action against the others for the amount of their respective shares.

Art. 111. Obligation to make restitution in certain cases. — Any person who
has participated gratuitously in the proceeds of a felony shall be bound to
make restitution in an amount equivalent to the extent of such
participation.

Chapter Three
EXTINCTION AND SURVIVAL OF CIVIL LIABILITY

Art. 112. Extinction of civil liability. — Civil liability established in Articles

100, 101, 102, and 103 of this Code shall be extinguished in the same
manner as obligations, in accordance with the provisions of the Civil Law.

Art. 113. Obligation to satisfy civil liability. — Except in case of extinction of

his civil liability as provided in the next preceding article the offender shall
continue to be obliged to satisfy the civil liability resulting from the crime
committed by him, notwithstanding the fact that he has served his sentence
consisting of deprivation of liberty or other rights, or has not been required
to serve the same by reason of amnesty, pardon, commutation of sentence
or any other reason.

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INDETERMINATE SENTENCE LAW
(Act 4103 as amended by Act. No. 4225)

Section 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal
Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the
maximum term of which, shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and the minimum of which shall be within the
range of the penalty next lower to that prescribed by the Code for the offense; and if the offense
is punished by any other law, the court shall sentence the accused to an indeterminate sentence,
the maximum term of which shall not exceed the maximum fixed by said law and the minimum
shall not be less than the minimum term prescribed by the same.

Since the opening sentence of this law says: “xxx in imposing a prison term xxx” this
Indeterminate Sentence Law is not applicable to destierro. So that if a concubine is found guilty
under Article 334, the court shall impose a straight penalty of not less than six (6) months and
one (1) day nor more than six (6) years as this is the range of destierro provided for in Article 27.
The judge thus can sentence a concubine to a straight prison term of six (6) months and one day,
or ten (10) months, or one (1) year, or five (5) years, etc.

How to Apply the Indeterminate Sentence Law

To cite a specific example: If A who is only seventeen (17) years old was found guilty of
Homicide with a mitigating circumstance of voluntary surrender, the court shall first determine
the applicable penalty by applying the mitigating circumstances present. Since the accused is
only seventeen (17) years old, he is entitled to a mitigating circumstance of minority which is a
privileged one. Thus, the penalty of reclusion temporal prescribed for Homicide (Art. 249) will
be reduced to prision mayor, which is one degree lower. The court will then consider the other
mitigating circumstance of voluntary surrender so that the maximum period under the
Indeterminate Sentence Law is prision mayor minimum which has a range of six (6) years and
one (1) day to eight (8) years.

The minimum term shall be any range of prision correccional which is the penalty next lower in
degree to prision mayor. The sentence of the court thus is as follows:

“Accused is hereby sentenced to an indeterminate prison term of six (6) months and one (1) day
[or more but not exceeding six (6) years of prision correccional as minimum, to six (6) years and
one (1) day [or more but not exceeding eight (8) years] of prision mayor as maximum.

If in the above example, the seventeen (17) year old convict did not voluntarily surrender but is a
recidivist, then the maximum term of the indeterminate sentence is prision mayor in its
maximum period, that is ten (10) years and one (1) day to twelve (12) years but the minimum is
the same- any range within prision correccional.

This Indeterminate Sentence Law is applicable to special laws as it says: “if the offense is
punished by any other law”. Thus, in People vs. Viente, 225 SCRA 361, the accused was found
guilty of carnapping under Republic Act No. 6539 and was sentenced by the trial court to a
straight imprisonment of thirty (30) years. The Supreme Court, ruling that the Indeterminate
Sentence Law applies to violation of special laws, modified the penalty to seventeen (17) years
and four (4) months as minimum to thirty (30) years as maximum since Section 14 of the said
Republic Act provides that, if carnapping is committed by means of violence or intimidation, the
penalty is imprisonment for not less than seventeen (17) years and four (4) months and not more
than thirty (30) years.

There are exceptions to the application of the Indeterminate Sentence Law. Thus, Section 2
provides that the law shall not apply to persons convicted of offenses punished with death

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penalty or life imprisonment; to those convicted of treason, conspiracy or proposal to commit
treason, misprision of treason, rebellion, sedition or espionage or piracy; to those who are
habitual delinquents; to those who shall have escaped from confinement or evaded sentence; to
those who violated the conditional pardon granted by the Chief Executive; to those whose
maximum term of imprisonment does not exceed one (1) year; nor to those already sentenced by
final judgment at the time of the approval of the Act.

Accused Mary Rose Ondo, having been sentenced to life imprisonment for Large Scale Illegal
Recruitment is not entitled to the benefits of the Indeterminate Sentence Law. (People vs. Ondo,
227 SCRA 562) The court also refused to grant her the benefits of P.D. No. 603, otherwise
known as the “Child and Youth Welfare Code.”

Although there is a great distinction between reclusion perpetua and Life Imprisonment, and the
Indeterminate Sentence Law does not mention reclusion perpetua as an exception, the courts
have uniformly refused to apply this law to persons sentenced to reclusion perpetua, and the
Supreme Court has consistently affirmed such ruling.

Recidivists are entitled to the availment of the Indeterminate Sentence Law since those
disqualified are Habitual Delinquents. (People vs. Venus, 63 Phil. 435)

Where the accused escaped from jail while his case was on appeal, he is not entitled to the
benefits of the Indeterminate Sentence Law. (People vs. Martinado, 214 SCRA 712)

The application of the Indeterminate Sentence Law is based on the penalty actually imposed, not
on the imposable penalty, and its purpose is to uplift and redeem valuable human material, and
prevent unnecessary and excessive deprivation of personal liberty and economic usefulness.

PROBATION LAW

Probation is a disposition under which a defendant, after conviction and sentence is released,
subject to conditions imposed by the court and to the supervision of a probation offiver. (Sec.
3[a], P.D. No. 968 as amended by P.D. No. 1257, P.D. No. 1990 and B.P. Blg. 76)

Under Section 4 of the law, the trial court may, after it shall have convicted and sentenced a
defendant, and upon application by said defendant within the period of perfecting an appeal,
suspend the execution of the sentence and place the defendant on probation for such period and
upon such terms and conditions at it may deem best: provided that no such application shall be
entertained or granted if the defendant has perfected the appeal from the judgment of conviction.

Probation is a mere privilege, not a right of the accused. It is rather an act of grace or clemency
or immunity conferred by the State which may be granted by the court to a seemingly deserving
defendant who thereby escapes the extreme rigors of the penalty imposed by law.

The benefits of the law shall not be extended to those:

1. Sentenced to serve a maximum of imprisonment of more than six (6) years.

2. Convicted of subversion or any crime against national security or the public order.
3. Who have previously been convicted by final judgment of an offense punished by
imprisonment of not less than one (1) month and one (1) day and/ or a fine of not less than two
hundred pesos (P200.00).
4. Who have been once on probation.
5. Who are already serving sentence at the time the substantive provisions of this Decree became
applicable.

If the accused is sentenced to more than six (6) year imprisonment even by a day, he is no longer
entitled to the benefits of the Probation Law.

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However, multiple prison terms imposed against the accused found guilty of several offenses in
one decision should not be added up, and their sum total should not be determinative of his
eligibility for, nay his disqualification from, probation since the law uses the word “maximum”
not “total” term of imprisonment. (Francisco vs. Court of Appelas, et. Al., 243 SCRA 384) Thus,
if A, having been charged for five (5) cases which were jointly heard is sentenced in one decision
for one (1) year and eight (8) months for each of the charges so that the totality of the prison term
is more than six (6) years, he is not disqualified to avail of the provisions of the Probation Law.

Conditions of Probation

Every probation order issued by the court shall contain the following conditions:

1. That probationer shall represent himself to his designated supervising probation officer within
seventy two (72) hours from receipt of the order.
2. He shall report to the probation officer at least once a month at such time and place specified
in the order.

The trial court may impose other conditions for the probationer to comply.

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