Professional Documents
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islands comprising the Philippine (1) The atmosphere over the country is
Archipelago are part of the Philippine free and not subject to the
territory regardless of their breadth, depth, jurisdiction of the subjacent state,
width or dimension. except for the protection of its
national security and public order.
On the fluvial jurisdiction there is presently
a departure from the accepted International Under this theory, if a crime is
Law Rule, because the Philippines adopted committed on board a foreign
the Archipelagic Rule. In the International aircraft at the atmosphere of a
Law Rule, when a strait within a country has country, the law of that country does
a width of more than 6 miles, the center not govern unless the crime affects
lane in excess of the 3 miles on both sides the national security.
is considered international waters.
(2) Relative Theory – The subjacent
state exercises jurisdiction over its
atmosphere only to the extent that it
Question & Answer
can effectively exercise control
thereof. The Relative Theory
If a foreign merchant vessel is in the
center lane and a crime was committed Under this theory, if a crime was
there, under the International Law Rule, committed on an aircraft which is
what law will apply? already beyond the control of the
subjacent state, the criminal law of
The law of the country where that that state will not govern anymore.
vessel is registered will apply, because the But if the crime is committed in an
crime is deemed to have been committed in aircraft within the atmosphere over a
the high seas. subjacent state which exercises
control, then its criminal law will
govern.
Under the Archipelagic Rule as declared in
Article 1, of the Constitution, all waters in (3) Absolute Theory – The subjacent
the archipelago regardless of breadth width, state has complete jurisdiction over
or dimension are part of our national the atmosphere above it subject
territory. Under this Rule, there is no more only to innocent passage by aircraft
center lane, all these waters, regardless of of foreign country.
their dimension or width are part of
Philippine territory. Under this theory, if the crime is
committed in an aircraft, no matter
So if a foreign merchant vessel is in the how high, as long as it can establish
center lane and a crime was committed, the that it is within the Philippine
crime will be prosecuted before Philippine atmosphere, Philippine criminal law
courts. will govern. This is the theory
adopted by the Philippines.
Actus non facit reum, nisi mens sit rea If you will be asked about the development
of criminal law in the Philippines, do not
The act cannot be criminal where the mind start with the Revised Penal Code. Under
is not criminal. This is true to a felony the Code of Kalantiao, there were penal
characterized by dolo, but not a felony provisions. Under this code, if a man would
resulting from culpa. This maxim is not an have a relation with a married woman, she
absolute one because it is not applied to is penalized. Adultery is a crime during
culpable felonies, or those that result from those days. Even offending religious
negligence. things, such as gods, are penalized. The
Code of Kalantiao has certain penal
provisions. The Filipinos have their own set
Utilitarian Theory or Protective Theory of penology also.
During the time of President Manuel Roxas, During Martial Law, there are many
a code commission was tasked to draft a Presidential Decrees issued aside from the
penal code that will be more in keeping with special laws passed by the Philippine
the custom, traditions, traits as well as Legislature Commission. All these special
beliefs of the Filipinos. During that time, the laws, which are penal in character, are part
code committee drafted the so-called Code of our Penal Code.
of Crimes. This too, slept in Congress. It
was never enacted into law. Among those
who participated in drafting the Code of
Crimes was Judge Guellermo Guevarra.
From this philosophy came the jury system, MALA IN SE AND MALA PROHIBITA
where the penalty is imposed on a case to
case basis after examination of the offender Violations of the Revised Penal Code are
by a panel of social scientists which do not referred to as malum in se, which literally
include lawyers as the panel would not want means, that the act is inherently evil or bad
the law to influence their consideration. or per se wrongful. On the other hand,
violations of special laws are generally
Crimes are regarded as social phenomena referred to as malum prohibitum.
which constrain a person to do wrong
although not of his own volition. A tendency
towards crime is the product of one’s Note, however, that not all violations of
environment. There is no such thing as a special laws are mala prohibita. While
natural born killer. intentional felonies are always mala in se, it
does not follow that prohibited acts done in
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 10
Likewise when the special laws requires In crimes punished under special
that the punished act be committed laws, good faith is not a defense
knowingly and willfully, criminal intent is
required to be proved before criminal liability 3. As to degree of accomplishment of
may arise. the crime
When the act penalized is not inherently In crimes punished under the
wrong, it is wrong only because a law Revised Penal Code, the degree of
punishes the same. accomplishment of the crime is
taken into account in punishing the
For example, Presidential Decree No. 532 offender; thus, there are attempted,
punishes piracy in Philippine waters and the frustrated, and consummated stages
special law punishing brigandage in the in the commission of the crime.
highways. These acts are inherently wrong
and although they are punished under In crimes punished under special
special law, the acts themselves are mala in laws, the act gives rise to a crime
se; thus, good faith or lack of criminal intent only when it is consummated; there
is a defense. are no attempted or frustrated
stages, unless the special law
expressly penalize the mere attempt
Distinction between crimes punished under or frustration of the crime.
the Revised Penal Code and crimes
punished under special laws 4. As to mitigating and aggravating
circumstances
1. As to moral trait of the offender
In crimes punished under the
In crimes punished under the Revised Penal Code, mitigating and
Revised Penal Code, the moral trait aggravating circumstances are taken
of the offender is considered. This is into account in imposing the penalty
why liability would only arise when since the moral trait of the offender
there is dolo or culpa in the is considered.
commission of the punishable act.
In crimes punished under special
In crimes punished under special laws, mitigating and aggravating
laws, the moral trait of the offender circumstances are not taken into
is not considered; it is enough that account in imposing the penalty.
the prohibited act was voluntarily
done. 5. As to degree of participation
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 11
(2) When the foreign country in whose A vessel is not registered in the
territorial waters the crime was Philippines. A crime is committed outside
committed adopts the French Rule, Philippine territorial waters. Then the vessel
which applies only to merchant entered our territory. Will the Revised Penal
vessels, except when the crime Code apply?
committed affects the national
security or public order of such Yes. Under the old Rules of
foreign country. Criminal Procedure, for our courts to take
cognizance of any crime committed on
board a vessel during its voyage, the vessel
The French Rule must be registered in the Philippines in
accordance with Philippine laws.
The French Rule provides that the Under the Revised Rules of Criminal
nationality of the vessel follows the flag Procedure, however, the requirement that
which the vessel flies, unless the crime the vessel must be licensed and registered
committed endangers the national security in accordance with Philippine laws has
of a foreign country where the vessel is been deleted from Section 25, paragraph c
within jurisdiction in which case such of Rule 110 of the Rules of Court. The
foreign country will never lose jurisdiction intention is to do away with that requirement
over such vessel. so that as long as the vessel is not
registered under the laws of any country,
our courts can take cognizance of the crime
The American or Anglo-Saxon Rule committed in such vessel.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 14
More than this, the revised provision added those, which are, under the law, to be
the phrase “in accordance with generally performed by the public officer in the
accepted principles of International Law”. Foreign Service of the Philippine
So the intention is clear to adopt generally government in a foreign country.
accepted principles of international law in
the matter of exercising jurisdiction over Exception: The Revised Penal Code
crimes committed in a vessel while in the governs if the crime was committed within
course of its voyage. Under international the Philippine Embassy or within the
law rule, a vessel which is not registered in embassy grounds in a foreign country. This
accordance with the laws of any country is is because embassy grounds are
considered a pirate vessel and piracy is a considered an extension of sovereignty.
crime against humanity in general, such
that wherever the pirates may go, they can Illustration:
be prosecuted.
A Philippine consulate official who is validly
Prior to the revision, the crime would not married here in the Philippines and who
have been prosecutable in our court. With marries again in a foreign country cannot be
the revision, registration is not anymore a prosecuted here for bigamy because this is
requirement and replaced with generally a crime not connected with his official
accepted principles of international law. duties. However, if the second marriage
Piracy is considered a crime against the law was celebrated within the Philippine
of nations. embassy, he may be prosecuted here,
since it is as if he contracted the marriage
In your answer, reference should be made here in the Philippines.
to the provision of paragraph c of Section15
of the Revised Rules of Criminal Procedure.
The crime may be regarded as an act of
piracy as long as it is done with “intent to Question & Answer
gain”.
Dolo or culpa
But although there is no intentional felony,
However, It does not mean that if an act or there could be a culpable felony. Culpa
omission is punished under the Revised requires the concurrence of three
Penal Code, a felony is already committed. requisites:
To be considered a felony, it must also be
done with dolo or culpa. (1) criminal negligence on the part of
the offender , that is, the crime was
Under Article 3, there is dolo when there is the result of negligence, reckless
deceit. This is no longer true. At the time imprudence, lack of foresight or lack
the Revised Penal Code was codified, the of skill;
term nearest to dolo was deceit. However,
deceit means fraud, and this is not the (2) freedom of action on the part of the
meaning of dolo. offender, that is, he was not acting
under duress; and
Dolo is deliberate intent otherwise referred
to as criminal intent, and must be coupled (3) Intelligence on the part of the
with freedom of action and intelligence on offender in performing the negligent
the part of the offender as to the act done act.
by him.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 17
Between dolo and culpa, the distinction lies latter. The accused was found to be not
on the criminal intent and criminal liable. In criminal law, there is pure
negligence. If any of these requisites is accident, and the principle damnum absque
absent, there can be no dolo nor culpa. injuria is also honored.
When there is no dolo or culpa, a felony
cannot arise. Even culpable felonies require
voluntariness. It does not mean that if there
is no criminal intent, the offender is
Question & Answer absolved of criminal liability, because there
is culpa to consider.
wrong doer to prove that he acted without conversation with a former suitor.
such criminal intent. Thereupon, he got a knife. The moving
force is jealousy. The intent is the resort to
Specific criminal intent is not presumed the knife, so that means he is desirous to
because it is an ingredient or element of a kill the former suitor. Even if the offender
crime, like intent to kill in the crimes of states that he had no reason to kill the
attempted or frustrated victim, this is not criminal intent. Criminal
homicide/parricide/murder. The intent is the means resorted to by him that
prosecution has the burden of proving the brought about the killing. If we equate
same. intent as a state of mind, many would
escape criminal liability.
Distinction between intent and discernment
In a case where mother and son were living
Intent is the determination to do a certain in the same house, and the son got angry
thing, an aim or purpose of the mind. It is and strangled his mother, the son, when
the design to resolve or determination by prosecuted for parricide, raised the defense
which a person acts. that he had no intent to kill his mother. It
was held that criminal intent applies on the
On the other hand, discernment is the strangulation of the vital part of the body.
mental capacity to tell right from wrong. It Criminal intent is on the basis of the act, not
relates to the moral significance that a on the basis if what the offender says.
person ascribes to his act and relates to the
intelligence as an element of dolo, distinct Look into motive to determine the proper
from intent. crime which can be imputed to the accused.
If a judge was killed, determine if the killing
Distinction between intent and motive has any relation to the official functions of
the judge in which case the crime would be
Intent is demonstrated by the use of a direct assault complexed with
particular means to bring about a desired murder/homicide, not the other way around.
result – it is not a state of mind or a reason If it has no relation, the crime is simply
for committing a crime. homicide or murder.
On the other hand, motive implies motion. Omission is the inaction, the failure to
It is the moving power which impels one to perform a positive duty which he is bound to
do an act. When there is motive in the do. There must be a law requiring the
commission of a crime, it always comes doing or performing of an act.
before the intent. But a crime may be
committed without motive. Distinction between negligence and
imprudence
If the crime is intentional, it cannot be
committed without intent. Intent is (1) In negligence, there is deficiency of
manifested by the instrument used by the action;
offender. The specific criminal intent
becomes material if the crime is to be (2) in imprudence, there is deficiency of
distinguished from the attempted or perception.
frustrated stage. For example, a husband
came home and found his wife in a pleasant Mens rea
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 19
case, the accused was charged with quasi–offense. His reason is that if criminal
malicious mischief. Malicious mischief is an negligence is not a quasi-offense, and only
intentional negligence under Article 327 of a modality, then it would have been
the Revised Penal Code. The provision absorbed in the commission of the felony
expressly requires that there be a deliberate and there would be no need for Article 365
damaging of property of another, which as a separate article for criminal
does not constitute destructive arson. You negligence. Therefore, criminal negligence,
do not have malicious mischief through according to him, is not just a modality; it is
simple negligence or reckless imprudence a crime by itself, but only a quasi-offense.
because it requires deliberateness. Faller
was charged with malicious mischief, but However, in Samson v. CA, where a
was convicted of damage to property person who has been charged with
through reckless imprudence. The falsification as an intentional felony, was
Supreme Court pointed out that although found guilty of falsification through simple
the allegation in the information charged the negligence. This means that means that
accused with an intentional felony, yet the culpa or criminal negligence is just a
words feloniously and unlawfully, which are modality of committing a crime.
standard languages in an information,
covers not only dolo but also culpa because In some decisions on a complex crime
culpa is just a mode of committing a felony. resulting from criminal negligence, the
Supreme Court pointed out that when
In Quezon v. Justice of the Peace, Justice crimes result from criminal negligence, they
J.B.L. Reyes dissented and claimed that should not be made the subject of a
criminal negligence is a quasi-offense, and different information. For instance, the
the correct designation should not be offender was charged with simple
homicide through reckless imprudence, but negligence resulting in slight physical
reckless imprudence resulting in homicide. injuries, and another charge for simple
The view of Justice Reyes is sound, but the negligence resulting in damage to property.
problem is Article 3, which states that culpa The slight physical injuries which are the
is just a mode by which a felony may result. result of criminal negligence are under the
jurisdiction of the inferior court. But
damage to property, if the damage is more
Question & Answer than P2,000.00, would be under the
jurisdiction of the Regional Trial Court
because the imposable fine ranges up to
Is culpa or criminal negligence a three times the value of the damage.
crime?
In People v. Angeles, the prosecution filed
First, point out Article 3. Under an information against the accused in an
Article 3, it is beyond question that culpa or inferior court for slight physical injuries
criminal negligence is just a mode by which through reckless imprudence and filed also
a felony may arise; a felony may be damage to property in the Regional Trial
committed or incurred through dolo or Court. The accused pleaded guilty to the
culpa. charge of slight physical injuries. When he
was arraigned before the Regional Trial
However, Justice J.B.L. Reyes Court, he invoked double jeopardy. He was
pointed out that criminal negligence is a claiming that he could not be prosecuted
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 21
again for the same criminal negligence. word “felony”, that whoever commits a
The Supreme Court ruled that here is no felony incurs criminal liability. A felony may
double jeopardy because the crimes are arise not only when it is intended, but also
two different crimes. Slight physical injuries when it is the product of criminal
and damage to property are two different negligence. What makes paragraph 1 of
crimes. Article 4 confusing is the addition of the
qualifier “although the wrongful act be
In so ruling that there is no double jeopardy, different from what he intended.”
the Supreme Court did not look into the
criminal negligence. The Supreme Court
looked into the physical injuries and the Questions & Answers
damage to property as the felonies and not
criminal negligence.
1. A man thought of committing
In several cases that followed, the suicide and went on top of a tall building.
Supreme Court ruled that where several He jumped, landing on somebody else, who
consequences result from reckless died instantly. Is he criminally liable?
imprudence or criminal negligence, the
accused should be charged only in the Yes. A felony may result not only
Regional Trial Court although the reckless from dolo but also from culpa. If that fellow
imprudence may result in slight physical who was committing suicide acted
injuries. The Supreme Court argued that negligently, he will be liable for criminal
since there was only one criminal negligence resulting in the death of another.
negligence, it would be an error to split the
same by prosecuting the accused in one 2. A had been courting X for the
court and prosecuting him again in another last five years. X told A, “Let us just be
for the same criminal negligence. This is friends. I want a lawyer for a husband and I
tantamount to splitting a cause of action in a have already found somebody whom I
civil case. For orderly procedure, the agreed to marry. Anyway there are still a lot
information should only be one. This of ladies around; you will still have your
however, also creates some doubts. As chance with another lady." A, trying to
you know, when the information charges show that he is a sport, went down from the
the accused for more than the crime, the house of X, went inside his car, and stepped
information is defective unless the crime on the accelerator to the limit, closed his
charged is a complex one or a special eyes, started the vehicle. The vehicle
complex crime. zoomed, running over all the pedestrians on
the street. At the end, the car stopped at the
fence. He was taken to the hospital, and he
survived. Can he be held criminally liable
CRIMINAL LIABILITY for all those innocent people that he ran
over, claiming that he was committing
suicide?
Since in Article 3, a felony is an act or
omission punishable by law, particularly the He will be criminally liable, not for an
Revised Penal Code, it follows that whoever intentional felony, but for culpable felony.
commits a felony incurs criminal liability. In This is so because, in paragraph 1 of Article
paragraph 1 of Article 4, the law uses the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 22
4, the term used is “felony”, and that term resulting felony. It must be the direct,
covers both dolo and culpa. natural, and logical consequence of the
felonious act.
3. A pregnant woman thought
of killing herself by climbing up a tall Proximate cause is that cause which sets
building and jumped down below. Instead into motion other causes and which
of falling in the pavement, she fell on the unbroken by any efficient supervening
owner of the building. An abortion resulted. cause produces a felony without which such
Is she liable for an unintentional abortion? If felony could not have resulted. He who is
not, what possible crime may be the cause of the cause is the evil of the
committed? cause. As a general rule, the offender is
criminally liable for all the consequences of
The relevant matter is whether the his felonious act, although not intended, if
pregnant woman could commit the felonious act is the proximate cause of
unintentional abortion upon herself. The the felony or resulting felony. A proximate
answer is no because the way the law cause is not necessarily the immediate
defines unintentional abortion, it requires cause. This may be a cause which is far
physical violence coming from a third party. and remote from the consequence which
When a pregnant woman does an act that sets into motion other causes which
would bring about abortion, it is always resulted in the felony.
intentional. Unintentional abortion can only
result when a third person employs physical Illustrations:
violence upon a pregnant woman resulting
to an unintended abortion. A, B, C, D and E were driving their vehicles
along Ortigas Aveue. A's car was ahead,
followed by those of B, C, D, and E. When
In one case, a pregnant woman and man A's car reached the intersection of EDSA
quarreled. The man could no longer bear and Ortigas Avenue, the traffic light turned
the shouting of the woman, so he got his red so A immediately stepped on his break,
firearm and poked it into the mouth of the followed by B, C, D. However, E was not
woman. The woman became hysterical, so aware that the traffic light had turned to red,
she ran as fast as she could, which resulted so he bumped the car of D, then D hit the
in an abortion. The man was prosecuted car of C, then C hit the car of B, then,
for unintentional abortion. It was held that finally, B hit the car of A. In this case, the
an unintentional abortion was not immediate cause to the damage of the car
committed. However, drawing a weapon in of A is the car of B, but that is not the
the height of a quarrel is a crime of other proximate cause. The proximate cause is
light threats under Article 285. An the car of E because it was the car of E
unintentional abortion can only be which sets into motion the cars to bump into
committed out of physical violence, not from each other.
mere threat.
In one case, A and B, who are brothers-in-
law, had a quarrel. At the height of their
Proximate cause quarrel, A shot B with an airgun. B was hit
at the stomach, which bled profusely. When
Article 4, paragraph 1 presupposes that the A saw this, he put B on the bed and told
act done is the proximate cause of the him not to leave the bed because he will
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 23
call a doctor. While A was away, B rose victim, with a big knife in hand threatening
from the bed, went into the kitchen and got to kill him. The victim believing himself to be
a kitchen knife and cut his throat. The in immediate peril, threw himself into the
doctor arrived and said that the wound in water. The victim died of drowning. The
the stomach is only superficial; only that it is accused was prosecuted for homicide. His
a bleeder, but the doctor could no longer contention that his liability should be only
save him because B’s throat was already for grave threats since he did not even stab
cut. Eventually, B died. A was prosecuted the victim, that the victim died of drowning,
for manslaughter. The Supreme Court and this can be considered as a
rationalized that what made B cut his throat, supervening cause. It was held that the
in the absence of evidence that he wanted deceased, in throwing himself into the river,
to commit suicide, is the belief that sooner acted solely in obedience to the instinct of
or later, he would die out of the wound self-preservation, and was in no sense
inflicted by A. Because of that belief, he legally responsible for his own death. As to
decided to shorten the agony by cutting his him, it was but the exercise of a choice
throat. That belief would not be engendered between two evils, and any reasonable
in his mind were it not because of the person under the same circumstance might
profuse bleeding from his wound. Now, that have done the same. The accused must,
profusely bleeding would not have been therefore, be considered as the author of
there, were it not for the wound inflicted by the death of the victim.
A. As a result, A was convicted for
manslaughter. This case illustrates that proximate cause
does not require that the offender needs to
In criminal law, as long as the act of the actually touch the body of the offended
accused contributed to the death of the party. It is enough that the offender
victim, even if the victim is about to die, he generated in the mind of the offended party
will still be liable for the felonious act of the belief that made him risk himself.
putting to death that victim. In one decision,
the Supreme Court held that the most If a person shouted fire, and because of
precious moment in a man’s life is that of that a moviegoer jumped into the fire
losing seconds when he is about to die. So escape and died, the person who shouted
when you robbed him of that, you should be fire when there is no fire is criminally liable
liable for his death. Even if a person is for the death of that person.
already dying, if one suffocates him to end
up his agony, one will be liable for murder, In a case where a wife had to go out to the
when you put him to death, in a situation cold to escape a brutal husband and
where he is utterly defenseless. because of that she was exposed to the
element and caught pneumonia, the
In US v. Valdez, the deceased is a member husband was made criminally liable for the
of the crew of a vessel. Accused is in death of the wife.
charge of the crewmembers engaged in the
loading of cargo in the vessel. Because the Even though the attending physician may
offended party was slow in his work, the have been negligent and the negligence
accused shouted at him. The offended party brought about the death of the offending
replied that they would be better if he would party – in other words, if the treatment was
not insult them. The accused resented this, not negligent, the offended party would
and rising in rage, he moved towards the have survived – is no defense at all,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 24
because without the wound inflicted by the intervened and they were separated.
offender, there would have been no Somehow, their differences were patched
occasion for a medical treatment. up. A agreed to shoulder all the expenses
for the treatment of the wound of B, and to
Even if the wound was called slight but pay him also whatever lost of income B may
because of the careless treatment, it was have failed to receive. B, on the other
aggravated, the offender is liable for the hand, signed a forgiveness in favor of A and
death of the victim not only of the slight on that condition, he withdrew the complaint
physical injuries. Reason – without the that he filed against A. After so many weeks
injury being inflicted, there would have been of treatment in a clinic, the doctor
no need for any medical treatment. That the pronounced the wound already healed.
medical treatment proved to be careless or Thereafter, B went back to his farm. Two
negligent, is not enough to relieve the months later, B came home and he was
offender of the liability for the inflicting chilling. Before midnight, he died out of
injuries. tetanus poisoning. The heirs of B filed a
case of homicide against A. The Supreme
When a person inflicted wound upon Court held that A is not liable. It took into
another, and his victim upon coming home account the incubation period of tetanus
got some leaves, pounded them and put toxic. Medical evidence were presented
lime there, and applying this to the wound, that tetanus toxic is good only for two
developed locked jaw and eventually he weeks. That if, indeed, the victim had
died, it was held that the one who inflicted incurred tetanus poisoning out of the wound
the wound is liable for his death. inflicted by A, he would not have lasted two
months. What brought about tetanus to
In another instance, during a quarrel, the infect the body of B was his working in his
victim was wounded. The wound was farm using his bare hands. Because of this,
superficial, but just the same the doctor put the Supreme Court said that the act of B of
inside some packing. When the victim went working in his farm where the soil is filthy,
home, he could not stand the pain, so he using his own hands, is an efficient
pulled out the packing. That resulted into supervening cause which relieves A of any
profuse bleeding and he died because of liability for the death of B. A, if at all, is only
loss of blood. The offender who caused the liable for physical injuries inflicted upon B.
wound, although the wound caused was
only slight, was held answerable for the If you are confronted with this facts of the
death of the victim, even if the victim would Urbano case, where the offended party died
not have died were it not for the fact that he because of tetanus poisoning, reason out
pulled out that packing. The principle is that according to that reasoning laid down by
without the wound, the act of the physician the Supreme Court, meaning to say, the
or the act of the offended party would not incubation period of the tetanus poisoning
have anything to do with the wound, and was considered. Since tetanus toxic would
since the wound was inflicted by the affect the victim for no longer than two
offender, whatever happens on that wound, weeks,, the fact that the victim died two
he should be made punishable for that. months later shows that it is no longer
tetanus brought about by the act of the
In Urbano v. IAC, A and B had a quarrel accused. The tetanus was gathered by his
and started hacking each other. B was working in the farm and that is already an
wounded at the back. Cooler heads efficient intervening cause.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 25
But if the crime committed was different felony, this circumstance cannot be availed
from the crime intended, Article 49 will of. It cannot be a case of praeter
apply and the penalty for the lesser crime intentionem because the intention of a
will be applied. In a way, mistake in identity person is determined from the means
is a mitigating circumstance where Article resorted to by him in committing the crime.
49 applies. Where the crime intended is
more serious than the crime committed, the Illustrations:
error in persona is not a mitigating
circumstance A stabbed his friend when they had a
Praeter intentionem drinking spree. While they were drinking,
they had some argument about a basketball
In People v. Gacogo, 53 Phil 524, two game and they could not agree, so he
persons quarreled. They had fist blows. stabbed him eleven times. His defense is
The other started to run away and Gacogo that he had no intention of killing his friend.
went after him, struck him with a fist blow at He did not intend to commit so grave a
the back of the head. Because the victim wrong as that committed. It was held that
was running, he lost balance, he fell on the the fact that 11 wounds were inflicted on A's
pavement and his head struck the cement friend is hardly compatible with the idea that
pavement. He suffered cerebral he did not intend to commit so grave a
hemorrhage. Although Gacogo claimed wrong that committed.
that he had no intention of killing the victim,
his claim is useless. Intent to kill is only In another instance, the accused was a
relevant when the victim did not die. This is homosexual. The victim ridiculed or
so because the purpose of intent to kill is to humiliated him while he was going to the
differentiate the crime of physical injuries restroom. He was so irritated that he just
from the crime of attempted homicide or stabbed the victim at the neck with a lady’s
attempted murder or frustrated homicide or comb with a pointed handle, killing the
frustrated murder. But once the victim is victim. His defense was that he did not
dead, you do not talk of intent to kill intend to kill him. He did not intend to
anymore. The best evidence of intent to kill commit so grave a wrong as that of killing
is the fact that victim was killed. Although him. That contention was rejected,
Gacogo was convicted for homicide for the because the instrument used was pointed.
death of the person, he was given the The part of the body wherein it was directed
benefit of paragraph 3 of Article13, that is, " was the neck which is a vital part of the
that the offender did not intend to commit so body. In praeter intentionem, it is mitigating
grave a wrong as that committed”. only if there is a notable or notorious
disparity between the means employed and
This is the consequence of praeter the resulting felony. In criminal law, intent
intentionem. In short, praeter intentionem is of the offender is determined on the basis
mitigating, particularly covered by employed by him and the manner in which
paragraph 3 of Article 13. In order he committed the crime. Intention of the
however, that the situation may qualify as offender is not what is in his mind; it is
praeter intentionem, there must be a disclosed in the manner in which he
notable disparity between the means committed the crime.
employed and the resulting felony. If there
is no disparity between the means In still another case, the accused entered
employed by the offender and the resulting the store of a Chinese couple, to commit
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 28
robbery. They hogtied the Chinaman and and the felony which resulted. This means
his wife. Because the wife was so talkative, that the resulting felony cannot be foreseen
one of the offenders got a pan de sal and from the acts of the offender. If the
put it in her mouth. But because the resulting felony can be foreseen or
woman was trying to wriggle from the anticipated from the means employed, the
bondage, the pan de sal slipped through circumstance of praeter intentionem does
her throat. She died because of not apply.
suffocation. The offender were convicted
for robbery with homicide because there For example, if A gave B a karate blow in
was a resulting death, although their the throat, there is no praeter intentionem
intention was only to rob. They were given because the blow to the throat can result in
the benefit of paragraph 3 of Article 13, death.
“that they did not intend to commit so grave
a wrong as that committed”. There was So also, if A tried to intimidate B by poking
really no intention to bring about the killing, a gun at the latter’s back, and B died of a
because it was the pan de sal they put into cardiac arrest, A will be prosecuted for
the mouth. Had it been a piece of rag, it homicide but will be given the mitigating
would be different. In that case, the circumstance praeter intentionem.
Supreme Court gave the offenders the
benefit of praeter intentionem as a
mitigating circumstance. The means Impossible crime
employed is not capable of producing death
if only the woman chewed the pan de sal. An impossible crime is an act which would
be an offense against person or property
A man raped a young girl. The young girl were it not for the inherent impossibility of
was shouting so the man placed his hand its accomplishment or on account of the
on the mouth and nose of the victim. He employment of inadequate or ineffectual
found out later that the victim was dead means.
already; she died of suffocation. The
offender begged that he had no intention of
killing the girl and that his only intention was Question & Answer
to prevent her from shouting. The Supreme
Court rejected the plea saying that one can
always expect that a person who is 1. Accused was a houseboy in
suffocated may eventually die. So the a house where only a spinster resides. It is
offender was prosecuted for the serious customary for the spinster to sleep nude
crime of rape with homicide and he was not because her room was warm. It was also
given the benefit of paragraph 3, Article 13. the habit of the houseboy that whenever
she enters her room, the houseboy would
Differentiating this first case with the case of follow and peek into the keyhole. Finally,
the Chinamana nd his wife, it would seem when the houseboy could no longer resist
that the difference lies in the means the urge, he climbed into the ceiling, went
employed by the offender. inside the room of his master, placed
himself on top of her and abused her, not
In praeter intentionem, it is essential that knowing that she was already dead five
there is a notable disparity between the minutes earlier. Is an impossible crime
means employed or the act of the offender committed?
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 29
dwelling because there are other things that Do not confuse an impossible crime with
can be stolen. the attempted or frustrated stage.
all. There is an impossible crime, because impossible crime only when his act cannot
under any and all circumstances, an be punished under some other provisions in
unloaded firearm will never fire. the Revised Penal Code.
Whenever you are confronted with a In other words, this idea of an impossible
problem where the facts suggest that an crime is a one of last resort, just to teach
impossible crime was committed, be careful the offender a lesson because of his
about the question asked. If the question criminal perversity. If he could be taught of
asked is: “Is an impossible crime the same lesson by charging him with some
committed?”, then you judge that question other crime constituted by his act, then that
on the basis of the facts. If really the facts will be the proper way. If you want to play
constitute an impossible crime, then you safe, you state there that although an
suggest than an impossible crime is impossible crime is constituted, yet it is a
committed, then you state the reason for principle of criminal law that he will only be
the inherent impossibility. penalized for an impossible crime if he
cannot be punished under some other
If the question asked is “Is he liable for an provision of the Revised Penal Code.
impossible crime?”, this is a catching
question. Even though the facts constitute If the question is “Is an impossible crime is
an impossible crime, if the act done by the committed?”, the answer is yes, because
offender constitutes some other crimes on the basis of the facts stated, an
under the Revised Penal Code, he will not impossible crime is committed. But to play
be liable for an impossible crime. He will be safe, add another paragraph: However, the
prosecuted for the crime constituted so far offender will not be prosecuted for an
by the act done by him. The reason is an impossible crime but for _____ [state the
offender is punished for an impossible crime]. Because it is a principle in criminal
crime just to teach him a lesson because of law that the offender can only be
his criminal perversity. Although objectively, prosecuted for an impossible crime if his
no crime is committed, but subjectively, he acts do not constitute some other crimes
is a criminal. That purpose of the law will punishable under the Revised Penal Code.
also be served if he is prosecuted for some An impossible crime is a crime of last
other crime constituted by his acts which resort.
are also punishable under the RPC.
that the intended victim did not come home Code provides two situations where criminal
on the evening and so was not in her liability shall be incurred, to wit:
bedroom at that time. Eventually the
culprits were prosecuted and convicted by Art 4. Criminal
the trial court for attempted murder. The liability – Criminal liability
Court of Appeals affirmed the judgment but shall be incurred:
the Supreme Court modified the same and
held the petitioner liable only for the so- 1. By any person
called impossible crime. As a result, committing a felony
petitioner-accused was sentenced to (delito) although the
imprisonment of only six months of arresto wrongful act be
mayor for the felonious act he committed different from that
with intent to kill: this despite the destruction which he intended.
done to the intended victim’s house.
Somehow, the decision depreciated the 2. By any person
seriousness of the act committed, performing an act
considering the lawlessness by which the which would be an
culprits carried out the intended crime, and offense against
so some members of the bench and bar persons or property,
spoke out against the soundness of the were it not for the
ruling. Some asked questions: Was it inherent impossibility
really the impossibility of accomplishing the of its accomplishment
killing that brought about its non- or on account of the
accomplishment? Was it not purely employment of
accidental that the intended victim did not inadequate or
come home that evening and, thus, ineffectual means.
unknown to the culprits, she was not in her
bedroom at the time it was shot and riddled Paragraph 1 refers to a situation where the
with bullets? Suppose, instead of using wrongful act done constituted a felony
firearms, the culprits set fire on the intended although it may be different from what he
victim’s house, believing she was there intended. Paragraph 2 refers to a situation
when in fact she was not, would the criminal where the wrongful act done did not
liability be for an impossible crime? constitute any felony, but because the act
would have given rise to a crime against
Until the Intod case, the prevailing attitude persons or against property, the same is
was that the provision of the Revised Penal penalized to repress criminal tendencies to
Code on impossible crime would only apply curtail their frequency. Because criminal
when the wrongful act, which would have liability for impossible crime presupposes
constituted a crime against persons or that no felony resulted from the wrongful act
property, could not and did not constitute done, the penalty is fixed at arresto mayor
another felony. Otherwise, if such act or a fine from P200.00 to P500.00,
constituted any other felony although depending on the “social danger and
different from what the offender intended, degree of criminality shown by the offender”
the criminal liability should be for such other (Article 59), regardless of whether the
felony and not for an impossible crime. The wrongful act was an impossible crime
attitude was so because Article 4 of the against persons or against property.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 33
(1) The court cannot convict the So also, in illegal exaction under Article 213
accused because the acts do not is a crime committed when a public officer
constitute a crime. The proper who is authorized to collect taxes, licenses
judgment is acquittal, but the court is or impose for the government, shall
mandated to report to the Chief demand an amount bigger than or different
Executive that said act be made from what the law authorizes him to collect.
subject of penal legislation and why. Under sub-paragraph a of Article 213 on
Illegal exaction, the law uses the word
(2) Where the court finds the penalty “demanding”. Mere demanding of an
prescribed for the crime too harsh amount different from what the law
considering the conditions authorizes him to collect will already
surrounding the commission of he consummate a crime, whether the taxpayer
crime, the judge should impose the pays the amount being demanded or not.
law. The most that he could do is to Payment of the amount being demanded is
recommend to the Chief Executive not essential to the consummation of the
to grant executive clemency. crime.
acts of execution for the accomplishment of No. Overt act begins when the
a felony. Literally, under the article, if the husband mixed the poison with the food his
offender has performed all the acts of wife is going to take. Before this, there is
execution which should produce the felony no attempted stage yet.
as a consequence but the felony was not
realized, then the crime is already in the An overt act is that act which if allowed to
frustrated stage. If the offender has not yet continue in its natural course would
performed all the acts of execution – there definitely result into a felony.
is yet something to be performed – but he
was not able to perform all the acts of In the attempted stage, the definition uses
execution due to some cause or accident the word “directly”. This is significant. In the
other than his own spontaneous desistance, attempted stage, the acts so far performed
then you have an attempted felony. may already be a crime or it may be just an
ingredient of another crime. The word
You will notice that the felony begins when "directly’" emphasizes the requirement that
the offender performs an overt act. Not any the attempted felony is that which is directly
act will mark the beginning of a felony, and linked to the overt act performed by the
therefore, if the act so far being done does offender, not the felony he has in his mind.
not begin a felony, criminal liability
correspondingly does not begin. In criminal In criminal law, you are not allowed to
law, there is such a thing as preparatory speculate, not to imagine what crime is
act. These acts do not give rise to criminal intended, but apply the provisions of the law
liability. of the facts given.
at most the intention to enter. He can only not complex because one is not necessary
be prosecuted for trespass. The removal of means to commit the other.
the panelling is just an attempt to trespass,
not an attempt to rob. Although, Namaja
was prosecuted for attempted robbery, the Desistance
Supreme Court held it is only attempted
trespass because that is the crime that can Desistance on the part of the offender
be directly linked to his act of removing the negates criminal liability in the attempted
wood panel. stage. Desistance is true only in the
There are some acts which are ingredients attempted stage of the felony. If under the
of a certain crime, but which are, by definition of the felony, the act done is
themselves, already criminal offenses. already in the frustrated stage, no amount
of desistance will negate criminal liability.
In abduction, your desire may lead to acts
of lasciviousness. In so far the woman The spontaneous desistance of the offender
being carried is concerned, she may negates only the attempted stage but not
already be the victim of lascivious acts. The necessarily all criminal liability. Even
crime is not attempted abduction but acts of though there was desistance on the part of
lasciviousness. You only hold him liable for the offender, if the desistance was made
an attempt, so far as could be reasonably when acts done by him already resulted to
linked to the overt act done by him. Do not a felony, that offender will still be criminally
go far and imagine what you should do. liable for the felony brought about his act.
What is negated is only the attempted
stage, but there may be other felony
Question & Answer constituting his act.
house and thought that B was already be committed? No. (Incidentally, the
asleep, he entered the house of B through common concept of bribery is that it is the
the window to abuse her. He, however, act of one who corrupts a public officer.
found out that B was nude, so he lost Actually, bribery is the crime of the receiver
interest and left. Can a be accused of not the giver. The crime of the giver is
attempted rape? No, because there was corruption of public official. Bribery is the
desistance, which prevented the crime from crime of the public officer who in
being consummated. The attempted stage consideration of an act having to do with his
was erased because the offender desisted official duties would receive something, or
after having commenced the commission of accept any promise or present in
the felony. consideration thereof.)
The attempted felony is erased by The confusion arises from the fact that this
desistance because the offender crime requires two to commit -- the giver
spontaneously desisted from pursuing the and the receiver. The law called the crime
acts of execution. It does not mean, of the giver as corruption of public official
however, that there is no more felony and the receiver as bribery. Giving the idea
committed. He may be liable for a that these are independent crimes, but
consummated felony constituted by his act actually, they cannot arise without the other.
of trespassing. When A entered the house Hence, if only one side of the crime is
through the window, which is not intended present, only corruption, you cannot have a
for entrance, it is always presumed to be consummated corruption without the
against the will of the owner. If the offender corresponding consummated bribery. There
proceeded to abuse the woman, but the cannot be a consummated bribery without
latter screamed, and A went out of the the corresponding consummated
window again, he could not be prosecuted corruption. If you have bribery only, it is only
for qualified trespass. Dwelling is taken as possible in the attempted stage. If you have
an aggravating circumstance so he will be a corruption only, it is possible only in the
prosecuted for attempted rape aggravated attempted stage. A corruptor gives money
by dwelling. to a public officer for the latter not to
prosecute him. The public officer received
In deciding whether a felony is attempted or the money but just the same, arrested him.
frustrated or consummated, there are three He received the money to have evidence of
criteria involved: corruption. Do not think that because the
corruptor has already delivered the money,
(1) The manner of committing the he has already performed all the acts of
crime; execution, and, therefore, the corruption is
already beyond the attempted stage. That
(2) The elements of the crime; and thinking does away with the concept of the
crime that it requires two to commit. The
(3) The nature of the crime itself. manner of committing the crime requires
the meeting of the minds between the giver
and the receiver.
Manner of committing a crime
When the giver delivers the money to the
For example, let us take the crime of supposed receiver, but there is no meeting
bribery. Can the crime of frustrated bribery of the minds, the only act done by the giver
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 37
is an attempt. It is not possible for him to there are felonies where the offender can
perform all the acts of execution because in only be determined to have performed all
the first place, the receiver has no intention the acts of execution when the resulting
of being corrupted. felony is already accomplished. Without the
Similarly, when a public officer demands a resulting felony, there is no way of
consideration by official duty, the corruptor determining whether the offender has
turns down the demand, there is no bribery. already performed all the acts or not. It is in
such felonies that the frustrated stage does
If the one to whom the demand was made not exist because without the felony being
pretended to give, but he had reported the accomplished, there is no way of stating
matter to higher authorities, the money was that the offender has already performed all
marked and this was delivered to the public the acts of execution. An example of this is
officer. If the public officer was arrested, do the crime of rape. The essence of the
not think that because the public officer crime is carnal knowledge. No matter what
already had the money in his possession, the offender may do to accomplish a
the crime is already frustrated bribery, it is penetration, if there was no penetration yet,
only attempted bribery. This is because the it cannot be said that the offender has
supposed corruptor has no intention to performed all the acts of execution. We can
corrupt. In short, there is no meeting of the only say that the offender in rape has
minds. On the other hand, if there is a performed all the acts of execution when he
meeting of the minds, there is has effected a penetration. Once there is
consummated bribery or consummated penetration already, no matter how slight,
corruption. This leaves out the frustrated the offense is consummated. For this
stage because of the manner of committing reason, rape admits only of the attempted
the crime. and consummated stages, no frustrated
stage. This was the ruling in the case of
But indirect bribery is always consummated. People v. Orita.
This is because the manner of
consummating the crime does not admit of In rape, it requires the connection of the
attempt or frustration. offender and the offended party. No
penetration at all, there is only an attempted
You will notice that under the Revised stage. Slightest penetration or slightest
Penal Code, when it takes two to commit connection, consummated. You will notice
the crime, there could hardly be a frustrated this from the nature of the crime requiring
stage. For instance, the crime of adultery. two participants.
There is no frustrated adultery. Only
attempted or consummated. This is This is also true in the crime of arson. It
because it requires the link of two does not admit of the frustrated stage. In
participants. If that link is there, the crime is arson, the moment any particle of the
consummated; if such link is absent, there premises intended to be burned is
is only an attempted adultery. There is no blackened, that is already an indication that
middle ground when the link is there and the premises have begun to burn. It does
when the link is absent. not require that the entire premises be
burned to consummate arson. Because of
There are instances where an intended that, the frustrated stage of arson has been
felony could already result from the acts of eased out. The reasoning is that one
execution already done. Because of this, cannot say that the offender, in the crime of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 38
arson, has already performed all the acts of depending on whether a felony resulted. If
execution which could produce the the felony did not result, frustrated.
destruction of the premises through the use
of fire, unless a part of the premises has The attempted stage is said to be within the
begun to burn. If it has not begun to burn, subjective phase of execution of a felony.
that means that the offender has not yet On the subjective phase, it is that point in
performed all the acts of execution. On the time when the offender begins the
other hand, the moment it begins to burn, commission of an overt act until that point
the crime is consummated. Actually, the where he loses control of the commission of
frustrated stage is already standing on the the crime already. If he has reached that
consummated stage except that the point where he can no longer control the
outcome did not result. As far as the stage ensuing consequence, the crime has
is concerned, the frustrated stage overlaps already passed the subjective phase and,
the consummated stage. therefore, it is no longer attempted. The
moment the execution of the crime has
Because of this reasoning by the Court of already gone to that point where the felony
Appeals in People v. Garcia, the Supreme should follow as a consequence, it is either
Court followed the analysis that one cannot already frustrated or consummated. If the
say that the offender in the crime of arson felony does not follow as a consequence, it
has already performed all the acts of is already frustrated. If the felony follows as
execution which would produce the arson a consequence, it is consummated.
as a consequence, unless and until a part
of the premises had begun to burn. The trouble is that, in the jurisprudence
recognizing the objective phase and the
In US v. Valdez, the offender had tried to subjective phase, the Supreme Court
burn the premises by gathering jute sacks considered not only the acts of the offender,
laying these inside the room. He lighted but also his belief. That although the
these, and as soon as the jute sacks began offender may not have done the act to bring
to burn, he ran away. The occupants of the about the felony as a consequence, if he
room put out the fire. The court held that could have continued committing those acts
what was committed was frustrated arson. but he himself did not proceed because he
believed that he had done enough to
This case was much the way before the consummate the crime, Supreme Court
decision in the case of People v. Garcia said the subjective phase has passed. This
was handed down and the Court of Appeals was applied in the case of US v. Valdez,
ruled that there is no frustrated arson. But where the offender, having already put
even then, the analysis in the case of US v. kerosene on the jute sacks, lighted the
Valdez is correct. This is because, in same, he had no reason not to believe that
determining whether the felony is the fire would spread, so he ran away. That
attempted, frustrated or consummated, the act demonstrated that in his mind, he
court does not only consider the definition believed that he has performed all the acts
under Article 6 of the Revised Penal Code, of execution and that it is only a matter of
or the stages of execution of the felony. time that the premises will burn. The fact
When the offender has already passed the that the occupant of the other room came
subjective stage of the felony, it is beyond out and put out the fire is a cause
the attempted stage. It is already on the independent of the will of the perpetrator.
consummated or frustrated stage
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 39
The ruling in the case of US v. Valdez is a fist blow to another raises his arms, but
still correct. But in the case of People v. before he could throw the blow, somebody
Garcia, the situation is different. Here, the holds that arm, there would be attempted
offender who put the torch over the house physical injuries. The reason for this is
of the offended party, the house being a because the offender was not able to
nipa hut, the torch which was lighted could perform all the acts of execution to bring
easily burn the roof of the nipa hut. But the about physical injuries.
torch burned out.
On the other hand, he also stated that the
In that case, you cannot say that the crime of physical injuries may be committed
offender believed that he had performed all in the frustrated stage when the offender
the acts of execution. There was not even was able to throw the blow but somehow,
a single burn of any instrument or agency of the offended party was able to sidestep
the crime. away from the blow. He reasoned out that
the crime would be frustrated because the
The analysis made by the Court of Appeals offender was able to perform all the acts of
is still correct: that they could not execution which would bring about the
demonstrate a situation where the offender felony were it not for a cause independent
has performed all the acts of execution to of the will of the perpetrator.
bring about the crime of arson and the
situation where he has not yet performed all The explanation is academic. You will
the acts of execution. The weight of the notice that under the Revised Penal Code,
authority is that the crime of arson cannot the crime of physical injuries is penalized on
be committed in the frustrated stage. The the basis of the gravity of the injuries.
reason is because we can hardly determine Actually, there is no simple crime of
whether the offender has performed all the physical injuries. You have to categorize
acts of execution that would result in arson, because there are specific articles that
as a consequence, unless a part of the apply whether the physical injuries are
premises has started to burn. On the other serious, less serious or slight. If you say
hand, the moment a particle or a molecule physical injuries, you do not know which
of the premises has blackened, in law, article to apply. This being so, you could
arson is consummated. This is because not punish the attempted or frustrated stage
consummated arson does not require that because you do not know what crime of
the whole of the premises be burned. It is physical injuries was committed.
enough that any part of the premises, no
matter how small, has begun to burn.
There are also certain crimes that do not Questions & Answers
admit of the attempted or frustrated stage,
like physical injuries. One of the known 1. Is there an attempted slight
commentators in criminal law has advanced physical injuries?
the view that the crime of physical injuries
can be committed in the attempted as well If there is no result, you do not
as the frustrated stage. He explained that know. Criminal law cannot stand on any
by going through the definition of an speculation or ambiguity; otherwise, the
attempted and a frustrated felony under presumption of innocence would be
Article 6, if a person who was about to give sacrificed. Therefore, the commentator’s
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 40
(3) The ugliness would not disappear If the personal property was received by the
through natural healing process. offender, this is where you have to decide
whether what was transferred to the
Along this concept of deformity in law, the offender is juridical possession or physical
plastic surgery applied to B is beside the possession only. If the offender did not
point. In law, what is considered is not the receive the personal property, but took the
artificial or the scientific treatment but the same from the possession of the owner
natural healing of the injury. So the fact without the latter’s consent, then there is no
that there was plastic surgery applied to B problem. That cannot be estafa; this is only
does not relieve the offender from the theft or none at all.
liability for the physical injuries inflicted.
In estafa, the offender receives the
The crime committed is serious physical
property; he does not take it. But in
injuries. It is consummated. In
receiving the property, the recipient may be
determining whether a felony is attempted, committing theft, not estafa, if what was
frustrated or consummated, you have to transferred to him was only the physical or
consider the manner of committing the material possession of the object. It can
felony, the element of the felony and the only be estafa if what was transferred to
nature of the felony itself. There is no real him is not only material or physical
hard and fast rule. possession but juridical possession as well.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 41
When you are discussing estafa, do not talk frustrated. If he is in the act of trying to take
about intent to gain. In the same manner the wallet or place it under, attempted.
that when you are discussing the crime of
theft, do not talk of damage. “Taking” in the concept of theft, simply
means exercising control over the thing.
The crime of theft is the one commonly
given under Article 6. This is so because If instead of the wallet, the man who
the concept of theft under the Revised entered the room pretended to carry the
Penal Code differs from the concept of table out of the room, and the wallet is
larceny under American common law. there. While taking the table out of the
Under American common law, the crime of room, I apprehended him. It turned out that
larceny which is equivalent to our crime of he is not authorized at all and is interested
theft here requires that the offender must be only in the wallet, not the table. The crime
able to carry away or transport the thing is not yet consummated. It is only frustrated
being stolen. Without that carrying away, because as far as the table is concern, it is
the larceny cannot be consummated. the confines of this room that is the
container. As long as he has not taken this
In our concept of theft, the offender need table out of the four walls of this room, the
not move an inch from where he was. It is taking is not complete.
not a matter of carrying away. It is a matter
of whether he has already acquired A man entered a room and found a chest
complete control of the personal property on the table. He opened it found some
involved. That complete control simply valuables inside. He took the valuables, put
means that the offender has already them in his pocket and was arrested. In this
supplanted his will from the will of the case, theft is consummated.
possessor or owner of the personal
property involved, such that he could But if he does not take the valuables but
exercise his own control on the thing. lifts the entire chest, and before he could
leave the room, he was apprehended, there
Illustration: is frustrated theft.
I placed a wallet on a table inside a room. A If the thing is stolen from a compound or
stranger comes inside the room, gets the from a room, as long as the object has not
wallet and puts it in his pocket. I suddenly been brought out of that room, or from the
started searching him and I found the wallet perimeter of the compound, the crime is
inside his pocket. The crime of theft is only frustrated. This is the confusion raised
already consummated because he already in the case of US v. Diño compared with
acquired complete control of my wallet. This People v. Adio and People v. Espiritu.
is so true when he removed the wallet from
the confines of the table. He can exercise In US v. Diño, the accused loaded boxes of
his will over the wallet already, he can drop rifle on their truck. When they were on their
this on the floor, etc. way out of the South Harbor, they were
But as long as the wallet remains on the checked at the checkpoint, so they were not
table, the theft is not yet consummated; able to leave the compound. It was held
there can only be attempted or frustrated that what was committed was frustrated
theft. If he has started lifting the wallet, it is Theft.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 42
In People v. Espiritu, the accused were on already acquired complete control of what
their way out of the supply house when they he intended to take, the fact that he
were apprehended by military police who changed his mind and returned the same
found them secreting some hospital linen. will no longer affect his criminal liability. It
It was held that what was committed was will only affect the civil liability of the crime
consummated theft. because he will no longer be required to
pay the object. As far as the crime
The emphasis, which was erroneously laid committed is concerned, the offender is
in some commentaries, is that, in both criminally liable and the crime is
cases, the offenders were not able to pass consummated theft.
the checkpoint. But why is it that in one, it
is frustrated and in the other, it is Illustration:
consummated?
A and B are neighbors. One evening, A
In the case of US v. Diño, the boxes of rifle entered the yard of B and opened the
were stocked file inside the compound of chicken coop where B keeps his fighting
the South Harbor. As far as the boxes of cocks. He discovered that the fighting
rifle are concerned, it is the perimeter of the cocks were not physically fit for cockfighting
compound that is the container. As long as so he returned it. The crime is
they were not able to bring these boxes of consummated theft. The will of the owner is
rifle out of the compound, the taking is not to keep the fighting cock inside the chicken
complete. On the other hand, in the case of coop. When the offender succeeded in
People v. Espiritu, what were taken were bringing the cock out of the coop, it is clear
hospital linens. These were taken from a that his will completely governed or
warehouse. Hospital linens were taken superseded the will of the owner to keep
from boxes that were diffused or destroyed such cock inside the chicken coop. Hence,
and brought out of the hospital. From the the crime was already consummated, and
moment they took it out of the boxes where being consummated, the return of the
the owner or the possessor had placed it, owner’s property is not desistance
the control is complete. You do not have to anymore. The offender is criminally liable
go out of the compound to complete the but he will not be civilly liable because the
taking or the control. object was returned.
This is very decisive in the problem When the receptacle is locked or sealed,
because in most problems given in the bar, and the offender broke the same, in lieu of
the offender, after having taken the object theft, the crime is robbery with force upon
out of the container changed his mind and things. However, that the receptacle is
returned it. Is he criminally liable? Do not locked or sealed has nothing to do with the
make a mistake by saying that there is a stage of the commission of the crime. It
desistance. If the crime is one of theft, the refers only to whether it is theft or robbery
moment he brought it out, it was with force upon things.
consummated. The return of the thing
cannot be desistance because in criminal
law, desistance is true only in the attempted Nature of the crime itself
stage. You cannot talk of desistance
anymore when it is already in the In crimes involving the taking of human life
consummated stage. If the offender has – parricide, homicide, and murder – in the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 43
(2) The participants acted in concert or When the conspiracy is only a basis of
simultaneously which is indicative of incurring criminal liability, there must be an
a meeting of the minds towards a overt act done before the co-conspirators
common criminal goal or criminal become criminally liable.
objective. When several offenders
act in a synchronized, coordinated When the conspiracy itself is a crime, this
manner, the fact that their acts cannot be inferred or deduced because
complimented each other is there is no overt act. All that there is the
indicative of the meeting of the agreement. On the other hand, if the co-
conspirator or any of them would execute
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 44
Three persons plan to rob a bank. For as Conspiracy is a matter of substance which
long as none of the conspirators has must be alleged in the information,
committed an overt act, there is no crime otherwise, the court will not consider the
yet. But when one of them commits any same.
overt act, all of them shall be held liable,
unless a co-conspirator was absent from In People v. Laurio, 200 SCRA 489, it was
the scene of the crime or he showed up, but held that it must be established by positive
he tried to prevent the commission of the and conclusive evidence, not by
crime conjectures or speculations.
As a general rule, if there has been a In Taer v. CA, 186 SCRA 5980, it was held
conspiracy to commit a crime in a particular that mere knowledge, acquiescence to, or
place, anyone who did not appear shall be approval of the act, without cooperation or
presumed to have desisted. The exception at least, agreement to cooperate, is not
to this is if such person who did not appear enough to constitute a conspiracy. There
was the mastermind. must be an intentional participation in the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 45
crime with a view to further the common just a preparatory act, and his desistance
felonious objective. negates criminal liability.
When several persons who do not know Proposal is true only up to the point where
each other simultaneously attack the victim, the party to whom the proposal was made
the act of one is the act of all, regardless of has not yet accepted the proposal. Once
the degree of injury inflicted by any one of the proposal was accepted, a conspiracy
them. All will be liable for the arises. Proposal is unilateral, one party
consequences. A conspiracy is possible makes a proposition to the other;
even when participants are not known to conspiracy is bilateral, it requires two
each other. Do not think that participants parties.
are always known to each other.
As pointed out earlier, desistance is true
Illustrations: only in the attempted stage. Before this
stage, there is only a preparatory stage.
A thought of having her husband killed Conspiracy is only in the preparatory stage.
because the latter was maltreating her.
She hired some persons to kill him and The Supreme Court has ruled that one who
pointed at her husband. The goons got desisted is not criminally liable. “When a
hold of her husband and started mauling person has set foot to the path of
him. The wife took pity and shouted for wickedness and brings back his foot to the
them to stop but the goons continued. The path of righteousness, the law shall reward
wife ran away. The wife was prosecuted for him for doing so.”
parricide. But the Supreme Court said that
there was desistance so she is not Where there are several persons who
criminally liable. participated, like in a killing, and they
attacked the victim simultaneously, so much
A law student resented the fact that his so that it cannot be known what
brother was killed by A. He hired B to kill A participation each one had, all these
and offered him P50,000.00. He disclosed participants shall be considered as having
to B that A was being arraigned in the City acted in conspiracy and they will be held
Hall of Manila and told him to execute the collectively responsible.
plan on the following day. In the evening of Do not search for an agreement among the
that same day, the law student changed his participants. If they acted simultaneously to
mind so he immediately went to the police bring about their common intention,
and told them to dispatch police officers to conspiracy exists. And when conspiracy
prevent B from committing the crime. exists, do not consider the degree of
Unfortunately, the police were caught in participation of each conspirator because
traffic causing their delay, so that when they the act of one is the act of all. As a general
reached the place, B had already killed A. rule, they have equal criminal responsibility.
In this case, there was no proposal but a
conspiracy. They have conspired to
execute a crime but the crime involved here Question & Answer
is murder and a conspiracy to commit
murder is not a crime in itself but merely a
basis for incurring criminal liability. This is There are several offenders who
acted simultaneously. When they fled, a
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 46
victim was found dead. Who should be a milder form of responsibility upon an
liable for the killing if who actually killed the offender. So it is no longer accurate to
victim is not known? think that when there is a conspiracy, all are
principals.
There is collective responsibility
here. Without the principle of conspiracy, Notwithstanding that there is conspiracy, a
nobody would be prosecuted; hence, there co-conspirator may be held liable only as an
is the rule on collective responsibility since accomplice. That means the penalty which
it cannot be ascertained who actually killed shall be imposed upon him is one degree
the victim. lower.
For example, there was a planned robbery,
There is conspiracy when the offenders and the taxi driver was present during the
acted simultaneously pursuing a common planning. There, the conspirators told the
criminal design; thus, acting out a common taxi driver that they are going to use his
criminal intent. taxicab in going to the place of robbery.
The taxi driver agreed but said, “I will bring
Illustration: you there, and after committing the robbery
I will return later”. The taxi driver brought
A, B and C have been courting the same the conspirators where the robbery would
lady for several years. On several be committed. After the robbery was
occasions, they even visited the lady on finished, he took the conspirators back to
intervening hours. Because of this, A, B his taxi and brought them away. It was held
and C became hostile with one another. that the taxi driver was liable only as an
One day, D invited the young lady and she accomplice. His cooperation was not really
accepted the invitation. Eventually, the indispensable. The robbers could have
young lady agreed to marry D. When A, B engaged another taxi. The taxi driver did
and C learned about this, they all stood up not really stay during the commission of the
to leave the house of the young lady feeling robbery. At most, what he only extended
disappointed. When A looked back at the was his cooperation. That is why he was
young lady with D, he saw D laughing given only that penalty for an accomplice.
menacingly. At that instance, A stabbed D.
C and B followed. In this case, it was held A, B, and C, under the influence of
that conspiracy was present. marijuana, broke into a house because they
learned that the occupants have gone on an
The common notion is that when there is excursion. They ransacked the house. A
conspiracy involved, the participants are got a colored TV, B saw a camera and took
punished as principals. This notion is no that, and C found a can of salmon and took
longer absolute. In the case of People v. that. In the crime of robbery with force
Nierra, the Supreme Court ruled that even upon things, the penalty is based on the
though there was conspiracy, if a co- totality of the value of the personal property
conspirator merely cooperated in the taken and not on the individual property
commission of the crime with insignificant or taken by him.
minimal acts, such that even without his
cooperation, the crime could be carried out In Siton v. CA, it was held that the idea of a
as well, such co-conspirator should be conspiracy is incompatible with the idea of a
punished as an accomplice only. The free for all. There is no definite opponent or
reason given is that penal laws always favor
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 47
definite intent as when a basketball crowd homicide. This is because, it is well settled
beats a referee to death. that any killing taking place while robbery is
being committed shall be treated as a single
indivisible offense.
Composite crimes
As a general rule, when there is conspiracy,
Composite crimes are crimes which, in the rule is that the act of one is the act of
substance, consist of more than one crime all. This principle applies only to the crime
but in the eyes of the law, there is only one agreed upon.
crime. For example, the crimes of robbery
with homicide, robbery with rape, robbery The exception is if any of the co-conspirator
with physical injuries. would commit a crime not agreed upon.
This happens when the crime agreed upon
In case the crime committed is a composite and the crime committed by one of the co-
crime, the conspirator will be liable for all conspirators are distinct crimes.
the acts committed during the commission
of the crime agreed upon. This is because, Exception to the exception: In acts
in the eyes of the law, all those acts done in constituting a single indivisible offense,
pursuance of the crime agreed upon are even though the co-conspirator performed
acts which constitute a single crime. different acts bringing about the composite
crime, all will be liable for such crime. They
Illustrations: can only evade responsibility for any other
crime outside of that agreed upon if it is
A, B, and C decided to commit robbery in proved that the particular conspirator had
the house of D. Pursuant to their tried to prevent the commission of such
agreement, A would ransack the second other act.
floor, B was to wait outside, and C would
stay on the first floor. Unknown to B and C, The rule would be different if the crime
A raped the girl upstairs. All of them will be committed was not a composite crime.
liable for robbery with rape. The crime
committed is robbery with rape, which is not Illustration:
a complex crime, but an indivisible felony
under the Article 294 of the Revised Penal A, B and C agreed to kill D. When they saw
Code. Even if B and C did not know that the opportunity, A, B and C killed D and
rape was being committed and they agreed after that, A and B ran into different
only and conspired to rob, yet rape was part directions. C inspected the pocket of the
of robbery. Rape can not be separated victim and found that the victim was
from robbery. wearing a ring – a diamond ring – and he
took it. The crimes committed are homicide
A, B and C agreed to rob the house of D. It and theft. As far as the homicide is
was agreed that A would go the second concerned, A, B and C are liable because
floor, B would stay in the first floor, and C that was agreed upon and theft was not an
stands guard outside. All went to their integral part of homicide. This is a distinct
designated areas in pursuit of the plan. crime so the rule will not apply because it
While A was ransacking the second floor, was not the crime agreed upon. Insofar as
the owner was awakened. A killed him. A, the crime of theft is concerned, C will be the
B and C will be liable for robbery with
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 48
only one liable. So C will be liable for would produce the felony as a
homicide and theft. consequence but which
nevertheless do not produce the
felony by reason of causes
CLASSIFICATION OF FELONIES independent of the perpetrator; and,
consummated felony when all the
This question was asked in the bar elements necessary for its execution
examination: How do you classify felonies are present.
or how are felonies classified?
(3) According to their gravity
What the examiner had in mind was Articles
3, 6 and 9. Do not write the classification of Under Article 9, felonies are
felonies under Book 2 of the Revised Penal classified as grave felonies or those
Code. That was not what the examiner had to which attaches the capital
in mind because the question does not punishment or penalties which in
require the candidate to classify but also to any of their periods are afflictive;
define. Therefore, the examiner was after less grave felonies or those to which
the classifications under Articles 3, 6 and 9. the law punishes with penalties
which in their maximum period was
Felonies are classified as follows: correccional; and light felonies or
those infractions of law for the
(1) According to the manner of their commission of which the penalty is
commission arresto menor.
Under Article 219, discovering secrets In instigation, the criminal plan or design
through seizure of correspondence of the exists in the mind of the law enforcer with
ward by their guardian is not penalized. whom the person instigated cooperated so
it is said that the person instigated is acting
Under Article 332, in the case of theft, only as a mere instrument or tool of the law
swindling and malicious mischief, there is enforcer in the performance of his duties.
no criminal liability but only civil liability,
when the offender and the offended party On the other hand, in entrapment, a
are related as spouse, ascendant, criminal design is already in the mind of the
descendant, brother and sister-in-law living person entrapped. It did not emanate from
together or where in case the widowed the mind of the law enforcer entrapping him.
spouse and the property involved is that of Entrapment involves only ways and means
the deceased spouse, before such property which are laid down or resorted to facilitate
had passed on to the possession of third the apprehension of the culprit.
parties.
Illustrations:
Under Article 344, in cases of seduction,
abduction, acts of lasciviousness, and rape, An agent of the narcotics command had
the marriage of the offended party shall been tipped off that a certain house is being
extinguish the criminal action. used as an opium den by prominent
members of the society. The law enforcers
cannot themselves penetrate the house
Absolutory cause has the effect of an because they do not belong to that circle so
exempting circumstance and they are what they did was to convince a prominent
predicated on lack of voluntariness like member of society to visit such house to
instigation. Instigation is associated with find out what is really happening inside and
criminal intent. Do not consider culpa in that so many cars were congregating there.
connection with instigation. If the crime is The law enforcers told the undercover man
culpable, do not talk of instigation. In that if he is offered a cigarette, then he
should try it to find out whether it is loaded
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 52
with dangerous drugs or not. This fellow is a case of entrapment because the fellow
went to the place and mingled there. The is already committing the crime from the
time came when he was offered a stick of mere fact that he is possessing marijuana.
cigarette and he tried it to see if the Even without selling, there is a crime
cigarette would affect him. Unfortunately, committed by him: illegal possession of
the raid was conducted and he was among dangerous drugs. How can one sell
those prosecuted for violation of the marijuana if he is not in possession thereof.
Dangerous Drugs Act. Is he criminally The law enforcer is only ascertaining if this
liable? No. He was only there upon fellow is selling marijuana leaves, so this is
instigation of the law enforcers. On his own, entrapment, not instigation. Selling is not
he would not be there. The reason he is necessary to commit the crime, mere
there is because he cooperated with the law possession is already a crime.
enforcers. There is absence of criminal
intent. A fellow wants to make money. He was
approached by a law enforcer and was
If the law enforcer were able to enter the asked if he wanted to deliver a package to a
house and mingle there, nobody would offer certain person. When that fellow was
him a cigarette because he is unknown. delivering the package, he was
When he saw somebody, he pleaded to apprehended. Is he criminally liable? This
spare him a smoke so this fellow handed to is a case of instigation; he is not committing
him the cigarette he was smoking and a crime.
found out that it was loaded with a
dangerous drug. He arrested the fellow. A policeman suspected a fellow selling
Defense was that he would not give a marijuana. The law enforcer asked him,
cigarette if he was not asked. Is he “Are you selling that? How much? Could
criminally liable? Yes. This is a case of you bring that to the other fellow there?”
entrapment and not instigation. Even if the When he brought it there, the person, who
law enforcer did not ask for a cigarette, the happens to be a law enforcer, to whom the
offender was already committing a crime. package was brought to found it to be
The law enforcer ascertained if it is a marijuana. Even without bringing, he is
violation of the Dangerous Drugs Act. The already possessing the marijuana. The fact
means employed by the law enforcer did that he was appointed to another person to
not make the accused commit a crime. find out its contents, is to discover whether
Entrapment is not an absolutory cause the crime is committed. This is entrapment.
because in entrapment, the offender is
already committing a crime. The element which makes instigation an
absolutory cause is the lack of criminal
In another instance, a law enforcer intent as an element of voluntariness.
pretended to be a buyer of marijuana. He
approached a person suspected to be a If the instigator is a law enforcer, the person
pusher and prevailed upon this person to instigated cannot be criminally liable,
sell him two kilos of dried marijuana leaves because it is the law enforcer who planted
and this fellow gave him and delivered that criminal mind in him to commit the
them. He apprehended the fellow. crime, without which he would not have
Defense is instigation, because he would been a criminal. If the instigator is not a law
not have come out for the marijuana leaves enforcer, both will be criminally liable, you
if the law enforcer had not instigated him. It cannot have a case of instigation. In
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 53
A kleptomaniac is one who cannot resist the (3) Since the act complained of is
temptation of stealing things which appeal actually wrongful, there is a crime.
to his desire. This is not exempting. One But because the actor acted without
who is a kleptomaniac and who would steal voluntariness, there is absence of
objects of his desire is criminally liable. But dolo or culpa. There is no criminal;
he would be given the benefit of a mitigating
circumstance analogous to paragraph 9 of (4) Since there is a crime committed but
Article 13, that of suffering from an illness there is no criminal, there is civil
which diminishes the exercise of his will liability for the wrong done. But
power without, however, depriving him of there is no criminal liability.
the consciousness of his act. So this is an However, in paragraphs 4 and 7 of
extenuating circumstance. The effect is to Article 12, there is neither criminal
mitigate the criminal liability. nor civil liability.
Two policemen quarreled inside a police has the effect of lowering the penalty by
precinct. One shot the other. The other one to two degrees, depending on how the
was wounded on his thigh. The policeman court will regard the absence or presence of
who was wounded on the thigh jumped on conditions to justify the act.
the arm of the fellow who shot him. In the
process, they wrestled for possession of the
gun. The policeman who shot the other guy Defense of property rights
fell on the floor. On that point, this
policeman who was shot at the thigh was This can only be invoked if the life and limb
already able to get hold of the revolver. In of the person making the defense is also
that position, he started emptying the the subject of unlawful aggression. Life
revolver of the other policeman who was cannot be equal to property.
lying on the floor. In this case, it was held
that the defense of self-defense is no Defense of stranger
available. The shooting was not justified.
If the person being defended is already a
In People v. Rodriguez, a woman went second cousin, you do not invoke defense
into the house of another woman whom she of relative anymore. It will be defense of
suspected of having an affair with her stranger. This is vital because if the person
husband. She started pouring gasoline on making the defense acted out or revenge,
the house of the woman. Since the woman resentment or some evil motive in killing the
has children inside the house, she jumped aggressor, he cannot invoke the justifying
out to prevent this other woman from circumstance if the relative defended is
pouring gasoline around the house. The already a stranger in the eyes of the law.
woman who was pouring gasoline had a On the other hand, if the relative defended
bolo, so she started hacking the other is still within the coverage of defense of
woman with it. They grappled with the bolo. relative, even though he acted out of some
At that moment, the one who jumped out of evil motive, it would still apply. It is enough
the house was able to wrest the bolo away that there was unlawful aggression against
and started hacking the other woman. It the relative defended, and that the person
was held that the hacking was not justified. defending did not contribute to the unlawful
Actually, when she killed the supposed aggression.
unlawful aggressor, her life and limb were
no longer in imminent danger. That is the
focal point. Question & Answer
At the time the accused killed the supposed
unlawful aggressor, was her life in danger? The person being defended was a
If the answer is no, there is no self-defense. relative – a first cousin. But the fellow who
But while there may be no justifying killed the aggressor had some score to
circumstance, do not forget the incomplete settle with the aggressor. Is he entitled to a
self-defense. This is a mitigating justifying circumstance?
circumstance under paragraph 1 of Article
13. This mitigating circumstance is either Yes. In law, the condition that a
privileged or ordinary. If ordinary, it has the person making the defense did not act out
effect of reducing the imposable penalty to of revenge, resentment or evil motive is not
the minimum period. But if it is privileged, it
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 57
the state of necessity. On the other hand, (2) The resulting felony is the
persons who did not participate in the unavoidable consequence of the
damage or injury would be pro tanto civilly due fulfillment of the duty or the
liable if they derived benefit out of the state lawful exercise of the right or office.
of necessity.
Invariably, when you are given a problem
Civil liability is based on the benefit derived on this premise, and the first condition is
and not on the act, damage or injury present, but the second is not because the
caused. It is wrong to treat this as an offender acted with culpa, the offender will
exception to the rule that in justifying be entitled to a privelege mitigating
circumstances, there is no criminal nor civil circumstance. This is what you call
liability, on the principle that “no one should incomplete justification of fulfillment of duty
enrich himself at the expense of another”. or incomplete justification of exercise of a
right. In that case, the penalty would be
Illustration: reduced by one or two degrees.
A and B are owners of adjoining lands. A In People v. Oanis and Callanta, the
owns the land for planting certain crops. B accused Chief of Police and the
owns the land for raising certain goats. C constabulary soldier were sent out to arrest
used another land for a vegetable garden. a certain Balagtas, supposedly a notorious
There was heavy rain and floods. Dam was bandit. There was an order to kill Balagtas
opened. C drove all the goats of B to the if he would resist. The accused arrived at
land of A. The goats rushed to the land of the house of a dancer who was supposedly
A to be saved, but the land of A was the girlfriend of Balagtas. When they were
destroyed. The author of the act is C, but C there, they saw a certain person who
is not civilly liable because he did not resembled Balagtas in all his bodily
receive benefits. It was B who was appearance sleeping on a bamboo bed but
benefited, although he was not the actor. facing the other direction. The accused,
He cannot claim that it was fortuitous event. without going around the house, started
B will answer only to the extent of the firing at the man. They found out later on
benefit derived by him. If C who drove all that the man was not really Balagtas. They
the goats is accused of malicious mischief, tried to invoke the justifying circumstance of
his defense would be that he acted out of a having acted in fulfillment of a duty.
state of necessity. He will not be civilly
liable. The second requisite is absent because
Fulfillment of duty they acted with negligence. There was
nothing that prevented them from looking
In the justifying circumstance of a person around the house and looking at the face of
having acted out of fulfillment of a duty and the fellow who was sleeping. There could
the lawful exercise of a right or office, there not be any danger on their life and limb.
are only two conditions: Hence, they were held guilty of the crime of
murder because the fellow was killed when
(1) The felony was committed while the he was sleeping and totally defenseless.
offender was in the fulfillment of a However, the Supreme Court granted them
duty or in the lawful exercise of a the benefit of incomplete justification of
right or office; and fulfillment of duty and the penalty was
reduced by one or two degrees.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 59
because it does not completely deprive the offender below 18 is always entitled to a
offender of consciousness of his acts. mitigating or exempting circumstance.
conditions mentioned earlier and stated earlier and if at the time the
only if he would file an application sentence is promulgated, he is not
therefor. 18 years old or over yet. If the
sentence is promulgated, the court
Suspension of sentence is not automatic. If will impose a penalty one degree
the youthful offender has filed an lower. This time it is fixed. It is to be
application therefor. imposed one degree lower and in
the proper periods subject to the
(3) If at the time the judgment is to be rules in Article 64.
promulgated he is already above 18,
he cannot avail of a suspended
sentence. The reason is because if Damnum absque injuria
the sentence were to be suspended,
he would be committed in a Under Article 12, paragraph 4, the offender
reformatory. Since he cannot be is exempt not only from criminal but also
committed to a reformatory anymore from civil liability. This paragraph embodies
because he is not less than 18 years the Latin maxim “damnum absque injuria”.
old, he would have to be committed
to a penitentiary. That means Illustration:
promulgation of the sentence shall
not be suspended. If the sentence A person who is driving his car within the
should not be suspended, although speed limit, while considering the condition
the minor may be qualified, the court of the traffic and the pedestrians at that
will promulgate the sentence but the time, tripped on a stone with one of his car
minor shall be entitled to the tires. The stone flew hitting a pedestrian on
reduction of the penalty by at least the head. The pedestrian suffered profuse
two degrees. bleeding. What is the liability of the driver?
When the offender is over nine but There is no civil liability under paragraph 4
below 15, the penalty to be imposed of Article 12. Although, this is just an
is discretionary on the court, but exempting circumstance, where generally
lowered by at least two degrees. It there is civil liability, yet, in paragraph 4 of
may be lowered by three or four Article 12, there is no civil liability as well as
degrees, depending upon whether criminal liability. The driver is not under
the court deems best for the interest obligation to defray the medical expenses.
of the offender. The limitation that it
should be lowered by at least two However, correlate paragraph 4 of Article
degrees is just a limitation on the 12 with the second paragraph of Article
power of the court to reduce the 275. Article 275 gives you the crime of
penalty. It cannot be less than two abandoning the victim of one’s own
degrees. accident. It is a crime. Here, the accident
referred to in paragraph 2 of Article 275 is in
(4) If the offender is 15 years old and the concept of paragraph 4 of Article 12.
above but below 18, there is no This means that the offender must be
exemption anymore but he is also performing a lawful act, that he was doing it
given the benefit of a suspended with due care but somehow, injury resulted
sentence under the conditions
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 62
by mere accident without fault or intention prescribed of the crime committed shall be
of causing it. reduced by one or two degrees in
accordance with Article 69 of the Revised
If at the very beginning, the offender was Penal Code. If less than a majority of the
negligent, you do not apply Article 275, requisites for exemption are present, the
paragraph 2. Instead, it will be Article 365 offender shall be given only the benefit of
on criminal negligence. Notice that in the ordinary mitigating circumstances. That
last paragraph of Article 365, in the case of means the penalty shall be reduced to the
the so-called hit and run drivers who have minimum period of the prescribed penalty,
injured somebody and would abandon the unless the mitigating circumstance is offset
victim of the accident, the penalty is by an aggravating circumstance.
qualified to a higher degree. Here, under
paragraph 4 of Article 12, the infliction of
the injury by mere accident does not give Mitigating circumstances
rise to a criminal or civil liability, but the
person who caused the injury is duty bound Distinctions between ordinary mitigating
to attend to the person who was injured. If circumstances and privileged mitigating
he would abandon him, it is in that circumstances
abandonment that the crime arises which is
punished under the second paragraph of (1) As to the nature of the
Article 275. circumstances
Correlate Article 13 with Articles 63 and 64. The answer, therefore, is yes. He
Article 13 is meaningless without knowing shall be given the benefit of the
the rules of imposing the penalties under Indeterminate Sentence Law. Although the
Articles 63 and 64. penalty prescribed for the crime committed
is reclusion perpetua, that is not the
In bar problems, when you are given imposable penalty, since being 17 years old
indeterminate sentences, these articles are is a privilege mitigating circumstance. That
very important. privilege lowers the penalty by one degree.
The imposable penalty, therefore, is
When the circumstance which mitigates reclusion temporal. The Indeterminate
criminal liability is privileged, you give effect Sentence Law applies to this and so the
to it above all considerations. In other offender will be given its benefit.
words, before you go into any
circumstance, lower first the penalty to the Criminal laws are to be construed
proper degree. That is precisely why this always in a manner liberal or lenient to the
circumstance is considered privileged. It offender. Between giving the offender the
benefit of the Indeterminate Sentence Law
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 64
and withholding it away from him, there is this is the product of intentional felony, not a
more reason to give him its benefit. It is culpable one.
wrong for you to determine whether the
Indeterminate Sentence Law will apply or
not on the basis of reclusion perpetua Sufficient threat or provocation
because that is not the imposable penalty.
The moment you do that, you disregard the This is mitigating only if the crime was
privileged character of minority. You are committed on the very person who made
only treating it as an ordinary mitigating the threat or provocation. The common set-
circumstance. Privilege mitigating up given in a bar problem is that of
circumstance will apply over and above all provocation was given by somebody. The
other considerations. When you arrive at person provoked cannot retaliate against
the correct penalty, that is the time when him; thus, the person provoked retaliated on
you find out whether the Indeterminate a younger brother or on an elder father.
Sentence Law will apply or not. Although in fact, there is sufficient
provocation, it is not mitigating because the
For purposes of lowering the penalty by one one who gives the provocation is not the
or two degrees, the age of the offender at one against whom the crime was
the time of the commission of the crime committed.
shall be the basis, not the age of the
offender at the time the sentence is to be
imposed. But for purposes of suspension of Question & Answer
the sentence, the age of the offender at the
time the crime was committed is not
considered, it is the age of the offender at A was walking in front of the house
the time the sentence is to be promulgated. of B. B at that time was with his brother C. C
told B that sometime in the past, A boxed
him, and because he was small, he did not
Praeter intentionem fight back. B approached A and boxed him,
but A cannot hit back at B because B is
The common circumstance given in the bar bigger, so A boxed C. Can A invoke
of praeter intentionem, under paragraph 3, sufficient provocation to mitigate criminal
means that there must be a notable liability?
disproportion between the means employed
by the offender compared to that of the No. Sufficient provocation must
resulting felony. If the resulting felony could come from the offended party. There may
be expected from the means employed, this actually be sufficient provocation which
circumstance does not avail. This immediately preceded the act, but if
circumstance does not apply when the provocation did not come from the person
crime results from criminal negligence or offended, paragraph 4, Article 13 will not
culpa. When the crime is the product of apply.
reckless imprudence or simple negligence,
mitigating circumstances does not apply.
This is one of the three instances where the The commission of the felony must be
offender has performed a felony different immediate to the threat or provocation in
from that which he intended. Therefore, order that this circumstance be mitigating.
If there is sufficient break of time before the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 65
considered by the Supreme Court in favor if the offender is given the benefit of
of the accused. paragraph 4, he cannot be given the benefit
of paragraph 5 or 6, or vice-versa. Only one
of the three mitigating circumstances should
Vindication of a grave offense be given in favor of the offender.
The word “offense” should not be taken as However, in one case, one of the mitigating
a crime. It is enough if what was imputed or circumstances under paragraphs 4, 5 and 6
what was done was wrong. In considering stands or arises from a set of facts, and
whether the wrong is a grave one upon the another mitigating circumstance arises from
person who committed the crime, his age, another set of facts. Since they are
education and social status will be predicated on different set of facts, they
considered. may be appreciated together, although they
arose from one and the same case. Hence,
Here, in vindication of a grave offense, the the prohibition against considering all these
vindication need not be done by the person mitigating circumstances together and not
upon whom the grave offense was as one applies only if they would be taken
committed. So, unlike in sufficient threat or on the basis of the same set of facts.
provocation where the crime should be
inflicted upon the very person who made If the case involves a series of facts, then
the threat or provocation, here, it need not you can predicate any one of these
be the same person who committed the circumstances on one fact and the other on
grave offense or who was offended by the another fact and so on.
wrong done by the offended party.
The passion must be legitimate. As a rule,
The word “immediate” here does not carry it cannot be based on common law
the same meaning as that under paragraph relationship because common law
4. The word “immediate” here is an relationships are illicit. However, consider
erroneous Spanish translation because the whether passion or obfuscation is
Spanish word is “proxima” and not generated by common law relationship or
“immediatementa.” Therefore, it is enough by some other human consideration.
that the offender committed the crime with
the grave offense done to him, his spouse, In a case where the relationship between
his ascendant or descendant or to his the accused and the woman he was living
brother or sister, whether natural, adopted with was one of common law, he came
or legitimate and that is the proximate home and surprised his common law wife
cause of the commission of the crime. having sexual intercourse with a friend. This
infuriated him. He killed the friend and he
claimed passion or obfuscation. The trial
Passion or obfuscation court denied his claim because the
relationship was a common law one.
This stands on the premise or proposition
that the offender is suffering from a On review, the accused was given the
diminished self control because of the benefit of the circumstances and the basis
passion or obfuscation. The same is true of considering passion or obfuscation in
with the circumstances under paragraphs 4 favor of the accused was the act of the
and 5. So, there is a ruling to the effect that common law wife in committing adultery
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 67
right from the conjugal bed. Whether or not When a man saw a woman bathing, almost
they are married, any man who discovers naked, for which reason he raped her, such
that infidelity was committed on the very man cannot claim passion as a mitigating
bed provided by him to the woman would circumstance.
naturally be subjected to obfuscation.
A man and a woman were living together
When a married person surprised his better for 15 years. The man left the village where
half in the act of sexual intercourse with they were living and never returned home.
another, he gets the benefit of Article 247. The common law wife learned that he was
However, that requisite which in the first getting married to a classmate. On the
place, the offender must have surprised scheduled wedding day, she stabbed the
his/her spouse actually committing sexual groom in the chest, instantly killing him.
intercourse should be present. If the She confessed and explained that any
surprising was done not in the actual act of woman cannot tolerate what he did to her.
sexual intercourse but before or after it, She gave him the best years of her life.
then Article 247 does not apply. She practically waited for him day and
night. It was held that passion and
Although this is the ruling, still, the accused obfuscation were considered mitigating.
will be given the benefit of sufficient Ingratitude was shown here.
provocation if the intercourse was done in
his dwelling. If this act was done
somewhere else and the accused kills the Voluntary surrender
paramour or the spouse, this may be
considered as mitigation of a grave offense The essence of voluntary surrender
to him or otherwise as a situation sufficient requires that the offender, after having
to create passion or obfuscation. committed the crime, had evaded the law
Therefore, when a married man upon enforcers and the law enforcers do not
coming home, surprises his wife who was know of his whereabouts. In short, he
nude and lying with another man who was continues to elude arrest. If, under this
also nude, Article 247 does not apply. If he circumstance, the offender would come out
kills them, vindication of a grave offense will in the open and he gives himself up, his act
be mitigating in favor of the offender. of doing so will be considered as indicative
of repentance and he also saves the
Illustrations: government the time and the expense of
looking for him.
A is courting B, a receptionist in a
beerhouse. C danced with B. A saw this As a general rule, if after committing the
and stabbed C. It was held that jealousy is crime, the offender did not flee and he went
an acknowledged basis of passion. with the responding law enforcers meekly,
voluntary surrender is not applicable.
A, a male classmate is escorting B, a
female classmate. On the way out, some However, there is a ruling that if after
men whistled lustfully. The male classmate committing the crime, the offender did not
stabbed said men. This was held to be flee and instead waited for the law
obfuscation. enforcers to arrive and he surrendered the
weapon he used in killing the victim, the
ruling was that voluntary surrender is
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 68
mitigating. In this case, the offender had the demonstrating an intent to submit himself
opportunity to go into hiding, the fact that he unconditionally to the person in authority or
did not flee is not voluntary surrender. his agent in authority, because (1) he
acknowledges his guilt (2) he wishes to
However, if he comes out from hiding save the government the trouble and
because he is seriously ill and he went to expenses of searching and capturing him.
get medical treatment, the surrender is not Where the reason for the surrender of the
considered as indicative of remorse or accused was to insure his safety, his arrest
repentance. The surrender here is only by policemen pursuing him being inevitable,
done out of convenience to save his own the surrender is not spontaneous.
self. Hence, it is not mitigating.
(2) Being an ingredient of the crime, it alleged in the complaint or information, only
cannot be offset by any mitigating one will qualify the crime. The others will
circumstance; merely be considered as generic. Thus, if
there is any ordinary mitigating
(3) Qualifying circumstances to be circumstance in favor of the accused, such
appreciated as such must be will be wiped out by these circumstances,
specifically alleged in the complaint although initially they are considered as
or information. If not alleged but qualifying. Do not hesitate to offset on the
proven during the trial, it will be principle that a qualifying circumstance
considered only as generic cannot be offset by an ordinary mitigating
aggravating circumstance. If this circumstance because only one is
happens, they are susceptible of necessary.
being offset by a mitigating
circumstance. Even if any of the qualifying circumstances
under Article 248 on murder was proven, if
An aggravating circumstance is qualifying that is not the circumstance alleged in the
when it is an ingredient of the crime. information, it cannot qualify the crime. Let
Therefore it is included in the provision of us say, what was alleged in the information
law defining the crime. If it is not so was treachery. During the trial, what was
included, it is not qualifying. proven was the price, reward or promise as
a consideration for killing. The treachery
In Article 248, in the crime of murder, the was not proved. Just the same, the
law specifically mentions thereunder accused cannot be convicted of murder
several circumstances which are because the circumstance proven is not
aggravating under Article 14. All of these qualifying but merely generic. It is generic
will qualify a killing from homicide to because it is not alleged in the information
murder; however, you understand that only at all. If any of these qualifying
one is qualifying. circumstances is not alleged in the
information, it cannot be considered
If let us say, the accused was charged with qualifying because a qualifying is an
murder. Three of these circumstances: ingredient of the crime and it cannot be
treachery, evident premeditation and act taken as such without having alleged in the
was done in consideration of a price, information because it will violate the right
reward or promise were alleged as of the accused to be informed of the nature
aggravating. Only one of these is qualifying. of the accusation against him.
If any one of the three circumstances was
proven, the crime was already murder. If Correlate Article 14 with Article 62. Article
the other two are also proven, even if they 62 gives you the different rules regarding
are alleged in the information or complaint, aggravating circumstances. Aggravating
they are only to be taken as generic. If circumstances will not be considered when
there is any mitigating circumstance in favor it is the crime itself. If the crime charged is
of the offender, the two other circumstances qualified trespass to dwelling, dwelling is no
which are otherwise qualifying could be longer aggravating. When the aggravating
offset by the mitigating, provided the circumstance refers to the material
mitigating circumstance is not a privileged execution of the crime, like treachery, it will
mitigating circumstance. Therefore, if there only aggravate the criminal liability of those
are three of the qualifying circumstances who employed the same.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 71
terminated when the offender was driven offended party because the offended party
out of the house. is considered as a member of the family
who owns the dwelling and that dwelling is
where she enjoyed privacy. Peace of mind
and comfort.
stairs which are used to reach the second nature is killed, then dwelling is aggravating
floor is considered a dwelling because the because the comfort room is a necessary
second floor cannot be enjoyed without the dependency of the house proper.
stairs. If the offended party was assaulted
while on the stairs, dwelling is already A person while in the room of his house,
aggravating. For this reason, considering maintaining the room, was shot. Dwelling is
that any dependency necessary for the aggravating.
enjoyment of a place of abode is
considered a dwelling. If the offender entered the house and the
offended party jumped out of the house,
Illustrations: even if the offender caught up with him
already out of the house, dwelling is still
A and B are living in one house. A occupies aggravating. The reason is because he
the ground floor while B the upper floor. The could not have left his dwelling were it not
stairs here would form part only of B's for the fact that the attacker entered the
dwelling, the same being necessary and an house.
integral part of his house or dwelling.
Hence, when an attack is made while A is If the offended party was inside the house
on the stairs, the aggravating circumstance and the offender was outside and the latter
of dwelling is not present. If the attack is shot the former inside the house while he
made while B was on the stairs, then the was still outside. Dwelling is still
aggravating circumstance of dwelling is aggravating even if the offender did not
present. enter the house.
Whenever one is in his dwelling, the law is A garage is part of the dwelling when
presuming that he is not intending to connected with an interior passage to the
commit a wrong so one who attacks him house proper. If not connected, it is not
while in the tranquility of his home shows a considered part of the dwelling.
degree of perversity in him. Hence, this
aggravating circumstance. One-half of the house is used as a store
and the other half is used for dwelling but
Dwelling is not limited to the house proper. there is only one entrance. If the dwelling
All the appurtenances necessary for the portion is attacked, dwelling is not
peace and comfort, rest and peace of mind aggravating because whenever a store is
in the abode of the offended party is open for business, it is a public place and
considered a dwelling. as such is not capable of being the subject
of trespass. If the dwelling portion is
Illustrations: attacked where even if the store is open,
there is another separate entrance to the
A man was fixing something on the roof of portion used for dwelling, the circumstance
his house when he was shot. It was held is aggravating. However, in case the store
that dwelling is aggravating. Roof still part is closed, dwelling is aggravating since
of the house. here, the store is not a public place as in
the first case.
In the provinces where the comfort rooms
are usually far from the house proper, if the Balcony is part of the dwelling because it is
offended party while answering the call of appurtenant to the house
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 74
It is determined not by the distance of the One evening, a crime was committed near
nearest house to the scene of the crime but the lamp post. The Supreme Court held
whether or not in the place of the that there is no aggravating circumstance of
commission of the offense , there was a nighttime. Even if the crime was committed
reasonable possibility of the victim receiving at night, but there was light, hence,
some help. darkness was not present, no aggravating
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 75
circumstance just by the fact of nighttime felony after having been convicted
alone. by final judgment before beginning
to serve such sentence or while
Even if there was darkness but the serving such sentence shall be
nighttime was only an incident of a chance punished by the maximum period
meeting, there is no aggravating prescribed by law for the new felony.
circumstance here. It must be shown that
the offender deliberately sought the cover of Distinctions between recidivism and
darkness and the offender purposely took habitual delinquency
advantage of nighttime to facilitate the
commission of the offense. In recidivism –
Nocturnity is the period of time after sunset (1) Two convictions are enough.
to sunrise, from dusk to dawn.
(2) The crimes are not specified; it is
enough that they may be embraced
Different forms of repetition or under the same title of the Revised
habituality of the offender Penal Code.
(1) Recidivism under Article 14 (9) – (3) There is no time limit between the
The offender at the time of his trial first conviction and the subsequent
for one crime shall have been conviction. Recidivism is
previously convicted by final imprescriptible.
judgment of another embraced in
the same title of the Revised Penal (4) It is a generic aggravating
Code. circumstance which can be offset by
an ordinary mitigating circumstance.
(2) Repetition or reiteracion under If not offset, it would only increase
Article 14 (10) – The offender has the penalty prescribed by law for the
been previously punished for an crime committed to its maximum
offense which the law attaches an period.
equal or greater penalty or for two or
more crimes to which it attaches a (5) The circumstance need not be
lighter penalty. alleged in the information.
(3) Habitual delinquency under Article In habitual delinquency –
62 (5) – The offender within the
period of 10 years from the date of (1) At least three convictions are
his release or last conviction of the required.
crimes of serious or less serious
physical injuries, robo, hurto, estafa (2) The crimes are limited and specified
or falsification, is found guilty of the to: (a) serious physical injuries, (b)
any of said crimes a third time or less serious physical injuries, (c)
oftener. robbery, (d) theft, (e) estafa or
swindling and (f) falsification.
(4) Quasi-recidivism under Article 160 –
Any person who shall commit a
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 76
(3) There is a time limit of not more than In 1980, A committed robbery. While the
10 years between every convictions case was being tried, he committed theft in
computed from the first conviction or 1983. He was found guilty and was
release from punishment thereof to convicted of theft also in 1983. The
conviction computed from the conviction became final because he did not
second conviction or release appeal anymore and the trial for his earlier
therefrom to the third conviction and crime which was robbery ended in 1984
so on . . . where he was also convicted. He also did
(4) Habitual delinquency is a special not appeal this decision. Is the accused a
aggravating circumstance, hence it recidivist? The subsequent conviction must
cannot be offset by any mitigating refer to a felony committed later in order to
circumstance. Aside from the constitute recidivism. The reason for this is
penalty prescribed by law for the as the time the first crime was committed,
crime committed, an additional there was no other crime of which he was
penalty shall be imposed depending convicted so he cannot be regarded as a
upon whether it is already the third repeater.
conviction, the fourth, the fifth and
so on . . . In recidivism, the crimes committed should
be felonies. Recidivism cannot be had if the
(5) The circumstance must be alleged crime committed is a violation of a special
in the information; otherwise the law.
court cannot acquire jurisdiction to
impose additional penalty. Recidivism does not prescribe. No matter
how long ago the offender was convicted, if
he is subsequently convicted of a crime
Recidivism embraced in the same title of the Revised
Penal Code, it is taken into account as
In recidivism, the emphasis is on the fact aggravating in imposing the penalty.
that the offender was previously convicted
by final judgement of a felony and Pardon does not erase recidivism, even if it
subsequently found guilty of another felony is absolute because only excuses the
embraced in the same title of the Revised service of the penalty, but not the
Penal Code. The law considers this conviction.
aggravating when a person has been
committing felonies embraced in the same If the offender has already served his
title because the implication is that he is sentence and he was extended an absolute
specializing on such kind of crime and the pardon, the pardon shall erase the
law wants to prevent any specialization. conviction including recidivism because
Hence, ordinarily, when a person commits a there is no more penalty so it shall be
crime under different titles, no aggravating understood as referring to the conviction or
circumstance is present. It is important that the effects of the crime.
the conviction which came earlier must refer
to the crime committed earlier than the Recidivism may be considered even though
subsequent conviction. not alleged in the information because this
is only a generic aggravating circumstance.
Illustration:
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 77
when introducing evidence was objected to, accused is a habitual delinquent, that is
the court cannot admit the evidence enough to confer jurisdiction upon the court
presented to prove habitual delinquency to consider habitual delinquency. In the
over the objection of the accused. absence of the details set forth in the
information, the accused has the right to
On the other hand, recidivism is a generic avail of the so-called bill of particulars. Even
aggravating circumstance. It need not be in a criminal case, the accused may file a
alleged in the information. Thus, even if motion for bill of particulars. If the accused
recidivism is not alleged in the information, fails to file such, he is deemed to have
if proven during trial, the court can waived the required particulars and so the
appreciate the same. If the prosecution tried court can admit evidence of the habitual
to prove recidivism and the defense delinquency, even though over and above
objected, the objection should be overruled. the objection of the defense.
The reason is recidivism is a generic
aggravating circumstance only. As such, it
does not have to be alleged in the Reiteracion
information because even if not alleged, if
proven during trial, the trial court can This has nothing to do with the classification
appreciate it. of the felonies. In reiteracion, the offender
has already tasted the bitterness of the
Right now, the present rule is that it can be punishment. This is the philosophy on
appreciated even if not alleged in the which the circumstance becomes
information. This is the correct view aggravating.
because recidivism is a generic aggravating
circumstance. The reason why habitual It is necessary in order that there be
delinquency cannot be appreciated unless reiteracion that the offender has already
alleged in the information is because served out the penalty. If the offender had
recidivism has nothing to do with the crime not yet served out his penalty, forget about
committed. Habitual delinquency refers to reiteracion. That means he has not yet
prior conviction and therefore this must be tasted the bitterness of life but if he had
brought in the information before the court already served out the penalty, the law
can acquire jurisdiction over this matter. expects that since he has already tasted
punishment, he will more or less refrain
Generally, the procedure you know that from committing crimes again. That is why
when the prosecutor alleges habitual if the offender committed a subsequent
delinquency, it must specify the crimes felony which carries with it a penalty lighter
committed, the dates when they were than what he had served, reiteracion is not
committed, the court which tried the case, aggravating because the law considers that
the date when the accused was convicted somehow, this fellow was corrected
or discharged. If these are not alleged, the because instead of committing a serious
information is defective. crime, he committed a lesser one. If he
committed another lesser one, then he
However, in a relatively recent ruling of the becomes a repeater.
Supreme Court, it was held that even
though the details of habitual delinquency So, in reiteracion, the penalty attached to
was not set forth in the information, as long the crime subsequently committed should
as there is an allegation there that the be higher or at least equal to the penalty
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 79
that he has already served. If that is the Offender had already been convicted by
situation, that means that the offender was final judgement. Sentence was promulgated
never reformed by the fact that he already and he was under custody in Muntinlupa.
served the penalty imposed on him on the While he was in Muntinlupa, he escaped
first conviction. However, if he commits a from his guard and in the course of his
felony carrying a lighter penalty; escape, he killed someone. The killing was
subsequently, the law considers that committed before serving sentence but
somehow he has been reformed but if he, convicted by final judgement. He becomes
again commits another felony which carries a quasi-recidivist because the crime
a lighter penalty, then he becomes a committed was a felony.
repeater because that means he has not
yet reformed. The emphasis here is on the crime
committed before sentence or while serving
You will only consider the penalty in sentence which should be a felony, a
reiteracion if there is already a second violation of the Revised Penal Code. In so
conviction. When there is a third conviction, far as the earlier crime is concerned, it is
you disregard whatever penalty for the necessary that it be a felony.
subsequent crimes committed. Even if the
penalty for the subsequent crimes Illustration:
committed are lighter than the ones already
served, since there are already two of them The offender was convicted of homicide.
subsequently, the offender is already a While serving sentence in Muntinlupa, he
repeater. was found smoking marijuana. He was
prosecuted for illegal use of prohibited
However, if there is only a second drugs and was convicted. Is he a quasi-
conviction, pay attention to the penalty recidivist? No, because the crime
attached to the crime which was committed committed while serving sentence is not a
for the second crime. That is why it is said felony.
that reiteracion is not always aggravating.
This is so because if the penalty attached to Reverse the situation. Assume that the
the felony subsequently committed is not offender was found guilty of illegal use of
equal or higher than the penalty already prohibited drugs. While he was serving
served, even if literally, the offender is a sentence, he got involved in a quarrel and
repeater, repetition is not aggravating. killed a fellow inmate. Is he a quasi-
recidivist? Yes, because while serving
sentence, he committed a felony.
Quasi-recidivism
The emphasis is on the nature of the crime
This is found in Article 160. The offender committed while serving sentence or before
must already be convicted by final serving sentence. It should not be a
judgement and therefore to have served the violation of a special law.
penalty already, but even at this stage, he
committed a felony before beginning to Quasi-recidivism is a special aggravating
serve sentence or while serving sentence. circumstance. This cannot be offset by any
mitigating circumstance and the imposition
Illustration: of the penalty in the maximum period
cannot be lowered by any ordinary
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 80
Treachery Illustration:
Suddenness of the attack does not by itself In a case where the crime committed is
constitute treachery in the absence of rape and the accused abused the victims
evidence that the manner of the attack was from behind, the Supreme Court considered
consciously adopted by the offender to the crime as aggravated by ignominy.
render the offended party defenseless Hence, raping a woman from behind is
(People v. Ilagan, 191 SCRA 643). ignominous because this is not the usual
intercourse, it is something which offends
But where children of tender years were the moral of the offended woman. This is
killed, being one year old and 12 years old, how animals do it.
the killing is murder even if the manner of
attack was not shown (People v. Gahon, In a case of homicide, while the victim after
decided on April 30, 1991). having been killed by the offender, the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 85
offender shoved the body inside a canal, aggravating in the crime of robbery with
ignominy is held aggravating. violence against or intimidation of persons.
Use only the term alternative circumstance (1) In the case of an accessory who is
for as long as the particular circumstance is related to the principal within the
not involved in any case or problem. The relationship prescribed in Article 20;
moment it is given in a problem, do not use
alternative circumstance, refer to it as (2) Also in Article 247, a spouse does
aggravating or mitigating depending on not incur criminal liability for a crime
whether the same is considered as such or of less serious physical injuries or
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 87
upon the victim. There were 11 stab such as parricide. If a child or son or
wounds and this, the Supreme Court said, daughter would kill a parent, illiteracy will
is incompatible with the idea that the not mitigate because the low degree of
offender is already suffering from instruction has no bearing on the crime.
diminished self control. On the contrary,
the indication is that the offender gained In the same manner, the offender may be a
strength out of the drinks he had taken. It is lawyer who committed rape. The fact that
not the quantity of drink that will determine he has knowledge of the law will not
whether the offender can legally invoke aggravate his liability, because his
intoxication. The conduct of the offender, knowledge has nothing to do with the
the manner of committing the crime, his commission of the crime. But if he
behavior after committing the crime must committed falsification, that will aggravate
show the behavior of a man who has his criminal liability, where he used his
already lost control of himself. Otherwise special knowledge as a lawyer.
intoxication cannot legally be considered.
These are two distinct circumstances. One Under the Revised Penal Code, when more
may not have any degree of instruction but than one person participated in the
is nevertheless educated. Example: A has commission of the crime, the law looks into
been living with professionals for sometime. their participation because in punishing
He may just be a maid in the house with no offenders, the Revised Penal Code
degree of instruction but he may still be classifies them as:
educated.
(1) principal;
It may happen also that the offender grew
up in a family of professionals, only he is (2) accomplice; or
the black sheep because he did not want to
go to school. But it does not follow that he (3) accessory.
is bereft of education.
This classification is true only under the
If the offender did not go higher than Grade Revised Penal Code and is not used under
3 and he was involved in a felony, he was special laws, because the penalties under
invoking lack of degree of education. The the latter are never graduated. Do not use
Supreme Court held that although he did the term principal when the crime
not receive schooling, yet it cannot be said committed is a violation of special law.
that he lacks education because he came Only use the term “offender.” Also only
from a family where brothers are all classify offenders when more than one took
professionals. So he understands what is part in the commission of the crime to
right and wrong. determine the proper penalty to be
imposed. So, if only one person committed
The fact that the offender did not have a crime, do not use principal. Use the
schooling and is illiterate does not mitigate “offenders,” “culprits,” or the “accused.”
his liability if the crime committed is one
which he inherently understands as wrong
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 89
But even the principal and the accomplice The point is not just on participation but on
will not be liable if the felony committed is the importance of participation in
only light and the same is not consummated committing the crime.
unless such felony is against persons or
property. If they are not and the same is In the first situation, the facts indicate that if
not consummated, even the principal and the fellow who held the legs of the victim
the accomplice are not liable. and spread them did not do so, the offender
on top could hardly penetrate because the
Therefore it is only when the light felony is woman was strong enough to move or
against person or property that criminal resist. In the second situation, the son was
liability attaches to the principal or much bigger than the woman so
accomplice, even though the felony is only considering the strength of the son and the
attempted or frustrated, but accessories are victim, penetration is possible even without
not liable for liable for light felonies. the assistance of the father. The son was a
robust farm boy and the victim
undernourished. The act of the father in
holding the legs of the victim merely
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 90
facilitated the penetration but even without it While in the course of a quarrel, a person
the son would have penetrated. shouted to A, “Kill him! Kill him.” A killed
the other fellow. Is the person who shouted
The basis is the importance of the criminally liable. Is that inducement? No.
cooperation to the consummation of the It must be strong as irresistible force.
crime. If the crime could hardly be
committed without such cooperation, then There was a quarrel between two families.
such cooperation would bring about a One of the sons of family A came out with a
principal. But if the cooperation merely shotgun. His mother then shouted,
facilitated or hastened the consummation of “Shoot!”. He shot and killed someone. Is
the crime, this would make the cooperator the mother liable? No.
merely an accomplice.
Examples of inducement:
In a case where the offender was running
after the victim with a knife. Another fellow “I will give you a large amount of money.”
came and blocked the way of the victim
and because of this, the one chasing the “I will not marry you if you do not kill B”(let
victim caught up and stabbed the latter at us say he really loves the inducer).
the back. It was held that the fellow who
blocked the victim is a principal by They practically become co-conspirators.
indispensable cooperation because if he did Therefore you do not look into the degree of
not block the way of the victim, the offender inducement anymore.
could not have caught up with the latter.
In People v. Balderrama, Ernesto shouted
In another case, A was mauling B. C, a to his younger brother Oscar, “Birahin mo
friend of B tried to approach but D stopped na, birahin mo na.” Oscar stabbed the
C so that A was able to continuously maul victim. It was held that there was no
B. The liability of the fellow who stopped conspiracy. Joint or simultaneous action
the friend from approaching is as an per se is not indicia of conspiracy without
accomplice. Understandably he did not showing of common design. Oscar has no
cooperate in the mauling, he only stopped rancor with the victim for him to kill the
to other fellow from stopping the mauling. latter. Considering that Ernesto had great
moral ascendancy and influence over Oscar
In case of doubt, favor the lesser penalty or being much older, 35 years old, than the
liability. Apply the doctrine of pro reo. latter, who was 18 yrs old, and it was
Ernesto who provided his allowance,
clothing as well as food and shelter,
Principal by inducement Ernesto is principal by inducement.
Concept of the inducement – one strong In People v. Agapinay, 186 SCRA 812, the
enough that the person induced could one who uttered “Kill him, we will bury him,”
hardly resist. This is tantamount to an while the felonious aggression was taking
irresistible force compelling the person place cannot be held liable as principal by
induced to carry out the execution of the inducement. Utterance was said in the
crime. Ill advised language is not enough excitement of the hour, not a command to
unless he who made such remark or advice be obeyed.
is a co-conspirator in the crime committed.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 91
In People v. Madali, 188 SCRA 69, the son must not have participated in the
was mauled. The family was not in good commission of the crime. The accessory
graces of the neighborhood. Father comes into the picture when the crime is
challenged everybody and when neighbors already consummated. Anyone who
approached, he went home to get a rifle. participated before the consummation of the
The shouts of his wife “Here comes crime is either a principal or an accomplice.
another, shoot him” cannot make the wife He cannot be an accessory.
the principal by inducement. It is not the
determining cause of the crime in the When an offender has already involved
absence of proof that the words had great himself as a principal or accomplice, he
dominance and influence over the husband. cannot be an accessory any further even
Neither is the wife’s act of beaming the though he performs acts pertaining to an
victim with a flashlight indispensable to the accessory.
commission of the killing. She assisted her
husband in taking good aim, but such Accessory as a fence
assistance merely facilitated the felonious
act of shooting. Considering that it was not The Revised Penal Code defines what
so dark and the husband could have manners of participation shall render an
accomplished the deed without his wife’s offender liable as an accessory. Among the
help, and considering further that doubts enumeration is “by profiting themselves or
must be resolved in favor of the accused, by assisting the offender to profit by the
the liability of the wife is only that of an effects of the crime”. So the accessory
accomplice. shall be liable for the same felony
committed by the principal. However,
where the crime committed by the principal
Accessories was robbery or theft, such participation of
an accessory brings about criminal liability
Two situations where accessories are not under Presidential Decree No. 1612 (Anti-
criminally liable: Fencing Law). One who knowingly profits
or assists the principal to profit by the
(1) When the felony committed is a light effects of robbery or theft is not just an
felony; accessory to the crime, but principally liable
for fencing under Presidential Decree No.
(2) When the accessory is related to the 1612.
principal as spouse, or as an
ascendant, or descendant or as Any person who, with intent to gain,
brother or sister whether legitimate, acquires and/or sell, possesses, keeps or in
natural or adopted or where the any manner deals with any article of value
accessory is a relative by affinity which he knows or should be known to him
within the same degree, unless the to be the proceeds of robbery or theft is
accessory himself profited from the considered a “fence” and incurs criminal
effects or proceeds of the crime or liability for “fencing” under said decree. The
assisted the offender to profit penalty is higher than that of a mere
therefrom. accessory to the crime of robbery or theft.
gives rise to criminal liability for “fencing”, persons acquiring property subject of piracy
not simply of an accessory under paragraph or brigandage.
2 of Article 19 of the Code. Mere
possession of any article of value which has The act of knowingly acquiring or receiving
been the subject of robbery or theft brings property which is the effect or the proceeds
about the presumption of “fencing”. of a crime generally brings about criminal
liability of an accessory under Article 19,
Presidential Decree No. 1612 has, paragraph 1 of the Revised Penal Code.
therefore, modified Article 19 of the Revised But if the crime was piracy of brigandage
Penal Code. under Presidential Decree No. 533 (Anti-
piracy and Anti-Highway Robbery Law of
1974), said act constitutes the crime of
Questions & Answers abetting piracy or abetting brigandage as
the case may be, although the penalty is
that for an accomplice, not just an
1. May one who profited out of accessory, to the piracy or brigandage. To
the proceeds of estafa or malversation be this end, Section 4 of Presidential Decree
prosecuted under the Anti-Fencing Law? No. 532 provides that any person who
knowingly and in any manner… acquires or
No. There is only a fence when the receives property taken by such pirates or
crime is theft or robbery. If the crime is brigands or in any manner derives benefit
embezzlement or estafa, still an accessory therefrom… shall be considered as an
to the crime of estafa, not a fence. accomplice of the principal offenders and
2. If principal committed be punished in accordance with the Rules
robbery by snatching a wristwatch and gave prescribed by the Revised Penal Code.
it to his wife to sell, is the wife criminally
liable? Can she be prosecuted as an It shall be presumed that any person who
accessory and as a fence? does any of the acts provided in this
Section has performed them knowingly,
The liability of the wife is based on unless the contrary is proven.
her assisting the principal to profit and that
act is punishable as fencing. She will no Although Republic Act No. 7659, in
longer be liable as an accessory to the amending Article 122 of the Revised Penal
crime of robbery. Code, incorporated therein the crime of
piracy in Philippine territorial waters and
In both laws, Presidential Decree No. 1612 thus correspondingly superseding
and the Revised Penal Code, the same act Presidential Decree No. 532, Section 4 of
is the basis of liability and you cannot the Decree which punishes said acts as a
punish a person twice for the same act as crime of abetting piracy or brigandage, still
that would go against double jeopardy. stands as it has not been repealed nor
modified, and is not inconsistent with any
provision of Republic Act No. 7659.
Acquiring the effects of piracy or brigandage
When the crime is robbery or theft, with on the life of the Chief Executive, the
respect to the second involvement of an accessory cannot be held criminally liable
accessory, do not overlook the purpose without the principal being found guilty of
which must be to prevent discovery of the any such crime. Otherwise the effect would
crime. be that the accessory merely harbored or
assisted in the escape of an innocent man,
The corpus delicti is not the body of the if the principal is acquitted of the charges.
person who is killed, even if the corpse is
not recovered, as long as that killing is Illustration:
established beyond reasonable doubt,
criminal liability will arise and if there is Crime committed is kidnapping for ransom.
someone who destroys the corpus delicti to Principal was being chased by soldiers. His
prevent discovery, he becomes an aunt hid him in the ceiling of her house and
accessory. aunt denied to soldiers that her nephew had
ever gone there. When the soldiers left, the
aunt even gave money to her nephew to go
Harboring or concealing an offender to the province. Is aunt criminally liable?
No. Article 20 does not include an auntie.
In the third form or manner of becoming an However, this is not the reason. The
accessory, take note that the law reason is because one who is not a public
distinguishes between a public officer officer and who assists an offender to
harboring, concealing or assisting the escape or otherwise harbors, or conceals
principal to escape and a private citizen or such offender, the crime committed by the
civilian harboring concealing or assisting principal must be either treason, parricide
the principal to escape. murder or attempt on the life of the Chief
executive or the principal is known to be
In the case of a public officer, the crime habitually guilty of some other crime.
committed by the principal is immaterial.
Such officer becomes an accessory by the The crime committed by the principal is
mere fact that he helped the principal to determinative of the liability of the
escape by harboring or concealing, making accessory who harbors, conceals knowing
use of his public function and thus abusing that the crime is committed. If the person is
the same. a public officer, the nature of the crime is
immaterial. What is material is that he used
On the other hand, in case of a civilian, the his public function in assisting escape.
mere fact that he harbored concealed or
assisted the principal to escape does not However, although under paragraph 3 of
ipso facto make him an accessory. The law Article 19 when it comes to a civilian, the
requires that the principal must have law specifies the crimes that should be
committed the crime of treason, parricide, committed, yet there is a special law which
murder or attempt on the life of the Chief punishes the same act and it does not
Executive. If this is not the crime, the specify a particular crime. Presidential
civilian does not become an accessory Decree No. 1829, which penalizes
unless the principal is known to be obstruction of apprehension and
habitually guilty of some other crime. Even prosecution of criminal offenders, effective
if the crime committed by the principal is January 16, 1981, punishes acts commonly
treason, or murder or parricide or attempt referred to as “obstructions of justice”. This
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 94
Decree penalizes under Section 1(c) without the principal first being convicted.
thereof, the act, inter alia, of Under Rule 110 of the Revised Rules on
“(c) Harboring or concealing, or facilitating Criminal Procedure, it is required that all
the escape of any person he knows or has those involved in the commission of the
reasonable ground to believe or suspect, crime must be included in the information
has committed any offense under existing that may be filed. And in filing an
penal laws in order to prevent his arrest, information against the person involved in
prosecution and conviction.” the commission of the crime, the law does
not distinguish between principal,
Here, there is no specification of the crime accomplice and accessory. All will be
to be committed by the offender for criminal accused and whether a certain accused will
liability to be incurred for harboring, be principal or accomplice or accessory will
concealing, or facilitating the escape of the depend on what the evidence would show
offender, and the offender need not be the as to his involvement in the crime. In other
principal – unlike paragraph 3, Article 19 of words, the liability of the accused will
the Code. The subject acts may not bring depend on the quantum of evidence
about criminal liability under the Code, but adduced by the prosecution against the
under this decree. Such an offender if particular accused. But the prosecutor
violating Presidential Decree No. 1829 is must initiate proceedings versus the
no longer an accessory. He is simply an principal.
offender without regard to the crime
committed by the person assisted to Even if the principal is convicted, if the
escape. So in the problem, the standard of evidence presented against a supposed
the Revised Penal Code, aunt is not accomplice or a supposed accessory does
criminally liable because crime is not meet the required proof beyond
kidnapping, but under Presidential Decree reasonable doubt, then said accused will be
No. 1829, the aunt is criminally liable but acquitted. So the criminal liability of an
not as an accessory. accomplice or accessory does not depend
on the criminal liability of the principal but
Whether the accomplice and the accessory depends on the quantum of evidence. But
may be tried and convicted even before the if the evidence shows that the act done
principal is found guilty. does not constitute a crime and the
principal is acquitted, then the supposed
There is an earlier Supreme Court ruling accomplice and accessory should also be
that the accessory and accomplice must be acquitted. If there is no crime, then there is
charged together with the principal and that no criminal liability, whether principal,
if the latter be acquitted, the accomplice accomplice, or accessory.
and the accessory shall not be criminally
liable also, unless the acquittal is based on Under paragraph 3, Article 19, take note in
a defense which is personal only to the the case of a civilian who harbors,
principal. Although this ruling may be conceals, or assists the escape of the
correct if the facts charged do not make the principal, the law requires that the principal
principal criminally liable at all, because be found guilty of any of the specified
there is no crime committed. crimes: treason, parricide, etc. The
paragraph uses the particular word “guilty”.
Yet it is not always true that the accomplice So this means that before the civilian can
and accessory cannot be criminally liable be held liable as an accessory, the principal
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 95
must first be found guilty of the crime imbecility or illness requiring their
charged, either treason, parricide, murder, confinement in a hospital.
or attempt to take the life of the Chief
Executive. If the principal is acquitted, that (2) The commitment of a minor to any
means he is not guilty and therefore, the of the institutions mentioned in art.
civilian who harbored, concealed or 80 for the purposes specified
assisted in the escape did not violate art. therein.
19. That is as far as the Revised Penal
Code is concerned. But not Presidential (3) Suspension from the employment or
Decree No. 1829. This special law does public office during the trial or in
not require that there be prior conviction. It order to institute proceedings.
is a malum prohibitum, no need for guilt, or
knowledge of the crime. (4) Fines and other corrective measures
In Taer v. CA, accused received from his which, in the exercise of their
co-accused two stolen male carabaos. administrative disciplinary powers,
Conspiracy was not proven. Taer was held superior officials may impose upon
liable as an accessory in the crime of cattle their subordinates.
rustling under Presidential Decree No. 533.
[Taer should have been liable for violation (5) Deprivation of rights and reparations
of the Anti-fencing law since cattle rustling which the civil laws may establish in
is a form of theft or robbery of large cattle, penal form.
except that he was not charged with
fencing.] Why does the Revised Penal Code specify
that such detention shall not be a penalty
In Enrile v. Amin, a person charged with but merely a preventive measure?
rebellion should not be separately charged
under Presidential Decree No. 1829. The This article gives justification for detaining
theory of absorption must not confine itself the accused. Otherwise, the detention
to common crimes but also to offenses would violate the constitutional provision
punished under special laws which are that no person shall be deprived of life,
perpetrated in furtherance of the political liberty and property without due process of
offense. law. And also, the constitutional right of an
accused to be presumed innocent until the
contrary is proved.
PENALTIES
Repeal of Article 80
Measures of prevention not considered
as penalty When may a minor be committed to
a reformatory?
The following are the measures of
prevention or safety which are not If the minor is between 9 - 15 years
considered penalties under Article 24: old and acted with discernment, sentence
must first be suspended under the following
(1) The arrest and temporary detention conditions:
of accused persons as well as their
detention by reason of insanity or
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 96
Duration of penalties
In the amendment, the law does not speak
of credit. Whether the person is entitled to
credit is immaterial. The discharge of the Reclusion perpetua
offender from preventive imprisonment or
detention is predicated on the fact that even What is the duration of reclusion perpetua?
if he would be found guilty of the crime
charged, he has practically served the Do not answer Article 27 to this question.
sentence already, because he has been The proper answer would be that reclusion
detained for a period already equal to if not perpetua has no duration because this is an
greater than the maximum penalty that indivisible penalty and indivisible penalties
would be possibly be imposed on him if have no durations.
found guilty.
Under Article 27, those sentenced to
If the crime committed is punishable only by reclusion perpetua shall be pardoned after
destierro, the most the offender may be undergoing the penalty for 30 years, unless
held under preventive imprisonment is 30 such person, by reason of his conduct or
days, and whether the proceedings are some other serious cause, shall be
terminated or not, such detention prisoner considered by the Chief Executive as
shall be discharged. unworthy of pardon.
Understand the amendment made to Article Under Article 70, which is the Three-Fold
29. This amendment has been Rule, the maximum period shall in no case
incorporated under Rule 114 precisely to do exceed 40 years. If a convict who is to
away with arbitrary detention. serve several sentences could only be
made to serve 40 years, with more reason,
Proper petition for habeas corpus must be one who is sentenced to a singly penalty of
filed to challenge the legality of the reclusion perpetua should not be held for
detention of the prisoner. more than 40 years.
that of making a conveyance of his property prescribed by law prior to its commission
inter vivos. pursuant to Article 21.
Illustration:
Questions & Answers
A has been convicted and is serving the
penalty of prision mayor. While serving
sentence, he executed a deed of sale over 1. If bond to keep the peace is
his only parcel of land. A creditor moved to not the same as bond for good behavior,
annul the sale on the ground that the are they one and the same bond that differ
convict is not qualified to execute a deed of only in name?
conveyance inter vivos. If you were the
judge, how would you resolve the move of No. The legal effect of each is
the creditor to annul the sale? entirely different. The legal effect of a
failure to post a bond to keep the peace is
Civil interdiction is not an accessory penalty imprisonment either for six months or 30
in prision mayor. The convict can convey days, depending on whether the felony
his property. committed is grave or less grave on one
hand, or it is light only on the other hand.
The legal effect of failure to post a bond for
good behavior is not imprisonment but
Questions & Answers
destierro under Article 284. Thus, it is clear
that the two bonds are not the same
What accessory penalty is common considering that the legal effect or the
to all principal penalties? failure to put up the bond is not the same.
Divisible and indivisible penalties
Confiscation or forfeiture on the
instruments or proceeds of the crime. When we talk of period, it is implying that
the penalty is divisible.
Bond to keep the peace If, after being given a problem, you were
asked to state the period in which the
One of the principal penalties common to penalty of reclusion perpetua is to be
the others is bond to keep the peace. imposed, remember that when the penalty
There is no crime under the Revised Penal is indivisible, there is no period. Do not talk
Code which carries this penalty. of period, because when you talk of period,
you are implying that the penalty is divisible
because the period referred to is the
Bond for good behavior minimum, the medium, and the maximum.
If it is indivisible, there is no such thing as
Bond for good behavior is prescribed by the minimum, medium and maximum.
Revised Penal Code for the crimes of grave
threats and light threats under Article 234.
You cannot find this penalty in Article 25 The capital punishment
because Article 25 only provides for bond to
keep the peace. Remember that no felony You were asked to state whether you are in
shall be punished by any penalty not favor or against capital punishment.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 101
Understand that you are not taking the perpetua shall be from 20 years to 40
examination in Theology. Explain the issue years. Because of this, speculations arose
on the basis of social utility of the penalty. as to whether it made reclusion perpetua a
Is it beneficial in deterring crimes or not? divisible penalty.
This should be the premise of your
reasoning. As we know, when a penalty has a fixed
duration, it is said to be divisible and, in
accordance with the provisions of Articles
Designation of penalty 65 and 76, should be divided into three
equal portions to form one period of each of
Since the principal penalties carry with them the three portions. Otherwise, if the penalty
certain accessory penalties, the courts are has no fixed duration, it is an indivisible
not at liberty to use any designation of the penalty. The nature of the penalty as
principal penalty. So it was held that when divisible or indivisible is decisive of the
the penalty should be reclusion perpetua, it proper penalty to be imposed under the
is error for the court to use the term “life Revised Penal Code inasmuch as it
imprisonment”. In other words, the courts determines whether the rules in Article 63
are not correct when they deviate from the or the rules in Article 64 should be observed
technical designation of the principal in fixing the penalty.
penalty, because the moment they deviate
from this designation, there will be no Thus, consistent with the rule mentioned,
corresponding accessory penalties that will the Supreme Court, by its First Division,
go with them. applied Article 65 of the Code in imposing
the penalty for rape in People v. Conrado
Illustration: Lucas, GR No. 108172-73, May 25, 1994.
It divided the time included in the penalty of
When the judge sentenced the accused to reclusion perpetua into three equal portions,
the penalty of reclusion perpetua, but with each portion composing a period as
instead of saying reclusion perpetua, it follows:
sentenced the accused to life imprisonment,
the designation is wrong. Minimum - 20 years and one day, to 26
years and eight months;
Subsidiary penalty
Innovations on the imposition of the
death penalty Is subsidiary penalty an accessory penalty?
No.
Aside form restoring the death penalty for
certain heinous crimes, Republic Act No.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 104
If the convict does not want to pay fine and court must state this. If the judgment is
has so many friends and wants to prolong silent, he cannot suffer any subsidiary
his stay in jail, can he stay there and not penalty.
pay fine? No.
The subsidiary penalty is not an accessory
After undergoing subsidiary penalty and the penalty that follows the principal penalty as
convict is already released from jail and his a matter of course. It is not within the
financial circumstances improve, can he be control of the convict to pay the fine or not
made to pay? Yes, for the full amount with and once the sentence becomes final and
deduction. executory and a writ of execution is issued
to collect the fine, if convict has property to
Article 39 deals with subsidiary penalty. levy upon, the same shall answer for the
There are two situations there: fine, whether he likes it or not. It must be
that the convict is insolvent to pay the fine.
(1) When there is a principal penalty of That means that the writ of execution
imprisonment or any other principal issued against the property of the convict, if
penalty and it carries with it a fine; any, is returned unsatisfied.
and
In People v. Subido, it was held that the
(2) When penalty is only a fine. convict cannot choose not to serve, or not
to pay the fine and instead serve the
Therefore, there shall be no subsidiary subsidiary penalty. A subsidiary penalty will
penalty for the non-payment of damages to only be served if the sheriff should return
the offended party. the execution for the fine on the property of
the convict and he does not have the
This subsidiary penalty is one of important properties to satisfy the writ.
matter under the title of penalty. A
subsidiary penalty is not an accessory
penalty. Since it is not an accessory Questions & Answers
penalty, it must be expressly stated in the
sentence, but the sentence does not specify
the period of subsidiary penalty because it The penalty imposed by the judge is
will only be known if the convict cannot pay fine only. The sheriff then tried to levy the
the fine. The sentence will merely provide property of the defendant after it has
that in case of non-payment of the fine, the become final and executory, but it was
convict shall be required to save subsidiary returned unsatisfied. The court then issued
penalty. It will then be the prison authority an order for said convict to suffer subsidiary
who will compute this. penalty. The convict was detained, for
which reason he filed a petition for habeas
So even if subsidiary penalty is proper in a corpus contending that his detention is
case, if the judge failed to state in the illegal. Will the petition prosper?
sentence that the convict shall be required
to suffer subsidiary penalty in case of Yes. The judgment became final
insolvency to pay the fine, that convict without statement as to subsidiary penalty,
cannot be required to suffer the accessory so that even if the convict has no money or
penalty. This particular legal point is a bar property to satisfy the fine, he cannot suffer
problem. Therefore, the judgment of the subsidiary penalty because the latter is not
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 105
payment of the fine because public censure Rule. As far as the court is concerned, that
is a penalty that has no fixed duration. will be the penalty to be imposed.”
Do not consider the totality of the For the purposes of subsidiary penalty,
imprisonment the convict is sentenced to apply the Three-Fold Rule if the penalty is
but consider the totality or the duration of arresto mayor and a fine of P200.00
the imprisonment that the convict will be multiplied by 3. This means one year and
required to serve under the Three-Fold six months only. So, applying the Three-
Rule. If the totality of the imprisonment Fold Rule, the penalty does not go beyond
under this rule does not exceed six years, six years. Hence, for the non- payment of
then, even if the totality of all the sentences the fine of P10,000.00, the convict shall be
without applying the Three-Fold Rule will go required to undergo subsidiary penalty.
beyond six years, the convict shall be This is because the imprisonment that will
required to undergo subsidiary penalty if he be served will not go beyond six years. It
could not pay the fine. will only be one year and six months, since
in the service of the sentence, the Three-
Illustration: Fold Rule will apply.
Go into the lowering of the penalty by one (2) When the offender is an accomplice
degree if the penalty is divisible. So do not or accessory only
apply the rule in paragraph 5 of Article 64 to
a case where the penalty is divisible. Penalty is one degree lower in the
case of an accomplice.
Although this rule is known as the Three- One prision correcional – minimum – 2
Fold rule, you cannot actually apply this if years and 4 months
the convict is to serve only three successive
penalties. The Three-Fold Rule can only be One arresto mayor - 1 month and
applied if the convict is to serve four or 1 day to 6 months
more sentences successively. If the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 111
One prision mayor - 6 years and (2) Instances when it does not apply;
1 day to 12 years and
The common mistake is, if given a situation, It applies only when the penalty served is
whether the Three-Fold Rule could be imprisonment. If not by imprisonment, then
applied. If asked, if you were the judge, it does not apply.
what penalty would you impose, for
purposes of imposing the penalty, the court
is not at liberty to apply the Three-Fold
Rule, whatever the sum total of penalty for Purpose
each crime committed, even if it would
amount to 1,000 years or more. It is only The purpose of the Indeterminate Sentence
when the convict is serving sentence that law is to avoid prolonged imprisonment,
the prison authorities should determine how because it is proven to be more destructive
long he should stay in jail. than constructive to the offender. So, the
purpose of the Indeterminate Sentence Law
Illustration: in shortening the possible detention of the
convict in jail is to save valuable human
A district engineer was sentenced by the resources. In other words, if the valuable
court to a term of 914 years in prison. human resources were allowed prolonged
confinement in jail, they would deteriorate.
A person was sentenced to three death Purpose is to preserve economic
sentences. Significance: If ever granted usefulness for these people for having
pardon for 1 crime, the two remaining committed a crime -- to reform them rather
penalties must still be executed. than to deteriorate them and, at the same
time, saving the government expenses of
This rule will apply only if sentences are to maintaining the convicts on a prolonged
be served successively. confinement in jail.
into account the penalty prescribed for the of the crime charged. So, whenever the
crime and go one degree lower. Within the Indeterminate Sentence Law is applicable,
range of one degree lower, the court will fix there is always a minimum and maximum of
the minimum for the indeterminate the sentence that the convict shall serve. If
sentence, and within the range of the the crime is punished by the Revised Penal
penalty arrived at as the maximum in the Code, the law provides that the maximum
indeterminate sentence, the court will fix the shall be arrived at by considering the
maximum of the sentence. If there is a mitigating and aggravating circumstances in
privilege mitigating circumstance which has the commission of the crime according to
been taken in consideration in fixing the the proper rules of the Revised Penal Code.
maximum of the indeterminate sentence, To fix the maximum, consider the mitigating
the minimum shall be based on the penalty and aggravating circumstances according
as reduced by the privilege mitigating to the rules found in Article 64. This means
circumstance within the range of the penalty –
next lower in degree.
(1) Penalties prescribed by the law for
If the crime is a violation of a special law, in the crime committed shall be
fixing the maximum of the indeterminate imposed in the medium period if no
sentence, the court will impose the penalty mitigating or aggravating
within the range of the penalty prescribed circumstance;
by the special law, as long as it will not
exceed the limit of the penalty. In fixing the (2) If there is aggravating circumstance,
minimum, the court can fix a penalty no mitigating, penalty shall be
anywhere within the range of penalty imposed in the maximum;
prescribed by the special law, as long as it
will not be less than the minimum limit of (3) If there is mitigating circumstance,
the penalty under said law. No mitigating no aggravating, penalty shall be in
and aggravating circumstances are taken the minimum;
into account.
(4) If there are several mitigating and
The minimum and the maximum referred to aggravating circumstances, they
in the Indeterminate Sentence Law are not shall offset against each other.
periods. So, do not say, maximum or Whatever remains, apply the rules.
minimum period. For the purposes of the
indeterminate Sentence Law, use the term (5) If there are two or more mitigating
minimum to refer to the duration of the circumstance and no aggravating
sentence which the convict shall serve as a circumstance, penalty next lower in
minimum, and when we say maximum, for degree shall be the one imposed.
purposes of ISLAW, we refer to the
maximum limit of the duration that the Rule under Art 64 shall apply in determining
convict may be held in jail. We are not the maximum but not in determining the
referring to any period of the penalty as minimum.
enumerated in Article 71.
In determining the applicable penalty
Courts are required to fix a minimum and a according to the Indeterminate Sentence
maximum of the sentence that they are to Law, there is no need to mention the
impose upon an offender when found guilty number of years, months and days; it is
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 113
enough that the name of the penalty is Crimes punished under special law carry
mentioned while the Indeterminate only one penalty; there are no degree or
Sentence Law is applied. To fix the periods. Moreover, crimes under special
minimum and the maximum of the law do not consider mitigating or
sentence, penalty under the Revised Penal aggravating circumstance present in the
Code is not the penalty to be imposed by commission of the crime. So in the case of
court because the court must apply the statutory offense, no mitigating and no
Indeterminate Sentence Law. The aggravating circumstances will be taken
attendant mitigating and/or aggravating into account. Just the same, courts are
circumstances in the commission of the required in imposing the penalty upon the
crime are taken into consideration only offender to fix a minimum that the convict
when the maximum of the penalty is to be should serve, and to set a maximum as the
fixed. But in so far as the minimum is limit of that sentence. Under the law, when
concerned, the basis of the penalty the crime is punished under a special law,
prescribed by the Revised Penal Code, and the court may fix any penalty as the
go one degree lower than that. But penalty maximum without exceeding the penalty
one degree lower shall be applied in the prescribed by special law for the crime
same manner that the maximum is also committed. In the same manner, courts are
fixed based only on ordinary mitigating given discretion to fix a minimum anywhere
circumstances. This is true only if the within the range of the penalty prescribed
mitigating circumstance taken into account by special law, as long as it will not be lower
is only an ordinary mitigating circumstance. than the penalty prescribed.
If the mitigating circumstance is privileged,
you cannot follow the law in so far as fixing Disqualification may be divided into three,
the minimum of the indeterminate sentence according to –
is concerned; otherwise, it may happen that
the maximum of the indeterminate sentence (1) The time committed;
is lower than its minimum.
(2) The penalty imposed; and
In one Supreme Court ruling, it was held
that for purposes of applying the (3) The offender involved.
Indeterminate Sentence Law, the penalty
prescribed by the Revised Penal Code and
not that which may be imposed by court. The Indeterminate Sentence Law shall not
This ruling, however, is obviously apply to:
erroneous. This is so because such an
interpretation runs contrary to the rule of pro (1) Persons convicted of offense
reo, which provides that the penal laws punishable with death penalty or life
should always be construed an applied in a imprisonment;
manner liberal or lenient to the offender.
Therefore, the rule is, in applying the (2) Persons convicted of treason,
Indetermiante Sentence Law, it is that conspiracy or proposal to commit
penalty arrived at by the court after applying treason;
the mitigating and aggravating
circumstances that should be the basis. (3) Persons convicted of misprision of
treason, rebellion, sedition,
espionage;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 114
Although the penalty prescribed for the On the other hand, without regard to the
felony committed is death or reclusion penalty, those who are convicted of
perpetua, if after considering the attendant subversion or any crime against the public
circumstances, the imposable penalty is order are not qualified for probation. So
reclusion temporal or less, the know the crimes under Title III, Book 2 of
Indeterminate Sentence Law applies the Revised Penal Code. Among these
(People v. Cempron, 187 SCRA 278). crimes is Alarms and Scandals, the penalty
of which is only arresto menor or a fine.
Under the amendment to the Probation
Presidential Decree No. 968 (Probation Law, those convicted of a crime against
Law) public order regardless of the penalty are
not qualified for probation.
Among the different grounds of partial
extinction of criminal liability, the most May a recidivist be given the benefit of
important is probation. Probation is a Probation Law?
manner of disposing of an accused who
have been convicted by a trial court by As a general rule, no.
placing him under supervision of a
probation officer, under such terms and Exception: If the earlier conviction refers to
conditions that the court may fix. This may a crime the penalty of which does not
be availed of before the convict begins exceed 30 days imprisonment or a fine of
serving sentence by final judgment and not more than P200.00, such convict is not
provided that he did not appeal anymore disqualified of the benefit of probation. So
from conviction. even if he would be convicted subsequently
of a crime embraced in the same title of the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 115
Revised Penal Code as that of the earlier the applicant is not disqualified under the
conviction, he is not disqualified from provision of the Probation Law, but only
probation provided that the penalty of the based on the report of the probation officer,
current crime committed does not go the denial is correctible by certiorari,
beyond six years and the nature of the because it is an act of the court in excess of
crime committed by him is not against jurisdiction or without jurisdiction, the order
public order, national security or denying the application therefore is null and
subversion. void.
Consider not only the probationable crime, (2) That there is undue risk that during
but also the probationable penalty. If it the period of probation the offender
were the non-probationable crime, then will commit another crime; or
regardless of the penalty, the convict
cannot avail of probation. Generally, the (3) Probation will depreciate the
penalty which is not probationable is any seriousness of the crime.
penalty exceeding six years of
imprisonment. Offenses which are not The probation law imposes two kinds of
probationable are those against natural conditions:
security, those against public order and
those with reference to subversion. (1) Mandatory conditions; and
(5) Probation.
(5) By prescription of the crime; Where the offender dies before final
judgment, his death extinguishes both his
(6) By prescription of the penalty; criminal and civil liabilities. So while a case
is on appeal, the offender dies, the case on
(7) By the marriage of the offended appeal will be dismissed. The offended
women as in the crimes of rape, party may file a separate civil action under
abduction, seduction and acts of the Civil Code if any other basis for
lasciviousness. recovery of civil liability exists as provided
under Art 1157 Civil Code. (People v.
Criminal liability is partially extinguished as Bayotas, decided on September 2, 1994)
follows:
amnesty granted to him erased not only the Pedro was prosecuted and convicted of the
conviction but also the effects of the crime of robbery and was sentenced to six
conviction itself. years imprisonment or prision correccional.
After serving sentence for three years, he
Suppose, instead of amnesty, what was was granted absolute pardon. Ten years
given was absolute pardon, then years later, Pedro was again prosecuted and
later, the offended was again captured and convicted of the crime of theft, a crime
charged for rebellion, he was convicted, is embraced in the same title, this time he
he a recidivist? shall be a recidivist. On the other hand, if
Yes. Pardon, although absolute does not he has served all six years of the first
erase the effects of conviction. Pardon only sentence, and his name was included in the
excuses the convict from serving the list of all those granted absolute pardon,
sentence. There is an exception to this and pardon shall relieve him of the effects of the
that is when the pardon was granted when crime, and therefore even if he commits
the convict had already served the theft again, he shall not be considered a
sentence such that there is no more service recidivist.
of sentence to be executed then the pardon
shall be understood as intended to erase In Monsanto v. Factoran, Jr., 170 SCRA
the effects of the conviction. 191, it was held that absolute pardon does
not ipso facto entitle the convict to
So if the convict has already served the reinstatement to the public office forfeited
sentence and in spite of that he was given a by reason of his conviction. Although
pardon that pardon will cover the effects of pardon restores his eligibility for
the crime and therefore, if he will be appointment to that office, the pardoned
subsequently convicted for a felony convict must reapply for the new
embracing the same title as that crime, he appointment
cannot be considered a recidivist, because .
the pardon wipes out the effects of the Pardon becomes valid only when there is a
crime. final judgment. If given before this, it is
premature and hence void. There is no
But if he was serving sentence when he such thing as a premature amnesty,
was pardoned, that pardon will not wipe out because it does not require a final
the effects of the crime, unless the judgment; it may be given before final
language of the pardon absolutely relieve judgment or after it.
the offender of all the effects thereof.
Considering that recidivism does not
prescribe, no matter how long ago was the Prescription of crime and prescription of the
first conviction, he shall still be a recidivist. penalty
But where the crime is subject to Summary offender goes to any of these countries, the
Procedure, the prescription of the crime will prescriptive period still continues to run.
be suspended only when the information is
already filed with the trial court. It is not the In the case of the prescription of the
filing of the complaint, but the filing of the penalty, the moment the convict commits
information in the trial which will suspend another crime while he is fugitive from
the prescription of the crime. justice, prescriptive period of the penalty
shall be suspended and shall not run in the
On the prescription of the penalty, the meantime. The crime committed does not
period will only commence to run when the include the initial evasion of service of
convict has begun to serve the sentence. sentence that the convict must perform
Actually, the penalty will prescribe from the before the penalty shall begin to prescribe,
moment the convict evades the service of so that the initial crime of evasion of service
the sentence. So if an accused was of sentence does not suspend the
convicted in the trial court, and the prescription of penalty, it is the commission
conviction becomes final and executory, so of other crime, after the convict has evaded
this fellow was arrested to serve the the service of penalty that will suspend such
sentence, on the way to the penitentiary, period.
the vehicle carrying him collided with
another vehicle and overturned, thus
enabling the prisoner to escape, no matter Marriage
how long such convict has been a fugitive
from justice, the penalty imposed by the trial In the case of marriage, do not say that it is
court will never prescribe because he has applicable for the crimes under Article 344.
not yet commenced the service of his It is only true in the crimes of rape,
sentence. For the penalty to prescribe, he abduction, seduction and acts of
must be brought to Muntinlupa, booked lasciviousness. Do not say that it is
there, placed inside the cell and thereafter applicable to private crimes because the
he escapes. term includes adultery and concubinage.
Marriages in these cases may even
Whether it is prescription of crime or compound the crime of adultery or
prescription of penalty, if the subject could concubinage. It is only in the crimes of
leave the Philippines and go to a country rape, abduction, seduction and acts of
with whom the Philippines has no lasciviousness that the marriage by the
extradition treaty, the prescriptive period of offender with the offended woman shall
the crime or penalty shall remain extinguish civil liability, not only criminal
suspended whenever he is out of the liability of the principal who marries the
country. offended woman, but also that of the
accomplice and accessory, if there are any.
When the offender leaves for a country to
which the Philippines has an extradition Co-principals who did not themselves
treaty, the running of the prescriptive period directly participate in the execution of the
will go on even if the offender leaves crime but who only cooperated, will also
Philippine territory for that country. benefit from such marriage, but not when
Presently the Philippines has an extradition such co-principal himself took direct part in
treaty with Taiwan, Indonesia, Canada, the execution of the crime.
Australia, USA and Switzerland. So if the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 121
Some believed that this civil liability is true On the other hand, if the crime was theft or
only in crimes against property, this is not robbery, the one who received the personal
correct. Regardless of the crime property becomes a fence, he is not only
committed, if the property is illegally taken required to restitute the personal property
from the offended party during the but he incurs criminal liability in violation of
commission of the crime, the court may the Anti-Fencing Law.
direct the offender to restore or restitute
such property to the offended party. It can If the property cannot be restituted
only be done if the property is brought anymore, then the damage must be
within the jurisdiction of that court. repaired, requiring the offender to pay the
value thereof, as determined by the court.
For example, in a case where the offender That value includes the sentimental value to
committed rape, during the rape, the the offended party, not only the
offender got on of the earrings of the victim. replacement cost. In most cases, the
When apprehended, the offender was sentimental value is higher than the
prosecuted for rape and theft. When the replacement value. But if what would be
offender was asked why he got on of the restored is brand new, then there will be an
earrings of the victim, the offender allowance for depreciation, otherwise, the
disclosed that he took one of the earrings in offended party is allowed to enrich himself
order to have a souvenir of the sexual at the expense of the offender. So there
intercourse. Supreme Court ruled that the will be a corresponding depreciation and
crime committed is not theft and rape but the offended party may even be required to
rape and unjust vexation for the taking of pay something just to cover the difference
the earring. The latter crime is not a crime of the value of what was restored to him.
against property, this is a crime against
personal security and liberty under Title IX The obligation of the offender transcends to
of Book II of the RPC. And yet, the offender his heirs, even if the offender dies, provided
was required to restore or restitute the he died after judgment became final, the
earring to the offended woman. heirs shall assume the burden of the civil
liability, but this is only to the extent that
Property will have to be restored to the they inherit property from the deceased, if
offended party even this would require the they do not inherit, they cannot inherit the
taking of the property from a third person. obligations.
Where personal property was divested from
the offended party pursuant to the The right of the offended party transcends
commission of the crime, the one who took to heirs upon death. The heirs of the
the same or accepted the same would be offended party step into the shoes of the
doing so without the benefit of the just title. latter to demand civil liability from the
So even if the property may have been offender.
bought by the third person, the same may
be taken from him and restored to the
offended party without an obligation on the Reparation of the damage caused
part of the offended party to pay him
whatever he paid. In case of human life, reparation of the
damage cause is basically P50,000.00
The right to recover what he has paid will value of human life, exclusive of other forms
be against the offender who sold it to him. of damages. This P50,000.00 may also
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 123
increase whether such life was lost through establishments, an obligation to answer
intentional felony or criminal negligence, civilly for the loss or property of their guests.
whether the result of dolo or culpa. Also in
the crime of rape, the damages awarded to Under Articloe 102, two conditions must be
the offended woman is generally present before liability attaches to the
P30,000.00 for the damage to her honor. In inkeepers, tavernkeepers and proprietors:
earlier rulings, the amount varied, whether
the offended woman is younger or a (1) The guest must have informed the
married woman. Supreme Court ruled that management in advance of his
even if the offended woman does not having brought to the premises
adduce evidence or such damage, court certain valuables aside from the
can take judicial notice of the fact that if a usual personal belongings of the
woman was raped, she inevitably suffers guest; and
damages. Under the Revised Rules on
Criminal Procedure, a private prosecutor (2) The guest must have followed the
can recover all kinds of damages including rules and regulations prescribed by
attorney’s fee. The only limitation is that the the management of such inn, tavern,
amount and the nature of the damages or similar establishment regarding
should be specified. The present the safekeeping of said valuables.
procedural law does not allow a blanket
recovery of damages. Each kind of The Supreme Court ruled that even though
damages must be specified and the amount the guest did not obey the rules and
duly proven. regulations prescribed by the management
for safekeeping of the valuables, this does
not absolve management from the
Indemnification of consequential damages subsidiary civil liability. Non-compliance
with such rules and regulations but the
Indemnification of consequential damages guests will only be regarded as contributory
refers to the loss of earnings, loss of profits. negligence, but it won’t absolve the
This does not refer only to consequential management from civil liability.
damages suffered by the offended party;
this also includes consequential damages Liability specially attaches when the
to third party who also suffer because of the management is found to have violated any
commission of the crime. law or ordinance, rule or regulation
governing such establishment.
The offender carnapped a bridal car while
the newly-weds were inside the church. Even if the crime is robbery with violence
Since the car was only rented, against or intimidation of persons or
consequential damage not only to the committed by the inkeeper’s employees,
newly-weds but also to the entity which management will be liable, otherwise, not
rented the car to them. liable because there is duress from the
offender, liable only for theft and force upon
Most importantly, refer to the persons who things.
are civilly liable under Articles 102 and 103.
This pertains to the owner, proprietor of Under Article 103, the subsidiary liability of
hotels, inns, taverns and similar an employer or master for the crime
committed by his employee or servant may
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 124
attach only when the following requisites not a ground applicable to extinction of civil
concur: liability in criminal case if the thing due is
lost, the offender shall repair the damages
(1) The employer must be engaged in caused.
business or in trade or industry while
the accused was his employee; When there are several offenders, the court
in the exercise of its discretion shall
(2) At the time the crime was determine what shall be the share of each
committed, the employee-employerr offender depending upon the degree of
relationship must be existing participation – as principal, accomplice or
between the two; accessory. If within each class of offender,
there are more of them, such as more than
(3) The employee must have been one principal or more than one accomplice
found guilty of the crime charged or accessory, the liability in each class of
and accordingly held civilly liable; offender shall be subsidiary. Anyone of the
may be required to pay the civil liability
(4) The writ of execution for the pertaining to such offender without
satisfaction of the civil liability was prejudice to recovery from those whose
returned unsatisfied because the share have been paid by another.
accused-employee does not have
enough property to pay the civil If all the principals are insolvent, the
liability. obligation shall devolve upon the
accomplice(s) or accessory(s). But
When these requisites concur, the employer whoever pays shall have the right of
will be subsidiarily civilly liable for the full covering the share of the obligation from
amount that his employee was adjudged those who did not pay but are civilly liable.
civilly liable. It is already settled in
jurisprudence that there is no need to file a To relate with Article 38, when there is an
civil action against the employer in order to order or preference of pecuniary (monetary)
enforce the subsidiary civil liability for the liability, therefore, restitution is not included
crime committed by his employee, it is here.
enough that the writ of execution is returned
unsatisfied. There is no denial of due There is not subsidiary penalty for non-
process of law because the liability of the payment of civil liability.
employer is subsidiary and not primary. He
will only be liable if his employee does not Subsidiary civil liability is imposed in the
have the property to pay his civil liability, following:
since it is the law itself that provides that
such subsidiary liability exists and (1) In case of a felony committed under
ignorance of the law is not an excuse. the compulsion of an irresistible
force. The person who employed
Civil liability of the offender is extinguished the irresistible force is subsidiarily
in the same manner as civil obligation is liable;
extinguished but this is not absolutely true.
Under civil law, a civil obligation is (2) In case of a felony committed under
extinguished upon loss of the thing due an impulse of an equal or greater
when the thing involved is specific. This is injury. The person who generated
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 125
Example: Murder and theft (killed with Composite Crime/Special Complex Crime
treachery, then stole the right).
Penalty: If complex – Reclusion temporal This is one which in substance is made up
maximum to death. of more than one crime but which in the
If treated individually – Reclusion temporal eyes of the law is only a single indivisible
to Reclusion Perpetua. offense. This is also known as a special
complex crime. Examples are robbery with
homicide, robbery with rape, and rape with
homicide.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 126
Whereas in a compound crime, there is no When the single act brings about two or
limit as to the gravity of the resulting crimes more crimes, the offender is punished with
as long as a single act brings about two or only one penalty, although in the maximum
more crimes. Strictly speaking, compound period, because he acted only with single
crimes are not limited to grave or less grave criminal impulse. The presumption is that,
felonies but covers all single act that results since there is only one act formed, it follows
in two or more crimes. that there is only one criminal impulse and
correctly, only one penalty should be
Illustration: imposed.
A person threw a hand grenade and the Conversely, when there are several acts
people started scampering. When the hand performed, the assumption is that each act
grenade exploded, no on was seriously is impelled by a distinct criminal impulse
wounded all were mere wounded. It was and for ever criminal impulse, a separate
held that this is a compound crime, penalty. However, it may happen that the
although the resulting felonies are only offender is impelled only by a single
slight. criminal impulse in committing a series of
acts that brought about more than one
Illustration of a situation where the term crime, considering that Criminal Law, if
“necessary” in complex crime should not be there is only one criminal impulse which
understood as indispensable: brought about the commission of the crime,
the offender should be penalized only once.
Abetting committed during the encounter
between rebels and government troops There are in fact cases decided by the
such that the homicide committed cannot Supreme Court where the offender has
be complexed with rebellion. This is performed a series of acts but the acts
because they are indispensable part of appeared to be impelled by one and the
rebellion. (Caveat: Ortega says rebellion same impulse, the ruling is that a complex
can be complexed with common crimes in crime is committed. In this case it is not the
discussion on Rebellion) singleness of the act but the singleness of
the impulse that has been considered.
The complex crime lies actually in the first There are cases where the Supreme Court
form under Article 148. held that the crime committed is complex
even though the offender performed not a
The first form of the complex crime is single act but a series of acts. The only
actually a compound crime, is one where a reason is that the series of acts are
single act constitutes two or more grave impelled by a single criminal impulse.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 127
grave offenses, even those cases when the victim or the killing of another victim,
act is not a single but a series of acts another act out of this is done
resulting to two or more grave and less simultaneously. Supreme Court considered
grave felonies, the Supreme Court this as complex. Although the killings did
considered this as a complex crime when not result from one single act.
the act is the product of one single criminal
impulse. In criminal procedure, it is prohibited to
charge more than one offense in an
If confronted with a problem, use the information, except when the crimes in one
standard or condition that it refers not only information constitute a complex crime or a
to the singleness of the act which brought special complex crime.
two or more grave and/less grave felonies.
The Supreme Court has extended this class So whenever the Supreme Court concludes
of complex crime to those cases when the that the criminal should be punished only
offender performed not a single act but a once, because they acted in conspiracy or
series of acts as long as it is the product of under the same criminal impulse, it is
a single criminal impulse. necessary to embody these crimes under
one single information. It is necessary to
You cannot find an article in the Revised consider them as complex crimes even if
Penal Code with respect to the continued the essence of the crime does not fit the
crime or continuing crime. The nearest definition of Art 48, because there is no
article is Article 48. Such situation is also other provision in the RPC.
brought under the operation of Article 48.
Duplicity of offenses, in order not to violate
In People v. Garcia, the accused were this rule, it must be called a complex crime.
convicts who were members of a certain
gang and they conspired to kill the other In earlier rulings on abduction with rape, if
gang. Some of the accused killed their several offenders abducted the woman and
victims in one place within the same abused her, there is multiple rape. The
penitentiary, some killed the others in offenders are to be convicted of one count
another place within the same penitentiary. of rape and separately charged of the other
The Supreme Court ruled that all accused rapes.
should be punished under one information
because they acted in conspiracy. The act In People v. Jose, there were four
of one is the act of all. Because there were participants here. They abducted the
several victims killed and some were woman, after which, the four took turns in
mortally wounded, the accused should be abusing her. It was held that each one of
held for the complex crime of multiple the four became liable not only for his own
homicide with multiple frustrated homicide. rape but also for those committed by the
There is a complex crime not only when others. Each of the four offenders was
there is a single act but a series of acts. It convicted of four rapes. In the eyes of the
is correct that when the offender acted in law, each committed four crimes of rape.
conspiracy, this crime is considered as one One of the four rapes committed by one of
and prosecuted under one information. them was complexed with the crime of
Although in this case, the offenders did not abduction. The other three rapes are
only kill one person but killed different distinct counts of rape. The three rapes are
persons, so it is clear that in killing of one
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not necessary to commit the other rapes. Note: This is a dangerous view because
Therefore, separate complaints/information. the abductors will commit as much rape as
they can, after all, only one complex crime
In People v. Pabasa, the Supreme Court of rape would arise.
through Justice Aquino ruled that there is
only one count of forcible abduction with In adultery, each intercourse constitutes
rape committed by the offenders who one crime. Apparently, the singleness of
abducted the two women and abused them the act is not considered a single crime.
several times. This was only a dissenting Each intercourse brings with it the danger of
opinion of Justice Aquino, that there could bringing one stranger in the family of the
be only one complex crimeof abduction with husband.
rape, regardless of the number of rapes
committed because all the rapes are but Article 48 also applies in cases when out of
committed out of one and the same lewd a single act of negligence or imprudence,
design which impelled the offender to two or more grave or less grave felonies
abduct the victim. resulted, although only the first part thereof
(compound crime). The second part of
In People v. Bojas, the Supreme Court Article 48 does not apply, referring to the
followed the ruling in People v. Jose that complex crime proper because this applies
the four men who abducted and abused the or refers only to a deliberate commission of
offended women were held liable for one one offense to commit another offense.
crime – one count or forcible abudction with
rape and distinct charges for rape for the However, a light felony may result from
other rapes committed by them. criminal negligence or imprudence, together
with other grave or less grave felonies
In People v. Bulaong, the Supreme Court resulting therefrom and the Supreme Court
adopted the dissenting opinion of Justice held that all felonies resulting from criminal
Aquino in People v. Pabasa, that when negligence should be made subject of one
several persons abducted a woman and information only. The reason being that,
abused her, regardless of the number of there is only one information and
rapes committed, there should only be one prosecution only. Otherwise, it would be
complex crime of forcible abduction with tantamount to splitting the criminal
rape. The rapes committed were in the negligence similar to splitting a cause of
nature of a continued crime characterized action which is prohibited in civil cases.
by the same lewd design which is an
essential element in the crime of forcible Although under Article 48, a light felony
abduction. should not be included in a complex crime,
yet by virtue of this ruling of the Supreme
The abuse amounting to rape is complexed Court, the light felony shall be included in
with forcible abduction because the the same information charging the offender
abduction was already consummated when with grave and/or less grave felonies
the victim was raped. The forcible resulting from the negligence of reckless
abduction must be complexed therewith. imprudence and this runs counter to the
But the multiple rapes should be considered provision of Article 48. So while the
only as one because they are in the nature Supreme Court ruled that the light felony
of a continued crime. resulting from the same criminal negligence
should be complexed with the other felonies
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because that would be a blatant violation of 306). Said acts were committed on
Article 48, instead the Supreme Court two different occasions;
stated that an additional penalty should be
imposed for the light felony. This would (2) Several malversations committed in
mean two penalties to be imposed, one for May, June and July 1936 and
the complex crime and one for the light falsifications to conceal said
felony. It cannot separate the light felony offenses committed in August and
because it appears that the culpa is crime October, 1936. The malversations
itself and you cannot split the crime. and falsifications were not the result
of one resolution to embezzle and
Applying the concept of the “continued falsify (People v. CIV, 66 Phil. 351);
crime”, the following cases have been
treated as constituting one crime only: (3) Seventy-five estafa cases
committed by the conversion by the
(1) The theft of 13 cows belonging to agents of collections from the
two different persons committed by customers of the employer made on
the accused at the same place and different dates.
period of time (People v. Tumlos,
67 Phil. 320); In the theft cases, the trend is to follow the
single larceny doctrine, that is taking of
(2) The theft of six roosters belonging to several things, whether belonging to the
two different owners from the same same or different owners, at the same time
coop and at the same period of time and place, constitutes one larceny only.
(People v. Jaranillo); Many courts have abandoned the separate
larceny doctrine, under which there was
(3) The illegal charging of fees for distinct larceny as to the property of each
service rendered by a lawyer every victim.
time he collects veteran’s benefits
on behalf of a client who agreed that Also abandoned is the doctrine that the
attorney’s fees shall be paid out of government has the discretion to prosecute
such benefits (People v. Sabbun, the accused for one offense or for as many
10 SCAR 156). The collections of distinct offenses as there are victims
legal fees were impelled by the (Santiago v. Justice Garchitorena, decided
same motive, that of collecting fees on December 2, 1993). Here, the accused
for services rendered, and all acts of was charged with performing a single act –
collection were made under the that of approving the legalization of aliens
same criminal impulse. not qualified under the law. The
prosecution manifested that they would only
On the other hand, the Supreme Court file one information. Subsequently, 32
declined to apply the concept in the amended informations were filed. The
following cases: Supreme Court directed the prosecution to
consolidate the cases into one offense
(1) Two Estafa cases, one which was because (1) they were in violation of the
committed during the period from same law – Executive Order No. 324; (2)
January 19 to December, 1955 and caused injury to one party only – the
the other from January 1956 to July government; and (3) they were done in the
1956 (People v. Dichupa, 13 Phil same day. The concept of delito
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