CENTRAL PHILIPPINE UNIVERSITY 1.
While criminal laws define crimes and prescribe punishment for such crimes,
COLLEGE OF LAW
CRIMINAL LAW REVIEW
BOOK 1
JUDGE GLOBERT J. JUSTALERO
Criminal Law, Defined
Criminal Law has been defined as that branch or division of law which defines
crimes, treats of their nature, and provides for their punishment.
Criminal Law is also understood as a branch of public law that treats of acts
or omissions, which are primarily wrongs against the State.
For instance, if a person wants to know what the crime of homicide or rape is,
and their respective penalty, he has to consult the Revised Penal Code. Similarly, to
distinguish homicide from murder, one has to take his bearing to the Revised Penal
Code. As to the dynamics and procedure on how to prosecute a person who
committed the crimes of rape, homicide or murder, being procedural, it is governed
by the Rules of Criminal Procedure.
Criminal Procedure, Defined
Treats of the series of processes by which the criminal laws are enforced and
by which the State prosecutes persons who violate the penal laws. In the clear
language of the Court, criminal procedure “regulates the steps by which one who
committed a crime is to be prosecuted and punished” (People vs. Lacson. 400 SCRA
267.)
Is a “generic term to describe the network of laws and rules which governs
the procedural administration of justice.” (Black’s Law Dictionary)
For example, if a person needs to educate himself on how to prosecute a
person who committed the crime of homicide or rape, or how a preliminary
investigation to be conducted, then he has to refer to the Rules of Criminal
Procedure.
Criminal Law and Criminal Procedure, Distinguished
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criminal procedure lays down the processes by which an offender is made to
answer for the violation of the criminal laws;
2. Criminal law is substantive in nature, criminal procedure is procedural in
character;
3. Criminal law is enacted by the Legislature, while criminal procedure is
promulgated by the Supreme Court;
4. Criminal law is characterized by substantive due process, while criminal
procedure is governed by procedural due process.
THE THREE MAIN PARTS OF THE REVISED PENAL CODE:
1. Basic principles affecting criminal liability (Arts. 1 to 20)
2. Provisions on penalties, including criminal and civil liability (Arts. 21 to 113)
and
3. Felonies defined and penalized under fourteen titles (Arts. 114 to 365)
IS THERE IS A COMMON LAW IN THE PHILIPPINES?
In the Philippines, there exist no crimes such as those known in the United
States and England as common law crimes. (U.S. v. Taylor, G.R. No. L – 9726,
December 8, 1914). Our country adheres to the principle of “nullum crimen, nulla
poena sine lege,” that is, there is no crime where there is no law punishing it. The
maxim of nullum crimen, nulla poena sine lege is an indispensable corollary to a
regime of liberty enshrined in our Constitution. It is of the essence that while
anti-social acts should be penalized, there must be a clear definition of the
punishable offense as well as the penalty that may be imposed. (People v. Cabural,
G.R. No. L – 34105, February 4, 1963; 1988 and 2011 BAR)
ELEMENTS OF CRIMINAL LAW:
The law must define the criminal act;
a. It must prescribe a penalty; and
b. It must be an act of the Legislature.
 It is important to determine whether or not a statute is penal because only
then will the principle of in dubio pro reo and the rule on ex post facto law apply.
Simply put, the principles of pro reo as well as on ex post facto does not apply to
procedural law. Thus, procedural laws like suspension pendente lite, extradition
treaty, and substantive laws on jurisdiction are not covered by the above rules, not
being penal statutes.
CONSTRUCTION OF PENAL LAWS
It is a basic rule in statutory construction of criminal laws that in case of
doubt, it should be resolved in favour of the accused.
Penal laws are strictly construed against the Government and liberally in
favour of the accused. (U.S. vs. Abad Santos, 36 Phil. 243) The rule that penal
statutes should be strictly construed against the State may be invoked only where
the law is ambiguous and there is doubt as to its interpretation. Where the law is
clear and unambiguous, there is no room for the application of the rule. (People v.
Gatchalian, 104 Phil. 664)
PRO REO PRINCIPLE
In dubio pro reo means “when in doubt, for for the accused.” Intimately
related to the in dubio pro reo principle is the rule of lenity. The rule applies when the
court is faced with two possible interpretations of a penal statute – one that is
prejudicial to the accused and another that is favourable to him. The rule calls for the
adoption of an interpretation which is more lenient to the accused. (Intestate Estate
of Gonzales v. People, G.R. No. 181409, February 11, 2010.)
SOURCES OF PHILIPPINE CRIMINAL LAW
1. The Revised Penal Code (Act No. 3815) and its amendments.
2. Special Penal Laws – RA 9165, RA 7610, RA 9262, RA 9344, RA 8353
3. Presidential Decrees – PD 1866, PD 1612 (Anti Fencing Law), PD 1613
(Arson Law) PD 1602 (Illegal Gambling), PD 533 (The Anti-Cattle Rustling
Law), PD 532 (Highway Robbery), PD 115 (Trust Receipt Law)
4. Batasang Pambansa – BP 22, BP 6
5. REPUBLIC ACT NO. 10951 - - AN ACT ADJUSTING THE AMOUNT OR
THE VALUE OF PROPERTY AND DAMAGE ON WHICH A PENALTY IS
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BASED, AND THE FINES IMPOSED UNDER THE REVISED PENAL CODE,
AMENDING FOR THE PURPOSE ACT NO. 3815, OTHEWISE KNOWN AS
“THE REVISED PENAL CODE” AS AMENDED.
Constitutional limitations on the power of congress to pass penal laws
a. The law must be general in its application (equal protection clause) –
This constitutional tenet assures that a penal law must apply to all
similarly situated unless a valid classification exists, e.g., R.A. 9262 which
recognizes the classification between man, on the one hand, and women
and children, on the other. It complements the generality characteristic of
penal law.
b. It must observe substantive and procedural due process–
Both substantive and procedural due process is a right of the accused as
much as it is of the prosecution. To honor the principle that “Justice is for
all,” the scales must be balanced so much so that justice is not to be
dispensed for the accused alone. The interests of society and the
offended parties which have been wronged must be equally considered.
c. It should not impose cruel and unusual punishment or excessive fines –
The Supreme Court is strings of cases held that punishments are cruel
when they involve torture or a lingering death. It implies something
inhuman or barbarous or shocking to the conscience.
d. It should not operate as a bill of attainder–
A bill of attainder is a legislative act which inflicts punishment without
judicial trial. It offends against the due process clause and has featured of
ex post facto law. It is an encroachment of judicial function by the
legislative.
e. It must not operate as an ex post facto law–

The prohibition on ex post facto law applies solely to penal laws. It cannot
prohibit the retroactivity of procedural laws such as one that prescribes
rules of procedure by which courts applying laws of all kinds can properly
administer justice, such as the Extradition Treaty. (Wright vs. CA, G.R.
No. 113213, August 15, 1994)
PROSPECTIVE EFFECT OF THE RULES OF COURT (BAR 2011)
In numerous jurisprudence, the Highest Court ruled that the rules embodied
in the Rules of Court are not penal laws and therefore, are not to be given retroactive
usage and are to be govern cases brought AFTER they take effect, and also all
further proceedings in cases then pending, except to the extent that in the opinion of
the court, their application would not be feasible or would work injustice, in which
event the former procedure shall apply.
Provisions in the Penal Code complementing ex post facto rule:
a. Article 21: No felony shall be punishable by any penalty not prescribed by
law prior to its commission.
b. Article 22: Penal laws shall have a retroactive effect insofar as they favor
the offender who is not a habitual delinquent. Therefore, a law which
increases the penalty for an act or omission or prejudicial to the right of
the accused cannot be given retroactive effect unless they are favourable
to the accused who is not an habitual delinquent.
Applicability to pending actions; retroactivity (BAR 2011)
Rules of procedure however, may be made applicable to actions pending and
undetermined at the time of their passage, and are deemed retroactive in that sense
and to that extent. As a general rule, the retroactive application of procedural laws
cannot be considered violative of any personal rights because no vested right may
attach to nor arise therefrom (In the matter to declare contempt of court Hon. Simeon
Datumanong, 497 SCRA 626)
Examples of ex post facto law:
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a. Makes an act or omission criminal which when committed was not
criminal.
b. Aggravates the seriousness of the crime than when it was committed.
c. Imposes a penalty that is higher than when the crime was committed.
d. Makes it easier for the prosecution to establish the guilt of the accused
than when the crime was committed.
e. Requires a lesser quantum of evidence than when the crime was
committed.
f. Alters, in relation to the offense or its consequences, the situation of a
person to his disadvantage.
g. Assumes to regulate civil rights and remedies only but in effect imposes a
penalty or deprivation of a right which when done was lawful.
h. Deprives a person accused of crime of some lawful protection to which he
has become entitled, such as the protection of a former conviction or
acquittal, or a proclamation of amnesty. (Lacson vs. Executive secretary,
G.R. No. 128096, January 20, 1999)
CHARACTERISTICS OF PENAL LAW
a. Generality – Penal law is binding on all persons who reside or sojourn in
the Philippines whether citizens or not subject to some well-defined
exceptions.
There are cases where our Criminal Law does not apply even if the crime is
committed by a person residing or sojourning in the Philippines. These constitute the
exceptions.
Under Article 14 of the Civil Code, penal laws shall be obligatory upon all who
live or sojourn in the Philippine territory. In the stufy of criminal law, this is the
generality principle.
1. The fact that the one who committed the crime is a foreign national does not
exclude him from operation of penal laws. The argument therefore, of
accused that he did not incur criminal liability because both he and the victim
 is Indonesian is of no moment. A foreigner is not immune from criminal
prosecution for violation of the Trade Mark Law or any law for that matter,
committed in the Philippines. Trademark Law is obligatory to a foreigner, who
is living or sojourning in the Philippine (Bar 2011)
2. Military offender – Penal laws are obligatory to military men residing or
sojourning in the Philippines. The courts have jurisdiction to try military
offenders charged with violation of the penal laws. Its jurisdiction is unaffected
by the military or other special character of the accused. However,
service-connected crimes shall be tried by the court-martial as mandated by
RA No. 7055. (Navales v. Abaya, G.R. No. 162318, October 25, 2004)
Exceptions:
Under Article 14 of the Civil Code, the generality principle is subject to
principles of public international law and treaty stipulation. However, law of
preferential application and case law are also recognized exceptions to the principle
of generality.
1. Principles of international law
Penal laws are not obligatory to persons entitled to criminal immunity
because of the principles of international law. Under the old rule, a consul was not
exempt from criminal prosecution for violation of the laws of the country where he
resided. Under the present rule, consular officers are immune from criminal
prosecution of acts performed in the exercise of function. Immunity does not cover
slander or reckless imprudence resulting in homicide for not being function-related.
For instance, a Chinese diplomat, who killed another Chinese diplomat in
Cebu, is immune from criminal prosecution (The Vienna Convention on Diplomatic
Relations). Unlike consular officers, diplomat agents are vested with blanket
diplomatic immunity from civil and criminal suits. (Minucher v. Hon. CA, G.R. No.
142396, Feburary 11, 2003). On the other hand, unlike Ministers, Presidents,
Ambassadors, and Chief of Mission, a Commercial Attache is not a diplomatic agent.
Hence, he is not exempt from the generality rule of criminal law. (Bar Exam 2011).
French diplomat stationed in the Philippines is immune from criminal prosecution for
reckless imprudence resulting in homicide. (BAR Exam 2014). Charge d’affaires is
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immune from criminal prosecution for multiple frustrated and attempted murders
(2016 Bar Exam) (Judge Campanilla)
2. Laws of preferential application
Article 349 of the Revised Penal Code on bigamy is not obligatory to Muslims
married in accordance with the Muslim Laws because PD No. 1083 (The Code of
Muslim Personal Laws). Under PD No. 1083, penal laws relative to the crime of
bigamy shall not apply to a person married under Muslim Laws where the
requirements set therein are met. (Marbella-Bobis v. Bobis, G.R. No. 138509, July
31, 2000). PD No. 1083 is a law of preferential application. However, if the marriage
is not solemnized in accordance with Muslim Laws, the accused cannot claim
criminal exemption from liability for bigamy on the basis of his religious belief as a
Muslim because of the generality principle. (Abubakar v. Arca, G.R. No. L- 14916,
December 29, 1962). PD No. 1083 is not applicable since the marriage was not
made in accordance with the Muslim Law. (Nollora, Jr., v. People, G.R. No. 191425,
September 7, 2011) (Judge Campanilla).
3. Case law
Penal laws are not obligatory to the President because of presidential
immunity by case law. The President of the Philippines is entitled to immunity from
suit subject to the following conditions: (1) the immunity has been asserted; (2)
during the period of his incumbency and tenure; and (3) the act constituting the crime
is committed in the performance of his duties. Presidential immunity will assure the
exercise of presidential duties and functions free from any hindrance or distraction,
considering that the Chief Executive is a job that demands undivided attention.
(Estrada v. Desierto, G.R. No. 146710- 15, March 2, 2001)
b. Territoriality – The criminal law is applicable to all crimes committed
within the limits of Philippine territory. Criminal laws undertake to punish
crimes committed within Philippine territory. The principle of territoriality
means that as a rule, penal laws of the Philippines are enforceacble only
within its territory, subject to well-defined exceptions provided for under
the 2nd par. of Art. 2 of the RPC.
 Basis – Art. 2, Revised penal Code which provides in substance: “The
provisions of the Revised Penal Code shall be enforced within the Philippine territory
(Article 2 of the RPC) The exceptions are as follows:
1. Treaties and treaty stipulations.
(a) Bases Agreement
(b) RP-US Visiting Forces Accord.
2. Embassy
The ground occupied by US embassy is not in fact the territory of the USA to
which the premises belong through possession or ownership. A person who
committed a crime within the premises of an embassy will be prosecuted under the
law of the Philippines because of the principle of territoriality. (Reagan v. Commission
on Internal Revenue, G.R. No. L – 26379, December 27, 1969; Answer to 2009 Bar
Exam Questions by UP Law Complex). According to CA Justice Coquia, the modern
tendency among writers is toward rejecting the fiction of extraterritoriality of
diplomatice premises. In the Kent, the British courts held that a crime committed in a
foreign embassy is a crime committed in the United Kingdom and the offender, if not
protected by diplomatic immunity, is liable to prosecution in the British courts.
(International Law, Second Edition, by Jeorge R. Coquia and Miriam Defensor
Santiago, pp. 548-549) (Judge Campanilla)
However, jurisdiction of the Philippines over the embassy is limited or
restricted by “the principles of inviolability of diplomatic premises” which is a
generally accepted principle of International Law. A warrant of arrest cannot be
served inside US Embassy without waiver from US government of its right under the
principle of inviolability.
3. Territorial waters
Territorial waters refer to all waters seaward to a line 12 nautical miles distant
from the archipelagic baseline over which the Philippines exercises jurisdiction.
These waters are located between national or archipelagic waters and the territorial
lands of the Philippines, and the high sea. Territorial waters do not include national
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waters, which are within the baseline drawn in accordance with the archipelagic
doctrine.
There are three (3) fundamental rules in International Law regarding crimes
committed aboard a foreign merchant vessel (not military vessel), if the same is
within the 12-mile territorial water of the Philippines (not internal or archipelagic water
or high seas), to wit:
I. French rule –
Under the French rule (flag State principle), crimes committed aboard
a foreign merchant vessel within the territorial water of the Philippines
are subject to the jurisdiction of the flag state unless their commission
affects the peace and security of our country.
II. English rule –
Under the English rule, crimes committed aboard a foreign merchant
vessel within the territorial water of the Philippine are subject to the
jurisdiction of the Philippine and it is governed by our criminal laws,
unless their commissions does not affect the peace and security of
our country or has no pernicious effect therein.
III. Convention of the law of the sea
The flag state of foreign merchant vessel passing through the territorial sea
has jurisdiction over crimes committed therein. However, the Philippine (coastal
state) can exercise jurisdiction to arrest any person or to conduct any investigation in
connection with any crime committed on board the ship during its passage in the
following cases: (1) if the consequences of the crime extend to the Philippines; (2) if
the crime is of a kind to disturb the peace of the Philippines or the good order of the
territorial sea; (3) if the assistance of the local authorities has been requested by the
master of the ship or by a diplomatic agent or consular officer of the flag state; or (4)
if such measures are necessary for the suppression of illicit traffic in narcotic drugs
or psychotropic substances. (Section 2, Article 27 of the Convention of the Law of
the Sea) (Judge Campanilla).
 Under the old rule, the controlling principle was the English Rule. But since
the Philippines is a signatory to the Convention of the Law of the Sea, it must be
considered in determining jurisdiction over crime committed aboard a foreign ship
within the territorial water of the Philippines.
For instance, a crime of murder is committed on board a foreign merchant
vessel a few moments after it left the port of Manila, or in the break water of Manila
Bay. Since the vessel is still within the territorial water of the Philippines when the
crime was committed, the accused can be prosecuted in the Philippines. Inasmuch
as the crime committed by the accused disturbs the peace and order of the
Philippines, he could be prosecuted in Manila.
Spratly Islands and regime of islands
Spratly Islands are chain of islands in the South China Sea the ownership of
which is being disputed by the Philippines, Taiwan, Malaysia, Vietnam, Brunie, and
China. The People’s Republic of China considers the entire Spratly Islands as part of
China, and claims that it has historical naval presence therein. Thus, the Philippines
had no jurisdiction over a crime committed by a Filipino in the disputed Spratly
Islands. (2011 Bar Exams) (Judge Campanilla). However, the Philippines has
jurisdiction over crime committed in kalayaan Islands, which are the western part of
Spratly Islands.
Foreign country
Under the principle of territoriality, the Philippines has jurisdiction over crimes
committed inside its territory except as provided in the treaties and laws of
preferential application.
Thus, the court has jurisdiction over concubinage involving illicit relationship
maintained in the Philippines; but it has no jurisdiction over bigamy involving
subsequent marriage contracted in HongKong, Singapore or New York. In one case,
the Supreme Court held that a lawyer can be disbarred from contracting a bigamous
marriage in a foreign country. (Perez v. Catindig, A.C. No. 5816, March 10, 2015)
The reason is not hard to see because disbarment proceedings is not a criminal
proceedings, hence the exception does not apply.
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c. Prospectivity – Our penal laws shall have no retroactive application,
subject to some exceptions. A penal law cannot make an act punishable
in a manner which it was not punishable when committed.
The law should have only prospective application except if it is favorable to
the offender, who is not an habitual delinquent. Whenever a new statute dealing with
crime establishes conditions more lenient or favourable to the accused, it can be
given a retroactive effect.
But this exception has no application:
1. Where the new law is expressly made inapplicable to pending actions or
existing causes of action.
2. Where the offender is a habitual criminal under Rule 5, Article 62,
Revised Penal Code.
Under the prospectivity principle, criminal law merely punishes crimes
committed on or after its effectivity. Under Artcle 21 of the Revised Penal Code, no
felony shall be punishable by any penalty not prescribed by law prior to its
commission.
The prospective character of criminal laws presupposes that they are not
favourable to the accused. If a criminal law is favourable to accused, it must be given
a retroactive effect. Criminalization is not favourable to the accused. The law should
be given a prospective effect. Hence, prosecuting a person for a crime committed
prior to the passage of the law punishing it is not allowed (Bar 2014).
As a general rule, penal laws shall have prospective application lest they
acquire the character of an ex post facto law. However, there are exceptions of the
prospectivity rule. Laws shall be given retroactive effect: (1) if the law is favourable to
the accused, who is not a habitual delinquent; (2) if the law decriminalizes an act; or
(3) if the law expressly provides retroactivity.
Take note that that the retroactive effect rule benefits a convict although he is
already serving his sentence. (1947 Bar)
Reclusion perpetua, which has duration of 40 years (Article 27 RPC), or 30
years if the accused had undergone preventive imprisonment (Art. 29 RPC as
amended by RA 10592), is a lighter penalty than life imprisonment, which has no
duration. Hence, amendatory law, which prescribes reclusion perpetua instead of life because all doubts must be resolved in favour of the accused. Moreover,
imprisonment for a crime punishable under it, is favourable to the accused; and thus, ex post facto law is a constitutional edict hence is superior to any doctrine
it shall be given a retroactive effect. (People v. Morilla, G.R. No.189833, February 5, or rule.
2014).
Philosopies or school of thoughts of criminal law (BAR 1996):
Decriminalization.
a. Classical or juristic.
The decriminalization of a criminal act makes the act no longer criminal. For
instance, R.A. No. 10158 decriminalizes vagrancy under Article 202 of the Revised 1. Basis of criminal liability – human free will.
Penal Code since vagrants as victims of poverty should be protected rather than 2. Purpose of the penalty – retribution, for the right of the State and/or
punished. In a similar way, RA No. 10655 which decriminalizes premature marriage the private offended party must be observed.
under Article 351 of the RPC for being discriminatory and antiquated. RA No. 10158 3. Imposable penalty – predetermined penalty for every crime the gravity
and RA No. 10655 shall be given a retroactive effect, for the reason that they are of which is directly proportionate to the crime committed.
favourable to the accused. 4. Emphasis of the law – on the offense.

Doctrinal application of the prospectivity rule:
a. The prospectivity rule applies to administrative rulings and circulars, and
to judicial decisions which though not laws, are evidence of what the laws
mean. Thus under Article 8 of the New Civil Code, judicial decisions
applying the laws or the Constitution form part of the legal system. Legis
interpretatio legis uim obtinet. This is especially true in the construction
and application of criminal laws, where it is necessary that the
punishability of an act be reasonably foreseen for the guidance of society.
(Co vs. CA, G.R. No. 100776, October 28, 1993)
Under the classical theory of which the penal code is mainly based, the basis
of criminal liability is human free will. Man is essentially a moral creature with an
absolutely free will to choose between good and evil. When he commits a felonious
or criminal act, the act is presumed to have been done voluntarily, i.e., with freedom,
intelligence and intent. Man therefore, should be adjudged or held accountable for
wrongful acts so long as free will appears unimpaired. (People vs. Genosa, G.R. No.
135981, September 29, 2000.)
Examples of law which are the products of Classical School of Thought: (1)
the Death Penalty Law, and (2) the Aggravating Circumstances.

b. Positivist or realistic.
b. Lex prospicit, non respicit. The law looks forward not backward. The
rationale against retroactivity is that a law usually derides rights which
1. Basis of criminal liability – the consideration that man is inherently
may have already become vested or impairs the obligations of contract,
good but because of his environment and upbringing he becomes
hence, unconstitutional. Prior to the statute’s nullification it must have
socially sick.
been in force and had to be complied with (doctrine on operative fact). It
2. Purpose of the penalty – corrective or curative to reform the offender.
would be to deprive the law of its quality of fairness and justice if there be
3. Determination of penalty – on an individual basis after considering his
no recognition of what had transpired prior to such adjudication.
circumstances.

4. Emphasis – on the actor.

c. In case of conflict between the mala prohibita doctrine and the
prospectivity rule in the adjudication of cases, the latter should prevail
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Characteristics of the positivist theory
1. That man is subdued occasionally by a strange and morbid
phenomenon which constrains him to do wrong, in spite of or contrary
to his volition;
2. That crime is essentially a social and natural prenomenon and as
such, it cannot be treated and checked by the application of abstract
principles of law and jurisprudence nor by the imposition of a
punishment, fixed ansd determined a priori; but rather through the
enforcement of individual measures in each particular case after a
thorough, personal and individual investigation conducted by a
competent body of psychiatrists and social scientists.
Examples of Law or provisions of law which are based on Positivist School of
Thought are: (1) The Indeterminate Sentence Law, (2) Probation law, (3) the
three-fold rule, (4) the rules on mitigation of crimes.
c. Eclectic (or mixed) combines the good features of both the classical and
the positivist theories. Ideally, the classical theory is applied to heinous
crimes, whereas, the positivist is made to work on economic and social
crimes.
A heinous crime is grievous, odious, and hateful offense which by reason of
its inherent, or manifest wickedness, viciousness, atrocity and perversity, is regarded
as seriously outrageous to the common standards or norms of decency and morality
in a just, civilized and orderly society.
d. Utilitarian or protective theory under which the primary function of
punishment in criminal law is to protect society from potential and actual
wrongdoers. The retributive aspect of penal laws should be directed
against them. The law should not be applied to further materialism and
opportunism. (Magno vs. CA, G.R. No. 96132, June 26, 1992)
The rule is, penal laws are construed strictly against the State and liberally in
favour of the accused. Whenever two interpretations of law or appreciation of
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evidence are possible, the exculpatory interpretation shall prevail, consistent with the
rule on presumption of innocence.
Under the equipoise rule, when the evidence of the prosecution and the
defense are equally balanced, the scale should be tilted in favour of the accused in
obedience to the constitutional presumption of innocence. (Ursua vs CA, G.R. No.
112170, April 10, 1996; Corpuz vs. people, G.R. No. 74259, February 14, 1991)
Where the State fails to meet the quantum of proof required to overcome the
constitutional presumption of innocence, the accused is entitled to acquittal, as a
matter of right regardless of the weakness or even the absence of his defense. For
any conviction must rest on the strength of the prosecution’s case and not on the
weakness of the defense. (Cosep vs. People, G.R. No. 110353, May 21, 1998.
CLASSIFICATION OF FELONIES
1. Formal felonies -- Those which are always consummated because the
offender cannot perform the act necessary for their execution without
consummating the offense. For instance physical injuries are punished as
to result, whether serious, less serious, or slight. The degree of injury
cannot be determined without first consummating the offense.
Accordingly, there is no crime of attempted or frustrated physical injuries.
IN the same manner, formal crimes such as libel, acts of lasciviousness,
slander, perjury, false testimony, and illegal possession of picklocks are
those which are consummated in one instant or by performance of a
single act of execution. They have no attempted or frustrated stage.
Example 1
Accused, without intent to kill, poked with a pointed stick to the eye of the
victim with intent to blind him. Since there was no intent to kill, clearly, his intention is
to commit serious physical injuries. However, the injuries inflicted in the eyes of the
victim were completely healed in 20 days. In this particular case, the accused is not
liable for consummated serious physical injuries because it did not cause blindness
to the victim. Neither is he liable for frustrated serious physical injuries since it is a
formal crime, it does not admit of sttempted or frustrated stage. The crime committed
is less serious physical injuries since the same require medical attendance for 10
days or more.
Example 2
Acts of lasciviousness – Accused hugged the victim and tried to touch her
breast. In the process, her dress from the collar to the waistline on the front part was
torn. However, she was able to get free and moved away. The accused desisted
from following her. The crime committed is not frustrated acts of lasciviousness. Acts
of lasciviousness are always consummated. (People v. Famularcano CA, 43 O.G.
1721. The act of the accused in hugging the victim with lewd design constitutes
consummated acts of lasciviousness. In the absence of lewd design, the accused
could be charged for unjust vexations.
Example 3
Coup d’ etat – Coup d’ etat is a formal crime. It has no frustrated (2005 BAR)
or attempted stage. Once the military, police or public officer made a swift attack
against facilities needed for the exercise and continued possession of power for the
purpose of seizing or diminishing state power, the crime is consummated. Actual
seizure or diminution of state power is not necessary for the consummation of the
crime. But prior to a swift attack the plotters of coup d’ etat can be held liable for
conspiracy to commit coup d’ etat. In other words, before the coup plotters could
have performed overt acts constituting the crime of coup etat, they had already
perpetrated the crime of conspiracy to commit coup etat.
2. Material felonies, -- Those which have various stages of execution, such
as attempted, frustrated and commsumated stages.
Examples: Homicide, Frustrated Homicide, and Attempted Homicide.
Murder, Frustrated Murder and Attempted Murder. Parricide, Frustrated
Parricide and Attempted Parricide. Estafa, Frustrated Estafa and
Attempted Estafa.
3. Crimes which have no frustrated stage, such as rape, because its
essence is carnal knowledge. So rape admits only of two (2) stage:
consummated Rape and Attempted Rape. Hence, even the slight
penetration of the female organ consummates the crime. (People vs.
9
Clopino, G.R. No. 110353, May 21, 1998) In a similar way, the crime of
theft also has no frustrated stage, hence, it has only two (2) stage,
namely: Consummated Theft and Attempted Theft. Likewise arson can
only be attempted or consummated, because the slightest burning of the
property consummates the crime of arson especially since the amount of
damage in the property has been deleted in the amendments to the law
on arson.
The crimes of direct bribery and corruption of public officials admit only of
two stages—attempted and consummated stages. They have no
frustrated stage. The rule is to have a consummated direct bribery, the
corruption of public officials must also be in consummated stage. If direct
bribery is only in the attempted stage, then there is no corresponding
crime of corruption of public officials. In the same manner, if the crime is
attempted corruption of public officials, there is no corresponding crime of
direct bribery.
The crime of adultery also admits of two stages - attempted and
consummated. It has no frustrated stage.
CRIMES MALA IN SE and MALA PROHIBITA
An act or omission may either be inherently evil (mala in se) or evil because
there is a law prohibiting the same (mala prohibita)
DISTINCTIONS
In mala in se:
1. Basis – moral state of the offender hence, good faith or lack of
criminal intent is a defense.
2. Modifying circumstances – taken into account in imposing the penalty
on the offender precisely because his moral trait is the basis of this
crime. Hence greater perversity deserves a higher penalty whereas
lesser depravity deserves mitigation.
3. Degree of participation – penalty is computed on the basis of whether
the malefactor is a principal offender, or merely an accomplice or
accessory.
 4. Stage of accomplishment – the penalty imposed depends on whether
the crime is consummated, frustrated, or attempted.
5. Moral turpitude – crimes mala in se generally involve moral turpitude
logically so for its basis is the moral state of the offender.
6. Law violated – generally, the Revised Penal Code.
In mala prohibita:
1. Basis – voluntariness, hence, good faith or lack of criminal intent is
not a defense, unless intent is an element of the crime such as in
Section 3(e) of R.A. 3019.
2. Modifying circumstances like mitigating and aggravating
circumstances are not considered because the law intends to
discourage the commission of the act specially prohibited. But this is
subject exception, which is when the special penal laws used the
nomenclature of penalties of the Revised Penal Code. In this case,
the Revised Penal Code applies in a suppletory character. (Article 19,
RPC)
3. Degree of participation – the penalty on the offenders is the same as
they are all deemed principals. However, there are some special
penal laws which penalize the participation of an accessory and
accomplishes,
4. Stage of accomplishment – violation of law is punished only when
accomplished or consummated because intent is inherent in
attempted or frustrated stage and intent is not relevant in crimes mala
prohibita. There are special penal laws which also penalized the
attempted stage in the execution of the crime.
5. Moral turpitude – not involved in crimes mala prohibita because the
act would not have been wrong if not for the prohibition by law.
6. Law violated – generally, special penal laws.
Effect of repeal of penal law on the accused:
a. Absolute or total repeal or express repeal – the act or omission is
decriminalized.
1. Pending case – dismissed whether the accused is habitual delinquent
or not.
10
2. Offender has been convicted and/or serving sentence released if he is
not a habitual delinquent or the law provides that detention is to
continue.
b. Partial or relative repeal, or implied repeal or repeal by re-enactment.
1. First law will govern if the accused is habitual delinquent or when the
favourable second law prohibits retroactivity.
2. Second law will govern if favorable to the offender who is not a
habitual delinquent or the law is silent as to its retroactivity.
As a general rule, an absolute repeal of a penal law has the effect of
divesting the court of its authority to punish a person charged with violation of the law
prior to its repeal and this is because an unqualified repeal of a penal law constitutes
a legislative act of rendering legal what had been previously declared as illegal, such
that the offense no longer exists and it is as if the person who committed it never did
so. There are, however, exceptions to the rule, as follows:
1. The inclusion of a saving clause in the repealing statute that
provides that the repeal shall have no effect on pending actions.
2. Where the repealing act re-enacts the former statute and punishes
the act previously penalized under the old law. In such instance,
the act committed before the re-enactment continues to be an
offense in the statute books and pending cases are not affected,
regardless of whether the new penalty to be imposed is more
favourable to the accused. (Benedicto vs. Court of Appeals, G.R.
No. 125359, September 4, 2001)
Article 1. Time when Act takes effect. – This Code shall take effect on the first
day of January, nineteen hundred and thirty-two.
The Revised Penal Code took effect on January 1, 1932, and since then it
has undergone several amendments and the latest of which is RA No. 10951.
Article 2 – Application of its provisions. – Except as provided in the treaties
and laws of preferential application, the provisions of this Code shall be
enforced not only within the Philippine Archipelago, including its atmosphere,
its interior waters and maritime zone, but also outside of its jurisdiction
against those who:
1. Should commit an offense while on the Philippine ship or airship;
2. Should forge or counterfeit any coin or currency note of the
Philippine Islands or obligations and securities issued by the
Government of the Philippine Islands;
3. Should be liable for acts connected with the introduction into these
Islands of the obligations and securities mentioned in the preceding
number;
4. While being public officers or employees, should commit an offense
in the exercise of their functions; or
5. Should commit any of the crimes against national security and the
law of nations, defined in Title One of Book Two of the Code.
Two applications of the Code:
a. Intra–territorial application – which is provided for in the first
paragraph of this Aricle states that the Philippine criminal law finds
application to all crime committed within the Philippine archipelago,
including its atmosphere, interior waters and maritime zone.
b. Extra-territorial – The Code may be given application even to those
crimes committed outside the Philippine territorial jurisdiction.
As mandated by above stated Article 1, excepted to the intra-territorial
jurisdiction of our criminal laws are (1) Treaties and (2) laws of preferential
application such as R.A. 75 on immunity of diplomatic representatives of foreign
countries prevail over the provisions of the Code. In the same context, under
international laws, sovereigns, heads of states and their official representatives enjoy
immunity from suits for crime committed within the territorial jurisdiction of the
Philippines.
Pursuant to the Vienna Convention on Diplomatic Relations the heads of
diplomatic missions are of three levels:
a. Ambassadors or nuncios accredited to the heads of State;
11
b. Envoys, ministers or internuncios accredited to the heads of
States; and
c. Charges d’ affairs accredited to the ministers of foreign affairs
Composing the staff of the (diplomatic) mission are the diplomatic staff, the
administrative staff and the technical and service staff. Only the heads of missions,
as well as members of the diplomatic staff, excluding the members of the
administrative, technical and service staff of the mission, are accorded diplomatic
rank. (Minucher vs. CA, G.R. No. 142396, February 11, 2003)
Only “diplomatic agents” are vested with blanket diplomatic immunity from
civil and criminal suits. The Convention defines “diplomatic agents” as the heads of
missions or members of the diplomatic staff, thus withholding the same privileges
from all others. Even consuls, who represent their respective states in concern of
commerce and navigation and perform certain administrative and notarial duties, do
not ordinarily enjoy the traditional diplomatic immunities and privileges accorded
diplomats, mainly for the reason that they are not charged with the duty of
representing their States in political matters. (Boado)
There are cases where our Criminal Law does not apply even if the crime is
committed by a person residing or sojourning in the Philippines. These constitute the
exceptions.
Under Article 14 of the Civil Code, penal laws shall be obligatory upon all who
live or sojourn in the Philippine territory. This is the generality principle.
1.Foreigner – The foreign citizenship of an offender does not exclude him from
operation of penal laws. The argument of accused that he did not incur criminal
liability because both he and the victim is Indonesian is not tenable. Regardless of
the crime committed, a foreign national is not immune from criminal prosecution for
violation of the Revised Penal Code and special penal laws, for the reason that
Philippine’s criminal laws are obligatory to a foreigner, who is living or sojourning in
the Philippine. Unless the case falls under the excepted cases, a foreigner who
violated the provisions of our criminal laws should be prosecuted here in the
Philippines.
Exceptions:
 Under Article 14 of the Civil Code, the generality principle is subject to
principles of:
1. Public international law
2. Treaty stipulation.
3. Preferential application and
4. Case law
2.Embassy
The authorities in criminal law is one in saying that the ground occupied by
US embassy is not in fact the territory of the USA to which the premises belong
through possession or ownership. Based on this principle, a person who committed a
crime within the premises of an embassy will be prosecuted under the law of the
Philippines because of the principle of territoriality. (Reagan v. Commission on
Internal Revenue, G.R. No. L – 26379, December 27, 1969) However, jurisdiction of
the Philippines over the embassy is limited or restricted by “the principles of
inviolability of diplomatic premises” which is a generally accepted principle of
International Law. A warrant of arrest cannot be served inside US Embassy without
waiver from US government of its right under the principle of inviolability.
A United States embassy remains the territory of the receiving state, and
does not constitute the territory of the United States.
According to CA Justice Coquia, the modern tendency among writers is
toward rejecting the fiction of extraterritoriality of diplomatice premises. In the Kent,
the British courts held that a crime committed in a foreign embassy is a crime
committed in the United Kingdom and the offender, if not protected by diplomatic
immunity, is liable to prosecution in the British courts. (International Law, Second
Edition, by Jeorge R. Coquia and Miriam Defensor Santiago, pp. 548-549) (Judge
Campanilla)
Excepted Cases
1.Principles of international law
12
As one of the excepted cases on the principle of generality, the Philippines
Penal laws are not obligatory to persons entitled to criminal immunity because of the
principles of international law. Accordingly, Heads of States, President, Prime
Ministers, Foreign Ministers or Secretaries are immune from criminal jurisdiction of
the receiving States. With respect, however, to consular officers, they enjoy immunity
from criminal prosecution only for acts committed in the performance or in the
exercise of official functions. Clear, therefore, there immunity does not cover the
crime of slander or reckless imprudence resulting in homicide for not being
function-related.
A Chinese diplomat, who killed another Chinese diplomat in Cebu, is immune
from criminal prosecution (The Vienna Convention on Diplomatic Relations). Unlike
consular officers, diplomat agents are vested with blanket diplomatic immunity from
civil and criminal suits. (Minucher v. Hon. CA, G.R. No. 142396, Feburary 11, 2003).
Unlike Ministers, Presidents, Ambassadors, and Chief of Mission, a Commercial
Attache is not a diplomatic agent. Hence, he is not exempt from the generality rule of
criminal law. (Bar Exam 2011). French diplomat stationed in the Philippines is
immune from criminal prosecution for reckless imprudence resulting in homicide.
(BAR Exam 2014). Charge d’affaires is immune from criminal prosecution for multiple
frustrated and attempted murders (2016 Bar Exam) (Judge Campanilla)
2.Laws of preferential application
(a) Under the principle of laws of preferential application, Members of Congress are
NOT liable for libel or slander for any speech in Congress or in any committee
thereof (Sec. 11, Art. VI, 1987 Constitution)
(b).Another example on the application of laws of preferential application is the
provision of Article 349 of the Revised Penal Code on bigamy, which is not obligatory
to Muslims married in accordance with the Muslim Laws because PD No. 1083 (The
Code of Muslim Personal Laws). Under PD No. 1083, penal laws relative to the
crime of bigamy shall not apply to a person married under Muslim Laws where the
requirements set therein are met. (Marbella-Bobis v. Bobis, G.R. No. 138509, July
31, 2000). PD No. 1083 is a law of preferential application.
However, if the marriage is not solemnized in accordance with Muslim Laws, the
accused cannot claim criminal exemption from liability for bigamy on the basis of his
religious belief as a Muslim because of the generality principle. (Abubakar v. Arca,
G.R. No. L- 14916, December 29, 1962). PD No. 1083 is not applicable since the
marriage was not made in accordance with the Muslim Law. (Nollora, Jr., v. People,
G.R. No. 191425, September 7, 2011)
(c) Within the context of the so called of laws of preferential application, it mandates
that any ambassador or public minister of any foreign State, authorized and received
as such by the President, or any domestic or domestic servant of any such
ambassador or minister are exempt from arrest and imprisonment and whose
property are exempt from distraint, seizure attachment. (R.A. 75).
3.Case law
In one case, the Supreme Court ruled that penal laws are not obligatory to
the President by reasons of presidential immunity by case law. The President of the
Philippines is entitled to immunity from suit subject to the following conditions: (1) the
immunity has been asserted; (2) during the period of his incumbency and tenure; and
(3) the act constituting the crime is committed in the performance of his duties.
Presidential immunity will assure the exercise of presidential duties and functions
free from any hindrance or distraction, considering that the Chief Executive is a job
that demands undivided attention. (Estrada v. Desierto, G.R. No. 146710- 15, March
2, 2001).
THE EXCEPTIONS under the extra-territorial jurisdiction of our criminal laws:
First exception – crime committed within a Philippine ship/airship:
(a) This is subject to the limitation that the vessel is not within the territorial
jurisdiction of another country, otherwise, the latter’s laws will govern
because penal laws are primarily territorial. But if the foreign country did
not assume jurisdiction, the Philippines will have jurisdiction. If the crime
was committed on board a ship of Philippine registry, while it was on the
high seas, then it is the Philippine court that shall have jurisdiction.
(b) The country of registry determines the nationality of the ship or airship,
not its ownership. Thus a Filipino owned ship registered in a foreign
country is a foreign ship.
13
There are two rules as to jurisdiction over crimes committed aboard merchant
vessels while in the territorial waters of another country.
FRENCH RULE recognizes flag or nationality of vessel. The country of
registry will have jurisdiction but when the crime violated the peace and order of the
host country such as drug-trafficking, homicide or robbery, the host country will have
jurisdiction.
In other words, such crimes are not triable in the courts of that country, unless
their commission affects the peace and security of the territory or the safety of the
state is endangered.
For example, a vessel of Philippines registry was within the territory of China,
and a labor disputed, like non-payment of the minimum wage or overtime pay,
occurred between the management and the crew of the vessel, in the resolution of
the dispute should be governed by the Philippine labor laws.
However, if a crime of homicide, or violation of danagerous drugs laws, was
committed on board the vessel, which definitely affected the peace and order of the
host country, then the accused should be prosecuted under the criminal law of
China.
ENGLISH RULE adheres strictly to the territoriality principle or situs of the
crime: The country of registry will have jurisdiction only where the crime relates to
internal management of the vessel. Say, the crime of homicide or murder, was
perpetrated on board a vessel of Phlippine registry while it was within the territory of
China, then it is the China criminal laws that should governed in the prosecution of
the accused.
Simply put, such crimes of homicide and murder are triable in that country
unless they merely affect things within the vessel or they refer to the internal
management thereof, like labor cases of non-payment of overtime pay,
non-compliance with the minimum wage law.
When a Philippine merchant ship is in the high seas, it in effect is an
extension of Philippine territory because the crime shall be subject to Philippine
courts as the high seas is not within the jurisdiction of any country.
 War vessels and official vessel of heads of States such as Ang Pangulo are Crimes committed at or within the premises of the Philippine Embassy in
extensions of the country’s jurisdiction of any country. foreign countries, on the theory that Philippine Embassies are considered extension
of Philippine territory. (See previous discussion on this subject)
Example 1
Fourth exception: While being public officers or employees, should commit an
After two Filipino government officials returned to the Philippines from Las
offense in the exercise of their functions; or
Vegas, Nevada, where they watched a boxing match, one of them discovered that
the other stole his Rolex watch while they were still in Las Vegas. Article 2 of this A public officer/employee who commits a crime related to the exercise of his
Code cannot be applied because the theft was not committed in a Philippine ship or office while in the foreign territory may prosecuted under the Philippine criminal laws.
airship, did not involve forgery or counterfeiting of any coin or currency note of the Without this relation to his office, they are acting in their private capacity and hence
Philippine, did not introduce into the Philippines forged obligations and securities, the bound by the law of the host country. Hence, a public official who committed the
offender did not act in the exercise of his functions, and the offense committed was crime of theft or robbery in the foreign country could not be prosecuted in the
not against national security and the law of nations. (Judge Patricio) Philippines for the simple reason that the crime he committed is not in the
performance of his official function. However, if the crimes perpetrated are
Example 2
malversation, Violation of Graft and Corrupt Practices Act, (RA No. 3019), or plunder,
A Justice of the Philippine Supreme Court brought his confidential secretary the accused could be prosecuted in the Philippines on the theory that the crimes he
to Washington D.C. to assist him in recording the proceedings during the Conference committed are related to the performance of his public or official functions.
of World Jurists thereat. The secretary, however, falsified the report of another
Fifth exception: Should commit any of the crimes against national security and
Filipino Supreme Court Justice who also attended the said conference. After the
the law of nations, defined in Title One of Book Two of the Code.
secretary returned to the Philippines, she could not be prosecuted and punished for
falsification because she did not commit the offense in the exercise of her functions. What are the crimes against national security?
(Patricio)
a. Treason
Second and third exceptions: b. Conspiracy and proposal to commit treason
c. Misprision of treason
a. Forgery is committed by giving to a treasury or bank note any
d. Espionage
instrument payable to bearer or to order the appearance of a true
genuine document or by erasing, substituting, counterfeiting or What are the crimes against the law of nations?
altering by any means the figures, letters, words or signs
1. Inciting to war and giving motives for reprisal
contained therein. (Art. 169)
2. Violation of neutrality
3. Correspondence with hostile country
b. If forgery was committed abroad or on the foreign country, it must
4. Flight to enemy country
refer only to Philippine coin, currency note or obligations and
5. Piracy and mutiny
securities. The special mention of U.S. notes and currencies in the
Code should be deemed as not written for the Philippines is no
longer a commonwealth of the U.S.

14
 Title 1 of Book 2 on crimes against national security and the law of nations
which covers Treason, Espionage, Provoking War, and Disloyalty in Case of War,
Piracy and Mutiny, but not rebellion.
Crimes against the National Security
"ART. 114. Treason.- Any Filipino citizen who levies war against the Philippines or
adheres to her enemies, giving them aid or comfort within the Philippines or
elsewhere, shall be punished by reclusion perpetua to death and shall pay a fine not
to exceed Four million pesos (P4, 000,000).
"No person shall be convicted of treason unless on the testimony of two (2)
witnesses at least to the same over act or on confession of the accused in open
court.
"Likewise, an alien, residing in the Philippines, who commits acts of treason as
defined in paragraph 1 of this article shall be punished by reclusion temporal to death
and shall pay a fine not to exceed Four million pesos (P4, 000,000)."
"ART. 115. Conspiracy and proposal to commit treason; Penalty. - The conspiracy or
proposal to commit the crime of treason shall be punished respectively, by prision
mayor and a fine not exceeding Two million pesos (P2, 000, 000), and prision
correccional and a fine not exceeding One million pesos (P1, 000, 000)
ARTICLE 116. Misprision of Treason. – Every person owing allegiance to the
Government of the Philippines Islands, without being a foreigner, and having
knowledge of any conspiracy against them, who conceals or does not disclose and
make known the same, as soon as possible, to the governor or fiscal of the province,
or the mayor or fiscal of the city in which he resides, as the case may be, shall be
punished as an accessory to the crime of treason.
Article 117. Espionage. - The penalty of prision correccional shall be inflicted upon
any person who:
1. Without authority therefor, enters a warship, fort, or naval or military
establishment or reservation to obtain any information, plans, photographs, or
15
other data of a confidential nature relative to the defense of the Philippine
Archipelago; or
2. Being in possession, by reason of the public office he holds, of the articles,
data, or information referred to in the preceding paragraph, discloses their
contents to a representative of a foreign nation.
The penalty next higher in degree shall be imposed if the offender be a public officer
or employee.
Crimes against the Laws of Nations
Article 118. Inciting to war or giving motives for reprisals. - The penalty of reclusion
temporal shall be imposed upon any public officer or employee, and that of prision
mayor upon any private individual, who, by unlawful or unauthorized acts provokes
or gives occasion for a war involving or liable to involve the Philippine Islands or
exposes Filipino citizens to reprisals on their persons or property.
Article 119. Violation of neutrality. - The penalty of prision correccional shall be
inflicted upon anyone who, on the occasion of a war in which the Government is not
involved, violates any regulation issued by competent authority for the purpose of
enforcing neutrality.
Article 120. Correspondence with hostile country. - Any person who in time of war,
shall have correspondence with an enemy country or territory occupied by enemy
troops shall be punished:
1. By prision correccional, if the correspondence has been prohibited by the
Government;
2. By prision mayor, if such correspondence be carried on in ciphers or
conventional signs; and
3. By reclusion temporal, if notice or information be given thereby which might
be useful to the enemy. If the offender intended to aid the enemy by giving
such notice or information, he shall suffer the penalty of reclusion temporal to
death.
Article 121. Flight to enemy country. - The penalty of arresto mayor shall be inflicted
upon any person who, owing allegiance to the Government, attempts to flee or go to
an enemy country when prohibited by competent authority.
Article 122- Piracy in general and mutiny on the high seas or in Philippine waters. –
The penalty of reclusion perpetua shall be inflicted upon any person who, on the high
seas or in Philippine waters, shall attack or seize a vessel or, not being a member of
its complement nor a passenger, shall seize the whole or part of the cargo of said
vessel, its equipment, or personal belongings of its complement or passengers.
The same penalty shall be inflicted in case of mutiny on the high seas or in
Philippine waters. (as amended by Sec. 3, R.A. No. 7659).
When rebellion is committed abroad, the Philippine courts will not acquire
jurisdiction because rebellion is a crime against public order.
See: Section 58. Extra Territorial Application of this Act (R.A. No. 9372 or The
Human Security Act of 2007)
BAR 1994 on territoriality
Abe married to Liza, contracted another marriage with Connie in Singapore.
Thereafter, Abe and Connie returned to the Philippines and lived as husband and
wife in the hometown of Abe in Calamba, Laguna. (1) Can Abe be prosecuted for
bigamy?
Suggested answer
No. Abe may not be prosecuted for bigamy since the bigamous marriage was
contracted or solemnized in Singapore, hence such violation is not one of those
where the Revised Penal Code, under Art. 2 thereof, may be applied extraterritorially.
The general rule on territoriality of criminal law governs the situation.
BAR 2000 - Territoriality: jurisdiction over the vessel
After drinking one (1) case of San Miguel beer and taking two plates of
“pulutan,” Binoy, a Filipino seaman, stabbed to death Sio My, a Singaporean
seaman, aboard M/V “Princess of the Pacific,” an overseas vessel which was sailing
in the South China Sea. The vessel, although Panamanian registered, is owned by
Lucio Sy, a rich Filipino businessman. When M/V “Princess of the Pacific” reached a
16
Philippine Port at Cebu City, the Captain of the vessel turned over the assailant
Binoy to the Philippine authorities. An information for homicide was filed against
Binoy in the Regional Trial Court of Cebu City. He moved to quash the information for
lack of jurisdiction. If you were the Judge, would you grant the motion?
Suggested answer
Yes, the Motion to Quash the Information should be granted. The Philippine
court has no jurisdiction over the crime since it was committed on the high seas or
outside of Philippine territory and on board a vessel not registered or licensed in the
Philippines (US v. Fowler, 1 Phil 614).
It is the registration of the vessel in accordance with the laws of the
Philippines, not the citizenship of her owner, which makes it a Philippine ship. The
vessel being registered in Panama, the laws of Panama govern while it is in the high
seas.
Article 3. Definition, -- Acts and omissions punishable by law are felonies
(delitos) (BAR 2015)
Felonies are committed not only by means of deceit (dolo) but also by means
of fault (culpa).
There is deceit when the act is performed with deliberate intent; and there is
fault when the wrongful act results from imprudence, negligence, lack of
foresight, or lack of skill.
Felonies defined
Felonies are defined as acts and omissions punishable by law (Revised
Penal Code or Special Penal Laws) (delitos)
Classification of crime as to commission
1. Dolo or felonies committed with deliberate intent;
2. Culpa or those committed by means of fault.
Felony refers exclusively to acts or omissions punished under the Revised
Penal Code. Violations of special laws are generally referred to as offenses. Crimes
under the RPC are called felonies although it is not wrong to call felonies as offenses
also. On the other hand, crimes penalized by Special Penal Laws are termed
offenses but they can be called interchangeably as felonies.
Felonies in general have the elements comprising either dolo or culpa
whereas specific felonies under Book II of the Code have their own specific elements
which are alleged in the Information. The elements under Article 3 pertain to the
actor. The elements of specific felonies relate to the act or acts constituting the
felony, which are provided for under Article 114 to Arricle 365 of the Revised Penal
Code.
The relationship between a felony and an offense.
A felony which is defined and penalized by the Revised Pneal Code does not
absorb nor is absorbed by an offense defined and penalized by special penal laws. It
simply means that more than one crime should be charged against the accused if an
act commited violates both the Revised Penal Code and a Special Penal Laws.
Examples
1) Violation of BP 22 and estafa.
2) Illegal recruitment, trafficking in Person and estafa.
3) RA 9745 (torture) and the resulting murder, homicide, physical injuries.
There are, however, Special Penal Law which allows for the absorption of felony,
hence only one crime is committed.
Examples
(1) RA 9372 (Human Security Act) absorbs the predicate crimes like
arson, murder, kidnapping. (No longer applicable under the
amendatory law)
(2) Plunder absorb the predicate crimes of malversation or Violation of
Anti Graft and Practices Act.
The rule is offenses punishable by special penal laws cannot be complexed
with crime penalized by the Revised Penal Code for the reason that Article 48 of the
Revised Penal Code does not allow complexing of felony with offense (People v.
Abay, February 24, 2009).
But special complex crime is possible for offenses and felonies like
carnapping with homicide for the carnapping law allows it, robbery with homicide, as
well as kidnapping with homicide.
INTENT
Intent has been defined as the use of a particular means to effect the desired
result. For instance, the use of a lethal weapon would show the criminal intent to kill
although death did not result.
Intent is a mental state thus the need to determine it by the means used. This
intent is demonstrated by the overt acts of a person.
In the crime of homicide, for example, intent to kill is presumed in the
following cases:
1. By the weapon used.
2. By the location of the injury sustained by the victim.
3. By the number of wounds inflicted on the offended party.
As a general rule, criminal intent is presumed from the voluntary commission
of an unlawful act. (Abdulla vs. People, G.R. No. 150129, April 6, 2005) Thus, when
the victim dies, intent to kill is conclusively presumed from the act of killing. (People
vs Delim, G.R. No. 142773, January 28, 2003) But where the victim survives, intent
to kill becomes a specific criminal intent which cannot be presumed but must be
proved. In other words when the act is equivocal it could result to variant crimes such
as physical injuries vis-à-vis attempted/frustrated homicide; acts of lasciviousness vs.
attempted rape; unjust vexation vs. slander by deed, etc. In these cases, specific
criminal intent cannot be presumed but must be established.
Instances when the offender can be criminally liable if there is no criminal
intent
a. Felonies committed by culpa, and
b. Offenses mala prohibita.
c. Violation of city, municipal or provincial ordinances
Illustrations of a culpa resulting to homicide are:

17
(1) Exhibiting a loaded revolver to a friend who was killed by the accidental discharge
brought about by negligent handling;
(2) Discharging a firearm from the window of one’s house and killing a neighbour
who just at the moment leaned over the balcony front;
(3) Where the defendant, to stop a fist fight, fired his .45 cal. Twice in the air, and, as
the bout continued, he fired another shot at the ground, but the bullet ricocheted and
hit a bystander who died soon thereafter. (People vs. Belbes, G.R. No. 124670, June
21, 2000)
MOTIVE
On the other hand, motive is defined as the moving power or force (such as
vengeance, grudge or resentment) which impels a person to a desired result.
Generally, motive is immaterial in determining criminal liability, except:
a. When the act brings about various crimes, e.g.., kidnapping or
robbery (People vs. Puno, G.R. No. 97471, February 17, 1993) or
trespass to dwelling,
b. There is doubt whether the accused committed the crime, or the
identity of the accused is doubtful; and
c. The evidence on the commission of the crime is purely circumstantial.
Where the identity of the assailant is in dispute, motive becomes relevant,
and when motive is supported with sufficient evidence for a conclusion of guilt, a
conviction is sustainable. (People vs. macoy, G.R. Nos. 96649-50, July 1, 1997)
Say for instance, in the crime of homicide, if the assailant is unidentified, then
the determination of motive is necessary. Who would be benefited by the death of
the victim? He could possibly be the perpetrator. But it should be remembered that
motive alone would not be sufficient to bring about the conviction of the accused
beyond the shadow of doubt.
In Article 3, culpa is a mode of committing a crime hence killing, for instance,
is denominated homicide through reckless imprudence. In Article 365, culpa itself is
the crime punished, thus the killing is denominated reckless imprudence resulting to
homicide.
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There is no attempted or frustrated culpa because intent is inherent in the
attempted or frustrated stage, and in culpa, there is no intent.
Intelligence
As understood in criminal law, intelligence means the capacity to understand
what is right and what is wrong. Discernment is relevant to intelligence, not to intent.
It does not mean though, that when a person acted with discernment, he intends the
crime or the wrong done. (People vs. Cordova, G.R. Nos. 83373-74, July 5, 1993)
Intelligence is an element of both dolo and culpa, thus, whether the resulting felony is
intentional or culpable, if there was no discernment on the part of the accused, there
is no offense whether dolo or culpa. The presence of discernment is essential only
when the accused is a minor, over 15 but below 18 years of age. When the accused
is no longer a minor, discernment is irrelevant.
Intelligence could be either completely lacking as in insanity or imbecility and
minority in which case, the offender is exempt from criminal liability. Or it could
merely be diminished as in the case of schizophrenia or passion and obfuscation, in
which case it is merely mitigating.
Article 4. Criminal liability. – Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the wrongful act done
be different from that which he intended.
2. By any person performing an act which would be an offense against
persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or ineffectual
means.
Criminal Liability
It has been observed the above provision is the epicentre or the ground zero
of our criminal law, as it deals on how criminal liability may be incurred by a
malefactor.
How criminal liability may be incurred?
Criminal liability shall be incurred:
1.By any person perpetrating a felony. done be different from that which he intended, and (3) those who commits impossible
crime.
Examples
There are two clauses in no. 1 of this article:
(a) A person who took and carried away personal property belonging to
another and without the consent of the latter, has committed the crime of a. “By any person committing a felony (delito)” referring to both dolo and
theft. culpa. Note that the article specifically included in parenthesis the
(b) A person who shot another resulting to his death is liable for the crime of word delito.
homicide or murder.
b. “Although the wrongful act done be different from that which he
intended,” referring to dolo because of the presence of intent (note the
2.By any person committing a felony (delito) although the wrongful act done be word “intended”).
different from that which he intended.
The elements in the SECOND clause are:
Examples:
1. An intentional felony is committed.
(a) A person who boxed another, and which made the latter to run away, and 2. The wrong done is the direct, natural, and logical consequence of
the only escape from harm’s way is for him to jump into the river, and the felony committed even though different from that intended.
since he does not know how to swim, got drown, and resulted to his
Hereinbelow are some factors which affect criminal intent and
death, has committed the crime of homicide.
correspondingly the criminal liability of a person:
(b) The accused chased the victim with a bolo. Fearing for his life, the victim
ran away and as he crossed the street he was hit by a speeding truck a. Mistake of fact;
which resulted to his death. The accused may be held liable for the crime b. Aberratio ictus or mistake in the victim of the blow;
of homicide.
c. Error in personae or mistake in identity;
3. By any person performing an act which would be an offense against persons or
d. Praeter intentionem (so grave a wrong caused than that
property, were it not for the inherent impossibility of its accomplishment or on
intended); and
account of the employment of inadequate or ineffectual means. This is known as
“impossible crime.” e. Proximate cause (the cause of the cause is the cause of the
evil caused).
Distinction must be made between Article 3 and Article 4 of the Revised
Penal Code. Article 3 deals with how a felony is committed, while Article 4 provides (a) Mistake of fact is an absolutory cause for had the facts been true to the
for who commits a felony. belief of the offender, the act he did can be justified and will negative
criminal liability (ignorantia factiexcusat) as the element of criminal intent
There are two kinds of offenders here: those who commit a felony, whether by
is absent. Thus, mistake of fact is relevant only in dolo, hence, if the
dolo or culpa, and those who commit an impossible crime. But a closer look on this
offender is negligent in ascertaining the true state of facts, he may be free
article would show that there are actually three (3) offenders here, to wit: (1) those
from dolo but not from culpa. Mistake of fact refers to the situation itself
who commits a felony, (2) those who commits a felony although the wrongful act

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 where criminal intent is lacking; it is different from mistake in the identity Intent to kill – In aberration ictus, there at least two victims, (1) the intended
of the victim because here criminal intent is present. victim and (2) the third person who was hit by reason of mistake of blow. Even
though there is intent to kill the target victim, the court should still make an
Example:
assessment if there is intent to kill the third person, who was hit by reason of
In U.S. vs. Ah Chong (15 Phil 488), had the facts been as Ah Chong believed aberration ictus.
them to be, he would have been justified in killing the intruder under Article 11,
If the third person died, intent to kill is conclusively presumed. Hence, the
paragraph 1, of the Revised Penal Code.
crime committed against third person, is homicide or murder. (People v. Adriano.
(b) In aberration ictus or error in the victim of the blow the offender intends G.R. No. 205228, July 15, 2015).
the injury on one person but the harm fell on another. There are three
If the third person merely suffered injuries, and there is intent to kill, the crime
persons involved: (1) the offender, (2) the intended victim and (3) the
committed is attempted or frustrated homicide or murder. Intent to kill the third
actual victim. Consequently, the act may result in a complex crime under
person can be established if the accused is aware of the possibility of hitting others
Article 48 of the RPC or in two felonies, although there is just a single
in the process of killing the target victim. Such awareness is a circumstantial
intent. Thus, aberration ictus may result to a lesser criminal liability to the
evidence of intent to kill the third person.
offender. (BAR 2015)
If the third person merely suffered injuries, and there is no intent to kill, the
Non-felonious act – If the act, which caused injuries or death to a third person
crime committed against him is merely physical injuries. The following circumstances
by reason of mistake of blow, is not an intentional felony, Article 4 on aberration ictus
negate intent to kill: (1) the accused is not aware of the presence of the third person
shall not apply. Committing an act in self-defense, or in the exercise of right to
or there is no showing of such awareness; (2) the victim was hiding; or (3) the
defend possession of property or causing death or injuries under exceptional
accused did not kill the third person despite opportunity to do so. (Judge Campanilla)
circumstance is not an intentional felony. (Judge Campanilla)
© Error in personae or mistake in identity involves only one offended party
In committing such non-felonious act, the perpetrator is not liable for the
but the offender committed a mistake in ascertaining the identity of the victim. It
injuries or death of the third person, who was hit by reason of mistake of blow. Article
applies only in a situation where there is a difference in the complexion of the crime
4 is not applicable because the perpetrator is not committing an intentional felony. He
committed.
is exempt from criminal liability because of the circumstance of accident. But if the
perpetrator is reckless in committing the non-felonious act, he can be held liable for For example, the accused intended to kill his mortal enemy and in so doing,
reckless imprudence resulting in homicide or physical injuries. (People v. Abarca, he hid himself in a dark alley and when a man approached resembling his mortal
G.R. No. 74433, September 14, 1987). enemy, he shot that man but it turned out that the victim was his father. In this case,
he would be prosecuted for the crime of parricide and in the event he would be
Example:
convicted, he would be penalized for the crime of homicide or reclusion temporal.
X prevented A from having a bloody encounter with his father. B tried to (Art. 59 of the RPC)
remove the hands of X, who was holding A. X pulled the hands of B causing her to
The effect of error in personae depends upon whether the intended crime and
fall over C, her baby. Preventing A from having a bloody encounter with his father
actual crime committed are:
and pulling the hands of B are not intentional felonies. X is just exercising his right to
defend his father. Hence, X is not criminally liable for the death of the baby.

20
 a. Of different gravity, shall apply the lower penalty between the
intended and the actual felony committed shall be imposed.
Example: if the intended crime is homicide punishable by
reclusion temporal but parricide was committed penalized by
reclusion perpetua, or vice-versa, the penalty to be imposed
upon the accused is the penalty for homicide, which is the
lower penalty. In effect error in personae is extenuating
circumstance.
b. Of the same gravity or severity, the penalty is not mitigated.
Example: if the intended crime is homicide but on a wrong
victim committed is also homicide. The mistake in the identity
of the victim carries the same gravity as when the accused
zeroes in on his intended victim. The main reason behind this
conclusion is that the accused had acted with such a disregard
for the life of the victim without checking the latter’s identity as
to place himself on the same legal plain as one who kills
another wilfully, unlawfully and feloniously. (People vs. Pinto,
G.R. No. 39519, November 21, 1991)
(d)In praeter intentionem, the injury is in the intended victim but the resulting
consequence is much more grave than intended. It is a mitigating circumstance
under Art. 13, No. 3 of the RPC but if the means employed in the commission of
the crime would logically and naturally bring about the actual felony committed,
praeter intentionem will not be appreciated. The applicable rule is the “proximate
cause.”
It does not apply to culpa; “intentionem” denotes intent.
The mitigating circumstance of lack of intent to commit so grave a wrong as
that committed should be appreciated where the accused had no intent to kill but
only to inflict injuries when he attacked the victim. (People vs. Flores, infra.)
Example 1
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A, a land owner, surprised youngsters in the act of stealing some fruits in his
orchard. He threatened to spank them if they would not come down. Out of fear, all of
them jumped from the tree. As a result thereof, they suffered serious physical
injuries. A is not criminally liable. Threat to spank them is not a felony. A was just
exercising his right of self-help under Article 429 of the Civil Code; threat to spank is
reasonable and necessary means to repel invasion of his property; hence, he is not
criminally responsible for any direct, natural and logical consequences thereof (Bar
1968) (Judge Campanilla)
Example 2
A landowner surprised a youngster in the act of stealing some fruits in his
orchard. To scare the intruder, he fired a shotgun aiming at the foliage of a cherry
tree. The shot scattered and a pellet injured the boy, who was standing under the
tree. Accused is not liable for physical injuries becaue he is merely exercising his
right of self-help, But he is liable for reckless imprudence resulting in physical
injuries. That was reckless negligence, the Spanish Supreme Court decided. (Judge
Campanilla)
Example 3
After the victim was stabbed, the accused assisted the chief actor in throwing
the dead body into the well not knowing that the victim is still alive. Thereafter, the
victim died due to drowning. Concealing the body of the crime to prevent its
discovery in an intentional felony committed by an accessory. Since death is the
direct, natural and logical consequence of such felonious act of hiding the body, the
accused is responsible as principal in the crime of homicide. He shall incur criminal
liability for homicide committed by a principal although this criminal participation as
principal is different from his intended participation as an accessory. (People v.
Ortega, Jr., G.R. No. 116736, July 24, 1997).
Example 4
The accused punched his pregnant wife. This is physical injuries. If as a
consequence, she and her unborn baby died, the accused shall incur criminal liability
for compound crime of parricide with unintentional abortion (People v. Salufrania,
G.R. No. L- 50884, March 30, 1988) with the mitigating circumstance of praeter
intentionem, although this crime is different from physical injuries which he intended
to commit. (1994 BAR)
Example 5
If a person in committing an intentional felony creates in the mind of the
victim an immediate sense of danger which causes such person to try to escape, and
in so doing he injures himself, the person who creates such a state of mind is
responsible for the resulting injuries. Such intentional felony that creates a sense of
danger can be threat. In sum, he shall incur criminal liability for the death of or
injuries sustained by the victim although this consequent crime is different from
threat, murder of another victim, or rape which he intended to commit.
Distinction between aberration and error in personae
In aberratio ictus and error in personae, the victim, who is killed or injured by
the accused, is different from that intended victim. In aberration ictus, the unintended
victim was hit due to mistake of blow, while in error in personae, the unintended
victim was hit due to mistake of identity. In error in personae, there is only one victim;
while in aberration ictus, there are at least two victims. The imposition of penalty in
error in personae is generally subject to Article 49 of the RPC, while aberration ictus
is subject to Article 48. (1994 BAR).
(e) Proximate cause is that cause which, in its natural and continuous
sequence, unbroken by an efficient intervening cause, produces the injury and
without which the result would not have occurred. Proximate cause is to be
considered generally in determining whether the consequence of the act should also
be borne by the offender.
Example 1
If the victim died due to tetanus of which he was infected at the precise
moment when the accused inflicted injuries upon him or immediately therafter, the
crime committed is homicide. The infliction of injuries is the proximate cause of his
death. (People v. Cornel, G.R. No. L – 204, May 16, 1947)
Example 2
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If the victim died due to tetanus of which he was infected several days after
the accused inflicted injuries upon him, the crime committed is physical injuries. The
accused is not liable for homicide because tetanus is an efficient intervening cause.
Thus, the proximate cause of the death of the victim is not the infliction of injuries.
In fine, in order to hold a person liable for the death of another, the
evidence must establish beyond reasonable doubt that accused’s criminal act was
the proximate cause of such death. Such proof is especially crucial when there are
several possible causes of death. Even assuming that the victim was afflicted with
food poisoning, accused may still be held liable for her death if the prosecution had
presented proof that accused’s act of beating his wife was the efficient or proximate
cause of death, or had accelerated her death.
Efficient intervening cause– The direct relation between intentional felony and
death may be broken by efficient intervening cause or an active force which is either
a distinct act or fact absolutely foreign from the felonious act of the offender.
Example 1
X and Y had a heated altercation and then exchanged blows. X pulled out a
knife and stabbed Y in the abdomen. Y ran away but before he could reach his
house, he was struck by lightning and died. X should not be held liable for homicide
since the lightning is an efficient intervening cause that broke the relation between
the felonious act and death. However, X is liable for physical injuries for the stab
wound suffered by Y. (1979 BAR)
Example 2
The perceived delay in giving medical treatment does not break at all the
causal connection between the felonious act of the offender and the injuries
sustained by the victim. It does not constitute an efficient intervening cause since the
victim’s death is still due to the injuries inflicted by the offender, for which the latter is
criminally responsible. (People vs. Acuram. G.R. No. 117954, April 27, 2000)
BAR 2005 – Felonious act of scaring
Bell saw Gaston stealing the prized cock of a neighbour and reported him
to the police. Thereafter, Gaston, while driving a car, saw Belle crossing the street.
Incensed that Belle reported him, Gaston decided to scare her by trying to make it
appear that he was about to run her over. He revved the engine of his car and drove
towards her but he applied the brakes. Since the road was slippery at that time, the
vehicle skidded and hit Belle causing her death. Was Gaston criminally liable? What
is the liability of Gaston? Why?
Suggested answer
Yes, Gaston is liable for Belle’s death because by his acts of revving the
engine of his car and driving towards Belle is felonious, and such felonious act was
the proximate cause of the vehicle to skid and hit Belle, resulting in the latter’s death.
Stated otherwise, the death of Belle was the direct, natural and logical consequence
of Gaston’s felonious act.
BAR 1996 – Proximate cause
Vicente hacked Anacleto with a bolo but the latter was able to parry it with
his hand, causing upon him a two-inch wound on his right palm. Vicente was not able
to hack Anacleto further because three policemen arrived and threatened to shoot
Vicente if he did not drop his bolo. Vicente was accordingly charged by the police at
the prosecutor’s office for attempted homicide. Twenty-five days later, while the
preliminary investigation was in progress, Anacleto was rushed to the hospital
because of symptoms of tetanus infection on the two-inch wound inflicted by Vicente.
Anacleto died the following day. Can Vicente be eventually charged with homicide for
the death of Anacleto? Explain.
Suggested answer
Yes, Vicente may be charged of homicide for the death of Anacleto, unless
the tetanus infection which developed twenty five days later, was brought about by
an efficient supervening cause. Vicente’s felonious act of causing a two-inch wound
on Anacleto’s right palm may still be regarded as the proximate cause of the latter’s
death because without such wound, no tetanus infection could develop from the
victim’s right palm, and without such tetanus infection, the victim would not have died
with it.
BAR 2003 – Felonious cause – immediate cause of death
The conduct of wife A aroused the ire of her husband B. Incensed with anger
almost beyond his control, B could not help but inflict physical injuries on A. Moments
23
after B started hitting A with his fists, A suddenly complained of severe chest pains.
B, realizing that A was indeed in serious trouble, immediately brought her to the
hospital. Despite efforts to alleviate A’s pains, she died of heart attack. It turned out
that she had been suffering from a lingering heart ailment. What crime, if any, could
B be held guilty? Explain.
Suggested answer
B could be held liable for parricide because his act of hitting his wife with
fists blows and therewith inflicting physical injuries on her, is felonious. A person
committing a felonious act incurs criminal liability although the wrongful consequence
is different from what he intended. (Art. 4, par. 1, RPC).
Although A died of heart attack, the said attack was generated by B’s
felonious act of hitting her with his fists. Such felonious act was the immediate cause
of the heart attack, having materially contributed to and hastened A’s death. Even
though B may have acted without intent to kill his wife, lack of such intent is of no
moment when the victim dies. However, B may be given the mitigating circumstance
of having acted without intention to commit so grave a wrong as that committed (Art.
13, par. 3, RPC).
BAR 1999 – Proximate cause
During the robbery in a dwelling house, one of the culprits happened to fire
his gun upward in the ceiling without meaning to kill anyone. The owner of the house
was hiding thereat was hit and killed as a result. The defense theorized that the
killing was a mere accident and was not perpetrated in connection with, or for
purposes of, the robbery. Will you sustain the defense? Why?
Suggested answer
No, I will not sustain the defense. The act being felonious and the proximate
cause of the victim’s death, the offender is liable therefore although it may not be
intended or different from what he intended. The offender shall be prosecuted for the
composite crime of robbery with homicide, whether the killing was intentional or
accidental, as long as the killing was on occasion of the robbery.
BAR 1997 – Proximate cause
 While the crew of a steamer prepared to raise anchor at the Pasig River, A, a. The acts performed would have been a crime against persons or
evidently impatient with the progress of the work, began to use abusive language property;
against the men. B, one of the members of the crew, remonstrated saying that they
could work best if they were not insulted. A took B’s attitude as a display of b. There is criminal intent;
insubordination and, rising in a rage, moved towards B wielding a big knife and
threatening to stab B. At the instant when A was only a few feet from B. the latter,
apparently believing himself to be in great and immediate peril, threw himself into the c. It is not accomplished because of the inherent impossibility or because
water, disappeared beneath the surface, and drowned. May A be held liable for the the means employed is inadequate or ineffectual.
death of B?

Suggested answer
d. The Offender in performing an act is not violating any another provisions
Yes. A can be held criminally liable for the death of B. Article 4 of the RPC of law.
provides in part that criminal liability shall be incurred by any person committing a
felony although the wrongful act done be different from that which he intended. In Felonies against persons are:
U.S. vs. Valdez, 41 Phil. 497, where the victim who was threatened by the accused 1. Parricide (Art. 246)
with a knife, jumped into the river but because of the strong current or because he 2. Murder (Art. 248)
did not know how to swim, he drowned, the Supreme Court affirmed the conviction 3. Homicide (Art. 249)
for homicide of the accused because, if a person against whom a criminal assault is 4. Infanticide (Art. 255)
directed believes himself to be in danger of death or great bodily harm and in order 5. Abortion (Arts. 256, 257, 258 and 259)
to escape jumps into the water, impelled by the instinct of self-preservation, the 6. Duel (Arts. 260 and 261)
assailant is responsible for the homicide in case death results by drowning. 7. Physical injuries (Arts. 262, 263, 264, 265 and 266)
IMPOSSIBLE CRIME 8. Rape

Impossible crime is defined as an act which would have been an offense

against person or property, were it not for the inherent impossibility of its Felonies against property are:
accomplishment or on account of the employment of inadequate or ineffectual
means. The offender shall incur criminal liability for committing an impossible crime a. Robbery (Arts. 294, 297, 298, 299, 300, 302 and 303)
because of his criminal tendency. b. Brigandage (Arts. 306 and 307)
c. Theft (Arts. 308, 310 and 311)
Impossible crime is not a real crime since the accused did not commit the d. Usurpation (Arts. 312 and 313)
crime against person or property for it is impossible to do so. The law punishes the e. Culpable insolvency (Art. 314)
accused not because of the commission of the crime but on the basis of his tendency f. Swindling and other deceits (Arts. 315, 316, 317 and 318)
to do so. g. Chattel mortgage (Art. 319)
1. Elements: h. Arson and other crimes involving destruction (Arts. 320, 321, 322, 323,
324, 325 and 326)

24
 i. Malicious mischief (Arts. 327, 328, 329, 330 and 331)
(a) Crimes against person or property – Not all impossible crimes prescribed
and punished by the Revised Penal Code are punishable. Only
impossible crimes against person or property are punishable, therefore
there is no impossible crime if the crime is against chastity, crime against
national security or crime against public interest. Form instance, in the
crime of chastity, like seduction, abduction, adultery, concubinage and
consented acts of lasciviousness, the offender must be a man, while the
victim must be a woman. In adultery, the offenders must be a married
woman and man. While in concubinage the offenders must be a married
man and a woman. If the gender element is not present in a crime against
chastity, like in adultery the wife was actually man who has undergone
sex reassignment, the crime committed is not impossible crime of
adultery because the act which is impossible to commit must constitute
crime against person or property.
Example:
If the accused abducted the victim with lewd design and with intent to rape not
knowing that the victim is a gay, who underwent gender reassignment, he could not
be held liable for complex crime of rape through forcible abduction since both
components of this complex crime can only be committed against a woman. Nor is
he liable for impossible crime of forcible abduction since this is a crime against
chastity. In impossible crime, the act which is impossible to commit, must constitute
crime against person or property. Neither is he liable for impossble crime of rape
since act constitutes another violation of the law. He is liable for illegal detention.
(Judge Campanilla)
But if the accused abducted a gay, who underwent gender reassignment, had sexual
intercourse with him, and killed him in the course of detention, the crime committed is
kidnapping and serious illegal detention with homicide. Having sexual intercourse
with a gay merely constitutes acts of lasciviousness, which is integrated into the
special complex crime of kidnapping with homicide (2016 BAR).
Adultery is committed by any married woman who shall have sexual
intercourse with a man not her husband and by the man who has carnal knowledge
25
of her knowing her to be married. (Article 333 of the RPC). However, one, who
pretended to be a woman in marrying the complainant, cannot commit adultery since
he is not a married woman. Neither is his sexual partner liable for adultery since this
crime committed by the man presupposes that woman of whom he had carnal
knowledge is also liable for adultery. This crime cannot unilaterally be committed by
the man. There is no impossible crime of adultery since this is a crime against
chastity, and not against person or property. (2015 BAR).
Prior to RA 8353, rape is a crime against chastity. Thus, if a person raped a
dead person believing that she was just sleeping, offender could not be held liable
for impossible crime. However, RA No. 8353 reclassifies rape from crime against
chastity to crime against person. Hence, an offender for raping a dead person
without knowing that she was already dead may now be held liable for impossible
crime. The accused shall incur criminal liability for performing an act which would
have been rape were it not for the inherent impossibility of its accomplishment.
(b) Crimes against liberty -- Kidnapping for ransom consummates at the
precise moment when the victim was abducted. Receiving ransom is not
an element of this crime. What is important is that the victim was
kidnapped for purpose of ransom. Hence, impossibility to obtain the
ransom payment after the consummation of the crime of kidnapping will
not render the crime impossible. (People v. Tan, G.R. No. 95322, March
1, 1993). Moreover, kidnapping is a crime against liberty. In impossible
crime, the act which is impossible to commit must constitute crime against
person or property. (2000 BAR).
Evil intent
Stabbing a dead person with intent to kill is an impossible crime. The
accused shall incur criminal liability for performing an act which would have been
homicide or murder were it not for the inherent impossibility of its accomplishment.
(1961 and 1976 BAR). Stabbing a dead person with knowledge of his dead condition
is not impossible crime since it was not committed with evil intent to kill. The act does
not show criminal tendency, which is the basis of penalizing impossible crime, since
he is aware that he is not killing someone at time of stabbing.
Factual and legal impossibility
In the United States, criminal laws are silent regarding impossible crimes;
hence, where the offense sought to be committed is factually impossible of
accomplishment, the offender shall be liable for the attempted crime. On the other
hand, where the offense is legally impossible of accomplishment, the actor cannot be
held liable for any crime.
In the Philippines, the crime committed is an impossible crime if the offense
sought to be committed is factually or legally impossible. For example, killing a dead
person is an impossible crime because of legal impossibility for the reason that under
no circumstance that a dead person can be killed. Putting the hand inside an empty
pocket with the intention to steal a wallet is an impossible crime because of factual
impossibility. (1947 and 1962 BAR).
Impossible crime of theft
If the check is unfunded, stealing the check of the employer by an employee and
presenting the same for payment with the bank constitute impossible crime. The act
of depositing the check is committed with evil intent. The mere act of unlawfully
taking the check meant for Mega Inc. showed her intent to gain or be unjustly
enriched. There is factual impossibility to accomplish the crime of qualified theft since
the check is unfunded. (Jacinto v. People, G.R. No. 162540, July 13, 2009).
If the check is funded, stealing the check and failure to present the same
for payment with the bank will not make the accused liable for impossible crime.
Even if the accused failed to encash the same due to external cause such as
apprehension by police or stop payment, he will be held liable for consummated
theft. (People v. Seranilla, G.R. No. L- 54090, May 9, 1988). In theft, taking or
gaining possession of property with intent to appropriate and to gain consummates
the crime. Actual gain is irrelevant as the important consideration is the intent to gain.
(Bustinera, G.R. No. 148233, June 8, 2004).
Example 1
T picked the pocket of V without the latter’s knowledge and consent. T’s
intention was to take for gain any personal property from V’s pocket which turned out
to be empty. An impossible crime was committed because picking the pocket of V
26
could have been theft, a crime against property, were it not for the inherent
impossibility of its accomplishment as the pocket of V was empty.
However, if T had succeded in extracting from the pocket of V a wallet, and
after opening it he found it to be empty, threw it away, T would not be guilty of
impossible crime because theft, another crime punishable under the Revised Penal
Code, was consummated from the time T has taken possession of the wallet which
has some value.
Example 2
Wanting to kill his friend, but as close rival for the hand of a girl, X placed
arsenic on the coffee of his friend, Y, without knowing that the quantity of the poison
was inadequate to kill a person. In spite of X’s belilef that the quantity of the poison
was sufficient, his friend did not die. Being subjectively a criminal, X is liable for
impossible crime.
Impossible light crime
The penalty for impossible crime is arresto mayor or a fine from 200 to 500
pesos (Article 59 RPC), while the penalty for light felony is arresto menor or a fine
not exceeding 200 pesos or both. Article 59 should not be made applicable to one
who attempts to commit a light felony of impossible materialization since the penalty
for the impossble crime is graver than that for the consummated light crime. It would
be unfair to punish a person, who failed to commit a light felony since it is impossible
to accomplish it, for a graver penalty than that for a person who was able to commit
it. (2012 BAR)
Impossible crime distinguished from attempted felony
In impossible crime or attempted felony, the offender did not commit the
crime. But the difference between the two lies on the external cause that prevents
the commission of the crime. If the external cause is the impossibility of
accomplishing the crime or the employment of ineffectual or inadequate means, the
act constitutes impossible crime. On the other hand, if the external cause is not the
impossibility of accomplishing the crime but some cause or accident other than his
own spontaneous desistance, the act constitutes attempted felony.
 Example: It is impossible to kill a person using a gun with a dud bullet.
What prevented the commission of homicide is not “some cause or accident other
than his own spontaneous desistance” but the employment of ineffectual means.
Hence, the crime committed is impossible crime. (2014 BAR)
Impossible crime distinguished from frustrated felony
If the crime is not committed, the accused may be held liable for frustrated
felony or impossible crime, and not for frustrated impossible crime. (BAR 2012)
If the accomplishment of the crime is impossible or the means employed is
inadequate or ineffectual, the thus, the crime against person or property was not
committed despite the performance of the act with criminal intent, the accused is
liable for impossible crime.
For example: the accused with intent to kill thought that the salt, which he
mixed with the coffee of another, is arsenic powder. Murder was not committed due
to the employment of ineffectual means. Accused is liable for impossible crime.
If the accomplishment of the crime is not impossible and the means
employed to accomplish the felony is adequate or effectual, but the felony was not
produced despite the performance of all the acts of execution by reason of causes
independent of the will of the perpetrator, the crime committed is frustrated felony.
For example: the offender with intent to kill mixed arsenic with the coffee of
another; the latter did not die by reason of inadequate quantity of the poison but due
to timely medical intervention; the offender is liable for frustrated murder.
Constitutive of another crime – If the accused performed an act constituting
impossible crime and another crime, he will be prosecuted for the latter.
Arson – Firing a gun at the unoccupied bedroom with intention to kill a victim, who is
supposed to be sleeping therein, constitutes impossible crime because it is factually
impossible to kill the victim who was not in the bedroom. The accused shall incur
criminal liability for performing an act, which would have been murder qualified by
treachery, were it not for inherent impossibility of its accomplishment. (Intod vs. CA).
But throwing grenade at the unoccupied bedroom, where the victim is supposed to
27
be sleeping, constitutes arson if the bedroom was burned as a consequence. (2000
BAR)
Serious Physical Injuries – Accused put substance to the food of the victim with
intent to kill him not knowing that the substance is not poison or arsenic but
powdered milk (1998 BAR) or non-toxic powder (2009 and 2014 BAR). This is
impossible crime. Accused shall incur criminal liability for performing an act which
would have been murder by means of poison were it not for the employment of
ineffectual means. But if the victim, because of severe allergy to powdered milk or
non-toxic powder, was hospitalized for 10 days, the accused will be held liable for
less serious physical injuries.
Acts of lasciviousness – Rape through sexual assault is a gender free crime, while
rape through carnal knowledge is commited by a man against a woman. If the
gender element in rape through sexual intercourse is not present, the crime is not
impossible crime but acts of lasciviousness. Sexually assaulting a victim with intent
to have sexual intercourse with her not knowing that the victim is a gay is not
impossible crime of rape. Although it is impossible to commit rape through sexual
intercourse where the victim is a gay, the acts with intent to have sexual intercourse
committed against him constitute acts of lasciviousness. (1996 BAR)
Discharge of Firearm – A discharged shotgun at B from a distance of 300 yards; but
because of the limited range of the firepower of the shotgun, it would be imposisble
for A to kill B. A is liable for discharge of firearm and not for impossible crime of
homicide.
Trespass to dwelling – Where the offender unlawfully entered the house through the
window and took a watch that turned out to be his own, he is liable for trespass to
dwelling and not for impossible crime of robbery.
Attempted robbery – Accused being aware that the victim is wearing an expensive
watch threatened him with the revolver. However, the victim left the watch at his
home. The crime committed is attempted robbery, not impossible crime. There was
intent to gain on the part of “A” when he decided to take the watch of “B” at the point
of gun. The crime of robbery with intimidation is not produced because of a cause or
accident (that B forgot to carry the watch with him) other than spontaneous
dessitance. (1947 and 1955 BAR) (Judge Campanilla).
 Impossible crime is punished to suppress lawlessness or to teach a lesson
to the offender. Subjectively, the offender is a criminal although objectively no crime
has been committed. There is no attempted or frustrated stage.
There is legal impossibility where the intended acts, even if completed
would not amount to a crime.
Example:
1.Stealing property that turned out to be owned by the stealer.
2. Killing a dead person.
3. Raping a dead woman.
There is physical impossibility when extraneous circumstances unknown
to the actor or beyond his control prevent the consummation of the intended crime as
the act cannot be completed.
Example:
1. Stealing from a vault that turned out to be empty,
2. Trying to poison the victim with the use of cyanide which turned out to be plain
sugar.
The offender must not know the circumstance which made the crime an
impossible crime. For instance, in killing a person who has just died;
homicide/murder requires intent to kill. Had the offender known that the victim is
already dead, intent to kill will be absent. At most, it will amount to desecration of the
dead. The malefactors will not go to all the trouble and risks attending the
commission of bank robbery if they knew that the vaults are empty.
BAR EXAM 2004
OZ and YO were both courting their co-employee, SUE. Because of their
bitter rivalry, OZ decided to get rid of YO by poisoning him. OZ poured a substance
into YO’s coffee thinking it was arsenic. It turned out that the substance was white
sugar substitute known as Equal. Nothing happened to YO after he drank the coffee.
What criminal liability did OZ incur, if any? Explain briefly.
28
Suggested answer
OZ incurred criminal liability for an impossible crime of murder. Criminal
liability shall be incurred by any person performing an act which would be an offense
against persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or ineffectual
means (Art. 4, par 2, RPC).
In the problem given, the impossibility of accomplishment of the crime of
murder, a crime against persons, was due to the employment of ineffectual means
which OZ thought was poison. The law imputes criminal liability to the offender
although no crime resulted, only to suppress his criminal propensity because
subjectively, he is a criminal though objectively, no crime was committed.
BAR 2004: Impossible crime of kidnapping
Carla, 4 years old, was kidnapped by Enrique, the tricycle driver paid by her
parents to bring and fetch her to and from school. Enrique wrote a ransom note
demanding Php500, 000. 00 from Carla’s parents in exchange of Carla’s freedom.
Enrique sent the ransom note by mail. However, before the ransom note was
received by Carla’s parents, Enrique’s hideout was discovered by the police. Carla
was rescued while Enrique was arrested and incarcerated. Considering that the
ransom note was not received by Carla’s parents, the investigating prosecutor
merely filed a case of “Impossible Crime to Commit Kidnapping against Enrique. Is
the prosecutor correct? Why?
Suggested answer
No. The prosecutor is not correct in filing a case for “Impossible Crime to
Commit Kidnapping” against Enrique. Impossile crimes are limited only to acts which
when performed would be a crime against persons or property. As kidnapping is a
crime against personal security and not against person or property, Enrique could not
have incurred an “impossible crime of commit kidnapping. There is thus no
impossible crime of kidnapping.
Article 5. Duty of the court in connection with acts which should be repressed
but which are not covered by the law and in cases of excessive penalties. –
Whenever a court has knowledge of any act which it may deem proper to
repress and which is not punishable by law, it shall render the proper decision
and shall report to the Chief Executive, through the Department of Justice, the
reasons which induce the court to believe that said act should be made the
subject of penal legislation.
In the same way, the court shall submit to the Chief Executive, through the
Department of Justice, such statement as may be deemed proper, without
suspending the execution of the sentence, when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive
penalty, taking into consideration the degree of malice and the injury caused
by the offense.
What is the duty of the court in connection with acts which should be repressed but
which are not covered by the law?
Under the above provision, whenever a court has knowledge of any act
which it may deem proper to repress and which is not punishable by law, it shall
render the proper decision (which is to convict the accused) and shall report to the
Chief Executive, through the Department of Justice, the reasons which induce the
court to believe that said act should be made the subject of penal legislation.
What about with respect to excessive penalty?
In the same way, the court shall submit to the Chief Executive, through the
Department of Justice, such statement as may be deemed proper, without
suspending the execution of the sentence, when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive penalty,
taking into consideration the degree of malice and the injury caused by the offense.
Nullum crimen nulla poena sine lege – There is no crime when there is no law that
defines and punishes it. As a civil law country, in the Philippines penal laws are
enacted by the legislature. Crime is the product of the law; no matter how monstrous
or evil an act it is not a crime unless there is a law punishing it. Moreover, Article 21
prohibits the imposition of a penalty not prescribed by law prior to the commission on
a felony; and, the Constitution prohibits the retroactive application of a penal law.
On the other hand a common law crime is one that is manifestly contrary
to good customs and public policy even though not expressly punished by law. As
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distinguished from statutory law created by enactment of legislature, common law
comprises the body of those principles and rules of action relating to the government
and security of persons and property, which derive their authority solely from usages
and customs of immemorial antiquity, or from judgements and decrees of the courts
recognizing, affirming and enforcing such usages and customs. It does not rest for
authority upon any express and positive declaration of the will of the legislature.
(Black’s Law Dictionary)
It obvious that this Article does not apply to offenses defined and penalized
by special penal laws because this Article refers to penalties under the “provisions of
this Code.” In a similar way, this Article does not apply to mala prohibita since it
requires the courts to take into consideration “the degree of malice” and injury
caused by the offense.
Article 6. Consummated, frustrated, and attempted felonies. – Consummated
felonies, as well as those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution
and accomplishment are present; and it is frustrated when the offender
performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony
directly by overt acts, and does not perform all the acts of execution which
would produce the felony by reason of some cause or accident other than his
own spontaneous desistance.
What are the stages of execution?
1. A felony is consummated when all the elements necessary for its execution and
accomplishment are present;
2. It is frustrated when the offender performs all the acts of execution which would
produce the felony as a consequence but which, nevertheless, do not produce it by
reason of causes independent of the will of the perpetrator.
3. There is an attempt when the offender commences the commission of a felony
directly by overt acts, and does not perform all the acts of execution which would
produce the felony by reason of some cause or accident other than his own
spontaneous desistance.
There are three stages of felony: attempted, frustrated, and consummated.
These stages of execution apply only generally to crimes defined and penalized by
the Revised Penal Code. But there are special penal laws which also penalized the
attempted as well as the frustrated stages of execution. Like for example violation of
R.A. 9165 and R.A. 7610, among others.
In the consummated stage all acts of execution are present, hence the
offender is in the objective stage as he no longer has control over the outcome of his
acts, having performed all that is necessary to accomplish his purpose.
Examples:
1. The crime of flight to enemy’s country (Art. 121) is always consummated.
2. The crime of corruption of minors (Art. 340) is always consummated.
3. Slander (Art. 358) and slanded by deed (Art. 359) are both formal
crimes and therefore without attempted and frustrated stages.
4. The crimes of false testimonies (Arts. 180 to 184) are likewise
considered as formal crimes because they are consummated at one instant.
5. Felonies by omission, like treason (Art. 114) and misprision of treason
(Art. 116), have no attempted and frustrated stages, but only consummated stage.
6. The crime of intriguing against honor is another formal crime.
In the frustrated stage, the offender has also reached the objective stage
of the offense for he has performed all the acts which would produce the felony, but
the crime was not committed for reasons independent of his will. If the reason is
dependent on his will, as when in homicide, the wound is fatal but he himself brought
the victim to the hospital hence the victim survived, it is not frustrated homicide but
some other crime like physical injuries.
In the light of the definition of frustrated felony, there is no frustrated rape,
frustrated arson and frustrated theft, as well as frustrated robbery. In a similar
manner, there is also no frustrated bribery and frustrated corruption of public officials.
30
These crimes could only be committed either in the attempted or consummated
stages.
For the attempted felony, the offender is still in the subjective stage
because he has not performed all acts necessary for its accomplishment. Therefore,
he still has control as he may or may not continue his over acts. The important
phrases here are:
a. “Over acts” or external acts – Those which if allowed to continue will
logically result in a felony; it is the start of criminal liability.
Preparatory act refers to a prior act.
Example 1:
Buying poison to kill the intended victim.
Example 2:
Purchasing gasoline intended to set the house of the victim on fire.
Preparatory acts as a rule not criminal unless these acts are in
themselves penalized as independent crimes.
Example: proposal and conspiracy to commit a crime are not punished
except in those cases provided for by law, e.g., proposal and
conspiracy to commit rebellion.
b. “Directly” – The offender shall be liable for the attempted stage of the
felony that is directly linked to the overt act irrespective of his intention.
Example: A person intending to rob a store forced open the window of
the store but before he could enter he was apprehended. He cannot be
charged with attempted robbery even if that was his intention because
the overt act of forcing the window is not directly linked with robbery.
He may be charged with attempted trespass because that act is
directly related to entering the store.

c. “Desistance” – Is an absolutory circumstance only in the attempted
stage. The attempted stage exists up to that time when the offender
still has control of his acts. The moment he has lost control of the
outcome of his acts the subjective phase is passed; the stage is now
either frustrated or consummated (objective phase) where desistance
is merely factual and produces no legal effect, hence, will not exempt
the offender from criminal liability.
A crime is classified as formal:
a. The offender cannot possibly perform all the acts of execution to bring
the desired result without consummating the offense, such as slander
or libel or written defamation.
b. When the Code defines the felony in such a manner that it cannot be
frustrated. For instance, since the gravamen of rape is carnal
knowledge, the slightest penetration of the female organ consummates
the felony. Since the burning of even a portion of the building is
considered arson, the mere scorching thereof consummates the crime.
c. When the crime requires the concurrence of the will of two parties,
there is no frustrated stage, as in corruption of public officers – the
moment the public officer accepts the gift, promise or consideration in
bribery, the crime of corruption is consummated but when the public
officer refuses to be corrupted, the crime is attempted only.
d. When the crime is treated by the Code in accordance with the results,
i.e., the result should be there before liability can be determined, e.g.,
physical injuries, the crime is only in the consummated stage. In
physical injuries, it cannot be determined whether the injury will be
slight, less serious, or serious unless consummated.
Distinction between attempted and frustrated felonies:
31
a. As to acts of execution – In attempted, not all acts of execution had
been done whereas in frustrated, all acts of execution had been
performed.
b. As to causes of non-accomplishment – in attempted, it is a cause or
accident other than the offender’s own spontaneous desistance; in
frustrated it is some cause independent of the will of the perpetrator
(like timely medical attendance given to the accused).
c. In attempted stage, the offender is still in the subjective phase as he
still has control of his acts; whereas in the frustrated stage, he is
already in the objective phase.
d. In attempted homicide, the wound is not mortal, hence the offender
should still need to deal another blow on the victim, which he was not
able to do because he was apprehended. He is therefore still in the
subjective stage. In frustrated homicide, the wound is mortal, sufficient,
to bring about death hence, there is no need of another blow but death
nevertheless did not supervene because timely medical attendance.
He has passed on to the objective phase because he has performed all
acts necessary to bring about the death of the victim.
There is no crime of frustrated theft. Indeed, the Court has after all, held
that unlawful taking, or apoderamiento, is deemed complete from the moment the
offender gains possession of the thing, even if he has no opportunity to dispose of
the same. (Valenzuela vs. People, G.R. No. 160188, June 21, 2007). Inasmuch as
there is similarity in the commission of the crime of robbery, it is submitted that there
is also no crime of frustrated robbery.
PREPARATORY ACT
The intent of the person in committing preparatory act remains equivocal
or unclear. Hence, preparatory acts such as buying poison, conspiring and going to
the place where the crime agreed upon will be committed are not constitutive of
attempted felony because intent to kill is not clear. However, preparatory acts are
punishable if the law prescribes a penalty for its commission such as proposal or
conspiracy to commit rebellion, or possession of picklock. If the preparatory acts
constitute a felony, commiting it is a consummated crime.
Example 1 reveals an evident intention to enter by means of force in the said store against the
will of its owner. However, it is not an overt act of robbery since the intention of the
If conspirators while on their way to the house of the complainant for the
accused once he succeeded in entering the store is not determinate; it is subject to
purpose of killing him were arrested by policemen on the basis of information of one
different interpretations. His final objective could be to rob, to cause physical injuries
who heard the conspiracy, they are not criminally liable for conspiracy to commit
to its occupant, or to commit any other offense. In sum, the crime that he intended to
murder since the RPC has not prescribed a penalty for it. Neither are they liable for
commit inside the store is indeterminate. An attempt to commit an indeterminate
murder at the attepted stage since going to the place where they intend to commit a
crime is not punishable as attempted felony. (1981 BAR) (Judge Campanilla)
crime are preparatory acts, which are not punishable since the criminal intent to kill,
which is an element thereof, is not yet clear. (Judge Campanilla) Example 2

Example 2 If the accused destroyed the door and entered the dwelling of the
complainant, and was inside the dwelling when the police authorities arrested him,
X, Y and Z agreed among themselves to attack and kill A, a police officer,
the crime committed is not attempted robbery because of the indeterminate crime
but they left their homemade guns in their vehicle before approaching him.
principle but consummated trespass to dwelling. (1979 BAR). But if the accused
Approaching A, a police officer, is not an overt act of direct assault. This act can be
admitted his intention to steal, Lamahang principle is not applicable. Hence, the
considered as preparatory to the commission of assault. It is not constitutive of
accused is liable for attempted robbey by using force upon thing. (People v. Villegas,
attempted direct assault because of the intent to defy the law and its representative,
G.R. No. 34039, January 31, 1931)
which is an element thereof, is not yet clear. (BAR 2011)
Example 3
Example 3
A enters surreptitiously in the store of B in order to take away with him
Edgardo induced his friend Vicente, in consideration of money, to kidnap a
some articles and hides himself behind a door, but due to the watchfulness of B, he
girl he is courting so that he may succeed in raping her and eventually making her
did not dare to come out of his hiding place where he was discovered. The crime
accede to marry him. Vicente asked for more money which Edgardo failed to put up.
committed is attempted theft. The Lamahang principle is not applicable since the
Angered because Edgardo did not put up the money he required, he reported
intention of A in this case is to commit theft. Hence, his intention is determinate. In
Edgardo to the police. Edgardo is not liable for proposal to commit kidnapping since
Lamahang case, the intention of the accused once he enters the house is
the law has not provided a penalty for it. Proposal to commit a crime is a preparatory
indeterminate. (1947 BAR).
act, which is not punishable even as an attempted crime because the criminal intent
to deprive victim of her liberty is not yet clear prior to the actual commission of the Article 7. When light felonies are punishable. – Light felonies are punishable
commission of the crime. (1996 BAR) only when they have been consummated, with the exception of those
committed against persons or property.
INDETERMINATE OFFENSE
Under this Article, light felonies are punishable only when they are
Example 1
consummated; however, in crimes against persons or property (except slight physical
In People v. Lamahang, G.R. No. 43530, August 3, 1935, accused, who injuries and maltreatment (Art. 266) and malicious mischief (Art. 328 [3]), they are
was caught in the act of making an opening with an iron bar on the wall of a store, punishable even if they are attempted or frustrated.
was held guilty of attempted trespassing and not attempted robbery. The act of
1. When light felonies are punishable:
making an opening on the wall of the store is an overt act of trespassing since it
32

a. Only when consummated except for crimes against persons or property.
b. In all stages if the crime is against persons or property.
2. Who are punishable – principals and accomplices. Accessories are not
criminally liable for light felonies. (Article 16)
3. Why is attempted and frustrated light felony not punishable? And why is an
accessory in consummated light felony not punishable? Because the
deduction in penalty is 1 degree for frustrated, 2 degrees for the attempted
stage and another 2 degrees for accessory offender. Since the penalty for
light felony is arresto menor, there is no way of further reducing the penalty.
De minimis non curat lex.
Example 1
A balikbayan came home for vacation from the United States. Finding the
conditions of the people in the Philippines deplorable and to help the critics of the
present Administration, he joined the destabilization activites. He offered to a group
of rallyist a tin can to create annoying discordant sounds, but while he was
approaching the group, he desisted because he himself detested noise. He
committed an attempted alarm and scandals punishable under Article 155; however,
since this crime is one of crimes against public order and not against persons or
property, then he is not criminally liable for attempted Alarm and Scandal. (Judge
Patricio)
Example 2
For not having eaten any food for several days and due to extreme
poverty, X stole the bread of Y displayed in the latter’s store. If X were to be
prosecuted for simple theft under Art. 309 (8), in relation to Art. 9, he would not be
exempted from criminal liability because what he had committed although a light
felony, is a crime against property.
Example 3
If what was stolen was a pencil costing P5. 00 and X sold it to Y, who, in
spite of his (Y) knowledge that the pencil was stolen, Y is considered merely as an
33
accessory and therefore, is exempt from criminal liability under Art. 16 because what
X committed was only a light felony (Judge Patricio).
Article 8. Conspiracy and proposal to commit felony. – Conspiracy and
proposal to commit felony are punishable only in the case in which the law
specially provides a penalty therefor.
A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.
There is proposal when the person who has decided to commit a felony
proposes its execution to some other person or persons.
CONSPIRACY AND PROPOSAL
A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.
There is proposal when the person who has decided to commit a felony
proposes its execution to some other person or persons.
Under the subject legal provision, conspiracy by itself is not a crime unless
there is a specific law penalizing conspiracy. In a similar way, proposal to commit a
crime is not a crime unless there is also a specific law making it criminal.
Worthy to note that there is proposal when the person who has decided
to commit a felony proposes its execution to some other person or persons, and
once that person agreed to commit the crime proposed, conspiracy has been
established. A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. (1953, 1960 and
1965 BAR)
As a rule, the principle of conspiracy as a mode of committing a crime or
for purposes of applying the collective responsibility rule is only applicable to
intentional felony. The concept of conspiracy, the elements of which are agreement
and decision to commit a crime, are not consistent with culpable felony. In applying
the principle of conspiracy, it presupposes that there are two or more assailants and
regardless of the extent, character and degree of their participation all of them should
be considered as principals.
Conspiracy as a crime – Conspiracy and proposal to commit felony are punishable
only in the cases in which the law specifically provides a penalty therefor.
In this light, there is no crime of conspiracy to commit robbery or conspiracy
to commit theft. Similarly, there is also no crime of conspiracy to commit estafa or
conspiracy to commit falsification of public or private documents.
Example:
In the following cases, proposal or conspiracy is punishable: conspiracy or
proposal to commit treason (Article 115); conspiracy or proposal to commit rebellion
or coup d’eta (Article 136); conspiracy to commit sedition (Article 141); conspiracy to
commit arson (Section 7, PD No. 1613; conspiracy to commit crime involving
traffiking of dangerous drugs (Section 26, RA 9165); conspiracy to commit terrorism
(Section 4, RA 9372); conspiracy to commit child pornography (Section 4, RA 9775)
and conspiracy to commit money laudering (Section 4, RA 9160 as amended by RA
10365; 1953 BAR) (Judge Campanilla)
In the following cases, proposal or conspiracy is NOT punishable: proposal
to commit sedition (2011, 2012 and 2013 BAR); proposal to commit espionage (2011
BAR); proposal to commit highway robbery (2011 BAR); conspiracy to commit direct
or indirect bribery (2011 BAR); conspiracy to commit trafficking in person (2011 BAR)
and conspiracy to assassinate the President (1950 BAR); conspiracy to commit
highway robbery (2011 BAR); conspiracy to commit direct or indirect bribery (2011
BAR); conspiracy to commit trafficking in person (2011 BAR) and conspiracy to
assassinate the President (1950 BAR) (Judge Campanilla)
Conspiracy as a mode of committing a crime – Conspiracy does not constitute a
crime if the law has not specifically provided a penalty therefor. However, even
though conspiracy is not a crime, but if the conspirators committed the crime agreed
upon, conspiracy shall be considered as a means or manner of incurring criminal
liability. (1953 BAR).
For example, A, B and C conspired to commit the crime of
robbery; the conspiracy in this case is not a crime since no law penalizes conspiracy
to commit robbery. However, the moment A, B and C committed the crime of robbery,
all of them should be charged as principals for the crime of robbery.
34
On the other hand, even though conspiracy to commit a crime is a
crime, but the conspirators committed the crime agreed upon, conspirators shall be
held liable for the crime committed and not for conspiracy to commit it. In this case,
conspiracy will be considered not as a crime but as a mode of committing a crime.
For instance, A, B and C conspired to commit the crime of conspiracy to commit
treason, all of them could be charged for the crime of conspiracy to commit treason,
for the reason that there is a law penalizing conspiracy to commit treason. However,
the moment any of them, because of conspiracy perfomed overt act constituting the
crime of treason, this time all of them should be indicted for treason and no longer for
conspiracy to commit treason. Conspiracy to commit treason would be considered a
mode or means of committing the crime of treason.
In conspiracy as a crime, conspirators are criminally liable even though
they have not yet perpetrated the crime they agreed to commit. In conspiracy as a
mode of committing a crime, the liability of the conspirators for perpetrating the crime
they agreed to commit is collective.
In conspiracy as a crime, the conspirators will be punished for agreeing and
deciding to commit the crime. In conspiracy as a mode of committing a crime, the
collective responsibility rule applies if the conspirators perform an act in furtherance
of conspiracy.
Collective responsibility
The legal effect once an express or implied conspiracy is proved is
that all of the conspirators are liable as co-principals regardless of the extent and
character of their respective active participation in the commission of the crime that
they agreed to commit. They are also liable for the other crimes perpetrated in
furtherance of the conspiracy. In contemplation of law the act of one is the act of all.
(BAR 2003)
Accused are liable for two counts of rape on account of a clear conspiracy
between them, shown by their obvious concerted efforts to perpetrate, one after the
other, the rapes. Each of them is responsible not only for the rape committed
personally by him but also for the rape committed by the other as well. (People v.
Lascano, G.R. No. 192180, March 21, 2012)
BAR 2016
Engr. Magna Nakaw, the District Engineer of the DPWH in the Province of
Walang Progreso, and Mr. Pork Chop, a private contractor, were both charged in the
Office of the Ombudsman for violation of the Anti-Graft and
Corrupt Practices Act (R.A. No. 3019) under a conspiracy theory.
While the charges were undergoing investigation in the Office of the
Ombudsman, Engr. Magna Nakaw passed away. Mr. Pork Chop immediately filed a
motion to terminate the investigation and to dismiss the charges against him, arguing
that because he was charged in conspiracy with the deceased, there was no longer
a conspiracy to speak of and, consequently, any legal ground to hold him for trial had
been extinguished.
Rule on the motion to terminate filed by Mr. Pork Chop, with brief reasons.
Suggested answer
Mr. Pork Chop’s motion to terminate the investigation before the Office of the
Ombudsman is denied.
In a case involving similar facts, the Supreme Court held that the death of a
co-conspirator, even if he was the lone public officer, did not mean that the allegation
of conspiracy to violate the Anti-Graft Law could no longer be proved or that the
alleged conspiracy was already expunged. The only thing extinguished by the death
of a co-conspirator was his criminal liability. His death did not extinguish the crime
nor did it remove the basis of the charge of conspiracy between him and private
respondent. [People v. Go, 25 March 2014, Peralta, J.]
Act in furtherance of conspiracy
To make a conspirator collectively responsible, it must also be established that he
performed an act in furtherance of conspiracy. A conspirator who did not perform an
act in furtherance of conspiracy to kidnap the victim for ransom is not liable for
conspiracy to commit kidnapping for ransom since there is no law prescribing a
penalty for it. Neither is he liable for kidnapping on the basis of collective
responsibility rule because he did not perform an act in furtherance of conspiracy.
35
(1986 BAR) If a conspirator failed to perform an act in furtherance of conspiracy
because he was apprehended prior to the killing of the victim by his co-conspirators,
the former is not liable for the killing since he did not perform an act in furtherance of
conspiracy. (1998 BAR)
Mastermind
To be held liable as conspirator based on the collective responsibility rule, it must
also be shown that the accused performed an overt act in furtherance of conspiracy
except in the case of the mastermind of a crime. (1987 BAR). One who plans the
commission of a crime is liable as conspirator and principal by inducement. Evidence
proved that he was the mastermind of the criminal act or the principal by inducement
notwithstanding the fact that one was not at the crime scene. What is important is
that inducement was the determining cause of the commission of the crime. The
command or advice made by the principal by inducement was of such nature that,
without it, the crime would not have materialized. (People v. Janjalani, G.R. No.
188314, January 10, 2011)
Detaching from conspiracy
To exempt himself from criminal liability, a conspirator must have performed an overt
act to dissociate or detach himself from the conspiracy to commit the felony and
prevent the commission thereof. (Quintos v. People, G.N. No. 205298, September
10, 2014).
Before the commission of the crime
If a conspirator dissuaded his co-conspirator from committing the crime agreed upon
or make an effort to prevent the commission of the crime, he is exempt from criminal
liability because he detached himself from the conspiracy. (Judge Campanilla)
Example 1
A induced B to kill the victim for a valuable consideration. But A tried to stop the
killing by calling the police authorities before the actual execution of the crime. A is
not liable because he detached himself from the conspiracy to commit murder. (1989
BAR)
Example 2
 Before the actual commission of robbery with homicide by the chief actor in
the dwelling of the victim, his co-conspirator fled for being scared when the police car
with sirens blaring passed by. The latter is not liable for robbery with homicide
commited by the former. By fleeing, his co-conspirator detached or dissociated
himself from conspiracy. Moreover, he did not perform any act in furtherance of
conspiracy. However, he is liable for trespass to dwelling. (2003 BAR)
Example 3
If a conspirator, who supposed to act as a guard outside the house, left the
scene without knowledge of the other conspirators before the killer could enter the
house to execute their plan to kill the victim, he is not liable for the injuries suffered
by the victim. By leaving the scene of the crime, he detached or dissociate himself
from conspiracy. Moreover, he did not perform any act in furtherance of conspiracy.
(1997 BAR).
The commission of the crime is in progress
If a conspirator left the scene of the crime while its commission is in progress and
reported the incident to the police authorities, he is not criminally liable because he
detached himself from the conspiracy. (People v. Nunez, G.R. No. 112429-30, July
23, 1997). But a conspirator left the scene of the crime while the commission of
robbery with homicide is in progress without reporting the incident to the police
authorities he is not exempt from criminal liability. Conspiracy has already
materialized; hence, there is nothing to repudiate (People v. De los Reyes, G.R. No.
44112, October 22, 1992)
After the commission of the crime
If the accused reported the shooting incident after it had already taken place, he is
criminally liable. In legal contemplation, there was no longer a conspiracy to be
repudiated since it had already materialized. (People v. Bacbac, G.R. No. 149372,
September 11, 2007)
IMPUTABILITY DOCTRINE
36
Under the doctrine of imputability, the act of an offender is imputable to his
co-conspirator although they are not similarly situated in relation to the object of the
crime.
Malversation – Only an accountable public officer can commit malversation.
Hence, a private person can not commit the crime of malversation. But if there is
conspiracy, the act of an accountable officer in committing malversation is imputable
to non-accountable officers or private individual, although the latter were not similarly
situated with the former in relation to the object of the crime committed. (BAR 1958,
1959, and 1971)
Rape through sexual intercourse – Only a man can commit rape through
carnal knowledge against a woman. But if there is conspiracy, the act of a man in
committing rape is imputable to a woman although the latter was not similarly
situated with the former in relation to the object of the crime committed. (People v.
Dela Torre, G.R. No. 121213, January 13, 2004; BAR 2013).
Violation of BP 22 – BP 22 does not expressly proscribe the supplementary
application of the provisions of the RPC including the rule on conspiracy. Hence, the
rule may be applied in a supplementary manner. (Ladonga v. People. G.R. No.
141066, February 17, 2005) Thus, if there is conspiracy, the act of issuing bouncing
check by the drawer is imputable to the non-issuer although the latter was not
similarly situated with the former in relation to the object of the crime committed.
(2010 BAR).
Violence against women – The principle of conspiracy may be applied to
RA 9262. Thus, the act of violence of a man having marital relationship with a
woman is imputable to a person (mother-in-law of the victim), who has no marital,
sexual or dating relationship with the victim although both accused were not similarly
situated in relation to the object of the crime committed. (Go-Tan v. Go, G.R. No.
168852, September 30, 2008)
Corruption – Only public officer can be held criminally liable for violation of
RA No. 3019. However, if there is conspiracy, the act of the public officer in violating
RA No. 3019 is imputable to the private individual although they are not similarly
situated in relation to the object of the crime. Even though the public officer died, the
private individual, his alleged co-conspirator, can still be prosecuted for violation of
RA No. 3019. Death extinguishes the criminal liability but not the crime. (Judge
Campanilla)
Exceptions:
Parricide – Even though there is conspiracy, the act of the wife in committing
parricide is not imputable to a stranger. For example: a wife with the help of another
killed her husband by means of poison. Since relationship is personal to the wife, it
can only be appreciated against her in accordance with Article 62 of the RPC.
Hence, the wife is liable for parricide qualified by the circumstance of relationship
and aggravated by the circumstance of by means of poison, while the stranger is
liable for murder qualified by the circumstance of by means of poison. (People v.
Bucsit, G.R. No. 17865, March 15, 1922)
Qualified theft – Even though there is conspiracy, the act of the employee in
committing theft qualified by the circumstance of abuse of confidence is not
imputable to a non-employee. The servant and neighbour of complainant consired
and committed the crime of theft. The qualifying circucmstance of abuse of
confidence can only be appreciated against theservant to whom the complainant
reposed confidence, but not to his neighbour. The circumstance of abuse of
confidence is personal to the servant. The crime committed by the servant is
qualified theft while that of the neighbor is simple theft. (People v. Puno, G.R. No.
97471, February 17, 1993)
COMMISSION OF OTHER CRIME
Accused may or may not be held liable for crime not agreed upon committed by his
co- conspirator:
Killing of a third person – A conspirator is liable for a crime, which they agreed to
commit, and other crimes, which could be foreseen and are the natural and logical
consequences of the conspiracy.
Conspirators agreed to kill the husband but not the wife in their home. They
could have foreseen the violent resistance from the wife since they committed the
crime in their home. Hence, the killing of the wife by one of the conspirators because
of her resistance would make the other conspirators liable for her death although the
conspiracy merely pertained to the killing of the husband. The killing of the wife was
37
the natural and logical consequence of conspiracy to kill the husband. (People v.
Ventura, G.R. Nos. 148145-46, July 5, 2004)
If by reason of conspiracy, conspirators beat their employer at the first floor
of the building, but one of the conspirators chanced upon a maid at the second floor
shouting for help and killed her, the other conspirators who did not foresee the killing
of the maid, are only liable for the killing of the employer. They are not liable for the
killing of the maid, which is substantially or radically different from the crime they
intended to commit. The killing of the maid is not the natural and logical
consequences the conspiracy to beat the employer. (1986 BAR)
Conspirator killed a visitor of the target victim without the knowledge of his
co-conspirators. The killing of such visitor is neither foreseeable nor the natural and
logical consequence of the conspiracy to kill the target victim. Hence, conspirators,
who had not participated in the killing of the visitor, are not criminally liable. (1997
BAR)
Committing homicide or rape in the course of robbery by band.
Any member of a band who is present at the commission of a robbery by the band
shall be punished as principal of any of the assaults committed by the band, unless it
be shown that he attempted to prevent the same. (Article 296 RPC)
The word “assaults” in Article 296 includes sexual assaults constituting rape. In such
case, the members of the band are liable for robbery with homicide, or rape with the
ordinary aggravating circumstance of band. (1977 BAR). However, a member of the
band is not liable for robbery with homicide or rape if he is not present when the
victim was killed or raped. (People v. Canturia, G.R. No. 108490, June 22, 1995;
1996 and 2016 BAR)
Commtting homicide or rape in the course of robbery
Case law establishes that whenever homicide has been
committed by reason of or on the occasion of the robbery, all those who took part as
principals in the robbery will also be held guilty as principals of robbery with homicide
although they did not take part in the homicide, unless it appears that they sought to
prevent the killing. (People v. Catro, G.R. No. 187073, March 14, 2012; 1999 BAR)
 However, if there is no evidence that the accused is aware of the
commission of rape, he could not have prevented the rape. Hence, the accused is
only liable for robbery and not for robbery with rape. (People v. Canturia, G.R. No.
108490, June 22, 1995). The Canturia principle where the lack of awareness is a
defense is applicable to kidnapping with rape, kidnapping with homicide, robbery with
homicide and robbery with arson. (BAR 2011)
MULTIPLE CONSPIRACIES – there are two structures of multiple conspiracies,
namely: wheel or circle conspiracy and chain conspiracy.
Under the wheel or circle conspiracy, there is a single person or group (the
hub) dealing with two or more other persons or groups (the spokes). An illustration of
wheel conspiracy wherein there is only one conspiracy involved was the conspiracy
alleged in the Information for plunder filed against former President Estrada and his
co-conspirators. Former President Estrada was the HUB while the spokes were all
other accused individuals. The rim that enclosed the spokes was the common goal in
the overall conspiracy, i.e., the amassing, accumulation and acquisition of ill-gotten
wealth. (GMA v. People, G.R. No. 220598, July 19, 2016)
Stated elsewise, wheel conspiracy is a conspiracy in which a single member
(usually the ringleader) or a group engages in separate illegal dealings with two or
more other member or groups, and there exists a shared criminal purpose among all
the member/groups enaged in the activities. The ringleader or group which deals
with the other members or groups is called the HUB, and the subsidiary parties that
maintain individual relationship with the hub is called SPOKES. Such conspiracy is
also known as “hub and spoke conspiracy.”
A wheel conspiracy is shown when a number of people, the spokes, are
engaged in similar relationship with the same individual, the hub. In a wheel
conspiracy, the prosecution would have to prove that the existence of the other
spokes was known to a particular defedant, and that the defendant did something in
furtherance of a single, illegal enterprise to prove that she/he have conspired with the
other spokes of the wheel (Bolden vs. State, 44Md. App 643 (Md. Ct. Spec. App.
1980)
and wholesaler, then wholesaler and retailer, and then retailer and consumer.
(Fernan Jr. v. People, G.r. No. 145927, August 24, 2007; 2016 and 2017 BAR).
A chain conspiracy refers to several conspirators participating in a
single conspiracy. Each person (conspirator) is responsible for a single act and has a
different role in the over all crime or conspiracy. The classic example of a chain of
conspiracy is the sale of narcotics. The producer or the manufacturer, the importer,
the wholesaler, and the distributor are all on the chain to sell and distribute narcotics.
All participants are interested in the over all scheme and are liable for all other
participants’ act in furtherance of that scheme.
The overt act of a co-conspirator may be in the form of:
a. Active participation in the actual commission of the crime itself;
b. Moral assistance to his co-conspirators by being present at the
commission of the crime; or
c. Exerting moral ascendancy over the other co-conspirators, (Pecho vs.
People, G.R. No. 111399, September 27, 1996)
An overt act in furtherance of the conspiracy may consists in actively
participating in the actual commission of the crime, in lending moral
assistance to his co-conspirators by being present at the scene of the
crime, or in exerting moral ascendancy. (People vs. Pablo, G.R. Nos.
120394-97, January 16, 2001)
TWO CONCEPTS OF CONSPIRACY:
As a crime by itself, the subject of conspiracy is not yet committed but the
mere act of conspiring is defined and punished as a crime, for instance, proposal and
conspiracy to commit treason (Art. 114) or rebellion (Art. 135).
As a basis of incurring liability, the execution of the plan is commenced.
Conspiracy by itself ceases to be the crime but is absorbed. Hence, the crime above
is no longer conspiracy to commit rebellion but rebellion under Article 135.

Under the chain conspiracy, usually involving the distribution of narcotics As a basis of incurring liability, it is necessary to determine:
or other contraband, in which there is successive communication and cooperation in
much the same way as with legitimate business operations between manufacturer
38
 Whether there was prior agreement on how to commit the crime, in which
case, a conspirator is liable as long as he appeared in the scene of the crime unless
he is the mastermind or principal by inducement. In conspiracy by prior agreement,
the liability of the conspirators is only for the crime agreed upon except:
1. When the other crime was committed in their presence and they did
not prevent its commission which is taken as approval or
acquiescence to the second crime;
2. When the other crime is the natural consequence of the crime
planned, e.g., homicide resulting from physical injuries;
3. When the resulting crime is a composite crime or special complex
crime considered single indivisible felony composed of 2 distinct
crimes.
Whether it is an implied conspiracy, that is, the offenders acted in concert
during the commission of the crime. Here it is essential that the conspirator
participated in the commission of the crime to be liable. His mere presence or
approval of the crime without more will not make him liable because there would be
no basis for deducing conspiracy as to him as there is absent criminis particeps.
(Boado)
BAR 2003. State the concept of “Implied Conspiracy” and give its legal effects.
Suggested answer
An “implied conspiracy” is one which is only inferred or deduced from the
manner the participants in the commission of crime carried out its execution. Where
the offenders acted in concert in the commission of the crime, meaning their acts are
coordinated or synchronized in a way indicative that they are pursuing a common
criminal objective, they shall be deemed to be acting in conspiracy and their criminal
liability shall be collective, not individual.
The legal effects of an “implied conspiracy” are:
1. Not all those who are present at the scene of the crime will be considered
conspirators;
39
2. Only those who participated by criminal acts in the commission of the crme
will be considered as co-conspirators; and
3. Mere knowledge, acquiescence to or approval of the act without cooperation
or agreement to cooperate, is not enough to constitute one a party to a
conspiracy absent the intentional participation in the act with a view to the
furtherance of the common design and purpose. (People vs. Bragaes, G.R.
No. 62359, November 14, 1991)
Conspiracy is not presumed. Like the physical acts constituting the crime
itself, the elements of conspiracy must be proved beyond reasonable doubt. While
conspiracy need not be established by direct evidence, for it may be inferred from
the conduct of the accused before, during and after the commission of crime, all
taken together, however the evidence must be strong enough to show community of
criminal design. (Magsuci vs. Sandiganbayan, G.R. No. 101545, January 3, 1995;
Pecho vs People, G.R. No. 111399, September 27, 1996) This is so because a
person may be adjudged liable only on the basis of conspiracy.
Although conspiracy is a joint act, there is nothing irregular if a supposed
co-conspirator is acquitted and others convicted. Generally, conspiracy is only a
means by which a crime is committed: the mere act of conspiring is not by itself
punishable. Hence, it does not follow that one conspirator alone cannot be convicted
when there is a conspiracy. As long as the acquittal of a co-conspirator does not
remove the basis of a charge of conspiracy, other conspirators may be found guilty of
offense. (People vs. Tiguman, G.R. Nos. 130502-03, May 24, 2001)
Conspiracy cannot co-exist with culpa for the former presupposes the
existence of malice since it involves a meeting of the minds of the co-conspirators on
the manner and mode of committing a crime. Hence, there is no conspiracy in the
crime of “reckless imprudence resulting to homicide.”
When may the head of a government office be held liable as co-principal
for the acts of his subordinates? Either by reckless imprudence or by conspiracy: if
he by an act of reckless imprudence brought about the commission of estafa thru
falsification, or malversation through falsification, without which the crime could not
have been accomplished. When, however, that infraction consists in the reliance in
good faith, albeit misplaced by a head of office on a subordinate upon whom the
primary responsibility rests, absent a clear case of conspiracy, the Arias doctrine
must be held to prevail. (Arias vs. Sandiganbayan, G.R. No. 81563, December 19,
1989) (Boado)
Under the Arias doctrine all heads of offices have to rely to a reasonable
extent on their subordinates and on the good faith of those who prepare bids,
purchase supplies, or enter into negotiations. There has to be some added reason
why he should examine each voucher in such detail. Any executive head of even
small government agencies or commissions can attest to the volume of papers that
must be signed. There are hundreds of documents, letters, memoranda, vouchers,
and supporting papers that routinely pass through his hands. The number in bigger
offices or departments is even more appalling.
BAR QUESTIONS ON CONSPIRACY:
A had a grudge against F. Deciding to kill F, A and his friends B, C and D,
armed themselves with knives and proceeded to the house of F, taking a taxicab for
the purpose. About 20 meters from their destination, the group alighted and after
instructing E, the driver, to wait, travelled on foot to the house of F. B positioned
himself at a distance as the group’s look out. C and D stood guard outside the
house. Before A could enter the house, D left the scene without the knowledge of the
others. A stealthily entered the house and stabbed F. F ran to the street but was
blocked by C, forcing him to flee towards another direction. Immediately after A
stabbed F, A also stabbed G who was visiting F. Thereafter, A exited from the house
and, together with B and C, returned to the waiting taxicab and motored away. G
died. F survived. Who are liable for the death of G and the physical injuries of F?
Suggested answer
A alone should be held liable for the death of G. The object of the
conspiracy of A, B, C and D was to kill F only. Since B, C and D did not know of the
stabbing of G by A, they cannot be held criminally therefor. E, the driver, cannot be
also held liable for the death of G since the former was completely unaware of said
killing.
For the physical injuries of F, A, B and C should be held liable therefore.
Even if it was only A who actually stabbed and caused physical injuries to G, B and
40
C are nonetheless liable for conspiring with A and for contributing positive acts which
led to the realization of a common criminal intent. B positioned himself as a look out,
while C blocked F’s escape. D, however, although part of the conspiracy, cannot be
held liable because he left the scene before A could enter the house where the
stabbing occurred. Although he was earlier part of the conspiracy, he did not
personally participate in the execution of the crime by acts which directly tended
toward the same end. (People vs. Tomoro et al, 44 Phil 38)
In the same breath, F, the driver, cannot be also held liable for the infliction
of physical injuries upon F because there is no showing that he had knowledge of the
plan to kill F.
BAR 2004
BB and CC, both armed with knives, attacked FT. The victim’s son, ST, upon
seeing the attack, drew his gun but was prevented from shooting the attackers by
AA, who grappled with him for the possession of the gun. FT died from knife wounds.
In his defense, AA invoked the justifying circumstance of avoidance of greater
evil or injury, contenting that by preventing ST from shooting BB and CC, he merely
avoided a greater evil. Will AA’s defense prosper? Reason.
Suggested answer
No. AA’s defense will not prosper because obviously there was a conspiracy
among BB, CC and AA, such that the principle that when there is conspiracy, the act
of one is the act of all, shall govern. The act of ST, the victim’s son, appears to be a
legitimate defense of relatives, hence, justified as a defense of his father against the
unlawful aggression of BB and CC. ST’s act to defend his father’s life, cannot be
regarded as an evil inasmuch as it is, in the eyes of the law, a lawful act.
What AA did was to stop a lawful defense, not greater evil, to allow BB and
CC to achieve their criminal objective of stabbing FT.
BAR 1996
Jose, Domingo, Manolo, and Fernando, armed with bolos, about one o’clock
in the morning, robbed a house at a desolate place where Danilo, his wife, and three
daughters were living. While the four were in the process of ransacking Danilo’s
house, Fernando, noticing that one of Danilo’s daughters was trying to get away, ran
after her and finally caught up with her in a thicket somewhat distant from the house.
Fernando, before bringing her back to the house, raped her first. Thereafter, the four
carted away the belongings of Danilo and his family. What crime did Jose, Domingo,
Manolo and Fernando commit? Explain.
Suggested answer
Jose, Domingo and Manolo committed Robbery, while Fernando committed
complex crime of Robbery with Rape. Conspiracy can be inferred from the manner
the offenders committed the robbery but the rape was committed by Fernando at a
place distant from the house where the robbery was committed, not in the presence
of the other conspirators. Hence, Fernando alone should answer for the crime of
rape, rendering him liable for the special complex crime of Robbery with Rape.
(People vs. Canturia, et.al, G.R. No. 108490, 22 June 1995).
BAR 2019
Mr. X has always been infatuated with Ms. Y. Scorned by Ms. Y's disregard for his
feelings towards her, Mr. X came up with a plan to abduct Ms. Y in order to have
carnal knowledge of her with the help of his buddies, A, B, and C.
On the day they decided to carry out the plan, and while surreptitiously waiting for
Ms. Y, C had a change of heart and left. This notwithstanding, Mr. X, A, and B
continued with the plan and abducted Ms. Y by forcefully taking her to a deserted
house away from the city. There, Mr. X restrained Ms. Y's arms, while A held her legs
apart. B stood as a lookout. Mr. X was then able to have carnal knowledge of Ms. Y,
who was resisting throughout the entire ordeal.
Consequently, Mr. X was charged with the crime of Forcible Abduction under the
Revised Penal Code.
(a) Is the charge against Mr. X proper? Explain.
(b) Assuming that A, B, and C are also charged, may they be held criminally
liable together with Mr. X? Explain.
41
SECTION 1. Article 9 of Act No. 3815, otherwise known as "The Revised Penal
Code", is hereby amended to read as follows:
"ART. 9. Grave felonies, less grave felonies and light felonies.- Grave felonies
are those to which the law attaches the capital punishment or penalties which
in any of their periods are afflictive, in accordance with Article 25 of this Code.
"Less grave felonies are those which the law punishes with penalties which in
their maximum period are correctional, in accordance with the
abovementioned article.
"Light felonies are those infractions of law for the commission of which the
penalty of arresto menor or a fine not exceeding Forty thousand pesos
(P40,000) or both is provided."
Grave felonies which are penalized by capital punishment or afflictive penalties in
any of its period, i.e., the minimum, medium or maximum period of the penalty is an
afflictive penalty. Afflictive penalties cover prision mayor, disqualification, reclusion
temporal and reclusion perpetua.
Less grave felonies are punished with penalties which in their maximum
period are correctional, thus the maximum period of the penalty must be destierro,
suspension, arresto mayor, or prision correccional.
Light felonies are infractions punished with arresto menor or fine of not
exceeding Forty (P4000.00) Thousand pesos or below.
a. If the felony is punishable; (Article 7 on light felonies)
b. Whether the accessory is liable; (Article 16)
c. Whether a complex crime was committed; (Article 48)
d. The duration of the subsidiary penalty; (Article 39, no. 2)
e. The duration of the detention in case of failure to post the bond to keep the
peace; (Article 35)
f. Whether the crime has prescribed; (Article 90) and
g. The proper penalty for quasi-offenses. (Article 365)
Article 10 – Offenses not subject to the provisions of this Code. – Offenses
which are or in the future may be punishable under special laws are not
subject to the provisions of this Code. This Code shall be supplementary to When special laws use the nomenclature of the penalties in the Revised
such laws, unless the latter should specially provide the contrary. Penal Code, the effects are:

What is the rule for offenses not subject to the provision of this Code? a. The system of penalties under the Revised Penal Code shall apply, hence,
modifying circumstances shall be considered in the determination of
Offenses which are or in the future may be punishable under special laws
penalties;
are not subject to the provisions of this Code. This Code shall be supplementary to
b. The rules under the Code shall be followed in the imposition of penalties
such laws, unless the latter should specially provide the contrary.
under the Indeterminate sentence Law, not the rules for special laws;
Special penal laws define and penalize crimes not included in the Code;
c. The use of “RPC-penalties” does not convert offense into malum in se but
they are different from those defined and punished therein.
remains to be malum prohibitum.
The law has long divided crimes into acts wrong in themselves (mala in se)
Dolo is not required in crimes punished by a special statute like the
and acts which would not be wrong but for the fact that positive law forbids them
Anti-Fencing Law of 1979, The Child Abuse Law or BP 22, because it is the act
(mala prohibita). The distinction is important with reference to the intent with which a
alone, irrespective of the motives which constitute the offense. Verily, when it was
wrongful act is done. In acts mala prohibita, the only inquiry is, has the law been
proved that petitioner committed the unlawful acts alleged in the information, it was
violated? When an act is illegal, the intent of the offender is immaterial. (Dunlao vs
properly presumed that they were committed with full knowledge and with criminal
CA, G.R. No. 111343, August 22, 1996)
intent, and it was incumbent upon him to rebut such a presumption. (Lim vs. CA,
The general rule is that special laws are not subject to the provisions of the G.R. No. 100311, May 18, 1993) (Boado)
Revised Penal Code. The first sentence of Article 10 is a superfluity for it merely
Special laws which are mere amendments of the provisions of the Revised
expresses the cardinal rule in statutory construction that special law prevails over
Penal Code, such as the Anti-Cattle Rustling Law modifying articles 308, 309 and
general rule. Thus, the circumstances affecting criminal liability (Articles 11 to 15) are
310, is thus not a true special law. (Taer vs CA; Canta vs. People). In a similar way,
not applicable to violations of special laws.
The New Rape Law (R.A No. 8353) is also not a special law in the real sense of the
The second sentence is the heart and soul of article. The Code shall have word, since it is merely an amendment to the crime of rape penalized and defined by
supplementary application to the special laws whenever the latter uses the the Revised Penal Code.
nomenclature of penalties in the Code, thus indicating the intent of Congress to
Differentiate “Intent to Commit a Crime” from “Intent to Perpetrate the Act.”
make the Code apply suppletorily, necessarily, with its duration, correlation and legal
effects under its system of penalties. (People vs. Simon, G.R. No. 930280, July 29, When the crime is punished by a special law, as a rule, intent to commit the
1994) (Boado) crime is not necessary. It is sufficient that the offender has the intent to perpetrate the
act prohibited by the special law. Intent to commit the crime and intent to perpetrate
The suppletory effect of the Code to special laws under this article cannot
the act must be distinguished. A person may not have consciously intended to
be invoked where there is legal or physical impossibility of or a prohibition in special
commit a crime; but he did intend to commit an act, and that act is, by the very
law against such supplementary application. Where the special law expressly grants
nature of the things, the crime itself. In the first (intent to commit the crime), there
the court discretion in applying the penalty prescribed for the offense, there is no
must be a criminal intent; while in the second (intent to perpetrate the act), it is
room for the application of the Code.

42
enough that the prohibited act is done freely and consciously. (Elenita C. Fajardo v.
People, G.R. No. 190889, January 10, 2011).
Can a special law use the nomenclature of penalties provided under the Revised
Penal Code?
Yes. The Supreme Court in Sanchez vs. People, 588 SCRA 747, June 5,
2009, stressed that although R.A. No. 7610 is a special law, the rules in the Revised
Penal Code for graduating penalties by degrees or determining the proper period
should be applied. The penalty for Other Acts of Child Abuse is prision mayor in its
minimum period. This penalty is derived from and defined in the Revised Penal
Code.
A felony cannot be complexed with an offense. Hence, rape cannot be
complexed with violation of Section 5 (b) of RA 7610. (People vs. Abay, G.R. No.
1777752, February 24, 2009).The same is true in estafa and BP 22, hence estafa
cannot be complexed with violation of BP 22.
CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY
In the Philippines, penal laws subscribe to the classical theory hence, there
is a predetermined penalty for each crime. It is the office of modifying circumstances
to increase or decrease the penalty in accordance with the presence or absence of
circumstances showing the moral status of the offender.
1. The circumstances which affect or modify criminal liability are:
a. Justifying – Article 11
b. Exempting – Article 12
c. Mitigating – Articles 13 and 15
d. Aggravating – Articles 14 and 15
e. Absolutory – exempting circumstances outside Article 12
f. Extenuating – mitigating circumstances not found in Article 13, such as
concealment of dishonour in abortion and abandonment of wife by the
husband in adultery.
2. Absolutory circumstances:
43
a. Instigation due to public policy;
b. Article 6(3) – spontaneous desistance in the attempted stage unless the
overt act committed constitutes another crime;
c. Article 7 – attempted/frustrated light felonies except those against persons
or property;
d. Article 16 – accessories in light felonies;
e. Article 20 – accessories-relatives other than profiting in the crime;
f. Article 247 – injuries except serious physical injuries;
g. Article 332 – certain relatives in theft, estafa, and malicious mischief;
h. Somnambulism due to lack of intelligence;
i. Mistake of fact due to lack of intent;
j. Total repeal of penal law which decriminalizes the act.
Entrapment is the employment of ways and means for the purpose of
trapping or capturing a lawbreaker; the idea to commit the crime originates from the
accused. In inducement or instigation the criminal intent originates in the mind of
the instigator and the accused is lured into the commission of the offense charged in
order to prosecute him. (People vs. Ramos, Jr., G.R. No. 88301, October 28, 1991).
Hence, instigation is an absolutory circumstance which negates criminal liability.
A buy-bust is a form of entrapment that in recent years has been accepted
as a valid means of arresting violators of the Dangerous Drugs Law. It is commonly
employed by police officers as an effective way of apprehending law offenders in the
act of committing a crime.
In entrapment, it is necessary that a buy- bust operation occurred, otherwise,
it will be considered in case of doubt as instigation. Instigation is an absolutory cause
akin to an exempting circumstance. Even without the money to buy the marijuana so
long as the police officer went through the motion as a buyer and his offer was
accepted by the appellant and the marijuana delivered to police officer, the crime
was consummated by the delivery of the goods. (People vs. Utoh Lakibul, G.R. No.
94337, January 27, 1993.)
Instigation and frame-up cannot be both present in a case for they are
incompatible. In instigation, the crime is actually performed by the accused except
that the intent originates from the mind of the inducers. In frame-up, however, the
offense is not committed by the accused. Precisely, the accused is only framed or set
up in a situation leading to a false accusation against him.
Distinctions:
ENTRAPMENT
a. The mens rea originated from the
from
the accused who was merely trapped
induced
by the peace officer in flagrante delicto
the act
b. This is not absolutory as to the offender
public
Since he authored the evil idea
c. Consistent with public policy
d. Trap for the unwary criminal (People
innocent
Vs. Marcos, G.R. No. 83325, May 8, 1990)
e. The peace officer is without criminal liability
For his acts are in accordance with law
(Boado)
2. Anyone who acts in defense of the person or rights of his spouse,
ascendants, descendants, or legitimate, natural, or adopted brothers
or sisters, or his relatives by affinity in the same degrees, and those
by consanguinity within the fourth civil degree, provided that the
INSTIGATION first and second requisites prescribed in the next preceding
circumstances are present, and the further requisite, in case the
a. The evil idea originated provocation was given by the person attacked, that the one making
defense had no part therein.
the peace officer who
3. Anyone who acts in defense of the person or rights of a stranger,
the accused to commit provided that the first and second requisites mentioned in the first
circumstance of this article are present and that the person
b. Absolutory by reason of defending be not induced by revenge, resentment or other evil
motive.
policy
c. Contrary to public policy
d. Trap for unwary
4. Any person who, in order to avoid an evil or injury, does an act
which causes damage to another, provided that the following
requisites are present:
e. The peace officer is a
principal by inducement
First. That the evil sought to be avoided actually exists;

Article 11 – Justifying Circumstances. – The following do not incur any Second. That the injury feared be greater than that done to avoid it;
criminal liability:
Third. That there be no other practical and less harmful means of
1. Anyone who acts in defense of his person or rights, provided that preventing it.
the following circumstances concur:
5. Any person who acts in the fulfilment of a duty or in the lawful
First. Unlawful aggression; exercise of a right or office.

Second. Reasonable necessity of the means employed to prevent or 6. Any person who acts in obedience to an order issued by a superior
repel it; for some lawful purpose.

Third. Lack of sufficient provocation on the part of the person Justifying circumstances
defending himself.

44
Justifying circumstances are those where the act of a person is said to be in
accordance with law, so that such person is deemed not to have transgressed the
law and is free from both criminal and civil liability.
Justifying circumstances are those where the acts of the actor are in accordance
with law and hence he incurs no criminal liability. Since there is no crime, there is no
criminal and hence no civil liability, except under Article 11, par 4, or the so-called
State of Necessity.
The justifying circumstances are
a. Defense of self, of relatives, and of strangers;
b. State of necessity;
c. Fulfillment of duty; and
d. Obedience to superior order.
Self-defense includes defense of life, chastity, property and honor of the
accused who must prove with clear and convincing evidence the following elements:
a. Unlawful aggression;
b. Reasonable necessity of the means employed to prevent or repel it;
and
c. Lack of sufficient provocation on the part of the person defending
himself.
The effect of invoking self-defense is to place the burden in the accused to
prove to the satisfaction of the court the fact of legitimate defense because he admits
the commission of the act complained. The burden of proof, which is proof of guilt
beyond reasonable doubt, is still with the prosecution. When the accused invokes
self defense, what is shifted is only the burden of evidence.
Unlawful aggression is the primordial requisite which must at all times be
present. When unlawful aggression is absent, there is no self-defense whether
complete (Article 11) or incomplete (Article 69 and 13 ).
Unlawful aggression must be real or at least imminent. Real aggression
means an attack with physical force or with a weapon such as to cause injury or
danger to life or personal safety. Aggression is imminent if an attack is impending or
at the point of happening. It must be offensive and positively strong.
Examples:
1. When the accused went to the house of the deceased and upon seeing the former
entering their backyard, the latter met him with a knife on his hand and asked the
accused what brought him there, and without saying anything, the accused drew his
gun and shot the deceased, the act of the deceased did not constitute unlawful
aggression as to entitle the accused to claim self defense, for the reason that the
aggression was not imminent.
2. When the aggression no longer exists, such as when the aggressor ran away after
the attack or when the defender was able to wrest the weapon from the aggressor,
there is no need for self-defense. Defender must stop, for when aggression ceases
and he still continued to attack, he becomes the aggressor.
Reasonable necessity of the means employed depends upon the circumstances
surrounding the aggression, the state of mind of the aggressor and the available
weapon at the defender’s disposal. Whether the means employed is reasonable, will
depend upon the nature and quality of the weapon used by the aggressor, his
physical condition, character, size and other circumstances, and those of the person
defending himself, and also the place and occasion of the assault.
“Stand ground when in the right” is the rule which applies when the aggressor
is armed with a weapon and is especially more liberal if the person attacked is a
peace officer in the performance of his duty. This rule has superseded the principle of
“retreat of the wall” which makes it a duty of a person assailed to retreat as far as he
can before he meets the assault with force.
Defense of chastity or honor
In defense of one’s chastity, there must be imminent or immediate danger of
being rape to justify killing. If it were only acts of lasciviousness, killing is an
unreasonable means.
BAR 2002: Defense of honor

45
 When A arrived home, he found B raping his daughter. Upon seeing A, B
ran away. A took his gun and shot B, killing him. Charged with homicide, A claimed
he acted in defense of his daughter’s honor. Is A correct? If not, can A claim the
benefit of any mitigating circumstance or circumstances?
Suggested answer
No, A cannot validly invoke defense of his daughter’s honor in having killed
B since the rape was already consummated; moreover, B already ran away, hence,
there was no aggression to defend against and no defense to speak of.
A may, however, invoke the benefit of the mitigating circumstance of having
acted in immediate vindication of a grave offense to a descendant, his daughter,
under par. 5, Article 13 of the RPC, as amended.
BAR 2000 : Defense of honor
Osang, a married woman in her early twenties, was sleeping on a banig on
the floor of their nipa hut beside the seashore when she was awakened by the act of
a man mounting her. Thinking that it was her husband, Gardo, who had returned
from fishing in the sea, Osang continued her sleep but allowed the man, who was
actually their neighbour, Julio, to have sexual intercourse with her. After Julio
satisfied himself, he said “Salamat Osang” as he turned to leave. Only then did
Osang realize that the man was not her husband. Enraged, Osang grabbed a
balisong from the wall and stabbed Julio to death. When tried for homicide, Osang
claimed defense of honor. Should the claim be sustained? Why?
Suggested answer
No, Osang’s claim of defense of honor should not be sustained because the
aggression on her honor had ceased when she stabbed the aggressor. In defense of
rights under paragraph 1, Art. 11 of the RPC, it is required inter alia that there be (1)
unlawful aggression, and (2) reasonable necessity of the means employed to prevent
or repel it. The unlawful aggression must be continuing when the aggressor was
injured or disabled by the person making a defense.
But if the aggression that was begun by the injured or disabled party already
ceased to exist when the accused attacked him, as in the case at bar, the attack
46
made is a retaliation, and not a defense. Paragraph 1, Article 11 of RPC does not
govern.
Hence, Osang’s act of stabbing Julio to death after the sexual intercourse
was finished, is not defense of honor but an immediate vindication of a grave offense
committed against her, which is only mitigating.
Defense of Honor – BAR 1998
One night, Una, a young married woman, was sound asleep in her bedroom,
when she felt a man on top of her. Thinking it was her husband Tito, who came home
a day early from his business trip, Una let him have sex with her. After the act, the
man said, “I hope you enjoyed it as much as I did.” Not recognizing the voice, it
dawned upon Una that the man was not Tito, her husband. Furious, Una took out
Tito’s gun and shot the man. Charged with homicide, Una denies culpability on the
ground of defense of honor. Is her claim tenable?
Suggested answer
No, Una’s claim that she acted in defense of honor, is not tenable because the
unlawful aggression on her honor had already ceased. Defense of honor as included
in self-defense, must have been done to prevent or repel an unlawful aggression.
There is no defense to speak of where the unlawful aggression no longer exists.
Defense of slander
In the crime of slander, slander may be a necessary means to repel slander. But
it must not be more than needed to defend oneself from the defamatory remarks.
Defense of property
In defense of property, killing is not justified. There must in addition, be the
necessity to save another life. If the aggression is on property, even if there was no
attack on the defender or owner or possessor, defense is proper but not to the extent
of killing the aggressor, otherwise the means used to repel or prevent the aggression
will not be reasonable. (People vs. Narvaez, G.R. Nos L-33466-67, April 20, 1983)
Under the doctrine of “self-help” in Article 429 of the Civil Code, the law justifies
the act of the owner or lawful possessor of a thing in using force necessary to protect
his proprietary or possessory rights. He must however exercise this right at the very
moment that he is being deprived of his property. When possession has already
been lost, he must resort to judicial process in reclaiming his property (German
Management and Services, Inc. vs. Court of Appeals, 177 SCRA 495) otherwise he
could be liable for coercion. (Boado)
BAR 2003 Defense of property
The accused lived with family in a neighbourhood that often was the scene
of frequent robberies. At one time, past midnight, the accused went downstairs with a
loaded gun to investigate what he thought were footsteps of an uninvited guest. After
seeing what appeared to him an armed stranger looking around and out to rob the
house, he fired his gun seriously injuring the man. When the lights were turned on,
the unfortunate victim turned out to be a brother-in-law on is way to the kitchen to get
some light snacks. The accused was indicted for serious physical injuries. Should the
accused, given the circumstances, be convicted or acquitted? Why?
Suggested answer
The accused should be convicted because, even assuming the facts to be
true in his belief, his act of shooting a burglar when there is no unlawful aggression
on his person is not justified. Defense of property or property right does not justify the
act of firing a gun at a burglar unless the life and limb of the accused is already in
immiment and immediate danger. Although the accused acted out of a
misapprehension of the facts, he is not absolved from criminal liability.
Alternative answer
Considering the given circumstances, namely; the frequent robberies in the
neighbourhood, the time was past midnight, and the victim burglar in the dark and
inside the house, the accused could have entertained an honest belief that his life
and limb or those of his family are already in immediate and imminent danger.
Hence, it may be reasonable to accept that he acted out of an honest mistake of fact
and therefore without criminal intent. An honest mistake of fact negatives criminal
intent and thus absolves the accused from criminal liability.
BAR 1996 – Defense of property
A security guard, upon seeing a man scale the wall of a factory compound
which he was guarding, shot and killed the latter. Upon investigation by the police
47
who thereafter arrived at the scene of the shooting, it was discovered that the victim
was unarmed. When prosecuted for homicide, the security guard claimed that he
merely acted in self-defense of property and in the performance of his duty as a
security guard. If you were the judge, would you convict him of homicide? Explain.
Suggested answer
Yes, I would convict the security guard of Homicide if I were the judge, because
his claim of having acted in defense of property and in performance of a duty cannot
be fully justified. Even assuming that the victim was scaling the wall of the factory
compound to commit a crime inside the same, shooting him is never justifiable, even
admitting that such act is considered unlawful aggression on property rights. In
People vs. Narvaes, 121 SCRA 329, a person is justified to defend his property
rights, but all the elements of self-defense under Art. 11, must be present. In the
instant case, just like in Narvaes, the second element (reasonable necessity of the
means employed) is absent. Hence, should be convicted of homicide but entitled to
incomplete self-defense.
Defense of Relatives
For defense of relatives, the first and second requisites of “self defense”
must be present, and the third requisite becomes “in case the provocation was given
by the person attacked, the person defending had no part therein.”
Lack of sufficient provocation on the part of the person defending himself shows
that there may have been provocation but it should not be sufficient and it must not
immediately precede the act. It is not enough that the provocative act be
unreasonable or annoying.
As an element of self-defense, there must be lack of sufficient provocation
on the part of the defender; as a mitigating circumstance, there must be presence
thereof on the part of the offended.
Defense of stranger
“Anyone who acts in defense of the person or rights of a stranger, provided
that the first and second requisites mentioned in the first circumstance of this article
are present and that the person defending be not induced by revenge, resentment or
other evil motive.”
BAR 2002 – Defense of stranger
A chanced upon three men who were attacking B with fist blows. C, one of the
men, was about to stab B with a knife. Not knowing that B was actually the aggressor
because he had earlier challenged the three men to a fight, A shot C as the latter
was about to stab B. May A invoke the defense of a stranger as justifying
circumstance in his favour? Why?
Suggested answer
Yes, A may invoke the justifying circumstance of defense of stranger since he
was not involved in the fight and he shot C when the latter was about to stab B.
There being no indication that a was induced by revenge resentment or any other
evil motive in shooting C, his act is justified under par, 3, Article 11 of the Revised
Penal Code, as amended.
Cleary, for defense of strangers to prosper, the first and second elements of
“self-defense” must be in attendance, the third requisite is that “the person defending
is not induced by revenge, resentment or other evil motives.”
Beyond the 4th degrees of consanguinity is defense of strangers and the
third element in defense of relatives will be replaced.
Effect of presence or lack of all or some of the requisites:
The presence or lack of all or some of the requisites for the defense have
the following effects:
a. All requisites are present – justifying circumstance; (Article 11)
b. Two requisites are present, unlawful aggression plus another –
privileged mitigating circumstance; (Article 69)
c. One requisite present which must be unlawful aggression – ordinary
mitigating circumstance. (Article 13, no. 1)
The elements of state of necessity are:
48
a. The evil sought to be avoided actually exists;
b. The injury feared be greater than that done to avoid it; and
c. There is no other practical and less harmful means of preventing it.
The state of necessity must not be caused by the negligence or violation of the law of
the actor otherwise this benefit cannot be invoked.
Under Article 101, the civil liability shall be borne not by the actor but the ones
benefited by the avoidance of the evil.
Example 1
While X was carefully driving his Nissan Patrol in the highway, a cargo truck
suddenly crossed his path. If X would swerve his vehicle to the left he would fall into
a deep ravine and if he would swerve to the right he would hit and kill a person
standing on the side of the road. Under this circumstance, he was made to choose
between losing his life if he fell into the ravine or kill an innocent person. Even if he
would choose the latter and ran over and kill a person, he would be justified under
the principle of the state of necessity.
Example 2:
Xanadu armed with a weapon attacked Andres. Barbo, a third person, drew his gun
to defend Andres. But the accused prevented Barbo from shooting Xanadu and
grappled with him for possession of the gun. Andres died. The accused invoke state
of necessity as a defense. The act of Barbo in defending Andres is lawful. This lawful
act is not an evil which can be sought to be avoided. (People vs. Padernal, G.R. No.
L – 30527, march 29, 1974) (Judge Campanilla)
Example 3
In order to save himself from crashing into an unlighted truck abandoned on the
road, accused swerved his car to the right towards the gravelled shoulder, killing two
bystanders. He is entitled to the justifying circumstance of state of necessity. The
accused in saving is life is in effect avoiding evil. The evil is greater than killing two
individuals because the instinct of self-preservation disctates that the life of the actor
is greater importance than that of another. (BAR 2011)
The elements of fulfilment of duty or exercise of right or office are:
a. The offender acted in the performance of a duty or the lawful exercise
of a right or office;
b. The injury caused or the offense committed is the necessary
consequence of the due performance of such right or office.
Examples:
1.Upon hearing of a commotion from a nearby store, policeman X lost no time for
going there to find out what was the commotion all about. Upon arriving there, he
saw a person brandishing his fighting bolo challenging and attempting to attack the
persons around. Policeman X ordered him to drop his bolo and to surrender to him
as a police authority, but the person refused and instead, ran away.
When X shot and killed the person, the former would not be criminally liable
as he was in the fulfilment of his duty and the death of the person was the necessary
consequence of the due performance of his duty.
2.A policeman tried to arrest a suspect who resisted and tried to run away, chased
him and fired two warning shots in the air but the suspect continued to run. When the
policeman was about 7 meters away from the suspect, he shot him in the right leg,
the suspect crawled towards a fence still intending to escape. When the police officer
was about 5 meters away, he shot the suspect hitting him at the lower hip, which
eventually caused his death. The policeman could not invoke the defense of having
acted in the fulfilment of a duty because this justifying circumstance requires that as
a condition, inter alia, that the injury or offense committed by the unavoidable or
necessary consequence of the due performance of the duty (People vs. Oanis, 74
Phil. 257) After the suspect was shot in the right leg and was alredy crawling, there
was no need for the policeman to shoot him further. Clearly, the policeman acted
beyond the call of duty which brought about the cause of death of the victim.
3. The policeman was trying to arrest a suspect for the crime of alarm and scandal,
but the suspect resisted arrest, but eventually the policeman was able to subdue
him. For the injuries sustained by the suspect, the police officer is not criminally liable
because he acted in the fulfilment of a duty.
49
4. In the implementation or execution of a search warrant, the police officers who
implemented the same shall be not held criminally liable for minor destruction of the
property of the subject person, for the reason that he only acted in the fulfilment of a
duty.
The elements of obedience to superior order are:
a. An order has been issued by a superior;
b. The order is for a legal purpose;
c. The means used to carry out such order is lawful.
Even if the order is illegal, if it is apparently legal, and the subordinate
is not aware of its illegality, the subordinate is not liable. (Tabuena vs.
Sandiganbayan, G.R. Nos. 103501-03, February 17, 1997)
Example 1:
Upon proper application of the police authorities, and after conducting the
proper hearing, Judge X issued a search warrant against Y. The searh warrant was
addressed to police Precinct 1 of Iloilo City. If PO1 T implemented the search warrant
in violation of Article 129 of the Revised Penal Code because he exceeded his
authority or used unnecessary severity in executing the same, he cannot avail
himself of this justifying circumstance under this provision.
Example 2:
An order to torture a criminal suspect is not lawful, and thus,
obedience to such unlawful order is not a justifying circumstance. (People vs.
Margen, G.R. No. L -2681, March 30, 1950)
Example 3:
An Investigating Police Officer was ordered by his superior to investigate the
suspect without the presence of his counsel. The police officer can be charged for
violation of RA 7438, an Act defining certain rights of person arrested, detained or
under custodial investigation. Obedience to such an order, being unlawful, is not an
exempting circumstance.
Article 12 – Circumstances which exempt from criminal liability. – The
following are exempt from criminal liability:
 1. An imbecile or an insane person, unless the latter has acted during a (3) Minority in prostitution, sniffing rugby, mendicancy or status offense like
lucid interval. parental disobedience, curfew violation or truancy.
When the imbecile or an insane person has committed an act which the
Technically, one who acts by virtue of any of the exempting circumstances commits a
law defines as a felony (delito), the court shall order his confinement in
crime, although by the complete absence of any of the conditions which constitutes
one of the hospitals or asylums established for persons thus afflicted,
free will or voluntariness of the act, no criminal liability arises.
which he shall not be permitted to leave without first obtaining the
permission of the same court. Take note that any of the circumstances mentioned in Article 12 is a matter
2. A person fifteen (15) years or under; (Section 6, RA 9344) of defense and the same must be proved by the accused to the satisfaction of the
3. A person over fifteen (15) years of age and below eigtheen (18) years of court.
age, unless he has acted with discernment, in which case, he shall be
subject to intervention program; (Section 6, RA 9344) It should be recalled that just like in “self-defense” when the accused
4. Any person who, while performing a lawful act with due care, causes an invokes any of the exempting circumstances, the court may order inverse trial
injury by mere accident without fault or intention of causing it; wherein it is the accused that will present evidence first and by the prosecution on
5. Any person who acts under the compulsion of an irresistible force; rebuttal. To be cleared about this, in case in reverse trial, what was shifted is only the
6. Any person who acts under the impulse of an uncontrollable fear of an burden of evidence, while the burden of proof still lies with the prosecution.
equal or greater injury; The exempting circumstances are
7. Any person who fails to perform an act required by law, when prevented
by some lawful or insuperable cause. a. Imbecility/insanity
b. Minority
Exempting Circumstances c. Accident
There are two kinds of exempting circumstance, namely: (1) general exempting d. Compulsion of irresistible force
circumstance and (2) specific exempting circumstance. e. Impulse of uncontrollable fear
f. Insuperable or lawful cause
General exempting circumstances which can be appreciated in any crime even if
punishable by special penal laws in favour of any offender, whether principal, Distinctions between justifying and exempting circumstances
accomplice or accessory, are as follows:

(1)Insanity, (2) Imbecility, (3) accident, (4) irresistible force, (5) uncontrollable fear, JUSTIFYING EXEMPTING
and (6) lawful and insuperable cause, and (7) Section 6 of RA No. 9344 on minority. a. The act is legal a. The act is criminal
b. There is no crime, hence no b. There is a crime, hence a
Specific exempting circumstances can be appreciated in a specific crime or crime in criminal
favour of specific offender, are as follows: criminal
c. Since there is no crime, there c. There is a crime and civil
(1) Relationship
liability
(2) Exceptional circumstance under Article 247 of the RPC
is no criminal and civil liabilities but the law exempts the
actor from

50
 criminal liabilities
d. The emphasis of the law is on d. The emphasis of the law is
on the
the act, e.g., self-defense actor, e.g., insane, imbecile
INSANITY
There must be a complete deprivation of intelligence in committing the act,
the accused is deprived of reason, he acts without the least discernment because
there is complete absence of power of discernment, or there is a total deprivation of
freedom of the will. (People vs. Dungo, G.R. No. 89420, July 31, 1991) Mere
abnormality of the mental faculties will not exclude imputability. (People vs. Danao,
G.R. No. 96832, November 19, 1992)
When insanity is alleged, the evidence on this point must refer to the time
preceding the act to the very moment of its execution. If the evidence pointed to the
insanity subsequent to the commission of the crime, the accused cannot be
acquitted. He is presumed to be sane when he committed it.
Insanity is a defense in the nature of confession and avoidance, and as
such must be proved beyond reasonable doubt.
Article 79 refers to insanity occurring after the commission of the crime,
whereas, insanity in Article 12 refers to insanity at the very moment the crime is
being committed. “When the convict shall become insane or an imbecile after final
sentence has been pronounced, the execution of said sentence shall be suspended
only with regard to the personal penalty, the provisions of the second paragraph of
circumstance number 1 of Article 12 being observed in the corresponding cases. If at
any time the convict shall recover his reason, his sentence shall be executed, unless
the penalty shall have prescribed in accordance with the provisions of this Code.”
The two tests are: (a) Cognition test or complete deprivation of intelligence
in committing the criminal act, and (b) Volition test or totaldeprivation of the freedom
of the will. The volition test does not suffice to exempt from liability; it must be
accompanied by the cognition test which alone is sufficient to exempt from liability,
(id).
Imbecility
51
Imbecility, like insanity, is a defense which pertains to the mental condition of
a person. (Buenaflor, G.R. No. 93752, July 15, 1992)
In exempting circumstance of imbecility, what is important is the mental age
of the accused. If the mental age of the accused is two years, he is an idiot; if seven
years old, he is an imbecile. (People v. Butiong, G.R. No. 168932, October 19, 2011).
An idiot or imbecile is exempt from criminal liability. On the other hand, if the mental
age of the accuded is 12 years old, he is feebleminded or moron. A feeble minded
accused is not an imbecile; hence, he is not exempt from criminal liability by reason
of imbecility (People vs. Nunex, G.R. No. 112429-30, July 23, 1997); but mitigating
circumstance of mental illness may be appreciated in is favour. (Judge Campanilla)
MINORITY
Under the law a child 15 years of age or under at the time of the commission
of the offense shall be exempt from criminal liability. However, the child shall be
subjected to an intervention program.
Exemption from Criminal Liability
Minortiy is either an exempting circumstance or a privileged mitigating
circumstance. If the age of the child at the time of the commission of the offense is
15 years of age or under, he is entitled to exempting circumstance. With or without
discernment, the accused of such age is exempt from criminal liability. Lack of
intelligence, which is the basis of the exempting circumstance of minority, is
conclusively presumed. Thus, an accused, who was 13 years of age at the time of
commission of rape, is exempt from criminal liability (People vs. Ortega, G.R. No.
151085, August 20, 2008)
If the age of the child at the time of the commission of the offense is above 15
years of age but below 18, the criminal irresponsibility of the accused will depend on
whether or not he discerned the consequence of his criminal act.If the child of such
age acted without discernment, he is entitled to exempting circumstance. On the
other hand, if the child of such age acted with discernment, he is only entitled to
privileged mitigating circumstance, which will lower the penalty by one degree.
 It should be noted that the exemption from criminal liability does not include
exemption from civil liability, which shall be enforced in accordance with existing laws
as provided for in Section 6, RA No. 9344)
Discernment defined
Discernment has been defined as the child’s mental capacity to understand
the difference between right and wrong, and such capacity may be known and
should be determined by taking into consideration all the facts and circumstances
afforded by the records in each case, the very appearance, the very attitude, the very
comportment and behaviour of said minor (People vs. Doquena, G.R. No. 46539,
September 27, 1939)
Burden of Proof
If the accused is claiming that his age is 15 years or below for purposes of
the exempting circumstance of minority, the burden to establish this age lies on the
defense. In the case of Sierra vs. People, G.R. No. 182941, July 03, 2009, the
Supreme Court ruled that the defense not the prosecution has the burden of showing
by evidence that the accsued was 15 years old or less when he committed the rape
charged.
However, if the accused is claiming that his age is above 15 years but below
18 years and that he acted without discernment for purposes of the exempting
circumstance of minority, the burden to establish that the accused is 18 years old or
above at that he acted with discernment lies on the prosecution (Jose vs. People,
G.R. No. 162052, January 13, 2005)
How to prove Discernment
1.Discernment may be shown by the manner of committing a crime. In the case of
People vs. Cortezano, G.R. No. 123140, September 23, 2003, the accused acted
with discernment when they raped the victim. Thus, (a) they wetted the victim’s
vagina before they raped her; (b) one of them acted as a lookout while the other was
raping the victim; (c) they threatened to kill the victim if she divulged to her parents
what they did to her; (d) They forced Boyet to rape the victim; € They laughed as
Boyet was raping the victim; (f) They ordered Leah Lou and Lionel to look at their
sister naked after the accused raped her.
52
2. Discernment may be shown by the extent of participation of the accused in
committing a crime. In the case of People vs. Capistrano, G.R. No. L – 4549,
October 22, 1952, the accused with the other Filipino members of the Yoin and
several Japanese soldiers, all armed, raided a house and took inmates to the
Japanese garrison. The accused, a minor, acted with discernment since he appeared
as the leader or commander of the raiding party. Thus, he was held liable for treason.
3. In the case of Llave vs. People, G.R. No. 116040, April 26, 2006, accused had
been an outstanding grade school student and even received awards. While in
Grade 1, he was the best in his class in his academic subjects. He represented his
class in a quiz bee contest. At the age of 12, he finished a computer course. The
Supreme Court held that the petitioner acted with discernment in raping the victim.
4. The fact that the accused employed means to make a surprise attack and he even
hid the murder weapon in an empty container is proof of discernment.
In People vs. Roxas, the chronological age of the victim is 18 years old while
his mental age is nine (9) years old. Exempting circumstance of minority cannot be
appreciated since he is not a minor. His actual age is not below 18 years. Neither
can the exempting circumstance of imbecility be appreciated. He is not imbecile
since his mental age is not seven years.
BAR 1998
John, an eight year old boy, is fond of watching the television program “Zeo
Rangers.” One evening while he was engrossed watching his favourite television
show, Petra, a maid changed the channel to enable her to watch “Home Along the
Riles.” This enraged John who got his father’s revolver, and without warning, shot
Petra at the back of her head causing her instantaneous death. Is John criminally
liable?
Suggested answer
No, John is not criminally liable for killing Petra because he is only 8 years old is
absolutely exempt from criminal liability although not from civil liability. (Art. 12, par.
RPC).
BAR 2000
 While they were standing in line awaiting their vaccination at the school
clinic, Pomping repeatedly pulled the ponytail of Katreena, his 11 years, 2 months
and 13 days old classmates in Grade 5 at the Sampaloc Elementary School.
Irritated, Katreena turned around and swung at Pomping with a ball pen. The top of
the ball pen hit the right eye of Pomping which bled profusely. Realizing what she
had caused, Katreena immediately helped Pomping. When investigated, she freely
admitted to the school principal that she was responsible for the injury to Pomping’s
eye. After the incident, she executed a statement admitting her culpability. Due to the
injury, Pomping lost his right eye. (a) Is Katreena criminally liable? Why. (2) Discuss
the attendant circumstances and effects thereof.
Suggested answer
(a) No. Katreena is not criminally liable although she is civilly liable she is civilly
liable. Being a minor less than fifteen (15) year sold although over nine (9)
years of age, she is generally exempt from criminal liability. The exception is
where the prosecution proved that the act was committed with discernment.
The burden is upon the prosecution to prove that the accused acted with
discernment. The presumption is that such minor acted with without
discernment, and this is strengthened by the fact that Katreena only reacted
with a ballpen which she must be using in class at the time, and only to stop
Pomping’s vexatious act of repeatedly pulling her ponytail. In other words, the
injury was accidental.
(b) The attendant circumstances which may be considered are:
(1) Minority of the accused as an exempting circumstance;
(2) No intention to commit so grave a wrong;
(3) Sufficient provocation.
ACCIDENT
For accident to be appreciated, the following must concur:
a. The accused was performing a lawful act with due care;
b. The injury is caused by mere accident; and
53
c. There was no fault or intent of causing the injury. (People vs. Mat-an,
G.R. No. 91115, December 29, 1992)
This is because when the act is with fault, it will fall under culpa; when with
intent it will become an intentional felony. The accident must not be foreseeable or
there will be fault or criminal negligence. The basis of exemption from criminal
liability for accident is the lack of criminal intent. For an accident to become an
exempting circumstance, the act has to be lawful. The act of firing a shotgun at
another is not a lawful act. (People vs. Agliday, G.R. No. 140794, October 16, 2001)
An accident is an occurrence that “happens outside the sway of our will,
and although it comes about through some act of our will, lies beyond the bounds of
humanly foreseeable consequences.” It connotes the absence of criminal intent.
Here, appellant got his shotgun and returned to the kitchen to shoot his son, who had
intervened in his quarrel with his wife. A shotgun would not have fired off without first
being cocked. Undoubtedly, appellant cocked the shotgun before discharging it,
showing a clear intent to fire it at someone. (People vs. Agliday)
Drivers of vehicle who bump the rear of another vehicle are presumed to be
the cause of the accident, unless contradicted by other evidence. The rationale
behind this presumption is that the driver of the rear vehicle has full control of the
situation as he is in a position to observe the vehicle in front of him. Consequently,
the responsibility to avoid the collision with the front vehicle lies with the driver of the
rear vehicle. He has the last chance of avoiding the accident. (Judge Campanilla)
Example:
1. The blow out of a tire, there being no proof of excessive speed, resulting in the
death of a passenger of the truck, is also accidental (People v. Hatton).
2. An accidental shooting due to legitimate self-defense is exempting (People v.
Trinidad)
3. If in struggling with another who sought to wrest away his bolo, to defend his
possession the defendant wounded a bystander, who died as a consequence, the
injury causes is accidental. (People v. Bindoy, 56 Phil. 15).
Irresistible force
Irresistible force has the following elements:
a. The force must be physical, must come from an outside source and the
accused must act not only without a will but also against his will.
b. The actor must be reduced to a mere instrument, such that the element of
freedom is wanting.
c. The duress, force, fear or intimidation must be present, imminent and
impending and of such a nature as to induce a well-grounded fear of death
or serious bodily injury if the act is not done.
Simply put, the irresistible force must be physical and must come from a third
person. It cannot spring primarily from the offender himself. (People v. Fernando, 33
SCRA 149). A person who acts under the compulsion of an irresistible force, like one
who acts under the impulse of an uncontrollable fear of equal or greater injury is
exempt from criminal liability because he does not act with freedom.
Example:
If a person was struck with the butts of the guns of those who killed another to
compel him to bury their victims, he is not liable as an accessory because he acted
under the compulsion of irresistible force. (US v. Caballeros, 4 Phil. 850).
If one is compelled under fear of death to join the rebels, he is not liable for
rebellion because he acted under the impulse of uncontrollable fear of an equal or
greater injury.
INSUPERABLE CAUSE
Insuperable cause is an exempting circumstance which applies to felonies by
omission. The law imposes a duty on the offender to perform an act but his failure to
do so is due to a lawful or insuperable cause.
Examples:
1.Article 125 provides for the number of hours when a person arrested must be
delivered to the judicial authorities. Failure of the law enforcers to do so on valid
grounds such as request of the arrestee for preliminary investigation will result to
waiver of the provision of Article 125.
2. A mother who at the time of childbirth was overcome by severe dizziness and
extreme debility, and left the child in a thicket where said child died, is not liable for
infanticide, because it was physically impossible for her to take home the child. The
severe dizziness and extreme debility of the woman constitute an insuperable cause.
(Judge Campanilla)

3. A priest is exempt from criminal liability for the crime of misprision of treason for
failure to inform the authorities on conspiracy against the government which he
IMPULSE OF UNCONTROLLABLE FEAR
obtained by reason of confession made to him by one of the conspirators.
The elements of impulse of uncontrollable fear are:
Distinction between uncontrollable fear and irresistible force
a. Threat which caused the fear of an evil greater than or at least equal to that
(a) The irresistible force is a physical force coming from a stranger while
which the accused was required to commit;
uncontrollable fear is an impulse coming from within the person of the actor
himself.
b. It promised an evil of such gravity and imminence that the ordinary man
would have succumbed to it.
(b) In irresistible force, the actor acts without a will while in uncontrollable fear,
the actor acts not against his will but because he is endangered by the fear.
Impulse of uncontrollable fear and irresistible force are the same. They are
both grounded on duress or complete absence of freedom of action on the
(c) Both refer to external influences and not to physiological need.
part of offender.

54
 (d) The exempting circumstance in par. e of Art. 12 is also based on complete Mitigating circumstances shows lesser perversity of the offender
absence of freedom. and are considered to lower the penalty imposable generally to the minimum period
of the penalty prescribed in the law. They are matters of defense which do not have
Article 13 – Mitigating Circumstances. – The following are mitigating
to be alleged in the information.
circumstances:
The rationale behind the whole concept of mitigating circumstance is to
1. Those mentioned in the preceding chapter, when all the requisites
show mercy and some extent of leniency in favour of accused who has nevertheless
necessary to justify the act or to exempt from criminal liability in the
shown lesser perversity in the commission of an offense. Thus, where the evidence
respective cases are not attendant.
on record bespeaks of vileness and depravity, no mercy or leniency should be
2. That the offender is under eighteen (18) years of age or over seventy
accorded an accused who should be made to suffer in full for acts perpetrated with
(70) years. In the case of the minor, he shall be proceeded against in
complete voluntariness and intent for their tragic consequences.
accordance with the provisions of Article 80.
3. That the offender had no intention to commit so grave a wrong as that Article 13 enumerates ordinary mitigating circumstances with the effect of
committed. reducing the penalty to the minimum period. However, in case of:
4. That sufficient provocation or threat on the part of the offender party
a. Minority, it is never ordinary but is always privileged mitigating if not
immediately preceded the act.
altogether exempting; and
5. That the act was committed in the immediate vindication of a grave
b. Incompleteness of the requisites to exempt from criminal liability or justify
offense to the one committing the felony (delito), his spouse,
the act which becomes privileged mitigating when majority of the
ascendants, descendants, legitimate natural or adpted brothers or
requisites are present under paragraph 1 for Article 69 which allows
sisters, or relatives by affinity within the same degree.
reduction of penalty by a degree.
6. That of having acted upon an impulse so powerful as naturally to have
produced passion or obfuscation. Outside of Article 13 are extenuating circumstances (such as concealment
7. That the offender had voluntarily surrendered himself to a person in of dishonour on the part of the mother in infanticide) which have the effect of
authority or his agent, or that he had voluntarily confessed his guilt reducing the penalty either to the minimum period (ordinary mitigating) or by degree
before the court prior to the presentation of the evidence for the (privileged mitigating).
prosecution.
8. That the offender is deaf and dumb, blind, or otherwise suffering some Kinds of mitigating circumstances:
physical defect which thus restricts his means of action, defense, or a. Ordinary – lowers the penalty to the minimum period. The penalty must
communication with his fellow beings. be divisible for an indivisible period has no penalty.
9. Such illness of the offender as would diminish the exercise of the
will-power of the offendefr without however depriving him of b. Privileged- lowers the penalty prescribed by one or more degrees whether
consciousness of his acts. it be a divisible or indivisible penalty.
10. And, finally, any other circumstances of a similar nature and analogous
to those above mentioned.

Mitigating Circumstances

55
 c. Specific- applies to a specific felony like concealment of dishonour in the
case of abortion by the pregnant woman and could either be ordinary or
privileged depending upon the extent of reduction of penalty.
Distinctions between ordinary and privileged mitigating circumstances:
a. Ordinary can be offset by generic aggravating circumstance; Privileged
cannot be offset by any kind of aggravating circumstance.
b. Ordinary mitigating lowers the penalty prescribed to the minimum period
except where there are 2 ordinary mitigating and absolutely no
aggravating circumstance in which case the penalty is lowered by 1
degree only. Privileged mitigating lowers the penalty by degree. Thus, if a
provision of the Revised Penal Code states that the penalty for a
particular felony is lowered by one or two degrees in view of the presence
of a particular circumstances which cannot be offset by any generic
aggravating. Example: Article 69 on incomplete justification/exemption.
c. Ordinary mitigating is not considered in the determination of the proper
penalty when the penalty prescribed is a single indivisible penalty, such
as reclusion perpetua (paragraph 1, Article 63). Privileged is considered
whatever penalty is imposable.
INCOMPLETE JUSTIFYING OR EXEMPTING CIRCUMSTANCES
The first mitigating circumstance is the incompleteness of the requirements to
justify the act or exempt from criminal liability under Articles 11 and 12. This should
be related to Article 69 which prescribes a privileged mitigating circumstance if
majority of the requisites to exempt or justify are present, and which lowers the
penalty by a degree. Otherwise, Article 13, no. 1 shall apply, and the penalty shall be
lowered to the minimum period only.
When two of the three requisites mentioned there are present (for example,
unlawful aggression and any of the other two), the case must not be considered as
one in which an ordinary or generic mitigating circumstance is present. Instead, it
should be considered privileged mitigating circumstance referred to in Article 69 of
the Revised Penal Code.
Thus, if in self-defense there was unlawfull aggression on the part of the
deceased, the means employed to prevent or repel it was reasonable, but the one
making a defense gave sufficient provocation, he is entitled to a privileged mitigating
circumstance, because the majority of the conditions required to justify the act is
present.

The mitigating circumstances are: Simplified rules

a. Incomplete justifying or exempting circumstances; 1.If all the requisites of a circumstance mentioned in Article 11 (justifying) or 12
b. Minority/senility; (exempting) are present, justifying or exempting circumstance shall be appreciated.
c. Praeter intentionem;
2.If majority of the requiaites of such circumstance are present, the privileged
d. Sufficient provocation or threat;
mitigating circumstance of incomplete justification or exemption shall be appreciated
e. Immediate vindication of a grave offense;
(Article 69 RPC)
f. Passion or obfuscation;
g. Voluntarily surrender; 3. If only minority of the requisites of such circumstance is present, the ordinary
h. Voluntarily plea of guilt; mitigating circumstance of incomplete justification or exemption shall be appreciated
i. Deaf and dumb blind or other physical defect; (Article 13 RPC)
j. Illness;
k. Analogous circumstances. 4. If a circumstance has three (3) requisites, such as self-defense, two out of three
conditions is majority.

56
5. If a circumstance has only two (2) requisites, such as performance of duty, one out
of two conditions is tantamount to majority. (People vs. Oanis and Galanta, G.R. No.
47722, July 27, 1943)
MINORITY
Under the present law, minority is either exempting or privileged mitigating
circumstance. If the child in confict with the law is 15 years of age or below, or the
child is aove 15 years of age but acted without discernment, minority is an exempting
circumstance. Minority a privileged mitigating circumstance for pursuant to Article
68(2) when the offender is over 15 but less than 18 but he acted with discernment,
the penalty shall be 1 degree lower but in the proper period. If he is 15 or under he is
now absolutely exempt from criminal prosecution by virtue of R.A. 9344 which
repealed Article 68(1).
If the child reached 18 years of age while under suspended sentence, the
court shall determine whether:
a) To discharge the child in accordance with the applicable provisions of R.A. 9344;
b) To order execution of sentence;
c) To extend the suspended sentence for a specified period or until he reaches the
maximum age of 21. (Section 40)
The offender must be a minor under 18 at the time of the commission of the
crime. If he were then 18 or over, he is no longer a minor in the eyes of the law.
Penal laws should be liberally construed in favour of the offender.
Considering the gravity of the offense and in the interest of justice, the presentation
and admission of the birth certificate of the accused to prove minority should be
allowed although said certificate was not presented or offered in the trial court. An
official document prepared by the DSWD in the exercise of its functions and
incorporated in the case records can be taken judicial notice ex mero motu. (People
vs Regalario, 220 SCRA 368)
SENILITY
Senility (over 70) is an ordinary mitigating circumstance. Prior to R.A. 9346
prohibiting the imposition of the death penalty, when the penalty imposable is death it
57
shall be reduced to reclusion perpetua pursuant to Article 83, thus partaking of the
nature of a privileged mitigating circumstance. Likewise, senility entitles the convict
to pardon under Article 160, unless he is a habitual delinquent or his conduct
disqualifies him.
Under Article 13 (2) of the Revised Penal Code, the mitigating circumstance
of seniority is present if the accused is over 70 years of age. Thus, on his 70th
birthday, an offender is not yet a senior citizen; he becomes a senior citizen after his
70th birthday. It must be noted, however, that seniority as amitigating circumstance
can only considered if the offender is over 70 years of age at the time of the
commission of the crime and not at the time of the promulgation of the decision
(People vs. Reyes, G.R. No. 177105-06, August 12, 2010)
PRAETER INTENTIONEM
In praeter intentionem or the mitigating circumstance of lack of intention
to commit so grave a wrong.
The mitigating circumstance that the offender had no intention to commit so
grave a wrong as that committed or praetor intentionem is obtaining when there is a
notable disparity between the means employed by the accused to commit a wrong
and the resulting crime committed.
The intent of the accused may be gleaned from his external acts, like the kind
of weapon he used in committing the crime, the parts of the body of the victim where
the injury was inflicted and how this injury was inflicted (People v. Amoto, 111 SCRA
39). Simply put, the mitigating circumstance of praeter intentionem cannot be
appreciated where the acts employed by accused were reasonably sufficient to
produce the death of the victim (People vs. Sales, G.R. No. 177218, October 3,
2011)
Examples:
1. For coming in late drunk, H slapped his wife, W, who fell and her head hitting the
edge of the table. Suffering from internal hemorrhage, W died in the hospital. If
prosecuted, H can avail himself of the rule of praeter intentionem.
2. The acts of the offender in striking at the victim with his fist, who fell down and a
result hit hIs head on the pavement causing cerebral hemorrhage which cause his
death (People v. Cagoco, 58 Phil. 524).
3. The accused kicked the stomach and chest of the victim, who was lying on the
pavement dead drunk. Victim died at the hospital. The mitigating circumstance of
lack of intent to commit so grave a wrong as that committed was appreciated in favor
of the accused for he had no intent to kill when he attacked the victim. His intention
was merely to inflict injuries on the victim. (People vs. Flores, G.R. No. 116524,
January 18, 1996)
SUFFICIENT PROVOCATION
The rule is that, as a mitigating circumstance, sufficient provocation is any
unjust or improper conduct or act of the victim adequate enough to excite a person to
commit a wrong, which is accordingly proportionate in gravity. This circumstance can
only be appreciated against person. Hence, one cannot provoke another person to
commit forcible abduction, theft or estafa.
The elements of sufficient provocation are:
a. The provocation must be sufficient;
b. It must be immediate to the commission of the crime;
c. It must originate from the offended party.
“Sufficient” according to jurisprudence means adequate to excite a person to
commit the crime must accordingly be proportionate to its gravity.
Provocation is immediate if no interval of time elapsed between the
provocation and the commission of the crime. (People vs. Pagal, 79 SCRA 570).
“Immediate” on the other hands means that there is no interval of time
between the provocation and the commission of the crime. Hence, in one case,
(People vs. Co, 67 O.G. 7451) the Supreme Court ruled that provocation occurring
more than one hour before the stabbing incident is not immediate and in People vs.
Benito, 62 SCRA 351, in like manner, provocation happening 24 hours before the
commission of the crime is also not immediate.
58
Sufficient provocation as a requisite of incomplete self-defense is different
from sufficient provocation as a mitigating circumstance. As an element of
self-defense, it requires its absence on the part of the person defending himself; as a
mitigating circumstance, it pertains to its presence on the part of the offended party.
(People vs. CA, G.R. No. 103613, February 23, 2001)
Example:
1. The taunting done by the victim calling the accused gay, occurred days before the
stabbing incident, hence the immediacy required by law was absent. The lapse of
time would have given the accused chance to contemplate and to recover his
serenity enough to refrain from pushing through his evil plan.
2. In one case, the Supreme Court ruled that “accused cannot claim that he was
provoked when the offended ran away from him because the hapless victim feared
for his life.” In fact, when the offended party flees from his aggressor, the latter ha
sno reason to pursue and attack him. (People vs. Padilla, G.R. No. 75508, June 10,
1994)
IMMEDIATE VINDICATION OF GRAVE OFFENSE
In immediate vindication of grave offense, “offense” need not be a crime. It
may be any act or event which offends the accused causing mental agony to him
and moves him to vindicate himself of such offense.
Requisites:
1. That there be a grave offense done to the one committing the felony, his
spouse, ascendants, descendants, legitimate, natural or adopted brothers or
sisters, or relatives by affinity within the same degrees;
2. That the felony is committed in vindication of such grave offense. A lapse of
time is allowed between the vindication and the doing of the grave offense.
“Offense” need not be a crime. It may be any act or event which offends the
accused causing mental agony to him and moves him to vindicate himself of such
offense.
 For example, insulting an old man in the presence of so many people, (U.S.
vs. Ampar, 37 Phil. 301), or eloping with the offender’s daughter. (People vs. Diokno,
63 Phil. 601).
“Immediate” means proximate, unlike in sufficient provocation, and allows an
interval of time between the commission of the offense and its vindication as long as
the offender is still suffering from the mental agony brought about by the “offense” to
him. (People vs. Parana, 64 Phil. 331)
It was ruled by the Supreme Court that the benefit of immediate vindication of
a grave offense cannot be considered in favour of the accused when he had
sufficient time to recover his serenity (People vs. Santos)
The lapse of two weeks from the discovery of the wife’s infidelity and the
killing of the alleged paramour could no longer be considered proximate. There can
be no immediate vindication of a grave offense when the accused had sufficient time
to recover his sanity (People vs. Ignas, G.R. No. 140514-15, September 30, 2003).
(Boado)
If the grave offense is committed by a third person against the adopted
brother of the accused, vindication is not a mitigating circumstance. To appreciate
this circumstance, the victim himself must commit the grave offense. (People vs.
Dagatan, G.R. No. L – 10851, August 28, 1959)
PASSION OR OBFUSCATION
In passion or obfuscation it is necessary that it arose from offender’s lawful
sentiments. There must be an act on the part of the offended which is unlawful and
sufficient to excite passion or obfuscation on the accused. Said act must not be far
removed from the commission of the crime by a considerable length of time during
which the offender might have recovered his senses.
This provision requires the following ingredients:
1. There was an act that was both unlawful and sufficient t produce such
condition (passion or obfuscation) of the mind;
2. The accused acted upon an impulse.
59
3. The impulse must be so powerful that it naturally produced passion or
obfuscation in him.
4. Passion must arise from lawful sentiment of the offender and not from spirit of
lawlessness or revenge.
Examples:
(a) Killing the deceased with whom the offender lived for several years because
she left him to live with another man, is not the passion that is mitigating
because it did not originate from legitimate feelings (US v. Hicks)
(b) If the accused injured the offended party who made indecent propositions to
a woman with whom the accused had illicit relations, the obfuscation of the
accused is not mitigating because his relationship with the woman was
illegitimate (People v. Olgado, G.R. No. L – 4406, March 31, 1952).
(c) But killing a common law wife whom the accused surprised in flagrante in
carnal intercourse with a friend is passion that is mitigating because the
offender acted under an impulse caused by a sudden discovery that the
woman proved untrue to him (US vs. Dela Cruz)
(d) The killing by the accused of her common law husband with whom she lived
for 15 years but who married another woman, produced passion that is
mitigating because it arose from that natural feeling of despair in a woman
who saw her life broken and found herself abandoned by the very man for
whom she made so many sacrifices (People vs. Engay).
(e) There is passion or obfuscation where the accused boxed the victim after he
saw the latter box his four-year old son. The accused did so, momentarily
blinded by anger and lost sight of the fact that his son’s adversary was but a
nine-year old boy (People vs. Castro, 117 SCRA 1014)
(f) The accused who raped his victim in extreme state of passion, is not entitled
to mitigating circumstance of passion because this circumstance can only be
appreciated if passion arose from lawful sentiment of the offender and not
from spirit of lawlessness (People vs. Sanico)
Source of Mitigation
1.In provocation, the source of mitigating circumstance is the provocative act of the
offended party.
2. In vindication, the source of mitigating circumstance is the grave committed by the
offended party.
3. In passion, the source of mitigating circumstance is the unlawful or unjust act by
the offended party that produced obfuscation or passion arising from a lawful
sentiment.
Interval of Time
1.In provocation, the provocation must immediately precede that act, that there be no
interval of time between the provocation on the part of the victim and thecommision
of the crime by the offender.
2.In passion, the commission of the crime need not be immediately preceded by
unlawful or unjust act that produced the passion; what is important is that such act
was not far removed from the commission of the crime by a considerable length of
time, during which the perpetrator might recover his normal equanimity (People vs.
Aguinaldo)
3. In vindication, the vindication of the grave offense may be proximate, which
requires that interval of time between the grave offense done by the victim and the
commission of the crime by the offender must not be sufficient for the accused to
regain his composure or his moral equanimity (People vs. Ventura)
VOLUNTARY SURRENDER and VOLUNTARY PLEA OF GUILTY
Voluntary surrender and voluntary plea are independent of each other and
can be simultaneously and separately considered in favour of the offender being
based on different grounds.
The elements of voluntary surrender are:
a. The offender surrendered to a person in authority or his agent;
b. The offender surrendered before arrest is effected;
c. It must be voluntary, i.e., spontaneous and must show the intent of the
accused to submit himself unconditionally to the authorities, either
60
because he acknowledges his guilt or he wishes to save them the trouble
and expense incidental to his search and capture;
d. There is no pending warrant of arrest or information filed. (People vs.
Taraya, G.R. No. 135551, October 27, 2000)
Voluntary surrender can be appreciated even if the accused turned themselves
one week after the crime. The fact is they voluntarily surrendered to the police before
arrest could be effected. (People vs. Amaguin, G.R. Nos. 54344-45, January 10,
1994)
Since it was the police who went looking for the accused immediately after
obtaining information from eye witnesses as to who had perpetrated the crime even if
he did not resist arrest or deny his criminal act, this cannot be equated with voluntary
surrender. (People vs. Rebamontan, G.R. No. 125318, April 13, 1999)
Taraya, G.R. No. 135551, October 27, 2000, added a fourth requisite that there
was no pending warrant of arrest or information filed. When AA learned that the
police were looking for him for the death of SS, he immediately went to the police
station where he confessed to killing SS in self-defense. However, the surrender
does not constitute as a mitigating circumstance for he had a pending arrant of arrest
issued five days before his surrender. His arrest by that time was imminent.
However, in the case of People vs. Agacer, G.R. No. 177751, December 14,
2011, the Supreme Court ruled that surrender made after 14 days from the date of
the killing cannot be considered voluntary since his act did not emanate from a
natural impulse to admit the killing or to save the police officers the effort and
expense that would be incurred in his search and incarceration.
In another case, the Court declared that surrender is not voluntary where the
accused went to the Barangay Chairman after killing to seek protection against the
retaliation of the victim’s relatives, not to admit his participation in the killing of the
victim (People vs. Del Castillo, G.R. No. 169084, January 18, 2012)
Still in another case, going to the police to make an inquiry is not a mitigating
circumstance of voluntary surrender since he did not submit himself to authorities to
acknowledge his guilt. (People vs. Verceles, G.R. No. 130650, September 10, 2002)
BAR 1997: Plea of Guilty; Voluntary Surrender.
 After killing the victim, the accused absconded. He succeeded in eluding
the police until he surfaced and surrendered to the authorities about two (2) years
later. Charged with murder, he pleaded not guilty but, after the prosecution had
presented two witnesses implicating him to the crime, he changed his plea to that of
guilty. Should the mitigating circumstances of ‘voluntary surrender’ and ‘plea of guilty’
be considered in favour of the accsued?
Suggested answer
Voluntary surrender should be considered as a mitigating circumstance.
After two years, the police were still unaware of the whereabouts of the accused and
the latter could have continued to elude arrest. Accordingly, the surrender of the
accused should be considered mitigating because it was done spontaneously,
indicative of the remorse or repentance on the part of said accused and therefore, by
his surrender, the accused saved the Government expenses, efforts, and time.
Alternative answer
Voluntary surrender may not be appreciated in favour of the accused. Two
years is too long a time to consider the surrender as spontaneous (People vs. Ablao,
183 SCRA 658). For sure the government had already incurred considerable efforts
and expenses in looking for the accused.
BAR 1996 – Voluntary surrender
Hilario, upon seeing his son engaged in a scuffle with Rene, stabbed and killed
the latter. After the stabbing, he brought his son home. The Chief of police of the
town, accompanied by several policemen, went to Hilario’s house, Hilario, upon
seeing the approaching policemen, came down from his house to meet them and
voluntarily went with them to the police station to be investigated in connection with
the killing. When eventually charged with convicted with homicide, Hilario, on appeal,
faulted the trial court for not appreciating in his favour the mitigating circumstance of
voluntary surrender. Is he entitled to such a mitigating circumstance? Explain.
Suggested answer
Yes, Hilario is entitled to the mitigating circumstance of voluntary surrender. The
crux of the issue is whether the fact that Hilario went home after the incident, but
came down and met the police officers and went with them is considered “voluntary
61
surrender.” The voluntariness of the surrender is tested if the same is spontaneous
showing the intent of the accused to submit himself unconditionally to the authorities.
This must be either (a) because he acknowledges his guilt, or (b) because he wishes
to save them the trouble and expenses necessarily incurred in his search and
capture. Thus, the act of the accused in hiding after the commission of the crime, but
voluntarily went with the policemen who had gone to his hiding place to investigate,
was held to be mitigating circumstance.
The elements of voluntary plea of guilty are:
a. The accused spontaneously confessed his guilt;
b. The plea was made in open court (judicial confession)
c. The confession was made before a competent court trying the case.
d. Made before presentation of the evidence by the prosecution
Voluntary plea of guilty is mitigating because it is an act of repentance and
respect for the law; it indicates a moral disposition in the accused favourable to his
reform. (People v. De la Cruz, 63 Phil. 874)
A plea of guilty after the prosecution had begun presenting its evidence
cannot be considered voluntary since it was made only after the accused realized
that the evidence already presented by the prosecution is enough to cause his
conviction. It is not required that the prosecution must have presented all its
evidence when the plea of guilty was made to negate the appreciation of mitigating
circumstance of voluntary confession (People vs. Montinola, G.R. No. 131856-57,
July 9, 2001)
Rule in plea to a lesser offense
If the plea to a lesser offense was allowed by the court pursuant to a plea
bargaining agreement, confession shall be appreciated as mitigating circumstance. If
the offer of plea to a lesser offense was rejected by the public prosecutor, confession
may or may not be appreciated depending upon the crime charged and that proven.
If the crime charged is murder, but the crime proven is homicide, the plea to a
lesser offense of homicide constitutes a mitigating circumstance of voluntary
confession because it is not the fault of the accused that the prosecution erroneously
alleged a qualifying circumstance in the information without supporting evidence
(People vs. Yturriaga, G.R. No. L – 2816, May 31, 1950). This is a mitigating
circumstance because the offer of plea pertains to the crime proven.
If the crime charged and proven is murder, the offer of plea to a lesser
offense of homicide does not constitute a mitigating circumstance since the offer of
plea does not pertain to the crime proven (People vs. Dawaton, G.R. No. 146247,
September 17, 2002)
Example 1
During his arraignment, X entered a plea of not guilty. After the pre-trial
conference was conducted, trial proceeded, and while the direct examination of the
first witness for the prosecution, X through his counsel, asked the court that his
testmonies be discontinued as he was willing to withdraw his former plea of not guilty
to be substituted by a plea of guilty. Should the court allow the discontinuance of the
testimonies of the first witness for the prosecution and the accused to enter a plea of
guilty? The accused is no longer entitled to this mitigating circumstance as the
prosecution had already presented part of the testimonies of the first witness.
Example 2
Voluntary plea of guilty is mitigating because it is an act of repentance and
respect for the law. It indicates a moral disposition in the accused favourable to his
reform.
BAR 1999 – Plea of guilty
An accused charged with the crime of homicide pleaded “not guilty” during
the preliminary investigation before the Office of the Provincial Prosecutor. Upon the
elevation of the case to the Regional Trial court, the Court of competent jurisdiction,
he pleaded guilty freely and voluntarily upon arraignment. Can his plea of guilty
before the RTC be considered spontaneous and thus entitle him to the mitigating
circumstance of spontaneous plea of guilty under Article 13 (7) of the RPC?
Suggested answer
Yes, his plea of guilty before the Regional Trial Court can be considered
spontaneous, for which he is entitled to the mitigating circumstance of plea of guilty.
His plea of not guilty before the Office of the Provincial Prosecutor is immaterial as it
was made during the preliminary investigation only and before an office not
competent to render judgment.

X was charged in court for murder. During the arraignment, X offered to the DEAF and DUMB or BLIND
prosecution to plead guilty to the lesser offense of homicide. The public prosecutor
The offender’s being deaf and dumb or blind or otherwise suffering from
and the private complainant did not agree. The court proceeded with the trial and the
some physical defect must be related to the offense committed because the law
accused was eventually found guilty of homicide. In this case, the accused is entitled
requires that the defect has the effect of restricting his means of action, defense or
to the mitigating circumstance of plea of guilty.
communication to his fellow beings.
An extra-judicial confession is not mitigating because it is not made in open
The fact that accused suffers from a physical defect like a severed right hand,
court. The court must be one of original jurisdiction because it must be made at the
or amputated left leg, does not mean that he should be automatically be credited with
earliest opportunity and before the presentation of the prosecution’s evidence. If the
the mitigating circumstance of physical defect. In order for this condition to be
court where the plea of guilty was made without jurisdiction and later on accused
appreciated, it must be shown that such physical defect limited his means to act,
pleaded guilty before the proper court, the proceedings before the former is void
defend himself or communicate with his fellow beings to such an extent that he did
while the plea of guilty on the latter is mitigating.
not have complete freedom of action, consequently resulting in diminution of the
In a case it was stated that a confession of guilt made before the media is element of voluntariness (People vs. Deopante, G.R. No. 102772, October 30, 1996)
not within the benefit if this provision but should be viewed with caution for there is
ILLNESS
the possibility of the law enforcer making use of the media to extract confession from
the suspect.

62
 Illness must only diminish and not deprive the offender of the consciousness
of his acts. Otherwise he will be exempt from criminal liability. For instance,
schizophrenia is mitigating because it diminishes but not deprive the accused of the
consciousness of his act.
ANALOGOUS CIRCUMSTANCES
Analogous circumstances must be similar to those enumerated in Article 13.
Examples of these are:
1. Restitution of the questioned funds by petitioner may be considered
mitigating circumstance in malversation of public funds (Nizurtado vs.
Sandiganbayan, G.R. No. 107383, December 7, 1994) as analogous to
voluntary plea of guilty.
2. That petitioner voluntarily took the cow to the municipal hall to place it
unconditionally in the custody of the authorities and thus save them the
trouble of recovering the cow, can be analogous to voluntary surrender.
(Canta vs. People, G.R. No. 140937, February 28, 2001)
3. Extreme poverty is not among the mitigating circumstances enumerated
in Article 13 of the Code and it is doubtful whether it may be considered
as a circumstance of a similar nature or analogous to those mentioned
therein.
But in one case, the Supreme Court ruled that the accused who
committed theft out of extreme poverty, is entitled to mitigating
circumstance similar to incomplete justification or state of necessity.
Extreme poverty and necessity are mitigating circumstances under Article
13 (10) of the Revised Penal Code in the recognition of the principle that
the right to life is more sacred than a mere property right. This rule is not
to encourage or even countenance theft, but merely to dull somewhat the
keen and pain-producing edges of the stark realities of life (People vs.
Macbul, G.R. No. 48976, October 11, 1943)
But the Supreme Court clarified that extreme poverty as a mitigating
circumstance can only be appreciated in crimes against property such as
theft. It cannot be considered in the crime of murder (People vs. Agusting,
G.R. No. L – 18368, March 21, 1966) or sale of dangerous drugs
63
committed by a minor (Gallardo vs. Tabamo, Adm. Matter No. RTJ –
92-881, June 22, 1994)
4. If a person is over 60 years old with failing eyesight is similar to a person
over 70 years old.
5. If the accused was well-know and respected, his act of retaliation when
assaulted during a public dance is similar to vindication.
6. Outrage feeling of debtor against his creditor is analogous to passion or
obfuscation (People vs. Ong, G.R. No. L – 34497, January 30, 1975)
7. Testifying for the prosecution without previous discharge as a state
witness is a mitigating circumstance analogous to voluntary surrender
(People vs. Navasca, G.R. No. L – 28107, March 15, 1977)
BAR 2019
Mr. X and Mr. Y engaged in a violent fistfight which Mr. X instigated. This
culminated in Mr. X repeatedly smashing Mr. Y's head on the concrete pavement.
Thereafter, Mr. X left Mr. Y barely breathing and almost dead. A few minutes after the
incident, Mr. X immediately went to the police station to confess what he did and told
the police where he left Mr. Y. Fortunately, the police rescued Mr. Y and he survived
with the help of timely medical intervention. Mr. X was then charged in court with
Frustrated Homicide, to which he openly confessed his guilt upon arraignment.
(a) Based on the above-stated facts, what is/are the mitigating
circumstance/s that may be appreciated in favor of Mr. X. Explain.
(b) Under the Revised Penal Code, Homicide is punished with the penalty
of reclusion temporal. Without applying the Indeterminate Sentence Law,
what penalty should be imposed against Mr. X assuming that he is found
guilty of the charge of Frustrated Homicide, and that the presence of two (2)
ordinary mitigating circumstances have been duly alleged and proven?
Explain.
Article 14 – Aggravating Circumstances. The following are aggravating
circumstances:
1. That advantage be taken by the offender of his public position.
2. That the crime be committed in contempt of or with insult to the public
authorities.
3. That the act be committed with insult or in disregard of the respect due
the offended party on account of his rank, age, or sex, or that it be
committed in the dwelling of the offended party, if the latter has not
given provocation.
4. That the act be committed with abuse of confidence or obvious
ungratefulness.
5. That the crime be committed in the palace of the Chief Executive, or in
his presence, or where public authorities are engaged in the discharge
of their duties or in a place dedicated to religious worship.
6. That the crime be committed in the nighttime or in an uninhabited place,
or by a band, whenever such circumstances may facilitate the
commission of the offense.
Whenever more than three armed malefactors shall have acted together
in the commission of an offense, it shall be deemed to have been
committed by a band.
7. That the crime be committed on the occasion of a conflagration,
shipwreck, earthquake, epidemic, or other calamity or misfortune.
8. That the crime be committed with the aid of armed men or person who
insure or afford impunity.
9. That the accused is a recidivist.
A recidivist is one who, at the time of his trial for one crime, shall have
been previously convicted by final judgment of another crime embraced
in the same title of this Code.
10. That the offender has been previously punished for an offense to which
the law attaches an equal or greater penalty or two or more crimes to
which it attaches a lighter penalty.
11. That the crime be committed in consideration of a price, reward, or
promise.
12. That the crime be committed by means of inundation, fire, poison,
explosion, stranding of a vessel or intentional damage thereto,
64
derailment of a locomotive, or by the use of any other artifice involving
great waste and ruin.
13. That the act be committed with evident premeditation.
14. That craft, fraud, or disguise be employed.
15. That advantage be taken of superior strenght, or means be employed to
weaken the defense.
16. That the act be committed with treachery (alevosia).
There is treachery when the offender commits any of the crimes against
the person, employing means, methods or forms in the execution
thereof which tend directly and specially to insure its execution, without
risk to himself arising from the defense which the offended party might
make.
17. That means be employed or circumstances brought about which add
ignominy to the natural effects of the act.
18. That the crime be committed after an unlawful entry.
There is an unlawful entry when an entrance is effected by a way not
intended for the purpose.
19. That as a means to the commission of a crime a wall, roof, floor, door,
or window be broken.
20. That the crime be committed with the aid of persons under fifteen years
of age, or by means of motor vehicle, airships, or other similar means.
21. That the wrong done in the commission of the crime be delilberately
augmented by causing other wrong not necessary for its commission.
Aggravating Circumstances
Aggravating circumstances are those which show greater perversity of the
offender, hence, they have the effect of increasing the penalty to the maximum
period.
Aggravating and mitigating circumstances may be distinguished as follows:
1. The list in Article 13 on mitigating circumstance includes analogous
circumstances showing the liberality of the law in favour of the accused; in
Article 14 which enumerates aggravating circumstance, the list is exclusive to
 curtail discretion of the judge to determine what other circumstances may
increase the penalty.
2. Mitigating circumstance may lower the penalty by degrees as in the case of
privileged mitigating circumstances and of two ordinary mitigating concurring
without any aggravating per Article 64, no. 5; aggravating circumstances, no
matter how many can only increase the penalty to the maximum period within
that penalty prescribed by law. The increase can never be by degree.
3. Mitigating circumstance is a matter of defense which does not have to be
alleged in the information; aggravating circumstances must be alleged in the
information before they can be proved and appreciated.
Take note that the mitigating and aggravating circumstances shall not be
considered in the imposition of the penalty in the following cases:
1. If the crime is imprudence or negligence;
2. If the penalty is single and indivisible;
3. If special law has not adopted the technical nomenclature of the penalties of
the Revised Penal Code.
Principles Governing Generic aggravating circumstances:
1. Have the effect of the penalty being imposed in the maximum period. Note that the
penalty prescribed in Book II is the maximum imposable, thus the increase in the
penalty cannot be to the next higher degree but only to the maximum period;
2. Apply to all felonies generally; and
3. Can be offset by an ordinary mitigating circumstance.
Section 9, Rule 110 of The Revised Rules of Criminal Procedure (effective
December 1, 2000) requires that every complaint or information must expressly and
specifically allege not only the qualifying but also the generic aggravating
circumstances. The Revised Rules is applicable to all cases, not only where the
aggravating circumstance would increase the penalty to death. (People vs. Legaspi,
G.R. Nos. 1336164-65, April 20, 2001). Prior to the Revised Rules the non-allegation
of generic aggravating circumstances duly proven in the course of the trial could be
taken into account by the trial court in determining the imposable penalty.
65
The circumstances enumerated in Article 14 are generic. If some of them are
qualifying in particular crimes such as treachery, evident premeditation, etc. in
murder it is because the specific provision makes them so. However, in order to be
appreciated against the accused, the same should be alleged in the Information and
proved during the trial asmandated by the Rules of Criminal Procedure. It follows
therefore, that even though proved during the trial but the same was not alleged in
the Information, it could not be appreciated against the accused.
Principles Governing Qualifying circumstances:
1. Cannot be offset by any mitigating circumstance.
2. Change the nature of the crime and the designation of the offense.
3. Must be alleged in the information, otherwise cannot be considered as this will
violate the right of the accused to be informed of the nature of the accusation against
him. This is because qualifying circumstances change the crime committed. This is
beside the fact that the Revised Rules of Court require specification of qualifying
circumstances in the information.
4. Must be proved as conclusively as the guilt of the offender because they are
elements of the offense. With the change in the offense comes the change in the
penalty. For instance, homicide is penalized with reclusion temporal (20 years
maximum). With one qualifying circumstance, it becomes murder penalized with
reclusion perpetua (40 years maximum), thus the penalty is doubled. Technically, it is
not the qualifying circumstance that increases the penalty but the change in the
crime committed.
BAR 2000
Rico, a member of the Alpha Rho Fraternity, was killed by Pocholo, a member
of the rival group, Sigma Phi Omega. Pocholo was prosecuted for homicide before
the Regional Trial Court in Iloilo City. During the trial, the prosecution was able to
prove that the killing was committed by means of poison, in consideration of a
promise or reward and with cruelty. If you were the Judge, with what crime will you
convict Pocholo? Explain.
Suggested answer:
 Pocholo should be convicted of the crime of homicide only because the
aggravating circumstances which should qualify the crime to murder were not
alleged in the Information.
The circumstances of using poison, in consideration of a promise or reward,
and cruelty which attended the killing of Rico could only be appreciated as generic
aggravating circumstances since none of them have bee alleged in the Information to
qualify the killing to murder. A qualifying circumstance must be alleged in the
Information and proven beyond reasonable doubt during the trial to be appreciated
as such.
Principles Governing Special or specific aggravating circumstances
1. They apply to a particular felony and
2. They do not change the character of the offense charged but guide the court in
imposing the proper penalty. (People vs. Agguihao, G.R. No. 104725, March 10,
1994)
3. The same rule as in generic aggravating applies to special aggravating
circumstances as both do not change the character of the offense charged.
Examples are:
(1) Commiting a crime while under the influence of dangerous drugs (RA
9165) and
(2) Use of loose firearm in certain crimes (RA 10591).
(3) R.A. 7659 added the circumstance of “organized/syndicated group” in
article 62 (1a). This is a special aggravating circumstance because Article 14 was
not correspondingly amended to include the same. The maximum penalty shall be
imposed if the offense was committed by any person belonging to an
organized/syndicated crime group which is defined as a group of 2 or more persons
collaborating, confederating, or mutually helping one another for purposes of gain in
the commission of any crime.
Principle Governing Inherent aggravating circumstance
66
Which is an element of the felony thus no longer considered against the
offender in the determination of the penalty (Art. 62, no. 2. Like the use or by means
of fire is no longer considered in the crime of arson. Relationship is also not
appreciated in the crimes of adultery, concubinage or bigamy. In the same way,
abuse of confidence is not considered in the crime of qualified theft.
Purpose of alleging qualifying circumstance in the information
The rationale for the requirement to be informed of the existence of the
qualifying circumstance is for accused to prepare properly for his defense to meet
head-on the qualifying circumstance and because such circumstance changes the
nature of the charge against him. (People vs. Abuyen, G.R. No. 77285, September 4,
1992)
One qualifying circumstance is sufficient
Where one of the aggravating circumstances has been used as a qualifying
circumstance, the others will be generic. Since treachery has qualified the crime as
murder, evident premeditation should be considered as generic. (People vs. Fabros,
G.R. No. 90603, October 19, 1992)
Taking advantage of official position
This is classified as a special aggravating circumstance, which cannot be
offset by a mitigating circumstance as provided for by Article 62 of the Revised Penal
Code, as amended by RA no. 7659, which provides that “when in the commission of
the crime, advantage was taken by the offender pf his public position, the penalty to
be imposed shall be in its maximum regardless of mitigating circumstance.
The offender is a public officer who availed of the influence or reputation
inherent in his position for the purpose of committing the crime. The offender must
avail himself of the prestige, or ascendancy which goes with his position as ameans
of securing the execution of the crime. In other words, the position must in any way
facilitated its commission. (People vs. Yturriaga, 86 Phil. 534).
If the abuse of the office is an integral element of the felony as in falsification
of public document by a public officer who took advantage of his official position,
bribery or malversation, the circumstances is not considered. The same is true in the
crime of plunder. This means that this aggravating circumstance is inherent in the
crime, since it cannot be committed except by a public officer. (Judge Campanilla)
The test is: “Did the accused abuse his office in order to commit the crime?” If
yes, then this circumstance is present. (Sanchez vs. Demetriou, infra.) It is
considered present when the offender falsifies a document in connection with the
duties of his office which consist of either making or preparing or otherwise
intervening in the preparation of a document. (Layno vs. People, September 1992).
For such to be considered aggravating, the public official must use the influence,
prestige and ascendancy which his office gives him in realizing his purpose. (People
vs. Amion, G.R. No. 140511, March 1, 2001) (Boado)
Examples
1. S, an SB member, collected fines from some stallholders under the pretext that
he would turn-over the money to the treasurer. However, instead of turning them
over to the treasurer, the money was misappropriated for his own use and
benefit. The aggravating circumstance of “taking advantage of his public
position” may be appreciated against him because as a councillor he was in the
position to commit the crime and that if he was not a councillor he could not
have induced the stall-holders to give to him the fines.
2. If the accused, a policeman, effected the abduction of the offended party when
he was wearing his uniform;
3. If the robbery was committed by the Chief of Police and others who represented
themselves as persons in authority;
4. If the accused, a policeman, committed the crime with the aid of a gun he had
been authorized to carry as a police officer, taking advantage of official position
as an aggravating circumstance is present.
In contempt of or with insult to public authorities
This is an ordinary aggravating circumstance. To appreciate it as aggravating
circumstance, the crime must be committed in contempt of or with insult to public
authorities. In other words, the crime must be committed against another person in
67
the presence of a person in authority, who is engaged in the exercise of public
function.
1. Requisites:
a. The public authority is engaged in the discharge of his duties;
b. Offender knows the identity of the public authority;
c. The crime was committed in his presence. It must NOT be committed
against the person in authority for then the crime would be direct
assault and this circumstance will be absorbed being inherent therein.
The term “public authority” covers not only person in authority but also agents
of persons in authority and other public officers. However, in the case of People vs.
Tingson, G.R. Nos. L – 35123 – 24, July 25, 1984, the term public authority refers to
a person in authority. It does not include an agent of person in authority.
A municipal mayor, barangay captain, or barangay tanod is a person in
authority or a public authority. Even a public school teacher is now considered a
person in authority under CA 578 amending Article 152. So is the town municipal
health officer, or a nurse, a municipal councillor or an agent of the Bureau of Internal
Revenue.
Example 1:
The crime of oral defamation was committed in the presence of a Punong
Barangay, while the latter was presiding over the mediation proceedings before the
Lupon, this aggravating should be appreciated against the accused.
Example 2:
While the public prosecutor was conducting preliminary investigation, the
respondent slapped the complainant, the subject aggravating circumstance should
also be considered against the respondent.
That the act be committed with insult or in disregard of the respect due the
offended party on account of his rank, age, or sex, or that it be committed in
the dwelling of the offended party, if the latter has not given provocation.
Age, Sex, Rank, Dwelling
 There are 4 circumstances in this paragraph but only one credit should be Disregard of Rank
given if all are present for they all refer to the circumstance of lack of respect due to
“Rank” should be given a plain, ordinary meaning, hence refer to high social
the offended.
position or standing. It is absorbed in the crime of direct assault since rank is an
There must be proof that offender deliberately intended to offend or insult the element thereof.
age or sex of the offended. Thus, this circumstance cannot co-exist with passion or
It should be clearly demonstrated that the accused deliberately intended to
obfuscation because here the offender lost his control or reason.
act with insult or in disregard of the respect due the victim on account of his rank.
Disregard of Sex That the accused was cognizant of the rank of the deceased police officer or that he
articulated hatred against all policemen in general does not per se suffice to prove
“Sex” For this aggravating circumstance to be considered, there must be a
his aggravating circumstance. Or when the raiding police officers were not even in
showing that the accused specially saw to it that his victim would be a woman.
uniform. (People vs. Verchez, G.R. Nos. 82729-32, June 15, 1994)
To appreciate the aggravating circumstance eof disregard of sex, it must be
1. Killing of judge because he was strict. (People vs. Valeriano)
shown that the accused deliberately intended to offend or insult the sex of the victim,
or showed manifest disrespect to her womanhood. (People vs. Puno) 2. The deceased was a consul and the accused was a mere chancellor, a
subordinate of the deceased.
The aggravating circumstance of sex is not sustained solely by the fact that
the victim was a woman. It must further appear that in the unlawful taking of her life, 3. The accused, a clerk, killed the victim who was a ranking official of the Civil
there was some specific insult or disrespect shown to her womanhood. (People vs. Service Commission.
Ursal, 121 SCRA 409)
Disregard of Age
They are considered in crimes against persons, security or honor. It is not
In order to consider this aggravating circumstance, the accused must
considered in crimes where gender is an element as in parricide, rape, abduction, or
deliberately intent to offend or insult the age of the offended party (People vs.
seduction; or in crimes against property such as the special complex crime of
Onabia, G.R. No. 128288, April 20, 1999)
robbery with homicide. (People vs. Paraiso, G.R. No. 127840, November 29, 1999)
However, de los Reyes, October 1992, took dwelling into account reasoning that “Age” refers to both the elderly and the youth. For instance, Jayvee was
robbery with homicide can be committed without necessarily transgressing the barely six years old when ruthlessly stabbed 14 times before his body was
sanctity of the home. (Judge Campanilla) submerged in the pail. It was error not to have considered his age as an aggravating
circumstance. (People vs. Lapan, G.R. No. 88300, July 6, 1992)
Example:
1.The accused was 45 years old and the offended party was an
1. Removing the blouse of the victim before killing her (People vs. Clementer, G.R.
octogenarian.
No. L- 33490);
2. The victim in the crime of murder is a child 3 years old.
2. Taking advantage of the helplessness of the woman.
3. The aggravating circumstance of disrespect due the offended party on
3. Killing of an old woman, a sexagenarian, was attended by disrespect done her on
account of his age was correctly appreciated, the victim being 73 years old at the
account of her sex. (People v. Manalang)
time he was hacked to death.

68
 4. Taking advantage of the helplessness of a baby due to his tender age
It should be remembered that the aggravating circumstance of disregard of
the victim’s age is applicable only to crime against person and honor. For instance,
hurling insulting words to a senior citizen before the presence of so many people, the
aggravating circumstance of insult or in disregards of the respect due to the age of
the offended should be appreciated against the accused.
Disregard of Dwelling
To appreciate dwelling as an ordinary aggravating circumstance, the following
requisites must be present:
1. Offender committed the crime in the dwelling of the offended party;
2. Offender committed the crime in disregard of the respect which the dwelling is
entitled (People vs. Villaros, G.R. No. 228779, October 8, 2018)
“Dwelling” (morada) include dependencies, staircase, and enclosures under the
house. It is not necessary that the house be owned by the offended. It includes a
room in a boarding house. Home is that which the law seeks to protect or uphold
against any intruder whether the dweller is a lessee, a boarder or a bed spacer.
A dwelling must be a building or structure exclusively used for rest and
comfort. When the crime was committed in a store which is about fifteen meters
away from the complainant’s house, the aggravating circumstance of dwelling cannot
be considered. Obviously, the store cannot be considered a dwelling or even a
dependency of complainant’s home. (People vs. Joya, G.R. No. 79090, October 1,
1993)
Dwelling is not aggravating when:
a. Offended has given provocation
b. Both the offended and offender live therein. If the offender and the
victim were living in the same dwelling, the former could not have
transgressed the sanctity of privacy due to the dwelling by committing
a crime therein. The right of privacy in the dwelling can only be
invoked against those who are not living therein (People vs. Nuguid,
G.R. No. L – 148991, Janaury 21, 2004)
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c. Dwelling is inherent in the crime such as trespass to dwelling or
robbery in an inhabited place.
Rationale for this circumstance – the offender’s greater perversity in
deliberately invading the tranquillity of another’s domicile, (People vs. Lapan)
In the crimes of abduction and illegal detention where the offended is taken
from his house, dwelling may be taken as an aggravating circumstance. However,
this circumstance has no effect when the imposable penalty is indivisible. (Article 63)
(People vs. Grefiel, G.R. No. 77228, November 13, 1992)
It is not necessary that the accused should have entered the dwelling of the
victim to commit the offense; it is enough that the victim was attacked inside his own
house, although the assailant may have devised means to perpetrate the assault
from outside the house.
Examples:
1. Attack from below the floor of the house, as in fact the target victim was hit inside
his own house (People vs. Dacibar, G.R. No. 111286, February 2000) or
2. When the victim was abducted while she was in the staircase. (People vs. Magat,
G.R. No. 130026, May 31, 2000).
3. Dwelling is aggravating where the victim was killed when he opened the door of
his house upon being called by one of the accused. (People vs. Talay.
4. Dwelling was appreciated although the victim was killed on the staircase of his
house.
5. Dwelling is also aggravating where the victim was taken from his house although
the offense was not completed in the house as he was killed outside his abode.
(People v. Jardiniano, 103 SCRA 530).
Classification of Store
The store, which is used as a house, where the crime was committed cannot
be considered as dwelling within the meaning of Article 14 (3) of the Revised Penal
Code. This building, although being used for rest and comfort, is imbued with public
character, and thus, the law does not accord it the sanctity of privacy (People vs.
Magnaye, G.R. No. L – 3510, May 30, 1951)
In the case of People vs. Sapinoso, G.R. No. 122540, March 22, 2000), the
Supreme Court ruled that for all intents and purposes, the house owned by another
person constituted a dwelling of a victim, who used it for rest and comfort. It is not
necessary under the law that the victim owned the place. Be she a lessee, a boarder,
a bed spacer, or a maid, the place is her home, the sanctity of which the law seeks to
protect and uphold. Dwelling is considered aggravating circumstance primarily
because of the sanctity of privacy the law affords to human abode.
That the act be committed with abuse of confidence or obvious
ungratefulness.
Abuse of confidence is an ordinary aggravating circumstance or a qualifying
circumstance in theft. Abuse of confidence and obvious ungratefulness are two
distinct concepts.
The essence of abuse of confidence is taking advantage of the confidence
reposed by the victim on the offender to facilitate the commission of the crime.
On the other hand, the basis of the appreciation of obvious ungratefulness is
the commission of a crime instead of being grateful to the generosities given by the
victim to the offender.
Abuse, of confidence/obvious ungratefulness
1. Requisites of abuse of confidence/obvious ungratefulness:
a. Offended had trusted the offender
b. Offender abused such trust
c. Such abuse of confidence facilitated commission of the crime
2. The confidence between the parties must be immediate and personal.
Examples
1. The victim charged her uncle, who just arrived from Saudi Arabia, with rape while
the latter stayed temporarily in her parents’ house. The crime of rape which the uncle
committed against his niece was attended with abuse of confidence and obvious
ungratefulness.
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2. This circumstance is present in the killing by the accused of his sweetheart whom
he invited to a ride after he had determined to kill her and who went with him not
knowing of his plan. (People vs. Marasigan)
3. Abuse of confidence was considered where the accused robbed and killed the
victim after having fed and lodged them in his house on the tragic night. (People vs.
Pajanustan, 97 SCRA 699)
4. When the accused stayed for two years with the family of the two young victims
whom he killed, who in their immaturity and innocence never had an inkling of his
homicidal intentions toward them (People vs. Laspardas)
5. The aggravating circumstance of obvious ungratefulness shall be appreciated if
the victim was suddenly attacked while in the act of giving the accused his bread and
coffee for breakfast (People vs. Bautista, G.R. No. L – 38624, July 25, 1975)
That the crime be committed in the palace of the Chief Executive, or in his
presence, or where public authorities are engaged in the discharge of their
duties or in a place dedicated to religious worship.
Committed in the palace of the Chief Executive, etc.
Performance of function is not necessary in the circumstances of the offense
being committed in the palace of the Chief of Executive, in a place devoted to
religious worship or in the presence of the Chief Executive. But there must be
performance of public functions as regards the place where public authorities are
engaged in the discharge of their duties.
Offender must have sought any of the 4 places for the commission of the
crime. So if the crime was committed casually or the meeting of the offender and the
offended party was merely casual in any of said places, this aggravating
circumstance cannot be considered.
Places of Respect
If the crime was committed in the presence of the President of the
Philippines, the place of commission is an aggravating circumstance, and it is not
required that the President is discharging his official duties at the time.
Places where public authorities are engaged in discharge of their duties.
1. Malacanang Palace
2. Court room
3. City Hall
4. Provincial Capitol
5. Barangay Hall
6. Churches, Mosque
Remember that to appreciate place of commission as an aggravating
circumstance, it is important that the public authority like a judge or mayor or
governor is present and discharging his official duties in that place at the time of the
commission of the crime.
Examples:
1. This aggravating circumstance was appreciated in the murder of a person in an
electoral precinct or polling places during election day (People Canoy)
2. That the crime was omitted in a place dedicated to religious worship was
appreciated in a case where the accused shot the victims inside the church or in
a case of unjust vexation where the accused kissed a girl inside a church when
a religious service was being solemnized. (People vs. Anonuevo; People vs.
Dumo)
Nighttime, uninhabited place, band, aid of armed men
If all these aggravating circunstances concur in the commission of the crime,
all will constitute one aggravating circumstance only as a general rule but these can
be considered separately if their elements are distinctly (precieved) and can subsist
independently, revealing a greater degree of perversity (People vs. Santos)
Nighttime
“Nighttime” is the period of darkness beginning at dusk and ending at dawn or
from sunset to sunrise. The crime must be committed exclusively at nighttime and
71
not started at daytime. It is not considered in crimes where nighttime is merely
accident or coincidental or has no influence in the perpetration thereof.
By or of itself, nighttime is not an aggravating circumstance. It becomes so
only when it is especially sought by the offender and taken advantage of by him to
facilitate the commission of the crime to insure immunity from capture (People vs.
Boyles). In other words, as a general rule, nighttime is an ordinary aggravating
circumstance because the darkness of the night facilitated the commission of the
crime or insured impunity.
In one case, the Supreme Court en banc ruled that if the offender purposely
selected the wee hours of the night when neighbours and occupants of the house
including the victim were sleeping to facilitate the commission of the crime or to
afford impunity, nighttime shall be appreciated even if the place of commission is
lighted (People vs. Demate, G.R. No. 132310, January 20, 2004)
Nighttime (nocturnity) is absorbed in treachery if it is part of the treacherous
means to insure execution of crime. (People vs. Ong, January 30, 1975)
The aggravating circumstance of nocturnity cannot be considered where the
prosecution established no more than the simple fact that the crime was committed
at night. Nighttime must be deliberately sought in the perpetration of the crime.
(People vs. Ferrer, 255 SCRA)
The crime must be covered by darkness. If the light was bright enough to see
what was going on and to recognize the assailants, nocturnity does not qualify as an
aggravating circumstance under either the subjective or objective tests. (People vs.
Bigcas, G.R. No. 94534, July 2, 1992)
BAR 1994 –Nighttime and band
At about 9:30 in the evening, while Dino and Raffy were walking along Padre
Faura Street, Manila, Johnny hit them with a rock injuring Dino at the back. Raffy
approached Dino, but suddenly, Bobby, Steve, Danny and Nonoy surrounded the
duo. Then Bobby stabbed Dino. Steve, Danny, Nonoy and Johnny kept hitting Dino
and Raffy with rocks. As a result, Dino died, Bobby, Steve, Danny, Nonoy and
Johnny were charged with homicide. Can the court appreciate the aggravating
circumstances of nighttime and band?
Suggested answer
No, nighttime cannot be appreciated as an aggravating circumstance
because there is no indication that the offenders deliberately sought the cover of
darkness to facilitate the commission of the crime or they took advantage of
nighttime (People vs. De los Reyes, 203 SCRA 707).
Band is an ordinary aggravating circumstance or a special aggravating
circumstance in robbery by means of violence or intimidation.
Band consists of more than 3 (at least 4) armed malefactors organized with the
intention of carrying out any unlawful design. They should have acted together in the
commission of the crime. (People vs. Robiego, November 1993)

However, band should be considered as the crime was committed by more Elements of Band:
than three armed malefactors; in a recent Supreme Court decision, stones or rocks
1.There must be at least four malefactors;
are considered deadly weapons.
2. At least four of them are armed; and
Uninhabited Place (Despoblado)
3. At least four of them took part or acted together in the commission of crime as
Uninhabited place is an ordinary aggravating circumstance, or a special
principal by direct participation. (People vs. Lozano, G.R. Nos. 137370-71,
aggravating circumstance in robbery by means of violence or intimidation.
September 29, 2003)
“Uninhabited place” is determined not by the distance of the nearest house to the
ARMED – The Code does not define or require any particular arms or
scene of the crime but whether or not in the place of the commission of the offense
weapon. Any weapon which, by reason of its intrinsic nature or the purpose for which
there was a reasonable possibility of the victim receiving some help (People vs.
it was used, is capable of inflicting serious or fatal injuries upon the victim may be
Damaso) or where there are no people or any number of houses within a perimeter
considered as arms for purposes of the law on cuadrilla ( People vs. Lozano) Like
of less than 200 meters is an uninhabited place.
clubs, bolos, revolver, bamboo poles, iron rod or stones are included under the term
Uninhabited place is aggravating if it is shown that such facilitated the arms.
commission of the crime or the offender took advantage of the isolated either (a) that
Band is inherent in brigandage. It is similar to abuse of superior strength
he might better attain his end, free from molestation, or (b) that he might better
whose essence is the utilization of the combined strength of the assailants to
secure himself against detection (People v. Aguinaldo)
overpower the victim to consummate the offense.
Examples:
They should have acted together in the commission of the crime. If one has
1. Uninhabited place shall be appreciated if the felony was perpetrated in the open no direct participation in the commission of the crime, like a principal by inducement
sea where no help could be expected by the victim from other persons and the there is no band (Gamara vs. Valero, 51 SCRA 322)
offenddrs could easily escape punishment (People vs. Nulla, G.R. No. L – 69346,
Examples:
August 31, 1987)
1. Even if there 20 members but only three are armed, there is no
2. Where the accused deliberately selected an isolated place for killing and burying
band;
the victim to insure themselves against detection and punishment (People vs. Ong,
2. There is a band whenever more than three malefactors acted
G.R. No. L – 37908, October 23, 1981)
together for the commission of the offense.
Band

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That the crime be committed on the occasion of a conflagration, shipwreck,
earthquake, epidemic, or other calamity or misfortune.
On the occasion and by means of calamity or misfortune
To appreciate this circumstance, the offender must take advantage of the
condition brought about by a calamity or misfortune to facilitate the commission of
rhe crime or to insure impunity (US v. Rodriguez, G.R. No. 6344, March 21, 1911)
The “other calamity or misfortune” in paragraph 7 refers to the occasion of
conflagration, shipwreck, earthquake, or epidemic when the offense was committed.
In paragraph 12, the calamity is the means in the commission of the crime.
Aggravating because of the offender instead of lending aid to the victims, adds to
their sufferings.
The development of engine trouble at sea is a misfortune but it does not
come within the meaning of “other calamity or misfortune” which refers to
“conflagration, shipwreck, earthquake, or epidemic” such as chaotic conditions
resulting from war or the liberation of the Philippines during the last world war.
(People vs. Arpa)
That the crime be committed with the aid of armed men or person who insure
or afford impunity
Aid of armed men
In aid of armed men, the men act as accomplice only. They must not be
acting in the commission of the crime under the same purpose as the principal
accused, otherwise, they are to be regarded as co-principals or co-conspirators
(People vs. Enoja, G.R. No. 204894, March 10, 2014)
Requisites
a. Armed men or persons took part in the commission of the crime,
directly or indirectly, and
b. The accused availed himself of their aid or relied upon them when the
crime was committed.
Band vs. aid of armed men:
73
a. In band there must be at least 4 armed men; in aid of armed men,
there is no required number of malefactors.
b. The band members are all principals for they take part in the
commission of the felony under the same plan and for the same
purpose. The armed men who aided the principal offender are mere
accomplices for they give material and moral aid and encouragement
in the commission of the crime.
c. Band absorbs aid of armed men.
Band vs. organized crime:
a. Band requires at least 4 members who are armed; organized crime
requires only 2 members who may or may not be armed.
b. There is no particular crime for which the band is organized;
organized crime group is for the purpose of committing crimes for gain
such as kidnapping for ransom, etc.
Band as a generic aggravating and as qualifying circumstance:
a. Band as a generic circumstance applies to any crime; as a qualifying
circumstance under Article 295 and 296, it applies only to robbery with
physical injuries under Article 294 paragraphs 3, 4 and 5.
b. Whether generic or qualifying, the definition of band is the same.
The armed men present must take part, either directly or indirectly, in the
commission of the crime by the offender but it must not appear that the offender as
well as those armed men acted under the same plan and for the same purpose as
there will be conspiracy (People vs. Piring)
Example:
If the accused secured the services of Moros to kill her husband by
promising them rewards, who then clubbed him to death while the accused held a
lighted lamp, the accused committed parricide with the aid of armed men as this is
applicable to principal by inducement.
Recidivism, reiteracion, habitual delinquency and quasi-recidivism
 There are four (4) forms of habituality: 1. recidivism, 2. reiteracion, 3. habitual
delinquency and 4. quasi-recidivism.
Recidivism
A recidivist is one who, at the time of his trial for one crime, shall have been
previously convicted by final judgment of another crime embraced in the same title of
this Code. The phrase “at the time of his trial for an offense” employed in defining
recidivism includes everything that is done in the course of the trial, from arraignment
until after sentence is announced by the judge in open court (People v. Lagarto, G.R.
No. 65833, May 6, 1991). However, recidivism can still be appreciated even if before
the trial for the present crime, he was convicted by final judgment of his previous
crime.
In recidivism what is important is the date of trial of the present crime in
relation to date of execution of his previous crime. In recidivism, the accused was
being tried of the present crime when he was convicted of the previous crime by final
judgment.
If both offense were committed on the same day, they shall be considered as
only one, hence they cannot be separately counted in order to constitute recidivism.
Also, judgments of conviction handed down on the same day shall be considered as
only one conviction. The reason for this is because the Code requires that to be
considered as separate convictions, at the time of his trial for one crime, the accused
shall have been previously convicted by final judgment of the other.
Example:
X was prosecuted for and convicted of robbery on May 15, 2000. The
judgment became final there being no appeal filed on or before May 31, 2000. During
the pendency of the robbery case, X was also charged with the crime of theft and the
decision convicting him of said was rendered on June 15, 2000. X is considered as a
recidivist because the two crimes of robbery and theft are embraced in the same title
of this Code.
Recidivism exists even if the two offenses are the same, like robbery in the
first conviction and robbery again as the second offense, as the test is whether the
two offenses are embraced in the same title of the Code.
74
There is no recidivism is one felony is defined and penalized by the Revised
Penal Code, and the other one is an offense penalized by special penal laws, for
recidivism presupposes that the two offenses are embraced in the same title of the
Revised Penal Code.
Recidivism is imprescriptible and hence, it is taken into account no matter
how long a time had lapsed between the first and second convictions (People vs.
Colocar)
REITERACION
In reiteracion, the offender has been previously punished (has served out his
sentence). The first offense was punished with an equal or greater penalty; or he
committed 2 or more crimes previously where he was meted lighter penalty. The
rationale here is that despite the previous punishment, offender did not learn his
lesson.
Reiteracion – There is reiteracion when the offender has been previously
punished for an offense to which the law attaches an equal or greater penalty than
the present crime, or for two or more crimes to which it attaches a lighter penalty
than the current crime. (Article 14 of the RPC)
Previous crimes and present crime – If there is only prior offense, it must be
punishable by a penalty equal or greater than that for the present crime. The penalty
for the previous crime of homicide, which has been served out, is reclusion temporal
while that for simple rape is reclusion perpetua. There is no reitaracion because the
penalty for the previous crime of homicide is lesser than that for simple rape. (People
v. Race, Jr., G.R. No. 93143, august 4, 1992).
If there is more than one prior crime, reteiracion is present even if previous
crimes are punishable by a penalty lesser than that for present crime. Thus, there is
reiteracion even if the penalties for grave slander, qualified trespass to dwelling and
robbery, which have been served out, are lesser than that from the crime of murder.
(People v. Molo, G.R. No. L – 44680, January 11, 1979).
In appreciating reiteracion, what is controlling is the penalty prescribed by law
for the previous and present crimes and not the penalty actually imposed by the
court after trial.
Example 1
X was convicted and has served out his convictions for slight physical injury
in 2000 and light threats in 2001, and in 2005 he was charged with homicide. The
last crime was aggravated by reiteracion or habituality because the two previous
offenses were punishable by penalties lighter than that of the last crime of homicide.
Example 2
X was convicted and had served out his conviction for rape and thereafter,
was charged with the crime of homicide. The latter crime is necessarily aggravated
by reiteration or habituality because the previous crime of rape carried with it equal
or greater penalty than the second crime of homicide.
RECIDIVISM compared with REITERACION:
a. Recidivism requires a previous conviction by final judgement;
reiteracion requires service of sentence.
b. In recidivism the offenses are under the same title of the Code; in
reiteracion, it is not so required.
c. In the former, there is no requirement as to penalty; in the latter the
prior crime must have been imposed with a penalty equal to or greater
than the second crime or he must have served 2 or more crimes
carrying lighter penalty.
HABITUAL DELINQUENCY
Habitual delinquency is a special aggravating circumstance and unlike the
other kinds of aggravating circumstances which merely increase the penalty for the
offense committed, habitual delinquency has its own penalty which escalates with
the increase in the number of convictions. Thus the penalty is for the felony
committed plus for the habitual delinquency the total of which should not be more
than 30 years.
A person is a habitual delinquent if within a period of 10 years from the date
of his release or last conviction of the crimes of Falsification, Robbery, Estafa, Theft,
Serious or Less Serious Physical Injuries or he is found guilty of said crimes a third
time or oftener. Falsification is a crime against public interest, robbery, estafa, and
theft are against property and the last two are against persons. An offender may be a
75
recidivist and a habitual delinquent at the same time if he was convicted for the third
time of the crimes within the same title of the Code.
It is a must that there must be 3 convictions. The 10-year period is counted
from the date of release for the second crime if he had been released when again
convicted. It is the third conviction that must be within 10 years from the release or
second conviction. Note that the law says “if within a period of 10 years …he is found
guilty of any of said crimes a 3rd time or oftener.”
The law imposes an additional penalty based on the criminal propensity of
the accused apart from that provided by law for the last crime for which he is found
guilty. Habitual delinquency is not, however, a crime in itself; it is only a factor in
determining the total penalty. In fact, the provision on habitual delinquency is found in
Article 62 of the RPC on application of penalties and not in Book Two thereof which
defines felonies. (Almeda v. Villaluz, G.R. No. L – 31665, August 6, 1977; 1947 BAR)
In habitual delinquency, what is important is the date of conviction of the
subsequent or present crime in relation to the date of his last release or conviction. In
habitual deliquency, the accused was convicted of the second crime within 10 years
after conviction or release of the first crime; then, he is convicted of the third crime
within 10 years after conviction or release of the second crime; and so on and so
forth.
Serious and less serious physical injuries – According to Justice Regalado,
the term “serious or less serious physical injuries” in Article 62 should be understood
to have been used in the technical term. Thus, frustrated homicide (2014 BAR),
homicide (1991 BAR) or slight physical injuries is not within the contemplation of the
words “serious or less serious physical injuries.”
Robbery – robbery for purposes of habitual delinquency may include robbery
with homicide (1983 and 2001 BAR), or robbery with serious physical injuries. In
case of robbery with serious physical injuries, conviction thereof shall be considered
as one. Special complex crime constituting of two felonies is technically one crime.
Stages of Execution – Habitual delinquency is applicable to the crimes
mentioned in the law regardless of the stage of execution. Offender, who commits a
crime, whether in attempted or frustrated, subjectively reveals the same degree of
depravity and perversity as one who commits a consummated crime. To exclude him
from the operation of rule on habitual delinquency would thwart its purposes and
expose society to a constant menace from such delinquent who, when he resolves to
commit a crime, certainly does not propose not to go beyond an attempt or a
frustration, but rather to consummate it.
Accomplice and Accessories – Habitual delinquency applies to accomplice
and accessories of habitual delinquency crimes. The participation of offenders in
committing those crimes repeatedly, whether as principals, accomplices or
accessories, reveals the persistence in them of the inclination to wrong doing, and of
the perversity of character that had led them to commit the previous crimes.
QUASI RECIDIVISM
Quasi-recidivism is penalized in addition to habitual delinquency because of
the opening phrase in Article 160: “Besides the provisions of Rule 5 of Article
62.”The effect is to penalize the convict with the maximum period for the new felony
committed plus the penalty for the original conviction plus the penalty for the habitual
delinquency. If (1) in the service of the first conviction, he reached the age of 70. Or
(2) he shall complete the service of the original conviction after that age, he shall be
pardoned, unless he is a habitual criminal or his conduct or other circumstances
show that he is not worthy of pardon.
Quasi recidivism – any person, who shall commit a felony after having been
convicted by final judgment, before beginning to serve such sentence, or while
serving the same, shall be considered as a quasi-recidvist. (Article 160 RPC; 1965
BAR). Quasi-recidivist is an extraordinary aggravating circumstance and cannot be
offset by an ordinary mitigating circumstance (People v. Macariola, G.R. No. L –
40757, January 24, 1983) of voluntary surrender or confession . (BAR 1983).
Previous crime and present crime – Quasi-recidivism will be appreciated
regardless of whether the previous crime, for which an accused is serving sentence
at the time of the commission of the crime charged, falls under the Revised Penal
Code or under special penal laws. But the present crime must be a felony punished
under the Revised Penal Code or an offense punishable under special law, which
adopts the technical nomenclature of the penalties of the Revised Penal Code.
One who commits illegal possession of loose firearm while serving sentence
for theft is a quasi-recidivist. Although Court of Appeals Justice Luis Reyes and
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Justice Regalado opined that the second crime must be a felony to appreciate
quasi-recidivism because Article 160 speaks of “felony,” the Supreme Court in
People v. Salazar, G.R. No. 98060, January 27, 1997, appreciated quasi-recidivism
against the accused who committed a malum prohibitum under R.A. No. 6425 (the
old dangerous drugs law) because this law adopts the technical nomenclature of the
penalty under the RPC. Since RA No. 10591, which punishes illegal posseesion of
loose firearm, adopts the technical nomenclature of penalties of the Revised Penal
Code, Article 160 of the Code on quasi- recidivism shall be appreciated in the
imposition of penalty under RA No. 10591. (2012 BAR) (Judge Campanilla).
Before serving sentence – One who committed a crime outside of prison
before he begins to serve his sentence for homicide is a quasi-recidivist. (1963 and
1983 BAR). If the accused is placed on probation, the conviction shall become final
but the service of sentence shall be suspended. One who committed a crime while
on probation is a quasi- recidivist because the crime was committed before serving
her sentence for the previous crime for which she is placed under probation. (People
v. Salazar, G.R. No. 98060, January 27, 1997)
The Salazar case applies to one who committed a crime while under parole
or conditional pardon. In parole or conditional pardon, the service of unexpired
portion of sentence is suspended. A parole or pardonee is a convict by final
judgment. Commission of crime while the service of unexpired sentence is
suspended by reason of parole or conditional pardon falls within the contemplation of
the Article 160 because the crime is deemed committed “before the service of
sentence.” (People v. Balictar, G.R. No. L -29994, July 20, 1979; 1991 BAR). (Judge
Campanilla)
If the pardon is absolute, the criminal liability is extinguished, and thus, the
penalty is considered as served out. One who committed a crime after the grant of
absolute pardon is not a quasi-recidivist. But reiteracion may be appreciated.
While serving sentence– There is quasi-recidivist: (1) where the convicted
prisoner killed the victim inside the New Bilibid Prison (People v. Alvis, G.R. No. L –
39049, June 24, 1983) or (2) where the convicted prisoner escaped from a penal
colony, and then committed robbery with homicide. (People v. Retania, G.R. No. L –
34841, January 22, 1980).
BAR 2001 - Recidivism
Juan de Castro already had three (3) previous convictions by final judgment
for theft when he was found guilty of Robbery with Homicide. In the last case, the
trial Judge considered against the accused both recidivism and habitual delinquency.
The accused appealed and contended that in his last conviction, the trial court
cannot consider against him a finding of recidivism and, again, of habitual
delinquency. Is the appeal meritorious? Explain.
Suggested answer
No, the appeal is not meritorious. Recidivism and habitual delinquency are
correctly considered in this case because the basis of recidivism is different from that
of habitual delinquency.
Juan is a recidivist because he had been previously convicted by final
judgment for theft and again found guilty for Robbery with Homicide, which are both
crimes against property, embraced under the same Title (Title Ten, Book Two) of the
Revised Penal Code. The implication is that he is specializing in the commission of
crimes against property, hence aggravating in the conviction for Robbery with
Homicide.
Habitual delinquency, which brings about an additional penalty when an
offender is convicted a third time or more for specified crimes, is correctly considered
because Juan had already three (3) previous convictions by final judgment for theft
and again convicted for Robbery with Homicide. And the crimes specified as basis
for habitual delinquency includes, inter alia, theft and robbery.
RECIDIVISM, QUASI-RECIDIVISM, REITERACION and HABITUAL
DELINQUENCY COMPARED.
CRIME COMMITTED –
In recidivism, the previous crime and the present crime are embraced in the
same title of the RPC.
In quasi-recidivism, the nature of the previous crime and present crime is not
material, provided the present crime is a felony, which is defined and penalized by
the RPC.
77
In reiteracion, the penalty for the previous crime is equal or greater than that
for the present crime or the penalty for the two previous crimes is lighter than that for
the present crime.
In habitual delinquency, the previous, subsequent and present crimes must
be serious, less serious physical injuries, theft, robbery, estafa or falsification of
document.
QUASI RECIDIVISM and REITERACION compared
In quasi-recidivism and reiteracion, what is important is the date of
commission of the present crime.
In quasi-recidivism, the accused committed the present crime before
beginning to serve or while serving his sentence for the previous crime.
In reiteration, the accused committed the present crime after serving his
sentence for previous crime/s.
In recidivism and quasi-recidivism, there must be at least two crimes.
In reiteracion, there must be at least two crimes; but if the prenalty for the
previous crimes is lighter than that for the present crime, there must be at least three
crimes.
In habitual delinquency, there must be at least three crimes.
Effects in relation to the penalty
Recidivism and reiteracion are ordinary aggravating circumstances, the
presence of any of which will require the application of the penalty for the present
crime in its maximum period unless it is offset by a mitigating circumstance.
Quasi-recidvism is a special aggravating circumstance, the presence of which
will require the application of the penalty for the present crime in its maximum period
regardless of the presence of a mitigating circumstance.
Habitual delinquency is an extraordinary or special aggravating circumstance,
the presence of which will require the imposition of penalty in addition to the principal
penalty for the present crime. This is not subject to the offset rule.
Recidivism and habitual delinquency:
a. In recidivism, a 2nd conviction is enough; in habitual delinquency, a 3rd
conviction is necessary.
b. Recidivism requires that the crimes involved be both under the same
Title of Code; in habitual delinquency, the crimes are specific which
may or may not be within the same Title.
c. Recidivism does not prescribe because there is no time limit between
the 1st and 2nd convictions; habitual delinquency prescribes if the
10-year period is exceeded.
d. Recidivism is a generic aggravating circumstance which can be offset
by an ordinary mitigating circumstance; habitual delinquency is a
special aggravating circumstance which must be considered by the
court in the imposition of penalty. It cannot be offset.
That the crime be committed in consideration of a price, reward, or promise.
Price, promise or reward
The circumstance of price, reward or consideration shall not be appreciated if
there was no offer prior to the killing and the money was given voluntarily by accused
after the crime has been committed as a sort of expression of his appreciation of
their sympathy and aid. (US v. Flores, G.R. No. 9008, September 14, 1914)
Price, promise or reward affects equally the offeror and the acceptor. The
offeror is a principal by inducement, and the acceptor, the principal by direct
participation.
The inducement is the primary consideration in the commission of the crime
for this circumstance to be aggravating.
If the accused were already decided in the commission of the crime, and the
promised reward is just an additional inducement, the aggravating circumstance of
reward shall not be considered. For the aggravating circumstance of reward shall be
appreciated, reward must be the primary consideration in the commission of a crime
or felony (People vs. Paredes, G.R. No. L – 19149, August 16, 1968)
78
To reiterate, if the money was given, without any previous promise, after the
commission of the crime as an expression of symphaty, this circumstance cannot be
present (US v. Flores)
Example
The wife engaged the services of a gun for hire to kill her husband, for a
monetary consideration. The crime commited by the wife is parricide, while that of
the gun for hire is murder. The wife, being the offeror, is a principal by inducement,
and the gun for hire, the acceptor, is a principal by direct participation.
That the crime be committed by means of inundation, fire, poison, explosion,
stranding of a vessel or intentional damage thereto, derailment of a
locomotive, or by the use of any other artifice involving great waste and ruin.
This is the only aggravating circumstance that may constitute a crime in itself.
By means of Fire
If a building is set on fire to burn it, the crime committed is arson. If as a result
of the burning of the building, somebody dies, the crime committed is arson with
homicide a special complex crime.
If the building is burned as a means to kill the occupant, the crime will be
murder, not murder with arson. (People v. Villarega)
When the victim was first killed and the accused set fire to his house, his is
guilty of two separate crimes of murder and arson (People vs. Bersabal) because the
arson was committed to conceal the murder.
If a hand grenade was thrown into a house and as a result of the explosion,
the house was damaged but no one was injured, the crime committed is the crime
involving destruction (People vs. Comporedondo)
If the explosion was used as a means to kill the occupant, who died as a
consequence, the crime will be murder.
Example
The accused, for the sole purpose of committing robbery, set the house on
fire, treacherously thrust a deady weapon at his side and took their money. Victim
died. Accused was convicted of Robbery with Homicide. The ordinary aggravating
circumstance of commiting a crime by means of fire was appreciated (US v. Bulfa,
G.R. No. 8468, August 20, 1913). If the victim did not die, the crime committed is
special complex crime of robbery with Arson (Article 294 of the Revised Penal Code)
Evident premeditation
Take note that evident premeditation cannot be appreciated to qualify the
killing to murder in the absence of evidence, not only of sufficient lapse of time, but
also of the planning and preparation to kill when the plan was conceived (People vs.
Nell)
To warrant a finding of evident premeditation, the prosecution must establish
the confluence of the following requisites:
a. The TIME when the offender determined to commit the crime;
b. An ACT manifestly indicating that he has clung to his determination;
and
c. Sufficient LAPSE of time between such determination and execution
to allow him to reflect upon the consequences of his act.
The essence of evident premeditation id that itt must be shown when the plan
to commit the crime was hatched or the length of time that elapsed before it was
carried out for the essence of evident premeditation is stubborn adherence to a
decision to commit a felony. Otherwise stated, the execution of the plan must be
preceded by cool thought and reflection of the resolution to carry out the criminal
intent during the space of time sufficient to arrive at a calm judgment.
No evident premeditation
1.Later in the night, accused resolved to kill the victim. He rose from bed and took
hold of a knife. He entered the apartment of the victim through an unlocked window
and killed him. Evident premeditation is not present since the second and third
elements thereof are not present (1997 Bar)
79
2.If the accused premeditated to kill a specific person, evident premeditation shall not
be appreciated if there is no showing that the victim killed is the said specific person.
(People vs. Bekchez, G.R. No. L – 21196, March 28, 1968)
3. If the accused premeditated to kill the thieves who stole his fishing boat, evident
premeditation shall not be appreciated if there is no evidence that the victim
actually killed is one of the thieves (People vs. Caranto, G.R. No. 1677, March
13, 1905)
There is evident premeditation
1. There is evident premeditation in the killing of a person different from that intended
(People vs. Guillen) but such may be considered if it was determined by the accused
not only to kill the intended party but any person who may help him put a resistance
(People vs. Timbol) because it is not necessary for evident premeditation to exist that
the plan be to kill a particular. So, when the accused threatened to kill the first two
persons he would meet on the street the deceased being included within the terms
“persons” evident premeditation is present (US vs. Zalsos).
2. When the accused for sometime before the incident had been waiting for the
victim to appear and that as soon as the latter appeared, the former met him and
held him by the neck, there is sufficient evidence of premeditation.
3. There is evident premeditation if the victim is the object of evident premeditation.
In other words, the victim killed must be the person who the accused premeditated to
kill (People vs. Trinidad, G.R. No. L – 38930)
4. In the case of People vs. Patelan, G.R. No. 182918, June 6, 2011, the Supreme
Court ruled that there is evident premeditation where the accused premeditated
to kill any doctor, and the victim killed is actually a doctor.
5. Where the accused premeditated to kill the first two persons that he would
encounter at Cotabato, evident premeditation shall be appreciated if the victims
actually killed are the first two persons that he actually encountered therein. (US
v. Manalinde, G.R. No. 5292, August 28, 1909)
Evident Premeditation is Inherent (1) The offender assumed position of authority to gain entry in a house; feigning
friendship to lure victim to an uninhabited place.
1.Evident premeditation is not inherent in robbery with homicide. In such an offense, (2) Feigning friendship, accused was able to lure the victim to the uninhabited
the evident premeditation must relate to the killing and not to the robbery. (People vs. place where the crime was thereafter committed.
Manansala, G.R. No. 88752, July 3, 1992).
(3) Craft was used by the accused in the commission of the offense of rape when
he accused resorted to the use of innocent looking chocolate candies which
2.Evident premeditation is inherent in crimes against property especially if the
did not arouse the suspicion of the complainant that they contained
robbery is committed by several persons since there must be an agreement and the
deleterious drug, the purpose of the accused in giving them being to weaken
persons have to meditate and reflect on the manner of carrying out the crime and
her resistance so that she would not be able to repulse physically and
they have to act immediately in order to succeed. (People vs. Carillo).
mentally his sexual assault (People vs. Guy)
(4) In the crime of robbery when one of the accused shouted from the outside
3.It is also inherent in the crimes of theft, estafa and analogous offenses, like arson,
that they wanted to buy cigarettes which induced the offended party to open
when the accused would execute the preconceived act only after he thought out the
the kitchen for them and then one of them said they wanted to drink some
method by which he intended to accomplish it.
water which also paved the way for their intrusion into the house of the
offended party (People vs. Napili)
4.Evident premeditation is necessarily absorbed in the aggravating circumstance of
price, reward or promise but only insofar as the inducer is concerned since he
Fraud constitutes deceit manifested by insidious words or machinations
obviously reflected thereon in planning the crime (US vs. Manalinde), but not the
person induced since one can be a principal by direct participation without the benefit
Examples:
of due reflection (US vs. Rabor) (Boado)

6. Evident premeditation is inherent in treason because adherence and the giving of 1.In the case of the stepfather of the offended party, who taking advantage of the
aid and comfort to the eney is a long continued process requiring persistent absence of her mother, took the young girl away and told her she was to be taken to
determination and planning for the successful consummation of the traitor’s purpose the house of her godmother but instead she was taken to another house where she
(People vs. Racaza, G.R. No. L – 365, January 21, 1949) was raped (People vs. De Leon)

Craft, fraud, disguise

2.In the case of A simulates the handwriting of B, who is a friend of C, inviting the
These are intellectual means in the commission of a crime and are separate latter, without the knowledge of B, by means of a note written, in such simulated
aggravating circumstances. hand, to meet B at a designated place, in order to give A who lies in wait at the place
appointed, the opportunity to kill C.
Craft is cunning or intellectual trickery or chicanery resorted to by the accused to
carry out his evil design. Disguise is resorted to conceal the identity. If in spite of the disguise, the offender
was recognized, such cannot be aggravating.
Example:
Disguise is an ordinary aggravating circumstance if the accused employed the same
to insure or afford impunity by hiding his identity.
80
Disguise is appreciated
1.The use of an assumed name in the publication of libel.
2.Covering the face with a handkerchief.
3.Illegally wearing constabulary uniform.
4.Where the accused committed the crime of robbery with rape by pretending to be
PC soldiers
Disguise is NOT appreciated
1.If despite of the mask, the identity of the offender was recognizable, disguise will
not be appreciated.
2.Not aggravating if it did not facilitate the commission of the crime or it is not taken
advantage of by the offender in the course of the assault.
If resorted to an insuring the commission of the crime against persons without risk to
offender, absorbed by treachery.
That advantage be taken of superior strenght, or means be employed to
weaken the defense.
Abuse of superior strength
Abuse of superior strength is intentionally employing excessive force out of
proportion to the means of defense available to the offended party. There must be a
notorious inequality of forces between the victim and the aggressor.
The aggravating circumstance of abuse of superior strength depends on the
age, size and strength of the parties. It is considered whenever there is a notorious
inequality of forces between the victim and the aggressor, assessing a superiority of
strength notoriously and advantageously for the aggressor which is selected or taken
advantage of by him in the commission of the crime (People vs. Carpio, 191 SCRA
108)
Superiority in number does not necessarily mean that the offenders abused
their superior strength or that means are employed to weaken the defense. It must
be proved that the attackers cooperated in such a way as to secure advantage from
superiority of strength.
81
This is not taken into account if the assault was characterized with passion or
obfuscation or made during a quarrel. It is inherent in parricide as generally, the
husband is physically stronger than the wife; and in rape it is absorbed in the
element of force, hence already taken into account in fixing the penalty.
Abuse of Superior Strenght Aggravating
1.An attack by a man with a deadly weapon upon an armed and defenseless woman
constitutes abuse of superior strength which his sex and weapon afforded him.
(People vs. Espina. G.R. No. 123102, February 29, 2000)
2.Where the aggressors, who were all armed, first hit the legs of their unarmed
victim, causing the latter to fall kneeling; then stabbed him above the knee; and,
having deprived him of his means to stand or run, took turns in inflicting mortal
wounds on him. (People vs. Apelado, G.R. No. 132137, October 1, 1999)
3.Where the accused took the infant from her mother immediately after her birth,
naked, placenta and all, and subsequently burned the child alive, abuse of superior
strength was held present.
Abuse of Superior Strenght NOT aggravating
1.Abuse of superior strength shall not be appreciated where one of the accused
committed the crime as principal and the two others as accomplice.
2.If the offender used his physical strength to overpower the victim to consummate
the crime of rape, the aggravating circumstance of abuse of superior strength shall
not be appreciated, since abuse of superior strength is inherent in rape.
Means be employed to weaken the defense
It means that the offender employs means that materially weaken the
resisting power of the offended party. The means used must not totally eliminate
possible defense of the victim, otherwise it will fall under treachery.
Examples:
1. Intoxicating a victim with intention to kill him is characterized by means
employed to weaken the defense.
 2. Casting sand or dirt upon the eyes of the offended party and then wounding
him.
3. Throwing a cloak over the head of his opponent and while in this situation he
wound or kills him.
Remember that this circumstance is applicable only to:
1.Crimes against persons; and
2.Sometimes crimes against person and property, such as robbery with physical
injuries or homicide.
That the act be committed with treachery (alevosia).
There is treachery when the offender commits any of the crimes against the
person, employing means, methods or forms in the execution thereof which
tend directly and specially to insure its execution, without risk to himself
arising from the defense which the offended party might make.
Treachery is applicable in crimes against persons only. It is qualifying in
murder or in serious physical injuries. In parricide, treachery is a generic aggravating
circumstance as well as in homicide, if it is not alleged in the information.
Elements of Treachery
To appreciate treachery, two conditions must be present, namely:
1.The employment of means of execution that gives the person attacked no
opportunity to defend himself or to retaliate, and
(2) The means of execution were deliberately or consciously adopted by the
perpetrator (People vs. Cuesta)
When it is shown that the attack was not made with alevosia the number of
the assailants and the simultaneously of the attack upon a defenceless person may
constitute abuse of force. This is manifest where the victim was unarmed and was
trying to flee while the 2 felons were armed and used their weapons in perpetrating
the crime. (People vs. Alacar. G.R. Nos. 64725-26, July 20, 1992)
82
Where 3 persons assaulted the victim inside his house and the appellant
stabbed the deceased while the latter was firmly held by the 2 other companions,
treachery cannot be appreciated because it is included in abuse of superior strength.
Treachery may be appreciated even when the victim was warned of the
danger to his person, for what is decisive is that the execution of the attack made it
impossible for the victim to defend himself or retaliate. (People vs. Landicho, G.R.
No. 116600, July 3, 1996)
It is a special aggravating circumstance because it is present in crimes
against persons only. It is qualifying in murder. In serious physical injuries, it is a
special aggravating circumstance which increases the penalty.
When the attack is frontal, generally, there is no treachery. But there is
treachery when the attack although frontal is sudden and made in such a manner
that tends directly and especially to insure its execution for free from danger and
without risk to the offender.
Whereas the essence of evident premeditation is cool thought and reflection,
the essence of treachery is the swiftness and the unexpectedness of the attack upon
the unsuspecting and unarmed victim, who does not give the slightest provocation.
(People vs. Rebamontan, G.R. No. 125318, April 13, 1999)
Generally, it must be present at the inception of the attack. If the attack was
without treachery at its inception, there must be a break or interruption in the attack
for it to be considered if the attack was consummated with treachery. After the
commencement of such an attack, and before its termination, an accused person
may have employed means or methods which were of a treacherous character, and
yet such means or methods would not constitute the circumstance of alevosia. One
continuous attack cannot be broken up into 2 or more parts.
Treachery must be proved as convincingly as the crime itself because it
cannot be presumed. It cannot be inferred just from the location of the wound
because the evidence should show the manner of the attack, how it was commenced
and how the victim reacted thereto.
If the victim is a young child, there is treachery even if the manner of the
attack is not shown. There is a blatant in equality of strength between the offender
and the victim, but abuse of superior strength cannot be appreciated as it is
necessarily absorbed in treachery.
Treachery absorbs both nighttime and taking advantage of superior strength
in the light of the circumstances of the case at bar. Considering that treachery
qualifies the killing of the 4 victims, the accused is guilty of 4 counts of murder.
(People vs Bechayda, G.R. No. 72001, August 7, 1992)
Treachery may be appreciated in aberration ictus. When the offender fired at
his adversary but missed, the victims were helpless to defend themselves. Their
deaths were murders not simply homicide since the acts were qualified by treachery.
(People vs. Flora, G.R. No. 125909, June 23, 2000)
Examples:
1. The killing of a child is murder qualified by treachery, even if the manner of
attack was not shown (People vs. Valerio Jr)
2. If the deceased was killed while bound in such a way as to be deprived of
any opportunity to repel the attack or escape with any possibility of success.
3. If the deceased was killed while asleep.
4. If the deceased was shot while answering the call of nature.
5. If the hands of the deceased were tied when attacked.
6. Where the victim had just awakened when attacked, because he might
still be dazed and unprepared for the attack.
7. Treachery shall also be appreciated even if the attack was frontal or
face-to-face where the same is sudden, unexpected, and without warning to the
victim (People vs. Lao-as, G.R. No. 126396, June 29, 2001)
BAR 1997 – Treachery and unlawful entry
The accused and the victim occupied adjacent apartments, each being a
separate dwelling unit of one big house. The accused suspected his wife of having
an illicit relation with the victim. One afternoon, he saw the victim and his wife
together on board a vehicle. In the evening of that day, the accused went to bed
early and tried to sleep, but being so annoyed over the suspected relation between
83
his wife and the victim, he could not sleep. Later in the night, he resolved to kill the
victim. He rose from bed and took hold of a knife. He entered the apartment of the
victim through an unlocked window. Inside, he saw the victim soundly asleep. He
thereupon stabbed the victim, inflicting several wounds, which caused his death
within a few hours. Would you say that the killing was attended by the qualifying or
aggravating circumstances of evident premeditation, treachery, nighttime and
unlawful entry?
Suggested answer
1. Evident premeditation cannot be considered against the accused because he
resolved to kill the victim “later in the night” and there was no sufficient lapse of
time between the determination and execution, to allow his conscience to
overcome the resolution of his will.
2. TREACHERY may be present because the accused the victim while the latter
was sound asleep. Accordingly, he employed means and methods which directly
and specially insured the execution of the act without risk to himself arsing from
the defense which the victim might have made.
3. NIGHTTIME cannot be appreciated because there is no showing that the
accused deliberately sought or availed of nighttime to insure the success of his
act. The intention to commit the crime was conceived shortly before its
commission. Moreover, nighttime is absorbed in treachery.
4. UNLAWFUL ENTRY may be appreciated as an aggravating circumstance,
inasmuch as the accused entered the room of the victim through the window,
which is not the proper place for entrance into the house.
Ignominy and cruelty
Ignominy
Ignominy pertains to the moral order which adds disgrace and obloquy to the
material injury caused by the crime. It produces more suffering on account of its
humiliating effects. It was not appreciated in a case where the sexual assault was not
shown as having been done by the accused to put the victim to shame before killing
him. (People vs. Diaz, G.R. No. 134311, October 13, 1999)
Ignominy relates to moral suffering whereas cruelty to physical suffering.
Example 1
The accused who at the point of guns, made actress M to undress completely
and to dance before them completely naked before taking turns in raping her,
committed the crime of rape aggravated by ignominy. (People v. Jose, 37 SCRA
450)
Example 2
In raping Y, X forced her to be in the same position as dogs do, or the
“dog-style” position in doing a sexual act, ignominy aggravated the crime of rape.
(People v. Saylan, 130 SCRA 159)
Example 3
There is also ignominy when the accused grabbed the woman victim, by the
hair while defecating, then inserted his gun in the mouth of the victim, fired it, killing
her because the manner in which the accused liquidated the victim added shame,
disgrace or obloquy to the material injury caused by the crime.
Example 4
There is ignominy where one of the robbers raped the victim in the presence
of her husband, who was hog-tied and was beside her on the floor. Disgrace and
obloquy was added to the material effects of the crime, making the outrage more
humiliating.
BAR 1994 – Cruelty and relationship
Ben, a widower, driven by bestial desire, poked a gun on his daughter, Zeny,
forcibly undressed her and tied her legs to the bed. He also burned her face with a
lighted cigarette. Like a madman, he laughed while raping her. What aggravating
circumstances are present in this case?
Suggested answer
(a) Cruelty, for burning the victim’s face with a lighted cigarette, thereby
deliberately augmenting the victim’s suffering by acts clearly unnecessary to
the rape, while the offender delighted and enjoyed seeing the victim suffer in
pain (People vs. Lucas, 181 SCRA 316)
84
(b) Relationship, because the offended party is a descendant (daughter) of the
offender.
Cruelty
There is cruelty when the culprit delights in making his victim suffer slowly
and gradually, causing unnecessary moral and physical pain in the consummation of
the criminal act which he intended to commit. The number of wounds alone does not
imply cruelty as it is essential to show that these were inflicted unnecessarily while
the victim was still alive to prolong his physical suffering.
The killing was done with cruelty, by deliberately or inhumanly augmenting
the suffering of the victim or outraging or scoffing at his person or corpse. No greater
outrage, insult or abuse can a person commit upon a corpse than to sever its head.
The head represents the dignity of the person and any violence directed towards it
cannot be interpreted in any other manner than an outrage to his corpse. (People vs.
Binondo, G.R. No. 97227, October 20, 1992)
Example 1
As the victim rolled unconscious after she was ravished, appellant still hacked
her, almost splitting her face in two. Such bestiality is a form of cruelty and perversity
which aggravated the crime, it being unnecessary to the commission thereof, and
manifestly an outrage on the victim’s person. (People vs. Nescio, G.R. No. 102008,
December 28, 1994)
Example 2
Burning the face of the rape victim with a lighted cigarette constitutes cruelty
(People vs. Lucas, G.R. No. 80102, January 22, 1990)
Example 3
Inserting lighted cigarette into the genital orifice and anal orifice of the rape
victim constitutes cruelty (People vs. Crisostomo, G.R. No. 196435, January 29,
2014)
That the crime be committed after an unlawful entry.
There is an unlawful entry when an entrance is effected by a way not intended
for the purpose.
Unlawful entry
There is unlawful entry when an entrance is effected by a way not intended
for that purpose. It must be for entry not exit. In the other words, unlawful entry to be
aggravating must be for the purpose of entrance and not for the purpose of escape.
But breaking a door to enter is not unlawful entry since this is covered by paragraph
19 of Article 14 which states that “as a means to the commission of the crime a wall,
roof, floor, door, or window be broken” showing that unlawful entry excludes ingress
by means of such breaking.
The unlawful entrance must be made for the purpose of committing a crime
like rape or murder.
It is inherent in the crime of trespass to dwelling and in robbery with force
upon thing.
If the accused entered the house through a window, which is not intended for
entrance, unlawful entry is aggravating in any crime such as homicide, or murder,
committed inside the house (Judge Campanilla)
That as a means to the commission of a crime a wall, roof, floor, door, or
window be broken.
This means is for the purpose of committing a crime. It is inherent in robbery
with force upon things.
Simply put, as a means to the commission of a crime, a wall, roof, floor, door,
or window be broken is an ordinary aggravating circumstance or a qualifying
circumstance in robbery by using force upon things
It is not to be appreciated where the accused did not break the door of the
victims as a means to commit robbery with homicide where the accused after
breaking the rope which was used to close the door could have already entered the
house.
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That the crime be committed with the aid of persons under fifteen years of age,
or by means of motor vehicle, airships, or other similar means.
These are distinct circumstances: with the aid of minor showing greater
perversity of the offender in educating a minor on how to commit a crime and the use
by modern criminals of faster means of conveyance to commit the crime.
Aid of Motor Vehicle
Considered when the motor vehicle was purposely used to facilitate the
commission of the offense or when it is shown that without it the offense could not
have been committed or when it was intentionally sought to insure the success of the
act. What is aggravating is the use of motor vehicle to commit the crime not to
escape.
“Other similar means” should refer to other means of transportation that are
similar to motor vehicles or airships, e.g., motor cycles under the principle of
“ejusdem generis”. Pedicab is not included. It is not aggravating if the vehicle was
not used directly or indirectly to facilitate the criminal act. (People vs. Amion, supra)
The use by criminals of motorized means of conveyance to commit the crime
is penalized because they pose difficulty to the authorities in apprehending them.
Examples:
1. The circumstance of motor vehicles is present in the case of taxicab used
in committing robbery (People vs. Lacsamana)
2. The victim was killed in a taxicab hired and used by the accused.
3. Even if the victim were not compelled to ride in a jeep but were merely
lured and as a matter of fact, one of them even drove the vehicle to the place where
they were killed.
4. Motor vehicle was appreciated as an aggravating circumstance where the
accused used the motor vehicle to pursue the jeep of the victims, and then after
overtaking the jeep, they fired their rifles at the victim (People vs. Sanchez)
Not aggravating if the vehicle is used as a means for the escape of the offender
1. In the crime of estafa wherein the jeep was used in carting away the property, it
was held that the circumstance was not present because the estafa was not
committed by means of said vehicle
2. It is not aggravating when the accused used a car, and part of the way, a hired
jeep in going and coming from the place where the crime is committed.
3. Not aggravating in facilitating in the escape of the accused.
That the wrong done in the commission of the crime be delilberately
augmented by causing other wrong not necessary for its commission.
Cruelty
For cruelty to be considered as aggravating circumstance, it is essential that
the wrong done in the commission of the crime be deliberately augmented and that
such wrong is unnecessary for the accomplishment of the purpose of the offender.
There is cruelty when the offender enjoys and delights in making his victim
suffer slowly and gradually, causing unnecessary moral and physical pain in the
consummation of the criminal act which he intended to commit (People vs. Dayug)
Cruelty refers to physical suffering of the victim purposely intended by the
offender. Hence, the wrong done must be performed while the victim is still alive.
There is cruelty when the culprit delights in making his victim suffer slowly
and gradually, causing unnecessary moral and physical pain in the consummation of
the criminal act which he intended to commit. The number of wounds alone does not
imply cruelty as it is essential to show that these were inflicted unnecessarily while
the victim was still alive to prolong his physical suffering.
The killing was done with cruelty, by deliberately or inhumanly augmenting
the suffering of the victim or outraging or scoffing at his person or corpse. No greater
outrage, insult or abuse can a person commit upon a corpse than to sever its head.
The head represents the dignity of the person and any violence directed towards it
cannot be interpreted in any other manner than an outrage to his corpse. (People vs.
Binondo, G.R. No. 97227, October 20, 1992)
Example 1
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As the victim rolled unconscious after she was ravished, appellant still hacked
her, almost splitting her face in two. Such bestiality is a form of cruelty and perversity
which aggravated the crime, it being unnecessary to the commission thereof, and
manifestly an outrage on the victim’s person. (People vs. Nescio, G.R. No. 102008,
December 28, 1994)
Example 2
Burning the face of the rape victim with a lighted cigarette constitutes cruelty
(People vs. Lucas, G.R. No. 80102, January 22, 1990)
Example 3
Inserting lighted cigarette into the genital orifice and anal orifice of the rape
victim constitutes cruelty (People vs. Crisostomo, G.R. No. 196435, January 29,
2014)
Example 4
There is cruelty if the mouth and other parts of the body of an infant, 11 months
old, were burned.
Example 5
Extracting the left eye of the victim from its socket with a pointed end of a
cane and stuffing mouth with mud.
Example 6
The act of stepping on the head of the offended party and submerging him in
water which are obviously unnecessary to the commission of grave coercion.
Example 7
Where the accused strangulated the victim with a rope, set him on fire, after
having struck him twice on the head.
ALTERNATIVE CIRCUMSTANCES
Article 15 – Their concepts, -- Alternative circumstances are those which must
be taken into consideration as aggravating or mitigating according to the
nature and effects of the crime and the other conditions attending its
commission. They are the relationship, intoxication, and the degree of
instruction and education of the offender.
The alternative circumstance of relationship shall be taken into
consideration when the offended party is the spouse, ascendant, descendant,
legitimate, natural, or adopted brother or sister, or relative by affinity in the
same degree of the offender.
The intoxication of the offender shall be taken into consideration as a
mitigating circumstance when the offenr has committed a felony in a state of
intoxication, if the same is not habitual or subsequent to the plan to commit
said felony; but when the intoxication is habitual or intentional, it shall be
considered as an aggravating circumstance.
Alternative Circumstance
Alternative circumstances are those which must be taken into consideration
as aggravating or mitigating according to the nature and effects of the crime and
other conditions attending its commission. They are considered only when they
influenced the commission of the crime.
Alternative circumstances are not aggravating per se for they are also
mitigating. As aggravating circumstances, these are considered for purposes of
imposing civil liability such as moral damages.
The three (3) alternative circumstances are (1) relationship, (2) intoxication,
and (3) degree of instruction and education of the offender.
RELATIONSHIP
Relationship is considered when the offended party is the spouses,
ascendant, descendant, legitimate, natural, or adopted Brother or Sister or relative
by Affinity of the offender. Stepparents and stepchildren are included by analogy, but
not stepbrothers/stepsisters because the law specified only legitimate, natural, or
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adopted. But if the relationship is an element of the crime as in parricide, or adultery,
or bigamy, it is neither aggravating nor mitigating.
Relationship by Affinity
Affinity is the relation existing by reason of marriage between the spouses,
and between one spouse and the blood relatives of the other spouse. Relative by
affinity within the same degree means the ascendant, descendant, brother or sister
of the offender’s spouse or the spouse of the offender’s ascendant, descendant or
brother or sister. Relatives by affinity within the meaning of Article 15 are those
commonly referred to as in-laws, or stepfather, stepmother, stepchild, and the like.
Common-law Relationship
Article 15 cannot be stretched to include persons attached by common-law
relations. For the reason that there is no blood relationship or legal bond that links
the accused to his victim (People vs. Atop, G.R. Nos. 124303-05, February 10, 1998)
Adoptive Relationship
Under Section 17 of RA No. 8552, the adoptee shall be considered the
legitimate son/ daughter of the adopters for all intents and purposes. Thus, the
adoptee and the adopter are considered relatives for civil and criminal purposes.
Hence, adoptive relationship should be appreciated as an alternative circumstance
(Judge Campanilla)
Crime against Property
Relationship is considered as either mitigating or exempting circumstance, in
crimes against property by analogy to the provisions of Article 332 which exempts
the offender for theft, estafa and malicious mischief.
For instance, if the offender maliciously destroyed the property of his
brother-in-law, and they were not living together, the former is NOT exempt from
criminal liability for malicious mischief. The law requires that the offender must be
living with his brother-in-law to consider relationship as exempting circumstance
under Article 332 of the Revised Penal Code.
Crime against Person
 In crime against person, relationship is a mitigating circumstance if it is Simply out, if the offender has committed a felony in a state of intoxication,
classified as less grave felony or light felony and the victim is a relative of lower level. this circumstance may be mitigating or aggravating.
The concurrence of the light or less grave felony classification of the felony and the
To be mitigating
lower position of the victim is required to appreciate relationship as a mitigating
circumstance. A person pleading intoxication as a mitigating circumstance must show that:
(1) he has taken a quantity of alcohol beverage prior to the commission of the crime,
On the other hand, relationship is an aggravating circumstance: (1) if it is
sufficient to produce the effect of obfuscating reason; and (2) he is not a habitual
classified as grave felony; or (2) if the victim is a relative of higher or equal level than
drinker and did not take the alcohol drink with the intention to reinforce his resolve to
the offender. The concurrence of the grave classification of felony and the equal or
commit the crime. (People vs. Pinca, G.R. No. 129256, November 17, 1999).
higher position of the victim is not required to appreciate relationship as an
aggravating circumstance. Intoxication to be mitigating must be proved to the satisfaction of the court
and in the absence of proof to the contrary it is presumed to be not habitual but
In serious physical injuries committed against the child due to the parent’s
accidental. Mere drinking of liquor prior to the commission of the crime does not
excessive chastisement, relationship is not aggravating. (Art. 263).
necessarily produce a state of intoxication.
Crime against Chastity
To be aggravating
In crimes against chastity such as acts of lasciviousness, relationship is
To be aggravating, there must be evidence of excessive and habitual use or
aggravating (People vs. Marino, G.R. No. 141183, January 18, 2001.) whether there
specific purpose to commit the crime by getting drunk, otherwise, it will be mitigating.
is of a higher or lower degree than that of the offended party. It is due to the nature of
the crime. (People vs. Porras) If the prosecution claims intoxication as aggravating circumstance, it must
establish that the intoxication is habitual or intentional (People vs. Patelan, G.R. No.
In one case the Supreme Court ruled that crime against chastity committed
182918, June 6, 2011) and it fortifies the accused’s resolve in committing the crime.
against a relative is so monstrous that no punishment, which is in the power of any
In the absence of trth to the contrary, intoxication is presumed to be unintentional or
human tribunal to decree, could possibly be a sufficient expiation of the offense
not habitual (People vs. Mat-an, G.R. No. 215720, February 21, 2018)
(People vs. Porras, G.R. No. 38107, October 16, 1933)
DEGREE OF INSTRUCTION AND EDUCATION OF THE OFFENDER
Take note that relationship is neither aggravating nor mitigating if relationship
is an element of the crime such as parricide and qualified rape. If what was charged Whether or not degree of education and instruction would be considered as
was murder or homicide instead of parricide, relationship becomes generic only aggravating or mitigating depends upon the gravity of the crime committed. For
because the accused cannot be convicted of what was not charged against him. instance, parricide is as much reprehensible to the educated as to the illiterate.
INTOXICATION It is not illiteracy alone but the lack of intelligence or breeding/instruction that
is considered. Even if one is not schooled but comes from a family of professionals,
Intoxication should affect the offender’s mental faculties. Mere drinking of
he must have had some degree of instructions hence he could easily realize the
liquor prior to the commission of the crime does not necessarily produce a state of
significance of his act. His lack of schooling then would not be mitigating.
intoxication.
Put differently, HIGH education could be aggravating but is never mitigating;
LOW education could be mitigating but will never be aggravating. The fact that a
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person is a professional, for instance, cannot mitigate a crime he commits.
Conversely, the fact that a person is not schooled cannot aggravate his crime.
Lack of instruction or a low degree of intelligence is, generally mitigating in
almost all crimes. But in People vs. Mutya, the Supreme Court held that such is not
mitigating in murder because to kill is forbidden by natural law which every natural
being is endowed to k now and feel.
It is not mitigating in crimes against property like robbery or theft. No one,
however, unschooled he may be, is so ignorant as not to know that theft or robbery
or assault upon a person in authority is inherently wrong and violation of the law
(People vs. Magistrado)
It is not mitigating in crimes against chastity like rape nor in the crime of
arson.
To aggravate the liability of the accused due to the alternative circumstance
of instruction and education, the following must be present: (1) the offender
possessed a high degree of instruction and education; and (2) the offender took
advantage of such high degree of education in committing the crime. The fact that
the accused was a lawyer was not considered aggravating in physical injuries
(People vs. Sulit, CA-GR. No. 21102 – September 29, 1959)
BAR 2002 Alternative circumstance: intoxication
A was invited to a drinking spree by friends. After having had a drink too
many, A and B had a heated argument, during which A stabbed B. As a result, B
suffered serious physical injuries. May the intoxication of A be considered
aggravating or mitigating?
Suggested answer
The intoxication of A may be prima facie considered mitigating since it was
merely incidental to the commission of the crime. It may not be considered
aggravating as there is no clear indication from the facts of the case that it was
habitual or intentional on the part of A. Aggravating circumstances are not to be
presumed; they should be proved beyond reasonable doubt.
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Article 16 – Who are criminally liable. – The following are criminally liable for
grave and less grave felony:
1. Principals.
2. Accomplices.
3. Accessories.
The following are criminally liable for light felonies.
1. Principals.
2. Accomplices.
For the crimes considered as grave and less grave felonies, the persons
criminally liable are principals, accomplices and accessories.
For the crime classified as light felonies, the persons criminally accountable
are principals and accomplices. While the accessories are not liable for light felonies
which are punished with arresto menor or fine not exceeding Php40,000. 00. (RA No.
10951)
Why are accessories not liable for light felonies?
It has been rationalized that because the law does not deal with trifles,
accessories are not light for light felonies (de minimis non curat lex). In the same
vein,2 degrees lower than arresto menor is not possible.
To whom do ‘persons” refer? To natural persons only; juridical persons cannot
commit a crime which requires a wilful purpose, voluntariness or malicious intent.
Article 17 – Principals. – The following are considered principals.
1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it;
3. Those who cooperate in the commission of the offense by another
act without which it would not have been accomplished.
Principal by Direct Participation
 Principals by direct participation are those who materially execute the crime.
They must appear at the crime scene and perform acts necessary in the commission
of the offense to be liable.
They are those who, participating in the criminal design, proceed to carry out
their plan and personally take part in its execution by acts which directly tend to the
same end.
In conspiracy by prior agreement, the principal by direct participation who
does not appear at the crime scene is not liable because, unless he is the
mastermind.
1.His non-appearance is deemed desistance which is favoured and encouraged.
2. Conspiracy is generally not a crime unless the law specially provides a penalty
therefor. (Article 8) Thus, by merely conspiring the would be participator has not yet
committed any crime unless he would appear at the site of the crime and perform
any act directly or indirectly in the execution of the plan;
3. There is no basis for criminal liability because there is no criminal participation.
Principal by Inducement
Principals by inducement are those who force or induce others to commit a
crime.
Directly forcing Another
One, who directly forced another to commit a crime, is a principal by
inducement. He compels another either by using irresistible force or by causing
uncontrollable fear to commit the crime. However, the chief actor, who was forced to
commit the crime, is exempt from criminal liability. Only the principal by inducement
is liable.
Directly Inducing Another
The inducer may be a principal, an accomplice or without any liability at all.
He is a principal by inducement if his inducement should be obeyed. His utterances
must be of such a nature and made in such a manner as to become the determining
90
cause of the crime. Where the words uttered did not make any dominance or
influence on the offenders or is no longer necessary as the offenders were already
determined to commit the offending acts, the utterance will not make the utterer an
inducer. (People vs. Parungao, G.R. No. 125812, November 28, 1996).
The inducer is generally liable as an accomplice because the law favors a
lesser penalty.
Principals by inducement (or mastermind) are liable even if they did not
appear in the crime scene because it would not have been committed without the
inducement and because they induce others to commit the crime so they do not have
to appear or do the “dirty work.”
BAR 2002 – PRINCIPAL BY INDUCEMENT
A asked B to kill C because of grave injustice done to A by C. A promised B a
reward. B was willing to kill C, not so much of the reward promised to him but
because he also had his own long-standing grudge against C, who had wronged him
in the past. If C is killed by B, would A be liable as a principal by inducement?
SUGGESTED ANSWER
No. A would not be liable as a principal by inducement because the reward he
promised B is not the sole impelling reason which made B to kill C. To bring about
criminal liability of a co- principal, the inducement made by the inducer must be the
sole consideration which caused the person induced to commit the crime and without
which the crime would not have been committed. The facts of the case indicate that
B, the killer supposedly induced by A, had his own reason to kill C out of a long
standing grudge.
BAR 1994
Tata owns a three-storey building located at No. 3 Herran Street, Paco,
Manila. She wanted to contruct a new building but had no money to finance the
construction. So, she insured the building for P3, 000, 000. 00. She then urged
Yoboy and Yongsi, for monetary consideration, to burn her building so she could
collect the insurance proceeds. Yoboy and Yongsi burned the said building resulting
to its total loss. What is their respective criminal liability?
SUGGESTED ANSWER
Tata is a principal by inducement because she directly induced Yoboy and
Yongsi, for a price or monetary consideration, to commit arson which the latter would
not have committed were it not for such reason. Yoboy and Yongsi are principals by
direct participation.
Article 17 considers as principals those who “directly force or induce others” to
commit an offense. One is induced to commit a crime either by a command or for a
consideration, or by any other similar act which constitutes the real and moving
cause of the crime and which was done for the purpose of inducing such criminal act
and which was sufficient for that purpose. (People vs. Dumancas, G.R. No.
133527-28, December 13, 1999.
Principal by Indispensable Cooperation
To be considered as a principal by indispensable cooperation, there must be
direct participation in the criminal design by another act without which the crime
could not have been committed. The act must be of such importance that the crime
would not have been committed without him or that he participated therein.
Otherwise, he cannot be considered a principal by indispensable cooperation.
(People vs. Fronda, G.R. No. 102361, May 14, 1993).
A principal by indispensable cooperation may be a co-conspirator under the
doctrine of implied conspiracy. The voluntary and indispensable cooperation of the
offender is a concurrence of the criminal act to be executed. Consequently, he is a
co-conspirator by indispensable cooperation, although the common design or
purpose was never bottled up by previous undertaking. (Subayco vs.
Sandiganbayan, G.R. No. 117267-117310, August 22, 1996).
The participation of the co-operator must be indispensable to the commission
of the crime. If his cooperation is dispensable, that is, with or without his
participation, the offense will be committed, the liability is that of an accomplish.
Thus, in Sotto (G.R. No. 106083-84, March 29, 1996), the pump boat owner who
helped the offenders by pretending that his pump boat needed towing by the passing
boat of the victims was held to be merely an accomplice. Here, the offenders
transferred to the boat of the victims and later robbed and killed them. The offenders
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could have asked the help of other pump boat owners, hence, the accused’s
cooperation was not indispensable.
Examples
1. If an employee of a bank in connivance with a depositor placed in his
initials on the check of the depositor drawn against the bank knowing that there were
no sufficient funds, the employee is a principal by indispensable cooperation. The act
of initialling the check is indispensable to the act of defraudation of the depositor as
without it the check would not be cashed. (People vs. Lim Buanco).
2. By holding the deceased from behind in such a manner that the latter
could not move and while thus being held by the co-accused, the other accused
stabbed the deceased, the co-accused, performed an act without which the crime
would not have been accomplished which makes him a principal by indispendable
cooperation (People vs. Celinio)
3. The accused is the only one who knows the combination of the vault and
without his parcipation the crime could not have been committed.
Example:
W, X, Y and Z conspired to kill V. In going to the house of V, W drove the car
where he, X, Y and Z boarded and upon, reaching the house, W and X remained
posted themselves in the front yard as look-outs, while Y went up the house with Z
who was the one who actually shot V. W, X, Y and Z are all considered as principals
by direct participation although it was only Z who actually killed because there was
conspiracy and the act of one is the act of all.
Article 18 – Accomplices. – Accomplices are the persons who, not being
included in Article 17, cooperate in the execution of the offense by previous or
simultaneous acts.
Accomplice
In criminal law, accomplices are those who are not principals but cooperate in
the execution of the offense by previous or simultaneous acts. They are also called
accessories before the fact. (BAR 2013)
 Conspiracy is not a requirement for he is not a principal but supplies material previous act thereby concurring and cooperating with the intention of X to stab T. B is
or moral aid to the principal in an efficacious way. Accomplices participate in the liable as an accomplice.
execution of the offense by simultaneous acts, which bore a relation to the acts done
But if X used a gun which he happened to pick up and did not use the knife
by the principal sans a conspiracy.
given to him by his brother B, the latter is not criminally liable as an accomplice.
He knows of the criminal design of the principal and he cooperates knowingly
Example 2
and intentionally in a manner which is not indispensable to the commission of the
crime. After X, Y and Z have forcibly abducted a girl whom they wanted to rape, and
in order to bring her to a place when they can better accomplish their intention, they
To hold a person liable as an accomplice, three elements must concur:
asked the driver of a taxi-cab parked along the road to bring them to a certain place.
1. Community of design, which means that the accomplice knows of and concur In spite of his knowledge that the three were abducting the girl, the driver drove his
with, the criminal design of the principal by direct participation; taxi-cab with the girl and the three abductors on board.
2. The performance by the accomplice of previous or simultaneous acts that are
The driver is considered as an accomplice because by his act of driving his
not indispensable to the commission of the crime; and
taxi-cab with the girl on board, he was concurring with the acts of the three abductors
3. That there be a relation between the acts done by the principal and those
thus cooperating with them in their criminal design. If, however, there is conspiracy,
attributed to the person charged as an accomplice. (People vs. Gambao,
the driver and X, Y and Z are all principals by direct participation.
G.R. No. 172707, October 1, 2013).
Example 3
Conspiracy
M was a common enemy of X and Y who long wanted to kill him. One
Conspiracy – If there is conspiracy, the accused who cooperated with the
evening, without the knowledge of X who has been tracking down the whereabouts
chief actor in the commission of the offense, can be held liable as principal by direct
of M, Y was following X when the latter kept himself posted in a dark corner of the
participation or principal by indispensable cooperation but not as an accomplice.
street to wait for M to pass by. When M was already approaching X, without the
Conspirators are liable as principals regardless of the extent of participation and the
latter’s knowledge, Y who was behind X, shot M who died due to the fatal gunshot
time of participation.
wound on his head.
An accomplice’s role in the perpetration of the crime is of a minor
Y is clearly liable as a principal by direct participation; however X cannot be
character. If there is ample evidence of criminal participation but a doubt exists as to
held liable either as principal or accomplice. X’s act of waiting for M for the purpose
the nature of liability, courts should resolve to favour the milder form of criminal
of killing him is not even considered as an ovet act. X cannot also be liable as an
responsibility, that of an accomplice.
accomplice because his act of waiting M has no relation with the act of Y in shooting
Example 1 M. X did not know that Y would kill M during that time, hence, community of criminal
design between them was not present at the time of the killing of M.
T, a tough guy who is being feared by the residents of a certain barangay,
challenged X to a fist fight. X did not react and just kept silent. When T has his back Example 4
turned of the challenge of T, B gave his knife to X who, in turn, repeatedly stabbed T
One is an accomplice in the crime of kidnapping if he guarded the detained
who instantaneously died. The act of B in giving his knife to his brother X is a
person to prevent him from escaping.

92
 A is liable as an accomplice, by rendering C unconscious, which is a previous
or simultaneous act but not indispensable as B could have killed C with his bolo even
if A did not intervene. B is a principal by direct participation in the crime of homicide.
Compare a principal by inducement and an accomplice
a. A principal by inducement induces the other offenders to commit an
act in such a way that without the inducement the crime would not be
committed. His inducement must be obeyed by exerting influence or
moral ascendancy over the other malefactors. An accomplice’s
inducement or utterance is immaterial for with or without such
utterance, the crime would be committed.
b. The cooperation of the principal in the offense is indispensable without
which the crime would not be committed whereas the cooperation of
the accomplice is in a minor way.
c. Both the principal and the accomplice act or before or during the
commission of the crime. But the principal directs the way the crime
would be committed while the accomplice has no part in such
planning; he is not an author thereof.
A lookout who was not part of the conspiracy but participated only after such
decision was reached incurs criminal liability as an accomplice since he is merely an
instrument of the crime and he cooperates after the decision to commit the same had
already been made. (People vs. Suarez, 267 SCRA 119; People vs. De Vera, G.R.
No. 128966, August 18, 1999) Conversely, a “look out” is a principal if he were a
co-conspirator and participated in deciding the course of action to be taken in the
criminal design or he is a co-author of the crime and provides his companions
effective means and encouragement to carry out the same. His being a lookout is
necessary part of the concerted action to achieve the desired result. (People vs.
Loreno, 130 SCRA 311)
An accomplice and a conspirator compare
1. An accomplice came to know about the commission of the crime after the
principals have decided to commit a crime; whereas a conspirator knows the
criminal intention because he and his co-conspirators have decided on such
criminal intention;
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2. An accomplice does not decide whether a crime should be committed, for he
merely concurs with the plan and cooperates in the accomplishment of the
plan; whereas, a conspirator decides with his co-conspirators to commit a
crime;
3. An accomplice is merely an instrument who performs acts not essential to the
commission of the crime; whereas a conspirator is an author of the crime
(People v. Garcia, 373 SCRA 134)
Article 19 – Accessories. – accessories are those who, having knowledge of
the commission of the crime, and without having participated therein, either as
principals or accomplices, take part subsequent to its commission in any of
the following manners:
1. By profiting themselves or assisting the offender to profit by the
effects of the crime;
2. By concealing or destroying the body of the crime or the effects or
instrument thereof, in order to prevent its discovery;
3. By harbouring, concealing, or assisting in the escape of the
principal of the crime, provided the accessory acts with abuse of his
public functions or whenever the author of the crime is guilty of
treason, parricide, murder or an attempt to take the life of the Chief
Executive, or is known to be habitually guilty of some other crimes.
Accessory
One is liable as an accessory if he participates subsequent to the commission
of the crime.
Accessories:
a. Have knowledge of the commission of the crime;
b. Have not participated therein; and
c. Take part subsequent to its commission (accessory after the fact) in
any of the following 3 manners:
 1. By profiting or assisting the offender to profit from the effects of
the crime;
2. By concealing or destroying the body of the crime (corpus delicti)
or effects or the instruments thereof to prevent its discovery; and
3. By harbouring, concealing or assisting in the escape of the
principal:
a. In case of a public officer for any crime if he acts with abuse of
public functions;
b. In case of private individuals when the principal is guilty of
treason, attempt on the life of the Chief Executive, murder,
parricide or is known to be habitually guilty of some other
crime.
Accessories may be liable as principal in another crime if his acts or omission
is also penalized in a special law such as fencing. In crimes under special laws or
crimes mala prohibita, the offenders generally are penalized as principals unless
otherwise provided.
Example 1
After killing his wife and in order that he would not be discovered and
arrested, H went to his legally adopted brother B, and asked the latter to hide him in
his house. Because of the Omega wrist watch which H gave him, B harboured and
concealed him. B is not liable as an accessory because he did not profit from the
effects of the crime of parricide, the watch given to him was not an effect of the
crime; besides he is the adopted brother of H and therefore exempted undert Article
20 of the RPC.
Example 2
If H killed his wife in order to get the pieces of jewelry and other valuable
personal belongings of the latter which she bought before her marriage to him, and
one of these personal belongings thereafter taken by H was the diamond ring which
he gave to B, the latter is an accessory because B has profited from the effects of
the crime of parricide. (Judge Campanilla)
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Example 3
X, a Chinese businessman who went on the verge of bankruptcy because of
business reversals, insured his building in the amount more than his insurable
interest on the building. Shortly thereafter, X burned his building including the goods
inside therein. X instructed his driver D, to remove all the traces of the crime before
the insurance inspectors arrive which the driver did.
If D knew that the crime of arson was committed and he followed the
instructions of X, he is liable as accessory because he concealed and destroyed the
evidence the crime of arson while X is liable as principal by direct participation.
(Judge Campanilla)
Between an accomplice and an accessory:
a. An accomplice participates before or during the commission of the
offense; accessory, subsequent thereto.
b. An accomplice knows of the criminal design of the principal; an
accessory knows of the commission of the offense.
c. The former provides material or moral aid in an efficacious way but
not in a manner indispensable to the offense; the latter acts in the 3
ways specified in Article 19
Accessories by profiting
One, who had knowledge of the commission of the crime and did not
participate in its commission as principal or accomplice, yet took part subsequent to
its commission by profiting himself or assisting the offender to profit by the effects of
the crime, is an accessory. There are two views as to the meaning of profiting:
Under the first view, to profit means to materially benefit from the act or to
improve his economic condition.
Riding in a stolen vehicle is “not profiting” since it does not improve his
economic position. Profiting is not synonymous to intent to gain as an element of
theft. But one, who regularly used a carabao in farming with knowledge that the
property was stolen, is liable as an accessory. The regularity in the use of the stolen
property improves the economic position of the user. He is liable as accessory since
he materially benefits from the crime of theft.
Receiving 10% of the proceeds of insurance involving a burned building in
consideration of his service as a lawyer despite of knowledge that the money are
effects of the crime of arson makes him liable as an accessory. (1987 BAR).
Under the second view, deriving benefit from something is profiting.
Improving economic condition is not required. Hence, eating a stolen meat will make
one liable as an accessory. (BAR 2014).
If the crime is robbery or theft and one who bought, sold, possessed, or in
any other manner dealt with the articles which he knew or should have known are
proceeds of robbery or theft, he is a principal in the crime of fencing. If he were not
charged with fencing in a separate information, then he is a liable only as an
accessory in the crime of robbery or theft.
Commission of Crime by Principal
Applying the Billon principle, it is not necessary that the principal should be
first declared guilty before an accessory can be made liable as such (People vs.
Billon, CA, 48 O.G. 1391). One can be held liable as an accessory even if the chief
actor or principal was not convicted because:
1.The principal is at large (People vs. Inovera, 65 O.G. 3168) or
2. The principal died; or
3. The principal is unidentified, or was acquitted due to technicality. (Vino vs. People,
G.R. No. 84163, October 19, 1989)
Remember that the corresponding responsibilities of the principal,
accomplice, and accessory are distinct from each other. As long as the commission
of the offense can be duly established in evidence, the determination of the liability of
the accomplice or accessory can proceed independently of that of the principal
(People vs. Bayabos, G.R. No. 171222, February 18, 2015)
BAR 1995 – Fencing vs. Theft or Robbery
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What is the difference between a fence and an accessory to theft or robbery?
Explain. Is there any similarity between them?
One difference between a fence and an accessory to theft or robbery is the
penalty involved; a fence is punished as a principal under PD No. 1612 and the
penalty is higher, whereas an accessory to robbery or theft under the Revised Penal
Code is punished two (2) degrees lower than the principal, unless he bought or
profited from the proceeds of theft or robbery arising from robbery in Philippine
Highways under PD No. 532 where he is punished as an accomplice, hence the
penalty is one (1) degree lower.
Also, fencing is malum prohibitum and therefore there is no need to prove
criminal intent of the accused, this is not so in violations of the Revised Penal Code.
Suggested answer
Yes, there is a similarity in the sense that all the acts of one who is an
accessory to the crime of robbery or theft are included in the acts defined as fencing.
In fact, the accessory in the crimes of robbery or theft could be prosecuted as such
under the Revised Penal Code or as a fence under PD No. 1612 (Dizon-Pamintuan
vs. People, 234 SCRA 63)
If the crime is brigandage and he profited from the loot, he is liable for
abetting brigandage – an accomplice of brigands. He should be charged in a
separate information otherwise he would be liable as an accessory.
A person who received any property from another, and used it, knowing that
the same property had been stolen is guilty as an accessory because he is profiting
by the effects of the crime. By employing the two carabaos in his farm, Taer was
profiting by the objects of the cattle rustling. (Taer vs. CA)
Accessories by concealing or destroying the body of the crime
a. The body of the crime or corpus delicti is the body or substance of the
crime and in its primary sense refers to the fact that a crime has
actually been committed. As applied to a particular offense, it means
the actual commission by someone of the particular crime charged.
 b. Corpus delicti is a compound fact made up of 2 things:
1. The existence of a certain act or result forming the basis of the
criminal charge (criminal event); and
2. The existence of a criminal agency as the cause of this act or
result.
c. Otherwise stated, its elements are: a) the proof of the occurrence of a
certain event; and b) some person’s criminal responsibility. (People
vs. Boco, G.R. No. 129676, June 23, 1999) Thus, in drug sale, it must
be established that an illegal sale of the regulated drug took place;
and the accused were the authors thereof.
Example
A person who placed a weapon in one of the hands of the deceased after he
was killed to show that he was armed and it was necessary to kill him for having
offered resistance to the authorities is an accessory.
Assisting the principal to escape
a. The offender to be assisted must be a principal; assisting an
accomplice is not included.
b. A police officer who was present when the crime was committed
abused his official function when he failed to immediately arrest the
offender and conduct a speedy investigation of the crime, but instead
left the scene of the crime together with the offender, thus assisting
the offender to escape. Being a public officer, he is an accessory to
the crime. (People vs. Antonio, July 14, 2000)
c. Those who assist the principal to escape may be prosecuted under
P.D. 1829 – obstruction of justice- not an accessory but as a principal
provided that a separate information is prepared for obstruction. When
he is convicted thereunder, the penalty to be imposed is the penalty
under P.D. 1829 or any other law, including the Revised Penal Code,
whichever is higher.
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d. Obstruction of justice is committed by any person who knowingly or
wilfully obstructs, impedes, frustrates or delays the apprehension of
suspects and the investigation and prosecution of criminal cases. P.D.
1829 does not distinguish between a public officer and a private
person who assists the principal.
Examples:
1.A mayor who refused to prosecute the offender, making it possible for him to
escape is an accessory.
2. A person who when asked by the police gave false information regarding the
whereabouts of a person who was guilty of murder in order to enable the latter to
escape is an accessory as by misleading the police, he thereby assisted in the
escape of the principal.
Article 20 – Accessories who are exempt from criminal liability. – The penalties
prescribed for accessories shall not be imposed upon those who are such with
respect to their spouses, ascendants, descendants, legitimate, natural, and
adopted brothers and sisters, or relative by affinity within the same degrees,
with the single exception of accessories falling within the provisions of
paragraph 1 of the next preceding article.
Accessories exempted from criminal liability
The offender’s spouse, ascendant, descendant, legitimate, natural, and
adopted brothers and sisters, or relatives by affinity within the same degree as the
foregoing enumerated relatives are exempt from criminal liabilities when they act as
accessories to the offender’s crime in the manner enumerated in Article 19 except for
profiting or assisting the offender to profit by the effects of the crime.
The reason for the exemption is obvious: it is based on ties of blood and the
preservation of the cleanliness of one’s name, which compels one to conceal crimes
committed by relatives so near as those mentioned in the above Article (People vs.
Mariano).
When the relatives assist the principal by concealing or destroying the body
of the crime or by assisting in his escape, the law recognizes that they are motivated
by natural affection for the offender. However, when they profit or assist the offender
in profiting by the effects of the crime, they are doing so because of greed, hence
they are liable.
The relatives to be assisted do not include by consanguinity in the 4th civil
degree, unlike defense of relatives under Article 11 which includes those within the
fourth civil degree. The relatives enumerated in Articles 15 and 20 are the same;
both exclude relatives by consanguinity in the fourth civil degree.
Article 332 exempts also certain relatives for the crimes of theft, estafa, and
malicious mischief.
Example:
X stole the Rolex watch of Y. In order that he would not be arrested, he
sought the help of his brother B who in turn assited him to escape. At this point, B is
not criminally liable as an accessory because of his relationship with X. However, if B
sold the watch which X stole and make use of the proceeds thereof, or gave the
proceeds to X, B is now liable as an accessory because B profited or caused X to
profit from the proceeds of the sale of the watch. (Art. 19[1] in relation to Art. 20).
Example:
One who pawned the earrings stolen by her daughter is liable as an
accessory to the crime of theft since the exempting circumstance of relationship does
not apply to accessories, who profited or assisted the principal to profit from the
effect of the crime. In this particular case, the mother can be charged as principal in
the crime of fencing instead of accessory to the crime of theft.
Title Three
PENALTIES
Chapter One
PENALTIES IN GENERAL
PENALTIES
1. In criminal laws, penalties are understood as the punishment imposed by
lawful authority upon a person who commits a deliberate or negligent act
(Moreno, Philippine Law Dictionary, 3d ed., cf., People vs. Moran 44 Phil.
431)
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2. Penalties are prescribed by statutes and are essentially and exclusively
legislative in character. Judges can only interpret and apply them and have
no authority to modify or revise their range as determined by the legislature.
(People vs. Dela Cruz, G.R. No. 100386, December 11, 1992)
3. Under the Code, penalties are classified as follows:
a. Graduated;
b. Divided into three (3) periods except reclusion perpetua which is
indivisible;
c. Classified into principal or accessory;
d. Understood to be a degree for purposes of lowering the penalty under
Article 61 in applying the Indeterminate Sentence Law or owing to
privileged mitigating circumstances;
Even if the provision provides for 1 or more period of a divisible penalty, that
is considered 1 degree for purposes of lowering the penalty. For instance, if the
penalty prescribed is arresto mayor, medium period, that is 1 degree and the penalty
next lower in degree is arresto mayor, minimum period.
e. Imposed on the principal offender in the consummated stage;
f. The maximum imposable, i.e., the court cannot increase the penalty
prescribed by any degree no matter how many aggravating
circumstances are present. For instance, in homicide, even if there are 10
aggravating (not qualifying) circumstances without any mitigating, the
penalty can only be increased to the maximum period of reclusion
temporal and cannot be increased to reclusion perpetua.
Courts must employ the proper nomenclature specified in the Code, such as
reclusion perpetua not life imprisonment; or ten days of arresto menor not ten days
of imprisonment. (People vs. Latupan, GR. Nos. 112453-56, June 28, 2001)
Article 21. Penalties that may be imposed. - No felony shall be punishable by
any penalty not prescribed by law prior to its commission.
Penalties that may be Imposed
 The above Article subscribes to the legal maxim of nullum crimen nulla poena
sine lege (no crime if no law punishing it). Punishment for violations of penal laws
(including special penal laws) is based on the police power of the State. No felony,
how grievous and heinous it is, shall be punishable by any penalty not prescribed by
law prior to its commission. Unless there is a law penalizing an act or omission, the
offender cannot be enalized, no matter how reprehensible the act may be. This
supplements the ex post facto edict under the Constitution.
The following are the characteristics of penalty
1. It is judicial and legal because it is based on the judgment prescribed by
law;
2. It is certain and definite because it is not subject to any condition;
3. It is commensurate because its extent must be consonance with the
gravity of the offense;
4. It is personal because no one shall be punished for the crime committed
by another person;
5. It is equal because it is applicable equally to all offenders who are
similarly situated;
6. It is productive of suffering but without affecting the dignity of a human
personality; and
7. It is generally correctional.
The theories or justifications for penalty are:
1. Prevention – to prevent or suppress any danger caused to the State by
the criminal acts of the offenders;
2. Self-defense – as the State has the right to protect society or the people
from the wrongdoings of criminal;
3. Reformation – The object of punishment in criminal cases is to correct
and reform offenders;
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4. Exemplarity – to serve as example of deterrence of others from
committing crimes; and
5. Justice – as punishment imposed by the State is its act of retributive
justice and vindication of its rights violated by criminals.
Article 22. – Retroactive effect of penal laws. – Penal laws shall have a
retroactive effect in so far as they favour the person guilty of a felony, who is
not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this
Code, although at the time of the publication of such laws a final sentence has
been pronounced and the convict is serving the same.
Retroactive Effect of Penal Laws
The prospectivity rule mandates that penal laws shall have only prospective
application. Article 22 provides the exception thereto, that is, when the law shall be
given retroactive application.
But when the culprit is a habitual delinquent, he is not entitled to the benefit of
the provisions of the new favourable law or statute. A person is deemed to be a
habitual delinquent if within a period of ten years from the date of his release or last
conviction of the crimes of SERIOUS or LESS SERIOUS PHYSICAL INJURIES,
ROBBERY, THEFT, ESTAFA, or FALSIFICATION, he is found guilty of any said
crimes a third time or oftener.
Simply put, the general rule is that criminal laws shall have no retroactive
application except when it is favourable to the accused. The exceptions to the
exception are (1) when the accused is a habitual delinquent, or (2) when the new law
itself provides for its non retroactive application.
Article 23 – Effect of Pardon by the Offended party. – A pardon by the offended
party does not extinguish criminal action except as provided in Article 344 of
this Code; but civil liability with regard to the interest of the injured party is
extinguished by his express waiver.
A pardon by the offended party does not extinguish criminal action.
 Even if the injured party already pardoned the offender, the prosecutor can 1. The arrest and temporary detention of accused persons, as well as their
still prosecute the offender. Such pardon by the offended party is not even a ground detention by reason of insanity or imbecililty, or illness requiring their
for the dismissal of the complaint or information. confinement in a hospital.
2. The commitment of a minor to any of the institutions mentioned in
Reason: a crime committed is an offense against the State. In criminal cases,
Article 80 and for the purposes specified therein.
the intervention of the aggrieved parties is limited to being witnesses for the
3. Suspension from the employment or public office during the trial or in
prosecution. In other words, even if the offended party would not actively participate
order to institute proceedings.
in the criminal proceedings, the State would continue with the case as long as there
4. Fines and other corrective measures which, in the exercise of their
are pieces evidence to bring about the guilt of the accused beyond a shadow of
administrative or disciplinary powers, superior officials may impose
doubt. Take note that only the Chief Executive can pardon the offenders, either
upon their subordinates.
through condition or absolute pardon.
5. Deprivation of rights and the reparations which the civil law may
Except as provided in article of this code establish in penal form.

The offended party in the crimes of adultery and concubinage cannot institute What are the measures of prevention or safety which are not considered
criminal prosecution, if he shall have consented or pardoned the offenders. penalties?

The pardon here may be implied, as continued inaction of the offended party The following shall not be considered as penalties.
after learning of the offense.
1. The arrest and temporary detention of accused persons, as well as their
The second paragraph of Article 344 requires that both offenders must be detention by reason of insanity or imbecililty, or illness requiring their
pardoned by the offended party. confinement in a hospital.

In the crimes of seduction, abduction, rape or acts of lasciviousness there 2. The commitment of a minor to any of the institutions mentioned in Article 80
shall be no criminal prosecution if the offender has been pardoned by the offended and for the purposes specified therein.
party or her parents, grandparents, or guardian, as the case may be. The pardon
must be express. 3. Suspension from the employment or public office during the trial or in order to
institute proceedings.
Pardon under Article 344 is only a bar to criminal prosecution
4. Fines and other corrective measures which, in the exercise of their
Even under Article 344, the pardon by the offended party does not extinguish administrative or disciplinary powers, superior officials may impose upon their
criminal liability; it is only a bar to criminal prosecution. Article 89, providing for total subordinates.
extinction of criminal liability, does not mention pardon by the offended party as one
of the causes of totally extinguishing criminal liability. 5. Deprivation of rights and the reparations which the civil law may establish in
penal form.
Article 24. Measures of prevention or safety which are not considered
penalties. – The following shall not be considered as penalties. The five (5) measures in this article are not penalties for otherwise, it will
violate the constitutional provision on presumption of innocence and because these
measures are not imposed as a result of trial on the merits. However, Article 29

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provides that the period of preventive imprisonment will be deducted from the term of Chapter Two
imprisonment. CLASSIFICATION OF PENALTIES

Preventive suspension pending investigation is not a penalty but a measure

Article 25. Penalties which may be imposed. - The penalties which may be
intended to enable disciplining authority to investigate the charges against imposed according to this Code, and their different classes, are those included
respondent by preventing the latter from intimidating or in any way influencing in the following:
witnesses against him. If the investigation is not finished and a decision is not
rendered within that period, the suspension will be lifted and he will automatically be Scale
reinstated. If after investigation respondent is exonerated, he should be reinstated.
(Gloria vs. CA, G.R. No. 131012, April 21, 1999) Principal Penalties
Preventive suspension is not a penalty for it is not imposed as a result of
Capital punishment:
judicial proceedings. In fact, if acquitted, the respondent shall be entitled to
reinstatement and to the salaries and benefits he failed to receive. (Santiago vs. Death.
Sandiganbayan, G.R. No. 128055, April 18, 2001)

EFFECTS OF RA NO. 10951 TO THE REVISED PENAL CODE Afflictive penalties:

In the 2014 case of Lito Corpuz v. People of the Philippines, G.R. No. Reclusion perpetua,
180016, April 29, 2014, the Supreme Court turned the spotlight on the perceived Reclusion temporal,
injustice brought about by the range of penalties that the courts continue to impose Perpetual or temporary absolute disqualification,
on crimes committed today, based on the amount of damage measured by the value Perpetual or temporary special disqualification,
of money 80 years ago. As shown in the explanatory note of Senate Bill No 14 that Prision mayor.
because RA No. 10951, the Corpuz case was used as a basis of adjusting the
amount involved, value of the property or damage on which the penalty is based and Correctional penalties:
the fine under the Revised Penal Code. (Judge Campanilla)
Prision correccional,
TIMES 200 FORMULA – The minimum wage rate on January 1, 1931, the date of Arresto mayor,
effectivity of the Revised Penal Code is two pesos and fifty centavos (P2.50). Suspension,
However, in 2017, the year when RA No. 2017 was enacted, the minimum wage rate Destierro.
reached more than P500. 00. In sum, the minimum wage in 2017 is 200 folds higher
than in 1932. Hence, RA No. 10951 has adjusted the amount involved, value of the Light penalties:
property or damage on which the penalty is based and the fine under the Revised
Arresto menor,
Penal Code by multiplying them by 200.
Public censure.

Penalties common to the three preceding classes:

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 Fine, and
Article 25. Penalties which may be imposed. - The penalties which may be imposed
Bond to keep the peace.
according to this Code, and their different classes, are those included in the
following:
Accessory Penalties
Principal Penalties
Perpetual or temporary absolute disqualification,
Perpetual or temporary special disqualification,
Death.
Suspension from public office, the right to vote and be voted for, the
profession or calling.
Reclusion perpetua,
Civil interdiction,
Reclusion temporal,
Indemnification,
Perpetual or temporary absolute disqualification,
Forfeiture or confiscation of instruments and proceeds of the offense,
Perpetual or temporary special disqualification,
Payment of costs.
Prision mayor.
Principal penalties are those specified in Book II for specific felonies. The must
Prision correccional,
be imposed by the court expressly in the dispositive portion of the decision. Arresto mayor,
Penalty according to gravity Suspension,
Destierro.
Article 25 of the Revised Penal Code provides the scale of penalties
according to their gravity. On the other hand, Article 70 mandates scale of penalties Arresto menor,
in accordance to their severity for purposes of applying the rule for service of multiple Public censure.
sentences. Under Article 25, arresto menor is a light penalty while destierro is a
correccional penalty. However, in the scale of penalties under Article 70, destierro is Penalties common to the three preceding classes:
place below arresto menor. In other words, in the imposition of penalty, destierro is a
penalty graver than arresto menor. However, in the service of sentence, arresto Fine, and
menor is more severe than destierro (Misa, C.A. 36 O.G. 3697) Bond to keep the peace.

Under Article 70, the prisoner must serve arresto menor first before serving Accessory Penalties
destierro. This is only logical since arresto menor is an imprisonment penalty while
destierro is not. Prisoner must serve first all imprisonment penalties before serving Perpetual or temporary absolute disqualification,
destierro. Otherwise, a prisoner will be released after serving “imprisonment Perpetual or temporary special disqualification,
penalties other than arresto menor” to serve destierro just to be arrested again to Suspension from public office, the right to vote and be voted for, the
serve arresto menor. profession or calling.
Civil interdiction,
What are the penalties that may be imposed under the Revised Penal Code? Indemnification,

101
 Forfeiture or confiscation of instruments and proceeds of the offense,
Payment of costs.
SEC. 2. Article 26 of the same Act is hereby amended to read as follows:
"ART. 26. Fine.- When afflictive, correctional, or light penalty.- A fine, whether
imposed as a single or as an alternative penalty, shall be considered an
afflictive penalty, if it exceeds One million two hundred thousand pesos (P1,
200, 000); a correctional penalty, if it does not exceed One million two hundred
thousand pesos (P1, 200, 000) but is not less than Forty thousand pesos (P40,
000); and a light penalty, if be less than Forty thousand pesos (P40, 000)."
Under Article 26 of the Revised Penal Code as amended by RA No. 10951, a
fine, whether imposed as a single or as an alternative, shall be considered as
afflictive penalty, if it exceeds P1, 200, 000. 00; a correccional penalty, if it does not
exceed P1, 200, 000. 00 but is not less than P40, 000. 00; and a light penalty, if it
less than P40, 000. 00.
Fines are imposed in many article of this Code as an alternative penalty.
Example: In Art. 144, punishing disturbance of proceeding, the penalty is arresto
menor or a fine ranging from P200. 00 to P1, 000. 00.
The law does not permit any court to impose a sentence in the alternative, its
duty being to indicate the penalty imposed definitely and positively.
Afflictive – Over P1, 200, 000. 00
Correctional – P40, 000. 00 to P1, 200, 000. 00
Light penalty – less than P40, 000. 00
DURATION AND EFFECTS OF PENALTIES
Section One. - Duration of Penalties
Article 27. Reclusion perpetua. - Any person sentenced to any of the perpetual
penalties shall be pardoned after undergoing the penalty for thirty years,
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unless such person by reason of his conduct or some other serious cause
shall be considered by the Chief Executive as unworthy of pardon.
Reclusion Perpetua
In several cases, the Supreme Court has reminded the Bench and the Bar as
to the difference between the penalties of reclusion perpetua and life imprisonment,
as they are not synonymous. The distinctions are sum up as follows:
1. Reclusion perpetua has a specific duration of 20 years and 1 day to 40 years,
with accessory penalties of civil interdiction for life or during the period of the
sentence as the case may be, and that of perpetual absolute disqualification
which the offender shall suffer even though pardoned as to the principal
penalty, unless the same shall have been expressly remitted in the pardon.
While life imprisonment has no definite duration and no accessory penalties;
2. Reclusion perpetua is a penalty provided for under the Revised Penal Code,
while life imprisonment is provided generally for violation of special laws.
3. Reclusion perpetua has accessory penalties while life imrprisonment has no
accessory penalties.
As early 1948, it was made clear that reclusion perpetua is not the same as
life imprisonment. Thus, S.C. Adm. Circular 6-A-92 (June 21, 1993) amending
Circular 6-92 (October 12, 1992) enjoins strict observance of their distinctions to curb
the erroneous practice of using them interchangeably in the imposition of penalty for
serious offenses like murder. (People vs. Narca, G.R. No.108488, July 21, 1997)
Although reclusion perpetua has now a definite term of 20 years and 1 day to
40 years, it remains indivisible penalty for there is no clear legislative intent to alter
its original classification as such. This is clear as Congress did not accordingly
amend Article 63 and 76 on what are considered divisible penalties and what should
be the duration of the periods thereof. Other provisions involving reclusion perpetua
such as Article 41 on accessory penalties and paragraphs 2 and 3 of Article 61 were
not also amended.
 Reclusion Perpetua can be imposed by operation of law such as in qualified
felonies. When reclusion perpetua is imposed as a result of the operation of the law,
such as in qualified theft, [Article 310 in relation to Article 309, no. 1], the accessory
penalty shall be that provided under Article 40 of the Code (People vs. Canales, G.R.
No. 126319, October 12, 1998) but the offender shall not be given the benefit of
Article 27 until 40 years have elapsed, otherwise there could be no difference at all
between reclusion perpetua when imposed as a penalty next higher in degree and
when it is imposed as a penalty fixed by law. (People vs. Bago, 330 SCRA 115)
day to twelve years, except when the penalty of disqualification is imposed as
an accessory penalty, in which case its duration shall be that of the principal
penalty.
What is the duration of Prision mayor and temporary disqualification. –
The duration of the penalties of prision mayor and temporary disqualification shall be
from six (6) years and one (1) day to twelve (12) years.

Prision correccional, suspension, and destierro. - The duration of the penalties

BAR 2019
of prision correccional, suspension and destierro shall be from six months and
one day to six years, except when suspension is imposed as an accessory
In November 2018, Mr. N, a notorious criminal, was found guilty of three (3)
penalty, in which case, its duration shall be that of the principal penalty.
counts of Murder and was consequently sentenced with the penalty of reclusion
perpetua for each count. A month after, he was likewise found guilty of five (5) counts
What is the duration of Prision correccional, suspension, and destierro. –
of Grave Threats in a separate criminal proceeding, and hence, meted with the
penalty of prision mayor for each count.
The duration of the penalties of prision correccional, suspension and destierro shall
be from six (6) months and one (1) day to six (6) years, except when suspension is
(a) What are the respective durations of the penalties of reclusion
imposed as an accessory penalty, in which case, its duration shall be that of the
perpetua and prision mayor?
principal penalty.
(b) How long will Mr. N serve all his penalties of imprisonment? Explain.
Destierro is considered as a principal, correctional and divisible penalty which
under Art. 87 of this Code prevents a person from entering the place or places
(c) May Mr. N avail of the benefits of the Indeterminate Sentence Law with
designated in the sentence, nor within the radius therein specified, which shall not be
respect to his convictions for Murder and Grave Threats? Explain.
more than 250, and not less than 25 kilometers from the place designated.
(d) Is Mr. N considered a habitual delinquent? Explain.
In what cases destierro imposed?
Reclusion temporal. - The penalty of reclusion temporal shall be from twelve
1. Serious physical injuries or death under exceptional circumstances (Art. 247);
years and one day to twenty years.
2. In case of failure to give bond for good behaviour (Art. 284);
3. As a penaty for the concubine in concubinage. (Art. 334)
What is the duration of Reclusion temporal. –
4. In cases where after reducing the penalty by one or more degrees destierro is
the proper penalty.
The penalty of reclusion temporal shall be from twelve (12) years and one (1) day to
twenty (20) years.
BAR 1982
Prision mayor and temporary disqualification. - The duration of the penalties of
May an accused person sentenced to destierro be credited with a portion of
prision mayor and temporary disqualification shall be from six years and one
the time during which he had undergone preventive imprisonment? If not, why not? If
103
in the affirmative, what portion of the time of preventive imprisonment should be
credited to him?
Suggested Answer
An accused sentenced to destierro can be credited with a portion of his
preventive imprisonment in the service of the sentence consisting of deprivation of
liberty because destierro as a penalty involves also deprivation of liberty although
partial. (People v. Bastasa et. al., 88 SCRA 184)
Arresto mayor. - The duration of the penalty of arresto mayor shall be from one
month and one day to six months.
What is the duration of Arresto mayor. –
The duration of the penalty of arresto mayor shall be from one (1) month and one (1)
day to six (6) months.
Arresto menor. - The duration of the penalty of arresto menor shall be from one
day to thirty days.
What is the duration of Arresto menor. –
The duration of the penalty of arresto menor shall be from one (1) day to thirty (30)
days.
Bond to keep the peace. - The bond to keep the peace shall be required to
cover such period of time as the court may determine.
Bond to keep the peace is a principal penalty yet there is no crime in Book II
for which it can be imposed because, being a principal penalty, it must be specifically
prescribed in Book II for a particular felony. There being none, the penalty is
unenforceable by virtue of Article 21, which states that no felony shall be punishable
by any penalty not prescribed by law prior to its commission.
Compared with bond for good behaviour:
104
a. Bond for good behaviour is a principal penalty which is not prescribed for
any felony; bond to keep the peace is a penalty specifically applicable to
grave and light threat only.
b. Failure to post bond for good behaviour will make the accused suffer
desterrio; failure to post bond to keep peace will supposedly make him
suffer detention.
Article 28. Computation of penalties. – If the offender shall be in prison, the
term of the duration of the temporary penalites shall be computed from the day
on which the judgment of conviction shall have become final.
If the offender be not in prison, the term of the duration of the penalty
consisting of deprivation of liberty shall be computed from the day that the
offender is placed at the disposal of the judicial authorities for the enforcement
of the penalty. The duration of the other penalties shall be computed only from
the day on which the defendant commences to serve his sentence.
Computation of Penalties
It is clear under this article that the computation of penalties depends on
whether the offender is in prison or not and what kind of penalty has been imposed
upon him.
The rule may be summed up:
1. If the offender is in prison, the term of the duration of the temporary
penalties is computed from the day on which the judgment of conviction
shall have become final.
2. If the offender is not in prison, the term of the duration of the penalty
consisting in deprivation of liberty shall be computed from the day that the
offender is placed at the disposal of the judicial authorities for the
enforcement of the penalty; and
 3. The term of the duration of other penalties is computed from the day on
which the accused commences to serve his sentence.
Article 29 – Period of preventive imprisonment deducted from term of
imprisonment. – Offenders or accused who have undergone preventive
imprisonment shall be credited in the service of their sentence consisting of
deprivation of liberty, with the full time during which they have undergone
preventive imprisonment if the detention prisoner agrees voluntarily in writing
to abide by the same disciplinary rules imposed upon convicted prisoners,
except in the following cases:
1. When they are recidivists, or have been convicted previously twice or
more times of any crime; and
2. When upon being summoned for the execution of their sentence they
have failed to surrender voluntarily.
If the detention prisoner does not agree to abide by the same
disciplinary rules imposed upon convicted prisoners, he shall be credited in
the service of his sentence with four-fifths of the time during which he has
undergone preventive imprisonment.
Whenever an accused has undergone preventive imprisonment for a
period equal to or more than the possible maximum imprisonment of the
offense charged to which he may be sentenced and his case is not yet
terminated, he shall be released immediately without prejudice to the
continuation of the trial thereof or the proceeding on appeal, if the same is
under review. In case the maximum penalty to which the accused may be
sentenced is destierro, he shall be released after thirty (30) days
imprisonment. (as amended by RA No. 6127, and EO No. 214).
Preventive Imprisonment
Section 1 (RA No. 10592). Article 29 of Act No. 3815, as amended,
otherwise known as the Revised Penal Code, is hereby further amended to read as
follows:
"ART. 29. Period of preventive imprisonment deducted from term of imprisonment. –
Offenders or accused who have undergone preventive imprisonment shall be
credited in the service of their sentence consisting of deprivation of liberty, with the
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full time during which they have undergone preventive imprisonment if the detention
prisoner agrees voluntarily in writing after being informed of the effects thereof and
with the assistance of counsel to abide by the same disciplinary rules imposed upon
convicted prisoners, except in the following cases:
1. When they are recidivists, or have been convicted previously twice or more times
of any crime; and
2. When upon being summoned for the execution of their sentence they have failed
to surrender voluntarily.
If the detention prisoner does not agree to abide by the same disciplinary
rules imposed upon convicted prisoners, he shall do so in writing with the assistance
of a counsel and shall be credited in the service of his sentence with four-fifths (4/5)
of the time during which he has undergone preventive imprisonment.
Credit for preventive imprisonment for the penalty of reclusion perpetua shall be
deducted from thirty (30) years.
Whenever an accused has undergone preventive imprisonment for a period
equal to the possible maximum imprisonment of the offense charged to which he
may be sentenced and his case is not yet terminated, he shall be released
immediately without prejudice to the continuation of the trial thereof or the
proceeding on appeal, if the same is under review. Computation of preventive
imprisonment for purposes of immediate release under this paragraph shall be the
actual period of detention with good conduct time allowance: Provided,
however, That if the accused is absent without justifiable cause at any stage of the
trial, the court may motu proprio order the rearrest of the accused: Provided,
finally, That recidivists, habitual delinquents, escapees and persons charged
with heinous crimes are excluded from the coverage of this Act. In case the
maximum penalty to which the accused may be sentenced is Destierro, he shall be
released after thirty (30) days of preventive imprisonment."
When should the accused be placed on preventive imprisonment?
If the accused was detained by reason of a warrant of arrest or bench warrant
or a lawful warrantless arrest, and he was not able to post bail due to financial
incapacity or since the offense of which he is charged is non-bailable, his detention is
called preventive imprisonment (1994 BAR)
 Credit of preventive imprisonment – Under Article 29 of the RPC, as
amended by RA No. 10592, an accused who has undergone preventive
imprisonment shall be credited, either full or 4/5 of the term, in the service of their
sentence consisting of deprivation of liberty, provided he is not disqualified.
Preventive imprisonment (for detention prisoners) is for the purpose of
preventing the accused from going into hiding. The accused is detained if the offense
is not bailable, or if bailable he cannot post bail and he is not qualified for
recognizance.
Full credit for the detention shall be granted if the detention prisoner agrees in
writing to abide by the same disciplinary rules imposed on convicts unless:
a. They are recidivists or convicted previously twice or more of any crime.
b. When upon being summoned for the execution of their sentence they
have failed to surrender voluntarily.
Credits shall be 4/5 of the stay in detention when he does not agree to be
treated similarly as convicted prisoners. When the maximum penalty imposable is
desterrio, the accused shall be released after 30 days of preventive imprisonment
because arresto menor is more severe penalty than destierro under Article 70.
The deduction of the period of preventive imprisonment applies where the
accused is sentenced to destierro because destierro constitutes deprivation of liberty
also. This allowance should be made even where the penalty imposed is reclusion
perpetua because it does not make any distinction between temporal and perpetual
penalties. (People vs. Corpuz, G.R. No. 99865, March 28, 1994)
In the case of Inmates of the New Bilibid Prison vs. De Lima, G.R. No.
212719, June 25, 2019, the Supreme Court ruled that R.A. No. 10592, which
amended Article 97 and 98 of the Revised Penal Code by lengthening the period of
time allowances and providing time allowance for detention prisoner, is favourable to
the accused. Hence, the same must be given a retroactive effect pursuant to Article
22 of the Revised Penal Code. The implementing rules of RA No. 10952 providing
prospectivity of this law is invalid.
Example
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H killed his wife, W, after he surprised her having sexual intercourse with P.
Because H was prosecuted for parricide which is a non-bailable offense, he was
detained pending trial. After two years, judgment was rendered convicting him under
Art. 247 and was imposed with the penalty of destierro. H is entitled to be given 4/5
or full time credit, as the case may be, of his preventive imprisonment of two years
because the penalty of destierro also involves of deprivation of liberty since H is not
free to enter a prohibited area within a certain period.
There are three scales of penalties in the Code:
a. Article 25 classifies the penalties into principal and accessory.
b. Article 70 provides for the scale when there are 2 or more sentences to
be served, and prescribes the 3-fold rule.
c. Article 70 graduates the penalties in the order of severity for purposes of
applying the rules under Article 61 in relation to Articles 50-57 on lowering
of penalties considering the stage of accomplishment of the offense and
the level of participation of the offender.
Disqualification is both a principal and an accessory penalty. It is a principal
penalty when prescribed in Book II as a penalty for a particular crime; an accessory
penalty when the principal penalty to which it is attached is imposed.
All prisoners whether under preventive detention or serving final sentence,
cannot practice their profession or engage in any business or occupation, or hold
office, elective or appointed as a necessary consequence of arrest and detention. As
a matter of law, when a person indicted for an offense, is arrested he is deemed
placed under the custody of law. He is placed in actual restraint of liberty in jail so
that he may be bound to answer for the commission of the offense. He must be
detained in jail during the pendency of the case against him unless he is authorized
by the court to be released on bail or on recognizance. An attorney cannot practice
law during that period except where he would appear in court to defend himself.
(People vs. Maceda, G.R. Nos. 89591-96, Minute Resolution, January 24, 2000)
Public censure is classified under Article 25 of the Code as a light penalty,
and is considered under the graduated scale provided in Article 71 as a penalty
lower than arresto menor. The offense of reckless imprudence resulting in slight
physical injuries penalized with public censure is therefore a light felony. (Reodica vs.
Memoracion, July 1998)
Time Allowance
There are three (3) time-allowances for prisoners under the Revised Penal
Code, to wit: (1) good conduct time allowance under Article 94 RPC; (2) time
allowance for study, teaching and mentoring; and (3) special time allowance for
loyalty under Article 98 RPC).
R.A. No. 9346 – Abolition of Death Penalty
Provisions of the Revised Penal Code affected by R.A. No. 9346:
a. Article 25 – on the category of capital punishment;
b. Article 47 – cases when the death penalty shall not be imposed;
automatic review of death penalty cases;
c. Paragraphs 2 of Article 63 – rules for the application of indivisible
penalties;
d. Article 71 – on the severity of penalty, death penalty is deleted as the
reckoning degree for graduated penalty;
e. Article 74 – penalty higher than reclusion perpetua in certain cases;
f. Article 61 (2)- when the penalty prescribed for the crime is composed
of 2 indivisible penalties, the penalty next lower in degree shall be that
immediately following the lesser of the penalties prescribed in the
respective graduated scale.
The debarring of the death penalty through R.A. 9346 did not correspondingly
declassify those crimes catalogued as heinous. The amendatory effects of R.A. 9346
extend only to the application of the death penalty but not to the definition or
classification of crimes. The penalties for heinous crimes have been downgraded
under the aegis of the new law. Still, what remains extant is that such crimes, by their
abhorrent nature, constitute a special category by themselves. Accordingly, R.A.
9346 does not serve as basis for the reduction of civil indemnity and other damages
that adhere to heinous crimes.
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Article 30. Effects of the penalties of perpetual or temporary absolute
disqualification. - The penalties of perpetual or temporary absolute
disqualification for public office shall produce the following effects:
1. The deprivation of the public offices and employments which the
offender may have held even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular
office or to be elected to such office.
3. The disqualification for the offices or public employments and for the
exercise of any of the rights mentioned.
In case of temporary disqualification, such disqualification as is
comprised in paragraphs 2 and 3 of this article shall last during the term
of the sentence.
4. The loss of all rights to retirement pay or other pension for any office
formerly held.
What are the effects of penalties of perpetual or temporay absolute disqualifition?
The following are the effects of perpetual or temporary absolute
disqualification:
1. The deprivation of the public offices and employments which the offender
may have held even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular office or
to be elected to such office.
3. The disqualification for the offices or public employments and for the
exercise of any of the rights mentioned.
In case of temporary disqualification, such disqualification as is comprised in
paragraphs 2 and 3 of this article shall last during the term of the sentence.
 4. The loss of all rights to retirement pay or other pension for any office
formerly held.
All these effects last during the lifetime of the convict and even after the
service of sentence except as regard pars. (2) and (3) of the above in connection
with temporary absolute disqualification. Temporary absolute disqualification lasts
only during the term of the sentence (People vs. Abes, 24 SCRA 780)
Article 31. Effect of the penalties of perpetual or temporary special
disqualification. - The penalties of perpetual or temporal special
disqualification for public office, profession or calling shall produce the
following effects:
1. The deprivation of the office, employment, profession or calling
affected;
2. The disqualification for holding similar offices or employments either
perpetually or during the term of the sentence according to the extent of
such disqualification.
What are the effects of penalties of perpetual or temporary special disqualification?
The following are the effects of the penalties of perpetual or temporary
special disqualification:
1. The deprivation of the office, employment, profession or calling affected;
2. The disqualification for holding similar offices or employments either
perpetually or during the term of the sentence according to the extent of such
disqualification.
Article 32. Effect of the penalties of perpetual or temporary special
disqualification for the exercise of the right of suffrage. - The perpetual or
temporary special disqualification for the exercise of the right of suffrage shall
deprive the offender perpetually or during the term of the sentence, according
to the nature of said penalty, of the right to vote in any popular election for any
108
public office or to be elected to such office. Moreover, the offender shall not be
permitted to hold any public office during the period of his disqualification.
What are the effects of the penalties of perpetual or temporary special
disqualification for the exercise of right of suffrage?
The effect of the penalties of perpetual or temporary special disqualification
for the exercise of the right of suffrage are the following:
1.Shall deprive the offender perpetually or during the term of the sentence,
according to the nature of said penalty, of the right to vote in any popular election for
any public office or to be elected to such office.
2. Moreover, the offender shall not be permitted to hold any public office
during the period of his disqualification.
Article 33. Effects of the penalties of suspension from any public office,
profession or calling, or the right of suffrage.- The suspension from public
office, profession or calling, and the exercise of the right of suffrage shall
disqualify the offender from holding such office or exercising such profession
or calling or right of suffrage during the term of the sentence.
The person suspended from holding public office shall not hold another
having similar functions during the period of his suspension.
What are the effects of the penalties of suspension from any public office, profession
or calling, or the right of suffrage?
The following are the effects of the penalties of suspension from any public
office, profession or calling, or the right of suffrage:
1.Shall disqualify the offender from holding such office or exercising such
profession or calling or right of suffrage during the term of the sentence.
2. The person suspended from holding public office shall not hold another
having similar functions during the period of his suspension.
 The manifest purpose of the restrictions upon the right if suffrage or to hold
office is to preserve the purity of elections. The presumption is that one rendered
infamous by conviction of felony or other bases offenses indicative eof moral
turpitude, is unfit to exercise the privilege of suffrage or to hold office. The exclusion
must for this reason be adjudged a mere disqualification, impose for protection and
not for punishment, the withholding of a privilege and not the denial of a personal
right (People vs. Corral)
What suspension from exercise of profession covers?
Suspension, which deprives the offender of the right of exercising any kind of
profession or calling, covers such calling or trade as for instance that of broker,
master plumber etc.
Article 34. Civil interdiction. - Civil interdiction shall deprive the offender
during the time of his sentence of the rights of parental authority, or
guardianship, either as to the person or property of any ward, of marital
authority, of the right to manage his property and of the right to dispose of
such property by any act or any conveyance inter vivos.
What are the effects of civil interdiction?
The effect of Civil interdiction shall deprive the offender during the time of his
sentence of the
1.Rights of parental authority, or
2. Guardianship, either as to the person or property of any ward,
3. Of marital authority, of the right to manage his property and
4. The right to dispose of such property by any act or any conveyance inter vivos.
Civil interdiction is an accessory penalty imposed upon a convict who is
sentenced to death and the same was not executed by reason of commutation or
pardon, or to reclusion perpetua and reclusion temporal.
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Article 38 of the New Civil Code defines civil interdiction as one of the
restrictions on capacity to act but does not exempt the offender from certain
obligations, as when the latter arise from his act or from property relations. It is an
accessory penalty meted on a person sentenced to reclusion perpetua and reclusion
temporal.
A civilly interdicted convict cannot appoint an agent for the act of the agent is
the act of the principal. Otherwise he would be doing indirectly what the law prohibits
to be done directly. In fact, one of the causes of extinction of agency is civil
interdiction.
What the law prohibits is the disposition of property by an act inter vivos. The
will of the testator does not dispose of the property at the time of its making but at the
time of his death.
The deprivation of parental authority, marital authority and guardianship
relates to family relations; managing property and disposing property by acts inter
vivos relate to property laws.
Article 35. Effects of bond to keep the peace. - It shall be the duty of any
person sentenced to give bond to keep the peace, to present two sufficient
sureties who shall undertake that such person will not commit the offense
sought to be prevented, and that in case such offense be committed they will
pay the amount determined by the court in the judgment, or otherwise to
deposit such amount in the office of the clerk of the court to guarantee said
undertaking.
The court shall determine, according to its discretion, the period of
duration of the bond.
Should the person sentenced fail to give the bond as required he shall
be detained for a period which shall in no case exceed six months, is he shall
have been prosecuted for a grave or less grave felony, and shall not exceed
thirty days, if for a light felony.
What are the duties of a person sentenced to give bond to keep the peace?

It shall be the duty of any person sentenced to give bond to keep the peace,
To present two sufficient sureties who shall undertake that such person will
not commit the offense sought to be prevented, and that in case such offense be
committed they will pay the amount determined by the court in the judgment, or
otherwise to deposit such amount in the office of the clerk of the court to guarantee
said undertaking.
The court shall determine, according to its discretion, the period of duration of
the bond.
What is the rule in the event the offender cannot give the bond?
Should the person sentenced fail to give the bond as required he shall be
detained for a period which shall in no case exceed six months, is he shall have
been prosecuted for a grave or less grave felony, and shall not exceed thirty days, if
for a light felony.
Article 36. Pardon; its effects. – A pardon shall not work the restoration of the
right to hold public office, or the right of suffrage, unless such rights be
expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the
civil indemnity imposed upon him by the sentence.
Effects of pardon by the President:
1. A pardon shall not restore the right to hold public office or the right of
suffrage.
Exception: when any or both such rights is or are expressly restored by the
terms of the pardon.
2. It shall not exempt the culprit from the payment of the civil indemnity. The
pardon cannot make an exception to this rule.
Limitations upon the exercise of the pardoning power:
1. That the power can be exercised only after conviction.
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2. That such power does not extend to case of impeachment.
3. In election offenses, it can be exercised only upon recommendation of the
COMELEC.
Pardon by the Chief Executive distinguished from pardon by the offended party:
1. Pardon by the Chief Executive extinguishes the criminal liability of the
offender; such is not the case when pardon is given by the offended party.
2. Pardon by the Chief Executive cannot include civil liability which the
offender must pay; but the offended party can waive the civil liability which
the offender must pay;
3. In cases where the law allows pardon by the offended party as provided
for by Art. 344 of the Revised Penal Code, the pardon should be given
before the institution of criminal prosecution and must be extended to
both offenders; whereas, pardon by the Chief Executive is granted only
after conviction and may be extended to any of the offenders.
Example
Atty. P was prosecuted for and convicted of the crime of bigamy, a crime
involving moral turpitude. Because of this conviction, a disbarment case was filed
against him. The Pesident extended to him an absolute pardon. The disbarment
proceeding was subsequently dismissed on the basis of the absolute pardon (In Re:
Atty. Tranquilino Rovero, 101 SCRA 799).
Example:
A person, who was pardoned for the crime punishable by reclusion perpetua
cannot run in the senatorial race if the terms of the pardon has not expressly
restored his right to hold public office or remitted the accessory penalty of perpetual
absolute disqualification.
In the case of Risos-Vidal vs. Lim, G.R. No. 206666, January 21, 2015, the
Supreme Court declared that “President Estrada was convicted of plunder and
sentenced to suffer reclusion perpetua. President Arroyo pardoned him. The pardon
expressly declares that former President Estrada is hereby restored to his civil and
political rights. He is eligible to run as Mayor because the terms of the pardon
expressly restored his civil and political rights, which naturally include the right to
seek public elective office. This is substantial compliance with the requirement of
express restoration of right to hold office in Article 36 and 41 of the Revised Penal
Code.
Article 37. Costs. – What are included. – Costs shall include fees and
indemnities in the course of the judicial proceedings whether they be fixed or
unalterable amounts previously determined by law or regulations inforce, or
amounts not subject to schedule.
The following are included in costs:
1. Fees; and
2. Indemnities, in the course of judicial proceedings.
Costs are chargeable to the accused in case of conviction.
Costs which are expenses of litigation are chargeable to the accused only in
cases of conviction. In case of acquittal, the costs are de oficio, each party bearing
his own expenses.
Thus, of three accused, two were convicted while the third was acquitted.
Only one of the two accused appealed. His conviction was affirmed. He was ordered
to pay one-third of the costs.
Jurisprudence mandates that no costs shall be charged against the Republic,
unless the law provides the contrary:
Payment of costs is discretionary:
The payment of costs is a matter that rests entirely upon the discretion of
courts. Appeal will hardly lie to interfere with the discretion.
Article 38 – Pecuniary Liabilities. – Order of payment. – In case the property of
the offender should not be sufficient for the payment of all his pecuniary
liabilities, the same shall be met in the following order:
1. The reparation of the damage caused.
2. Indemnification of the consequential damages.
3. The fine.
111
4. The costs of the proceedings.
What are the pecuniary liabilities of the accused?
In case the property of the offender should not be sufficient for the payment of
all his pecuniary liabilities, the same shall be met in the following order:
1. The reparation of the damage caused.
2. Indemnification of the consequential damages.
3. The fine.
4. The costs of the proceedings.
Article 38 is applicable “in case the property of the offender should not be
sufficient for the payment of all his pecuniary liabilities.” Hence, if the offender has
sufficient property or no property at all, there is no use for Article 38.
The pecuniary liabilities of the offender are those owing to the offended party
for reparation of the damage caused and indemnification of consequential damages
(Article 104) and those owing to the government in the form of fine and costs of
proceedings.
They are to be settled in the order given: reparation, then indemnification,
next fine and lastly costs of the proceedings, if the means of the convict are not
enough to settle them all.
Fine is a pecuniary punishment imposed by a lawful tribunal upon a person
convicted by a crime. (Esler vs. Ledesma, 52 Phil. 114) Clearly, the fine provided for
in B.P. 22 was intended as an additional penalty for the act of issuing a worthless
check. This is the only logical conclusion since the law does not require that there be
damage or prejudice to the individual complainant by reason of the issuance of the
worthless check. (Lazaro vs. CA, December 1993)
(In Article 9, a P200 fine is a light penalty but in Article 26, it is correctional
penalty. Article 9 should prevail when the issue is prescription of crime because it is
within the Title of the Code pertaining to felonies and how they are committed. Article
26 should prevail when the issue is prescription of penalty because within the Title of
the Code on penalties.) This has been modified due the passage of RA 10951.
Fine whether imposed singly or alternatively is:
 a. Afflictive/grave if more than P1, 200,000.00
b. Correctional/less grave if more than P40, 000. 00– P1, 200,000.00
c. Light if less than P40, 000.00
Article 39. Subsidiary penalty. - If the convict has no property with which to
meet the fine mentioned in the paragraph 3 of the nest preceding article, he
shall be subject to a subsidiary personal liability at the rate of one day for each
eight pesos, subject to the following rules:
1. If the principal penalty imposed be prision correccional or arresto
and fine, he shall remain under confinement until his fine referred to in
the preceding paragraph is satisfied, but his subsidiary imprisonment
shall not exceed one-third of the term of the sentence, and in no case
shall it continue for more than one year, and no fraction or part of a day
shall be counted against the prisoner.
2. When the principal penalty imposed be only a fine, the subsidiary
imprisonment shall not exceed six months, if the culprit shall have been
prosecuted for a grave or less grave felony, and shall not exceed fifteen
days, if for a light felony.
3. When the principal imposed is higher than prision correccional, no
subsidiary imprisonment shall be imposed upon the culprit.
4. If the principal penalty imposed is not to be executed by confinement
in a penal institution, but such penalty is of fixed duration, the convict,
during the period of time established in the preceding rules, shall
continue to suffer the same deprivations as those of which the principal
penalty consists.
5. The subsidiary personal liability which the convict may have suffered
by reason of his insolvency shall not relieve him, from the fine in case
his financial circumstances should improve. (As amended by RA 5465,
April 21, 1969).
RA 10159, approved April 10, 2012, amended Article 39 of this Code by
changing the rate of Subsidiary Penalty at one day for each amount equivalent to the
112
highest minimum wage prevailing in the Philipines at the time of the rendition of
judgment of conviction by the trial court.
Subsidiary penalty provided for under Art. 39 of this Code applies only in
case of non payment of FINE. Hence, it does not apply to (a) reparation of the
damage caused and (b) indemnification of consequential damages. If expressly
stated in the judgment of conviction, subsidiary imprisonment is applicable only fines.
However, there is no subsidiary penalty for non-payment of costs.
Subsidiary penalty takes the place of the fine for insolvent convicts. It is
neither a principal nor accessory penalty, but a substitute penalty for fine only. The
subsidiary penalty may be in the form of imprisonment or deprivation of right
depending upon the principal penalty imposed on the convict.
The computation is as follows:
(a) Purely fine and felony committed is Grave or less grave subsidiary
imprisonment shall not exceeds 6 months. Light felony not be
more than 15 days;
(b) Fine and imprisonment which should not be higher than prison
correccional or 6 years;
(c) Fine and destierro which must be of a fixed duration; destierro also in
accordance with the above rules. The same goes with Fine and
Suspension.
Subsidiary penalty is not proper when:
a. The principal penalty is higher than prision correccional or over 6
years (6 years and 1 day);
b. The principal penalty consists in other than prison sentence which is
not of fixed duration;
c. Subsidiary penalty is not expressly stated in the sentence to take the
place of fine in case of insolvency;
 d. The sentence imposed does not include fine; and
e. The convict is not insolvent.
The court must expressly state that subsidiary penalty shall be served in case
of insolvency because this is not an accessory penalty that follows the principal
penalty as a matter of course. So, if the decision is silent as to the imposition of
subsidiary penalty in case of non payment of fine, the accused may not be compelled
to serve the same.
BAR 1978
A bus driver was found guilty of damage to property through reckless
imprudence. He was sentenced “to pay a fine of P5, 000. 00 and the costs.” The
driver was insolvent and could not pay the fine.
May the driver be required to serve subsidiary imprisonment? Explain.
Suggested answer
No, because subsidiary imprisonment in case of insolvency to pay the fine, is
not expressly provided in the sentence. (People v. Fajardo, 65 Phil. 639)
BAR 1980
“P” was sentenced from six (6) years and one (1) day to twelve (12) years
one one (1), and ordered to pay a fine of P2, 000. 00
May “P” be compelled to serve subsidiary imprisonment in case of failure to
pay the fine?
Suggested answer
P cannot be compelled to serve subsidiary imprisonment. Art. 39 par. 3 of the
RPC provides that there is no subsidiary imprisonment if the principal penalty is
higher than prison correccional. The penalty of 6 years and 1 day to 12 yesrs and 1
day is higher than prision correccional which has a maximum of 6 years only. The
mere addition of 1 day to 6 years is already higher than prision correccional and in
such a case there can be no subsidiary imprisonment for failure to pay the fine.
(Rosario v. Director of Prisons, L- 03463, March 6, 1950).
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The accused cannot choose to serve subsidiary penalty, instead of paying
pecuniary liabilities, if he has property with which to pay them. It is only when the
accused has no property with which to meet his pecuniary liabnilities that he is
required to suffer subsidiary penalty.
Pecuniary liability distinguished from pecuniary penalty
a. Pecuniary liabilities are those which a convicted offender is required to pay in
money to the offended party and the government which are:
1. Reparation of the damage caused;
2. Indeminification of consequential damage;
3. Fine; and
4. Costs of the proceedings
Reparation of the damage caused and indemnification of consequential damage
are paid as civil liability to the private offended party while the fine and cost of the
proceedings are paid to the government.
b. On the other hand, pecuniary penalties are those a convicted offender may
be required to pay in money to the government, which are:
1. Fine; and
2. Costs of the proceedings.
BAR 2019
Mr. Q was found guilty beyond reasonable doubt of the crime of Serious
Physical Injuries, and accordingly, was sentenced to suffer the penalty of
imprisonment for an indeterminate period of six (6) months of arresto mayor, as
minimum, to four (4) years, two (2) months, and one (1) day of prision correccional,
as maximum. He was also ordered to pay the victim actual damages in the amount
of ₱50,000.00, with subsidiary imprisonment in case of insolvency.
Was the imposition of subsidiary imprisonment proper? Explain.
Section Three. - Penalties in which other accessory penalties are inherent
Article 40. Death; Its accessory penalties. - The death penalty, when it is not
executed by reason of commutation or pardon shall carry with it that of
perpetual absolute disqualification and that of civil interdiction during thirty
years following the date sentence, unless such accessory penalties have been
expressly remitted in the pardon.
Accessory penalties of Death Penalty. –
The death penalty, when it is not executed by reason of commutation or
pardon shall carry with it that of
(1) Perpetual absolute disqualification and
(2) Civil interdiction during thirty years following the date sentence, unless such
accessory penalties have been expressly remitted in the pardon.
Article 41. Reclusion perpetua and reclusion temporal; Their accessory
penalties. - The penalties of reclusion perpetua and reclusion temporal shall
carry with them that of civil interdiction for life or during the period of the
sentence as the case may be, and that of perpetual absolute disqualification
which the offender shall suffer even though pardoned as to the principal
penalty, unless the same shall have been expressly remitted in the pardon.
Accesory Penalties of Reclusion perpetua and reclusion temporal.
The penalties of reclusion perpetua and reclusion temporal shall carry with
them that of
1.Civil interdiction for life or during the period of the sentence as the case may be,
and
2. Perpetual absolute disqualification which the offender shall suffer even though
pardoned as to the principal penalty, unless the same shall have been expressly
remitted in the pardon.
Article 42. Prision mayor; Its accessory penalties. - The penalty of prision
mayor, shall carry with it that of temporary absolute disqualification and that of
perpetual special disqualification from the right of suffrage which the offender
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shall suffer although pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon.
Accesory Penalties of Prision mayor.
The penalty of prision mayor, shall carry with it
(1) Temporary absolute disqualification and
(2) Perpetual special disqualification from the right of suffrage which the offender
shall suffer although pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon.
Article 43. Prision correccional; Its accessory penalties. - The penalty of
prision correccional shall carry with it that of suspension from public office,
from the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, if the duration of said imprisonment
shall exceed eighteen months. The offender shall suffer the disqualification
provided in the article although pardoned as to the principal penalty, unless
the same shall have been expressly remitted in the pardon.
Accessory Penlaties of Prision correccional.
The penalty of prision correccional shall carry with it
(1) Suspension from public office;
(2) From the right to follow a profession or calling, and
(3) Perpetual special disqualification from the right of suffrage, if the duration of
said imprisonment shall exceed eighteen months. The offender shall suffer
the disqualification provided in the article although pardoned as to the
principal penalty, unless the same shall have been expressly remitted in the
pardon.
Article 44. Arresto; Its accessory penalties. - The penalty of arresto shall carry
with it that of suspension of the right to hold office and the right of suffrage
during the term of the sentence.
Accessory Penalties of Arresto
The penalty of arresto shall carry with it
(1) Suspension of the right to hold office and
(2) The right of suffrage during the term of the sentence.
Article 45. Confiscation and forfeiture of the proceeds or instrument of the
crime. – Every penalty imposed for the commission of a felony shall carry with
it the forfeiture of the proceeds of the crime and the instruments or both with
which it was committed.
Such proceeds and instruments or tools shall be confiscated and
forfeited in favour of the Government, unless they be the property of a third
person not liable for the offense, but those articles which are not subject of
lawful commerce shall be destroyed.
Outline of the provision of this article:
The forfeiture of the proceeds or instruments of the crime cannot be ordered
if the accused is acquitted, because no penalty is imposed.
Notwithstanding the foregoing confiscation shall proceed if the articles are by
themselves contraband or not subject of lawful commerce like dangerous drugs.
Article 46. Penalty to be imposed upon principals in general. –The penalty
prescribed by law for the commission of a felony shall be imposed upon the
principals in the commission of such felony.
Whenever the law prescribes a penalty for a felony in general terms, it
shall be understood as applicable to the consummated felony.
Penalty prescribed in general terms – General rule.
The penalty prescribed by law in general terms shall be imposed:
1. Upon the principals.
2. For consummated felony.

Every penalty imposed carries with it the forfeiture of the proceeds of the In Article 249, for instance, the penalty of reclusion temporal is provided for
crime and the instruments or tools used in the commission of the crime. the crime of homicide. That penalty is intended for the principal in a consummated
homicide.
The proceeds and instruments or tools of the crime are confiscated and
forfeited in favour of the Governemt. Article 47. In what cases the death penalty shall not be imposed; Automatic
review of death penalty cases. – The death penalty shall be imposed in all
Property of a third person not liable for the offense is not subject to cases in which it must be imposed under existing laws, except when the guilty
confiscation and forfeiture. person is below eighteen (18) yeas of age at the time of the commission of the
crime or is more than seventy (70) years of age or when upon appeal or
Property not subject of lawful commerce (whether it belongs to the accused
automatic review of the case by the Supreme Court, the required majority vote
or to third person) shall be destroyed.
is not obtained for the imposition of the death penalty, in which cases the
Confiscation/forfeiture of the proceeds or instruments of the crime is penalty shall be reclusion perpetua.
automatically imposed unless:
In all cases where the death penalty is imposed by the trial court, the
(a) They were the property of 3 rd
person who has no complicity in the records shall be forwarded to the Supreme Court for automatic review and
crime, or judgment by the court en banc, within twenty (20) days but not earlier than
fifteen (15) days after promulgation of ther judgment or notice of denial of any
(b) If the property is not within the jurisdiction of the court because it was motion for new trial or reconsideration. The transcript shall also be forwarded
not submitted thereto.

115
within ten (10) days after the filing thereof by the stenographich reporter. (As
amended by R.A. No. 7659)
Death penalty is not imposed in the following cases:
1. When the guilty person is below 18 years of age at the time of the
commission of the crime.
2. When the guilty person is more than 70 years of age.
3. When upon appeal or automatic review of the case by the Supreme Court,
the vote of eight (8) members is not obtained for the imposition of the death
penalty.
Article 48 – Penalty for complex crimes. – When a single act constitutes two or
more grave or less grave felonies, or when an offense is a necessary means
for committing the other, the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period. (As amended by Act
No. 4000).
Penalty for Complex Crime
A reading of Article 48 would clearly show that it speaks of 2 kinds of plurality
of offenses:
(a) “When a single act constitutes two or more grave or less grave felonies”
otherwise called compound crime or delito compuesto.
(b) “When an offense is a necessary means for committing the other” also
known as complex crime proper or delito complejo.
Underlying Philosophy of Complex Crime
In the case of People vs. Gaffud, G.R. No. 168050, September 19, 2008, the
Supreme Court declared the underlyng principle of complex crime, which follows the
pro reo principle, is intended to favour the accused by imposing a single penalty
irrespective of the crimes committed. The rationale being, that the accused who
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commits two crimes with single criminal impulse demonstrates lesser perversity that
when the crimes are committed by different acts and several criminal resolutions.
Compound Crimes
Compound crimes are those committed when a single act results to 2 or more
grave or less grave felonies. The felonies committed may be: (a) 2 or more grave
felonies (b) 2 or more less grave felonies or (c) 1 or more and 1 or more less grave
felonies. The resultant light felony shall be treated as a separate offense.
The basis of compound crimes is the singularity of the act such as the single
act of throwing hand grenade, killing some and seriously wounding a number of
persons. In a similar way, the single act of running over the victims with a van
constitutes compound crimes of multiple murders. (People vs. Comadre, G.R. No.
199892, June 8, 2004). However, the act of pulling the trigger of automatic gun with
several bullets coming out, killing several persons is not compound crime because of
the special property of the automatic gun and the offender knowing this fact. (People
vs. Tabaco, G.R. No. 100382-100385, March 19, 1997.)
Example 1
If the act or acts complained of resulted from a single criminal impulse, such
as throwing hand grenade, it constitutes a single offense. Since the 3 murder and
attempted murders were produced by a single act (the explosion caused by the
hurling of a grenade into the bedroom of the victim), the case comes from under
Article 48. Only 1 Information should be filed. (People vs. Carpo, G.R. No. 132676,
April 4, 2001)
Example 2
A single act which resulted to the crime of Direct Assault with serious physical
injuries or less serious physical injuries.
Example 3
A single act which resulted to the crime of Direct assault with attempted
murder is a complex crime.
Example 4
 A single act which resulted to the crime of Direct assault with homicide or
murder (People vs. Estonilo Jr. G.R. No. 201565, October 13, 2014)
However, if a single act produces direct assault and slight physical injuries,
there is no complex crime because slight physical injuries is a light felony and as
such it cannot be made component of a compound crime because Article 48 speaks
of “grave or less grave felony.” In a case like this, direct assault absords slight
physical injuries.
Not a Compoud Crime
It is understood that a compound crime is composed of several crimes
produced by a single act. The following are not considered as compound crimes:
1. If there are several acts involved in killing several victims, there is no compound
crime.
2. When various victims expire from separate shots, such acts constitute separate
and distinct crimes (People vs. Toling, G.R. No. L – 27097, January 17, 1975)
3. Single act of pressing the trigger of a Thompson sub machine gun or armalite rifle
is treated as several acts as many as there are bullets fired from the gun (People vs.
Desierto)
Exception to the Single Act
1.Single Criminal Impulse – In People vs. Lawas, L- 7618-20, June 30, 1955, if
several accused killed several victims pursuant to a single criminal impulse to obey
the order of their commander to fire their guns at the victim, they shall be held liable
for compound crime of multiple murders.
The Lawas Doctrine is more of an exception that a general rule (People vs.
Remollino, G.R. No. 14008, September 30, 1960)
In Lawas case, the Supreme Court was merely forced to convict the accused
of a compound crime because of the impossibility of ascertaining the number of
persons killed by each accused. Hence, to apply the single criminal impulse rule, the
circumstances of a case must be similar to that in Lawas case. The Lawas principle
should only be applied in a case where: (1) It is impossible to ascertain the number
117
of deaths caused by each accused, and (2) there is no conspiracy (People vs. Hon.
Pineda, G.R. No. L – 26222, July 21, 1967)
2.Single Criminal Purpose – In People vs. Abella, G.R. No. L – 32205, August 31,
1979, if several prisoners killed fellow prisoners pursuant to a single criminal purpose
to take revenge, they shall be held liable for compound crime of multiple murders.
COMPLEX CRIME PROPER
Complex crime proper is composed of two or more crimes one or some of
which are necessary means to commit the other. The phrase “necessary means” in
Article 48 does not mean indispensable. A crime, which is an indispensable means
to commit another, is an element of and absorbed by the latter. (David v. People,
G.R. No. 208320, August 19, 2015).
BAR 2019
Ms. E was charged with the complex crime of Estafa through Falsification of
Public Documents before the trial court. Prior to her arraignment, Ms. E moved for
the dismissal of the criminal case against her, pointing out that the private offended
party is her biological father, and that such relationship is an absolutory cause under
Article 332 of the Revised Penal Code (RPC).
(a) Explain the concept of complex crimes under the RPC.
(b) Is Ms. E's contention correct? Explain.
The common problem areas relative to complex crime proper are the
commission of the crimes of falsification, malversation, estafa, and theft.
If falsification of document is a means to COMMIT or to CONCEAL
malversation, estafa, or theft, the following rules shall be observed:
Rule 1
Falsification of public, official or commercial document as a means to COMMIT
malversation, estafa, or theft. –

When the offender commits falsification of public, official, or commercial document as
a necessary means to commit malversation, estafa, or theft, the crime committed is
complex crime of estafa through falsification of public document, under Article 48 of
the RPC. (David v. People, G.R. No. 208320, August 19, 2015.
For example: A public officer who used falsified document to misappropriate
government fund is liable for the complex crime of malversation through falsification
of document or estafa through falsification of document depending upon the nature
of his position.
If the public officer is an accountable officer, misappropriation of public funds
is MALVERSATION. Hence, the crime is denominated as Malversation through
Falsification of Public, or Official or Commercial document.
If the public officer is NOT an accountable officer, misappropriation of funds is
ESTAFA. Hence, the crime is called Estafa through Falsification of Public, Officail, or
Commercial document.
Estafa through Falsification of Commercial Document
Example
1.A private person who used a falsified check to defraud the bank is guilty of the
crime of Estafa through Falsification of Commercial document.
2. A person who stole and falsified check to defraud the bank is criminally liable for
the crime of Theft through Falsification of Commercial document. (People v. Salonga,
G.R. No. 131131, June 21, 2001).
Falsification of public, official or commercial document as a means to CONCEAL
malversation, estafa, or theft. –
When the offender commits falsification of public, official, or commercial
document as a means to conceal malversation, or theft, the crimes are separate.
This is not complex crime proper since one is not a necessary means to commit
another.
Rule 2
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Falsification of private document as a means to COMMIT malversation, estafa, or
theft –
Under the doctrine of common element, an element used to complete one
crime cannot be legally re-used to complete the requisites of a subsequent crime.
The common element of estafa or malversation and falsification of private document
is intent to cause damage or damage to the complainant.
Thus, falsification of private document and estafa or malversation cannot
co-exist. The use of damage as an element of falsification of private document
precludes the re-use thereof to complete the elements of estafa or malversation, and
vice versa. In simply put, for the complex crime of esfata or malversation of
document, it is necessary that the subject document for either be public, official or
commercial document. If the subject document is a private document in the
commission of the crime of estafa or malversation, the accused could only be
charged for the crime of estafa (malversation) or estafa.
If the falsification of a private document (demand letter) is committed as a
means to commit estafa, the proper crime to be charged is falsification. (Batulanon v.
People, G.R. No. 139857, September 15, 2006). In the other words, if estafa cannot
be committed without falsifying private document, the crime perpetrated by the
accused is Falsification of Private Document. The use of damage as an element of
falsification of private document precludes the re-use thereof to complete the
elements of estafa.
Rule 3
Falsification of private document as a means to CONCEAL malversation, estafa, or
theft. –
Where falsification of private document is only committed as a means to
CONCEAL estafa, the crime is estafa only. Falsification of private document is not
committed because (a) the use of damage as an element in estafa precludes the
re-use thereof to complete the elements of falsification of private document; (b) the
damage to third person is not caused by the falsity in the document but by the
commission of estafa; and (c) the estafa can be committed without the necessity of
falsifying a private document. (Judge Campanilla)
Simplify Rule
If falsification of private document was used as a means to COMMIT estafa,
the falsification of private document was committed ahead of the estafa, the crime
committed is Falsification of Private Document for the reason that, falsification of
private document absorbs the element of damage of estafa. If the falsification of
private document was used as a means to CONCEAL estafa, the Estafa was
committed ahead of the falsification of private document, the crime committed is
estafa because the crime of estafa absorbs the element of damage of falsification of
private document.
Revised Penal Code and Special Penal Laws
If the acts committed against a child, who is 12 years old and above,
constitute sexual abuse and rape through sexual intercourse, the perpetrator shall be
prosecuted either for sexual abuse or rape through sexual intercourse. Rape cannot
be complexed with Sexual Abuse. Under Article 48 of the RPC, a felony cannot be
complexed with an offense penalized by a special law. He cannot be charged with
both crimes for the same act because his right against double jeopardy will be
prejudiced. Both crimes are of the same nature since the essence of both is having
sex without consent. (Alberto v. CA, G.R. No. 182130, June 19, 2013)
Estafa and BP 22
If the accused issued a bouncing check to defraud the victim, he cannot be
made liable for complex crime of estafa through violation of BP 22 since the latter is
punishable under special law. (1987 BAR). But he can be charged of estafa and a
separate crime of violation of BP 22 without offending the rule on double jeopardy.
Both crimes are not of the same nature. Estafa is malum in se, and deceit
and damage are essential elements thereof. On the other hand, violation of BP 22 is
malum prohibitum, and decit and damage are not essential elements thereof. (1983,
1984 and 1996 BAR). Moreover, Section 5 of BP 22 provides that prosecution under
this Act shall be without prejudice to any liability for violation of any provisions of the
RPC.
Homicide and Illegal Possesion of Loose Firearm
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There is no complex crime proper of homicide and illegal possession of loose
firearm since the latter is an offense punishable under special law. Moreover, Article
48 of the RPC on complex crime will not apply since the applicable rule is Section 29
of RA 10591, which makes using loose firearm as a special aggravating
circumstance in homicide.
For example, if the accused kills his victim by shooting him with a loose
firearm, he may not be convicted of the complex crime of homicide through illegal
possession of loose firearm. An offense punishable under special law such as illegal
posseson of loose firearm cannot be made a component of a complex crime. He is
liable for homicide only while the use of loose firearm will be regarded as a special
aggravating circumstance under Section 29 of RA 10591.
To simplify the rule, complex crime does not include the following, to wit:
(1)A crime to conceal another because the law specifies to commit not to conceal;
(2)A crime which is an element of the other for in that case, the former shall be
absorbed such as trespassing which is an element of robbery with use of force upon
thing;
©A crime which has the same element as the other crime committed. For instance,
estafa and falsification of private documents have the same element of damage.
Thus, there is NO complex crime of estafa thru falsification of private document. But
falsification of public, official or commercial documents does not have the element of
damage, hence, there is a complex crime of estafa through falsification of public, or
official, or commercial documents.
(d)A crime which is incidental to the other such as taking of a woman from her
house, bringing her to a concealed place to commit rape on her. The taking is
incidental to the main purpose to commit rape hence the crime is rape only.
Penalty for Complex Crime
The penalty for complex crimes under Article 48 is the penalty for the MOST
SERIOUS CRIME in the MAXIMUM period. Such penalty is beneficial to the accused
because of the fact that he is given a single penalty whereas if the crime is
considered separate, the offender shall be given as many penalties as there are
crimes committed.
Arson with Homicide
Arson with homicide is not a complex. If death results by reason or on the
occasion of arson, the crime is aggravated arson (special complex crime). The
deaths here are not separate crimes but are merely qualifying circumstances.
Example: The accused killed 4 persons and the house was burned to conceal
the killing. In the course of the arson, a baby in the house was burned to death. How
many crimes were committed?
One arson resulting to the death of the infant and 4 counts of murder, each
count aggravated by dwelling. For the arson where death resulted, they should be
sentenced to a separate term of reclusion perpetua, and for the 4 counts of murder, 4
terms each of reclusion perpetua to be served successively in accordance with
Article 70 of the Revised Penal Code. (People vs. Cedonio, January 1994)
The other kinds of plurality of crimes where a single penalty is imposed are:
(a) Composite crimes or special complex crimes;
(b) Continued crime or delilto continuado; and
(c) Continuing crimes or transitory crimes.
Composite Crimes or Special Complex Crime
Composite crimes are those which are treated as single indivisible offenses
although comprising more than one specific crime and with specific penalty. They are
also called special complex crimes, such as arson with homicide and those found
under Article 294 on robbery with homicide, robbery with rape or robbery with
mutilation. They are deemed a product of one criminal impulse. They are not
complex crimes.
Special Complex Crime is composed of two or more crimes where the law
prescribes a single penalty. The essence of special complex crime is the singularity
of the penalty prescribed by law although there is more than one crime committed.
120
Composite crimes (special complex crime) versus complex crimes:
(a) In composite crimes, the offense comprising the same are fixed by law
e.g., robbery with rape, robbery with mutilation. In complex crime, the
combination of the offenses is not specified but generalized, that is,
grave and/or less grave; or one offense being necessary means to
commit the other.
(b) In composite crime, the penalty for the specified combination of
crimes is also specific. For instance, in robbery with homicide, the
penalty prescribed is reclusion perpetua. In complex crime, the
penalty is not specific but is for the most serious offense in the
maximum period.
(c) In complex crimes, the light felony resulting from the same act is
treated separately. In special complex crimes, the other felonies are
absorbed. Thus, in robbery with homicide, the homicide is deemed
generic and includes the slight physical injuries inflicted on the same
occasion of robbery. (People v. Villaflores, G.R. No. 184926, April 11,
2012; 2005 BAR).
(d) In composite crimes, there is only one indivisible felony even if there
are excess counts e.g., kidnapping with multiple rapes or multiple
homicide result to a single crime of kidnapping with rape or
kidnapping with homicide. The excess rapes and homicide are
absorbed. In complex crime, the excess crimes are not absorbed.
Hence, in forcible abduction with multiple rapes, the first rape is
complexed with the abduction, the excess rapes are separate crimes.
Acquittal from one component offense does not mean acquittal from others
We stress that the failure of the prosecution to prove one of the component
crimes and the acquittal arising therefrom will not necessarily lead to a declaration of
innocence for the other crimes. Settled is the rule that when a complex crime is
charged and the evidence fails to establish one of the component offenses, the
accused can be convicted of the others, so long as they are proved. (Monteverde vs.
People, G.R. No. 139610, August 12, 2002)
Example
The accused was charged with a special complex crime of Robbery with
Homicide. The prosecution was not able to establish all the elements necessary to
establish the crime of robbery, while it has convincingly established with proof of guilt
beyond reasonable guilt the crime of homicide. In this case, the court may convict
the accused only for the crime of homicide which was duly proven.
Example
The accused was charged with a special coplex crime of Robbery with
Homicide. However, the prosecution was not able to positively establish the
commission of the crime of robbery. Nonetheless, the court convicted the accused
for the crime of Murder. Is the conviction of the accused for the crime of murder
proper?
Please remember that in the special complex crime of of Robbery with
Homicide, the term “homicide” is used in the generic sense, which includes all kinds
of killings such as “homicide,” “murder,” “parricide” or “infanticide.” As long as there
are allegations in the information that would qualify the killing the murder like
“treachery” and it was duly proven during the trial, then the court was correct in
convicting the accused for the crime of murder.
One crime not proved, may be convicted of the other
When one of the crimes is not proved the effect is that the accused can be
convicted of the other. For instance, in rape with homicide, if the rape was not
proved, the accused may be convicted of homicide. If there is an allegation of
qualifying circumstance, conviction for murder is also proper because the term
“homicide” as used in special complex crime of rape with homicide is to be
understood in its generic sense, and includes murder and slight physical injuries
committed by reason or on occasion of rape. But unless the qualifying circumstances
are alleged in the information, the offender is presumed to have no independent
121
knowledge of the facts that constitute the offense and cannot be convicted of an
offense higher than that for which he is tried. It matters not how conclusive and
convincing the evidence of guilt may be, he cannot be convicted of any offense
unless it is charged in the complaint or information for which he is tried, or is
necessarily included in that which is charged. (People vs. Gallarde, G.R. No.
133025, February 17, 2000)
Crimes under the Revised Penal Code are mala in se, the concept of which
gives importance to criminal intent or mens rea of the offender. Thus, the number of
criminal intent and not the number of crimes committed generally determine the
number of penalty to be imposed for multiple crimes. Multiple crimes commited by
the same offender under a single criminal impulse are treated as one crime and
punished with a single penalty. Thus, a single penalty is being imposed for multiple
crimes with single criminal intent, which are merged to form a delito compuesto,
delito complejo, delito continuado or absorbing crime.
One of the rules that require imposition of single penalty for multiple crimes is
the doctrine of absorption, or “one penalty for one criminal mind,” under which one
crime absorbs another if the latter is inherent in, an element of, or a necessary
consequence of the commission of the former. A crime is considered inherent where
its commission is an indispensable means to commit another.
Element of a crime – A person who by means of violence coerces a lady to
have sexual intercourse with him should not be held liable for physical injuries and
coercion in addition to rape. Physical injuries are necessary consequence of the
employment of violence, which is an element of rape, while coercion is inherent
therein. Hence, Physical injuries and coercion are absorbed in rape. (Judge
Campanilla)
Treason
Levying war against the government in adherence to its enemy is the first
mode of committing treason. Killing soldiers of the government is an inherent means
to levy war. Adherence to the enemy by giving aid and comfort is the second mode of
committing treason. Investigating guerrillas and torturing them is giving aid and
comfort to the Japanese imperial army. Since murder of soldiers and guerrillas are
inherent means to commit treason, the crime of murder is absorbed in the crime of intent and purpose; and (3) unity of penal provision infringed upon or violated.
treason. (Santiago v. Garchitorena , G.R. No. 109266, December 2, 1993).

Political crime In “delito continuado” or “continued crime” and sometimes referred to as

“continuous crime,” the offender is impelled by a single criminal impulse but
The word “rebellion” evokes not only a challenge to the constituted
committed a series of overt act at about the same time in about the same place and
authorities, but also civil war, on a bigger or lesser scale, with all the evils that go
all the overt acts violate one and the same provision of law. Only one crime shall be
with it. It connotes necessarily, or even generally, either physical injuries, or murder.
charged.
Where the crimes of murder, robbery, and kidnapping are commited as a means to or
in furtherance of the rebellion charged, they are absorbed by, and form part and Example
parcel of, the rebellion, and that therefore, the accused can be convicted only of the
In Santiago vs. Garchitorena, the original information charged petitioner with
simple crime of rebellion, and not a complex crime of rebellion with murders, robbery,
performing a single criminal act – approving the application for legalization of aliens
and kidnapping. (People v. Hernandez. G.R. Nos. L – 6025-26, July 18, 1956; (1962
not qualified under the law to enjoy such privilege. The original information also
BAR).
averred that the criminal act: (i) was in violation of E.O. 324 dated April 3, 1988, (ii)
If murder, kidnapping and arson are committed in furtherance of rebellion, caused an undue injury to one offended party, the Government, and (iii) was done on
they will be divested of their character as common crimes and will assume the a single day, on or about October 17, 1988.
political complexion of rebellion. Hence, accused cannot be prosecuted for murder,
Example
kidnapping and arson separately or complexed with rebellion. Rebellion absorbs
these common crimes. (People v. Geronimo, G.R. No. L – 8936, October 23, 1956). The trend in theft cases is to follow the so-called “single larceny doctrine,”
that is, the taking of several things, whether belonging to the same or different
If murder is committed for private purposes or if robbery or kidnapping is
owners, at the same time and place constitutes but one larceny. Abandoned is the
committed for profit without any political motivation, even though the common crimes
“separate larceny doctrine” under which there was a distinct larceny as to the
are simultaneously committed with rebellion, the doctrine of absorption will not apply.
property of each victim. Also abandoned was the doctrine that the government has
Coup d’ etat the discretion to prosecute the accused for one offense or for as many distinct
offenses as there are victims.
Coup d’ etat is a political crime because the purpose of coup plotter is to
seize or diminish State power. If murder, kidnapping and arson are committed in Example
furtherance of coup d’etat, they will be divested of their character as common crimes
Also, the act of taking 2 roosters belonging to 2 different persons in the same
and will assume the political complexion of coup d’etat. Hence, accused cannot be
place and on the same occasion cannot give rise to 2 crimes having an independent
prosecuted for murder, kidnapping and arson separately or complexed with coup d’
existence of their own, because there are not 2 distinct appropriations nor 2
etat. Coup d’etat absorbs these common crimes. (Gonzales v. Abaya, G.R. No.
intentions that characterize 2 separate crimes.
164007, August 8, 2006).
Single larceny rule –
CONTINUED CRIME
Under the “single larceny” doctrine, that is, the taking of several things,
In order that continued crime or delito continuado may exist, there should be:
whether belonging to the same or different owners, at the same time and place
(1) plurality of acts performed separately during a period of time; (2) unity of criminal
122
constitutes but one larceny or theft. Single larceny rule is specie of delito continuado,
which is specifically applicable to theft.
In People v. Tumlos, G.R. No. 46428, April 13, 1939, En Banc, the theft of the
13 cows owned by six owners involved 13 acts of taking. However, the acts of taking
took place at the same time and at the same place; consequently, accused
performed but one act. The intention was likewise one, that is, to take for the
purpose of appropriating or selling the 13 cows which he found grazing in the same
place. The fact that eight of said cows pertained to one owner and five to another
does not make him criminally liable for as many crimes as there are owners, for the
reason that insuch case neither the intention nor the criminal act is susceptible of
division. (People v. Jaranilla, G.R. No. L – 28547, February 22, 1947; 1963; 1973
and 1976 BAR)
Single larceny rule or delito continuado principle is NOT applicable to
violence against women under RA No. 9262 or sexual abuse under RA No 7610.
Each incident of sexual intercourse and lascivious act with the same child exploited
in prostitution or subject to other sexual abuse is a separate and distinct offense
under Section 5 (b) of RA No. 7610. The offense is similar to rape or acts of
lasciviousness under the RPC in which each act of rape or lascivious conduct
committed against the victim should be the subject of separate Information. (People
v. Lavides, G.R. No. 129670, February 1, 2000). Psychological violence committed
by the husband against this wife on two different occasions constitutes two counts of
violence against women under RA No. 9262. (Dinamling v. People, G.R. No. 199522,
June 22, 2015; 2015 Bar).
Single criminal impulse to commit robbery – Several acts, which are performed
separately during a period of time under a single criminal intent in violation of penal
provision, constitute a continued crime. Thus, several acts of taking away by force
the money and valuables of the employees working in Energex gasoline station
committed under a single criminal intent to commit robbery in that place in violation
of a single penal provision (Article 294 RPC) constitute a continued crime of robbery.
(People v. De Leon, G.R. No. 179943, June 29, 2009; 1996 BAR)
Single criminal impulse to satisfy lust –
Accused inserted his penis thrice into the private part of victim for purpose of
changing position. The three penetration motivated by a single criminal intent to
123
satisfy his lust in violation of single penal provision (Article 266-A RPC) constitute a
continued crime of rape. (People v. Aaron, G.R. No.s 136300-02, September 24,
2002).
Accused inserted his penis thrice into the private part of the victim for the
purpose of resting in five minutes. He satisfied his lust every time he would with draw
his penis to rest. Since the three penetrations were motivated by three separate
intents to satisfy his lust, three separate crimes of rape are committed. (People v.
Lucena, G.R. No. 190632, February 26, 2014)
Some additional examples of delito continuado:
a. Theft of 13 cows belonging to different owners committed at the
same place and at the same period of time. (People vs. Tumlos,
67 Phil. 320)
b. Theft of 6 roosters belonging to 2 different owners from the same
coop and at the same period of time. (People vs. Jaranillo, 55
SCRA 563)
c. The illegal charging of fees for services rendered by a lawyer each
time he collects veteran’s benefits on behalf of a client, who
agreed that the attorney’s fees shall be paid out of said benefits.
(People vs. Sabbun, 10 SCRA 156). The collections of the legal
fees were impelled by the same motive, that of collecting fees for
services rendered, and all acts of collection were made under the
same criminal impulse. (People vs. Lawas, 97 Phil. 975).
Cases when the concepts of delito continuado was not applied:
(a) 2 estafa cases one of which was committed during the period from
January 19 to December 1955 and the other from January 1956 to July
1956. (People vs. Dichupa, 113 Phil. 306). The said acts were committed
on different occasions.
(b) Several malversations committed n May, June and July 1936 and
falsifications to conceal the said offenses committed in August and
October 1936. The malversations and falsifications were not the result of
 only one purpose or of only one resolution to embezzle and falsify.
(People vs. Cid, 66 Phil. 354).
(c) 2 estafa cases, one committed in December 1963 involving failure of the
collector to turn over the instalments for a radio and the other in June
1964 involving pocketing of instalments for a sewing machine. (People vs.
Ledesma, 73 SCRA 77).
(d) 75 estafa cases committed by the conversion by the agent of collections
from customers of the employer made on different dates. (Gamboa vs.
CA, 68 SCRA 308)
CONTINUING CRIME
a. In procedural law, one where any of the elements of the offense were
committed in different localities; the accused may be indicted in any of
those localities.
b. Any offense which is continuing in time, e.g., rebellion which may
have been started years ago by the offenders and continuing up to the
present.
Examples
a. Rebellion, insurrection, conspiracy and proposal to commit such
crimes, setting them apart from the common offenses, aside from their
essentially involving a massive conspiracy of nationwide magnitude.
(Garcia-Padilla vs. Enrile, 121 SCRA)
b. Violation of BP 22. Venue is determined by the place where the
elements of making, issuing, or drawing of the check and delivery
thereof are committed. The place where the bills were written, signed,
or dated does not necessarily fix or determine the place where they
were executed. What is of decisive importance is the delivery thereof.
The delivery of the instrument is the final act essential to its
consummation as an obligation. (Ibasco vs CA, G.R. No. 117488,
September 5, 1996)
124
c. Abduction, kidnapping and illegal detention which are both transitory
and continuing in time if the victim was transported and/or held for a
time period.
The SIMPLIFY RULE when an act or acts constitute more than one offense, the
accused may be liable either for:
a. A single crime, with one crime absorbing the other offense;
b. A complex crime when the offense constitute grave or less grave
felonies or when one crime is the necessary to commit the other;
c. A special complex crime, with each offense constituting elements of
the composite offense;
d. Two separate crimes.
For instance, the taking of a woman forcibly and thereafter, rape was
committed on her. How should the offenders be charged?
a. If the original intent is to rape, the taking is merely a means to commit the
intended offense in which case, the crime is simple rape, the abduction
being a necessary means to bring about the desired result.
b. If the intention is to take the woman against her will with lewd design,
there is the complex crime of abduction with rape.
c. If the original intention is to kidnap the woman for ransom and thereafter,
rape is committed as an afterthought, the offense committed is special
complex crime of kidnapping with rape.
d. If in (b) above, there were several counts of rape, the first rape shall be
complexed with the forcible abduction and the subsequent rapes treated
as separate crimes of rape.
BAR 2004 – Distinguish clearly but briefly: Between compound and complex crime
as concepts in the Penal Code.
BAR 2005 – Complex Crime v. Special Complex Crime v. Delito Continuado.
BAR 1994 - Complex Crime: Aberratio Ictus vs. error in personae
BAR 1999 – Complex Crime: Aberratio Ictus, Error in Personae & Praeter
Intentionem
BAR 1996 – Complex Crime: Doctrine of Aberratio Ictus; not applicable.
BAR EXAM
At the height of an altercation, Pedrito shot Paulo but missed, hitting Tiburcio
instead, resulting in the death of the latter. Pedrito, invoking the doctrine of aberration
ictus, claims exemption from criminal liability. If you were the judge, how would you
decide the case?
Suggested answer
If I were the judge, I would convict Pedrito and find him guilty of the Complex
Crime of Homicide with Attempted Homicide. The single act of firing at Paulo
resulted in the commission of two felonies, one grave (homicide) and the other less
grave (attempted homicide) thus falling squarely under Art. 48 of the RPC; hence the
penalty would be for the more serious crime (homicide) in its maximum period (17
years, 4 months and 1 day to 20 years).
Aberratio Ictus (mistake in the blow) could not be used as a defense as it is
not an exempting circumstance. Pedrito is liable under the principle of Art. 4 of the
RPC, which makes a person criminally liable for all the natural and logical
consequences of his felonious act.
BAR 2003
Can there be a complex crime of coup d’etat with rebellion? (2) Can there be
a complex crime of coup d’etat with sedition?
Suggested answer
Yes, if there was conspiracy between the offender/s committing the coup
d’etat and offender/s committing the rebellion. By conspiracy, the crime of one would
be the crime of the other and vice versa. This is possible because the offender/s in
coup d’ etat may be any person or persons belonging to the military or the national
125
police or a public officer, whereas rebellion does not so require. Moreover, the crime
of coup d’ etat may be committed singly, whereas rebellion requires a public uprising
and taking up arms to overthrow the duly constituted government. Since the two
crimes are essentially different and punished with distinct penalties, there is no legal
impediment to the application of Art. 48 of the RPC.
Yes, coup d’ etat can be complexed with sedition because the two crimes are
essentially different and distinctly punished under the RPC. Sedition may not be
directed against the Government or non-political in objective, whereas, coup d ‘ etat
is always political in objective as it is directed against the Govenrment and led by
persons or public officer holding public office belonging to the military or national
police. Art. 48 of the RPC may apply under the conditions therein provided.
Alternative answer
The crime of coup d’ etat cannot be complexed with the crime of rebellion
because both crimes are directed against the Government or for political purposes,
although the principal offenders are different. The essence may be the same and
thus constitute only one crime. In this situation, the two crimes are not distinct and
therefore, may not be proper to apply Article 48 of the RPC.
BAR 1999 – Complex crime – determination of the crime
A, actuated by malice and with the use of a fully automatic M-14 sub-machine
gun, shot a group of persons who were seated in a cockpit with one burst of
successive, continuous, automatic fire. Four (4) persons were killed thereby, each
having hit by different bullets coming from the sub-machine gun of A. Four (4) cases
of murder were filed against A. The trial court ruled that there was only one crime
committed by A for the reason that, since A performed only one act, he having
pressed the trigger of his gun only once, the crime committed was murder.
Consequently, the trial judge sentenced A to just one penalty of reclusion perpetua.
Was the decision of the trial judge correct? Explain?
Suggested answer
The decision of the trial judge is not correct. When the offender made use of
an automatic firearm, the acts committed are determined by the number of bullets
discharged inasmuch as the firearm being automatic, the offender need only to press
the trigger once and it would fire continually. For each death caused by a distinct and
separate bullet, the accused incurs distinct criminal liability. Hence, it is not the act of
pressing the trigger which should be considered as producing the several felonies,
but the number of bullets which actually produced them.
Variance rule – The body of the information charged the accused of compound crime
of murder and attempted murder since two victims were hit by a single shot. The
evidence shows that murder and attempted murder are separate crimes since the
two victims were hit by several shots. Under the variance rule, if the crime alleged in
the information varies with the crime proven with evidence, the accused shall be
convicted of the crime alleged or proven, whichever is lesser. Thus, accused shall be
convicted of complex crime, which is lesser compared to two crimes. (People v.
Bernardo, G.R. No. 198789, June 3, 2013). (Judge Campanilla)
Complex crime of robbery by means of violence and intimidation and robbery by
using force upon thing. –
In People v. Sebastian, G.R. No. L – 2725, February 27, 1950, the Supreme
Court ruled that when the elements of both robbery by means of violence and
intimidation and robbery by using force upon thing are present, the accused shall be
held liable for the former since the controlling qualification is violence and
intimidation.
Entry into a dwelling without force upon thing – To apply the Napolis doctrine, it is
important that the robbers entered the dwelling, store or warehouse by using force
upon thing such as unlawful entry or breaking the window. If the robbers entered the
dwelling through an open door or there is no showing how they entered the dwelling,
Napolis principle will not apply since they did not commit robbery by using force upon
thing that can be complexed with robbery by means of violence or intimidation. In this
situation, the crime committed is simple robbery with the aggravating circumstance of
dwelling. In robbery with violence or intimidation against persons, dwelling is
aggravating since in this class of robbery, the crime may be committed wihtou the
necessity of trepassong the sanctity of the offended party’s house. (People v.
Apduhan, Jr., G.R. No. L -19491, August 30, 1968; 1996; 2005 and 2014 BAR)
Entry into a store without force upon thing – If the robbers entered a store or
warehouse through an open door, and then took property therein, Napolis principle
will not apply since robbery by using force upon thing is not committed. Neither is the
126
Apduhan principle applicable since a store or a warehouse is not a dwelling
contemplated in Article 14 of the RPC. Hence, the crime committed is simple robbery
without aggravating circumstance of disregard of dwelling. (1986 BAR)
Robbery with homicide – It is submitted that Napolis doctrine is not applicable if
homicide is committed by reason or on occasion of robbery. In robbery with
homicide, all the felonies committed by reason or on occasion of the robbery are
integrated into one and indivisible felony. (People v. Ebet, G.R. No. 181635,
November 15, 2010). Hence, robbery by using force upon thing will also form part of
special complex crime of robbery with homicide. There is no such thing as complex
crime of robbery by force upon thing and special complex crime of robbery with
homicide. A special complex crime cannot be made a component of a complex
crime.
Usurpation of Authority
Usurpation of authority is either a crime or a qualifying circumstance of
simulation of authority in robbery using force upon thing. However, if the accused
committed usurpation of authority to enter the dwelling and then he committed
robbery with homicide therein, the former will be considered as a component of the
latter. (People v. De Jesus, G.R. No. 134815, May 27, 2004).
Possession of Picklock
Possesion of picklock is either a crime or a qualifying circumstance in robbery
by using force upon thing. But if the accused used picklock to enter the building, and
then, committed rape with homicide therein, the possession of picklock shall be
considered as a component of this special complex crime of Rape with Homicide.
(2009 BAR)
Unlawful entry or Forcible Entry
Unlawful entry or forcible entry is either a crime or an ordinary aggravating
circumstance or a qualifying circumstance in robbery by using force upon thing. In
case the robbery with homicide is committed in a dwelling after unlawful entry or
forcible entry, the crime committed is a special complex crime of robbery with
homicide with the ordinary aggravating circumstance of unlawful entry or forcible
entry (People v. Baello, G.R. No. 10134, July 1, 1993).
 Accused wearing fatigues barged into the residence of victim. Once inside,
they announced that they were policemen on an official mission. Then they took
therein by force and killed the people inside and barged into the house through its
window, or through the door after destroying the door thereof. Neither did they
pretend the exercise of authority to gain entry to the dwelling. They were already
inside the house when they announced that they are policemen. Hence, the crime
committed is robbery with homicide with aggravating circumstance of disregard of
dwelling. (1992 BAR)
Example 1
M, Mayor of X town, was on board his Pajero van while inspecting one of his
projects whe he was ambushed and killed by his political rivals. The complex crime
of murder with direct assault was committed.
Example 2
With a .38 caliber revolver, X shot Y but the latter was not hit; instead Z who
passed was seated on a bench was the one hit and died for having been fatally hit
on the head. X committed a complex crime of attempted homicide with homicide.
The single act of shooting Y constitutes less grave felony and a grave felony.
Example 3
A, B, C, and D abducted actress M and the four took turn in raping her. After
the commission of the first rape, the complex crime of forcible abduction with rape
was already committed and the penalty on the four conspirators was death. As to the
last three rapes, they are not connected anymore with forcible abduction but are
considered separate crimes. Considering that they were committed with the
aggravating circumstances of nighttime, abuse of superior strength, ignominy and
use of motor vehicle, four death sentences were imposed on each of the four
conspirators. (People v. Jose, et.al., 37 SCRA 450).
Article 49. Penalty to be imposed upon the principals when the crime
committed is different from that intended. - In cases in which the felony
committed is different from that which the offender intended to commit, the
following rules shall be observed:
127
1. If the penalty prescribed for the felony committed be higher than that
corresponding to the offense which the accused intended to commit,
the penalty corresponding to the latter shall be imposed in its maximum
period.
2. If the penalty prescribed for the felony committed be lower than that
corresponding to the one which the accused intended to commit, the
penalty for the former shall be imposed in its maximum period.
3. The rule established by the next preceding paragraph shall not be
applicable if the acts committed by the guilty person shall also
constitute an attempt or frustration of another crime, if the law
prescribes a higher penalty for either of the latter offenses, in which
case the penalty provided for the attempted or the frustrated crime shall
be imposed in its maximum period.
What is the rule in the imposition of penalty in case of error in personae?
In cases in which the felony committed is different from that which the
offender intended to commit, the following rules shall be observed:
1.If the penalty prescribed for the felony COMMITTED be higher than that
corresponding to the offense which the accused INTENDED to commit, the penalty
corresponding to the crime INTENDED shall be imposed in its maximum period.
Example
If the accused intended to kill his mortal enemy, but the person killed is the
accused’s father. The accused should be prosecuted for the crime actually
committed which is parricide with the penalty of reclusion perpetua, and not for the
crime of homicide, which he intended to commit, which carries the penalty of
reclusion temporal. But in case of conviction, he should be penalized for the crime he
intended to commit which is homicide, with carries the penalty of reclusion temporal.
The penalty of reclusion temporal is lower than the penalty of reclusion perpetua, but
the former penalty should be imposed in its maximum period.
2.If the penalty prescribed for the felony COMMITTED be lower than that
Article 50. Penalty to be imposed upon principals of a frustrated crime. - The
corresponding to the one which the accused INTENDED to commit, the penalty for
penalty next lower in degree than that prescribed by law for the consummated
the felony COMMITTED shall be imposed in its maximum period.
felony shall be imposed upon the principal in a frustrated felony.
Example
What penalty to be imposed upon principals of a frustrated crime?
The accused intended to kill his father but the person actually killed was his
moral enemy. In this case, the accused should be indicted for the crime of homicide, The penalty next lower in degree than that prescribed by law for the
which carries the penalty of reclusion temporal, and not for parricide the crime he consummated felony shall be imposed upon the principal in a frustrated felony.
intended to commit, and penalized with reclusion perpetua. And in case of
Examples:
conviction, he should be penalized with reclusion temporal the penalty for the crime
he actually committed, and the same to be imposed in its maximum period.
1. The penalty for the crime of frustrated homicide is prision mayor, which is one (1)
This article does not apply to cases of aberration ictus (mistake in the blow) degree lower from reclusion temporal, the penalty for consummated homicide.
or praeter intentionem (greater injury than intended) but applicable only in case of
error in personae (mistake in identity). It likewise contemplates of cases where only 2. The penalty for frustrated murder is reclusion temporary, which is one (1) degree
one crime is committed and not two or more crimes, and that the crime must befall a lower from reclusion perpetua, the penalty for consummated murder.
different person, otherwise, the rules on complex crimes under art. 48 if arising from
Article 51. Penalty to be imposed upon principals of attempted crimes. - A
a single act, and treated as separate crimes if caused by different acts are
penalty lower by two degrees than that prescribed by law for the consummated
applicable.
felony shall be imposed upon the principals in an attempt to commit a felony.
The penalties for the intended and the actual crime committed are compared
and the lower penalty is imposed in the maximum period. For instance, if the What penalty to be imposed upon principals of attempted crimes. –
intended crime is homicide but due to error in personae, the actual crime committed
is parricide, or the intended crime is parricide but the crime committed is homicide, A penalty lower by two degrees than that prescribed by law for the
either case, the penalty shall be for the homicide, which is the lesser crime. consummated felony shall be imposed upon the principals in an attempt to commit a
felony.
Article 49 provides for the imposition of the penalty for the lesser crime in the
maximum period, whereas Article 48 prescribes the penalty for the most serious Examples:
offense in the maximum period.
1. The penalty for attempted homicide is prision correccional, which is two (2)
Exception: If the crime committed constitutes an attempt or frustration of degrees lower from reclusion temporal, the penalty for consummated homicide.
another with a higher penalty and the law provides a higher penalty for the frustrated
or attempted, the penalty for the latter shall be imposed in the maximum period. 2. The penalty for attempted murder is prision mayor, which is two (2) degrees lower
from reclusion perpetua, the penalty for consummated murder.

Article 52. Penalty to be imposed upon accomplices in consummated crime. -

The penalty next lower in degree than that prescribed by law for the
128
consummated shall be imposed upon the accomplices in the commission of a
consummated felony.
What penalty to be imposed upon accomplices in consummated crime?
The penalty next lower in degree than that prescribed by law for the
consummated shall be imposed upon the accomplices in the commission of a
consummated felony.
Examples:
1. The penalty of prision mayor is to be imposed upon an accomplice in
consummated homicide, which is one (1) degree lower from reclusion temporal, the
penalty for the principal in a consummated homicide.
2. The penalty of reclusion temporal is to be imposed upon an accomplice in
consummated murder, which is one (1) degree lower from reclusion perpetua, the
penalty for the principal in consummated murder.
Article 53. Penalty to be imposed upon accessories to the commission of a
consummated felony. - The penalty lower by two degrees than that prescribed
by law for the consummated felony shall be imposed upon the accessories to
the commission of a consummated felony.
What penalty to be imposed upon accessories to the commission of a consummated
felony?
The penalty lower by two degrees than that prescribed by law for the
consummated felony shall be imposed upon the accessories to the commission of a
consummated felony.
Examples:
1. The penalty of prision correccional shall be imposed upon an accessories to the
crime of consummated homicide, which is two (2) degrees lower from reclusion
temporal, the penalty for the principal in consummated homicide.
129
2. The penalty of prision mayor shall be imposed upon an accessories for the crime
of consummated murder, which is two (2) degrees lower from reclusion perpetua, the
penalty for consummated murder.
Article 54. Penalty to imposed upon accomplices in a frustrated crime. - The
penalty next lower in degree than prescribed by law for the frustrated felony
shall be imposed upon the accomplices in the commission of a frustrated
felony.
What penalty to be imposed upon accomplices in a frustrated crime?
The penalty next lower in degree than prescribed by law for the frustrated
felony shall be imposed upon the accomplices in the commission of a frustrated
felony.
Examples:
1. The penalty of prision mayor is to be imposed upon the principal in a frustrated
homicide, one (1) degree lower from which is prision correccional, the penalty for an
accomplice in a frustrated homicide.
2. The penalty of prision mayor shall be imposed upon an accomplice in a frustrated
murder, which is one (1) degree lower from reclusion temporal, the penalty for
principal in frustrated murder.
Article 55. Penalty to be imposed upon accessories of a frustrated crime. - The
penalty lower by two degrees than that prescribed by law for the frustrated
felony shall be imposed upon the accessories to the commission of a
frustrated felony.
What is the penalty to be imposed upon accessories of a frustrated crime?
The penalty lower by two degrees than that prescribed by law for the
frustrated felony shall be imposed upon the accessories to the commission of a
frustrated felony.
Examples:
1. The penalty of prision mayor shall be imposed upon a principal in a frustrated The penalty lower by two degrees than that prescribed by law for the
homicide, and two (2) degree from which is arresto mayor, which is the penalty for an attempted felony shall be imposed upon the accessories to the attempt to commit a
accessories in the crime of frustrated homicide. felony.

2. The penalty of reclusion temporal shall be imposed upon a principal in a frustrated
murder and two (2) degrees from which is prision correccional which is the penalty
for an accessories in a frustrated murder.
Article 56. Penalty to be imposed upon accomplices in an attempted crime. -
The penalty next lower in degree than that prescribed by law for an attempt to
commit a felony shall be imposed upon the accomplices in an attempt to
commit the felony.
What is the penalty to be imposed upon accomplices in an attempted crime?
Examples:
1.The penalty of prision correccional shall be imposed upon a principal in an
attempted homicide, and two (2) degrees lower arrest menor is the penalty to be
meted out upon an accessories in an attempted homicide.
2. The penalty of prision mayor shall be imposed upon a principal in an attempted
murder, and two (2) degrees lower is arresto mayor is the penalty of an accessories
in an attempted murder.
Illustrating Article 50-57, the penalty for the three stages against the offenders:

The penalty next lower in degree than that prescribed by law for an attempt to Consummated Frustrated
commit a felony shall be imposed upon the accomplices in an attempt to commit the Attempted
felony.
Principal as provided less 1 degree less 2 degrees
Examples: Accomplice less 1 degree less 2 degrees less 3 degrees

1. Prision correccional is the penalty to be imposed upon a principal in an attempted
homicide, and penalty one (1) degree lower is arresto mayor, which is the penalty to
be imposed upon an accomplice in an attempted homicide.
2. Prision mayor is the penalty to be imposed upon a principal in an attempted
murder and one (1) degree lower from which is prison correccional which is the
penalty for an accomplice in an attempted murder.
Article 57. Penalty to be imposed upon accessories of an attempted crime. -
The penalty lower by two degrees than that prescribed by law for the
attempted felony shall be imposed upon the accessories to the attempt to
commit a felony.
Accessory less 2 degrees less 3 degrees less 4 degress
Additional deductions from the penalties are provided in Article 250 of one
degree for frustrated and attempted parricide, murder or homicide because of the
gravity of the penalty prescribed.
Article 58. Additional penalty to be imposed upon certain accessories. – Those
accessories faling within the terms of paragraph 3 of Article 19 of this Code
who should act with abuse of their public functions, shall suffer the additional
penalty of absolute perpetual disqualification if the principal offender be guilty
of a grave felony, and that of absolute temporarydisqualification if he shall be
guilty of a less grave felony.

Public officers who help the author of a crime by misuing their office and
What is the penalty to be imposed upon accessories of an attempted crime? duties shall suffer the additional penalties of:

130
 1. Absolute perpetual disqualification, if the principal offender is guilty of a grave
felony.
2. Absolute temporary disqualification, if the principal offender is guilty of less
grave felony.
Why does this article limit its provisions to grave or less grave felonies?
Because it is not possible to have accessories liable for light felonies (Art. 16 RPC)
This article applies only to public officers who abused their public functions.
The accessories refered to in Article 58 are only those faling within the term
of paragraph 3 of Article 19.
The additional penalty prescribed in this article will be imposed only on those
accessories whose participation in the crime is characterized by the misuse of public
office or authority. This is so because Article 58 says “who should act with abuse of
their public functions.”
Article 59. Penalty to be imposed in case of failure to commit the crime
because the means employed or the aims sought are impossible. – When the
person intending to commit an offense has already performed the act for the
execution of the same but nevertheless the crime was not produced by reason
of the fact that the act intended was by its nature one of impossible of
accomplishment or because the means employed by such person are
essentially inadequate to produce the result desired by him, the Court, having
in mind the social danger and the degree of criminality shown by the offender,
shall impose upon him the penalty of arresto mayor or a fine of ranging from
P40, 000 to P1, 200, 000 pesos.
Penalty for Impossible Crime
This Article provides for the penalty for impossible crime, which is arresto
menor or a fine ranging from 40, 000 to 1, 200, 000 pesos.
Penalty to be imposed in case of failure to commit the crime because the
means employed or the aims sought are impossible.
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When the person intending to commit an offense has already performed the
act for the execution of the same but nevertheless the crime was not produced by
reason of the fact that the act intended was by its nature one of impossible of
accomplishment or because the means employed by such person are essentially
inadequate to produce the result desired by him, the Court, having in mind the social
danger and the degree of criminality shown by the offender, shall impose upon him
the penalty of arresto mayor or a fine of ranging from 40, 000 to 1, 200, 000 pesos.
The court must take into consideration the social danger and the degree of
criminality shown by the offender.
Article 60. Exceptions to the rules established in Articles 50 to 57. – The
provisions contained in Article 50 to 57, inclusive, of this Code shall not be
applicable to cases in which the law expressly prescribes the penalty provided
for a frustrated or attempted felony, or to be imposed upon accomplices or
accessories.
What are the exceptions to the rules established in Articles 50 to 57?
The provisions contained in Article 50 to 57, inclusive, of this Code shall not
be applicable to cases in which the law expressly prescribes the penalty provided for
a frustrated or attempted felony, or to be imposed upon accomplices or accessories.
Article 61. Rules for graduating penalties. - For the purpose of graduating the
penalties which, according to the provisions of Articles 50 to 57, inclusive, of
this Code, are to be imposed upon persons guilty as principals of any
frustrated or attempted felony, or as accomplices or accessories, the following
rules shall be observed:
1. When the penalty prescribed for the felony is single and indivisible,
the penalty next lower in degrees shall be that immediately following
that indivisible penalty in the respective graduated scale prescribed in
Article 71 of this Code.
2. When the penalty prescribed for the crime is composed of two
indivisible penalties, or of one or more divisible penalties to be impose
 to their full extent, the penalty next lower in degree shall be that
immediately following the lesser of the penalties prescribed in the
respective graduated scale.
3. When the penalty prescribed for the crime is composed of one or two
indivisible penalties and the maximum period of another divisible
penalty, the penalty next lower in degree shall be composed of the
medium and minimum periods of the proper divisible penalty and the
maximum periods of the proper divisible penalty and the maximum
period of that immediately following in said respective graduated scale.
4. when the penalty prescribed for the crime is composed of several
periods, corresponding to different divisible penalties, the penalty next
lower in degree shall be composed of the period immediately following
the minimum prescribed and of the two next following, which shall be
taken from the penalty prescribed, if possible; otherwise from the
penalty immediately following in the above mentioned respective
graduated scale.
5. When the law prescribes a penalty for a crime in some manner not
especially provided for in the four preceding rules, the courts,
proceeding by analogy, shall impose corresponding penalties upon
those guilty as principals of the frustrated felony, or of attempt to
commit the same, and upon accomplices and accessories.
In the application of the rules in Article 61, it is to be understood that each
penalty prescribed by law for every felony is considered a degree. Thus, when the
penalty imposed comprises of 2 periods, the 2-period penalty is a degree and the
penalty next lower should be composed of 2 periods also.
For instance, the penalty for direct assault is prison correcional in its medium
and maximum periods. The penalty next lower in degree is arresto mayor maximum
to prison correccional minimum.
The summary of simplified rules are:
The rules for graduating penalties under Article 61 are as follows:
1. If the prescribed penalty is composed of 3 periods, one degree lower is three
period down the scale;
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a. When the penalty prescribed is single and indivisible the next
lower in degree is the penalty immediately following. Thus,
reclusion temporal is lower in degree than reclusion perpetua.
b. For 2 indivisible penalties, the next lower is that immediately
following the minimum so for reclusion perpetua to death, the
penalty next lower is reclusion temporal.
c. When the penalty prescribed is composed of 1 or more divisible
penalties to be imposed to their full extend, the penalty next lower
shall be that immediately following the lesser, e.g., prision mayor
to reclusion temporal, the penalty next lower is prision
correccional.
d. In case of one or more indivisible penalties and the maximum of
divisible penalty, the next lower in degree shall be composed of
the medium and minimum periods of that divisible penalty and the
maximum periods of that immediately following. Thus, one degree
lower than reclusion temporal maximum to (now) reclusion
perpetua is prision mayor manimum to reclusion temporal
medium. (People vs. Paredes, G.R. No. 115217, November 21,
1996)
e. The penalty for brigandage under Article 306 is prision mayor in its
medium period to reclusion temporal in its minimum period, a
penalty composed of 3 periods corresponding to different divisible
penalties. The penalty next lower shall likewise be composed of 3
periods thus:
Maximum - prision mayor, minimum
Medium – prision correccional, maximum
Minimum – prision correcional, medium
 2. If the prescribed penalty is composed of two periods, one degree lower is
also two periods down the scale;
3. If the prescribed penalty is composed of only one period, one degree lower is
the next period down the scale;
4. In fixing the proper period of penalty, the penalty next lower in degree shall be
determined after the mitigating and aggravating circumstances are
considered. (Boado)
Article 62. Effect of the attendance of mitigating or aggravating circumstances
and of habitual delinquency. - Mitigating or aggravating circumstances and
habitual delinquency shall be taken into account for the purpose of
diminishing or increasing the penalty in conformity with the following rules:
1. Aggravating circumstances which in themselves constitute a crime
specially punishable by law or which are included by the law in defining
a crime and prescribing the penalty therefor shall not be taken into
account for the purpose of increasing the penalty.
2. The same rule shall apply with respect to any aggravating
circumstance inherent in the crime to such a degree that it must of
necessity accompany the commission thereof.
3. Aggravating or mitigating circumstances which arise from the moral
attributes of the offender, or from his private relations with the offended
party, or from any other personal cause, shall only serve to aggravate or
mitigate the liability of the principals, accomplices and accessories as
to whom such circumstances are attendant.
4. The circumstances which consist in the material execution of the act,
or in the means employed to accomplish it, shall serve to aggravate or
mitigate the liability of those persons only who had knowledge of them
at the time of the execution of the act or their cooperation therein.
5. Habitual delinquency shall have the following effects:
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(a) Upon a third conviction the culprit shall be sentenced to the
penalty provided by law for the last crime of which he be found
guilty and to the additional penalty of prision correccional in its
medium and maximum periods;
(b) Upon a fourth conviction, the culprit shall be sentenced to the
penalty provided for the last crime of which he be found guilty
and to the additional penalty of prision mayor in its minimum and
medium periods; and
(c) Upon a fifth or additional conviction, the culprit shall be
sentenced to the penalty provided for the last crime of which he
be found guilty and to the additional penalty of prision mayor in
its maximum period to reclusion temporal in its minimum period.
Notwithstanding the provisions of this article, the total of the two
penalties to be imposed upon the offender, in conformity herewith, shall in no
case exceed 30 years.
For the purpose of this article, a person shall be deemed to be habitual
delinquent, is within a period of ten years from the date of his release or last
conviction of the crimes of serious or less serious physical injuries, robo,
hurto, estafa or falsification, he is found guilty of any of said crimes a third
time or oftener.
The article provides for the treatment of the modifying circumstances
attendant in a crime.
The different kinds of modifying circumstances referred to here are:
(a) Aggravating circumstances which in themselves constitute a crime
(paragraph 1) such as “by means of fire” or arson, or “trespass to dwelling” in
robbery with use of force upon things.
(b)Aggravating circumstances included by law in defining a crime and
prescribing the penalty (paragraph 1), e.g., “laying hands upon a person in
 authority” in Direct Assault. Or “unlawful entry” in the crime of Robbery with
Use of Force Upon Things.
© Aggravating circumstances inherent in the crime (paragraph 2). For
example, “evident premeditation” is not considered in the crime of robbery. In
the crime of Trespass to Dwelling, “disregard of dwelling” or “unlawful entry”
shall be not appreciated for being inherent in the crime of trespass to dwelling
or Robbery with Use of Force Upon Thing.
These circumstances shall no longer be considered in imposing the penalty
because in (a) and (b) they were already considered by the law in prescribing the
penalty for the offense and in (c) the circumstance is absorbed by the crime
committed.
Moral Attributes of the Offender
Those pertaining to the moral attributes of the offender or his relations with
the offended or any other personal caused (paragraph 3) – only the offender having
such attribute shall be affected.
Examples:
1.Only the one blinded by passion or obfuscation shall have his liability mitigated.
2.In rape, the relationship of one of the offender will be considered against him only
and not against the other offenders.
3. X and Y agreed to kill Z. X acted because of passion and obfuscation and
vindication of a grave offense. Under par. 3 of Art. 62, only X is entitled to the two
mitigating circumstances because they arose from his moral attributes. Y is not
entitled to these two mitigating circumstances.
4.Habitual delinquency will be considered against the one to whom it pertains and
will not aggravate the crime of the other offenders.
Member of Syndicated or Organized Crime Group
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The provision inserted by R.A. 7659 and renumbered Article 62(1)(a) of
syndicated or organized crime group is the deed of a group of persons, at least 2 in
number, which is organized for the purpose of committing crimes for gain. This
special aggravating circumstance required proof that the group is organized for the
general purpose of committing crimes for gain, which is the essence of syndicated /
organized crime group. (People vs. Alberca, G.R. No. 117106, June 26, 1996)
(Boado)
Material Execution
The circumstances which consist in the material execution of the act, or in the
means employed to accomplish it, shall serve to aggravate or mitigate the liability of
those persons only who had knowledge of them at the time of the execution of the
act or their cooperation therein.
Example 1
X gave money to Y and induced the latter to kill Z. If Y killed Z with treachery,
the aggravating circumstance of treachery cannot be appreciated against X if the
latter has no knowledge about the treachery, although X is liable for homicide in the
absence of any other qualifying circumstance.
On the other hand, if there was conspiracy between X and Y to kill Z by
means of treachery, with or without X’s knowledge that the killing was carried out by
means of treachery, both are guilty of murder, because the act of one is the act of all
(People v. Pareja, 30 SCRA 693).
2.In the crime of theft, only the accused who abused the confidence reposed upon
him by his employer shall be held liable for Qualified Theft.
Habitual Deliquency
Habitual delinquency is a special aggravating circumstance and unlike the
other kinds of aggravating circumstances which merely increase the penalty for the
offense committed, habitual delinquency has its own penalty which escalates with
the increase in the number of convictions. Thus the penalty is for the felony
committed plus for the habitual delinquency the total of which should not be more
than 30 years.
 It should be noted that habitual delinquency is not a crime by itself. It is only a
factor in determining the total penalty.
A person is a habitual delinquent if within a period of 10 years from the date
of his release or last conviction of the crimes of Falsification, Robbery, Estafa, Theft,
Serious or Less Serious Physical Injuries or he is found guilty of said crimes a third
time or oftener. Falsification is a crime against public interest, robbery, estafa, and
theft are against property and the last two are against persons.
An offender may be a recidivist and a habitual delinquent at the same time if
he was convicted for the third time of the crimes within the same title of the Code.
For example, one who is convicted of Acts of Lasciviousness, Seduction, and
Abduction is a recidivist because these crimes are embraced in same Title of the
Revised Penal Code on crimes against chastity. But he is NOT a habitual delinquent
sice they are not habitual delinquency crimes.
It is a must that there must be 3 convictions. The 10-year period is counted
from the date of release for the second crime if he had been released when again
convicted. It is the third conviction that must be within 10 years from the release or
second conviction. Note that the law says “if within a period of 10 years …he is found
guilty of any of said crimes a 3rd time or oftener.”
The law imposes an additional penalty based on the criminal propensity of
the accused apart from that provided by law for the last crime for which he is found
guilty. Habitual delinquency is not, however, a crime in itself; it is only a factor in
determining the total penalty. In fact, the provision on habitual delinquency is found in
Article 62 of the RPC on application of penalties and not in Book Two thereof which
defines felonies. (Almeda v. Villaluz, G.R. No. L – 31665, August 6, 1977; 1947 BAR)
In habitual delinquency, what is important is the date of conviction of the
subsequent or present crime in relation to the date of his last release or conviction. In
habitual deliquency, the accused was convicted of the second crime within 10 years
after conviction or release of the first crime; then, he is convicted of the third crime
within 10 years after conviction or release of the second crime; and so on and so
forth.
Serious and less serious physical injuries – According to Justice Regalado,
the term “serious or less serious physical injuries” in Article 62 should be understood
135
to have been used in the technical term. Thus, frustrated homicide (2014 BAR),
homicide (1991 BAR) or slight physical injuries is not within the contemplation of the
words “serious or less serious physical injuries.”
Robbery – robbery for purposes of habitual delinquency may include robbery
with homicide (1983 and 2001 BAR), or robbery with serious physical injuries. In
case of robbery with serious physical injuries, conviction thereof shall be considered
as one. Special complex crime constituting of two felonies is technically one crime.
Stages of Execution – Habitual delinquency is applicable to the crimes
mentioned in the law regardless of the stage of execution. Offender, who commits a
crime, whether in attempted or frustrated, subjectively reveals the same degree of
depravity and perversity as one who commits a consummated crime. To exclude him
from the operation of rule on habitual delinquency would thwart its purposes and
expose society to a constant menace from such delinquent who, when he resolves to
commit a crime, certainly does not propose not to go beyond an attempt or a
frustration, but rather to consummate it.
Accomplice and Accessories – Habitual delinquency applies to accomplice and
accessories of habitual delinquency crimes. The participation of offenders in
committing those crimes repeatedly, whether as principals, accomplices or
accessories, reveals the persistence in them of the inclination to wrong doing, and of
the perversity of character that had led them to commit the previous crimes. (Judge
Campanilla)
The simplified rules in determining Habitual Delinquency:
1. There must be present at least three of the “habitual delinquency crimes” the
preceding two of which the accused was convicted by final judgment;
2. The interval of time between the first conviction or release and the second
conviction must not exceed 10 years, with the same limitation on the interval
between the second conviction or release and the third conviction, even if
more than 10 years have elapsed between the first conviction or release and
the third conviction;
 Example
3. The second felony must have been committed by the accused after his
conviction of or release in the first felony, and the third felony must have been
1.Accused is found guilty of murder qualified by the circumstance of treachery, which
committed by the accused after his conviction of or release in the second
is punishable by reclusion perpetua to death. The ordinary aggravating circumstance
felony.
of evidence premeditation is present. Taking into account the presence of evidence
premeditation as an aggravating circumstance, the greater penalty of death shall be
A habitual delinquent may be at the same time a recidivist, or vice versa. This
applied. (Death penalty has been abolished by RA No. 9346)
is so if three crimes, like robbery, theft and estafa, are involved and being embraced
in the same title of this Code. If not, a habitual delinquent may not be a recidivist.
2. Accused is found guilty of murder qualified by treachery, which is punishable by
reclusion perpetua to death. The mitigating circumstance of plea of guilty is present.
Article 63. Rules for the application of indivisible penalties. - In all cases in
The court shall penalized the accused with the lesser penalty of reclusion perpetua.
which the law prescribes a single indivisible penalty, it shall be applied by the
courts regardless of any mitigating or aggravating circumstances that may
3.When there are neither mitigating nor aggravating circumstances and there
have attended the commission of the deed.
is no aggravating circumstance, the lesser penalty shall be applied.
Presence of Modifying Circumstances on Indivisible Penalties
Example
In all cases in which the law prescribes a single indivisible penalty, it shall be
The accused is found guilty of rape with homicide, which punishable by
applied by the courts regardless of any mitigating or aggravating circumstances that
reclusion perpetua to death. There is neither aggravating nor mitigating circumstance
may have attended the commission of the deed.
present. The court shall mete the lesser penalty of reclusion perpetua.
Example
4.When the commission of the act is attended by some mitigating
circumstances and there is no aggravating circumstance, the lesser penalty
1. Accused is found guilty of qualified rape, which is punishable by death. Even
shall be applied.
if there are mitigating circumstances of confession and voluntary surrender, the court
shall still apply the penalty of death.
The accused is found guilty of Robbery with Homicide, which is penalized by
reclusion perpetua to death. There is present one mitigating circumstance of
2. Accused is found guilty of simple rape, which is penalized by reclusion perpetua.
voluntary surrender. The court shall apply the lesser penalty of reclusion perpetua.
Even if there are mitigating circumstances of plea of guilty and voluntary surrender,
the court shall apply the penalty of reclusion perpetua.
4.When both mitigating and aggravating circumstances attended the
commission of the act, the court shall reasonably allow them to offset one
In all cases in which the law prescribes a penalty composed of two
another in consideration of their number and importance, for the purpose of
indivisible penalties, the following rules shall be observed in the application
applying the penalty in accordance with the preceding rules, according to the
thereof:
result of such compensation.
1.When in the commission of the deed there is present only one aggravating
Example
circumstance, the greater penalty shall be applied.

136
 The accused is found guilty of Kidnapping with Rape, which is penalized by
reclusion perpetua to death. There is one aggravating circumstance of evident
premeditation and one mitigating circumstance of voluntary plea of guilty. Evidence
premeditation is offset by confession. Since there is no remaining modifying
circumstance, the lesser penalty of reclusion perpetua shall be applied.
There are two classes of penalties in this article each with its own rules:
a. Single indivisible penalty under paragraph 1 – (reclusion perpetua OR
death)
b. Two indivisible penalties under paragraph 2 – (reclusion perpetua TO
death)
Under the 1st paragraph modifying circumstances are not considered. No
matter how many aggravating or mitigating circumstances are present, the penalty
shall not be affected especially since indivisible penalties have no periods.
The mitigating circumstances referred to in Article 63 and 64 are ordinary
mitigating circumstances because privileged mitigating circumstances are always
considered whether the penalty imposed is divisible or indivisible.
The penalty cannot be lowered by a degree no matter how many mitigating
circumstances are present because modifying circumstances are not to be
considered.
Since reclusion perpetua is an indivisible penalty, it has no minimum, medium
or maximum period. And where the law prescribes a single indivisible penalty, it shall
be applied, regardless of any mitigating or aggravating circumstances that may have
attended the commission of the crime.
Article 64. Rules for the application of penalties which contain three periods. -
In cases in which the penalties prescribed by law contain three periods,
whether it be a single divisible penalty or composed of three different
penalties, each one of which forms a period in accordance with the provisions
of Articles 76 and 77, the court shall observe for the application of the penalty
the following rules, according to whether there are or are not mitigating or
aggravating circumstances:
137
1. When there are neither aggravating nor mitigating circumstances,
they shall impose the penalty prescribed by law in its medium period.
Example:
If there are neither aggravating nor mitigating circumstances, prision mayor
prescribed for frustrated homicide shall be applied in its medium period. Within the
range of the medium period of prision mayor (8 years and 1 day to 10 years), the
penalty to be served by the accused shall be fixed.
2. When only a mitigating circumstances is present in the commission of
the act, they shall impose the penalty in its minimum period.
Example:
If a mitigating circumstance such as voluntary surrender is present, prision
mayor prescribed for frustrated homicide shall be applied in its minimum period.
Within the range of the minimum period of prision mayor (6 years and 1 day to 8
years), the penalty to be served by the accused shall be fixed.
3. When an aggravating circumstance is present in the commission of
the act, they shall impose the penalty in its maximum period.
Example:
If an aggravating circumstance such as disregard of dwelling is present,
prison mayor prscribed for frustrated homicide shall be applied in its maximum
period. Within the range of maximum period of prision mayor (10 years and 1 day to
12 years), the penalty to be served by the accused shall be fixed.
4. When both mitigating and aggravating circumstances are present, the
court shall reasonably offset those of one class against the other
according to their relative weight.
Example:
 If aggravating circumstances and mitigating circumstances are present, the
court shall reasonably offset those of one class against the other according to their
relative weight. After applying the offset rule, if there are aggravating circumstances,
the penalty shall be applied in the maximum period; if there is no remaining
modifying circumstance, the penalty shall be applied in its medium period; if there
are remaining mitigating circumstances, the penalty shall be applied in its minimum
period.
Accused is found guilty of homicide, which is punishable by reclusion
temporal. There are two ordinary mitigating circumstances and one aggravating
circumstance. Applying the offset rule, there is one mitigating circumstance
remaining. With this mitigating circumstance, reclusion temporal shall be applied in
its minimum period.
It should be remembered that only ordinary aggravating and mitigating
circumstances are subject to the offset rule. Privileged mitigating circumstance of
minority cannot be offset by ordinary aggravating circumstance. If privileged
mitigating circumstance (PMC) and ordinary aggravating circumstance (OAC)
attended the commission of felony, the former (PMC) shall be taken into account in
graduating penalty and the latter (OAC) in applying the graduated penalty in its
maximum period.
The circumstance of treachery, which qualifies the killing into murder, cannot
be offset by an ordinary mitigating circumstance of voluntary surrender. Treachery for
being qualifying circumstance in or an element of or inherent in murder is not subject
to the offset rule.
Quasi-recidivism is a special aggravating circumstance, and thus, it cannot
be offset by an ordinary mitigating circumstance.
5. When there are two or more mitigating circumstances and no
aggravating circumstances are present, the court shall impose the
penalty next lower to that prescribed by law, in the period that it may
deem applicable, according to the number and nature of such
circumstances.
When there are two or more mitigating circumstances and no aggravating
circumstances are present, the court shall impose the penalty next lower to that
138
prescribed by law, in the period that it may deem applicable, according to the number
and nature of such circumstances. This is called special mitigating circumstance.
If there is a special mitigating circumstance of confession and voluntary
surrender, the court shall graduate the proper imposable perod.
If there are four (4) mitigating circumstances and no aggravating
circumstance, the penalty shall not be lowered by two degrees. Special mitigating
circumstance shall only be appreciated once. Regardless of the number of
components of the special mitigating circumstance, the penalty shall only be reduced
by one degree.
LEGRAMA FORMULA
In Legrama vs. Sandiganbayan, G.R. No. 178626, June 13, 2012, the
Supreme Court laid down a rule on determination of proper imposable period in case
the special mitigating circumstance is present.
1.If there are two mitigating circumstances such as confession and voluntary
surrender, they shall be used in lowering the penalty prescribed by law by one
degree. Since the two circumstances were already used in lowering the penalty by
degree, and there is no remaining mitigating circumstance that can be used to adjust
the penalty in its minimum period, hence the reduced penalty shall be applied in its
medium period.
2. If there are three mitigating circumstances, the first two mitigating
circumstances shall be considered in lowering the prescribed penalty by one degree
and the remaining mitigating circumstance shall be used to apply the reduced
penalty in its minimum period.
3. If there are four (4) mitigating circumstances, the first two mitigating
circumstances shall be considered in lowering the prescribed penalty by one degree
and the remaining two mitigating circumstances shall be used to apply the reduced
penalty in its minimum period.
4. If there are two mitigating circumstances of confession and voluntary
surrender and special aggravating circumstance of quasi-recidivisn, the two
mitigating circumstances shall be considered in lowering the prescribed penalty by
one degree and the special aggravating circumstance shall be used to apply the
reduced penalty in its maximum period. In sum, the Legrama case is not applicable if
there is a special aggravating circumstance. (Judge Campanilla)
6. Whatever may be the number and nature of the aggravating circumstances,
the courts shall not impose a greater penalty than that prescribed by law, in its
maximum period.
Only one aggravating circumstance is needed to apply the penalty in its
maximum period. The presence of additional aggravating circumstance would not
further increase the penalty by period. The court is prohibited from imposing a
greater penalty than that fixed by law in its maximum period. Multiplicity of
aggravating circumstances will neither increase the penalty by period as many as
there are aggravating circumstances nor graduate the penalty to one degree higher
(People vs. Manlolo, G.R. No. 40778, January 26, 1989)
7. Within the limits of each period, the court shall determine the extent of the
penalty according to the number and nature of the aggravating and mitigating
circumstances and the greater and lesser extent of the evil produced by the
crime.
The rules when the penalty imposable is a divisible penalty are:
Modifying Circumstances Proper Period
a. No aggravating and no a. Medium
Mitigating
b. Mitigating only b. Minimum
c. Aggravating only c. Maximum
d. Some of both circumstances d. Offset and apply the
Present foregoing
e. Two mitigating and no e. One degree lower
Aggravating
The mitigating circumstances referred to here are ordinary mitigating because
privileged mitigating is always considered first before applying the above rules.
Article 64 is important in the application of Indeterminate Sentence Law
because the modifying circumstances are first considered in the determination of the
139
maximum penalty. On the basis of the maximum penalty imposed, the minimum
penalty shall be computed without anyone considering this article.
The court shall impose the penalty next lower to that prescribed by the Code
in the period that it may deem applicable depending upon the number and nature of
the mitigating circumstances pursuant to paragraph 5 of this Article. For instance, in
the crime of homicide which is punishable with reclusion temporal, where there are 2
mitigating with no aggravating circumstances, the imposable penalty is one degree
lower or prision mayor. Applying the Indeterminate Sentence Law, the convict must
be meted the penalty with the minimum within the range of prision correccional and
maximum thereof within the range of prision mayor. (People vs. Germina, G.R. No.
120881, May 19, 1998)
1. Courts cannot:
a. Lower the penalty by degree when there is an aggravating
circumstance even if the net effect of the offsetting is 2 or more
mitigating circumstances left (paragraph 5);
b. Impose a greater penalty than that prescribed by law no matter
how many aggravating circumstances are present.
2. Article 64 does not apply to quasi-offenses because Article 365,
paragraph 5 provides that in the imposition of the penalties for
imprudence, the courts shall exercise their sound discretion without
regard to the rules prescribed in Article 64. Modifying circumstances
substitute for the discretion of the judge in the imposition of the penalties,
hence when these circumstances are not applicable, the judge is given
leeway to exercise his sound discretion. Also, modifying circumstances
inherent in intentional felonies.
The significance of 1 day in the beginning of the period of penalty:
a. It separates 1 degree from the other. For instance, prision
correccional (6 months and 1 day to 6 years) is separated from
prision mayor (6 years and 1 day to 12 years) by 1 day. The 1-day
difference determines whether a convict shall be eligible for
 probation or not; whether subsidiary penalty can be imposed or
not; etc.
b. It separates reclusion temporal from reclusion perpetua which
determines whether the rules in Article 63 or Article 64 will be
applied in determining the proper period of penalty in view of the
presence or absence of the modifying circumstances. (Boado)
Article 65. Rule in cases in which the penalty is not composed of three
periods. - In cases in which the penalty prescribed by law is not composed of
three periods, the courts shall apply the rules contained in the foregoing
articles, dividing into three equal portions of time included in the penalty
prescribed, and forming one period of each of the three portions.
This article treats of penalties which are divisible but do not consist of three
periods, hence, they must be divided into three portions, each portion to form the
minimum, medium and the maximum periods
Example:
The penalty of prision correccional medium to maximum periods for direct
assault (Article 148 RPC)
Under Article 76, the range of the penalty is from 2 years, 4 months, and 1
day to 6 years. Following the formula, the steps are:
1. Duration of the penalty – 6 years less 2 years, 4
months and 1 day = 3 years and 8 months.
2. Duration of each period – 3 years, 8 months divided
by 3 = 1 year, 2 months, 20 days.
3. Minimum period – 2 years, 4 months, 1 day
(minimum period) + 1 year, 2 months and 20 days =
3 years, 6 months and 20 days (maximum of
period.
4. Medium period – 3 years, 6 months and 20 days (1
day) + 1 year, 2 months and 20 days = 4 years, 8
140
months and 40 days maximum of period) or 4
years, months and 10 days.
5. Maximum period – 4 years, 9 months asnd 10 days
(1 day) + 1 year, 2 months and 20 days = 5 years,
11 months and 30 days maximum of period or 6
years.
Article 66. Imposition of fines. - In imposing fines the courts may fix any
amount within the limits established by law; in fixing the amount in each case
attention shall be given, not only to the mitigating and aggravating
circumstances, but more particularly to the wealth or means of the culprit.
The above article provides that the court can fix any amount of the fine within
the limits established by law:
a. Presence of mitigating and aggravating circumstances. In one case, the
Supreme Court reduced the fine of P10,000.00 to only P2,000.00 in view
of the presence of 3 mitigating circumstances.
b. More particularly, the wealth or means of culprit. Thus, the fine to be
imposed may be reduced if, notwithstanding the presence of aggravating
circumstance, the culprit cannot afford the correct fine.
It should be noted that when the law does not fix the minimum of the fine, the
determination of the amount of the fine to be imposed upon the accused is left to the
sound discretion of the court, provided it shall not exceed the maximum authorized
by law.
Article 67. Penalty to be imposed when not all the requisites of exemption of
the fourth circumstance of Article 12 are present. - When all the conditions
required in circumstances Number 4 of Article 12 of this Code to exempt from
criminal liability are not present, the penalty of arresto mayor in its maximum
period to prision correccional in its minimum period shall be imposed upon
the culprit if he shall have been guilty of a grave felony, and arresto mayor in
its minimum and medium periods, if of a less grave felony.
 The circumstance provided under No. 4 of Article 12, refers to the exempting
circumstance of ACCIDENT. The condition necessary to exempt from liability under
this legal provision are the following:
1. That the act causing the injury be lawful, that is, permitted not only by law
but also by regulations;
2. That it be performed with due care;
3. That the injury be caused by mere accident,i.e., by unforeseen event;
4. That there be no fault or intention to cause the injury.
What would be the penalty?
1.Grave Felony -- The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period shall be imposed upon the culprit.
2. Grave Less Felony -- Arresto mayor in its minimum and medium periods.
Article 68. Penalty to be imposed upon a person under eighteen years of age. -
When the offender is a minor under eighteen years and his case is one coming
under the provisions of the paragraphs next to the last of Article 80 of this
Code, the following rules shall be observed:
1. Upon a person under fifteen but over nine years of age, who is not
exempted from liability by reason of the court having declared that he
acted with discernment, a discretionary penalty shall be imposed, but
always lower by two degrees at least than that prescribed by law for the
crime which he committed.
2. Upon a person over fifteen and under eighteen years of age the
penalty next lower than that prescribed by law shall be imposed, but
always in the proper period.
This Article has been modified by Arts. 6 and 20 of R.A. No. 9344, otherwise
known as “The Juvenile Justice and Welfare System Act.”
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“SEC. 6. Minimum Age of Criminal Responsibility. - A child fifteen (15)
years of age or under at the time of the commission of the offense shall be exempt
from criminal liability. However, the child shall be subjected to an intervention
program pursuant to Section 20 of this Act.
A child above fifteen (15) years but below eighteen (18) years of age shall
likewise be exempt from criminal liability and be subjected to an intervention
program, unless he/she has acted with discernment, in which case, such child shall
be subjected to the appropriate proceedings in accordance with this Act.
The exemption from criminal liability herein established does not include
exemption from civil liability, which shall be enforced in accordance with existing
laws.”
“SEC. 20. Children Below the Age of Criminal Responsibility. - If it has
been determined that the child taken into custody is fifteen (15) years old or below,
the authority which will have an initial contact with the child has the duty to
immediately release the child to the custody of his/her parents or guardian, or in the
absence thereof, the child's nearest relative. Said authority shall give notice to the
local social welfare and development officer who will determine the appropriate
programs in consultation with the child and to the person having custody over the
child. If the parents, guardians or nearest relatives cannot be located, or if they
refuse to take custody, the child may be released to any of the following: a duly
registered nongovernmental or religious organization; a barangay official or a
member of the Barangay Council for the Protection of Children (BCPC); a local social
welfare and development officer; or when and where appropriate, the DSWD. If the
child referred to herein has been found by the Local Social Welfare and
Development Office to be abandoned, neglected or abused by his parents, or in the
event that the parents will not comply with the prevention program, the proper
petition for involuntary commitment shall be filed by the DSWD or the Local Social
Welfare and Development Office pursuant to Presidential Decree No. 603, otherwise
,known as "The Child and Youth Welfare Code."
Under R.A. 9344, the age of exemption of minors from criminal prosecution,
has been increased to those who are 15 years old and under, hence they are
absolutely exempt from criminal liability.
 For over 15 but under 18 – they shall be criminally liable only if they acted
with discernment. Pursuant to this article, the penalty shall be 1 degree lower but
always in the proper period.
The age is reckoned at the time of the commission of the offense to be
entitled to the above benefits. Thus, considering the gravity of the offense and in the
interest of justice, the Supreme Court admitted the birth certificate of the accused to
prove that mitigating circumstance of minority although said birth certificates were
not presented or offered in the trial court. (People vs. Regalario, G.R. No. 101451,
March 23, 1993)
Article 69. Penalty to be imposed when the crime committed is not wholly
excusable. - A penalty lower by one or two degrees than that prescribed by law
shall be imposed if the deed is not wholly excusable by reason of the lack of
some of the conditions required to justify the same or to exempt from criminal
liability in the several cases mentioned in Article 11 and 12, provided that the
majority of such conditions be present. The courts shall impose the penalty in
the period which may be deemed proper, in view of the number and nature of
the conditions of exemption present or lacking.
The penalty may be reduced by one or two degrees if majority of the
conditions required to justify or exempt from criminal liability are present. In such
case, the incomplete justification or exemption is a privileged mitigating
circumstance.
If there is present less than a majority of the conditions, there will only be an
ordinary mitigating circumstance, which will lower the penalty to the minimum period.
Penalty lower by one or two degrees shall be imposed if the deed is not
wholly excusable. If majority of the requirements for defense of property are present,
the penalty may be lowered by two degrees to prision correccional. And when
incomplete self-defense is coupled by two more mitigating circumstances, the
penalty under Article 64(5) may further be reduced by one degree, that is, arresto
mayor, because of the presence of 2 mitigating circumstances and no aggravating
circumstance. (People vs. Narvaez, 121 SCRA)
Articles 11 and 12 in relation to Articles 69 and 13(1):
142
(a) All requisites present – Justifying/Exempting – Article 11/12
(b) 2 or more present – Privileged mitigating – Article 69
© 1 only present – Ordinary mitigating – Article 13(1)
But, in defense of self, relatives or strangers, unlawful aggression must
always be present otherwise there is nothing to defend. Also, if there are only two
requisites prescribed by law to justify or exempt from liability, the presence of one is
sufficient to fall under Article 69 as privileged mitigating circumstance. Incomplete
justification is a special or privileged mitigating circumstance, which, not only cannot
be offset by aggravating circumstances but also reduces the penalty by 1 or 2
degrees than that prescribed by law.
Article 70. Successive service of sentence. - When the culprit has to serve two
or more penalties, he shall serve them simultaneously if the nature of the
penalties will so permit otherwise, the following rules shall be observed:
In the imposition of the penalties, the order of their respective severity
shall be followed so that they may be executed successively or as nearly as
may be possible, should a pardon have been granted as to the penalty or
penalties first imposed, or should they have been served out.
For the purpose of applying the provisions of the next preceding
paragraph the respective severity of the penalties shall be determined in
accordance with the following scale:
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
 7. Arresto menor,
8. Destierro,
9. Perpetual absolute disqualification,
10 Temporal absolute disqualification.
11. Suspension from public office, the right to vote and be voted for, the
right to follow a profession or calling, and
12. Public censure.
Notwithstanding the provisions of the rule next preceding, the
maximum duration of the convict's sentence shall not be more than three-fold
the length of time corresponding to the most severe of the penalties imposed
upon him. No other penalty to which he may be liable shall be inflicted after the
sum total of those imposed equals the same maximum period.
Such maximum period shall in no case exceed forty years.
In applying the provisions of this rule the duration of perpetual
penalties (pena perpetua) shall be computed at thirty years. (As amended).
Service of Sentence
If the accused is sentenced to suffer several penalties, he must serve them
successively in accordance with Article 70 of the Revised Penal Code. Under this
provision, the general rule on service of multiple penalties is successive.
Simultaneous service of multiple penalties is an exception to the rule.
Exception to the rule
When the accused has to serve two or more penalties, he shall serve them
simultaneously if the nature of the penalties will so allow. For instance, the convict
could serve simultaneously arresto menor and fine. In the same way, the service of
principal penalty of reclusion perpetua and its accessory penalties such as
143
disqualification to hold public office can be served simultaneously. Hence, if a convict
in behind bars, he can be diaqualified to run as an elective public official.
The order of the respective severity of the penalties shall be followed so that
they may be executed successively.
Example 1
The convict was sentenced on October 28, 1905 to imprisonment for 6
months for one offense, and on November 11, 1905, he was sentenced to
imprisonment for 4 months and 1 day for another offense. It was held that he should
serve the two terms successively and the time of the second offense did not
commence to run until the expiration of the first.
Example 2
Where the accused was sentenced to three distinct terms of imprisonment for
the offenses of frustrated homicide, trespass, and less serious physical injuries, the
three penalties should be served successively in the order of their severity.
Scale of Penalties in Accordance with its Severity
Under the scale of penalties in accordance with its severity, the penalties
must be served successively in the order of the following penalties: Death, Reclusion
Peprpetua, Reclusion Temporal, Prision Mayor, Prision Correccional, Arresto Mayor,
Arresto Menor, Destierro, Perpetual Disqaulification, Temporary Absolute
Disqualification, Suspension and Public Censure.
Example:
If the accused was sentence to suffer imprisonment for 20 days of arresto
menor for the crime of Slight Physical Injuries, and 15 years of reclusion temporal for
the crime of homicide, it is required under Article 70 of the Revised Penal Code that
the accused should serve successively the penalties in the order of its severity,
hence reclusion temporal must be served ahead of arresto menor.
Under the above provision, in the service of sentence, arresto menor is more
severe than destierro. Hence, the convict must serve arresto menor first before
serving destierro. This is only logical since arresto menor is an imprisonment penalty
while destierro is not. Prisoner must serve first all imprisonment penalties before
serving destierro.
THE THREE FOLD RULE:
According to the three-fold rule, the maximum duration of the convict’s
sentence shall not be more than three times the length of time corresponding to the
most severe of the penalties imposed upon him.
Article 70 provides that in applying the 3-fold rule, the duration of pena
perpetua shall be computed at 30 years. The imputation of the 30-year duration is
only to serve as a basis for determining the convict’s eligibility for pardon unless he is
deemed unworthy of such or for the application of the 3-fold rule in the service of
multiple penalties. (People vs. Tena, October 1992)
The penalty is to be served in the order herein prescribed observing the
following limitations:
a. The maximum duration of the convict’s sentence shall not be more than
3-fold the length of time corresponding to the most severe of the penalties
imposed. No other penalty to which he may be liable shall be inflicted
after the total of those imposed equals the same maximum period.
b. Such maximum period shall in no case exceed 40 years.
Steps to determine the duration of sentence to be served:
a. Get the most severe penalty (from Article 70)
b. Multiply by 3
c. Add the duration of the different sentences
d. Compare the result of “b” and “c”
e. Accused to serve the lesser period which shall not exceed 40 years
This article deals with service of sentence, not with imposition, hence, for the
prison director to follow, not for the courts. The courts should impose the correct
penalties even if these will amount to more than the lifetime of the prisoner. The
reason is that “should a pardon be granted as to the penalty or penalties first
144
imposed” (Article 70, paragraph 2), the remaining sentences shall be served in the
order of severity.
Consequently, all the sentences on the prisoner imposed by any court for
whatever crimes whenever filed should be covered by this rule.
If the penalties imposed are all equal, the period thereof shall be considered
as the most when applying the 3-fold rule.
When the death sentence is executed, all the death sentences when more
than one is meted are deemed simultaneously served.
When the most severe penalty is reclusion perpetua or life imprisonment
(pena perpetual), the imputed duration shall be 30 years, thus 30 multiplied by 3 is
90 years. The culprit shall serve not 90 but 40 years because of express limitation in
Article 70.
Example 1
The accused for habeas corpus who had been sentenced in six (6) different
cases of estafa, in each of which he was penalized with 3 months and 11 days of
arresto mayor, cannot be made to suffer more than 3 months and 11 days multiplied
by 3 or 9 months and 33 days.
Hence, the accused who was in jail for one year and three months remained
there beyond the period aloowed under the three-fold rule (Aspra v. Director of
Prisons, 85 Phil 737).
Example 2
A person is sentenced to suffer – 14 years, 8 months and 1 day for homicide;
17 years, 4 months and 1 day in another case; 14 years and 8 months in the third
case; and in a case of fursutrated homicide, he is sentenced to 12 years, or a total of
59 years, 8 months and 2 days.
The most severe of those penalties is 17 years, 4 months and 1 day. Three
times that penalty is 52 years and 3 days. But since the law has limited the duration
of the maximum term of imprisonment to not more than 40 years, the accused will
have to suffer 40 years only. (People v. Alisub, 69 Phil 362)
The three fold rule applies only when the convict has to serve at least four
sentences:
If only two or three penalties corresponding to different crimes committed by
the convict are imposed, it is hardly possible to apply the three-fold rule.
This rule, for the reason stated, should be followed irrespective of the fact
that the different offenses are charged in several informations, or are included in a
single prosecuton, or the several cases are tried before the same or in different
courts. (People v. Geralde, 50 Phil 823).

Example 1
A was convicted of three crimes of homicide for each of which he was
sentenced to 12 years and 1 day of reclusion temporal. Adding all the three penalties
you will find a total of 36 years and 3 days; or multiplying one of the penalites, each
of 12 years and 1 day, by 3 you will find the same result.
Article 71. Graduated scales. - In the case in which the law prescribed a
penalty lower or higher by one or more degrees than another given penalty, the
rules prescribed in Article 61 shall be observed in graduating such penalty.
The lower or higher penalty shall be taken from the graduated scale in
which is comprised the given penalty.

Example 2 The courts, in applying such lower or higher penalty, shall observe the
Suppose, for the first homicide a was sentenced to 12 years and 1 day; for following graduated scales:
the second, 14 years, 8 months and 1 day; and the third, 17 years, 4 months and 1
SCALE NO. 1
day; in this case, the total of all penalties is 44 years and 3 day . On the other hand,
17 years, 4 months and 1 day multiply by 3 equals to 52 years and 3 days. The
1. Death,
three-fold rule does not apply, because the total of all the penalties is less than the
most serve multiplied by 3. 2. Reclusion perpetua,
Example 3
3. Reclusion temporal,
But if A was convicted of four crimes of homicide, for each of which he was
sentenced to 12 years and 1 day or to different penalties, the three-fold rule can 4. Prision mayor,
properly be applied.
5. Prision correccional,
Example 4

If A was sentenced to 1 year for theft, 2 years for robbery, 1 year for estafa, 4 6. Arresto mayor,
months and 1 day for physical injuries, and 4 months for slander, the total of all the
7. Destierro,
penalties being only 4 years, 8 months and 1 day, which is less than 2 years
multiplied by 3 or 6 years, the three-fold rule does not apply. The three-fold rule
8. Arresto menor,
applies only when the total of all the penalties imposed exceeds the most severe
multiplied by 3. 9. Public censure,
All the penalties, even if by different courts at different times, cannot exceed
three-fold the most severe. 10. Fine.

145
 SCALE NO. 2
1. Perpetual absolute disqualification,
2. Temporal absolute disqualification
3. Suspension from public office, the right to vote and be voted
for, the right to follow a profession or calling,
4. Public censure,
5. Fine.
Graduated Scale
The penalties in Book II of the Code are understood to be: (a) the principal
penalties imposed; (b) upon the principal offender; (c) for the consummated felony.
(Article 46) Hence, there is a need to provide the rules when the crime is not
consummated, and when the offenders include accomplices and / or accessories.
Article 71 provides the scale from which the penalty prescribed in the rules in
Article 61 shall be taken. Article 61 prescribes the rules for applying the penalty next
lower in degree in Articles 50 to 57.
According to Article 71, in the graduated scale of penalties, the penalty next
lower in degree than arresto mayor is destierro and not arresto menor, whereas in
Article 70, destierro follows arresto menor in the the degree of severity.
Article 72 Preference in the payment of the civil liabilities. - The civil liabilities
of a person found guilty of two or more offenses shall be satisfied by following
the chronological order of the dates of the judgments rendered against him,
beginning with the first in order of time.
What is the rule in the payment of civil liabilities in case a person is found guilty of
two or more offenses?
146
The civil liabilities of a person found guilty of two or more offenses shall be
satisfied by following the chronological order of the dates of the judgments rendered
against him, beginning with the first in order of time.
The above article applies when the accused who is found guilty of two or
more offenses is required to pay the corresponding civil liabilities resulting from
different offenses. The dates of finality of judgment are the basis of the order of
payment of civil liabilities while under Art. 70, criminal liability is satisfied by
successive service of sentences in the order of their respective severity under Art.
70.
Section Three. - Provisions common in the last two preceding sections
Article 73. Presumption in regard to the imposition of accessory penalties. -
Whenever the courts shall impose a penalty which, by provision of law, carries
with it other penalties, according to the provisions of Articles 40, 41, 42, 43 and
44 of this Code, it must be understood that the accessory penalties are also
imposed upon the convict.
Under this Article, imposition of accessory penalties under Articles 40, 41, 42,
43, 44 and 45 of this Ciode, is deemed imposed by the courts without being
expressly provided in the judgment. However, since subsidiary imprisonment is not
an accessory penalty, the judgment must expressly provide that the accused shall
undergo subsidiary imprisonment in case of insolvency.
Article 74. Penalty higher than reclusion perpetua in certain cases. - In cases in
which the law prescribes a penalty higher than another given penalty, without
specially designating the name of the former, if such higher penalty should be
that of death, the same penalty and the accessory penalties of Article 40, shall
be considered as the next higher penalty.
Penalty higher than Reclusion Perpetua in certain cases
Under sec. 4(2), Art. VIII of the 1987 Philippine Constitution, the penalty of
death must be specifically imposed by law upon majority votes of the Justices of the
Supreme Court; hence, under Art. 74, if the law imposes a penalty higher than
reclusion perpetua without spefically stating the higher penalty is death, the penalty
shall only be reclusion perpetua with the duration of 20 years and 1 day to 40 years,
with the accessory penalty of perpetual absolute disqualification and civil interdiction Penalties Time Time Time Time
under Art. 40.
included in the included in its
included in its included in its
Article 75. Increasing or reducing the penalty of fine by one or more degrees. - penalty in its minimum
medium period maximum
Whenever it may be necessary to increase or reduce the penalty of fine by one entirety period
or more degrees, it shall be increased or reduced, respectively, for each
From 12 years From 14 years, From 17 years,
degree, by one-fourth of the maximum amount prescribed by law, without From 12 years
Reclusion and 1 day to 14 8 months and 1 4 months and 1
however, changing the minimum. and 1 day to 20
temporal years and 8 day to 17 years day to 20
years.
months. and 4 months. years.
The same rules shall be observed with regard of fines that do not
consist of a fixed amount, but are made proportional. Prision mayor,
absolute
Fines are reduced by one or two degrees when the felony is attempted or From 6 years From 6 years From 8 years From 10 years
disqualification
frustrated or when imposed upon the accessory or the accomplice. For each degree, and 1 day to 12 and 1 day to 8 and 1 day to 10 and 1 day to 12
and special
years. years. years. years.
¼ of the maximum amount is taken. Then penalty as computed shall in no case be temporary
lower than the minimum prescribed by law. For instance, if the fine prescribed by law disqualification
is P50 to P200, ¼ of the maximum amount of P200 is taken, that is, P50. If the
Prision From 6 months From 2 years,
penalty is to be reduced by 2 degrees, the penalty is computed as follows: From 6 months From 4 years,
correccional, and 1 day to 2 4 months and 1
and 1 day to 6 2 months and 1
Step 1 – P200 divided by 4 = P50 suspension years and 4 day to 4 years
years. day to 6 years.
and destierro months. and 2 months.
Step 2 – P50 multiplied by 2 degrees = P100
From 1 month From 2 months From 4 months
Step 3 – P200 minus P100 = P100 From 1 to 2
Arresto mayor and 1 day to and 1 day to 4 and 1 day to 6
months.
months. months. months.
The penalty as lowered by 2 degrees therefore is P50 to P100.
From 1 to 30 From 1 to 10 From 11 to 20 From 21 to 30
Arresto menor
Article 76. Legal period of duration of divisible penalties. - The legal period of days. days. days. days.
duration of divisible penalties shall be considered as divided into three parts,
forming three periods, the minimum, the medium, and the maximum in the
manner shown in the following table: Article 76 is the law on duration of divisible penalties – that divisible penalties
shall be considered as divided into 3 periods: the minimum, medium and maximum.
The above article shows the manner divisible penalties are divided into three
periods. The duration of the period of a divisible penalty is computed as follows:

Using as an example prision mayor with a period of 6 years and 1 day to 12

TABLE SHOWING THE DURATION OF DIVISIBLE PENALTIES AND THE TIME years:
INCLUDED IN EACH OF THEIR PERIODS
Step 1 – deduct the beginning of the period from the end of the period.

147

12 years minus 6 years = 6 years
Step 2 – Divide the difference by 3 corresponding to the 3 period of minimum,
medium and maximum.
6 years divided by 3 = 2 years
Step 3 – Add the quotient in step 2 to the beginning of each period starting with
minimum.
6 years and 1 day + 2 years = 8 years.
Minimum – 6 years and 1 day to 8 years
Medium – 8 years and 1 day to 10 years
Maximum – 10 years and 1 day to 12 years
Article 65 applies when the penalty is divisible but is not composed of 3
periods. For instance, robbery in an uninhabited place is penalized by prision
correccional in its medium and maximum periods (Article 302). The duration of this
penalty is 2 year, 4 months and 1 day to 6 years.
Harmonizing Articles 65 and 76, the 2-period penalty shall be converted into
3-period penalty to comply with the legal duration of the divisible penalty. The
conversion steps are:
a. Get the duration of the penalty
6 years minus 2 years and 4 months = 3 years and 8 months or 44
months
b. Divide the duration of the penalty by 3 periods to get the duration of each.
c. Add the quotient to the minimum of each period. The lowest is the
minimum period, the second the medium, and the highest the maximum.
Thus,
Minimum – 2 years 4 months 1 day to 3 years 6 months 10 days
Medium – 3 years 6 months 11 days to 4 years 8 months 20 days
Maximum – 4 years 8 months 21 days to 6 years
148
Article 77. When the penalty is a complex one composed of three distinct
penalties. - In cases in which the law prescribes a penalty composed of three
distinct penalties, each one shall form a period; the lightest of them shall be
the minimum the next the medium, and the most severe the maximum period.
Whenever the penalty prescribed does not have one of the forms
specially provided for in this Code, the periods shall be distributed, applying
by analogy the prescribed rules.
WHAT IS A COMPLEX PENALTY?
A complex penalty is one which is composed of 3 distinct penalties each
forming a period, the lightest of which shall be minimum, the next shall be medium
and the most severe the maximum. (Not to be confused with complex crime under
Article 48)
In People vs. Simon, the Court corrected the error in R.A. 7659 which
imposed in Section 20 a complex penalty composed of 4 periods – prision
correccional to reclusion perpetua – by construing the same to be prision
correccional to reclusion temporal.
The penalty of reclusion temporal in its maximum period to reclusion
perpetua (the penalty for murder prior to R.A. 7659) is a complex and divisible
penalty consisting of 3 periods. (People vs. Lian, 255 SCRA)
Example: Reclusion temporal to death (Art. 114)
Maximum --- Death
Medium – Reclusion perpetua (this is between reclusion temporal and death)
Minimum – Reclusion temporal
The 2nd paragraph of Article 77 which deals with complex penalties, provides
that “whenever the penalty prescribed does not have one of the forms specially
provided for in this Code, the periods shall be distributed, applying by analogy the
prescribed rules,” that is, those in Articles 61 and 76. Hence, where the penalty
provided by Section 1 of P.D. 1866, as amended, is reclusion temporal in its
maximum period to reclusion perpetua, the minimum period thereof is 17 years, 4 second paragraph of circumstance number 1 of Article 12 being observed in
months and 1 day to 20 years and the maximum period is reclusion perpetua. the corresponding cases.

Chapter Five If at any time the convict shall recover his reason, his sentence shall be
EXECUTION AND SERVICE OF PENALTIES executed, unless the penalty shall have prescribed in accordance with the
provisions of this Code.
Section One. - General Provisions
The respective provisions of this section shall also be observed if the
Article 78. When and how a penalty is to be executed. - No penalty shall be insanity or imbecility occurs while the convict is serving his sentence.
executed except by virtue of a final judgment.
Suspension of Sentence by Reason of Insanity
A penalty shall not be executed in any other form than that prescribed
If the accused becomes insane during his trial, the proceedings shall be
by law, nor with any other circumstances or incidents than those expressly
suspended and he shall be ordered confined in a hospital for medical treatment until
authorized thereby.
he recovers his sanity.
In addition to the provisions of the law, the special regulations If he becomes insane after final judgment or while serving sentence, the
prescribed for the government of the institutions in which the penalties are to execution or service thereof be suspended with regard to his personal penalty, but
be suffered shall be observed with regard to the character of the work to be his pecuniary or civil liability, such as restitution, reparation, indemnification, fine and
performed, the time of its performance, and other incidents connected
costs can be executed.
therewith, the relations of the convicts among themselves and other persons,
the relief which they may receive, and their diet.
Article 80. Suspension of sentence of minor delinquents. - Whenever a minor
of either sex, under sixteen years of age at the date of the commission of a
The regulations shall make provision for the separation of the sexes in
grave or less grave felony, is accused thereof, the court, after hearing the
different institutions, or at least into different departments and also for the
evidence in the proper proceedings, instead of pronouncing judgment of
correction and reform of the convicts.
conviction, shall suspend all further proceedings and shall commit such minor
to the custody or care of a public or private, benevolent or charitable
This article provides that “no penalty shall be executed except by virtue of a
institution, established under the law of the care, correction or education of
final judgment.
orphaned, homeless, defective, and delinquent children, or to the custody or
care of any other responsible person in any other place subject to visitation
The judgment must be final before it can be executed, because the accused
and supervision by the Director of Public Welfare or any of his agents or
may still file a motion for reconsideration, motion for new trial, or even appeal the
representatives, if there be any, or otherwise by the superintendent of public
judgment of the court within 15 days from the date of its promulgation.
schools or his representatives, subject to such conditions as are prescribed
hereinbelow until such minor shall have reached his majority age or for such
Article 79. Suspension of the execution and service of the penalties in case of
less period as the court may deem proper. The court, in committing said minor
insanity. - When a convict shall become insane or an imbecile after final
as provided above, shall take into consideration the religion of such minor, his
sentence has been pronounced, the execution of said sentence shall be
parents or next of kin, in order to avoid his commitment to any private
suspended only with regard to the personal penalty, the provisions of the

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institution not under the control and supervision of the religious sect or
denomination to which they belong.
The Director of Public Welfare or his duly authorized representatives or
agents, the superintendent of public schools or his representatives, or the
person to whose custody or care the minor has been committed, shall submit
to the court every four months and as often as required in special cases, a
written report on the good or bad conduct of said minor and the moral and
intellectual progress made by him.
The suspension of the proceedings against a minor may be extended or
shortened by the court on the recommendation of the Director of Public
Welfare or his authorized representative or agents, or the superintendent of
public schools or his representatives, according as to whether the conduct of
such minor has been good or not and whether he has complied with the
conditions imposed upon him, or not. The provisions of the first paragraph of
this article shall not, however, be affected by those contained herein.
If the minor has been committed to the custody or care of any of the
institutions mentioned in the first paragraph of this article, with the approval of
the Director of Public Welfare and subject to such conditions as this official in
accordance with law may deem proper to impose, such minor may be allowed
to stay elsewhere under the care of a responsible person.
If the minor has behaved properly and has complied with the conditions
imposed upon him during his confinement, in accordance with the provisions
of this article, he shall be returned to the court in order that the same may
order his final release.
In case the minor fails to behave properly or to comply with the
regulations of the institution to which he has been committed or with the
conditions imposed upon him when he was committed to the care of a
responsible person, or in case he should be found incorrigible or his
continued stay in such institution should be inadvisable, he shall be returned
to the court in order that the same may render the judgment corresponding to
the crime committed by him.
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The expenses for the maintenance of a minor delinquent confined in the
institution to which he has been committed, shall be borne totally or partially
by his parents or relatives or those persons liable to support him, if they are
able to do so, in the discretion of the court; Provided, That in case his parents
or relatives or those persons liable to support him have not been ordered to
pay said expenses or are found indigent and cannot pay said expenses, the
municipality in which the offense was committed shall pay one-third of said
expenses; the province to which the municipality belongs shall pay one-third;
and the remaining one-third shall be borne by the National Government:
Provided, however, That whenever the Secretary of Finance certifies that a
municipality is not able to pay its share in the expenses above mentioned,
such share which is not paid by said municipality shall be borne by the
National Government. Chartered cities shall pay two-thirds of said expenses;
and in case a chartered city cannot pay said expenses, the internal revenue
allotments which may be due to said city five hundred and eighty-eight of the
Administrative Code.
The provisions of Article 80 of the RPC have been repealed by chapter three
of PD No. 603, as amended (The Child and Youth Welfare Code), and further
amended by the provisions of RA 9344 (Juvenile Justice and Welfare Act of 2006).
“SEC. 38. Automatic Suspension of Sentence. - Once the child who is
under eighteen (18) years of age at the time of the commission of the offense is
found guilty of the offense charged, the court shall determine and ascertain any civil
liability which may have resulted from the offense committed. However, instead of
pronouncing the judgment of conviction, the court shall place the child in conflict with
the law under suspended sentence, without need of application: Provided, however,
That suspension of sentence shall still be applied even if the juvenile is already
eighteen years (18) of age or more at the time of the pronouncement of his/her guilt.
Upon suspension of sentence and after considering the various
circumstances of the child, the court shall impose the appropriate disposition
measures as provided in the Supreme Court Rule on Juveniles in Conflict with the
Law.
SEC. 39. Discharge of the Child in Conflict with the Law. - Upon the
recommendation of the social worker who has custody of the child, the court shall
dismiss the case against the child whose sentence has been suspended and against
whom disposition measures have been issued, and shall order the final discharge of
the child if it finds that the objective of the disposition measures have been fulfilled.
The discharge of the child in conflict with the law shall not affect the civil
liability resulting from the commission of the offense, which shall be enforced in
accordance with law.
SEC. 40. Return of the Child in Conflict with the Law to Court. - If the
court finds that the objective of the disposition measures imposed upon the child in
conflict with the law have not been fulfilled, or if the child in conflict with the law has
willfully failed to comply with the conditions of his/her disposition or rehabilitation
program, the child in conflict with the law shall be brought before the court for
execution of judgment.
If said child in conflict with the law has reached eighteen (18) years of age
while under suspended sentence, the court shall determine whether to (1) discharge
the child in accordance with this Act, (2) to order execution of sentence, or (3) to
extend the suspended sentence for a certain specified period or until the child
reaches the maximum age of twenty-one (21) years.
SEC. 41. Credit in Service of Sentence. - The child in conflict with the law
shall be credited in the services of his/her sentence with the full time spent in actual
commitment and detention under this Act.
SEC. 42. Probation as an Alternative to Imprisonment. - The court may,
after it shall have convicted and sentenced a child in conflict with the law, and upon
application at any time, place the child on probation in lieu of service of his/her
sentence taking into account the best interest of the child. For this purpose, Section
4 of Presidential Decree No. 968, otherwise known as the "Probation Law of 1976",
is hereby amended accordingly.
SEC. 51. Confinement of Convicted Children in Agricultural Camps and
other Training Facilities. - A child in conflict with the law may, after conviction and
upon order of the court, be made to serve his/her sentence, in lieu of confinement in
a regular penal institution, in an agricultural camp and other training facilities that
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may be established, maintained, supervised and controlled by the BUCOR, in
coordination with the DSWD.
SEC. 64. Children in Conflict with the Law Fifteen (15) Years Old and
Below. - Upon effectivity of this Act, cases of children fifteen (15) years old and
below at the time of the commission of the crime shall immediately be dismissed and
the child shall be referred to the appropriate local social welfare and development
officer. Such officer, upon thorough assessment of the child, shall determine whether
to release the child to the custody of his/her parents, or refer the child to prevention
programs as provided under this Act. Those with suspended sentences and
undergoing rehabilitation at the youth rehabilitation center shall likewise be released,
unless it is contrary to the best interest of the child.
SEC. 65. Children Detained Pending Dial. - If the child is detained pending
trial, the Family Court shall also determine whether or not continued detention is
necessary and, if not, determine appropriate alternatives for detention.
If detention is necessary and he/she is detained with adults, the court shall
immediately order the transfer of the child to a youth detention home.
SEC. 67. Children Who Reach the Age of Eighteen (18) Years Pending
Diversion and Court Proceedings. - If a child reaches the age of eighteen (18)
years pending diversion and court proceedings, the appropriate diversion authority in
consultation with the local social welfare and development officer or the Family Court
in consultation with the Social Services and Counseling Division (SSCD) of the
Supreme Court, as the case may be, shall determine the appropriate disposition. In
case the appropriate court executes the judgment of conviction, and unless the child
in conflict the law has already availed of probation under Presidential Decree No.
603 or other similar laws, the child may apply for probation if qualified under the
provisions of the Probation Law.
SEC. 68. Children Who Have Been Convicted and are Serving
Sentence. - Persons who have been convicted and are serving sentence at the time
of the effectivity of this Act, and who were below the age of eighteen (18) years at
the time the commission of the offense for which they were convicted and are
serving sentence, shall likewise benefit from the retroactive application of this Act.
They shall be entitled to appropriate dispositions provided under this Act and their
sentences shall be adjusted accordingly. They shall be immediately released if they
are so qualified under this Act or other applicable law.”
The suspension of sentence lasts only until the child in conflict with the law
reaches the maximum age of twenty-one (21) years. Section 40 of the law and
Section 48 of the Rule are clear on the matter.
Article 81 – When and how the death penalty is to be executed. The death
sentence shall be executed with preference to any other penalty and shall
consist in putting the persons under sentehce of death by lethal injection. The
death sentence shall be executed under the authority of the Director of Bureau
of Corrections, endeavouring so far as possible to mitigate the sufferings of
the person under sentence during the lethal injection as well as during the
proceedings prior to the execution.
The Director of the Bureau of Corrections shall take steps to ensure that
the lethal injection to be administered is sufficient to cause the instantanelous
death of the convict.
Pursuant to this, all personnel involved in the administration of lethal
injection shall be trained prior to the performance of such task.
The authorized physician of the Bureau of Corrections, after thorough
examination shall officially make a pronouncement of the convict’s death and
shall certify thereto in the records of the Bureau of Corrections.
The death sentence shall be carried out not earlier than one (1) year nor
later than eighteen (18) months after the judgment has become final and
executor without prejudice to the exercise by the President of his executive
clemency powers at all times.
Article 82. Notification and execution of the sentence and assistance to the
culprit. - The court shall designate a working day for the execution but not the
hour thereof; and such designation shall not be communicated to the offender
before sunrise of said day, and the execution shall not take place until after the
expiration of at least eight hours following the notification, but before sunset.
During the interval between the notification and the execution, the culprit shall,
in so far as possible, be furnished such assistance as he may request in order
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to be attended in his last moments by priests or ministers of the religion he
professes and to consult lawyers, as well as in order to make a will and confer
with members of his family or persons in charge of the management of his
business, of the administration of his property, or of the care of his
descendants.
Article 83. Suspension of the execution of the death sentence. – The death
sentence shall not be inflicted upon a woman within one (1) year after delivery,
nor upon any person over seventy (70) years of age. In this last case, the death
sentence shall be commuted to the penalty of reclusion perpetua with the
accessory penalty provided in Article 40.
In all cases wherethe death sentence has become final, the records of
the case shall be forwarded immediately by the Supreme Court to the Office of
the President for possible exercise of the pardoning power.
Death sentence shall be suspended in the following:
1. Woman, while pregnant;
2. Woman, within one year after delivery;
3. Person over 70 years of age;
4. Convict who becomes insane after final judgment of death has been
pronounced.
Distinguish from Article 47
Article 47 provides for cases in which death penalty is NOT to be imposed.
1. When the guilty person is more than 70 years of age;
2. When upon appeal or automatic review of the case by the Supreme Court,
the required majority vote is not obtained for imposing death penalty; and
3. When the convict is a minor under 18 years of age.
Article 84. Place of execution and persons who may witness the same. - The
execution shall take place in the penitentiary of Bilibid in a space closed to the
public view and shall be witnessed only by the priests assisting the offender
and by his lawyers, and by his relatives, not exceeding six, if he so request, by
the physician and the necessary personnel of the penal establishment, and by
such persons as the Director of Prisons may authorize.
Persons who may witness the execution
1. Priest assisting the offender.
2. Offender’s lawyers.
3. Offender’s relatives, not exceeding six, if so requested.
4. Physician, and
5. Necessary personnel of penal establishment
Article 85. Provisions relative to the corpse of the person executed and its
burial. - Unless claimed by his family, the corpse of the culprit shall, upon the
completion of the legal proceedings subsequent to the execution, be turned
over to the institute of learning or scientific research first applying for it, for
the purpose of study and investigation, provided that such institute shall take
charge of the decent burial of the remains. Otherwise, the Director of Prisons
shall order the burial of the body of the culprit at government expense,
granting permission to be present thereat to the members of the family of the
culprit and the friends of the latter. In no case shall the burial of the body of a
person sentenced to death be held with pomp.
In view of the enactment of RA 9346, the death penalty may not be imposed.
Thus, Articles 81 to 85 of the Revised Penal Code have no application.
Article 86. Reclusion perpetua, reclusion temporal, prision mayor, prision
correccional and arresto mayor. - The penalties of reclusion perpetua,
reclusion temporal, prision mayor, prision correccional and arresto mayor,
shall be executed and served in the places and penal establishments provided
by the Administrative Code in force or which may be provided by law in the
future.
Where the penalties of Reclusion perpetua, reclusion temporal, prision mayor, prision
correccional and arresto mayor shall be served?
The penalties of reclusion perpetua, reclusion temporal, prision mayor, prision
correccional and arresto mayor, shall be executed and served in the places and
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penal establishments provided by the Administrative Code in force or which may be
provided by law in the future.
Article 87. Destierro. - Any person sentenced to destierro shall not be
permitted to enter the place or places designated in the sentence, nor within
the radius therein specified, which shall be not more than 250 and not less
than 25 kilometers from the place designated.
What is the nature of the penalty of destierro?
Any person sentenced to destierro shall not be permitted to enter the place or
places designated in the sentence, nor within the radius therein specified, which shall
be not more than 250 and not less than 25 kilometers from the place designated.
If the convict enters the prohibited area, he commits evasion of sentence
(People vs. de Jesus, 80 Phil. 748)
Destierro is an exceptional penalty, prescribed as a principal penalty only in
two cases (Articles 247 and 334) and as an additional penalty in one case (Art. 248).
(Uy Chin vs. Dinglasan)
Article 88. Arresto menor. - The penalty of arresto menor shall be served in the
municipal jail, or in the house of the defendant himself under the surveillance
of an officer of the law, when the court so provides in its decision, taking into
consideration the health of the offender and other reasons which may seem
satisfactory to it.
What is the rule in the service of sentence eof Arresto Menor?
The penalty of arresto menor shall be served:
1. In the municipal jail, or
2. In the house of the defendant himself under the surveillance of an officer of
the law, when the court so provides in its decision, taking into consideration the
health of the offender and other reasons which may seem satisfactory to it.
 for damages on account of physical injuries, entirely separate and distinct the crime and recoverable under the RPC is also extinguished; but indemnity and
from the criminal action. (Belamala v. Polinar, 21 SCRA 700) damages may be recovered in a civil action if predicated on a source of obligation
under Article 1157, Civil Code, such as law, contracts, quasi-contracts and
(b) Claim for civil liability based on contract may also be made – in the offense of quasi-delicts, but not on the basis of delicts. (People vs. Bayotas, 236 SCRA 239).
estafa when the civil liability springs neither solely nor originally from the
Civil indemnity and damages under the RPC are recoverable only if the
crime itself but from a civil contract of purchase and sale as when the
accused had been convicted with finality before he died.
accused had swindled the vendees of the property subject matter of the
contract of sale (Torrijos vs. Court of Appeals, 67 SCRA 394). Civil liability ex delicto is rooted in the guilt or innocence of the accused. In
such cases, extinction of the criminal action due to the death of the accused pending
Where action for recovery of damages must be filed, when civil liability survives.
appeal inevitably signifies the concomitant extinction of the civil liability. The final
If the private offended party, upon extinction, of the civil liability ex delicto, determination of the criminal liability is a condition precedent to the prosecution of
desires to recover damages from the same act or omission complained of, he must, the civil liability, hence, when the action is extinguished by the death of the accused
subject to Section 1, Rule 111 of the Revised Rules of Criminal Procedure, file pending appeal thereof, said civil cannot survive. The claim for civil action will survive
separate civil action, this time predicated not on the felony previously charged but on regardless of the death if the same may also be predicated on other sources of
other sources of obligation. The source of obligation upon which the separate civil obligation e.g., quasi-delict, law, contract, quasi- contract.
action is premised determines against whom the same shall be enforced. Thus:
Service of Sentence
If the same act or omission complained of also arises from quasi-delict or
The period of time during which the evader of sentence was at large during
may, by provision of law, result in an injury to person or property (real or personal),
his 4 escapes should be excluded from the service of his sentence in fixing the dates
the separate civil action must be filed against the executor or administrator of the
of his release. During that period he cannot be regarded as in service of sentence
estate of the accused pursuant to Sec. 1, Rule 87 of the Rules of Court.
which consists of deprivation of his liberty. He cannot be said to have been deprived
If the same act or omission complained of also arises from contract, the of his liberty during the period he was at large. Moreover, Article 89 stipulates that
separate civil action must be filed against the estate of the accused, pursuant to Sec. penalties shall be served in a penal institution. (Martin vs. Eduardo, 121 SCRA)
5, Rule 86 of the Rules of Court. (Boado)
1. Amnesty vs. absolute pardon:
BAR 2004 – Criminal and civil liabilities; effects of death of accused pending appeal. AMNESTY PARDON
a. Application generally to political crimes generally to ordinary
AX was convicted of reckless imprudence resulting in homicide. The trial
And offenders crimes and offenders
court sentenced him to a prison term as well as to pay php50, 000. 00, as civil
indemnity and damages. While his appeal was pending, AX met a fatal accident. He
b. Effect on obliterates the effects of relieves the
left a young widow, 2 children, and a million peso estate. What is the effect, if any, of
offender
his death on his criminal as well as civil liability? Explain briefly.
Convict conviction as if the act of penalty but
Sugggested answer the
were not criminal effects of
The death of AX while his appeal from the judgment of the trial court is conviction stay
pending, extinguishes his criminal liability. The civil liability insofar as it arises from
155
 c. Congress concurrence required concurrence
not
3. Proclamaiton No. 80, dated February 28, 1987, by President Aquino,
needed
extending amnesty to those who, in the furtherance of their political beliefs,
d. When given even before conviction after final
may have committed treason, conspiracy or proposal to commit the crime of
conviction
treason, sedition, etc.
e. To whom usually to a class of persons to a specific individual PARDON
Given
f. Nature public act of the President private act of the It is an act of grace proceeding from the power entrusted with the execution
of the laws which exempts the individual on whom it is bestowed from the
President punishment the law inflicts for the crime he has committed.
g. Evidentiary judicial notice, mandatory no judicial notice, must The pardoning power of the President cannot be limited by legislative action.
Value on courts be pleaded and The power is conferred by the Constitution, hence only the Constitution can limit the
proved exercised thereof.
AMNESTY IN Risos-Vidal vs. Lim, G.R. No. 206666, January 21, 2015, the Supreme
Court, En Banc, said that the pardoning power is discretionary in the President and
It is an act of the sovereign power granting oblivion or a general pardon for a
may not be interfered with the Congress or the Court, except only when it exceeds
past offense, and is rarely, if ever, exercised in favour of a single individual, and is
the limits provided for by the Constitution. (Judge Campanilla)
usually exerted in behalf of certain classes or persons, who are subject to trial but
have not yet been convicted. (Brown vs. Walker, 161 U.S. 602). KINDS OF PARDON:
Amnesty completely extinguishes the penalty and all its effects. (a) Absolute Pardon;
(b) Conditional Pardon
Amnesty may be granted after conviction.
A pardon, whether absolute or conditional, is in the nature of a deed, for the
Civil liability not extinguished by amnesty. While amnesty wipes out all traces
validity of which delivery is an indispensable requisite. Until accepted, all that may
and vestiges of the crime, it does not extinguish the civil liability of the offender (U.S.
have been done is a matter of intended favour and may be cancelled. But once
v. Madlangbayan, 2 Phil. 426)
accepted by the grantee, the pardon already delivered cannot be revoked by the
Examples of Amnesty: authority which granted it.

1. Proclamation No. 51, dated January 28, 1948 by President Roxas, granting
amnesty to those who collaborated with the enemy during World War II;
2. Proclamation No 76, dated June 21, 1948, by President Quirino, extending
amnesty to the Huks and PKM (Pambansang Kaisanhan ng mga
Magbubukid), who committed rebellion, sedition, illegal association;
Pardon is given by the Chief Executive and as such it is a private act which
must be pleaded and proved by the person pardoned because the courts take no
notice thereof; amnesty is by Proclamation of the Chief Executive with the
concurrence of Congress, and it is a public act of which the courts should take
judicial notice.

156
 Pardon looks forward and relieves the offender from the consequences of an
offense of which he has been convicted. It abolishes or forgives the punishment, and
for that reason does not work the restoration of the rights to hold public office, or the
rights of suffrage, unless such rights be expressly restored by the terms of pardon,
and it “in no case exempts the culprit from the payment of the civil indemnity
imposed upon him by the sentence.” (Article 36) Amnesty looks backward and
abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the
offenses with which he is charged that the person released by amnesty stands
before the law precisely as though he had committed no offense. (People vs. Casido,
G.R. No. 116512, March 7, 1997)
Limitations on the pardoning power of the Chief Executive:
a. The power should be exercised after final conviction, because where the
President is not so prevented by the Constitution, not even Congress can
impose any restriction to prevent a presidential folly;
Consequently, before appellant may be validly granted pardon, he must
first withdraw his appeal, i.e. the appealed conviction must first be brought
to finality.
b. That such power does not extend to cases of impeachment. (People vs.
Salle, G.R. No. 103567, December 4, 1995) Simply put, the Chief
Executive cannot pardon a public official who has been removed from
office pursuant to impeachment proceedings.
Please take note that a judgement of conviction becomes final:
a. When no appeal is seasonably perfected;
b. When the accused commences to serve the sentence;
c. When the right to appeal is expressly waived in writing;
d. When the accused applies for probation, thereby waiving his right to
appeal.
Pardon of the offended compared with pardon by the Chief Executive:
157
a. Executive pardon extinguishes criminal liability; pardon by the offended
does not extinguish criminal liability except in Articles 266-C (rape) and
344.
b. Executive pardon is granted after final conviction; pardon by the offended
must be granted before institution of the action because when the case is
finally filed in court, the State is regarded as the primary offended party
and the complainant is relegated to the role of a complaining witness.
Hence, the prosecution of the case becomes the prerogative of the State.
c. Executive pardon cannot extinguish the civil liability of offender; the
offended may expressly waive the civil liability.
Pardon must be granted not only by the parents of an offended minor but also
by the minor herself to be effective as an express pardon under Article 344 (and
Article 266-C, R.A. 8353). People vs. Lacson, Jr., [CA] 55OG 9460, held the pardon
by the parents, standing alone, is inefficacious. US vs. Luna, 1 Phil. 360 said that the
parents’ express pardon of a person guilty of attempted abduction of a minor is not
sufficient to remove criminal responsibility. It must be accompanied by the express
pardon of the girl herself. Here, even if it be assumed that the initial desistance of the
mother from taking any action against the accused constitutes pardon, such pardon
is ineffective without the express concurrence of the minor herself. (People vs.
Tadulan, G.R. No. 117407, April 15, 1997)
PRESCRIPTION OF THE CRIMES
It is entirely incorrect to state that only the State is the offended party, and
therefore, only the State’s discovery of the crime could effectively commence the
running of the period of prescription. Article 91 of the Code provides that day on
which the crime is discovered by the offended party, the authorities, or their agents.
This rule makes no distinction between a public crime and a private crime. In both
cases then, the discovery may be by the offended party, the authorities, or their
agents. (Garcia, vs. CA, G.R. No. 119063, January 27, 1997)
Commencement of the Running of Period
 The Law is clear that the period of prescription shall commence to run from
the day on which the crime is discovered by the offended party, the authorities, or
their agents.
It is only proper that the running of prescriptive period will only commence
upon discovery of the crime because this is the only time that they can institute
criminal action to interrupt its running. It is unreasonable to let the period run, and
yet, they cannot interrupt it because they are not yet aware of the crime.
Interrupted by the filing of the Complaint
Under Article 91 of the Revised Penal Code, the running of period of
prescription shall be interrupted by the filing of the complaint or information, and shall
commence to run again when such proceedings are terminated without the accused
being convicted or acquitted, or are unjustifiably stopped for any reason not
imputable to him.
Who are the Offended Party
For purposes of prescription of crime, the offended party includes the person
to whom the offender is civilly liable. Thus, the widow of the murdered victim is an
offended party. (Garcia vs. CA, G.R. No. 119063, January 27, 1997). Therefore, the
discovery of crime by a mere witness, who is not an offended party or a person in
authority or his agent, will not cause the commencement of the running of the
prescriptive period.
What is the Rule in case of Lack of Jurisdiction on Prescription
What is important is the allegation in the Information. If the Information
alleged that the crime was committed within the jurisdiction of the Municipal Trial
Court of Batangas, the filing of such Information and the subsequent proceedings are
valid until the case is dismissed for lack of territorial jurisdiction. Hence, the
prescriptive period was interrupted and tolled during the pendency of the
proceedings before the Municipal Trial Court of Batangas. (People vs. Galano, G.R.
No. L – 42925, January 31, 1977) Moreover, the proceedings to be filed with the
court of competent jurisdiction should be regarded as mere continuation of the
previous proceedings pending before the Municipal Trial Court of Batangas (Cruz vs.
Enrile, G.R. No. L – 75983, April 15, 1988) However, the prescriptive period will run
158
again upon the dismissal of the case for lack of territorial jurisdiction up to the time
that it was re-filed with the proper court. Under the law, the period of prescription
shall commence to run again when the criminal proceedings are terminated without
the accused being convicted or acquitted.
What is the Rule in case of Prescription of a Lesser Offense
Where an accused has been found to have committed a lesser offense (slight
oral defamation), which is included in the offense charge (grave oral defamation), he
cannot be convicted of the lesser offense (slight oral defamation), if it has already
prescribed. To hold otherwise would be to sanction the circumvention of the law on
prescription by the simple expedient of accusing the accused of the graver offense if
the lesser crime has already prescribed (Francisco vs. CA)
Prescription of penalty
The period of prescription of penalties shall commence to run from the date
when the culprit should evade the service of his sentence, and it shall be interrupted
if the defendant should give himself up, be captured, should go to some foreign
country with which this Government has no extradition treaty, or should commit
another crime before the expiration of the period of prescription (Article 92 of the
Revised Penal Code)
Simply put, prescription of penalty occurs when the convict escapes from
detention or evades the service of his sentence. Evasion of service of sentence is
condition precedent to the running of the period.
Tolling of period of prescription of penalty occurs when he commits another
crime, or is captured or goes to another country with which the Philippines has no
extradition treaty.
Extradition Treaty
If the Philippines has an extradition treaty with the foreign country, the
running of prescriptive period shall be interrupted. This will compel the State to
extradite the evader within the prescriptive period
If the Philippine government has NO extradition treaty with the foreign
country, the running of the prescriptive period shall be interrupted. In the absence of
extradition treaty, the State can neither apprehend nor extradite the accused. Hence, carry the dead body of Ara, place it inside the trunk of her car and drive away. The
it is only proper to suspend the running of the period.Otherwise, the period is running dead body of Ara was never found. Mina spread news in the neighbourhood that Ara
and yet the State cannot interrupt it since there is no way to apprehend the accused. went to live with her grandparents in Ormoc City. For fear of his life, Albert did not tell
anyone, even his parents and relatives, about what he witnesses. Twenty and a half
BAR 1995 – Prescription of crime of bigamy
(20 & ½) years after the incident, and right after his graduation in Criminology, Albert
Joe and Marcy were married in Batanes in 1955. After two years, Joe left reported the crime to NBI authorities. The crime of homicide prescribes in 20 years.
Marcy and settled in Mindanao where he later met and married Linda on 12 June Can the State still prosecute Mina for the death of Ara despite the lapse of 20 & ½
1960. The second marriage was registered in the civil registry of Davao City three years? Explain.
days after its celebration. On 10 October 1975 Marcy who remained in Batanes
Suggested answer
discovered the marriage of Joe to Linda. On 1 March 1976, Marcy filed a complaint
for bigamy against Joe. Yes, the State can still prosecute Mina for the death of Ara despite the lapse
of 20 & ½ years. Under Article 91, RPC, the period of prescription commences to run
The crime of bigamy prescribed in fifteen years computed from the day the
from the day on which the crime is discovered by the offended party, the authorities
crime is discovered by the offended party, the authorities or their agents. Joe raised
or their agents. In the case at bar, the commission of the crime was known only to
the defense of prescription of the crime, more than fifteen years having elapsed from
Albert, who was not the offended party nor an authority or an agent of an authority. It
the celebration of the bigamous marriage up to the filing of Marcy’s complaint. He
was discovered by the NBI authorities only when Albert revealed to them the
contended that the registration of his second marriage in the civil registry of Davao
commission of the crime. Hence, the period of prescription of 20 years for homicide
City was constructive notice to the whole world of the celebration thereof thus
commenced to run only from the time Albert revealed the same to the NBI
binding upon Marcy. Has the crime of bigamy charged against Joe already
authorities.
prescribed? Discuss fully.
BAR 2001 – Prescription of concubinage
Suggested answer
On June 1, 1988, a complaint for concubinage committed on February 1987
No. The prescriptive period for the crime of bigamy is computed from the time
was filed against Roberto in the Municpal Trial Court of Tanza, Cavite for purpose of
the crime was discovered by the offended party, the authorities or their agents. The
preliminary investigation. For various reasons, it was only on July 3, 1998 when the
principle of constructive notice which ordinarily applies to land or property disputes
Judge of said court decided the case by dismissing it for lack of jurisdiction since the
should not be applied to the crime of bigamy, as marriage is not property. Thus when
crime was committed in Manila. The case was subsequently filed with the City Fiscal
Marcy filed a complaint for bigamy on 7 March 1976, it was well within the
of Manila but it was dismissed on the ground that the crime of concubinage had
reglementary period as it was barely few months from the time of discovery on 10
already prescribed. The law provides that the crime of concubinage prescribes in ten
October 1975. (Sermonia v. CA, 233 SCRA 155).
(10) years. Was the dismissal by the fiscal correct? Explain.
BAR 2000 – Prescription of crimes
Suggested answer
One fateful night in January 1990, while 5-year old Albert was urinating at the
No, the fiscal’s dismissal of the case on alleged prescription is not correct.
back of their house, he heard a strange noise coming from the kitchen of their
The filing of the complaint with the Municipal Trial court, although only for preliminary
neighbour and playmate, Ara. When he peeped inside, he saw Mina, Ara’s
investigation, interrupted and suspended the period of prescription inasmuch as the
stepmother, very angry and strangling the 5-year old Ara to death. Albert saw Mina
jurisdiction of a court in a criminal case is determined by the allegation in the
159
complaint or information, not by the result of proof. (People vs. Galano, 75 SCRA
193).
Article 91 does not define the term offended party. Its definition is in Section
12, Rule 110 of the Rules of Court as “the person against whom or against whose
property the offense was committed. “More specifically, it is reasonable to assume
the offended party is to whom the offender is civilly liable, in the light of Article 100 of
the Code. The private individual to whom the offender is civilly liable is the offended
party.
Trips abroad do not constitute the “absence” contemplated in Article 91.
The question is whether a month mentioned in Article 90 should be
considered as the calendar month and not the 30-day month. It is to be noted that no
provision of the Revised Penal Code defines the length of the month. With the
approval of the Civil Code, R.A. 386, a month is to be considered as the regular
30-day month (Article 13). This provision of the new Civil Code has been intended for
general application in the interpretation of the laws. As the offense charged in the
information took place on May 28, 1953, after the new Civil Code had come into
effect, this new provision should apply, and in accordance therewith the month in
Article 90 of the Revised Penal Code should be understood to mean the regular
30-day month.
By Marriage of the Offended Woman
Pardon in the form of marriage shall totally extinguish criminal liability arising
from the crimes of seduction, abduction, or acts of lasciviousness. The marriage
between the offended party and the offender shall also extinguish criminal action if
the same is already instituted, or penalty if the same is already imposed (Article 344
of the Revised Penal Code)
There are two (2) rules under Article 344 of the Revised Penal Code in
connection with marriage as amode of criminal extinction.
First, in cases of seduction, abduction, acts of lasciviousness and rape, the
marriage of the offender with the offended party shall extinguish the criminal action or
remit the penalty already imposed upon the accused.
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Second, this rule on criminal extinction shall also be applicable to the
co-principals, accomplices, and accessories.
Article 344 provides marriage as a mode of extinguishing criminal liability
arising from rape. Accoridng to Justice Regalado, since rape is now a crime against
person, it should be considered as DELETED from the text of Article 344. In case of
rape, the applicable rule is now Article 266-C of the Revised Penal Code as
amended by RA No. 8353. Under this provision, subsequent marriage between the
offender and the offended party shall extinguish the criminal action or penalty;
Provided, That the crime shall not be extinguished or the penalty shall not be abated
if the marriage is void ab initio.
It seems that RA No. 8353 adopted the first rule in Article 344 of the Revised
Penal Code but not the second rule. Hence, marriage between the offender and the
offended party will not extinguish the criminal liability of the co-principal, accomplice
or accessory of the crime of rape (Judge Campanilla)
Forgiveness in Marital Rape
In case it is the legal husband who is the offender, the subsequent
forgiveness by the wife as the offended party shall extinguish the criminal action or
the penalty. Marriage is not a mode of extinguishing criminal liability for marital rape
because the parties are already married. Hence, forgiveness is enough to extinguish
this liability.
Immutability of Final Judgment
The general rule is that a judgment that has acquired finality becomes
immutable and unalterable, and may no longer be modified in any respect even if the
modification is meant to correct erroneous conclusion of fact or law and whether it
will be made by the court that rendered it or by the highest court of the land. This
doctrine is based on the public policy that the judgments or orders of courts must
become final at some definite time fixed by law; otherwise there would be no end to
litigations (Hernan vs. Sandiganbayan, G.R. No. 217874, December 5, 2015)
Void Judgment
 The immutability of final judgment will not apply in a case where the judgment
is void (Navarra vs. Liongson, G.R. No. 217930, April 13, 2016)
Example
X, was charged with rape by Z. During the pendency of the case, X married
Z. Upon motion of X, the court dismissed the case on the ground of extinction of
criminal liability arising from rape. However, after five years, the marriage was
declared null and void for lack of marriage license. The court upon motion of the
prosecution can reconsider the order of dismissal and revive the case without
offending the rules on immutability of judgment and double jeopardy.
The validity of the order of dismissal based on criminal extinction for purpose
of applying the rule on immutability of final order will depend on the validity of the
criminal extinction.
Under Article 266-C of the Revised Penal Code, the subsequent valid
marriage between the offender and the offended party shall extinguish the criminal
action; but the crime shall not be extinguished if the marriage be void ab initio.
In this case, since the marriage between X and X is judicially declared as null
and void, it is submitted that the order of dismissal due to criminal extinction based
on such marriage is also null and void. Hence, the court can revive the case because
the doctrine of immutability of final order shall not apply since the order of dismissal
is invalid.
Article 90. Prescription of crimes. – Crimes punishable by death, reclusion
perpetua and reclusion temporal shall prescribe in twenty years.
Crimes punishable by other afflictive penalties shall prescribe in fifteen
years.
Those punishable by a correccional penalty shall prescribe in ten years;
with the exception of those punishable by arresto mayor, which shall prescribe
in five years.
The crime of libel or other similar offenses shall prescribe in one year.
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The offenses of oral defamation and slander by deed shall prescribe in
six months.
Light offenses prescribe in two months.
When the penalty fixed by law is a compound one, the highest penalty shall be
made the basis of the application of the rules contained in the first, second
and tird paragraph of this article.
What are the periods for prescription of crimes?
Crimes punishable by death, reclusion perpetua and reclusion temporal shall
prescribe in twenty (20) years.
Crimes punishable by other afflictive penalties shall prescribe in fifteen (15)
years.
Those punishable by a correccional penalty shall prescribe in ten (10) years;
with the exception of those punishable by arresto mayor, which shall prescribe in five
5) years.
The crime of libel or other similar offenses shall prescribe in one (1) year.
The offenses of oral defamation and slander by deed shall prescribe in six (6)
months.
Light offenses prescribe in two (2) months.
When the penalty fixed by law is a compound one, the highest penalty shall
be made the basis of the application of the rules contained in the first, second and
third paragraph of this article.
Article 91. Computation of prescription of offenses. – The period of
prescription shall commence to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents, and shall be
interrupted by the filing of the complaint or information, and shall commence
to run again when such proceedings teminate without the accused being
convicted or acquitted, or are unjustifiably stopped for any reason not
imputable to him.
 The term of prescription shall not run when the offender is absent from
the Philippine Archipelago.
When prescription of offenses commence to run?
The period of prescription shall commence to run from the day on which the
crime is discovered by the offended party, the authorities, or their agents.
When it shall be interrupted?
It shall be interrupted by the filing of the complaint or information.
When it shall commence to run again?
It shall commence to run again when such proceedings teminate without the
accused being convicted or acquitted, or are unjustifiably stopped for any reason not
imputable to him.
The term of prescription shall not run when the offender is absent from the
Philippine Archipelago.
Prescription of crime refers to the loss of the right of the State to prosecute
offenders. It cannot be waived or extended since it is for the benefit of the accused.
Once prescription has set in, the courts automatically lose jurisdiction.
In prescription of crime:
1. The basis is the higher penalty if there were several.
2. Running of the period starts from the discovery by the offended party or the
authorities or their agents. This list is exclusive. Discovery by a neighbour or
a friend or any person not among the said list is not included.
3. The running of the period of prescription is interrupted by the filing of the
complaint or information or when the offender is out of the country. The filing
of the criminal complaint before the Office of the Prosecutor even for
purposes of preliminary investigation would interrupt the running of the
period.
4. The period runs again when the proceedings are terminated without acquittal
or conviction for reasons not attributable to the offender.
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If the rules for the computation of the prescriptive periods are not provided for
under the special laws, the rules for the computation of the prescriptive period under
Article 91 may be used pursuant to article 10 of this Code which provides that the
provisions of this “code shall be supplementary to such laws, unless the latter should
specially provide the contrary.”
The basis of the prescriptive period is the penalty prescribed by law. The
computation of the prescriptive period shall start from the date when the offense was
discovered by the offended party, the authorities or their agents.
What is the rule in case the last day to file Information falls on Sunday or Legal
Holiday?
When the last day to file an information falls on a Sunday or legal holiday, the
period of prescription cannot be extended to the next working day. Otherwise, it will
lenthen the period fixed by the State for it to prosecute those who committed a crime
against it. (Yapdiangco vs. Buencamino, 122 SCRA 713).
Example 1
In continuing crimes, the computation of the prescriptive period starts from
the date when the accused desisted from committing the act.
Example 2
When the crime involves public documents covering realty registered under
PD 1529, the counting of the prescriptive period commences from the date of
registration.
Example 3
Soon after commtting the crime of attempted homicide punishable by prison
correccional, X was able to leave for USA with which the Philippines had an
extradition treaty and where X stayed for 20 years. When X came back to the
Philippines and charged with the crime of he had committed, he invoked prescription
under Article 90 of this Code.
The crime has not yet prescribed because X was absent from the Philippines
although the USA has an extradition treaty with the Philippines. Extradition treaty is
considered only in prescription of penalty under Article 93 and not in prescription of
crime under Article 90 in relation to Article 91.
Example 4
In the case of bigamy, the computation of the prescriptive period shall be
counted from the time of its discovery by the offended party or authorities or their
agents and not from the registration of the marriage contract with the Local Civil
Registrar (Sermonia v. Court of Appeals, 233 SCRA 155)
Article 92. When and how penalties prescribe. – The penalties imposed by fina
sentence prescribe as follows:
1. Death and reclusion perpetua, in twenty years;
2. Other afflictive penalties, in fifteen years;
3. Correccional penalties, in ten years, with the execption of the penalty of
arresto mayor, which prescribes in five years;
4. Light penalties, in one year.
What are the periods of prescription of penalties?
The penalties imposed by final sentence prescribe as follows:
1. Death and reclusion perpetua, in twenty (20) years;
2. Other afflictive penalties, in fifteen (15) years;
3. Correccional penalties, in ten (10) years, with the execption of the penalty of
arresto mayor, which prescribes in five(5) years;
4. Light penalties, in one (1) year.
Article 93. – Computation of the prescription of penalties. – The period of
prescription of penalites shall commence to run from the date when the culprit
should evade the service of his sentence, and it shall be interrupted if the
defendant should give himself up, be captured, should to go to some foreign
country with which this Government has no extradition treaty, or should
commit another crime before the expiration of the period of prescription.
When the period of prescription commence to run?
163
The period of prescription of penalites shall commence to run from the date
when the culprit should evade the service of his sentence.
When the period is interrupted?
The period shall be interrupted if the defendant in the following instances:
1. Should give himself up,
2. Be captured,
3. Should to go to some foreign country with which this Government has no
extradition treaty, or
4. Should commit another crime before the expiration of the period of
prescription.
Elements:
1. That the penalty is imposed by final sentence;
2. That the convict evaded the service of the sentence by escaping during the
term of his sentence;
3. That the convict who escaped from prison has not given himself up, or been
captured, or gone to a foreign country with which the Philippines has no
extradition treaty, or committed another crime;
4. That the penalty has prescribed, because of the lapse of time from the date of
the evasion of the service of the sentence by the convict.
The period of prescription of penalty shall commence to run again from the
date the accused evaded the servie of his sentence. It shall be interrupted if the
accused gives himself up, is captured, or should go to a foreign country with which
the Phlippines has no extradition treaty, or the accused has committed another crime
before the crime has prescribed.
An accused who was tried, convicted and sentenced to serve imprisonment
by final judgment but was able to escape before he has served his sentence cannot
avail himself of the benefits of prescription under this Article because since he had
not evaded sentence there being no service of sentence that was evaded. (Tanega v.
Masakayan, 19 SCRA 564)
 Under this Article, the running of period of prescription for penalty shall be
interrupted if the accused should go to some foreign country with which the
government has no extradition treaty.
If the Philippine government has an extradition treaty with the foreign country,
the running of the prescriptive period shall not be interrupted. This will compel the
State to extradite the evader within the prescripted period.
If the Philippine government has no extradition treaty with the foreign country,
the running of the prescriptive period shall be interrupted. In the absence of the
extradition treaty, the State can neither apprehend nor extradite the accused. Hence,
it is only proper to suspend the running of the period. Otherwise, the period is
running and yet the State cannot interrupt it since there is no way to apprehend the
accused.
Evasion of service of sentence is an essential element of prescription of
penalties and takes place before the running of the period and cannot interrupt it.
(Infante vs, Warden)
Acceptance of a conditional pardon interrupts the prescriptive period because
it is similar to a case of one who flees from this jurisdiction. (People vs. Puntilos)
Article 94 – Partial extinction of criminal liability. – Criminal liability is
extinguished partially:
1. By conditional pardon;
2. By commutation of the sentence; and
3. For good conduct allowances which the culprit may earn while he is
serving his sentence. (As amended by RA 10592, May 29, 2013)
4. Parole;
5. Probation
Section 2 (RA No. 10592). Article 94 of the same Act is hereby further
amended to read as follows:
"ART. 94. Partial extinction of criminal liability. – Criminal liability is extinguished
partially:
1. By conditional pardon;
164
2. By commutation of the sentence; and
3. For good conduct allowances which the culprit may earn while he is undergoing
preventive imprisonment or serving his sentence."
Conditional Pardon
(Please discussion under Article 95 of the Revised Penal Code)
GOOD CONDUCT TIME ALLOWANCE (GCTA) – Before, only prisoner
serving sentence is entitled to allowance for good conduct. However, under Article 94
of the RPC, as amended by RA 10592, the following shall be entitled to good
conduct time allowance:
1. A detention prisoner qualified for credit for preventive imprisonment for his
good conduct and exemplary behaviour; and
2. A prisoner convicted by the final judgment in any penal institution,
rehabilitation or detention center or any other local jail for his good conduct
and exemplary behaviour.
Parole – It consists in the suspension of the sentence of a convict after serving the
minimum of the sentence imposed without granting a pardon, prescribing the terms
upon which the sentence shall be suspended.
Article 95. Obligation incurred by person granted conditional pardon. - Any
person who has been granted conditional pardon shall incur the obligation of
complying strictly with the conditions imposed therein otherwise, his
non-compliance with any of the conditions specified shall result in the
revocation of the pardon and the provisions of Article 159 shall be applied to
him.
Conditional Pardon
A conditional pardon is in the nature of a contract between the Chief
Executive and the convict that the effect that the former will release the latter subject
to the condition that if he does not comply with the terms of the pardon, he will be
recommitted to prison to serve the unexpired portion of the sentence or an additional
one. (Alvarez vs. Dir. Of Prison, 80 Phil. 50) By the pardonee’s consent to the terms
stipulated in this contract, the pardonee has thereby placed himself under the
supervision of the Chief Executive or his delegate who is duty-bound to ensure that
the pardonee complies with the terms and conditions of the pardon. Under Sec. 64(I)
of the Revised Administrative Code, the Chief Executive is authorized to order “the
arrest and re-incarceration of any such person who, in his judgement, shall fail to
comply with the condition, or conditions of his pardon, parole or suspension of
sentence.” (Torres vs. Dir. Of Bureau of Corrections, G.R. No. 122338, December 29,
1995)
The duration of the period of the conditional pardon is limited to the period of
the sentence unless an intention to extend it beyond the term of the sentence is
manifest from the nature of the condition of the pardon or the language in which it is
imposed (Infante vs. Warden, 48 O.G. 5228)
Conditional pardon can be extended to the convict in 3 ways:
a. Through the operation of the Indeterminate Sentence Law;
b. Through the grant of probation under the Probation Law; and
c. Through the exercise of the President motu proprio of the power under
the Constitution.
A conditional pardon, when granted does not extinguish the civil liability
arising from the crime. (Mosanto vs. Factoran, Jr., 170 SCRA 190; People vs.
Nacional, G.R. Nos. 111294-95, September 7, 1995)
It must be given after FINAL judgment and must be accepted because of the
conditions which must be strictly complied with.
When the conditions are violated, the offender is considered in evasion of the
service of his sentence and shall be:
a. Rearrested and re-incarcerated by order of the President under the
Revised Administrative Code; or
165
b. Prosecuted under Article 159. When the penalty remitted is 6 years and
below, there will be an additional penalty; over 6 years, the remaining
sentence shall be served without additional penalty for the evasion.
The exercise of presidential judgment is beyond judicial scrutiny. The
determination of the violation of the conditional pardon rests exclusively in the sound
judgment of the Chief Executive. The pardonee, having consented to place his liberty
on conditional pardon upon the judgment of the power that has granted it, cannot
invoke the aid of the courts, however erroneous the findings may be upon which his
recommitment was ordered. (Tesoro vs. Dir. of Prisons, 68 Phil. 154)
A final judicial pronouncement as to the guilt of a pardonee is not a
requirement for the President to determine whether or not there has been a breach
of the terms of a conditional pardon. There is likewise no basis for the courts to
effectuate the reinstatement of a conditional pardon revoked by the President in the
exercise of powers undisputedly solely and absolutely ledged in his office. (Torres vs.
Dir. Of Bureau of Corrections, G.R. No. 122338, December 29, 1995)
Habeas Corpus is not the remedy of the re-incarcerated pardonee. Habeas
corpus lies only where the restraint of a person’s liberty has been judicially adjudged
as illegal or unlawful. The incarceration of Torres remains legal considering that,
were it not for the grant of conditional pardon which had been revoked because of a
breach thereof, the determination of which is beyond judicial scrutiny, he would have
served his final sentence for his first conviction until November 2, 2000.
Ultimately, solely vested in the Chief Executive, who in the first place was the
exclusive author of the conditional pardon and of its revocation, is the corollary
prerogative to reinstate the pardon if in his own judgement, the acquittal of the
pardonee from the subsequent charges filed against him, warrants the same. Courts
have no authority to interfere with the grant by the President of a pardon to a
convicted criminal.
Article 96. Effect of commutation of sentence. - The commutation of the
original sentence for another of a different length and nature shall have the
legal effect of substituting the latter in the place of the former.
What is the effect of the commutation of sentence?
 The commutation of the original sentence for another of a different length and
nature shall have the legal effect of substituting the latter in the place of the former.
Commutation of sentence defined
It is the change in the sentence of the court made by the President which
consists in reducing the penalty imposed upon the offender. Such substitutes the
original penalty.
What are the Distinctions between Conditional Pardon and Parol?
1. Conditional pardon is given by the Chief Executive after conviction under the
provisions of the Revised Administrative Code; Parole is given by the Parole Board
to a prisoner who has served the minimum of an indeterminate sentence.
2. For violation of conditional pardon, the offender may either be re-arrested to serve
the remitted penalty or prosecuted under Article 159 of the Revised Penal Code; for
violation of parole, the convict is re-arrested to serve the unexpired portion of the
penalty.
Article 97. Allowance for good conduct. - The good conduct of any prisoner in
any penal institution shall entitle him to the following deductions from the
period of his sentence:
1. During the first two years of his imprisonment, he shall be allowed a
deduction of five days for each month of good behavior;
2. During the third to the fifth year, inclusive, of his imprisonment, he
shall be allowed a deduction of eight days for each month of good
behavior;
3. During the following years until the tenth year, inclusive, of his
imprisonment, he shall be allowed a deduction of ten days for each
month of good behavior; and
166
4. During the eleventh and successive years of his imprisonment, he
shall be allowed a deduction of fifteen days for each month of good
behaviour.
Section 3. Article 97 of the same Act is hereby further amended to read as
follows:
"ART. 97. Allowance for good conduct. – The good conduct of any offender
qualified for credit for preventive imprisonment pursuant to Article 29 of this Code, or
of any convicted prisoner in any penal institution, rehabilitation or detention center or
any other local jail shall entitle him to the following deductions from the period of his
sentence:
1. During the first two years of imprisonment, he shall be allowed a
deduction of twenty days for each month of good behavior during detention;
2. During the third to the fifth year, inclusive, of his imprisonment, he shall
be allowed a reduction of twenty-three days for each month of good behavior
during detention;
3. During the following years until the tenth year, inclusive, of his
imprisonment, he shall be allowed a deduction of twenty-five days for each
month of good behavior during detention;
4. During the eleventh and successive years of his imprisonment, he shall
be allowed a deduction of thirty days for each month of good behavior during
detention; and
5. At any time during the period of imprisonment, he shall be allowed another
deduction of fifteen days, in addition to numbers one to four hereof, for each month
of study, teaching or mentoring service time rendered.
An appeal by the accused shall not deprive him of entitlement to the above
allowances for good conduct."
The good conduct time allowance under Article 97, as amended, are as
follows:
a. First 2 years of imprisonment: 20 days for each month of good behaviour
b. 3rd to 5th year: 23 days for each month of good behaviour.
c. 6th to 10th year: 25 days for each month of good behaviour.
 d. 11th year and successive years: 30 days for each month of good
behaviour.
Article 98 – Special time allowance for loyalty. – A deduction of one-fifth of the
period of his sentence shall be granted to any prisoner who, having evaded the
service of his sentence under the circumstances mentioned in Article 158 of
this Code, gives himself up to the authorities within 48 hours following the
issuance of a proclamation announcing the passing away of the calamity or
catastrophe referred to in said article.
Section 4. Article 98 of the same Act is hereby further amended to read as
follows:
"ART. 98. Special time allowance for loyalty. – A deduction of one fifth of the
period of his sentence shall be granted to any prisoner who, having evaded his
preventive imprisonment or the service of his sentence under the circumstances
mentioned in Article 158 of this Code, gives himself up to the authorities within 48
hours following the issuance of a proclamation announcing the passing away of the
calamity or catastrophe referred to in said article. A deduction of two-fifths of the
period of his sentence shall be granted in case said prisoner chose to stay in the
place of his confinement notwithstanding the existence of a calamity or catastrophe
enumerated in Article 158 of this Code.
"This Article shall apply to any prisoner whether undergoing preventive
imprisonment or serving sentence."
SPECIAL TIME ALLOWANCE FOR LOYALTY (STAL) –
If a detention prisoner or convicted prisoner escapes during the calamity, and
subsequently surrenders within 48 hours from the time the President announces the
passing away of such calamity, he is entitled to 1/5 special time allowance for loyalty
(STAL) under Article 98 of the RPC, as amended by RA 10592; if the convicted
prisoner did not surrender within the period, he is liable for evasion of sentence
under Article 158 of the RPC punishable by a penalty equivalent to 1/5 of the time
still REMAINING to be served under the original sentence, which in no case shall
exceed six months; if the detention prisoner did not surrender within the period, he is
not liable for evasion of service of sentence. Only convicted prisoner can commit
167
evasion of service of sentence because a detention prisoner is not serving sentence,
which he can evade.
In case the prisoner chose to stay in the place of his confinement
notwithstanding the existence of a calamity, he is entitled to 2/5 STAL (Article 98 as
amended by RA 10592). A prisoner who did not escape despite the calamity
manifests a higher degree of loyalty to the penal system than those who evaded their
sentence but thereafter gave themseves up upon the passing away of the calamity.
Hence, prisoners, who did not escape, are entitled to a higher special time
allowance.
The old version of Article 98 of the RPC does not grant STAL to a prisoner
who did not escape the existence of calamity. RA No. 10592 sought to correct the
unfairness under the old rule for not recognizing the loyalty displayed by a
non-evading prisoner.
However, a prisoner is not entitled to STAL if he has committed other offense
or any act in violation of the law.
As amended by R.A. No. 10592—May 29, 2013.
A deduction of 2/5 of the period of his sentence shall be granted in case said
prisoner chose to stay in the place of his confinement notwithstanding the existence
of a calamity or catastrophe enumerated in Article 158 of this Code.”
Leaving and not returning within the time period prescribed 1/5 addition to the
remaining sentence which should not be more than 6 months, that is, 1/5 of the
balance of the sentence to be served or 6 months whichever is lesser.
Leaving and thereafter returning within the time period prescribed – 1/5
deduction from his sentence as provided under Article 98.
Not leaving – no deduction for what is given premium is the loyalty shown by
returning, not the “martyrdom” of not leaving jail in the face of calamity.
It is submitted that the deduction for loyalty under Article 98 should be based
on the original sentence. As the Article did not qualify the word “sentence” unlike in
Article 158 which expressly stated that the sentence to be added shall be based on
the period “still remaining to be served.” When the law does not qualify, neither
should the courts. Moreover, Article 158 specified that the additional sentence should
not exceed 6 months showing the intent of Congress to limit the penalty to the
accused, whereas in Article 98, there is no such qualification. Finally, all doubts must
be construed in favour of the accused. Since it is more favourable to the accused
that the lowering is on the basis of the original sentence, then that construction
should be followed.
Article 99. Who grants time allowances. - Whenever lawfully justified, the
Director of Prisons shall grant allowances for good conduct. Such allowances
once granted shall not be revoked.
Section 5. Article 99 of the same Act is hereby further amended to read as
follows:"
"ART. 99. Who grants time allowances. – Whenever lawfully justified, the
Director of the Bureau of Corrections, the Chief of the Bureau of Jail Management
and Penology and/or the Warden of a provincial, district, municipal or city jail shall
grant allowances for good conduct. Such allowances once granted shall not be
revoked."
TIME ALLOWANCE FOR STUDY, TEACHING, AND MENTORING (TASTM) –
A prisoner is entitled to Time Allowance for Study, Teaching and Mentoring,
which is a privilege granted to a prisoner, whether detained or convicted by final
judgment, as a reward for having earned a postgraduate degree or college degree, a
certificate of completion of a vocational or technical skill or values development
course, a high school or elementary diploma or to one serving his fellow prisoner as
a teacher or mentor while incarcerated, equivalent to a deduction of a maximum of
15 days for every month of study or mentoring services.
Parole
It is the conditional release of a prisoner from correctional institution after
serving the minimum period of prison sentence.
Probation
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Is a disposition under which a defendant, after conviction and sentence, is
released subject to conditions imposed by the court and to the supervision of a
probation officer.
The purpose of probation is reformative in nature and not preventive and is to
be exercised primarily for the benefit of organized society and only incidentally for
the benefit of the accused (Facinal vs. Cruz, G.R. No. 50618, September 2, 1992)
Probation under RA 10707
Under the old law, if trial court sentenced the accused to a penalty of more
thansix years but the appellate court reduced it to a probationable level, he could not
apply for probation because of the rule of mutually exclusive remedies unless the
sole issue raised in the appeal is the impropriety of the penalty (Lagrosa vs. People,
G.R. No. 152044, July 3, 2003 and Dimakuta vs. People, G.R. No. 206513, October
20, 2015) However, RA No. 10707, which is approved on November 26, 2015, has
rejected the Lagrosa case and Dimakuta case and adopted the Colinares principle
In Colinares vs. People, G.R. No. 182748, December 13, 2011, the accused,
wo was convicted by the lower court of frustrated homicide with the
non-probationable penalty of six years and one day of prision mayor, but on appeal
was found guilty of attempted homicide with a probationable penalty of two years and
four months of prision correccional, may apply for probation upon remand of the case
to the RTC.
In Villareal vs. People, G.R. No. 151258, December 1, 2014, accused was
convicted of homicide with a non-probationable penalty of 17 years of reclusion
temporal, by the trial court. However, the Supreme Court found them liable for
reckless imprudence resulting in homicide with a probationable penalty of four years
of prision correccional. They can still apply for probation. The Supreme Court
reaffirmed the Colinares principle.
Motion for Reconsideration of the Modified Decision
Applying for probation based on a modified decision rendered by the
applellate court, and seeking review of the said decision are mutually exclusive
remedies. Under Section4 of PD No. 968, as amended by RA No. 10707, the
accused shall lose the benefit of probation should he seek a review of the modified
decision which already imposes a probationable penalty.
Example
The accused, who was convicted by the Regional Trial Court of a
non-probationable offense of frustrated homicide, but on appeal the Court of Appeals
found him guilty of a probationable offense of attempted homicide. Instead of
applying for probation, the accused filed a petition for review with the Supreme Court
and maintained that he is innocent. Such filing a petition seeking review of the
modified decision is a waiver of his right to apply for probation.
Simply stated, the accused shall lose the benefit of probation should he seek
a review of a modified decision where the appellate court reduces the penalty from a
non-probationable to a probationable level such as filing a motion for
reconsideration. If the motion for reconsideration of such modified decision is denied
by the appellate court, the accused cannot anymore file an application for probation.
Proper Court to Apply for Probation
The trial court that convicted and sentenced the accused has the authority to
grant probation. (Villareal vs. People) However, if the application for probation is
based on the modified decision rendered by the appellate court, the same shall be
filed in the trial court where the judgment of conviction imposing a non-probationable
penalty was rendered, or in the trial court where such case has since been re-raffled.
Period to Apply for Probation
The application for probation must be filed within the period for perfecting an
appeal (Section 4, PD 968) Commitment order issued immediately after
promulgation of judgment of conviction will not deprive the accused of his right to
appeal or apply for probation within the period of 15 days therefrom.
(1)Modified Decision – If the application for probation is based on the modified
decision reducing the penalty to a probationable level rendered by the appellate
court, it must be filed before such decision becomes final (Section 4, PD 968 as
amended by RA No. 10707) From receipt of the modified decision by the Court of
Appeals reducing the penalty to a probationable level, the accused has the right
within 15 days from receipt thereof to file a motion for reconsideration with the Court
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of Appeals or a petition for review with the Supreme Court or application for
probation with the Regional Trial Court that rendered the original decision or where
the case was re-raffled. In a case involving several accused where some have taken
further appeal, the other accused may apply for probation by submitting a written
application and attaching thereto a certified true copy of the judgment of conviction.
Article 100. Civil liability of a person guilty of felony. – Every person criminally
liable for a felony is also civilly liable.
Civil Liability of a Person Guilty of Felony.
Every person criminally liable for a felony is also civilly liable. Civil liability, in
case the felony involves death, covers indemnification for consequential damages
(Article 104) including those suffered by his family or third persons by reason of the
crime. (Article 107)
Acquittal of the accused does not automatically extinguish his civil liability for
the quantum of proof in criminal prosecutions is different from that in the civil.
Acquittal shall bar the civil action arising from the crime where the judgment of
acquittal holds that:
a. The accused did not commit the acts imputed to him; or
b. He was not guilty of criminal or civil negligence.
c. There is a finding in a final judgment in the criminal action that the act or
omission from which the civil liability may arise did not exist (Sec. 2, par.
4, Rule, Revised Rules of Criminal Procedure)
Acquittal will not bar a civil action in the following cases:
a. Where the acquittal is based on the reasonable doubt as only a
preponderance of evidence is required in civil cases;
b. Where the court declared that accused’s liability is not criminal but only civil in
nature;
c. Where the civil liability does not arise from or is not based upon the criminal
act of which the accused was acquitted.
Acquittal of the accused, even if based on a finding that he is not guilty, does
not carry with it the extinction of the civil liability based on quasi-delict. A separate
civil action lies against the offender in a criminal act, whether or not he is criminally
prosecuted and found guilty or acquitted, provided that the offended party is not
allowed to recover damages on both scores. He would then be entitled only to the
bigger award.
In other words, the extinction of civil liability referred to in Rule 111, Section 2
(b) (Rules of Court) refers exclusively to civil liability founded on Article 100. The civil
liability for the same act considered quasi-delict only and not crime is not
extinguished even by a declaration in the criminal case that the criminal act charged
has not happened or has not been committed by the accused.
BAR 2000 – Civil liability: effect of acquittal.
A was a 17-year old working student who was earning his keep as a cigarette
vendor. B was driving a car along busy Espana Street at about 7:00 in the evening.
Beside B was C. the car stopped at an intersection because of the red signal of the
traffic light. While waiting for the green signal, C beckoned A to buy some cigarettes.
A approached the car and handed two sticks of cigarettes to C. While the transaction
was taking place, the traffic light changed to green and the car immediately sped off.
As the car continued to speed towards Quiapo, A clung to the window of the car but
lost his grip and fell down on the pavement. The car did not stop. A suffered serious
injuries which eventually caused his death. C was charged with Robbery with
Homicide. In the end, the Court was not convinced with moral certainty that the guilt
of C has been established beyond reasonable doubt and, thus, acquitted him on the
ground of reasonable doubt. Can the family of the victim still recover civil damages in
view of the acquittal of C? Explain.
Suggested answer
Yes, as against C, A’s family can still recover civil damages despite C’s
acquittal. When the accused in a criminal prosecution is acquitted on the ground that
his guilt has not been proved beyond reasonable doubt, a civil action for damages for
the same act or omission may be instituted. Such action requires only a
preponderance of evidence.
If A’s family can prove the negligence of B by preponderance of evidence, the
civil action for damages against B will prosper based on quasi-delict. Whoever by act
or omission causes damages to another, there being fault or negligence, is obliged to
pay for the damages done. Such fault or negligence, about pre-exisitng contractual
170
relation between the parties, is called a quasi-delict (Art. 2176 NCC). This is entirely
separate and distinct from civil liability arising from negligence under the RPC (Arts.
31, 2176, 2177, NCC).
BAR 2005 : Civil liability: when mandatory: criminal liability
The accused was found guilty of 10 counts of rape for having carnal
knowledge with the same woman. In addition to the penalty of imprisonment, he was
ordered to pay indemnity in the amount of Php50, 000. 00 for each count. On appeal,
the accused questions the award of civil indemnity for each count, considering that
the victim is the same woman. How would you rule on the contention of the
accused? Explain.
Suggested answer
The contention is unmeritorious. Under the law, every person criminally liable
is civilly liable (Article 100, RPC). Since each count charges different felonious acts
and ought to be punished differently, the concommittant civil indemnity ex delicto for
every criminal act should be adjudged. Said civil indemnity is mandatory upon a
finding of the fact of rape; it is distinct from and should not be denominated as moral
damages which are based on different jural foundations. (People vs. Jalosjos, G.R.
No. 132875-76, November 16, 2001).
BAR 2000
Name at least two exceptions to the general rule that in case of acquittal of
the accused in a criminal case, his civil lianbility is likewise extinguished.
Suggested answer
Exceptions to the rule that acquittal from a criminal case extinguishes civil
liability, are:
(1) When the civil action is based on obligations not arising from the act
complained of as a felony;
(2) When acquittal is based on reasonable doubt or acquittal is on the ground
that guilt has not been proven beyond reasonable doubt. (Art. 29, New Civil Code).
(3) Acquittal due to an exempting circumstance, like insanity;
 (4) Where the court states in its judgment that the case merely involves a civil
obligations;
(5) Where there was a proper reservation for the filing of a separate civil
action;
(6) In cases of independent civil actions provided for in Arts. 31, 32, 33 and
34 of the NCC.;
(7) When the judgment of acquittal includes a declaration that the fact from
which the civil liability might arise did not exist (Sapiera vs. CA); and
(8) Where the civil liability is not derived or based on the criminal act of which
the accused is acquitted (Sapiera vs CA, 314 SCRA 370).
The civil case for damages is not barred since the cause of action is based
on quasi-delict. Even if the damages are sought on the basis of crime and not
quasi-delict, the acquittal of the driver will not bar recovery of damages because the
acquittal was based not on a finding that he was not guilty but only on reasonable
doubt. (Guaring, Jr vs. CA, G.R. No. 108395, March 7, 1997)
1. What is included in civil liability:
a. Restitution or
b. Reparation of damage caused plus
c. Indemnification for consequential damages
Restitution is the return of thing itself whenever possible. Otherwise,
reparation of the thing should be made. There are only two pecuniary liabilities –
Restitution or Reparation and Indemnification. Reparation shall only be made if
restitution is not possible. This is in accord with Article 38, which states that the
pecuniary liabilities owing to the offended party are reparation of the damaged
caused and indemnification for consequential damages.
Indemnification for consequential damages shall include not only those
caused the injured party, but also those suffered by his family or by a 3rd person by
171
reason of the crime. The Civil Code enumerates those cases when 3rd persons can
recover 3rd damages by reason of the crime. (Articles 2206, 2219)
Article 101. Rules regarding civil liability in certain cases. - The exemption
from criminal liability established in subdivisions 1, 2, 3, 5 and 6 of Article 12
and in subdivision 4 of Article 11 of this Code does not include exemption from
civil liability, which shall be enforced subject to the following rules:
First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability
for acts committed by an imbecile or insane person, and by a person under
nine years of age, or by one over nine but under fifteen years of age, who has
acted without discernment, shall devolve upon those having such person
under their legal authority or control, unless it appears that there was no fault
or negligence on their part.
Should there be no person having such insane, imbecile or minor under
his authority, legal guardianship or control, or if such person be insolvent, said
insane, imbecile, or minor shall respond with their own property, excepting
property exempt from execution, in accordance with the civil law.
Second. In cases falling within subdivision 4 of Article 11, the persons
for whose benefit the harm has been prevented shall be civilly liable in
proportion to the benefit which they may have received.
The courts shall determine, in sound discretion, the proportionate
amount for which each one shall be liable.
When the respective shares cannot be equitably determined, even
approximately, or when the liability also attaches to the Government, or to the
majority of the inhabitants of the town, and, in all events, whenever the
damages have been caused with the consent of the authorities or their agents,
indemnification shall be made in the manner prescribed by special laws or
regulations.
Third. In cases falling within subdivisions 5 and 6 of Article 12, the
persons using violence or causing the fears shall be primarily liable and
secondarily, or, if there be no such persons, those doing the act shall be liable,
saving always to the latter that part of their property exempt from execution.
Civil liability in particular cases (Article 101 RPC)
By insane, imbecile, under 15 years of age, over 15 years of age but under
18 years of age:
It devolves upon the person who has control or authority upon them, unless
he is without fault or negligence.
If there be no such person, or if he is insolvent, the property of the minor or
insane shall answer for the liability except for those exempt from execution.
[Since R.A. 9344 exempts over 15 and under 18 who acted without
discernment from criminal liability, it is submitted that the above applies to them]
Person who avoided a greater evil or injury (Article 11, no. 4) – the one who
benefited from such avoidance is liable. If there were several persons benefited, the
court shall determine their proportionate share.
Example
Where a truck of a gasoline company while delivering gasoline at a gas
station caught fire and to prevent the burning of the station, the truck was driven in
the middle of the street and abandoned but it crashed and damaged the house of the
plaintiff, it was held that the owners of the properties saved from fire were liable to
her (Tan vs. standard Vacuum Oil Co., 91 Phil. 872)
In case of irresistible force or uncontrollable fear – those who employed the
force or caused the fear shall be primarily liable; secondary liability is on the actor.
When the commission of a crime results in death, the civil obligations arising
therefrom are governed by penal laws, subject to the provisions of Article 2177, the
pertinent provisions of Chapter 2, Preliminary Title on Human Relations and title
XVIII of Book IV, regulating damages. (Article 1161, Civil Code) Thus:
172
As indemnity for the death of the victim of the offense – P75,000, without the
need of any evidence or proof of damages, and even though there may have been
mitigating circumstances attending the commission of the crime.
Actual damages for hospitalization/funeral expenses which should be proved
by receipts.
As indemnity for loss of earning capacity of the deceased – an amount to be
fixed according to the circumstances of the deceased related to his actual income at
the time of death and his probable life expectancy, the said indemnity to be assessed
and awarded by the court as a matter of duty, unless the deceased had no earning
capacity at said time on account of permanent disability not caused by the accused.
The law specifies “capacity” and thus, even if the deceased is not actually
employed, as long as he is not disabled and capacitated to work, he has earning
capacity and is entitled to his specie of damage.
If the deceased was obliged to give support, under Article 291, Civil Code,
the recipient who is not an heir, may demand support from the accused for not more
than 5 years, the exact duration to be fixed by the court.
As moral damages for mental anguish – an amount to be fixed by the court.
This may be recovered even by the illegitimate descendants and ascendants of the
deceased.
As exemplary damages, when the crime is attended by 1 or more aggravating
circumstances – an amount to be fixed in the discretion of the court, the same to be
considered separate from fines.
Relative to the civil aspect of the case, an aggravating circumstance, whether
ordinary or qualifying, should entitle the offended party to an award of exemplary
damages within the unbridled meaning of Article 2230 of the Civil Code.
As attorney’s fees and expenses off litigation – the actual amount thereof,
(but only when a separate civil action liability has been filed or when exemplary
damages are rewarded).
The recovery of attorney’s fees in the concept of actual or compensatory
damage is allowed under circumstances provided for in Article 2208 of the Civil
Code, one of which is when the court deems it just and equitable that attorney’s fees
and expenses of litigation should be recovered. (People vs. Bergante, G.R. Nos.
120369-70, February 27, 1998)
Jurisprudential declarations on damages:
The indemnities for loss of earning capacity of the deceased and for moral
damages are recoverable separately from and in addition to the fixed sum of
P50,000 (now P75, 000. 00) corresponding to the indemnity for the sole fact of
death, and that these damages may, however, be respectively increased or lessened
according to the mitigating or aggravating circumstances. (People vs. Teehankee, Jr.,
G.R. Nos. 111206-08, October 6, 1995)
Indictments for rape continue unabated and the legislative response has
been in the form of higher penalties. On like considerations, the jurisprudential path
on the civil aspect should also follow the same direction. Hence, starting with the
case at bar, if the crime of rape is committed or effectively qualified by any of the
circumstances under the present amended law, the indemnity for the victim shall be
in the increased amount of not less than P75,000. This is not only a reaction to the
apathetic societal perception of the penal law and the financial fluctuations over time,
but also an expression of the displeasure of the court over the incidence of heinous
crimes against chastity. (People vs. Victor, G.R. No. 127903, July 9, 1998)
Under Article 2229 of the Civil Code, in addition to the award of moral
damages, exemplary or corrective damages may be adjudged in order to deter the
commission of similar acts in the future. The award for exemplary damages is
designed to permit the courts to mould behaviour that has socially deleterious
consequences. Its imposition is required by public policy to suppress the wanton acts
of an offender.
Article 345 provides that persons guilty of rape, seduction or abduction, shall
be sentenced to: (a) indemnify the offended woman; (b) acknowledge the offspring,
unless the law should prevent him from doing so; and (c) in every case to support the
offspring. Article 283 of the Civil Code obliges the father to recognize the child as his
natural child in cases of rape, abduction, and seduction when the period of the
offense coincides, more or less, with the period of conception. However,
173
acknowledgement is disallowed if the offender is a married man, with only support for
the offspring as part of the sentence.
Compulsory acknowledgement, as well as the support of the child is proper
there being no legal impediment in doing so, as it appears that complainant and
appellant are both single. The crime of rape committed by the accused carries with it,
among others, the obligations to acknowledge the offspring if the character of its
origin does not prevent it and support the same. (People vs. Luchico, 49 Phil. 689;
People vs. Namayan, G.R. No. 106539, July 18, 1995)
BAR 1982
“A,” “B” and “C” took turns in raping a woman “X.” If all of them were finally
convicted, would it be correct for the judge to order each of them to acknowledge
and support the offspring of “X”? Reason
Suggested
It would not be correct for the judge to order each of the accused to
acknowledge the offspring of “X” because it is impossible to determine the paternity
thereof. (People v. de Leon et. al., L – 2094, April 1950). It would be correct,
however, for the court to order each of them to support the offspring as anyone of
them may be the father and that each and everyone of them is directly responsible
that an unwilling mother may give birth to an undesired offspring as each and
everyone of them contributed to and cooperated in giving birth to the child. People v.
Veto, et. al., 80 Phil. 438).
Article 102. Subsidiary civil liability of innkeepers, tavernkeepers and
proprietors of establishments. - In default of the persons criminally liable,
innkeepers, tavernkeepers, and any other persons or corporations shall be
civilly liable for crimes committed in their establishments, in all cases where a
violation of municipal ordinances or some general or special police regulation
shall have been committed by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods taken
by robbery or theft within their houses from guests lodging therein, or for the
payment of the value thereof, provided that such guests shall have notified in
advance the innkeeper himself, or the person representing him, of the deposit
of such goods within the inn; and shall furthermore have followed the
directions which such innkeeper or his representative may have given them
with respect to the care and vigilance over such goods. No liability shall attach
in case of robbery with violence against or intimidation of persons unless
committed by the innkeeper's employees.
Subsidiary civil liability of innkeepers, tavernkeepers and proprietors
establishments.
Under this Article, it is the primary liability of the person who personally
caused the damage to pay the damage caused. It is only in the absence of this
person that the innkeepers, tavern-keepers and proprietors of establishments that
are subsidiarily liable for damages caused.
The elements are:
1. The person who actually caused the damage is absent or insolvent;
2. The innkeeper, tavern-keeper, or proprietor or his employee committed
violation of a municipal ordinance or some general or special police
regulation;
3. A crime was committed in such inn or establishment.
The innkeepers, tavern-keepers or proprietors are not subsidiarily liable if the
loss of property of the guests is due to robbery with violence against or intimidation
of persons unless committed by the employees of the former.
For the innkeepers, tavern-keepers or proprietors to be subsidiarily liable for
the restitution of the goods, or for the payment of the value thereof, owned by the
guest, the loss of the goods must be due to the crimes of robbery (with use of force
upon things) or theft.
Article 103. Subsidiary civil liability of other persons. – The subsidiary civil
liability established in the next preceding article shall also apply to employers,
teachers, persons, and corporations engaged in any kind of industry for
felonies committed by their servants, pupils, workmen, apprentices, or
employees in the discharge of their duties.
What is the rule on subsidiary civil liability of other persons?
The subsidiary civil liability established in the next preceding article shall also
apply to employers, teachers, persons, and corporations engaged in any kind of
industry for felonies committed by their servants, pupils, workmen, apprentices, or
employees in the discharge of their duties.
of
Employers, teachers, persons, and corporations, engaged in any kind of
industry.
The basis of subsidiary liability is the employer-employee relationship. The
employer should be engaged in any kind of industry which means an undertaking for
profit where labor and capital are utilized.
A separate action against the employer for civil liability is not necessary
because the latter’s liability for the employee’s crime is absolute as long as the
following conditions are present:
a. The employer-employee relationship is established;
b. The crime was committed by the accused during the performance of his
assigned task;
c. The employer is engaged in an industry;
d. The accused was convicted and civil liability goes with the conviction. (If
the employee died and hence could not be sued, the action must be
pursued under the Civil Code);
e. Judgment was final and executory but the writ of execution was returned
unsatisfied because the accused has no property. The offended should
then file a motion for the issuance of a subsidiary writ of execution with
notice to the employer so that the latter may be heard thereon.
If these elements are present, a motion for subsidiary writ of execution shall
be granted despite the decision convicting the employee made no mention of the
subsidiary liability of his employer and he was not impleaded in the case.
In the case of Pangonorom vs.People, G.R. No. 143380, April 11, 2005, the
Supreme Court ruled that the provisions of the Revised Penal Code on subsidiary
liability are deemed written into the judgments in cases to which they are applicable.
174
Thus, in the dispositive portion of its decision, the trial court need not expressly
pronounce the subsidiary liability of the employer.
The enforcement of subsidiary liability in the same criminal proceedings is
sanctioned on the thesis that it really is a part of, and merely an incident in, the
execution process of the judgment. But execution against the employer must not
issue as a matter of course. The court must determine and resolve in a hearing set
for the purpose the legal applicability and propriety of the employer’s liability. This is
mandatory even when it appears prima facie that execution against the employee
cannot be satisfied. The court must convince itself that the convicted employee is in
truth in the employ of the employer; that the latter is engaged in an industry of some
kind; that the employee has committed the crime to which civil liability attaches while
in the performance of his duty as such; and that execution against the employee is
unsuccessful by reason of insolvency. (Yonaha vs. CA, G.R. No. 112346, March 29,
1996)
It is a basic postulate in criminal law that the criminal act of one person
cannot be charged to another without a showing that he participated directly or
constructively in the act or that there was conspiracy. In cases of employer-employee
relations, an employer is not criminally liable for the acts of his employee or agent
unless he, in some ways, participates in, counsels or abets his employee’s acts or
omissions. In such case, the employer himself becomes a participant to the criminal
act of his employee. His liability under the circumstances in direct and criminal.
However, under Article 102, in relation to Article 103, the employer’s liability for the
criminal negligence of his employee is subsidiary in nature and is limited only to civil
indemnity. (Fernando vs. Ocampo, 37 SCRA 311) Thus, an employer is party to a
criminal case for the criminal negligence of his employee by reason of his subsidiary
civil liability under the law. (Yusay vs. Adil, 164 SCRA 49)
Court, Guy was sentenced to a straight penalty of three months of arresto mayor and
ordered to indemnify Demy in the sum of P5, 000. 00 and to pay P1, 000. 00 as
attorney’s fees.
Upon the finality of the decision, a writ of execution was served upon Guy, but
was returned unsatisfied due to his insolvency. Demy moved for a subsidiary writ of
execution against Max. The latter opposed the motion on the ground that the
decision made no mention of his subsidiary liability and that he was not impleaded in
the case. How will you resolve the motion?
Suggested answer:
The motion is to be granted. Max as an employer of Guy and engaged in an
industry (transportation business) where said employee is utilized, is subsidiarily
civilly liable under Article 103 of the Revised Penal Code. Even though the decision
made no mention of his subsidiary liability, the law violated (Revised Penal Code)
itself mandates for such liability and Max is deemed to know it because ignorance of
the law is never excused. And since his liability is not primary but only subsidiary in
case his employee cannot pay, he need not be impleaded in the criminal case. It
suffices that he was duly notified of the motion for issuance of a subsidiary writ of
execution and thus given the opportunity to be heard.
Chapter Two
WHAT CIVIL LIABILITY INCLUDES
Article 104. What is included in civil liability. - The civil liability established in
Articles 100, 101, 102, and 103 of this Code includes:
1. Restitution;

2. Reparation of the damage caused;

BAR 1998 -- CIVIL LIABILITY; SUBSIDIARY; EMPLOYERS
3. Indemnification for consequential damages.
Guy, while driving a passenger jeepney owned and operated by Max,
bumped Demy, a pedestrian crossing the street. Demy sustained injuries which What is included in civil liability?
required medical attendance for three months. Guy was charged with reckless
imprudence resulting to serious physical injuries. Convicted by the Metropolitan Trial

175
 The civil liability established in Articles 100, 101, 102, and 103 of this Code
includes:
1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.
Reparation of the damage caused cannot be ordered if the thing stolen is
proved to be in possession of the accused. Under this Article, restitution must be
ordered before reparation of the damage caused. It is only when restitution is not
possible that reparation of the damage caused may be resorted to.
Example 1
A was prosecuted for, and convicted of, theft of pieces of jewelry. In the
judgment of conviction, A was ordered to pay the value of the pieces of jewelry he
had stolen. It was, however, prove that the subject property has been, and are still, in
possession of A. In fact, this was admitted by A himself.
While the conviction of A was proper, however, the order for him to pay the
value of the pieces of jewelry is erroneous. It is only when restitution is not possible,
i.e., A cannot return them, that reparation should be made.
Article 105. Restitution; How made. - The restitution of the thing itself must be
made whenever possible, with allowance for any deterioration, or diminution of
value as determined by the court.
The thing itself shall be restored, even though it be found in the
possession of a third person who has acquired it by lawful means, saving to
the latter his action against the proper person who may be liable to them.
This provision is not applicable in cases in which the thing has been
acquired by the third person in the manner and under the requirements which,
by law, bar an action for its recovery.
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Restitution How Made
Restitution is the return of thing itself whenever possible. Otherwise,
reparation of the thing should be made. There are only two pecuniary liabilities –
restitution or reparation and indeminification. Reparation shall only be made if
restitution is not possible.
Restitution may be made although the thing stolen is in the possession of a
third person who had acquired it in a legal manner, reserving, however, his action of
recovery thereof against the proper person. Possession of personal property
acquired in good faith is considered as a title thereto, but the person who has lost the
personal property, or who was illegally deprived thereof may recover it from any
person who possesses it.
In other words, the thing itself is to be restored, whenever possible with
allowance for deterioration or diminution of value, even if found in the possession of
a third person who acquired it legally, although the latter can file an action against
the person who may be liable to him except if the thing has been acquired by the
third person in the manner provided by law which bars an action for its recovery.
Example:
The jewelry misappropriated by a swindler which still exist and has not
disappeared must be restored to the owner without any obligation to pay the loan
even if the pawnshop acquired it in good faith or by legal means (People v. Quiamco)
If the accused is acquitted, he canot be ordered to return the property or
amount received as that would be inconsistent (People vs. Pantig), except if it proved
that the property belonged to the offended party and was in his possession when
stolen from him, and the identity of the offender is not proved, in which case the
acquitted person in whose possession the property was found may be ordered by the
court to return it to the owner. (People vs. Alejano.).
Article 106. Reparation; How made. - The court shall determine the amount of
damage, taking into consideration the price of the thing, whenever possible,
and its special sentimental value to the injured party, and reparation shall be
made accordingly.
How Reparation Made
Reparation will be ordered by the court if restitution is not possible. Thus,
when the stolen property cannot be returned because it was sold by them to an
unknown person, he will be required by the court, if found guilty, to pay the actual
price of the thing plus its sentimental value to its owner.
In rape case, the accused was ordered to pay the value of the woman’s torn
garments. This is reparation which is distinct from the indemnity.
Payment by the insurance company does not relieve the offender of his
obligation to repair the damage caused.
The accused contends that inasmuch as the owner of the car damaged was
already paid his damages by the insurance company, he should not be required to
pay such damages caused by him.
That payment by the insurance company was not made on behalf of the
accused, but was made pursuant to its contract with the owner of the car. But the
insurance company is subrogated to the right of the offended party as regards the
damages.
If there is no evidence as to the value of the thing unrecovered, there can be
no reparation (People vs. Dalena).
Article 107. Indemnification; What is included. - Indemnification for
consequential damages shall include not only those caused the injured party,
but also those suffered by his family or by a third person by reason of the
crime.
What are included in indemnification for consequential damages?
Under this article, indemnification for consequential damages shall include
not only those caused the injured party, but also those suffered by his family or by a
third person by reason of the crime.
Damages recoverable in case of death:
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1. In recent case, the Supreme Court has raised it to P75, 000. 00;
2. For the loss of the earning capacity of the deceased;
3. Support in favour of a person to whom the deceased was obliged to give,
such person not being an heir of the deceased;
4. Moral damages for mental anguish in favour of spouses, descendants and
ascendants of the deceased;
5. Exemplary damages in certain cases;
6. Attorney’s fees and expenses of litigation, actual amounts thereof, but only
when a separate civil action has been filed, or when exemplary damages are
awarded; and
7. Interests in proper cases.
BAR 2006 -- Damages – Homicide – Temperate damages
In a crime of homicide, the prosecution failed to present any receipt to
substantiate the heir’s claim for an award of Actual Damages, such as expenses for
the wake and burial expenses. What kind of damages may the trial court award to
them and how much?
Suggested answer
The court may award temperate damages in the amount of P25, 000 (now
P75, 000.00). Under the jurisprudence, temeperate damages is awarded in homicide
when no sufficient proof of actual damages is offered or if the actual damages proven
is less than P25, 000.00 (People vs. Salona, G.R. No. 151251, May 19, 2004)
Article 108. Obligation to make restoration, reparation for damages, or
indemnification for consequential damages and actions to demand the same;
Upon whom it devolves. - The obligation to make restoration or reparation for
damages and indemnification for consequential damages devolves upon the
heirs of the person liable.
The action to demand restoration, reparation, and indemnification
likewise descends to the heirs of the person injured.
Under this Article, civil liability survives the offender or person liable because
it provides: “the obligation to make restoration or reparation for damages and
indemnification for consequential damages devolves upon the heirs of the person
liable.”
The heirs of the person liable have no obligation if restoration is not possible
and the deceased left no property.
Civil liability is possible only when the offender dies after final judgment.
If the obligation is liquidated, that is, if the offender before his death was
condemned by final judgment to make restitution, reparation, or indemnfication, the
offended party make effective his claim by following the procedure provided for in
Rule 86 of the Rules of Court, that is, by filing a copy of the judgment of conviction
against the deceased with the court taking cognizance of the estate or intestate
proceedings.
If the death of the offender took place before any final judgment of conviction
was rendered against him, the action for restitution, reparation, or indemnification
must necessary be dismissed, in accordance with the provisions of Articlr 89, par.1,
of the Code.
Article 109. Share of each person civilly liable. - If there are two or more
persons civilly liable for a felony, the courts shall determine the amount for
which each must respond.
The entire amount of the civil indemnity, together with the moral and actual
damages, should be apportioned among the persons who cooperated in the
commission of the crime according to the degree of their liability, respective
responsibilities and actual participation in the criminal act.
Article 110. Several and subsidiary liability of principals, accomplices and
accessories of a felony; Preference in payment. - Notwithstanding the
provisions of the next preceding article, the principals, accomplices, and
accessories, each within their respective class, shall be liable severally (in
solidum) among themselves for their quotas, and subsidiaries for those of the
other persons liable.
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The subsidiary liability shall be enforced, first against the property of
the principals; next, against that of the accomplices, and, lastly, against that of
the accessories.
Whenever the liability in solidum or the subsidiary liability has been
enforced, the person by whom payment has been made shall have a right of
action against the others for the amount of their respective shares.
Under this Code, the principals, accomplices or accessories are persons
responsible for a crime and aside from their liability for the crime committed, they are
also civilly liable for restitution, reparation of the damage caused and indemnification
for the consequential damages, not only to the offended party but also to the family
of the offended party or to a third person because of the crime.
The principals are primarily liable for their own part of the indemnity and
subsidiarily liable only for the portion adjudged against their accomplices in case of
the latter’s insolvency, while the accomplices are solidarily liable for the portion
adjudged to them and subsidiarily liable for the portion of their principal in case of
insolvency (Lumiguis v. People, 19 SCRA 842).
Simply put, the subsidiary liability is enforced: (a) first, against property of the
principals; and (b) second, against that of the accomplice; and (c) third, against that
of the accessories.
Article 111. Obligation to make restitution in certain cases. - Any person who
has participated gratuitously in the proceeds of a felony shall be bound to
make restitution in an amount equivalent to the extent of such participation.
The person who participated gratitiously in the proceeds of a felony referred
to in this article is not criminally liable.
If the person who participated gratitiously in the proceeds of the felony knew
that the property came from an illegal spource, he is an accessory and he is not only
civilly liable, but also criminally liable.
Example:
 A stole a ring valued at P10, 000. 00 which was given as gift to B. B sold the
ring for P1, 000. 00. The obligation of B will be P1, 000. 00 which is the extent of his
gratuitous participation. The fortune of this person who has gratuitously participated
in the commission of the crime must be augmented.
Chapter Three
EXTINCTION AND SURVIVAL OF CIVIL LIABILITY
Article 112. Extinction of civil liability. - Civil liability established in Articles 100,
101, 102, and 103 of this Code shall be extinguished in the same manner as
obligations, in accordance with the provisions of the Civil Law.
References:
1. The Revised Penal Code by Luis B. Reyes
2. Compact Reviewer in Criminal Law by Atty. Leonor D. Boado
3. Criminal Law Reviewer Vol. 1 by Judge Marlo B. Campanilla
4. The Revised Penal Code – Explained and Exemplified by Judge Roger B.
Patricio
5. Fundamentals of Criminal Law Review by Antonio L. Gregorio
6. Answer to Bar Examination Questions in Criminal Law by UP Law Complex

The civil liability ex-delicto of the offender may be extinguished by any of the
following modes of extinguishment provided for under Article 1161 of the New Civil
Code:

1. Payment or fulfilment of the obligation;

2. Loss of the thing due;
3. Remission of the debt or obligation;
4. Merger of the rights of the creditor and debtor;
5. Compensation; and
6. Novation.

Article 113. Obligation to satisfy civil liability. - Except in case of extinction of

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

Even if the offender was extended amnesty, pardon, commutation of

sentence or any other reason freeing him from serving his sentence, he shall remain
civilly liable. Hence, even if the offender pleaded guilty and manifested that he was
availing himself of the probation law, the Court has still the duty to set the case for
hearing to receive evidence on his civil liability.

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