lCRIMINAL LAW CONCEPTS AND JURISPRUDENCE

Chapter One
PRELIMINARY CONCEPTS

Definition and Nature

1) Criminal law is that branch or division of public law which defines crimes,
treats of their nature, and provides for their punishment. Penal laws are those
acts of the legislature which prohibit certain acts and establish penalties for
their violations,1 or those define crimes, treat of their nature and provide for
their punishment.2

2) Crime is a general term that refers to acts or omissions punishable by

criminal law. An act or omission is punishable only if there is a law prohibiting
the performance of the act or a law that commands a person to do an act but
he failed to perform. 

3) A statute is penal when it imposes punishment for an offense committed

against the state which, under the Constitution, the Executive has the power
to pardon. In common use, however, this sense has been enlarged to include
within the term "penal statutes" all status which command or prohibit certain
acts, and establish penalties for their violation, and even those which, without
expressly prohibiting certain acts, impose a penalty upon their commission. 3 

4) The law is PENAL if the following are present: (a) The law must define the
criminal act; (b) It must prescribe a penalty; and (c) It must be an act of the
legislature.

Theories of Criminal Law

1) Classical or Juristic Theory. The classical theory posits that a human person
is essentially a moral creature with an absolute free will to choose between
good and evil. It asserts that one should only be adjudged or held
accountable for wrongful acts so long as free will appears unimpaired. The
basic postulate of the classical penal system is that humans are rational and
calculating beings who guide their actions with reference to the principles of
pleasure and pain. They refrain from criminal acts if threatened with
punishment sufficient to cancel the hope of possible gain or advantage in
1
Lorenzo v. Posadas, 64 Phil. 353.
2
Hernandez v. Albano, 19 SCRA 95.
3
59 C.J., p. 1110.
 committing the crime. Here, criminal liability is thus based on the free will and
moral blame of the actor. The identity of mens rea defined as a guilty mind, a
guilty or wrongful purpose or criminal intent is the predominant consideration. 4
Under the classical theory on which our 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 (delito doloso), 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. In the absence of evidence to the contrary, the law
presumes that every person is of sound mind and that all acts are voluntary.
The moral and legal presumption under our law is that freedom and
intelligence constitute the normal condition of a person. This presumption,
however, may be overthrown by other factors; and one of these is insanity
which exempts the actor from criminal liability.5

2) Positivist or Realistic Theory. This theory posits the view that man is subdued
occasionally by a strange and morbid phenomenon which conditions him to
do wrong in spite of or contrary to his volition. It adheres to the belief that man
is inherently good but his acts or behavior may be conditioned by his
environment. Because of his upbringing, social environment and associations
he may become socially ill or an offender. This legal philosophy provides that
criminal laws must be viewed as means to reform and that the penalties must
be corrective or curative. There is great respect for the human element
because the offender is regarded as socially sick who needs treatment, not
punishment. Crimes are regarded as social phenomena which constrain a
person to do wrong although not of his own volition. Unlike the classical
theory which emphasizes on the offense itself, positivistic theory emphasizes
on the offender and not on the offense. 6

3) Eclectic or Mixed Philosophy. This theory combines the good features of

classical and positivist theories. Many authors believe that our Revised Penal
Code adheres to this theory. Although the Code is mainly on classical theory,
there are some articles that pertain to positivist theory like provisions on
impossible crime and the mitigating circumstances on voluntary surrender
and plea of guilty under Article 13 (mitigating circumstances) of the Code. 7

Power to Define and Punish Criminal Acts

4
Villareal v. People, G.R. No. 151258, February 1, 2012.
5
People v. Estrada, 389 Phil. 216.
6
Cited in Samahan ng mga Progresibong Kabataan, et al. v. Quezon City, et al., G.R. No.
225422, August 8, 2018.
7
Gregorio, Fundamentals of Criminal Law, page s 12-13, 1997 ed.
1) The Philippines does not recognize common law crimes. The act becomes
criminal only if there is a law specifically penalizing it. This is in consonance
with the Latin maxim nullum crimen nulla poena sine lege which literally
means there is no crime if there is no penal law punishing it. 8 These
concepts signify that courts must not bring cases within the provision
of law that are not clearly embraced by it. An act must be pronounced
criminal clearly by the statute prior to its commission. The terms of the
statute must clearly encompass the act committed by an accused for
the latter to be held liable under the provision. 9 Stated otherwise, there
must a law which punishes a certain act before one can be held criminally
held liable.

2) The power to define and punish crimes inherently belongs to legislature. It is

inherent in the sovereign power of the state to maintain social order as an
aspect of police power. The legislature may forbid and penalize acts formerly
considered innocent and lawful provided that no constitutional rights have
been abridged.10

3) Police power refers to the power vested by the Constitution in the legislature
to make, ordain, and establish all manner of wholesome and reasonable laws,
statutes and ordinances, either with penalties or without, not repugnant to the
Constitution, as they shall judge to be for the good and welfare of the
commonwealth, and for the subjects of the same. The power is plenary and
its scope is vast and pervasive, reaching and justifying measures for public
health, public safety, public morals, and the general welfare. 11

4) As an inherent attribute of sovereignty, the authority of the State to define and

punish crimes and to lay down the rules of criminal procedure is pursuant to
its stately police power. States, as a part of their police power, have a large
measure of discretion in creating and defining criminal offenses. 12

5) In upholding the constitutionality of the Anti-Bouncing Check Law (BP 22), the
Court stated it is within the prerogative of the lawmaking body to proscribe
certain acts deemed pernicious and inimical to public welfare. Acts mala in se
are not the only acts which the law can punish. An act may not be considered
by society as inherently wrong, hence, not malum in se but because of the
harm that it inflicts on the community, it can be outlawed and criminally

8
Evangelista vs. People, G.R. Nos. 108135-36, August 14, 2000.
9
People v. PO1 Sullano, G.R. No. 228373, March 12, 2018 citing Causing v. COMELEC, et al.,
742 Phil. 539 (2014).
10
People v. Siton, et al., G.R. No. 169364, Sept. 18, 2009.
11
Bernas, The 1987 Constitution of the  Philippines, A Commentary, pp. 95-98 (1996).
12
People v. Santiago, 43 Phil. 120.
 punished as malum prohibitum. The state can do this in the exercise of its
police power.13

Limitations of Congress to Enact Penal Laws

1) Due process and equal protection clause.

a) Constitutional basis. Sections 1 and 14 (1), Article III, of the 1987

Constitution state that “No person shall be deprived of life, liberty and
property without due process of law nor shall any person be denied the
equal protection of the laws” and “(n)o person shall be held to answer for a
criminal offense without due process of law.”
b) Constitutional guaranty. The guaranty of due process of law is a
constitutional safeguard against any arbitrariness on the part of the
Government, whether committed by the Legislature, the Executive, or the
Judiciary. It is a protection essential to every inhabitant of the country. If
the law itself unreasonably deprives a person of his life, liberty, or
property, he is denied the protection of due process. If the enjoyment of
his rights is conditioned on an unreasonable requirement, due process is
likewise violated. Whatsoever be the source of such rights, be it the
Constitution itself or merely a statute, its unjustified withholding would also
be a violation of due process. Any government act that militates against
the ordinary norms of justice or fair play is considered an infraction of the
great guaranty of due process; and this is true whether the denial involves
violation merely of the procedure prescribed by the law or affects the very
validity of the law itself.14

c) Classification of due process. This clause has been interpreted as

imposing two separate limits on government, usually called "procedural
due process" and "substantive due process." Procedural due process
refers to the procedures that the government must follow before it
deprives a person of life, liberty, or property. Classic procedural due
process issues are concerned with that kind of notice and what form of
hearing the government must provide when it takes a particular action.
Substantive due process, on the other hand, asks whether the
government has an adequate reason for taking away a person’s life,
liberty, or property. In other words, substantive due process looks to
whether there is sufficient justification for the government’s action. 15

d) Void-for-vagueness doctrine. In exercising its power to declare what acts

constitute a crime, the legislature must inform the citizen with reasonable
13
Lozano v. Martinez (and allied cases), G.R. No. L-63419, December 18, 1986.
14
Legaspi v. City of Cebu, G.R. No. 159110, December 13, 2013.
15
City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005.
 precision what acts it intends to prohibit so that he may have a certain
understandable rule of conduct and know what acts it is his duty to avoid. 16
This requirement has come to be known as the void-for-vagueness
doctrine which states that a statute which either forbids or requires the
doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application, violates
the first essential of due process of law. 17

e) Test in determining vagueness of a statute. A statute establishing a

criminal offense must define the offense with sufficient definiteness that
persons of ordinary intelligence can understand what conduct is prohibited
by the statute. A statute or act may be said to be vague when it lacks
comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ in its application. In such
instance, the statute is repugnant to the Constitution in two (2) respects - it
violates due process for failure to accord persons, especially the parties
targeted by it, fair notice of what conduct to avoid; and, it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes
an arbitrary flexing of the Government muscle. 18 The test in determining
whether a criminal statute is void for uncertainty is whether the language
conveys a sufficiently definite warning as to the proscribed conduct when
measured by common understanding and practice. 19 There is nothing
vague about a penal law that adequately answers the basic query "What is
the violation?" Anything beyond -- the hows and the whys -- are
evidentiary matters that the law itself cannot possibly disclose, in view of
the uniqueness of every case.20

f) Violation of due process, illustration. The constitutionality of Executive

Order No. 626-A which authorizes the confiscation and forfeiture of any
carabao or carabeef from one province to another was questioned. The
measure is an invalid exercise of the police power if the method employed
is not reasonably necessary to the purpose of the law and, worse, is
unduly oppressive. Due process is violated when the owner of the
property confiscated is denied the right to be heard in his defense and is
immediately condemned and punished. The conferment on the
administrative authorities of the power to adjudge the guilt of the supposed
offender is a clear encroachment on judicial functions and militates against
the doctrine of separation of powers. 21
16
Musser v. Utah, 333 U.S. 95.
17
Estrada v. Sandiganbayan, G.R. No. 148560, Nov. 19, 2001.
18
People v. Nazario, 165 SCRA 186.
19
Romualdez v. Sandiganbayan, G.R. No. 152259, July 29, 2004.
20
Dans v. People, 349 Phil. 434 (1998).
21
Ynot v. IAC, supra.
 g) Publication of the law is part of due process. The publication of
presidential issuances "of a public nature" or "of general applicability" is a
requirement of due process. It is a rule of law that before a person may be
bound by law, he must first be officially and specifically informed of its
contents. Publication in the Official Gazette is necessary in those cases
where the legislation itself does not provide for its effectivity date-for then
the date of publication is material for determining its date of effectivity,
which is the fifteenth day following its publication-but not when the law
itself provides for the date when it goes into effect. This is to give the
general public adequate notice of the various laws which are to regulate
their actions and conduct as citizens. Without such notice and publication,
there would be no basis for the application of the maxim "ignorantia legis
non excusat." It would be the height of injustice to punish or otherwise
burden a citizen for the transgression of a law of which he had no notice
whatsoever, not even a constructive one. 22

h) The requirement of due process is indispensable. The minimum

requirements of due process are notice and hearing which, generally
speaking, may not be dispensed with because they are intended as a
safeguard against official arbitrariness. Every person, faced by the
awesome power of the State, is entitled to "the law of the land," which as
"the law which hears before it condemns, which proceeds upon inquiry
and renders judgment only after trial.23

i) Exceptions to the rule. Notice and hearing are the essential requirements
of procedural due process. However, there are many instances under our
laws in which the absence of one or both of such requirements is not
necessarily a denial or deprivation of due process. Among the instances
are the cancellation of the passport of a person being sought for the
commission of a crime, the preventive suspension of a civil servant facing
administrative charges, the distraint of properties to answer for tax
delinquencies, the padlocking of restaurants found to be unsanitary or of
theaters showing obscene movies, and the abatement of nuisance per se,
and the arrest of a person in flagrante delicto.24

j) A local ordinance authorizing clamping of tire falls as exception. The

clamping of the petitioners’ vehicles pursuant to ordinance (and of the
vehicles of others similarly situated) is valid and falls as one of the
established exceptions. The immobilization of illegally parked vehicles by
clamping the tires was necessary because the transgressors were not
22
Taṅada v. Tuvera, G.R. No. L-63915, April 24, 1985.
23
Ynot v. IAC, et al., G.R. No. 74457, March 20, 1987.
24
Legazpi v. City of Cebu, supra.
 around at the time of apprehension. Under such circumstance, notice and
hearing would be superfluous. Nor should the lack of a trial-type hearing
prior to the clamping constitute a breach of procedural due process,
forgiving the transgressors the chance to reverse the apprehensions
through a timely protest could equally satisfy the need for a hearing. In
other words, the prior intervention of a court of law was not indispensable
to ensure a compliance with the guaranty of due process. 25

2) Non-imposition of cruel and unusual punishment or excessive fines.

a) Constitutional basis. The constitutional proscription on cruel and unusual

punishment or excessive fines is found in Section 19 of Article III of the
1987 Constitution which provides: “Excessive fines shall not be imposed,
nor cruel, degrading or inhuman punishment inflicted. Neither shall the
death penalty be imposed, unless, for compelling reasons involving
heinous crimes, the Congress hereafter provides for it. Any death penalty
already imposed shall be reduced to reclusion perpetua. The employment
of physical, psychological, or degrading punishment against any prisoner
or detainee or the use of substandard or inadequate penal facilities under
subhuman conditions shall be dealt with by law.” 26

b) Historical basis. The prohibition in the Philippine Bill (Constitution) against

cruel and unusual punishments is an Anglo-Saxon safeguard against
governmental oppression of the subject. It has been incorporated into the
Constitution of the United States and into most of the constitutions of the
various States in substantially the same language as that used in the
original statute. The exact language of the Constitution of the United
States is used in the Philippine Bill. It follows that punishments provided in
legislation enacted by the former sovereign of these Islands must be
considered according to the standard obtaining in the United States in
order to determine whether they are cruel and unusual. 27
 
c) Test to be applied. The test to be applied in determining whether a penalty
is in violation of this constitutional provision is not the proportion between
the offense and the punishment, but the character of the punishment and
its mode of infliction, and that "the legislative discretion in determining the
severity of the punishment for crime is not to be interfered with by the
courts, so long as all forms of torture are avoided." Another group of
authorities, however, hold that this constitutional provisions is broad
enough to confer upon the courts the power to review legislative discretion
concerning the adequacy of the punishment "in very extreme cases;
25
Ibid.
26
People v. Echegaray, G.R. No. 117472, February 7, 1997.
27
U.S. v. Borromeo, et al., G.R. No. L-7150, October 16, 1912.
 where the punishment proposed is so severe and out of proportion of the
offense as to shock public sentiment and violate the judgment of
reasonable people." In the case of Weems v. United States,28 the court
sustained the latter view.
 
d) Death penalty is not cruel. Punishments are cruel when they involve
torture or a lingering death; but the punishment of death is not cruel, within
the meaning of that word as used in the Constitution. It implies there
something inhuman and barbarous, something more than the mere
extinguishment of life.29

e) Duty of judicial officers to apply the law and impose penalty. As long as
that penalty remains in the statute books, and as long as our criminal law
provides for its imposition in certain cases, it is the duty of judicial officers
to respect and apply the law regardless of their private opinions. Courts
are not the fora for a protracted debate on the morality or propriety of the
death sentence where the law itself provides therefor in specific and well-
defined criminal acts. 30

3) Non-imposition of death penalty.

a) R.A. No. 9346 prohibits the imposition of death penalty. In lieu of the death
penalty, the following shall be imposed:

i) The penalty of reclusion perpetua, when the law violated makes use of
the nomenclature of the penalties of the Revised Penal Code; or
ii) The penalty of life imprisonment, when the law violated does not make
use of the nomenclature of the penalties of the Revised Penal Code.

b) In following felonies, the penalty of reclusion perpetua is imposed:

i) piracy in general;
ii) mutiny on the high seas;
iii) simple rape;
iv) qualified piracy;
v) qualified bribery under certain circumstances;
vi) parricide;
vii) murder;
viii) infanticide, except when committed by the mother of the child for
the purpose of concealing her dishonor or either of the maternal

28
217 U. S., 349, 54 L. ed., 793.
29
Legarda v. Valdez, G.R. No. 513, Feb. 25, 1902; People v. Echegaray, supra.
30
People v. Limaco, 88 Phil. 36
 grandparents for the same purpose;
ix) kidnapping and serious illegal detention under certain circumstances
(i) when the kidnapping or detention was committed for the purpose of
extorting ransom from the victim or any other person; (ii) when the
victim is killed or dies as a consequence of the detention; (iii) when
the victim is raped, subjected to torture or dehumanizing acts;
x) robbery with violence against or intimidation of persons under certain
circumstances;
xi) destructive arson, except when death results as a consequence of the
commission of any of the acts penalized under the article;
xii) attempted (or frustrated rape), when a homicide is committed by
reason or on occasion thereof;
xiii) plunder; and
xiv) carnapping, when the driver or occupant of the carnapped motor
vehicle is killed or raped in the course of the commission of the
carnapping or on the occasion thereof. 31

4) Bill of attainder.

a) Definition. A bill of attainder is a legislative act which inflicts punishment

on individuals or members of a particular group without a judicial trial.
Essential to a bill of attainder are a specification of certain individuals or a
group of individuals, the imposition of a punishment, penal or otherwise,
and the lack of judicial trial. 32 Its essence is the substitution of legislative
act for a judicial determination of guilt.33

b) Rationale. The constitutional ban against bills of attainder serves to

implement the principle of separation of powers by confining legislatures
to rule-making and thereby forestalling legislative usurpation of the judicial
function. History in perspective, bills of attainder were employed to
suppress unpopular causes and political minorities, and it is against this
evil that the constitutional prohibition is directed. The singling out of a
definite class, the imposition of a burden on it, and a legislative intent,
suffice to stigmatize a statute as a bill of attainder.34

c) Jurisprudence. R.A. No. 9335 (Attrition Law of 2005) does not possess the
elements of a bill of attainder. It does not seek to inflict punishment without
a judicial trial. R.A. No. 9335 merely lays down the grounds for the
termination of a BIR or BOC official or employee and provides for the

31
People v. Jugueta, G.R. No. 202124, April 6, 2016.
32
Misolas v. Panga, G.R. No. 83341, January 30, 1990.
33
People v. Ferrer, et al., G.R. L-32613, Dec. 27, 1972.
34
Ibid.
 consequences thereof. The democratic processes are still followed and
the constitutional rights of the concerned employee are amply protected. 35

d) RA 1700 or the Anti-Subversion Act is not a bill of attainder.  It does not
specify the Communist Party of the Philippines or the members thereof for
the purpose of punishment. What it does is simply to declare the Party to
be an organized conspiracy for the overthrow of the Government for the
purposes of the prohibition, stated in section 4, against membership in the
outlawed organization. The term "Communist Party of the Philippines"
issued solely for definitional purposes. In fact, the Act applies not only to
the Communist Party of the Philippines but also to "any other organization
having the same purpose and their successors." Its focus is not on
individuals but on conduct. Were the Anti-Subversion Act a bill of
attainder, it would be totally unnecessary to charge Communists in court,
as the law alone, without more, would suffice to secure their punishment.
But the undeniable fact is that their guilt still has to be judicially
established. The Government has yet to prove at the trial that the accused
joined the Party knowingly, willfully and by overt acts, and that they joined
the Party, knowing its subversive character and with specific intent to
further its basic objective, i.e., to overthrow the existing Government by
force deceit, and other illegal means and place the country under the
control and domination of a foreign power.36

e) Executive Order Nos. 1, 2 and 14 authorizing sequestration of assets of

Marcos cronies are not bills of attainder. On the contrary, the executive
orders make it perfectly clear that any judgment of guilt in the amassing or
acquisition of "ill-gotten wealth" is to be handed down by a judicial tribunal,
f) In this case, the Sandiganbayan, upon complaint filed and prosecuted by
the PCGG. In the second place, no punishment is inflicted by the
executive orders, as the merest glance at their provisions will immediately
make apparent. In no sense, therefore, may the executive orders be
regarded as a bill of attainder.37

5) Ex post facto law.

a) By jurisprudence, an ex post facto law is one:

i) which makes an act done criminal before the passing of the law and
which was innocent when committed, and punishes such action; or
ii) which aggravates a crime or makes it greater than when it was
committed; or which changes the punishment and inflicts a greater
35
Bureau of Customs Employees Asso. (BOCEA) v. Teves, G.R. No. 181704, December 6, 2011.
36
People v. Ferrer, G.R. No. L-32613, December 27, 1972.
37
BASECO v. PCGG, G.R. No. G.R. No. 75885 May 27, 1987.
 punishment than the law annexed to the crime when it was
committed;38 or
iii) which alters the legal rules of evidence and receives less or different
testimony that the law required at the time of the commission of the
offense on order to convict the defendant;39 or
iv) a law which, in relation to the offense or its consequences, alters the
situation of a person to his disadvantage;40
v) that which assumes to regulate civil rights and remedies only but in
effect imposes a penalty or deprivation of a right which when done was
lawful; or 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 an amnesty. 41

b) Ex post facto law, generally, prohibits retrospectivity of penal laws. 42 If the

law is not penal, it can be applied retroactively. R.A. 8249 (an act which
further defines the jurisdiction of the Sandiganbayan) is not penal law. It is
a substantive law on jurisdiction which is not penal in character. 43

Scope of Application and Characteristics of Philippine Criminal Law

1) Generality.

a) Nature and basis. Criminal law is binding on all persons who live or
sojourn in Philippine territory. This is the explicit mandate of Article 14 of
the New Civil Code which states that “penal laws and those of public
security and safety shall be obligatory upon all who live or sojourn in the
Philippines territory subject to the principles of international law and treaty
stipulations.”

b) Applies to both citizens and aliens. Our penal laws apply to both citizens
and aliens. They are bound to follow our laws. Citizens owe the State
obedience for the protection the latter is providing the former. Aliens, on
the other hand, are bound by our penal laws, because while they are
within the Philippine territory, such laws protect them. In both instance,
penal laws are obligatory because of the protection given by the State. No
foreigner enjoys in this country extrajudicial right to be exempted from its
laws and jurisdiction.44

38
Calder v. Bull, penned by Chief Justice Chase (3 Dall, 386, 390.)]
39
Mekin v. Wolfe, 2 Phil. 74 (1903)
40
People v. Sandiganbayan, 211 SCRA 241
41
Mejia v. Pamaran, 160 SCRA 457
42
Pascual v. Board of Medical Examiners, 28 SCRA 344.
43
Lacson v. Executive Secretary, et al., G.R. No. 128096 January 20, 1999.
44
People v. Galacgac, C.A., 54 O.G. 1027, cited by Luis Reyes, Criminal Law, Book I, 2012 ed.
 c) Exceptions.

i) Treaty or treaty stipulations.

(1) Doctrine of incorporation. By the doctrine of incorporation, the

country is bound by generally accepted principles of international
law, which are considered to be automatically part of our own
laws. One of the oldest and most fundamental rules in international
law is pacta sunt servanda — international agreements must be
performed in good faith. A treaty engagement is not a mere moral
obligation but creates a legally binding obligation on the parties. A
state which has contracted valid international obligations is bound
to make in its legislations such modifications as may be necessary
to ensure the fulfilment of the obligations undertaken. By their
inherent nature, treaties really limit or restrict the absoluteness of
sovereignty. By their voluntary act, nations may surrender some
aspects of their state power in exchange for greater benefits
granted by or derived from a convention or pact.45

(2) Examples.

(a) Visiting Force Agreement. The VFA is an agreement which

defines the treatment of United States troops and personnel
visiting the Philippines to promote "common security interests"
between the US and the Philippines in the region. It provides for
the guidelines to govern such visits of military personnel, and
further defines the rights of the United States and the Philippine
government in the matter of criminal jurisdiction, movement of
vessel and aircraft, importation and exportation of equipment,
materials and supplies.46

(b) Under the Visiting Forces Agreement, the US military authorities

have the right to exercise all criminal and disciplinary jurisdiction
conferred on them by the military law of the US over its
personnel in the Philippines. It has exclusive jurisdiction over its
personnel with respect to offenses including those relating to the
security of the US punishable under the US law and also
offenses solely against the property or security of the US or
offenses against the property or person of US personnel and

45
Taňada, et al. v. Angara, G.R. No. 118295, May 2, 1997.
46
Bagong Alyansang Makabayan v. Zamora, 396 Phil. 623 (2000).
 offenses arising out of any act or omission done in performance
of official duty.47

(c) Agreement between Asian Development Bank and the

Philippines. The agreement provides that experts and
consultants performing missions for the Bank enjoy immunity
from legal processes with respect to acts performed by them in
their official capacity except when the Bank waives its immunity.
However, the immunity is not absolute. The immunity does not
apply acts done in personal private capacity with malice or in
bad faith or beyond the scope of his authority such as
defamation or theft.48

ii) Laws of preferential application.

(1) Laws of preferential application are laws which give criminal

immunity to some class of persons by reason of the nature of their
office, position, or religious belief. These persons are immune from
the operation of penal laws. These laws recognize the immunities,
rights and privileges of duly accredited foreign diplomatic
representatives of one state to another state. Hence, most states
recognize the diplomatic immunity of heads of states,
ambassadors, consuls, representatives of the UN and other
personalities of similar stature. It is a well-established principle of
international law that diplomatic representatives such as
ambassadors, or public ministers and their official retinue, possess
immunity from the criminal jurisdiction of the country of their sojourn
and cannot be sued, arrested or punished by the law of that
country.49 

(2) Republic Act No. 75 provides that ambassadors or public ministers

or their domestic or domestic servant are exempted from local laws.
They cannot be arrested or imprisoned as all writs or processes
against them are considered void by operation of law. However,
following the doctrine of reciprocity, the provisions of the law do not
apply when the foreign country affected does not provide similar
protection to members of our diplomatic representatives.

(3) Violations of Articles of War. Under Republic Act No. 7055,

members of the Armed Forces of the Philippines and other person’s
subject of the military law including CAGFU are under the
47
Ibid.
48
Liang v. People, G.R. No. 125865, January 28, 2000.
49
http://www.lawgiants.com/2010/05/diplomatic-immunity-in-operation/ Visited: 24 June, 2018.
 jurisdiction of the proper civil court unless the offense charged, as
determined before arraignment by the civil court, is “service-
connected offense or crime.” When it is service-connected offense
or crime, C.A. No. 408 (Articles of War) applies in which case the
military courts have jurisdiction over these crimes or offenses. 50
Since the proceedings before the court martial are criminal in
nature and not administrative proceedings, the offender cannot be
charged in a civil court as he would be placed in double jeopardy. 51

(4) Presidential Decree No. 1083 or the Muslim Code of the Philippines
provides that penal laws relative to bigamy do not apply to persons
married pursuant to Muslim laws where the requirements provided
therein are complied with.

iii) International law

(1) Exemption by virtue of the principles of international law such as

sovereigns and other chiefs of state, ambassadors, ministers
plenipotentiary, ministers resident, and charges affaires. Their
official retinue are included in the coverage.

(2) Vienna Convention on Diplomatic Relations. The Vienna

Convention on Diplomatic Relations was a codification of centuries-
old customary law and, by the time of its ratification on 18 April
1961, its rules of law had long become stable. Traditionally, the
exercise of diplomatic intercourse among states was undertaken by
the head of state himself, as being the preeminent embodiment of
the state he represented, and the foreign secretary, the official
usually entrusted with the external affairs of the state. Where a
state would wish to have a more prominent diplomatic presence in
the receiving state, it would then send to the latter a diplomatic
mission. Conformably with the Vienna Convention, the functions of
the diplomatic mission involve, by and large, the representation of
the interests of the sending state and promoting friendly relations
with the receiving state.52

(3) Classes of heads of diplomatic missions under the Vienna

Convention. The Convention lists the classes of heads of diplomatic
missions to include (a) ambassadors or nuncios accredited to the
heads of state, (b) envoys, ministers or internuncios accredited to
the heads of states; and (c) charges d' affairs accredited to the
50
Navales, et al. vs. Abaya, et al., G.R. Nos. 162318-41, October 25, 2004.
51
Marcos, et al., vs. Chief of Staff, AFP, 89 Phil. 246.
52
Minucher v. CA, et al., G.R. No. 142396, February 11, 2003.
 ministers of foreign affairs. Comprising 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.53

(4) Who are entitled to immunity under the Vienna Convention? Even
while the Vienna Convention on Diplomatic Relations provides for
immunity to the members of diplomatic missions, it does so,
nevertheless, with an understanding that the same be restrictively
applied. Only "diplomatic agents," under the terms of the
Convention, 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
impliedly withholding the same privileges from all others. It might
bear stressing that even consuls, who represent their respective
states in concerns of commerce and navigation and perform certain
administrative and notarial duties, such as the issuance of
passports and visas, authentication of documents, and
administration of oaths, 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. Indeed, the main yardstick in
ascertaining whether a person is a diplomat entitled to immunity is
the determination of whether or not he performs duties of diplomatic
nature.54

(5) The Philippines adopted the Vienna Convention. The Philippines is

a signatory of the Vienna Convention on Diplomatic Relations
adopted in 1961. It was concurred in by the then Philippine Senate
on May 3, 1965 and the instrument of ratification was signed by the
President on October 11, 1965, and was thereafter deposited with
the Secretary General of the United Nations on November 15. As of
that date then, it was binding on the Philippines. The second
paragraph of the Article 22 reads: "2. The receiving State is under a
special duty to take appropriate steps to protect the premises of the
mission against any intrusion or damage and to prevent any
disturbance of the peace of the mission or impairment of its
dignity." The Constitution "adopts the generally accepted principles
of international law as part of the law of the land." To the extent that
the Vienna Convention is a restatement of the generally accepted
53
Ibid.
54
Ibid.
 principles of international law, it should be a part of the law of the
land.55

(6) Consuls, however, are not included. They do not possess the
status of and cannot claim the privileges and immunities accorded
to ambassadors and ministers. Consuls are not exempt from
criminal prosecution for violations of the laws of the country where
he resides.56

(7) State immunity from suit. International law is founded largely upon
the principles of reciprocity, comity, independence, and equality of
States which were adopted as part of the law of our land under
Article II, Section 2 of the 1987 Constitution. 8 The rule that a State
may not be sued without its consent is a necessary consequence of
the principles of independence and equality of States. 57 The
practical justification for the doctrine of sovereign immunity is that
there can be no legal right against the authority that makes the law
on which the right depends.58 In the case of foreign States, the rule
is derived from the principle of the sovereign equality of States, as
expressed in the maxim par in parem non habet imperium. All
states are sovereign equals and cannot assert jurisdiction over one
another.59 A contrary attitude would "unduly vex the peace of
nations."60

(8) The restrictive theory. The increasing need of sovereign States to

enter into purely commercial activities remotely connected with the
discharge of their governmental functions brought about a new
concept of sovereign immunity.  This concept, the restrictive theory,
holds that the immunity of the sovereign is recognized only with
regard to public acts or acts jure imperii, but not with regard to
private acts or acts jure gestionis.61 The conduct of public bidding
for the repair of a wharf at a United States Naval Station is an
act jure imperii.62 On the other hand, the hiring of a cook in the
recreation center catering to American servicemen and the general
public at the John Hay Air Station in Baguio City was an act jure

55
Reyes v. Bagatsing, G.R. No. L-65366, November 9, 1983.
56
Scheneckenburger v. Moran, G.R. No. 44896, July 31, 1936.
57
United States of America, et al  v. Ruiz, 136 SCRA 487 (1987).
58
Sanders v. Veridiano II, 162 SCRA 88, 96 (1988).
59
United States of America v.  Guinto, 182 SCRA 644, 653 (1990).
60
United States of America, et al  v. Ruiz, supra.
61
The Holy See v.  Rosario, et. al., 238 SCRA 524 (1994).
62
United States of America, et al  v. Ruiz, supra.
 gestionis  63  as well as the bidding for the operation of barber shops
in Clark Air Base in Angeles City.64

(9) Agreement for the maintenance of the embassy premises is an act

jure imperii. The State may enter into contracts with private entities
to maintain the premises, furnishings and equipment of the
embassy and the living quarters of its agents and officials. It is
therefore clear that petitioner Republic of Indonesia was acting in
pursuit of a sovereign activity when it entered into a contract with
respondent for the upkeep or maintenance of the air conditioning
units, generator sets, electrical facilities, water heaters, and water
motor pumps of the Indonesian Embassy and the official residence
of the Indonesian ambassador. The establishment of a diplomatic
mission is an act jure imperii. A sovereign State does not merely
establish a diplomatic mission and leave it at that; the
establishment of a diplomatic mission encompasses its
maintenance and upkeep.65

d) Concepts.

i) Sovereignty may be limited by international agreements. There can be

no serious objection to the Philippines agreeing to undertake the things
set forth in the Agreement. Surely, one State can agree to waive
jurisdiction—to the extent agreed upon—to subjects of another State
due to the recognition of the principle of extraterritorial
immunity. Nothing in the Constitution prohibits such agreements
recognizing immunity from jurisdiction or some aspects of jurisdiction
(such as custody), in relation to long-recognized subjects of such
immunity like Heads of State, diplomats and members of the armed
forces contingents of a foreign State allowed to enter another State’s
territory.66 By their nature, treaties and international agreements
actually have a limiting effect on the otherwise encompassing and
absolute nature of sovereignty. By their voluntary act, nations may
decide to surrender or waive some aspects of their state power or
agree to limit the exercise of their otherwise exclusive and absolute
jurisdiction. The usual underlying consideration in this partial surrender
may be the greater benefits derived from a pact or a reciprocal
undertaking of one contracting party to grant the same privileges or
immunities to the other. On the rationale that the Philippines has
adopted the generally accepted principles of international law as part
63
United States  v. Rodrigo, 182 SCRA 644 (1990).
64
United States of America v.  Guinto, supra.
65
The Republic of Indonesia v. Vinzon, G.R. No. 154706, June 26, 2003.
66
Nicolas v. Romulo, G.R. Nos. 175888, 176051 & 176222, February 11, 2009.
 of the law of the land, a portion of sovereignty may be waived without
violating the Constitution.67 Such waiver does not amount to an
unconstitutional diminution or deprivation of jurisdiction of Philippine
courts.68

ii) Distinguished from territorialilty principle. As distinguished from

territoriality principle, generality principle pertains to the persons
covered by the penal laws. Territoriality principle refers to the place or
situs where the act is committed.

iii) A Danish national may be held liable for violation of RA 9262 for
withholding support on the minor child. The Territoriality Principle69 in
criminal law, in relation to Article 14 of the New Civil Code, applies to
the instant case, which provides that: penal laws and those of public
security and safety shall be obligatory upon all who live and sojourn in
Philippine territory, subject to the principle of public international law
and to treaty stipulations.70

2) Territoriality.

a) This principle enunciates two (2) concepts: One, that our penal laws are
enforceable within the Philippine territory; and two, that our penal laws
cannot be enforced outside the Philippine territory. The basis of this
principle is Article 2 of the Revised Penal Code which provides that its
provisions shall be enforced within the Philippine archipelago including its
atmosphere, its internal waters, and maritime zone.

i) First concept: Penal laws are enforceable within the Philippine

territory. The principle simply states that penal laws are enforceable
within the Philippine territory. These laws undertake to punish acts
committed in the Philippine territory. In other words, all crimes
committed within the territory of the Philippines are triable by our local
courts.

(1) Exceptions: In the following instances, our local courts cannot try
the crimes committed even within the territory of the Philippines:

67
Tañada v. Angara, G.R. No. 118295, May 2, 1997.
68
Dizon v. Phil. Ryubus Command, 81 Phil. 286 (1948).
69
Author’s note: The ponente seems to have erroneously defined and applied the Territoriality
Principle in this case. What is applicable is the Generality Principle as it pertains to the persons
covered by criminal law.
70
Del Socorro v. Van Wilsem, G.R. No. 193707, December 10, 2014.
 (a) Foreign merchant vessel. In case of crime committed on a
foreign merchant vessel, there are two fundamental rules on this
particular matter in connection with International Law:

(i) The French rule, according to which crimes committed

aboard a foreign merchant vessel should not be prosecuted
in the courts of the country within whose territorial jurisdiction
they were committed, unless their commission affects the
peace and security of the territory; and

(ii) The English rule, based on the territorial principle and

followed in the United States, according to which, crimes
perpetrated under such circumstances are in general triable
in the courts of the country within territory they were
committed.71

(iii) The English Rule is observed in our jurisdiction. 72 Of this two

rules, it is the English rule that obtains in this jurisdiction,
because at present the theories and jurisprudence prevailing
in the United States on this matter are authority in the
Philippines which is now a territory of the United States.

(iv) To be triable, the crime must be committed on board a

foreign merchant vessel while in Philippine waters and that
the crime affects a breach of public order. Hence, mere
possession of opium is not triable as it does not involve a
breach of public security unless opium is landed on
Philippine soil.73 However, the rule does not apply to case of
smoking opium on board the vessel as it already produces
its pernicious effects in the country.74

(v) If the foreign vessel is not in transit and a Philippine port is

its destination, any crime committed on board is triable in the
Philippines except those concerning internal management of
the vessel. Hence, mere possession of opium is triable
here.75

(b) Foreign military vessel. Philippine laws do not apply to those

crimes committed inside the foreign military or public vessels.
71
U.S. v. Wong Cheng, G.R. No. L-18924, October 19, 1922.
72
U.S. v. Bull, 15 Phil. 7.
73
U.S. v. Look Chow, 18 Phil. 573.
74
U.S. v. Wong Cheng, supra.
75
U.S. v. Ang Sing, 36 Phil. 378.
 Warships are considered extension of their flag states, hence,
immune from local jurisdiction. However, this immunity will not
apply if the crew violate the laws while they are on off duty. 76

(c) Foreign aircraft. Crimes committed aboard the foreign aircraft

traveling in the Philippine airspace are not triable in the
Philippines. It is the state of registration which has jurisdiction
over the same while it is in flight over the high seas or any other
area outside the territory of any state.77

ii) Second concept: Penal laws cannot be enforced outside the Philippine
territory. In this principle, the rule enunciates that our penal laws
cannot be enforced beyond our territorial jurisdiction. This simply
means that our local courts cannot try those crimes if committed
outside our territory.

(1) Exceptions.

(a) The exceptions to this rule are found in Article 2 of the Revised
Penal Code. Article 2 amplifies the protective principle which
states that the Philippines has jurisdiction over the crimes
committed abroad by nationals or foreigners which are
prejudicial to its security and interest. In the following instances,
penal laws shall be enforced even outside the Philippine
territory against those who:

(i) Should commit an offense while on Philippine ship or airship;

(ii) Should forge or counterfeit any coin or currency note of the
Philippines or obligations or securities issued by the
Government;
(iii) Should be liable for acts connected with the introduction into
the Philippines of the said obligations;
(iv) While being a public officer or employee, should commit an
offense in the exercise of their functions; or
(v) Should commit any of the crimes against national security
and the laws of nations.

(b) Crimes under international law: genocide, crimes against

humanity, war crimes, and crimes of aggression.78

76
Marlo Campanila, The Revised Penal Code, p. 35, 2007 ed.
77
Convention on Offenses and Certain Other Acts Committed on Board Aircraft (cited in The
Revised Penal Code, Marlo Campanila, p. 35, 2007 ed.).
78
Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011.
 (c) Special penal laws:

(i) Human Security Act (RA 9372);

(ii) The Terrorism Financing Prevention and Suppression Act
(RA 10168);
(iii) Trafficking in person (RA 9208 as amended by RA 10364);
(iv) Data privacy act (RA 10173);

3) Prospectivity.

a) As a general rule, penal laws should not have retroactive application, lest
they acquire the character of an ex post facto law.79 An exception to this
rule, however, is when the law is advantageous to the accused. According
to Mr. Chief Justice Araullo, this is "not as a right" of the offender, "but
founded on the very principles on which the right of the State to punish
and the combination of the penalty are based, and regards it not as an
exception based on political considerations, but as a rule founded on
principles of strict justice."80

b) The law looks forward, never backward. Lex prospicit, non respicit. A new
law has a prospective, not retroactive, effect. However, penal laws that
favor a guilty person, who is not a habitual criminal, shall be given
retroactive effect. These are the rule, the exception and exception to the
exception on effectivity of law.81

i) Exceptions:

(1) Article 22 of RPC provides that penal laws shall have a retroactive
effect in so far as they favor the person guilty of a felony, who is not
a habitually delinquent.
(2) If favorable to the accused, a penal law may be given retroactive
effect.
(3) Even if favorable to the accused, a penal law cannot be given
retroactive effect if the accused is a habitual delinquent or when the
law expressly so provides.

c) Concepts.

i) The rule on retroactivity states that criminal laws may be applied

retroactively if favorable to the accused. This principle, embodied in the
79
Mejia v. Pamaran, G.R. Nos. L-56741-42, April 15, 1988.
80
People v. Moran, 44 Phil. 387, 408 (1923).
81
Valeroso v. People, G.R. No. 164815, February 22, 2008.
 Revised Penal Code, has been expanded in certain instances to cover
special laws.82

ii) A judicial decision may also be given retroactive application. Decisions

of the Supreme Court, although in themselves not laws, are
nevertheless evidence of what the laws mean, and this is the reason
why under Article 8 of the New Civil Code, "Judicial decisions applying
or interpreting the laws or the Constitution shall form a part of the legal
system.” The interpretation upon a law by the Court constitutes a part
of the law as of the date that law was originally passed, since this
Court's construction merely establishes the contemporaneous
legislative intent that the law thus construed intends to effectuate. 83

iii) The general rule that statutes are prospective and not retroactive does
not ordinarily apply to procedural laws. It has been held that "a
retroactive law, in a legal sense, is one which takes away or impairs
vested rights acquired under laws, or creates a new obligation and
imposes a new duty, or attaches a new disability, in respect of
transactions or considerations already past. Hence, remedial statutes
or statutes relating to remedies or modes of procedure, which do not
create new or take away vested rights, but only operate in furtherance
of the remedy or confirmation of rights already existing, do not come
within the legal conception of a retroactive law, or the general rule
against the retroactive operation of statutes." 84

iv) Administrative Circular 12-2000, establishing a rule of preference in

imposing penalties for violations of Batas Pambansa Blg. 22 (BP
22), is not a penal law; hence, Article 22 of the Revised Penal Code is
not applicable. The circular applies only to those cases pending as of
the date of its effectivity and not to cases already terminated by final
judgment.85

d) Effects of repeal/amendment of penal law:

i) Nature of express repeal. A declaration in a statute, usually in its

repealing clause, that a particular and specific law, identified by its
number or title, is repealed is an express repeal; all others are implied
repeals. The question of whether a particular law has been repealed or
not by a subsequent law is a matter of legislative intent. The
lawmakers may expressly repeal a law by incorporating therein a
82
People v.  Langit, 392 Phil. 94 (2000); Gonzales  v. CA, 343 Phil. 297 (1997).
83
People v.  Jabinal, 55 SCRA 607.
84
Tan, Jr. v. CA, G.R. No. 136368, January 16, 2002.
85
Go v. Dimagiba, G.R. No. 151876, June 21, 2005.
 repealing provision which expressly and specifically cites the particular
law or laws, and portions thereof, that are intended to be repealed. 86

ii) Effect of express repeal. If by express repeal the crime is obliterated,

all pending cases at the time of repeal are to be dismissed. The repeal
even extends to those who are already convicted and serving sentence
under the repealed law unless they are habitually delinquents or the
repealing law provides otherwise.  The repeal of a statute defeats all
actions and proceedings pending under the repealed statute at the
time of its repeal, including those cases which are still pending
appeal.87

iii) Condition for this rule. The enactment of new penal laws,
notwithstanding the fact that they contain general repealing clauses,
does not deprive the courts of jurisdiction to try, convict, and sentence
persons charged with violations of the old law prior to the date when
the repealing law goes into effect, unless the new law wholly fails to
penalize the acts which constituted the offense defined and penalized
in the repealed law.88 Where the repealing law wholly fails to penalize
the acts which constitute the offense defined and penalized in the
repealed law, the repeal carries with it the deprivation of the courts of
jurisdiction to try the persons charged with violation of the old law. 89

iv) Rule where repeal is absolute. Where the repeal of a penal law is total
and absolute and the act with was penalized by a prior law ceases to
be criminal under the new law, the previous offense is obliterated. 90 It
is a recognized rule in this jurisdiction that a total repeal deprives the
courts of jurisdiction to try, convict and sentence persons charged with
violation of the old law prior to the repeal.

v) Example of absolute repeal. R.A. No. 7636 expressly repealed R.A.

No. 1700 (Anti-Subversion Law), as amended. The repeal was
categorical, definite and absolute. There was no saving clause in the
repeal. The legislative intent of totally abrogating the old anti-
subversion law is clear. Thus, it would be illogical for the trial courts to
try and sentence the accused-private respondent for an offense that no
longer exists. RA 7636 should be applied retroactively to accused.

86
Mecano v. COA, G.R. No. 103982, December 11, 1992.
87
Aisporna v. CA, G.R. No. L-47533, October 27, 1981.
88
U.S. v. Cuna, 12 Phil. 241.
89
People v. De Pastor, G.R. No. L-355, February 12, 1947.
90
People v. Tamayo, 61 Phil. 225 (1935).
 vi) Nature of implied repeal. Repeal by implication proceeds on the
premise that where a statute of later date clearly reveals an intention
on the part of the legislature to abrogate a prior act on the subject, that
intention must be given effect. Hence, before there can be a repeal,
there must be a clear showing on the part of the lawmaker that the
intent in enacting the new law was to abrogate the old one. The
intention to repeal must be clear and manifest; otherwise, at least, as a
general rule, the later act is to be construed as a continuation of, and
not a substitute for, the first act and will continue so far as the two acts
are the same from the time of the first enactment. 91

vii) Categories of implied repeal. There are two categories of repeal by

implication. The first is where provisions in the two acts on the same
subject matter are in an irreconcilable conflict, the later act to the
extent of the conflict constitutes an implied repeal of the earlier one.
The second is if the later act covers the whole subject of the earlier
one and is clearly intended as a substitute, it will operate to repeal the
earlier law.92

viii) Implied repeal by irreconcilable inconsistency. It takes place when the

two statutes cover the same subject matter; they are so clearly
inconsistent and incompatible with each other that they cannot be
reconciled or harmonized; and both cannot be given effect, that is,
that one law cannot be enforced without nullifying the other. 93

ix) Second category is by codifying or revising the old laws. The second
category of repeal is the enactment of a statute revising or codifying
the former laws on the whole subject matter. This is only possible if the
revised statute or code was intended to cover the whole subject to be a
complete and perfect system in itself. It is the rule that a subsequent
statute is deemed to repeal a prior law if the former revises the whole
subject matter of the former statute. When both intent and scope
clearly evidence the idea of a repeal, then all parts and provisions of
the prior act that are omitted from the revised act are deemed
repealed. Furthermore, before there can be an implied repeal under
this category, it must be the clear intent of the legislature that the later
act be the substitute to the prior act.94

x) Implied repeal not favored.  It is a basic rule of statutory construction

that repeals by implication are not favored unless it is manifest that
91
Mecano v. COA, supra.
92
Ibid.
93
Villegas v. Subido, 41 SCRA 190 (1971).
94
Mecano v. COA, supra.
 such is the legislative intent. 95 This doctrine is premised on the
rationale that the will of the legislature cannot be overturned by the
judicial function of construction and interpretation. 96 The presumption is
against inconsistency and repugnancy for the legislature is presumed
to know the existing laws on the subject and not to have enacted
inconsistent or conflicting statutes.97

xi) The retroactive application of RA 1095198 with respect to the penalty.

Although the decision had long been final, the Court re-opened the
case by applying the beneficent provisions of the law. It held that, as a
rule, reopening of the case must be before finality of judgment. In this
case, it took three years after the entry of the judgment before a motion
to reopen the case was filed. The judgment has long become final and
executory. But when exceptional circumstances exist, such as the
passage of an amendatory law imposing penalties more lenient and
favorable to the accused, the Court can direct reopening of a final and
immutable judgment, the objective of which is to correct not so much
the findings of guilt but the applicable penalties to be imposed. For as
long as it is favorable to the accused, said recent legislation shall find
application regardless of whether its effectivity comes after the time
when the judgment of conviction is rendered and even if service of
sentence has already begun.99

Rules on Statutory Construction in Criminal Law

1) Statutory construction of penal laws. It is an ancient rule of statutory

construction that penal statutes should be strictly construed against the
government or parties seeking to enforce statutory penalties and in favor
of the persons on whom penalties are sought to be imposed. This simply
means that words are given their ordinary meaning and that any
reasonable doubt about the meaning is decided in favor of anyone
subjected to a criminal statute. This canon of interpretation has been
accorded the status of a constitutional rule under principles of due
process, not subject to abrogation by statute. 100

95
Napocor v. Province of Lanao del Sur, 264 SCRA 271.
96
Ty v. Trampe, 250 SCRA 500; Frivaldo v. Comelec, 257 SCRA 727.
97
U.S. v. Palacio, 33 Phil. 208 (1916).
98
An Act Adjusting the Amount or the Value of Property and Damage on Which a Penalty is
Based and the Fines Imposed Under the Revised Penal Code, Amending for the Purpose Act No.
3815, Otherwise Known as “The Revised Penal Code”, as Amended. (Passed August 27, 2017).
99
Hernan v. Sandiganbayan, G.R. No. 217874, December 5, 2017.
100
People v. Temporada, G.R. No. 173473, December 17, 2008.
 2) Penal law is strictly construed. Penal law is to be construed, in case of
doubt, strictly against the state. Criminal and penal statutes must be
strictly construed, that is, they cannot be enlarged or extended by
intendment, implication, or by any equitable considerations. In other
words, the language cannot be enlarged beyond the ordinary meaning of
its terms in order to carry into effect the general purpose for which the
statute was enacted. Only those persons, offenses, and penalties, clearly
included, beyond any reasonable doubt, will be considered within the
statute's operation. They must come clearly within both the spirit and the
letter of the statute, and where there is any reasonable doubt, it must be
resolved in favor of the person accused of violating the statute; that is, all
questions in doubt will be resolved in favor of those from whom the
penalty is sought.101

3) Penal laws are not to be extended or enlarged by implications,

intendments, analogies or equitable considerations. Penal laws are
not to be strained by construction to spell out a new offense, enlarge the
field of crime or multiply felonies. Hence, in the interpretation of a penal
statute, the tendency is to subject it to careful scrutiny and to construe it
with such strictness as to safeguard the rights of the accused. If the
statute is ambiguous and admits of two reasonable but contradictory
constructions that which operates in favor of a party accused under its
provisions is to be preferred. 102 The principle is that acts in and of
themselves innocent and lawful cannot be held to be criminal unless
there is a clear and unequivocal expression of the legislative intent
to make them such. Whatever is not plainly within the provisions of a
penal statute should be regarded as without its intendment. 103

4) Doctrine of in dubio pro reo. The doctrine of in dubio pro reo (literally,
when in doubt, for the accused) means that whenever a penal law is to be
construed or applied and the law admits of two interpretations – one
lenient to the offender and one strict to the offender – that interpretation
which is lenient or favorable to the offender will be adopted.  The
fundamental principle in applying and in interpreting criminal laws is to
resolve all doubts in favor of the accused. In dubio pro reo. When in doubt,
rule for the accused.104 This is in consonance with the constitutional
guarantee that the accused shall be presumed innocent unless and until
his guilt is established beyond reasonable doubt. 105

101
People v. Garcia, G.R. No. L-2873, February 28, 1950.
102
Centeno v. People, et al., G.R. No. 113092, September 1, 1994.
103
People v. PO1 Sullano, supra.
104
People v. Temporada, G.R. No., 173473, December 17, 2008.
105
Intestate Estate of Manolita Gonzales Vda. De Carungcong v. People, G.R. No. 181409,
February 11, 2010.
 5) Rule of lenity. 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 favorable to him. The rule calls for the adoption of an
interpretation which is more lenient to the accused. 106

Applicability of the Revised Penal Code to Special Penal Laws

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 such laws, unless the latter should specially provide the
contrary.

1) Nature. Article 10 of the RPC reads as follows: Offenses which are or in the
future may be punishable under special laws are not subject to the provisions
of this Code. This Code shall be supplementary to such laws, unless the latter
should specially provide the contrary.

2) Article 10 explained. The article is composed of two clauses. The first

provides that offenses which in the future are made punishable under special
laws are not subject to the provisions of the RPC, while the second makes the
RPC supplementary to such laws. While it seems that the two clauses are
contradictory, a sensible interpretation will show that they can perfectly be
reconciled.107

3) First clause of Article 10. The first clause should be understood to mean only
that the special penal laws are controlling with regard to offenses therein
specifically punished. Said clause only restates the elemental rule of statutory
construction that special legal provisions prevail over general ones. Lex
specialis derogant generali. In fact, the clause can be considered as a
superfluity, and could have been eliminated altogether. The second clause
contains the soul of the article. The main idea and purpose of the article is
embodied in the provision that the "code shall be supplementary" to special
laws, unless the latter should specifically provide the contrary. 108

4) Concepts.

a) Generally, the provisions of the Revised Penal Code are not applied on
special penal laws. However, if the special penal laws use the
106
Ibid.
107
Ladonga v. People, G.R. No. 141066, February 17, 2005.
108
Ibid.
 nomenclatures of the penalties of the Code, then it has a suppletory
application.109 The suppletory effect of the Revised Penal Code to special
laws cannot be invoked where there is a legal or physical impossibility of,
or a prohibition in the special law against, such supplementary application.
The situation, however, is different where although the offense is defined
in and ostensibly punished under a special law, the penalty therefor is
actually taken from the Revised Penal Code in its technical nomenclature
and, necessarily, with its duration, correlation and legal effects under the
system of penalties native to said Code. While these are special laws, the
fact that the penalties for offenses thereunder are those provided for in the
Revised Penal code lucidly reveals the statutory intent to give the related
provisions on penalties for felonies under the Code the corresponding
application to said special laws, in the absence of any express or implicit
proscription in these special laws. To hold otherwise would be to sanction
an indefensible judicial truncation of an integrated system of penalties
under the Code and its allied legislation, which could never have been the
intendment of Congress. Where the special law expressly grants to the
court discretion in applying the penalty prescribed for the offense, there is
no room for the application of the provisions of the Code. 110

b) However, these rules are inapplicable to P.D. No. 532 (Anti-Piracy and
Anti-Highway Robbery Law of 1974), P.D. No. 533 (Anti-Cattle Rustling
Law of 1974), and P.D. No. 534 (Defining Illegal Fishing and Prescribing
Stiffer Penalties Therefor), in those cases, the lawmaker clearly intended a
single integrated offense or a special complex offense because the death
therein occurs as a result or on the occasion of the commission of the
offenses therein penalized or was not the primary purpose of the
offender.111

c) Under RA 9165 (Comprehensive Dangerous Drugs Act of 2002), the

penalties for acts punishable therein do not use the nomenclatures of the
Revised Penal Code. Hence, the provisions of the Code are not applied in
suppletory manner. However, in a case, the accused, who was 17 years
old, was convicted for violations of Sections 5 and 11 of RA 9165. Under
Sec. 98 of the law, where the offender is a minor, the penalty to be
imposed, instead of life imprisonment, should be reclusion perpetua. Since
the nomenclature of the Code was used, the provisions can now be used
in suppletory manner. Hence, the privileged mitigating circumstance of
minority can now be appreciated in fixing the penalty that should be
imposed. Applying the rules, the proper penalty should be one degree
lower than reclusion perpetua, i.e. reclusion temporal. Applying the
109
People v. Simon, G.R. No. 93028, July 29, 1994.
110
People v. Quijada, G.R. No. 115008-09, July 24, 1996.
111
Ibid.
 ISLAW, the minimum penalty should be taken from the penalty next lower
in degree in which is prision mayor and the maximum penalty shall be
taken from the medium period of reclusion temporal, there being no
mitigating nor aggravating circumstance. Initially, the ISLAW is
inapplicable because the penalty is indivisible. By virtue of the privileged
mitigating circumstance, the penalty became divisible. 112

d) May an accused found guilty of violations of Batas Pambansa Blg. 22 be

made to suffer subsidiary imprisonment in case he fails to pay the fines
imposed by the trial court for such violations? Yes, the provisions on
subsidiary imprisonment can be applied suppletorily to BP Blg. 22
pursuant to Article 10 of the Code. The second paragraph of Article 10 of
the said Code provides that this Code shall be supplementary to such
laws, unless the latter should specially provide the contrary. Articles 100
(civil liability) and 39 (subsidiary penalty) are applicable to offenses under
special laws. The absence of an express provision on subsidiary
imprisonment in BP Blg. 22 does not and cannot preclude its imposition in
cases involving its violations.113

e) Cases where the provisions of the Code were applied to special laws:

i) Article 22 of the RPC, which concerns the retroactive effect of penal

laws if they favor the accused, was applied suppletorily by the Court to
violations of Act No. 3030, the Election Law;114 

ii) Article 17 of the RPC, regarding the participation of principals in the

commission of a crime, was applied suppletorily in the case of
misappropriation of public funds as defined and penalized under Act
No. 1740;115

iii) Article 45 of the RPC, which concerns the confiscation of the

instruments used in a crime, was applied in the case for violation of Act
No. 1461, the Opium Law;116

iv) The Court applied suppletorily Article 39 of the RPC on subsidiary

penalty to cases of violations of Act No. 3992, or the Revised Motor
Vehicle Law;117
 
112
People v. Mantalaba, G.R. No. 186227, July 20, 2011.
113
Yu v. People, G.R. No. 134172, September 20, 2004.
114
People v. Parel , 44 Phil. 437
115
U.S. v. Ponte, 20 Phil. 379
116
U.S. v. Bruhez, 28 Phil. 305
117
People v. Moreno, 60 Phil. 712
 v) The Court applied suppletorily the rules on the service of sentences
provided in Article 70 of the RPC in favor of the accused who was
found guilty of multiple violations of R.A. No. 6425, or the Dangerous
Drugs Act of 1972;118

vi) The Court applied suppletorily Articles 17, 18 and 19 of the RPC to
define the words principal, accomplices and accessories under R.A.
No. 8042, otherwise known as the Migrant Workers and Overseas
Filipinos Act of 1995, because said words were not defined therein,
although the special law referred to the same terms in enumerating the
persons liable for the crime of illegal recruitment; 119 

vii) The Court applied suppletorily the provisions on subsidiary

imprisonment under Article 39 of the RPC to Batas Pambansa
(B.P.) Blg. 22, otherwise known as the Bouncing Checks Law; 120
 
viii) The Court applied suppletorily the principle of conspiracy under Article
8 of the RPC to B.P. Blg. 22 in the absence of a contrary provision
therein;121 

ix) The principle of conspiracy under Article 8 of the RPC was applied
suppletorily to Republic Act No. 9262, otherwise known as the Anti-
Violence Against Women and Their Children Act of 2004. 122

Chapter Two
FELONIES

Felonies

Article 3. Definitions. - Acts and omissions punishable by law are

felonies (delitos).

Felonies are committed not only be means of deceit (dolo) but also
by means of fault (culpa).

118
People v. Li Wai Cheung, G.R. Nos. 90440-42, October 13, 1992
119
People v.  Chowdury, 382 Phil. 459
120
Yu v. People, G.R. No. 134172, 20 September 2004,
121
Ladonga v. People, G.R. No. 141066, February 17, 2005
122
Go-Tan v. Tan G.R. No. 168852, September 30, 2008
 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.

1) Definition and concept of felonies.

a) Felonies are acts or omissions punishable by the Revised Penal Code.

Felonies are crimes punishable by the Revised Penal Code, while
offenses are those acts or omissions punishable by special penal laws
(SPLs).

2) Classification of felonies.

a) According to the means by which they are committed.

i) Intentional felonies; and

ii) Culpable felonies.123

b) According to their stages of their execution.

i) Consummated;
ii) Frustrated;
iii) Attempted.124

c) According to gravity.

i) Grave felonies – those to which the law attaches the capital

punishment or penalties which in any of their periods is afflictive;
ii) Less grave felonies - those to which the law punishes with penalties
which in their maximum period are correctional;
iii) Light felonies are those infractions of law or the commission of which
the penalty of arresto menor or a fine not exceeding Forty thousand
pesos (₱40,000) or both is provided.125

3) General elements of felony:

a) There must be an act or omission;

b) The act or omission must be punishable under the Revised Penal Code;
and
c) The act is committed by means of dolo or culpa.126
123
Article 3, RPC, as amended by RA 10951.
124
Article 6, Ibid.
125
Article 9, Ibid.
126
People v. Gonzales, G.R. No. 80762, March 19, 1990
4) Felony is committed either by dolo and culpa.

a) Felonies by means of dolo (deliberate intent). The basic principle in our

criminal law is that a person is criminally liable for a felony
committed by him.  Under the classical theory on which our 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 (delito doloso), 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.127 The act is performed with deliberate
intent which implies that the act is voluntary or freely committed. Dolo
involves malice or deliberate intent. The term dolo or malice is a complex
idea involving the elements of freedom, intelligence, and intent.

i) Elements:

(1) Freedom. The first element, freedom, refers to an act done with

deliberation and with power to choose between two things. 128  If a
person has no freedom, he is not human but a mere tool. It is
negated by irresistible force or uncontrollable fear.

(2) Intelligence. The second element, intelligence, concerns the ability

to determine the morality of human acts, as well as the capacity to
distinguish between a licit and an illicit act. 129 It is the moral capacity
to determine what is right from what is wrong and to realize the
consequences of one’s acts. It is negated by insanity, imbecility, or
minority. The second element of dolus is intelligence; without
this power, necessary to determine the morality of human acts
to distinguish a licit from an illicit act, no crime can exist, and
because the accused has no intelligence, the law exempts him
from criminal liability.130

(3) Intent. The last element, intent, involves an aim or a determination

to do a certain act.131 It is the state of mind accompanying an act,
especially a forbidden act.132 It is the use of a particular means to
127
People v. Estrada, G.R. No. 130487, June 19, 2000.
128
Villareal v. People, G.R. No. 151258 February 1, 2012
129
Ibid.
130
Guevarra v. Almodovar, G.R. No. 75256, January 26, 1989.
131
Ibid.
132
Ibid.
 effect the desired result. It refers to the purpose of the mind and the
resolve with which a person proceeds. It is negative by mistake of
fact. If there is no intent, there is no felony committed by dolo, but a
felony may still exist if culpa is present.

ii) Concept of intent.

(1) The word "intent" has been defined as a design; a

determination to do certain things; an aim; the purpose of the
mind, including such knowledge as is essential to such intent;
the design resolve, or determination with which a person acts.
It is this intent which comprises the third element of dolo as a
means of committing a felony, freedom and intelligence being
the other two.133

(2) Intent is described as the state of mind accompanying an act

especially a forbidden act. It refers to the purpose of the mind and
the resolve with which a person proceeds. 134 Intent is presumed
from the commission of an unlawful act (general intent). However, if
is a specific intent as an element of the crime, it is necessary that it
must be established. It cannot be presumed.135

(3) To constitute a crime, the act must be generally accompanied by a

criminal intent. Actus non facit reum, nisi mens sit rea. A crime is
not committed if the mind of the person performing the act
complained of is innocent.136 Actus rea means guilty act while mens
rea means guilty mind. Actus rea is the wrongful act which renders
the actor criminally liable if combined with mens rea. Mens rea
(criminal intent) must co-exist with actus rea (unlawful act) for a
crime to exist. In the crime of attempted homicide, intent to kill must
be proved otherwise the crime would only be physical injuries. Also,
in the crime of attempted rape, intent to lie (or sexual intercourse) is
an element. In its absence, the crime is only acts of lasciviousness.
In the same vein, if the abduction has no lewd design, the crime
would only be kidnapping because lewd design is an element of the
crime of forcible abduction.

(4) However, there are crimes that exist even without actus rea
(unlawful act). In case of conspiracy or proposal as a felony, mere
conspiracy or proposal consummates the crime. It need not overt
133
Ibid.
134
Jabalde v. People, G.R. 195224, June 15, 2016.
135
People v. Paganor, G.R. No. 140006-10, April 20, 2001.
136
Sy v. Secretary of Justice Merceditas Gutierrez, et al., G.R. No. 171579, November 14, 2012.
 acts to be committed as the law punishes the criminal intent (mens
rea). Also in case of impossible crime, the law punishes not the
resulting crime but the propensity of the offender to commit crime.
Finally, mere possession of picklock, even without actual theft, is
already punishable under Article the penal code.

(5) Intent is a state of mind. It can be proved by overt acts of a person.

The choice of a particular means will show the true intent of the
offender. For example, animus lucrandi or intent to gain is an
internal act which can be established through the overt acts of the
offender. The unlawful taking of another’s property gives rise to the
presumption that the act was committed with intent to gain. This
presumption holds unless special circumstances reveal a different
intent on the part of the perpetrator.137

(6) Intent is distinguished from discernment. The terms "intent"

and "discernment" convey two distinct thoughts. While both
are products of the mental processes within a person, the
former refers to the desired of one's act while the latter relates
to the moral significance that person ascribes to the said act.
Hence a person may not intend to shoot another but may be
aware of the consequences of his negligent act which may
cause injury to the same person in negligently handling an air
rifle. It is not correct, therefore, to argue that since a minor
above nine years of age but below fifteen acted with
discernment, then he intended such act to be done. He may
negligently shoot his friend, thus did not intend to shoot him,
and at the same time recognize the undesirable result of his
negligence.138

iii) Concept of motive.

(1) Motive generally is referred to as the reason which prompts the

accused to engage in a particular criminal activity. Motive is not an
essential element of a crime and hence the prosecution need not
prove the same.139

(2) Motive is the reason which impels one to commit an act for a
definite result while intent is the purpose to use to particular means

137
De Guzman v. People, G.R. No. 166502, October 17, 2008.
138
Guevarra v. Almodovar, supra.
139
People v. Delim, G.R. No. 142773, January 28, 2003.
 to effect such result.140 Intent is an element of crime while motive is
not.

(3) Motive may mitigate, but does not totally exculpate, criminal
liability. Motive, in criminal law, consists of the special or
personal reason which may prompt or induce a person to
perform the act constituting a crime. It is the moving power
which impels one to act for a definite result, as distinguished
from "intent" which is the purpose to use a particular means to
effect such result. The foregoing distinction has gained wide
acceptance among our criminal law commentators. In relation
to the "particular means" employed — the overt acts
committed by a person — motive, unlike intent, is quite
materially removed. One motive can give rise to one of several
possible courses of action, lawful or unlawful, as one act
could have been actuated by one of several possible motives,
good or bad.141

(4) Motive is hardly ever an essential element of a crime. A man driven

by extreme moral perversion may be led to commit a crime, without
a real motive but a just for the sake of committing it. Along the
same line, a man who commits a crime with an apparent motive
may produce different results, for which he is punished. As held in a
line of cases, the rule is well-settled that the prosecution need not
prove motive on the part of the accused when the latter has been
positively identified as the author of the crime. Lack or absence of
motive for committing the crime does not preclude conviction
thereof where there were reliable witnesses who fully and
satisfactorily identified the accused as the perpetrator of the
felony.142

(5) Motive is not essential where the identity of the perpetrator is not in
doubt.143 But if the evidence is circumstantial, proof of motive is
essential. Motive is essential only when the offender cannot be
identified, and not when he is positively identified by a witness.

(6) However, motive is not essential in the following:

(a) When the act brings about variant crimes;

140
People v. Ballesteros, 349 Phil. 366 (1998).
141
Dissenting opinion of Justice Makasiar in Bagajo v. People, et al., G.R. No. L-33345,
November 20, 1978.
142
Ibid.
143
People v. Martinez, G.R. No. L-33907, January 31, 1984.
 (b) When there is doubt as to the identity of the assailant;
(c) When the evidence on the commission of the crime is purely
circumstantial;
(d) When the perpetrator has not been positively identified and
nobody witnessed the commission of the offense;
(e) When there is the need to ascertain the truth between two
antagonistic versions of the crime;
(f) When the identification of the accused proceeds from an
unreliable source and the testimony is inconclusive and not free
from doubt;
(g) To determine whether the shooting was intentional or
accidental;
(h) To determine the specific nature of the crime
(i) Where the accused claims self-defense.

b) Felonies by means of culpa (constructive intent). According to Article 3 of

RPC, there is fault when the wrongful act results from imprudence,
negligence, lack of foresight, or lack of skill. 144 It consists in voluntarily but
without malice doing or failing to do an act. It results from negligence,
imprudence, lack of foresight or lack of skill. Imprudence is deficiency of
action while negligence is deficiency of perception.

i) Elements:

(1) Freedom;
(2) Intelligence; and
(3) Negligence/imprudence.

ii) Concept of negligence.

(1) Negligence is the failure to observe for the protection of the

interests of another person that degree of care, precaution, and
vigilance which the circumstances justly demand, whereby such
other person suffers injury. Using the aforementioned philosophy, it
may be reliably concluded that there is no hard and fast rule
whereby such degree of care and vigilance is calibrated; it is
dependent upon the circumstances in which a person finds himself.
All that the law requires is that it is perpetually compelling upon a
person to use that care and diligence expected of sensible men
under comparable circumstance.145

144
Villareal v. People, G.R. No. 151258, December 01, 2014.
145
PNR, et al., v. CA, et al., G.R. No. 157658, October 15, 2007.
 (2) Negligence is want of the care required by the circumstances. It is a
relative or comparative, not an absolute, term and its application
depends upon the situation of the parties and the degree of care
and vigilance which the circumstances reasonably require. 146 

(3) The test to determine the existence of negligence in a particular

case may be stated as follows: Did the defendant in the
performance of the alleged negligent act use reasonable care and
caution which an ordinary person would have used in the same
situation? If not, then he is guilty of negligence. 147

(4) May a crime be committed without criminal intent? Yes, in case of

culpa and crimes punishable by mala prohibita.

5) Malum in Se and Malum Prohibitum.

a) Crimes can be classified as to their nature such as:

i) Malum in se (or mala in se); and

ii) Malum prohibitum (or mala prohibita).

b) Concept of malum in se and malum prohibitum.

i) Violations of the Revised Penal Code are referred to as mala in se,

which literally means, the act is inherently evil or bad or per se
wrongful. On the other hand, violations of special laws are generally
referred to as malum prohibitum. These are acts which are made evil
by a law prohibiting the same. However, not all violations of special
laws are malum prohibitum. While intentional felonies are always
malum prohibitum, it does not necessarily follow that prohibited acts
done in violation of special laws are malum prohibitum. Even if the
crime is punished under a special law, if the act punished which is
inherently wrong, the same is malum in se, hence the defense of good
faith and lack of criminal intent is a valid defense unless it is the
product of criminal negligence of culpa.

ii) When the special laws require that the act be committed knowingly and
willfully, criminal intent is required to be proved before criminal liability
may arise. When the act penalized is not inherently wrong, but it is
wrong only because a law punishes the same, the act is malum
prohibitum. For example, piracy and brigandage are punishable under
PD 532, a special law. Although these acts are punished under special
146
U.S. v. Barias, G.R. No. L-7567, November 12, 1912
147
ANECO v. Balen, et al., G.R. No. 173146, November 25, 2009
 law, piracy and brigandage are inherently wrong, thus they are mala in
se. Hence, good faith is a defense.

iii) A common misconception is that all mala in se crimes are found in the
Revised Penal Code (RPC), while all mala prohibita crimes are
provided by special penal laws. In reality, however, there may be mala
in se crimes under special laws, such as plunder under R.A. No. 7080,
as amended.148 Similarly, there may be mala prohibita crimes defined in
the RPC, such as technical malversation.149

iv) Test to determine whether the law is malum prohibitum. The rule on
the subject is that in acts mala in se, the intent governs, but in
acts mala prohibita, the only inquiry is, has the law been violated? 150
When an act is illegal, the intent of the offender is immaterial. 151 When
the doing of an act is prohibited by law, it is considered injurious to
public welfare, and the doing of the prohibited act is the crime itself. 152

v) Distinctions between malum in se and malum prohibitum.

(1) As to the moral trait of the offender, in malum in se, the basis of
criminal liability is the moral fiber of the offender. The criminal
liability would only arise if there is dolo or culpa in the commission
of the punishable act; while in malum prohibitum, the moral trait of
the offender is not considered. The basis is the offender’s
voluntariness or whether he committed the prohibited act willfully.

(2) As to the defense of good faith, in malum in se, good faith or lack of
criminal intent is a defense, whereas good faith/criminal intent is not
a defense in malum prohibitum (except when intent is an element of
the crime such as in Sec. 3(e) of RA 3019 which requires that the
prohibited act be committed by a public official with evident bad
faith.)

(3) As to modifying circumstances, in malum in se, the modifying

circumstances are taken into account in imposing penalty because
his moral trait is the basis of the crime. In malum prohibitum, these
modifying circumstances are not considered.

148
Estrada v. Sandiganbayan, 421 Phil. 290 (2001).
149
Ysidoro v. People, G.R. No. 192330, November 14, 2012.
150
Dunlao, Sr. v. CA, 329 Phil. 613, 619 (1996).
151
Tan v. Ballena, 579 Phil. 503 (2008).
152
Dungo v. People, G.R. No. 209464, July 1, 2015.
 (4) As to the degree of participation, in malum in se, the degree of
participation determines the penalty imposable. In malum
prohibitum, the degree of participation of the offenders do not affect
their liability. Hence, the penalty on all of them are the same as
they are all considered principals, unless the law expressly
considers them otherwise, such as abettors of brigandage in PD
532, who are deemed accomplices.

(5) As to the stage of commission of crime, in malum in se, the stage of

accomplishment affects the penalty imposed whether
consummated, frustrated, or attempted. In malum prohibitum, the
stage of accomplishment is only consummated. No frustrated or
attempted because it is the commission of the act itself that is
penalized.

(6) As to moral turpitude, in malum in se, the crimes generally include

moral turpitude. In malum prohibitum, these do not involve moral
turpitude.

vi) The importance of knowing the distinction between malum in se and

malum prohibitum.

(1) This distinction is important with reference to the intent with which a
wrongful act is done. The rule on the subject is that in acts mala in
se, the intent governs; but in acts mala prohibita, the only inquiry is,
has the law been violated? When an act is illegal, the intent of the
offender is immaterial.153 When the doing of an act is prohibited by
law, it is considered injurious to public welfare, and the doing of the
prohibited act is the crime itself.154

(2) The better approach to distinguish between mala in se and mala

prohibita crimes is the determination of the inherent immorality or
vileness of the penalized act. If the punishable act or omission is
immoral in itself, then it is a crime mala in se - on the contrary, if it
is not immoral in itself, but there is a statute prohibiting its
commission by reasons of public policy, then it is mala prohibita. In
the final analysis, whether or not a crime involves moral turpitude is
ultimately a question of fact and frequently depends on all the
circumstances surrounding the violation of the statute. 155

153
Tan v. Ballena, 579 Phil. 503 (2008).
154
Dungo v. People, G.R. No. 209464, July 1, 2015.
155
Teves v. COMELEC, 604 Phil. 717 (2009), citing Dela Torre v. COMELEC, 327 Phil. 1144
(1996).
 vii) Rules on absorption in malum in se and malum prohibitum.

(1) The doctrine of absorption of common crimes (also called

Hernandez doctrine) is a rule that enunciates that the ingredients of
a crime form part and parcel thereof, 156 and hence, are absorbed by
the same and cannot be punished either separately therefrom or by
the application of Art. 48 of the Revised Penal Code. 157 It held that
the crime of rebellion under the Revised Penal Code is charged as
a single offense, and that it cannot be made into a complex crime.

(2) A mala in se felony cannot absorb mala prohibita. What makes a

mala in se is criminal intent or negligence while the latter, it is
criminal because of the special laws. Thus, more than one crime
will be charges if an act violates both the Revised Penal Code and
Special Penal Law, e.g. BP 22 and estafa, illegal recruitment and
estafa, and torture and murder, homicide, physical injuries.

(3) The exception to the rule is when the special penal law (SPL)
expressly allows such absorption. If SPL’s allow absorption, then
only one crime is committed. For example, under RA 7610, if the
lascivious conduct or sexual abuse is committed against a minor
who is less than 12 years of age, the offender shall be charged and
prosecuted for rape or acts of lasciviousness. However, the penalty
is the one provided by the SPL.158

(4) Offenses and felonies cannot be complexed under Article 48 of

RPC. However, there is a special complex crime of carnapping with
homicide as the SPL allows it.159

(5) When an act violates the provisions of the Revised Penal Code and
a special law, the offender can be prosecuted for two crimes:

(a) Estafa and violation of BP 22 (Bouncing check law). While a BP

22 case and an estafa case may be rooted from an identical set
of facts, they nevertheless present different causes of action,
which, under the law, are considered "separate, distinct, and
independent" from each other. Therefore, both cases can

156
People v. Hernandez, 99 Phil. 515.
157
Enrile v. Amin, G.R. 93335, September 13, 1990.
158
Sac. 5(b), RA 7610.
159
People v. Bariquit, 395 Phil. 823 (2000).
 proceed to their final adjudication – both as to their criminal and
civil aspects – subject to the prohibition on double recovery. 160

(b) Estafa and violation of illegal recruitment.  A person may be

charged and convicted for both illegal recruitment and estafa.
The reason therefor is not hard to discern: illegal recruitment
is malum prohibitum, while estafa is mala in se. In the first, the
criminal intent of the accused is not necessary for conviction. In
the second, such intent is imperative.161

(c) Anti-torture and the resulting crime like physical injuires. Torture
as a crime shall not absorb or shall not be absorbed by any
other crime or felony committed as a consequence, or as a
means in the conduct or commission thereof. In which case,
torture shall be treated as a separate and independent criminal
act whose penalties shall be imposable without prejudice to any
other criminal liability provided for by domestic and international
laws.162

(d) There is no absorption when the special law bars the

prosecution for other crimes, for example, terrorism absorbs the
predicate crimes, or child abuse under RA 7610 absorbs acts of
lasciviousness or rape;

(e) One crime absorbing the others as an element, or as an

aggravating circumstances such as illegal possession of
firearms absorbed by rebellion, or aggravating murder or
homicide; terrorism absorbing the predicate crimes; plunder
absorbing the predicate crimes.

(f) Article 365 of the RPC cannot absorb the charges for violation
of PD 1067 (Philippines Water Code), PD 984 (Anti-Pollution
Law), and RA 7942 (Philippine Mining Act). A mala in se felony
(such as Reckless Imprudence Resulting in Damage to
Property) cannot absorb mala prohibita crimes (such as those
violating PD 1067, PD 984, and RA 7942). What makes the
former a felony is criminal intent (dolo) or negligence (culpa);
what makes the latter crimes are the special laws enacting
them.163

160
Lim v. Kou Co Ping, G.R. No. 175256, August 23, 2012.
161
People v. Chua, 695 Phil.16, 31 (2012).
162
Sec. 15, RA 9745.
163
Loney, et al. v. People, G.R. No. 152644, February 10, 2006.
Basis of Criminal Liability

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 an account of the employment of inadequate or
ineffectual means.

1) How criminal liability is incurred.

a) The basis for incurring criminal liability is found in Article 4 of the Code.
While Article 3 refers to the manner by which criminal act is committed,
Article 4 deals with the person committing the act resulting in criminal
liability.

b) Criminal liability is incurred in two (2) ways:

i) By committing a felony even if the wrong produced as a consequence

thereof is not intended by the offender; or
ii) By impossible crime.

2) “By committing a felony even if the crime is different from what intended.”

a) This rule is based on the Spanish maxim “El que es causa de la causa es
causa del mal causado”164 which literally means “he who is the cause of
the cause is the cause of the evil caused.” The similar rule in American
jurisprudence is that "if the act of the accused was the cause of the cause
of death, no more is required."165

b) One who commits an intentional felony is responsible for all the

consequences which may naturally and logically result therefrom, whether
foreseen or intended or not. Ordinarily, when a person commits a felony
with malice, he intends the consequences of his felonious act. In view of
paragraph 1 of Art. 4, a person committing a felony is criminally liable
although the consequences of his felonious acts are not intended by
him.166
164
People v. Ural, G.R. No. L-30801, March 27, 1974.
165
40 C.J.S. 854
166
People v. Carmen, et al., G.R. No. 137268, March 27, 2006.
 c) Requisites. In order that a person may be criminally liable for a felony
different from that which he intended to commit, it is indispensible (a) that
a felony was committed and (b) that the wrong done to the aggrieved
person be the direct consequence of the crime committed by the
perpetrator.167

i) First requisite. The act committed must be a felony. It follows that if the
act committed is lawful, even though an injury results, there is no
criminal liability except if the act committed is through negligence. 168 In
negligence case, the liability is anchored not on Article 4 but under
Article 365 of the Code which provides that one is criminally liable for
culpable felony.

(1) If the act of firing although committed in self-defense was not aimed
at the assailant but indiscriminately fired upon innocent persons,
the act of self-defense was not exercised with due care, hence,
there is criminal liability.169

(2) Although the killing of the paramour caught having sexual

intercourse with the accused wife is not an unlawful act pursuant to
Article 247 of the Revised Penal Code, the accused can be held
criminally liable for the injuries sustained by other persons due to
the presence of negligence.170

ii) Second requisite. One is criminally liable for acts committed by him in
violation of law for all the natural, logical and direct consequences
resulting therefrom.

(1) If a man creates in another person’s mind an immediate sense of

danger, which causes such person to try to escape, and, in so
doing, the latter injures himself, the man who creates such state a
mind is responsible for the resulting injuries. 171

(2) If a person against whom a criminal assault is directed reasonably

believes himself to be in danger of death or great bodily harm and
in order to escape jumps into the water, impelled by instinct of self-

167
People v. Sales, G.R. No. 177218, October 3, 2011.
168
Gregorio, Fundamentals on Criminal Law Review, page 25, 1997 ed.
169
Id. citing People v. Galacgac, CA, 54 O.G. 1027.
170
People v. Abarca, G.R. No. 74433, September 14, 1987.
171
People v. Page, 77 SCRA 348 cited by Luis Reyes, The Revised Penal Code, page 71, 2012
ed.
 preservation, the assailant is responsible for homicide in case of
death results by drowning.172

(3) Exception. When there is intervening cause, the felony is not the
direct and proximate cause of the injury.

d) “Although the wrongful act done be different from that which he intended.”

i) Mistake of facts (Ignorantia facti excusat).

(1) It is an act or omission which is the result of a misapprehension of

acts that is voluntary but not intentional. A mistake of fact will
exempt a person from criminal liability so long as the alleged
ignorance or mistake of fact was not due to negligence or bad
faith.  The actor performed an act which would be lawful had it been
true as he believed to be. It is exempting if it is committed in good
faith or under honest belief (Ah Chong doctrine).173

(2) An honest mistake of fact destroys the presumption of general

criminal intent which arises upon the commission of felonious act. 174

(3) If there is negligence, mistake of facts is not exempting and the

actor is liable for committing a felony by means of culpa. 175

(4) Mistake of facts due to negligence as when the accused did not first
verify the identity of the victim before firing at him as he had
opportunity to do so is not exempting.176

(5) Effect on criminal liability. No criminal liability unless there is

negligence.

ii) Mistake in the identity.

(1) Mistake in the identity is a manner or incurring criminal liability

according to Paragraph 1, Article 4, Revised Penal Code. It is
a mistake in the identity of the victim, which may either be "error in

172
U.S. v. Valdez, 41 Phil. 497, Ibid.
173
U.S. v. Ah Chong, G.R. No. L-5272, March 19, 1910.
174
People v. Oanis, 74 Phil. 257
175
Gregorio, Antonio; Fundamentals of Criminal Law, page 22, 1997 ed.
176
People v. Francisco, 49 Phil. 75
 personae" (mistake of the person), or "aberratio ictus" (mistake in
the blow), it is neither exempting nor mitigating. 177

(2) Error in personae (mistake in identity).

(a) A person is criminally liable for committing an intentional felony

although the consequent victim is different from that intended
due to mistake of identity. (Art. 49 of RPC).

(b) Requisites: (a) Offender committed an intentional felony; and (b)

the consequent victim against whom the felony was directed is
different from that intended due to mistake of identity. 178

(c) Effect on criminal liability. It is extenuating if the resulting crime

is greater than intended. No effect if the resulting crime is the
same as that intended.

(3) Mistake in the blow.

(a) A person who committed a felony is responsible for the direct,

natural and logical consequences of his act. He is who is the
cause of the cause is the cause of the evil caused. 179 It is
characterized by aiming at one but hitting another due to
imprecision, or when one of the two accused released the
second "indian pana", which accidentally hit another person
instead of the person intended by them. They are liable for the
consequences of their felonious act, therefore, cannot escape
the criminal liability resulting from the injury suffered by the
victim.180

(b) Effect on criminal liability. Increases criminal liability which

generally results in complex crime (Art. 48 of RPC)

iii) Lack of intent to commit so grave a wrong (praeter intentionem).

(1) Any person committing a felony (delito) although the wrongful act
done be different from that which he intended is criminally liable.

177
People v. Gona, 54 Phil. 605
178
Campanilla, Marlon; Revised Penal Code, page 104, 2007 ed.
179
Article 4, Revised Penal Code
180
People v. Gemoya, G.R. No. 132633, October 4, 2000.
 (2) Essential requisites: (a) the intended act is felonious; (b) the
resulting act is likewise a felony; and (c) the unintended albeit
graver wrong was primarily caused by the actor’s wrongful acts. 
 
(3) Effect on criminal liability. It is mitigating under Article 13 of the
Code.

iv) Proximate cause.

(1) 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. 181

(2) Under paragraph 1, Article 4 of the Revised Penal Code, criminal

liability is incurred by any person committing a
felony (delito) although the wrongful act done be different from that
which he intended. Apropos to all these is that time-respected
doctrine: "He who is the cause of the cause is the cause of the evil
caused." This is the rationale in Article 4 of the Revised Penal Code
which provides that "criminal liability shall be incurred by a person
committing a felony (delito) although the wrongful act done be
different from that which he intended."

(3) Thus, anyone who inflicts injuries voluntarily and with intent is liable
for all the consequences of his criminal act, such as death that
supervenes as a consequence of the injuries. Here, accused-
appellant is liable for the demise of the victim for such was caused
by the violent kicks which he inflicted on the vital parts of the
victim’s body. The foot jabs delivered by accused-appellant to the
victim were more than nudges, but severe kicks which ruptured the
intestines of the victim, later resulting in his death. 182

(4) Even if the victim is suffering from an internal ailment, liver or heart
disease, or tuberculosis, if the blow delivered by the accused: is
the efficient cause of death; or it accelerated his death; or is the
proximate cause of death; then there is criminal liability. 183 

(5) Even though a blow with the fist or a kick does not cause any
external wound, it may easily produce inflammation of the spleen
and peritonitis and cause death, and even though the victim may
have been previously affected by some internal malady, yet if the
181
Ramos v. C.O.L Realty Corp., G.R. No. 184905, August 28, 2009.
182
People v. Flores, G.R. No. 116525, January 18, 1996.
183
People v. Ilustre, 54 Phil. 594.
 blow with the fist or foot accelerated death, he who caused such
acceleration is responsible for the death as the result of an injury
willfully and unlawfully inflicted.184

(6) If there is efficient intervening cause, there is no criminality liability.

The victim was injured when he parried the attack of the accused.
After 22 days, he suffered the symptoms of tetanus, like lockjaw
and muscle spasms. The following day, he died. It was found that
the attending physician found no tetanus in the injury, and that the
victim got infected with tetanus when after two weeks he returned
to his farm and tended his tobacco plants with his bare hands
exposing the wound to harmful elements like tetanus germs. The
medical findings lead us to a distinct possibility that the infection of
the wound by tetanus was an efficient intervening cause later or
between the times the victim was wounded to the time of his death.
The infection was, therefore, distinct and foreign to the crime. There
is a likelihood that the wound was but the remote cause and its
subsequent infection, for failure to take necessary precautions, with
tetanus may have been the proximate cause of victim’s death with
which the petitioner had nothing to do. 185

(7) A prior and remote cause cannot be made the basis of an action if
such remote cause did nothing more than furnish the condition or
give rise to the occasion by which the injury was made possible, if
there intervened between such prior or remote cause and the injury
a distinct, successive, unrelated, and efficient cause of the injury,
even though such injury would not have happened but for such
condition or occasion. If no danger existed in the condition except
because of the independent cause, such condition was not the
proximate cause. And if an independent negligent act or defective
condition sets into operation the instances, which result in injury
because of the prior defective condition, such subsequent act or
condition is the proximate cause.186

(8) Effect on criminal liability. Whether acting with intent or through

negligence, the actor is criminally liable.

3) Impossible crime.

a) Nature. Criminal liability is incurred by any person performing an act which

would be an offense against persons or property, were it not for the
184
U.S. v. Rodriguez, 23 Phil. 22.
185
Urbano v. IAC, G.R. No. 72964, January 7, 1988.
186
Manila Electric Co. v. Remoquillo, et al., 99 Phil. 118.
 inherent impossibility of its accomplishment or on account of the
employment of inadequate or ineffectual means.

b) Article 4, paragraph 2 is an innovation of the Revised Penal Code.

This seeks to remedy the void in the Old Penal Code where it was
necessary that the execution of the act has been commenced, that
the person conceiving the idea should have set about doing the
deed, employing appropriate means in order that his intent might
become a reality, and finally, that the result or end contemplated
shall have been physically possible. So long as these conditions
were not present, the law and the courts did not hold him criminally
liable. This legal doctrine left social interests entirely
unprotected. The Revised Penal Code, inspired by the Positivist
School, recognizes in the offender his formidability, and now
penalizes an act which were it not aimed at something quite
impossible or carried out with means which prove inadequate, would
constitute a felony against person or against property. The rationale
of Article 4(2) is to punish such criminal tendencies. 187

c) Under this article, the act performed by the offender cannot produce an
offense against person or property because: (1) the commission of the
offense is inherently impossible of accomplishment: or (2) the means
employed is either (a) inadequate or (b) ineffectual. 188

d) To be impossible under this clause, the act intended by the offender must
be by its nature one impossible of accomplishment. There must be either
impossibility of accomplishing the intended act in order to qualify the act
an impossible crime.189

e) Requisites:

i) That the act performed would be an offense against persons or

property;
ii) That the act was done with evil intent; and
iii) That its accomplishment was inherently impossible, or the means
employed was either inadequate or ineffectual. 190 

f) Two (2) kinds of impossibility: (a) Legal impossibility; and (b) Factual
impossibility.

187
Intod v. CA, G.R. No. 103119, October 21, 1992.
188
Intod v. CA, G.R. No. 103119, October 21, 1992.
189
Ibid.
190
Jacinto v. People, G.R. No. 162540, July 13, 2009.
 i) Legal impossibility occurs where the intended acts, even if completed,
would not amount to a crime. Legal impossibility would apply to those
circumstances where: (a) the motive, desire and expectation is to
perform an act in violation of the law; (b) there is intention to perform
the physical act; (c) there is a performance of the intended physical
act; and (d) the consequence resulting from the intended act does not
amount to a crime.191

ii) The impossibility of killing a person already dead falls in this

category.192 However, for this to exist, the victim’s fact of death
must be sufficiently established by the accused. One’s opinion
cannot support a conclusion that the latter was already dead
when the accused stabbed him. The fact of death cannot be
established by merely looking at the body.  No other act was done
to ascertain this, such as checking of victim’s pulse, heartbeat or
breathing.193  Accused mere conjecture that the victim had already
expired by the time he hacked her cannot be sufficient to support
his assertion of an impossible crime.194 

iii) The presence of conspiracy between the offenders negates

impossible crime. Even on the assumption that the victim was
already dead when the accused stabbed the former, the accused
is still liable since he is equally responsible for the act committed
by his co-conspirator who earlier hacked the victim. With
conspiracy attending, collective liability attaches to the
conspirators and the Court shall not speculate on the extent of
their individual participation in the Murder. Accused defense of
impossible crime is thus completely unavailing. 195

iv) Factual impossibility occurs when extraneous circumstances unknown

to the actor or beyond his control prevent the consummation of the
intended crime.196  

g) Penalty for impossible crime. The penalty is arresto mayor or a fine

ranging from 200 to 500 pesos.197

h) Concepts.
191
Ibid.
192
Ibid.
193
People v. Callao, G.R. No. 228945, March 14, 2018.
194
People v. Gumimba, G.R. No. 174056, February 27, 2007.
195
Ibid.
196
Intod v. CA, supra.
197
Article 59, RPC.
 i) One example is the man who puts his hand in the coat pocket of
another with the intention to steal the latter's wallet and finds the
pocket empty.198

ii) Another example is when the offender shoots the place where he
thought his victim would be, although in reality, the victim was not
present in said place and thus, he failed to accomplish his end. 199

iii) A collector received the post-dated check in payment of a

merchandise. Instead of remitting the same, she deposited it in the
account of her brother-in-law. The check however was dishonored.
There is impossible crime. She performed all the acts to
consummate the crime of qualified theft, which is a crime against
property. Petitioner's evil intent cannot be denied, as the mere act of
unlawfully taking the check meant for Mega Foam showed her intent to
gain or be unjustly enriched. Were it not for the fact that the check
bounced, she would have received the face value thereof, which was
not rightfully hers. Therefore, it was only due to the extraneous
circumstance of the check being unfunded, a fact unknown to
petitioner at the time, that prevented the crime from being
produced. The thing unlawfully taken by petitioner turned out to be
absolutely worthless, because the check was eventually dishonored. 200

iv) If the crime is not produced although there is adequate or effectual

means employed, it cannot be impossible crime but a frustrated
felony.201

v) If the acts constitute another distinct felony, an impossible crime is not

committed because objectively a crime is committed. 202

vi) There is no frustrated or attempted stage because the acts performed

are believed by the accused to be capable of consummation. 203

vii)In American jurisprudence, where the offense sought to be

committed is factually impossible or accomplishment, the
offender cannot escape criminal liability. He can be convicted of
an attempt to commit the substantive crime where the elements of
198
U.S. v. Berrigan, 482 F. 2nd. 171.
199
Intod v. CA, supra.
200
Jacinto v. People, Ibid (5)
201
Gregorio, supra.
202
Ibid.
203
Ibid.
 attempt are satisfied. It appears, therefore, that the act is
penalized, not as an impossible crime, but as an attempt to
commit a crime. On the other hand, where the offense is legally
impossible of accomplishment, the actor cannot be held liable for
any crime — neither for an attempt not for an impossible crime.
The only reason for this is that in American law, there is no such
thing as an impossible crime. Instead, it only recognizes
impossibility as a defense to a crime charge — that is, attempt.
This is not true in the Philippines. In our jurisdiction, impossible
crimes are recognized. The impossibility of accomplishing the
criminal intent is not merely a defense, but an act penalized by
itself. Furthermore, the phrase "inherent impossibility" that is
found in Article 4(2) of the Revised Penal Code makes no
distinction between factual or physical impossibility and legal
impossibility. Ubi lex non distinguit nec nos distinguere
debemos.204

viii) To uphold the contention of respondent that the offense was

Attempted Murder because the absence of the victim was a
supervening cause independent of the actor's will, will render
useless the provision in Article 4, which makes a person
criminally liable for an act "which would be an offense against
persons or property, were it not for the inherent impossibility of
its accomplishment." In that case all circumstances which
prevented the consummation of the offense will be treated as an
accident independent of the actor's will which is an element of
attempted and frustrated felonies.205

Stages of Execution.

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 or over acts, and does not perform all the acts of
204
Intod v. CA, supra.
205
Ibid.
execution which should produce the felony by reason of some cause or
accident other than this own spontaneous desistance.

1) Phases of execution.

a) Subjective phase. The subjective phase is that portion of the acts

constituting the crime included between the act which begins the
commission of the crime and the last act performed by the offender which,
with the prior acts, should result in the consummated crime. From that
time forward the phase is objective. It may also be said to be that period
occupied by the acts of the offender over which he has control — that
period between the point where he begins and the points where
he voluntarily desists. If between these two points the offender is stopped
by reason of any cause outside of his own voluntary desistance, the
subjective phase has not been passed and it is an attempt. If he is not so
stopped but continues until he performs the last act, it is frustrated. 206

b) Objective phase. It is the result of the acts of the execution, or the

accomplishment of the crime. If subjective and objective phases are
present, there is consummated felony.207

2) Stages of execution.

a) Attempted felony. There is an attempt when the offender commences the

commission of a felony directly by overt acts, and does not perform all the
acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance. 208

i) Essential elements of attempted felony:

(1) The offender commences the commission of the felony directly by

overt acts;
(2) He does not perform all the acts of execution which should produce
the felony;
(3) The offenders act be not stopped by his own spontaneous
desistance;
(4) The non-performance of all acts of execution was due to cause or
accident other than his spontaneous desistance. 209

ii) First requisite. Overt act.

206
U.S. v. Eduave, G.R. No. 12155, February 2, 1917.
207
Gregorio, Idem. supra.
208
Article 6, Revised Penal Code
209
People v. Lizada, G.R. No. 143468-71, January 24, 2003.
 (1) Elements:

(a) That there be external acts; and

(b) Such external acts have direct connection with the crime
intended to be committed.210

(2) An overt or external act is defined as some physical activity or

deed, indicating the intention to commit a particular crime, more
than a mere planning or preparation, which if carried out to its
complete termination following its natural course, without being
frustrated by external obstacles nor by the spontaneous desistance
of the perpetrator, will logically and necessarily ripen into a
concrete offense.211

(3) It is necessary that the overt act should have been the ultimate step
towards the consummation of the design. It is sufficient if it was the
first or some subsequent step in a direct movement towards the
commission of the offense after the preparations are made. The act
done need not constitute the last proximate one for completion. It is
necessary, however, that the attempt must have a causal relation to
the intended crime. In the words of Viada, the overt acts must have
an immediate and necessary relation to the offense. 212

iii) Acts constitutive of attempt to commit felony distinguished from

preparatory acts. Preparatory acts consist of devising means or
measures necessary for accomplishment of a desired object or end.
One perpetrating preparatory acts is not guilty of an attempt to commit
a felony. However, if the preparatory acts constitute a consummated
felony under the law, the malefactor is guilty of such consummated
offense. For overt acts to constitute an attempted offense, it is
necessary that their objective be known and established or such
that acts be of such nature that they themselves should obviously
disclose the criminal objective necessarily intended, said objective and
finality to serve as ground for designation of the offense. 213

iv) Distinction between consummated and frustrated felonies on one

hand, and attempted felonies on the other. So long as the offender fails
to complete all the acts of execution despite commencing the
commission of a felony, the crime is undoubtedly in the attempted
210
Rivera, et al., v. People, G.R. No. 116326, January 25, 2006.
211
Lizada, supra.
212
Ibid.
213
People v. Lizada, supra.
 stage. Since the specific acts of execution that define each crime
under the Revised Penal Code are generally enumerated in the code
itself, the task of ascertaining whether a crime is attempted only would
need to compare the acts actually performed by the accused as
against the acts that constitute the felony under the Revised Penal
Code.214

v) Effect of spontaneous desistance. The spontaneous desistance of a

malefactor exempts him from criminal liability for the intended crime
but it does not exempt him from the crime committed by him before his
desistance.215

vi) There is no attempted felony by omission because overt acts are not
performed.216

b) Frustrated felony. There is frustrated felony 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.217

i) Nature. In case of frustrated crimes, the subjective phase is completely

passed. Subjectively, the crime is complete. Nothing interrupted the
offender while he was passing through the subjective phase. The
crime, however, is not consummated by reason of the intervention of
causes independent of the will of the offender. He did all that was
necessary to commit the crime. If the crime did not result as a
consequence it was due to something beyond his control. 218

ii) Essential elements of frustrated felony:

(1) The offender performs all the acts of execution;

(2) All the acts performed would produce a felony as a consequence;
(3) The felony is not produced;
(4) By reason or causes independent of the will of the offender. 219

iii) Frustrated felony distinguished from attempted felony.

(1) In frustrated felony, the offender has performed all the acts of
214
Valenzuela v. People, G.R. No. 160188, June 21, 2007.
215
Ibid.
216
Gregorio, supra.
217
Article 6, supra.
218
U.S. v. Duave, supra.
219
People v. Caballero, G.R. No. 149028-30, April 2, 2003.
 execution which should produce the felony as a consequence;
whereas in attempted felony, the offender merely commences the
commission of a felony directly by overt acts and does not perform
all the acts of execution.

(2) In frustrated felony, the reason for the non-accomplishment of the

crime is some cause independent of the will of the perpetrator; on
the other hand, in attempted felony, the reason for the non-
fulfillment of the crime is a cause or accident other than the
offenders own spontaneous desistance.220

(3) In frustrated stage, there is no intervention of a foreign or

extraneous cause or agency between the beginning of the
commission of the crime and the moment when all of the acts have
been performed which should result in the consummated crime;
while in attempted stage, there is such intervention and the
offender does not arrive at the point of performing all of the acts
which should produce the crime. He is stopped short of that point
by some cause apart from his voluntary desistance.221

iv) No frustrated stage in the following felonies:

(1) Theft and robbery. There is no frustrated theft/robbery because

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.

(2) Rape. In the crime of rape, from the moment the offender has
carnal knowledge of his victim, he actually attains his purpose and,
from that moment also all the essential elements of the offense
have been accomplished.222 Rape is attempted if there is no
penetration of the female organ 223 because not all acts of execution
was performed. The offender merely commenced the commission
of a felony directly by overt acts. Taking into account the nature,
elements and manner of execution of the crime of rape and
jurisprudence on the matter, it is hardly conceivable how the
frustrated stage in rape can ever be committed.

(3) Adultery and concubinage. There is no frustrated stage as it is

either that the accused was able to engage in sex or not.   Adultery
220
Palaganas v. People, G.R. No. 165483, September 12, 2006.
221
U.S. v. Duave, supra.
222
People v. Orita, 184 SCRA 105.
223
People v. Tayaba, 62 Phil. 559.
 is an instantaneous crime which is consummated and exhausted or
completed at the moment of the carnal union. 224 However, some
commentators opine that there is attempted adultery as when the
couple was surprised in the room of a hotel both already
undressed.225

(4) Bribery and corruption of public official. There is no frustrated or

attempted stage since the crime is consummated at the moment
the agreement between the briber and corruptor is made.

(5) Physical injuries. There is no crime of attempted or frustrated

physical injuries because the mere inflicting of injuries already
consummates the crime. However, if there is intent to kill, the crime
is no longer physical injuries but either attempted or frustrated
homicide or murder.

(6) Acts of lasciviousness. There is no crime of attempted or frustrated

acts of lasciviousness. From the moment the offender performs all
the elements necessary for the execution of the felony, he actually
attains his purpose and all elements of the crime have been
accomplished.

c) Consummated felony. A felony is consummated when all the elements

necessary for its execution and accomplishment are present. 226

i) The determination of whether a crime is frustrated or consummated

necessitates an initial concession that all of the acts of execution have
been performed by the offender. The critical distinction instead is
whether the felony itself was actually produced by the acts of
execution. The determination of whether the felony was produced after
all the acts of execution had been performed hinges on the particular
statutory definition of the felony.227 

ii) In frustrated felony, the desire of the offender is not accomplished. In

consummated, the purpose is accomplished.

iii) No attempted or frustrated stage in the following crime (meaning, these

are penalized only when consummated):

(1) Offenses punishable by special penal laws, unless the law provides
224
U.S. v. Topiňo, supra.
225
Gregorio citing Viada and Cuello Callon, supra.
226
Article 6, supra.
227
Valenzuela v. People, supra.
 otherwise;
(2) Formal crimes, or those crimes which are always consummated.
Examples of formal crimes: (a) acts of lasciviousness, threats,
coercion, slander, and alarms and scandals;
(3) Impossible Crimes;
(4) Crimes consummated by mere attempt (e.g. attempt to flee to an
enemy country, treason, corruption of minors);
(5) Felonies by omission;
(6) Crimes committed by mere agreement (e.g. PD 1602, gambling or
betting in sports: “ending,” corruption of public officers).

iv) Factors in determining the stage of felony.

(1) The manner of the commission of the crime;

(2) The elements of the crime;
(3) The nature of the felony itself.

Chapter Three
CONSPIRACY AND PROPOSAL TO COMMIT CRIMES

Conspiracy and Proposal to Commit Crimes

Article 8. Conspiracy and proposal to commit felony. - Conspiracy

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

A conspiracy exists when two or more persons come to an

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

There is proposal when the person who has decided to commit a

felony proposes its execution to some other person or persons.

1) Definition.

a) Conspiracy – when two or more persons come to an agreement

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

b) Proposal – when the person who has decided to commit a felony

proposes its execution to some other persons.

2) Conspiracy. A conspiracy exists when two or more persons come to an

agreement concerning the commission of a felony and decide to commit it.
 a) Requisites:

i) Two or more persons came to an agreement;

ii) The agreement concerned the commission of a felony, and
iii) The execution of the felony was decided upon. 228

b) Kinds of conspiracy:

i) Conspiracy as a crime; and

ii) Conspiracy as a means to commit a crime.

c) Distinctions between conspiracy as a crime and as a means to commit a

crime.

i) In both cases, there is an agreement to commit a crime.

ii) In conspiracy as a crime, mere agreement is sufficient to be

punishable.

iii) In conspiracy as a means to commit a crime to be punishable, it is

necessary that overt acts to realize the criminal purpose must be
performed by the conspirators.229

d) Conspiracy as a crime.

i) Concept. This refers to conspiracies (or proposals) which the law

specifically punishes. Mere agreement to commit the crime is
punishable. No overt act is necessary for this crime to be committed.

ii) Conspiracies and proposals punishable under the Revised Penal

Code:

(1) Conspiracy to commit treason (Art. 115);

(2) Conspiracy to commit rebellion, insurrection, coup d’etat (Art. 136);
(3) Conspiracy to commit sedition (Art. 141);
(4) Proposal to commit treason (Art. 115);
(5) Proposal to commit rebellion, insurrection, or coup d’etat (Art. 136);
(6) Brigandage (Art. 306);
(7) Monopolies and combinations in restraint of trade (Art. 186)

iii) Conspiracies punishable under special laws:

228
People v. Fegidero, G.R. No. 113446, August 4, 2000.
229
Gregorio, supra. 45.
 (1) Conspiracy to commit arson (PD 1613);
(2) Conspiracy to commit offense under Sec. 26 of RA 9165
(Dangerous Drugs Act):

(a) Importation of any dangerous drug and/or controlled precursor

and essential chemical;
(b) Sale, trading, administration, dispensation, delivery, distribution
and transportation of any dangerous drug and/or controlled
precursor and essential chemical;
(c) Maintenance of a den, dive or resort where any dangerous drug
is used in any form;
(d) Manufacture of any dangerous drug and/or controlled precursor
and essential chemical; and
(e) Cultivation or culture of plants which are sources of dangerous
drugs.

(3) Conspiracy to commit terrorism (RA 9372);

(4) Conspiracy to Commit the Crimes of Financing of Terrorism and
Dealing with Property or Funds of Designated Persons (RA 10168);
(5) Conspiracy under RA 6713 (Code of Conduct and Ethical
Standards for Public Officials and Employees) - refers to private
individuals who conspire with public officials.

iv) Manner of alleging in the information. When conspiracy is

charged as a crime, the act of conspiring and all the elements of
said crime must be set forth in the complaint or information. For
example, the crime of "conspiracy to commit treason" is
committed when, in time of war, two or more persons come to an
agreement to levy war against the Government or to adhere to the
enemies and to give them aid or comfort, and decide to commit it.
The elements of this crime are: (1) that the offender owes
allegiance to the Government of the Philippines; (2) that there is a
war in which the Philippines is involved; (3) that the offender and
other person or persons come to an agreement to: (a) levy war
against the government, or (b) adhere to the enemies, to give
them aid and comfort; and (4) that the offender and other person
or persons decide to carry out the agreement. These elements
must be alleged in the information. 230

e) Conspiracy as a means to commit a crime.

i) Nature.
230
Estrada v. Sandiganbayan, G.R. No. 148965, February 26, 2002.
 (1) Generally, conspiracy is not a crime except when the law
specifically provides a penalty therefor. The crime of conspiracy
known to the common law is not an indictable offense in the
Philippines. An agreement to commit a crime is a reprehensible act
from the view-point of morality, but as long as the conspirators do
not perform overt acts in furtherance of their malevolent design, the
sovereignty of the State is not outraged and the tranquility of the
public remains undisturbed.231

(2) When conspiracy is a means to commit a crime, it is indispensable

that the agreement to commit the crime among all the conspirators,
or their community of criminal design must be alleged and
competently shown.232 The community of design to commit an
offense must be a conscious one. 233 Conspiracy must be
established, not by conjecture, but by positive and conclusive
evidence.234

(3) Manner of alleging conspiracy as a means of committing a

crime. The requirements on sufficiency of allegations are
different when conspiracy is not charged as a crime in itself
but only as the mode of committing the crime. A conspiracy
indictment need not, of course, aver all the components of
conspiracy or allege all the details thereof, like the part that
each of the parties therein have performed, the evidence
proving the common design or the facts connecting all the
accused with one another in the web of the conspiracy.
Neither is it necessary to describe conspiracy with the same
degree of particularity required in describing a substantive
offense. It is enough that the indictment contains a statement
of facts relied upon to be constitutive of the offense in
ordinary and concise language, with as much certainty as the
nature of the case will admit, in a manner that can enable a
person of common understanding to know what is intended,
and with such precision that the accused may plead his
acquittal or conviction to a subsequent indictment based on
the same facts.235 

(4) To ensure that the due process rights of an accused are

231
People v. Peralta, et al., G.R. No. L-19069, October 29, 1968.
232
Macapagal-Arroyo v. Sandiganbayan, G.R. No. 220598, July 19, 2016.
233
Bahilidad v. People, G.R. No. 185195, March 17, 2010.
234
Macapagal-Arroyo v. Sandiganbayan, supra.
235
People v. Quitlong, 292 SCRA 360, 376 [1998].
 observed, every indictment must embody the essential
elements of the crime charged with reasonable particularity as
to the name of the accused, the time and place of commission
of the offense, and the circumstances thereof. One such
particular circumstance is conspiracy where two or more
persons are charged in an information. Conspiracy denotes an
intentional participation in a criminal transaction, with a view
to the furtherance of a common design and purpose. It
imputes criminal liability to an accused for the acts of another
or others, regardless of the nature and extent of his own
participation.236

(5) In a conspiracy, the act of one becomes the act of all and the
particular act of an accused becomes of secondary relevance.
Thus, it is essential that an accused must know from the
information whether he is criminally accountable not only for
his acts but also for the acts of his co-accused as well. An
indictment for conspiracy is sufficient if: (1) it follows the
words of the statute creating the offense and reasonably
informs the accused of the character of the offense he is
charged with conspiring to commit; or (2) following the
statute, contains a sufficient statement of an overt act to effect
the object of the conspiracy; or (3) alleges both the conspiracy
and the contemplated crime in the language of the respective
statutes defining them.237

(6) The allegations pertaining to conspiracy must be conveyed in

appropriate language.238 The words "conspired,"
"confederated," or the phrase "acting in concert" or "in
conspiracy," or their synonyms or derivatives may be used to
allege conspiracy.

ii) Kinds of conspiracy. In terms of proving its existence, conspiracy takes

two forms:

(1) Express conspiracy. This requires proof of an actual agreement

among all the co-conspirators to commit the crime; Implied
conspiracy.

(2) Implied conspiracy is proved through the mode and manner of the
236
Garcia, v. CA, et al., G.R. No. 124036, October 23, 2001.
237
Ibid.
238
Ibid.
 commission of the offense, or from the acts of the accused before,
during and after the commission of the crime indubitably pointing to
a joint purpose, a concert of action and a community of interest. 239

iii) Kinds of conspiracy as to its nature:

(1) Wheel conspiracy. The wheel conspiracy occurs when there is a

single person or group (the hub) dealing individually with two or
more other persons or groups (the spokes).  The spoke typically
interacts with the hub rather than with another spoke. In the event
that the spoke shares a common purpose to succeed, there is a
single conspiracy. However, in the instances when each spoke is
unconcerned with the success of the other spokes, there are
multiple conspiracies.240

(a) 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 the 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.241

(b) Another example, the American case of Kotteakos v. United

States illustrates a wheel conspiracy where multiple
conspiracies were established instead of one single conspiracy.
There, Simon Brown, the hub, assisted 31 independent
individuals to obtain separate fraudulent loans from the US
Government. Although all the defendants were engaged in the
same type of illegal activity, there was no common purpose or
overall plan among them, and they were not liable for
involvement in a single conspiracy. Each loan was an end in
itself, separate from all others, although all were alike in having
similar illegal objects. Except for Brown, the common figure, no
conspirator was interested in whether any loan except his own
went through. Thus, the US Supreme Court concluded that
there existed 32 separate conspiracies involving Brown rather
than one common conspiracy.242
239
People v. Del Castillo,  G.R. No. 169084, January 18, 2012.
240
Estrada v. Sandiganbayan, G.R. No. 148965, February 26, 2002; Macapagal-Arroyo v.
Sandiganbayan, supra.
241
Ibid.
242
328 U.S. 750 (1946).
 (2) Chain conspiracy. Chain conspiracy exists when there is
successive communication and cooperation in much the same way
as with legitimate business operations between manufacturer and
wholesaler, then wholesaler and retailer, and then retailer and
consumer.243 This involves individuals linked together in a vertical
chain to achieve a criminal objective.244

(a) Illustrative of chain conspiracy was that involved in United

States v. Bruno,245 of the US Court of Appeals for the Second
Circuit. There, 88 defendants were indicted for a conspiracy to
import, sell, and possess narcotics. This case involved several
smugglers who had brought narcotics to retailers who, in turn,
had sold the narcotics to operatives in Texas and Louisiana for
distribution to addicts. The US Court of Appeals for the Second
Circuit ruled that what transpired was a single chain conspiracy
in which the smugglers knew that the middlemen must sell to
retailers for distribution to addicts, and the retailers knew that
the middle men must purchase drugs from smugglers. As
reasoned by the court, "the conspirators at one end of the chain
knew that the unlawful business would not and could not, stop
with their buyers; and those at the other end knew that it had not
begun with their sellers." Each conspirator knew that "the
success of that part with which he was immediately concerned
was dependent upon success of the whole." This means,
therefore, that "every member of the conspiracy was liable for
every illegal transaction carried out by other members of the
conspiracy in Texas and in Louisiana.246

iv) Concepts.

(1) Implied conspiracy. While conspiracy to commit a crime must be

established by positive evidence, direct proof is not essential to
show conspiracy. Since by its nature, conspiracy is planned in
utmost secrecy, it can seldom be proved by direct evidence.
Consequently, competent and convincing circumstantial evidence
will suffice to establish conspiracy.247

243
Estrada v. Sandiganbayan, supra.
244
Contemporary Criminal law. Concepts, Cases, and Controversies. Third Ed., Lippman, M. R.,
Sage Publication, California, USA, 2013, p. 195.
245
105 F.2d 921 (2d Cir. 1939).
246
Supra note 434.
247
People v. Peralta, et al., G.R. No. L-19069, October 29, 1968.
 (2) An implied conspiracy exists when two or more persons are shown
to have aimed by their acts towards the accomplishment of the
same unlawful object, each doing a part so that their combined
acts, though apparently independent, were in fact connected and
cooperative, indicating closeness of personal association and a
concurrence of sentiment.248

(3) In implied conspiracy, overt act is required before one can be held
criminally liable. To be considered a part of the conspiracy, each of
the accused must be shown to have performed at least an overt act
in pursuance or in furtherance of the conspiracy, for without being
shown to do so none of them will be liable as a co-conspirator, and
each may only be held responsible for the results of his own acts.
The act done need not constitute the last proximate one for
completion. It is necessary, however, that the attempt must have a
causal relation to the intended crime. In the words of Viada, the
overt acts must have an immediate and necessary relation to the
offense.249 An overt or external act is defined as some physical
activity or deed, indicating the intention to commit a particular
crime, more than a mere planning or preparation, which if carried
out to its complete termination following its natural course, without
being frustrated by external obstacles nor by the spontaneous
desistance of the perpetrator, will logically and necessarily ripen
into a concrete offense.250 

(4) The rule is that conspiracy must be shown to exist by direct

or circumstantial evidence, as clearly and convincingly as the crime
itself. In the absence of direct proof thereof, it may be deduced from
the mode, method, and manner by which the offense was
perpetrated, or inferred from the acts of the accused themselves
when such acts point to a joint purpose and design, concerted
action and community of interest. Hence, it is necessary that a
conspirator should have performed some overt acts as a direct or
indirect contribution in the execution of the crime planned to be
committed. The overt act may consist of active participation in the
actual commission of the crime itself, or it may consist of moral
assistance to his co-conspirators by being present at the
commission of the crime or by exerting moral ascendancy over the
other co-conspirators.251

248
People v. De Leon,  G.R. No. 179943, June 26, 2009.
249
Macapagal-Arroyo v. Sandiganbayan, supra.
250
People v. Lizada, G.R. No. 143468-71, January 24, 2003.
251
Salapuddin v. Court of Appeals, et al., G.R. No. 184681, February 25, 2013.
 (5) Thus, the conclusion that former Pres. Arroyo had been the
mastermind of plunder (when she affixed her unqualified "OK" on
the requests for the additional Confidential and Intelligence
Funds) was plainly conjectural and outrightly unfounded
considering that the information did not aver at all that she had
been the mastermind; hence, the Sandigabayan thereby acted
capriciously and arbitrarily. In the second place, the treatment by
the Sandiganbayan of her handwritten unqualified "OK" as an overt
act of plunder was absolutely unwarranted considering that such
act was a common legal and valid practice of signifying approval of
a fund release by the President.252

(6) Conspiracy transcends mere companionship, it denotes an

intentional participation in the transaction with a view to the
furtherance of the common design and purpose. 253 For conspiracy
to exist, it does not require an agreement for an appreciable period
prior to the occurrence.254 From the legal standpoint, conspiracy
exists if, at the time of the commission of the offense, the accused
had the same purpose and were united in its execution.255

(7) Mere presence of the accused without any participation negates

conspiracy.  No conspiracy may be deduced where there is no
evidence to show the participation of accused in the shooting
incident. The lone eyewitness testified that while he was hiding
behind the plants, he saw accused holding a gun and together with
other accused approached the lifeless body of his mother. The
mere presence of accused does not prove his participation in the
killing. The mere fact of being with other accused does not of itself
establish conspiracy.256 The fact that the accused accompanied
her husband at the restaurant and allowed her husband to
place the money inside her bag would not be sufficient to
justify the conclusion that conspiracy existed. In order to hold
an accused liable as co-principal by reason of conspiracy, he
or she must be shown to have performed an overt act in
pursuance or in furtherance of conspiracy.257

(8) To establish conspiracy, conspirator must have performed an

overt act. An overt or external act is defined as some physical
252
Macapagal-Arroyo v. Sandiganbayan, supra.
253
People v. Alejandro Marquita, et al., G.R. Nos. 119958-62, March 1, 2000.
254
People v. Aquino, G. R. No. 126047, September 16, 1999.
255
People v. Buluran, et al., G.R. No. 113940, February 15, 2000.
256
People v. Sosing, 111 SCRA 368 (1982).
257
Rimando v. People, G.R. No. 229701, November 29, 2017.
 activity or deed, indicating the intention to commit a particular
crime, more than a mere planning or preparation, which if
carried out to its complete termination following its natural
course, without being frustrated by external obstacles nor by
the spontaneous desistance of the perpetrator, will logically
and necessarily ripen into a concrete offense. The raison
d'etre for the law requiring a direct overt act is that the
conduct of the accused consisting merely of acts of
preparation has never ceased to be equivocal; and this is
necessarily so, irrespective of his declared intent. It is that
quality of being equivocal that must be lacking before the act
becomes one which may be said to be a commencement of the
commission of the crime, or an overt act or before any
fragment of the crime itself has been committed, and this is so
for the reason that so long as the equivocal quality remains,
no one can say with certainty what the intent of the accused is.
It is necessary that the overt act should have been the ultimate
step towards the consummation of the design. It is sufficient if
it was the first or some subsequent step in a direct movement
towards the commission of the offense after the preparations
are made. The act done need not constitute the last proximate
one for completion. It is necessary, however, that the attempt
must have a causal relation to the intended crime. In the words
of Viada, the overt acts must have an immediate and
necessary relation to the offense. 258 It is necessary that a
conspirator should have performed some overt act as a direct
or indirect contribution to the execution of the crime
committed. The overt act may consist of active participation in
the actual commission of the crime itself, or it may consist of
moral assistance to his co-conspirators by being present at
the commission of the crime or by exerting moral ascendancy
over the other co-conspirators. Hence, the mere presence of
an accused at the discussion of a conspiracy, even approval
of it, without any active participation in the same, is not
enough for purposes of conviction.259

(9) The overt act may consist of active participation in the actual
commission of the crime itself, or it may consist of moral
assistance to his co-conspirators by being present at the
commission of the crime or by exerting moral ascendancy
over the other co-conspirators.260
258
People v. Lizada, G.R. Nos. 143468-71, January 24, 2003.
259
Bahilidad v. PeopIe, G.R. No. 185195, March 17, 2010.
260
People v. Listerio, G.R. No. 122099, July 5, 2000.
 (10) Mere knowledge, acquiescence or approval of the act,
without the cooperation or approval to cooperate, is not sufficient to
prove conspiracy.261 Even if the accused were present and
agreed to cooperate with the main perpetrators of the crime,
their mere presence does not make them parties to it, absent
any active participation in the furtherance of the common
design or purpose. Likewise, where the only act attributable to
the other accused is an apparent readiness to provide
assistance, but with no certainty as to its ripening into an
overt act, there is no conspiracy. 262 While accused presence
and act of pointing at the victim and his group may mean he
approved of the crime or that he was ready to assist his co-
accused, absent any other overt act on his part, there is no
conspiracy.263

(11)Relationship, association and companionship do not prove

conspiracy.264 To establish conspiracy, evidence of actual
cooperation, rather than mere cognizance or approval of an illegal
act is required.265

(12)No conspiracy exists when there was no misunderstanding

between the two groups prior to the stabbing incident; he stabbing
incident appears to have arisen from a purely accidental encounter;
and the accused was unarmed during the incident, thus, negating
his intent to kill the victims.266

(13)Simultaneousness does not of itself demonstrate the concurrence

of will nor the unity of action and purpose which are the basis of the
responsibility of two or more individuals. To establish common
responsibility it is not sufficient that the attack be joint and
simultaneous; it is necessary that the assailants be animated by
one and the same purpose.267

(14)Conspiracy has not been shown beyond reasonable doubt to hold

all six accused as co-principals in the crime of murder if the

261
People v. Huang Zhen Hua, G.R. No. 139301, September 29, 2004.
262
People v. Mandao, G.R. No. 135048, December 3, 2002.
263
People v. Jesalva, G.R. No. 227306, June 19, 2017.
264
People v. Manijas, G.R. No. 148699, November 15, 2002.
265
People v. Salapuddin, supra.at 436.
266
Quidet v. People, G.R. No. 170289, April 8, 2010.
267
People v. Vestido, G.R. No. L-31582, October 26, 1977.
 stabbing happened in the "spur of the moment." Conspiracy means,
however, an agreement concerning the commission of a felony and
a decision to commit it.  If the tragedy was a chance stabbing, there
can be no conspiracy to speak of.268

(15)Proof of the conspiracy need not be based on direct evidence,

because it may be inferred from the parties’ conduct indicating a
common understanding among themselves with respect to the
commission of the crime. Neither is it necessary to show that two or
more persons met together and entered into an explicit agreement
setting out the details of an unlawful scheme or objective to be
carried out. The conspiracy may be deduced from the mode or
manner in which the crime was perpetrated; it may also be inferred
from the acts of the accused evincing a joint or common purpose
and design, concerted action and community of interest. 269

(16)Albeit no formal agreement is necessary to prove conspiracy and

the same way be inferred from the circumstances attending the
commission of the crime, yet conspiracy must be established by the
same quantum of evidence as any other ingredient of the offense.
Such evidence must show intentional participation in the transaction
with a view to the furtherance of the common design or purpose.
The same degree of proof necessary to establish the crime is
required to establish a finding of criminal conspiracy, that is, proof
beyond reasonable doubt. It cannot be established by conjectures
but by positive and conclusive evidence. 270 

(17)Conspiracy must be proven on the same quantum of evidence as

the felony subject of the agreement of the parties. Conspiracy may
be proved by direct or circumstantial evidence consisting of acts,
words, or conduct of the alleged conspirators before, during and
after the commission of the felony to achieve a common design or
purpose. To be a conspirator, one need not participate in every
detail of the execution; he need not even take part in every act or
need not even know the exact part to be performed by the others in
the execution of the conspiracy.271 

(18)In conspiracy, each member of the group performed specific and

coordinated acts as to indicate beyond doubt a common criminal
268
People v. Agapinay, et al., G.R. No. 77776, June 27, 1990.
269
People v. Fegidero, supra.
270
People v. Furugganan, 193 SCRA 471.
271
People v. Seraspe,  G.R. No. 180919, January 9, 2013.
 design or purpose. Even assuming arguendo that the prosecution
eyewitness may have been unclear as to who delivered the fatal
blow on the victim, accused-appellant as a conspirator is equally
liable for the crime as it is unnecessary to determine who inflicted
the fatal wound because in conspiracy, the act of one is the act of
all.272

(19) Collective Liability. Once an express or implied conspiracy is

proved, 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 or crimes perpetrated in furtherance of
the conspiracy because in contemplation of law the act of one is
the act of all.273 The concerted action of the conspirators in
consummating their common purpose is a patent display of their
evil partnership, and for the consequences of such criminal
enterprise they must be held solidarity liable. 274

(20) The foregoing rule is anchored on the sound principle that

"when two or more persons unite to accomplish a criminal object,
whether through the physical volition of one, or all, proceeding
severally or collectively, each individual whose evil will actively
contributes to the wrong-doing is in law responsible for the whole,
the same as though performed by himself alone. 275

(21) The moment it is established that the malefactors conspired

and confederated in the commission of the felony proved, collective
liability of the accused conspirators attaches by reason of the
conspiracy, and the court shall not speculate nor even investigate
as to the actual degree of participation of each of the perpetrators
present at the scene of the crime. Of course, as to any conspirator
who was remote from the situs of aggression, he could be drawn
within the enveloping ambit of the conspiracy if it be proved that
through his moral ascendancy over the rest of the conspirators the
latter were moved or impelled to carry out the conspiracy. 276

(22) In fine, the convergence of the wills of the conspirators in the

scheming and execution of the crime amply justifies the imputation
to all of them the act of any one of them. It is in this light that

272
People v. Listerio, G.R. No. 122099, July 5, 2000.
273
U.S. v. Ramos, 2 Phil. 434.
274
People v. Peralta, et al., G.R. No. L-19069, October 29, 1968.
275
People vs. Bannaisan, 49 Phil. 423.
276
People v. Peralta, et al., supra.
 conspiracy is generally viewed not as a separate indictable offense,
but a rule for collectivizing criminal liability. 277

Chapter Four
JUSTIFYING CIRCUMSTANCES

Justifying Circumstances
Article 11. Justifying circumstances. - The following do not incur any
criminal liability:

1) Anyone who acts in defense of his person or rights, provided that

the following circumstances concur;

First. Unlawful aggression.

277
Ibid.
 Second. Reasonable necessity of the means employed to prevent or
repel it.
Third. Lack of sufficient provocation on the part of the person
defending himself.

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

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

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

4) Any person who, in order to avoid an evil or injury, does not act
which causes damage to another, provided that the following
requisites are present;

First. That the evil sought to be avoided actually exists;

Second. That the injury feared be greater than that done to avoid it;
Third. That there be no other practical and less harmful means of
preventing it.

5) Any person who acts in the fulfillment of a duty or in the lawful

exercise of a right or office.

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

for some lawful purpose.

1) Nature. Those acts of the actor are in accordance with law and, hence, he
incurs no criminal and civil liability. Since the act is in accordance with law,
there is no criminal liability incurred by the actor nor any civil liability because
the crime as the source of obligation is not present. 278

a) The following are the justifying circumstances:

278
Gregorio, supra.
 i) Self-defense;
ii) Defense of relative;
iii) Defense of stranger;
iv) State of necessity;
v) Fulfillment of duty;
vi) Obedience to superior order.

2) Self-defense.

a) Nature.

i) Self-defense includes not only the defense of the person or body of the
one assaulted but also that of these rights, i.e. right to property and
right to honor.

ii) An accused who pleads a justifying circumstance under Article 11

of the Revised Penal Code admits to the commission of acts,
which would otherwise engender criminal liability. However, he
asserts that he is justified in committing the acts. In the process
of proving a justifying circumstance, the accused risks admitting
the imputed acts, which may justify the existence of an offense
were it not for the exculpating facts. Conviction follows if the
evidence for the accused fails to prove the existence of justifying
circumstances.279

iii) The burden of proof is on the accused when he admits committing the
crime. The burden is shifted to him and he must prove clearly and
convincingly the elements of self-defense.280

iv) When the accused’s defense is self-defense he thereby admits being

the author of the death of the victim, that it becomes incumbent upon
him to prove the justifying circumstance to the satisfaction of the court.
The rationale for the shifting of the burden of evidence is that the
accused, by his admission, is to be held criminally liable unless he
satisfactorily establishes the fact of self-defense. But the burden to
prove guilt beyond reasonable doubt is not thereby lifted from the
shoulders of the State, which carries it until the end of the proceedings.
In other words, only the onus probandi shifts to the accused, for self-
defense is an affirmative allegation that must be established with
certainty by sufficient and satisfactory proof. He must now discharge
the burden by relying on the strength of his own evidence, not on the

279
Velasquez, et al. v. People, G.R. No. 195021, March 15, 2017.
280
People v. Mondigo, G.R. No. 167954, January 31, 2008.
 weakness of that of the Prosecution, considering that the Prosecution’s
evidence, even if weak, cannot be disbelieved in view of his admission
of the killing.281

b) Requisites: To escape liability, the accused must show by sufficient,

satisfactory and convincing evidence that:

i) the victim committed unlawful aggression amounting to an actual

or imminent threat to the life and limb of the accused claiming
self-defense;

ii) there was reasonable necessity in the means employed to prevent

or repel the unlawful aggression; and

iii) there was lack of sufficient provocation on the part of the

accused claiming self-defense or at least any provocation
executed by the accused claiming self-defense was not the
proximate and immediate cause of the victim’s aggression. 282

c) Unlawful aggression.

i) Unlawful aggression is defined as an actual physical assault, or at

least a threat to inflict real imminent injury, upon a person. In case of
threat, it must be offensive and strong, positively showing the wrongful
intent to cause injury. It presupposes actual, sudden, unexpected or
imminent danger not merely threatening and intimidating action. It is
present only when the one attacked faces real and immediate threat to
one’s life.283

ii) Unlawful aggression on the part of the victim is the primordial element
of the justifying circumstance of self-defense. Without unlawful
aggression, there can be no justified killing in defense of oneself. 284 

iii) The test for the presence of unlawful aggression under the
circumstances is whether the aggression from the victim put in real
peril the life or personal safety of the person defending himself; the
peril must not be an imagined or imaginary threat. 285

iv) The accused must establish the concurrence of three elements of

281
People v. Del Castillo, G.R. No. 169084, January 18, 2012.
282
People v. Nugas, G.R. No. 172606, 23 November 2011.
283
People v. Gabrino, G.R. No. 192581, November 17, 2010.
284
People v. Nugas, supra.
285
Ibid.
 unlawful aggression, namely: (a) there must be a physical or material
attack or assault; (b) the attack or assault must be actual, or, at least,
imminent; and (c) the attack or assault must be unlawful.286

v) Unlawful aggression is of two kinds:

(1) Actual or material unlawful aggression. Actual or material unlawful

aggression means an attack with physical force or with a weapon,
an offensive act that positively determines the intent of the
aggressor to cause the injury. There is an unlawful aggression
on the part of the victim when he puts the life, limb, or right of
the person invoking self-defense in actual or imminent danger.
There must be actual physical force or actual use of a weapon.
It is present only when the one attacked faces real and
immediate threat to his life. It must be continuous, otherwise,
it does not constitute aggression warranting self-defense.287;
and

(2) Imminent unlawful aggression. Imminent unlawful aggression

means an attack that is impending or at the point of happening; it
must not consist in a mere threatening attitude, nor must it be
merely imaginary, but must be offensive and positively strong (like
aiming a revolver at another with intent to shoot or opening a knife
and making a motion as if to attack). Imminent unlawful aggression
must not be a mere threatening attitude of the victim, such as
pressing his right hand to his hip where a revolver was holstered,
accompanied by an angry countenance, or like aiming to throw a
pot.288 A mere threatening or intimidating attitude is not
sufficient.289 Likewise, the exchange of insulting words and
invectives between the victim and the accused, no matter how
objectionable, could not be considered as unlawful
aggression, except when coupled with physical assault. 290

vi) Test. The test for the presence of unlawful aggression under the
circumstances is whether the aggression from the victim put in
real peril the life or personal safety of the person defending
himself; the peril must not be an imagined or imaginary threat. 291

286
Ibid.
287
People v. Camilla, Jr., 620 Phil. 775, 796 (2009).
288
Ibid.
289
People v. Pasco, Jr., 137 SCRA 137 (1985).
290
People v. Tangan, et al., G.R. No. 103613, February 23, 2001.
291
Sombilon v. People, G.R. No. 177246, September 25, 2017.
 vii)Concepts.

(1) The most important of all is the element of unlawful

aggression. Unlawful aggression is an actual physical assault,
or at least a threat to inflict real imminent injury, upon a
person. The element of unlawful aggression must be proven
first in order for self-defense to be successfully pleaded. There
can be no self-defense, whether complete or incomplete,
unless the victim had committed unlawful aggression against
the person who resorted to self-defense. 292 

(2) Unlawful aggression is a condition sine qua non for the

justifying circumstance of self-defense. It contemplates an
actual, sudden and unexpected attack, or imminent danger
thereof, and not merely a threatening or intimidating attitude.
The person defending himself must have been attacked with
actual physical force or with actual use of weapon. 293 Of all the
elements, unlawful aggression, i.e., the sudden unprovoked
attack on the person defending himself, is indispensable. 294 At
the heart of the claim of self-defense is the presence of an
unlawful aggression committed against appellant. Without
unlawful aggression, self-defense will not have a leg to stand
on and this justifying circumstance cannot and will not be
appreciated, even if the other elements are present. Unlawful
aggression refers to an attack amounting to actual or
imminent threat to the life and limb of the person claiming self-
defense.295

(3) Unlawful aggression presupposes actual, sudden, unexpected

or imminent danger — not merely threatening and intimidating
action. Uncertain, premature and speculative was the
assertion of accused that the victim was about to stab him,
when the latter had merely drawn out his knife. There is
aggression, only when the one attacked faces real and
immediate threat to one's life. The peril sought to be avoided
must be imminent and actual, not just speculative. 296

(4) Mere drawing of a knife by the victim does not constitute

292
People v. Macaraig, G.R. No. 219848, June 7, 2017 citing Guevarra, et al. v. People,  G.R. No.
170462, February 5, 2014.
293
Tangaiin v. Bonifacio, G.R. No. 133799, February 5, 2002.
294
People v. Iglesia, G.R. No. 132354, September 13, 2001.
295
People v. Caratao,  451 Phil. 588 (2003).
296
People v. Raytos, G.R. No. 225623, June 7, 2017 citing People v. Escarlos, 457 Phil. 580
(2003).
 unlawful aggression, whether actual or imminent, as the peril
sought to be avoided by the accused was both premature and
speculative. Accused claims that there was unlawful
aggression on the part of the victim when the latter
unceremoniously boxed him on the forehead in the heat of
their argument. He adds that he had initially thought of hitting
back when he noticed that the victim was pulling out a kitchen
knife. Hence, to save his life, the former grabbed the weapon
and used it to stab the latter. Accused insists that under the
circumstances, he was legally justified in using the knife to
ward off the unlawful aggression. For him to wait for the knife
to be raised and to fall on him before acting to defend himself
would be asking too much, he argues. While the victim may be
said to have initiated the confrontation, we do not subscribe to
the view that the former was subjected to an unlawful
aggression within the legal meaning of the phrase. The alleged
assault did not come as a surprise, as it was preceded by a
heated exchange of words between the two parties who had a
history of animosity. Moreover, the alleged drawing of a knife
by the victim could not have placed the life of accused in
imminent danger. The former might have done it only to
threaten or intimidate the latter.297

(5) Assuming that the victim had a gun and pulled it, however, he
did not manifest any aggressive act which may have imperiled
the life and limb of the accused. It is axiomatic that the mere
thrusting of one’s hand into his pocket as if for the purpose of
drawing a weapon is not unlawful aggression. Even the
cocking of a rifle without aiming the firearm at any particular
target is not sufficient to conclude that one’s life was in
imminent danger. Hence, a threat, even if made with a weapon,
or the belief that a person was about to be attacked, is not
sufficient. It is necessary that the intent be ostensibly revealed
by an act of aggression or by some external acts showing the
commencement of actual and material unlawful aggression. 298

(6) A primordial requisite for self-defense is unlawful aggression.

For unlawful aggression to be present, there must be real
danger to life or personal safety. For this reason, a mere push
or a shove, not followed by other acts, has been held
insufficient to constitute unlawful aggression. A playful kick —
the lower court rejected defendant's claim that it was a
297
Ibid.
298
People v. Rubiso, G.R. No. 128871, March 18, 2008.
 "vicious kick" — at the foot my way of greeting between
friends may be a practical joke, and may even hurt; but it is not
a serious or real attack on a person's safety. Such kick was
only a mere slight provocation.299

(7) The rule consistently adhered to in this jurisdiction is that

when the accused’s defense is self-defense he thereby admits
being the author of the death of the victim, that it becomes
incumbent upon him to prove the justifying circumstance to
the satisfaction of the court. The rationale for the shifting of
the burden of evidence is that the accused, by his admission,
is to be held criminally liable unless he satisfactorily
establishes the fact of self-defense. But the burden to prove
guilt beyond reasonable doubt is not thereby lifted from the
shoulders of the State, which carries it until the end of the
proceedings. In other words, only the onus probandi shifts to
the accused, for self-defense is an affirmative allegation that
must be established with certainty by sufficient and
satisfactory proof. He must now discharge the burden by
relying on the strength of his own evidence, not on the
weakness of that of the Prosecution, considering that the
Prosecution’s evidence, even if weak, cannot be disbelieved in
view of his admission of the killing.300

(8) In determining the existence of unlawful aggression, it does

not matter if the attacks have no predictable success; that,
moreover, it is not necessary for accused to be wounded first
to prove the existence of unlawful aggression, it being
sufficient that the aggression be attempted so as to give rise
to the right to prevent it.301

(9) It is an oft repeated rule that the presence of a large number of

wounds, their location and their seriousness would negate
self-defense. Instead, they indicate a determined effort to kill.
In a case, the victim suffered seven hack wounds, all of which
were deemed fatal by the medico-legal officer. The gravity of
these hack wounds negates the claim of self-defense. 302

(10) There can be no self-defense, complete or incomplete

299
People v. Sabio, G.R. No. L-23734, April 27, 1967.
300
People v. Del Castillo, G.R. No. 169084, January 18, 2012.
301
People v. Batungbacal, 37 Phil. 382; People v. Hitosis, 55 Phil. 298.
302
People v. Quening, G.R. No. 132167, January 8, 2002.
 unless there is clear and convincing proof of unlawful
aggression on the part of the victim. The unlawful aggression,
a constitutive element of self-defense, must be real or at least
imminent and not merely imaginary. A belief that a person is
about to be attacked is not sufficient. Even an intimidating or
threatening attitude is by no means enough. Unlawful
aggression presupposes an actual or imminent danger on the
life or limb of a person. Mere shouting, and intimidating or
threatening attitude of the victim does not constitute unlawful
aggression. Unlawful aggression refers to an attack that has
actually broken out or materialized or at the very least is
clearly imminent; it cannot consist in oral threats or merely a
threatening stance or posture.303
 
d) Reasonable necessity of the means employed.

i) The requisite of reasonable necessity of the means employed is met if

the person invoking self-defense used a weapon or a manner
equivalent to the means of attack used by the aggressor. The
reasonable necessity of the self-defense utilized by an accused is to
defend himself "depends upon the nature or quality of the weapon, the
physical condition, the character, the size and other circumstances of
the aggressor; as well as those of the person who invokes self-
defense; and also the place and the occasion of the assault. 304

ii) The second requisite - reasonable necessity of the means

employed to prevent or repel the aggression - requires a
reasonable proportionality between the unlawful aggression and
the defensive response: "the means employed by the person
invoking self-defense contemplates a rational equivalence
between the means of attack and the defense."305

iii) Reasonable necessity of the means employed does not imply material
commensurability between the means of attack and defense. What the
law requires is rational equivalence, in the consideration of which will
enter as principal factors the emergency, the imminent danger to which
the person attacked is exposed, the instinct, more than the reason, that
moves or impels the defense, and the proportionateness thereof does
not depend upon the harm done, but rests upon the imminent danger
of such injury.306
303
Quintos v. People, G.R. No. 205298, September 10, 2014.
304
Nacnac v. People, G.R. No. 191913, March 21, 2012.
305
People v. Obordo, 431 Phil. 691 (2002).
306
People v. Encomienda, 46 SCRA 522.
 iv) Reasonable necessity does not mean absolute necessity. It must be
assumed that one who is assaulted cannot have sufficient tranquility of
mind to think, calculate and make comparisons which can easily be
made in the calmness of the home. It is not the indispensable need but
the rational necessity which the law requires. In each particular case, it
is necessary to judge the relative necessity, whether more or less
imperative, in accordance with the rules of rational logic. The
defendant may be given the benefit of any reasonable doubt as to
whether he employed rational means to repel the aggression. 307

v) The means employed by the person invoking self-defense is

reasonable if equivalent to the means of attack used by the original
aggressor. Whether or not the means of self-defense is reasonable
depends upon the nature or quality of the weapon; the physical
condition, the character, the size and other circumstances of the
aggressor; as well as those of the person who invokes self-defense,
and also the place and the occasion of the assault. 308

vi) The means employed by the person invoking self-defense

contemplates a rational equivalence between the means of attack and
the defense.309

vii)The law on self-defense embodied in any penal system in the civilized

world finds justification in man's natural instinct to protect, repel and
save his person or rights from impending danger or peril; it is based on
that impulse of self-preservation born to man and part of his nature as
a human being.310

viii) If the person attacked is a police officer, the degree of

reasonableness of means is different. A police officer, in the
performance of his duty, must stand his ground and cannot, like a
private individual, take refuge in flight; his duty requires him to
overcome his opponent. The force which he may exert therefore differs
somewhat from that which may ordinarily be offered in self-defense.
Bearing this in mind, we do not think that the appellant in using his
revolver against the deceased can be said to have employed
unnecessary force. The deceased attacked him with a deadly weapon;
he might, perhaps, have saved himself by running away, but this his
duty forbade. Was he to allow himself to be stabbed before using his
307
Jayme v. People, G.R. No. 124506, September 9, 1999.
308
People v. Catbagan, 467 Phil. 1044, 1074 (2004).
309
Dela Cruz v. People, G.R. No. 189405, November 19, 2014.
310
People v. Boholst-Caballero, 158 Phil. 827 (1974).
 arms? It may, perhaps, be argued that the appellant might have used
his club, but a policeman's club is not a very effective weapon as
against a drawn knife and a police officer is not required to afford a
person attacking him the opportunity for a fair and equal struggle. 311

ix) The state of mind of the accused during an alleged act of self-
defense, defense of a relative, or defense of a stranger must be
considered in determining whether his or her means of repelling
an aggressor were reasonable. The reasonable necessity of the
means employed in the defense, according to the jurisprudence
of courts, does not de[p]end upon the harm done, but rests upon
the imminent danger of such injury. Although the offended party
was drunk, and therefore, was not able to land his blows, his
attacks were incessant. He had already attacked three (3) other
persons—two (2) minors as well as petitioner's common-law wife
—and was still belligerent. While it may be true that Pamela, Pia,
and Yuki had already gone inside the house at the time of the
stabbing, it then appeared to the accused that there was no other
reasonable means to protect his family except to commit the acts
alleged. It is unreasonable for courts to demand conduct that
could only have been discovered with hindsight and absent the
stress caused by the threats that the petitioner actually faced. 312

e) Lack of sufficient provocation.

i) 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.313

ii) This requisite of self-defense is present: (1) when no provocation at all

was given to the aggressor; (2) when, even if provocation was given, it
was not sufficient; (3) when even if the provocation was sufficient, it
was not given by the person defending himself; or (4) when even if a
provocation was given by the person defending himself, it was not
proximate and immediate to the act of aggression. 314

iii) When the law speaks of provocation either as a mitigating

circumstance or as an essential element of self-defense, it requires
that the same be sufficient or proportionate to the act committed and
that it be adequate to arouse one to its commission. It is not enough
311
U.S. v. Mojica, 42 Phil. 784 (1922).
312
Mariano v. People, G.R. No. 224102, July 26, 2017.
313
People v. Cajurao, G.R. No. 122767, January 20, 2004.
314
Cano v. People, G.R. No. 155258, October 7, 2003.
 that the provocative act be unreasonable or annoying. 315

iv) The third requisite requires the person mounting a defense to be

reasonably blameless. He or she must not have antagonized or incited
the attacker into launching an assault. This also requires a
consideration of proportionality.  Provocation is sufficient when it is
proportionate to the aggression, that is, adequate enough to impel one
to attack the person claiming self-defense.316

v) The word "sufficient" means adequate to excite a person to

commit a wrong and must accordingly be proportionate to its
gravity.317

vi) There is sufficient provocation on the part of the accused when

he repeatedly blocked the path of the victims for almost five
times. He was in effect the one who provoked the former.318

vii)The repeated blowing of horns, assuming it was done by the

victim, may be irritating to an impatient driver but it certainly
could not be considered as creating so powerful an inducement
as to incite provocation for the other party to act violently. 319

f) Self-defense of chastity. To be entitled to a complete self-defense of

chastity, there must be an attempt to rape. 320 It is not necessary that the
actual act be committed. It is enough that mere imminence thereof will
justify the woman to kill the offender when she has no other means to
defend herself.321

g) Self-defense in libel. When a person is libeled, he may hit back with

another libel, which, if adequate, will be justified. Once the aspersion is
cast, its sting clings and the one thus defamed may avail himself of all
necessary means to shake it off.322

h) Self-defense of property. In self-defense of property, it is necessary that

there must be an attack on the property coupled with an attack on the
315
Ibid.
316
Velasquez, et al. v. People, G.R. No. 195021, March 15, 2017.
317
People v. CA, G.R. No. 103613, February 23, 2001 citing People v. Naboro, 73 Phil. 434.
318
People v. Tangan, supra.
319
Ibid.
320
People v. Jaurigue, 76 Phil. 174.
321
People v. Dela Cruz, 61 Phil. 344.
322
People v. Chua Hong, 51 OG 1932.
 person entrusted with the property. 323 However, the act of fencing of the
property even if not coupled with an attack against the accused is already
an aggression. The actuation of deceased in angrily ordering the
continuance of the fencing would have resulted in the further chiselling of
the walls of appellant's house as well as the closure of the access to and
from his house and rice mill-which were not only imminent but were
actually in progress. There is no question, therefore, that there was
aggression on the part of the victims: Fleischer was ordering, and Rubia
was actually participating in the fencing. This was indeed aggression, not
on the person of appellant, but on his property rights. 324

3) Defense of Relative.

a) Requisites:

i) Unlawful aggression;
ii) Reasonable necessity of the means employed to repel or prevent it;
and
iii) In case provocation was given by the person attacked, the person
making the defense had no part in the provocation.

b) Relatives covered:

i) Spouses;
ii) Ascendants;
iii) Descendants;
iv) Legitimate, natural, or adopted brothers or sisters;
v) Relatives by affinity of the same degree and those by consanguinity
within the fourth civil degree.

c) Concepts.

i) Mere honest belief on the part of the person defending that the relative
being defended was a victim of unlawful aggression is enough. 325

ii) Relatives not included in the enumeration are considered as strangers.

4) Defense of Stranger.

a) Requisites:

323
People v. Apolinar, 38 O.G. 2879.
324
People v. Narvaez, G.R. No. L-33466-67, April 30, 1983.
325
Gregorio, supra. pp. 65.
 i) Unlawful aggression;
ii) Reasonable necessity of the means employed to repel or prevent it;
and
iii) Person defending be not induced by revenge, resentment or other evil
motives.326

b) Concepts.

i) There is no defense of stranger where the accused stabbed the

deceased when he was already lying on the ground with a stab
wound.327

5) Avoidance of greater evil or injury (State of Necessity).

a) Requisites:

i) The evil sought to be avoided actually exists;

ii) The injury feared be greater than that done to avoid it;
iii) There be no other practical and less harmful means of preventing it.

b) Concepts.

i) A state of necessity exists when there is a clash between unequal

rights, the lesser right giving way to the greater right.  Aside from the 3
requisites stated in the law, it should also be added that the necessity
must not be due to the negligence or violation of any law by the actor.

ii) The person for whose benefit the harm has been prevented shall be
civilly liable in proportion to the benefit which may have been received. 
This is the only justifying circumstance which provides for the payment
of civil indemnity.  Under the other justifying circumstances, no civil
liability attaches.  The courts shall determine, in their sound discretion,
the proportionate amount for which law one is liable.

iii) Under paragraph 4, Article 11 of the Revised Penal Code, infliction of

damage or injury to another so that a greater evil or injury may not
befall one’s self may be justified only if it is taken as a last resort and
with the least possible prejudice to another. If there is another way to
avoid the injury without causing damage or injury to another or, if there
is no such other way but the damage to another may be minimized
while avoiding an evil or injury to one’s self, then such course should

326
Paera v. People, G.R. No. 181626, May 30, 2011.
327
Gregorio, supra.
 be taken.328

6) Fulfilment of duty.

a) Requisites:

i) The accused acted in the performance of a duty or in the lawful

exercise of a right or office;
ii) The injury caused or the offense committed is the necessary
consequence of the due performance of duty or the lawful exercise of
such right or office.329

b) Concepts.

i) A person incurs no criminal liability when he acts in the fulfillment of a

duty or in the lawful exercise of a right or office.330

ii) A policeman in the performance of duty is justified in using such force

as is reasonably necessary to secure and detain the offender,
overcome his resistance, prevent his escape, recapture him if he
escapes, and protect himself from bodily harm. 331 In case injury or
death results from the policeman’s exercise of such force, the
policeman could be justified in inflicting the injury or causing the death
of the offender if the policeman had used necessary force. Since a
policeman’s duty requires him to overcome the offender, the force
exerted by the policeman may therefore differ from that which
ordinarily may be offered in self-defense. 332 However, a policeman is
never justified in using unnecessary force or in treating the offender
with wanton violence, or in resorting to dangerous means when the
arrest could be affected otherwise.333

iii) Distinguished from self-defense. Unlike in self-defense where unlawful

aggression is an element, in performance of duty, unlawful aggression
from the victim is not a requisite. In People v. Delima,334  a policeman
was looking for a fugitive who had several days earlier escaped from
prison. When the policeman found the fugitive, the fugitive was armed
328
People v. Punzalan, G.R. No. 199982, December 10, 2012.
329
People v. Oanis, et al., G.R. No. L-47722, July 27, 1943.
330
Ibid.
331
Ibid.
332
RAMON C. AQUINO AND CAROLINA C. GRIO-AQUINO, THE REVISED PENAL CODE,
1997 ED., VOL. I, p. 205, citing United States v. Mojica, 42 Phil. 784 (1922).
333
Gregorio, supra. note 202.
334
46 Phil. 738 (1922).
 with a pointed piece of bamboo in the shape of a lance. The policeman
demanded the surrender of the fugitive. The fugitive lunged at the
policeman with his bamboo lance. The policeman dodged the lance
and fired his revolver at the fugitive. The policeman missed. The
fugitive ran away still holding the bamboo lance. The policeman
pursued the fugitive and again fired his revolver, hitting and killing the
fugitive. The Court acquitted the policeman on the ground that the
killing was done in the fulfillment of duty.

iv) The fugitive’s unlawful aggression in People v. Delima had already

ceased when the policeman killed him. The fugitive was running away
from the policeman when he was shot. If the policeman were a private
person, not in the performance of duty, there would be no self-defense
because there would be no unlawful aggression on the part of the
deceased.335 It may even appear that the public officer acting in the
fulfillment of duty is the aggressor, but his aggression is not unlawful, it
being necessary to fulfill his duty.336

v) In People v. Lagata, a jail guard shot to death a prisoner whom he

thought was attempting to escape. The Court convicted the jail guard
of homicide because the facts showed that the prisoner was not at all
trying to escape. The Court declared that the jail guard could only fire
at the prisoner in self-defense or if absolutely necessary to avoid the
prisoners escape.337

vi) There is no justifying circumstance of fulfilment of duty when the

accused confronted the victim at the entrance to investigate the reason
why the latter had a gun tucked behind his waist in a public place but
perhaps through anxiety, edginess or the desire to take no chances, he
exceeded his duty by firing upon the victim who was not at all resisting.
The shooting of the latter cannot be considered due performance of a
duty if at that time he posed no serious threat or harm to the accused
or to the civilians in the pub.338

7) Obedience to a lawful order.

a) Requisites:

i) An order has been issued by a superior;

ii) The order is for a legal purpose; and
335
LUIS B. REYES, THE REVISED PENAL CODE, 15th ED., 2001, BOOK ONE, p. 202.
336
Ibid.
337
83 Phil. 150 (1949).
338
Baxinela v. People, G.R. No. 149652, March 14, 1006.
 iii) The means to be used to carry out said order is lawful. 339

b) Concepts.

i) The order and means to be used must be both lawful. While the order
for Adalim’s transfer emanated from petitioner Ambil, Jr., who was then
Governor, neither said order nor the means employed by petitioner
Apelado, Sr. to carry it out was lawful. In his capacity as the Provincial
Jail Warden of Eastern Samar, petitioner Apelado, Sr. fetched Mayor
Adalim at the provincial jail and, unarmed with a court order,
transported him to the house of petitioner Ambil, Jr. Apelado cannot
avail of the justifying circumstance under Article 11, par.6 of the
RPC.340

ii) Even if the order is illegal if it is patently legal and the subordinate was
not aware of its illegality, he is not liable. 341

iii) Acquitted for the crime of malversation, the Court stated that the
accused could not be faulted if he had to obey and strictly comply with
the presidential directive, and to argue otherwise is something easier
said than done. Marcos was undeniably Tabuenas superior the former
being then the President of the Republic who unquestionably exercised
control over government agencies such as the MIAA and PNCC.  And
as a recipient of such kind of a directive coming from the highest
official of the land no less, good faith should be read on Tabuena’s
compliance, without hesitation nor any question, with the MARCOS
Memorandum. Tabuena therefore is entitled to the justifying
circumstance of obedience to superior order. What is more significant
to consider is that the MARCOS Memorandum is patently legal (for on
its face it directs payment of an outstanding liability) and that Tabuena
acted under the honest belief that the P55 million was a due and
demandable debt and that it was just a portion of a bigger liability to
PNCC.342

8) Battered Woman Syndrome (R.A. No. 9262).

a) Concept and basis.

i) Battered Woman Syndrome refers to a scientifically defined pattern of

psychological and behavioral symptoms found in women living in
339
Ambil, Jr. v. Sandiganbayan, G.R. No. 175457, July 6, 2011.
340
Ibid.
341
Nassif v. People, 78 Phil. 67.
342
Tabuena v. Sandiganbayan, G.R. No. 03501-03. February 17, 1997.
 battering relationships as a result of cumulative abuse.

ii) Victim-survivors who are found by the courts to be suffering from

battered woman syndrome do not incur any criminal and civil liability
notwithstanding the absence of any of the elements for justifying
circumstances of self-defense under the Revised Penal Code 343

iii) Women suffering from battered woman syndrome do not incur any
criminal and civil liability notwithstanding the absence of any of the
elements for justifying circumstances of self-defense under the Code.

b) Cycle of violence.

i) The tension-building phase. It consists of minor battering, verbal,

physical abuse or other form of hostile behavior. Here, the woman tries
to pacify the batterer but this passive behavior legitimizes her belief
that the man has the right to abuse her.

ii) Acute-battering phase. This is characterized by brutality,

destructiveness, or sometimes death. The wife has a sense of
detachment from the attack and terrible pain. Acute battering incidents
which are often savage and out of control.

iii) Tranquil (loving) phase. This phase begins when the acute battering
incident ends. The couple experience profound relief. The batterer may
show a tender and nurturing behaviour towards his partner. The
illusion of absolute interdependency is well-entrenched in a battered
woman’s psyche. In this phase, she and her batterer are indeed
emotionally dependent on each other -- she for his nurturant behavior,
he for her forgiveness.344

c) In order to be classified as a battered woman, the couple must go through

the battering cycle at least twice. Any woman may find herself in an
abusive relationship with a man once. If it occurs a second time, and she
remains in the situation, she is defined as a battered woman. 345

i) Battered women exhibit common personality traits, such as low self-

esteem, traditional beliefs about the home, the family and the female
sex role; emotional dependence upon the dominant male; the tendency
to accept responsibility for the batterer’s actions; and false hopes that

343
Section 26, RA 9262.
344
People v. Genosa, G.R. No. 135982, January 15, 2004.
345
Ibid.
 the relationship will improve.346

Chapter Five
EXEMPTING CIRCUMSTANCES

Exempting Circumstances

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 lucid interval.

When the imbecile or an insane person has committed an act which

the law defines as a felony (delito), the court shall order his
confinement in one of the hospitals or asylums established for
persons thus afflicted, which he shall not be permitted to leave
without first obtaining the permission of the same court.

2. A person under nine years of age.

3. A person over nine years of age and under fifteen, unless he has
acted with discernment, in which case, such minor shall be
proceeded against in accordance with the provisions of Art. 80 of
this Code.

When such minor is adjudged to be criminally irresponsible, the

court, in conformably with the provisions of this and the preceding
paragraph, shall commit him to the care and custody of his family
who shall be charged with his surveillance and education otherwise,
346
Ibid.
 he shall be committed to the care of some institution or person
mentioned in said Art. 80.

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

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

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

of an equal or greater injury.

7. Any person who fails to perform an act required by law, when

prevented by some lawful insuperable cause.

1) Nature.

a) Those circumstances which the law exempts the offender from criminal
liability due to the absence any of all the conditions that would make an
act voluntary. There is, however, civil liability.

b) The basic reason behind the enactment of the exempting circumstances

under Article 12 of the Revised Penal Code is the complete absence of
intelligence, freedom of action, or intent on the part of the accused. 347

2) Distinguished from justifying circumstances.

a) In justifying circumstances:

i) The circumstance affects the act, not the actor;
ii) The act is done  within  legal grounds,  hence considered as not a
crime;
iii) Since the act is not a crime, there is no criminal;
iv) There being no crime nor criminal, there is no criminal nor civil liability.

b) In exempting circumstances:

i) The circumstance affects the actor, not the act;
ii) The act is felonious and hence a crime but the actor acted without
voluntariness;
iii) Although there is a crime, there is no criminal liability because the

347
Guevarra v. Aldomovar, 169 SCRA 476 [1989].
 actor is regarded  only  as  an instrument of the crime;
iv) There being a wrong done but no criminal.

c) Reason why exempting circumstances negate criminal liability.

i) For one who acts by virtue of any of the exempting circumstances,

although he commits a crime, by the complete absence of any of the
conditions which constitute free will or voluntariness of the act, no
criminal liability arises. Therefore, while there is a crime committed, no
criminal liability attaches.348 

ii) It is worthy to note the basic reason behind the enactment of the
exempting circumstances embodied in Article 12 of the RPC; the
complete absence of intelligence, freedom of action, or intent, or on the
absence of negligence on the part of the accused.  The second
element of dolus is intelligence; without this power, necessary to
determine the morality of human acts to distinguish a licit from an illicit
act, no crime can exist, and because the infant has no intelligence, the
law exempts him from criminal liability." 349

3) Kinds of exempting circumstances:

a) Insanity or Imbecility;
b) Minority;
c) Accident;
d) Compulsion of Irresistible Fear;
e) Impulse of Uncontrollable Fear;
f) Insuperable or Lawful Cause.

4) Insanity or imbecility.

a) Definition. Insanity has been defined as a manifestation in language or

conduct of disease or defect of the brain, or a more or less permanently
diseased or disordered condition of the mentality, functional or organic,
and characterized by perversion, inhibition, or disordered function of the
sensory or of the intellectual faculties, or by impaired or disordered
volition.350 Imbecility is one marked with mental deficiency. 351 An imbecile is
one, while advanced in his age, having a mental development comparable to that of

348
Ortega v. People, G.R. No. 151085, August 20, 2008.
349
Guevarra v. Almodovar, G.R. No. 75256, January 26, 1989.
350
Section 1039, Revised Administrative Code, cited in People v. Austria, G.R. No. 111517-19,
July 31, 1996.
351
1 Viada, Codigo Penal, 4th Ed., p. 92.
 children between two and seven years of age.352 An insane person may have lucid
interval while an imbecile has none.353

b) Nature and basis. In all civilized nations, an act done by a person in a

state of insanity cannot be punished as an offense. The insanity
defense is rooted on the basic moral assumption of criminal law.
Man is naturally endowed with the faculties of understanding and
free will. The consent of the will is that which renders human actions
laudable or culpable. Hence, where there is a defect of the
understanding, there can be no free act of the will. An insane
accused is not morally blameworthy and should not be legally
punished. No purpose of criminal law is served by punishing an
insane accused because by reason of his mental state, he would
have no control over his behavior and cannot be deterred from
similar behavior in the future.354

c) Presumption of sanity. Sanity being the normal condition of the

human mind, the prosecution may proceed in the first instance upon
the presumption that the defendant was sane and responsible when
the act was committed. The presumption is always in favor of sanity
and the burden of proof of insanity is on the defense. If that
presumption were not indulged, the government would always be
under the necessity of adducing affirmative evidence of the sanity of
an accused. But a requirement of that character would seriously
delay and embarrass the enforcement of the laws against crime and
in most cases be unnecessary. Consequently, the law presumes that
everyone charged with crime is sane and thus, supplies in the first
instance the required proof of capacity to commit crime; that a
person is criminally liable for a felony committed by him; that a
felonious or criminal act (delito doloso) is presumed to have been
done with deliberate intent, that is, with freedom, intelligence and
malice because the moral and legal presumption is that freedom and
intelligence constitute the normal condition of a person in the
absence of evidence to the contrary; that one of the causes which
will overthrow this presumption of voluntariness and intelligence is
insanity in which event the actor is exempt from criminal liability as
provided for in Article 12, Paragraph 1, of the Revised Penal Code. 355
Insanity being the exception, rather than the rule, in the human
condition, the moral and legal presumption is that freedom and
352
Reyes, Luis B., The Revised Penal Code, 7th Ed., 216
353
People v. Ambal, G.R. No. L-52688, October 17, 1980.
354
People v. Roa, G.R. No. 225599, March 22, 2017 citing People v. Madarang, GR. No. 132319,
May 12, 2000.
355
People v. Aquino, G.R. No. 87084, June 27, 1990.
 intelligence constitute the normal condition of a person and that a
felonious or criminal act (delito doloso) has been done with
deliberate intent, that is, with freedom, intelligence and malice. 356

d) The defense of insanity. The issue of insanity is a question of fact for

insanity is a condition of the mind, not susceptible of the usual
means of proof. As no man can know what is going on in the mind of
another, the state or condition of a person's mind can only be
measured and judged by his behavior. Establishing the insanity of an
accused requires opinion testimony which may be given by a
witness who is intimately acquainted with the accused, by a witness
who has rational basis to conclude that the accused was insane
based on the witness' own perception of the accused, or by a
witness who is qualified as an expert, such as a psychiatrist. The
testimony or proof of the accused's insanity must relate to the time
preceding or coetaneous with the commission of the offense with
which he is charged. In this jurisdiction, it had been consistently and
uniformly held that the plea of insanity is in the nature of confession
and avoidance. Hence, the accused is tried on the issue of sanity
alone, and if found to be sane, a judgment of conviction is rendered
without any trial on the issue of guilt, because the accused had
already admitted committing the crime.357

e) Effect. An insane person is exempt from criminal liability unless he

has acted during a lucid interval. If the court therefore finds the
accused insane when the alleged crime was committed, he shall be
acquitted but the court shall order his confinement in a hospital or
asylum for treatment until he may be released without danger. An
acquittal of the accused does not result in his outright release, but
rather in a verdict which is followed by commitment of the accused
to a mental institution.358

f) Imbecility is exempt in all cases while insanity is not so exempt if it can be

shown that he acted during lucid interval.

g) Insanity must exist at the time of the commission of the crime.

h) When exempted.

356
People v. Aldemita, G.R. No. L-55033-34, November 13, 1986.
357
People v. Roa, G.R. No. 225599, March 22, 2017 citing People v. Madarang, GR. No. 132319,
May 12, 2000.
358
People v. Racal, G.R. No. 224886, September 2, 2017.
 i) Insanity exists when there is complete deprivation of intelligence in
committing the act, that is, the accused is deprived of reason, he acts
without the least discernment because there is complete absence of
the power to discern, or that there is total deprivation of freedom of the
will. Mere abnormality of the mental faculties will not exclude
imputability.359

ii) For a person to be adjudged insane under Article 12 of the Revised

Penal Code, he must be deprived completely of reason or discernment
and freedom of the will at the time of committing the crime. 360 The
accused must be "so insane as to be incapable of entertaining a
criminal intent." He must be deprived of reason and act without
the least discernment because there is a complete absence of the
power to discern or a total deprivation of freedom of the will.
"Diminished capacity” to discern what was wrong or right at the
time of the commission of the crime is not exempting.
"Diminished capacity" is not the same as "complete deprivation
of intelligence or discernment." Mere abnormality of mental
faculties does not exclude imputability.361  

iii) Insanity must relate to the time immediately preceding or simultaneous

with the commission of the offense with which the accused is charged.
Otherwise, he must be adjudged guilty for the said offense. In short, in
order for the accused to be exempted from criminal liability under a
plea of insanity, he must categorically demonstrate that: (1) he was
completely deprived of intelligence because of his mental condition or
illness; and (2) such complete deprivation of intelligence must be
manifest at the time or immediately before the commission of the
offense.362 An inquiry into the mental state of an accused should
relate to the period immediately before or at the very moment the
felony is committed.363 The results of the psychiatric tests done
on accused four years ago may not be relied upon to prove
accused mental condition at the time of his commission of the
crime.364

i) How to establish insanity. The issue of insanity is a question of fact

for insanity is a condition of the mind, not susceptible of the usual
means of proof as no man can know what is going on in the mind of
359
People v.  Ambre, G. R. No. 52688, October 17, 1980.
360
People v.  Formigones, G.R. No. L-3246, November 29, 1950.
361
People v. Racal, supra.
362
People v. Isla, G.R. No. 199875, November 21, 2012.
363
People v. So, 317 Phil. 826 (1995).
364
People v. Racal, supra.
 another, the state or condition of a person's mind can only be
measured and judged by his behavior. Establishing the insanity of an
accused requires opinion testimony which may be given by a
witness who is intimately acquainted with the accused, by a witness
who has rational basis to conclude that the accused was insane
based on the witness' own perception of the accused, or by a
witness who is qualified as an expert, such as a psychiatrist. The
testimony or proof of the accused's insanity must relate to the time
preceding or coetaneous with the commission of the offense with
which he is charged.365

j) In order to ascertain a person's mental condition at the time of the act, it is

permissible to receive evidence of his mental condition during a
reasonable period before and after. Direct testimony is not required nor
are specific acts of disagreement essential to establish insanity as a
defense. A person's mind can only be plumbed or fathomed by external
acts. Thereby his thoughts, motives and emotions may be evaluated to
determine whether his external acts conform to those of people of sound
mind.366

k) The issue of insanity is a question of fact for insanity is a condition

of the mind, not susceptible of the usual means of proof. As no man
can know what is going on in the mind of another, the state or
condition of a person's mind can only be measured and judged by
his behavior. Establishing the insanity of an accused requires
opinion testimony which may be given by a witness who is intimately
acquainted with the accused, by a witness who has rational basis to
conclude that the accused was insane based on the witness' own
perception of the accused, or by a witness who is qualified as an
expert, such as a psychiatrist. 367

l) Tests of insanity.

i) The traditional test is the M'Naghten Rule – Adopted in Anglo-

American jurisprudence, the test states that "to establish a
defense on the ground of insanity, it must be clearly proved that,
at the time of committing the act, the party accused was laboring
under such a defect of reason from disease of the mind, as not to
know the nature and quality of the act he was doing, or, if he did

365
People v. Roa, supra.
366
People v. Austria, 328 Phil. 1208 (1996).
367
People v. Madarang, G.R. No. 132319, May 12, 2000 citing California Criminal Law and
Procedure, William D. Raymond, Jr. and Daniel E. Hall, 1999 ed., pp. 227-228.
 know it, that he did not know he was doing what was wrong." The
M'Naghten rule is a cognitive measure of insanity as the accused
is required to know two things: the nature and quality of the act,
and that the act was wrong. This rule has been criticized for its
ambiguity. It was debated whether the word "wrong" referred to
moral or legal wrong. The importance of the distinction was
illustrated by Stephen as follows: A kills B knowing that he is
killing B and it is illegal to kill B but under an insane delusion that
God has commanded him to kill B to obtain the salvation of the
human race. A's act is a crime if the word "wrong" means illegal
but it is not a crime if the word "wrong" means morally wrong.
The word "know" was also assailed as it referred solely to
intellectual reason and excluded affective or emotional
knowledge. It was pointed out that the accused may know in his
mind what he is doing but may have no grasp of the effect or
consequences of his actions.  M'Naghten was condemned as
based on an obsolete and misleading concept of the nature of
insanity as insanity does not only affect the intellectual faculties
but also affects the whole personality of the patient, including his
will and emotions. It was argued that reason is only one of the
elements of a personality and does not solely determine man's
conduct.368

ii) "Irresistible impulse" test – It means that "assuming defendant's

knowledge of the nature and quality of his act and knowledge that
the act is wrong, if, by reason of disease of the mind, defendant
has been deprived of or lost the power of his will which would
enable him to prevent himself from doing the act, then he cannot
be found guilty." Thus, even if the accused knew that what he was
doing was wrong, he would be acquitted by reason of insanity if
his mental illness kept him from controlling his conduct or
resisting the impulse to commit the crime. This rule rests on the
assumption that there are mental illnesses that impair volition or
self-control, even while there is cognition or knowledge of what is
right and wrong.  This test was likewise criticized on the following
grounds: (1) the "impulse" requirement is too restrictive as it
covers only impulsive acts; (2) the "irresistible" requirement is
also restrictive as it requires absolute impairment of the freedom
of the will which cases are very rare; (3) it will not serve the
purpose of criminal law to deter criminals as the will to resist
commission of the crime will not be encouraged, and; (4) it is
difficult to prove whether the act was the result of an insane,

368
Ibid.
 irresistible impulse.369

iii) The Durham "product" test - It postulated that "an accused is not
criminally responsible if his unlawful act was the product of
mental disease or defect."  Critics of this test argued that it gave
too much protection to the accused. It placed the prosecution in a
difficult position of proving accused's sanity beyond reasonable
doubt as a mere testimony of a psychiatrist that accused's act
was the result of a mental disease leaves the judge with no choice
but to accept it as a fact. The case thus becomes completely
dependent on the testimonies of experts. 370

iv) The ALI "substantial capacity" test – This test integrated by the
American Law Institute (ALI) in its Model Penal Code Test, which
improved on the M'Naghten and irresistible impulse tests. The
new rule stated that a person is not responsible for his criminal
act if, as a result of the mental disease or defect, he lacks
substantial capacity to appreciate the criminality of his act or to
conform his conduct to the requirements of the law.  Still, this test
has been criticized for its use of ambiguous words like
"substantial capacity" and "appreciate" as there would be
differences in expert testimonies whether the accused's degree of
awareness was sufficient. Objections were also made to the
exclusion of psychopaths or persons whose abnormalities are
manifested only by repeated criminal conduct. Critics observed
that psychopaths cannot be deterred and thus undeserving of
punishment. 371

v) The Appreciation test - The test is similar to M'Naghten as it relies

on the cognitive test. The accused is not required to prove lack of
control as in the ALI test. The appreciation test shifted the burden
of proof to the defense, limited the scope of expert testimony,
eliminated the defense of diminished capacity and provided for
commitment of accused found to be insane. 372

vi) Test adopted in Philippine jurisprudence or the Formigones

doctrine - A linguistic or grammatical analysis of those standards
suggests that Formigones established two (2) distinguishable
tests: (a) the test of cognition — "complete deprivation of
intelligence in committing the [criminal] act," and (b) the test of
369
Ibid.
370
Ibid
371
Ibid.
372
Ibid.
 volition — "or that there be a total deprivation freedom of the
will." But our caselaw shows common reliance on the test of
cognition, rather than on a test relating to "freedom of the will;"
examination of our caselaw has failed to turn up any case where
this Court has exempted an accused on the sole ground that he
was totally deprived of "freedom of the will," i.e., without an
accompanying "complete deprivation of intelligence." This is
perhaps to be expected since a person's volition naturally
reaches out only towards that which is presented as desirable by
his intelligence, whether that intelligence be diseased or
healthy.373

m) Formigones doctrine. Although the Court has ruled many times in the
past on the insanity defense, it was only in People v.
Formigones that the Court elaborated on the required standards of
legal insanity. In order that this exempting circumstance may be
taken into account, it is necessary that there be a complete
deprivation of intelligence in committing the act, that is, that
the accused be deprived of reason; that there be no responsibility for
his own acts; that he acts without the least discernment;  that there
be a complete absence of the power to discern, or that there be a
total deprivation of freedom of the will. For this reason, it was held
that the imbecility or insanity at the time of the commission of the act
should absolutely deprive a person of intelligence or freedom of will,
because mere abnormality of his mental faculties does not exclude
imputability.374

n) The so-called Formigones doctrine enunciates that it is necessary that

there be a complete deprivation of intelligence in committing the act, that
is, that the accused be deprived of reason; that there be no responsibility
for his own acts; that he acts without the least discernment; that there be a
complete absence of the power to discern, or that there be a total
deprivation of freedom of the will. The imbecility or insanity at the time of
the commission of the act should absolutely deprive a person of
intelligence or freedom of will, because mere abnormality of his mental
faculties does not exclude imputability.375 In order that insanity may be
taken as an exempting circumstance, there must be complete
deprivation of intelligence in the commission of the act or that the
accused acted without the least discernment.376

373
People v. Rafanan, G.R. No. L-54135, November 21, 1991.
374
Ibid.
375
People v. Formigones, supra.
376
People v. Renegado, L-27031, May 31,1974.
 o) Insanity, if not exempting, is mitigating. Examination of our caselaw
has failed to turn up any case where this Court has exempted an accused
on the sole ground that he was totally deprived of "freedom of the
will," i.e., without an accompanying "complete deprivation of intelligence."
This is perhaps to be expected since a person's volition naturally reaches
out only towards that which is presented as desirable by his intelligence,
whether that intelligence be diseased or healthy. In any case, where the
accused failed to show complete impairment or loss of intelligence, the
Court has recognized at most a mitigating, not an exempting,
circumstance in accord with Article 13(9) of the Revised Penal Code:
"Such illness of the offender as would diminish the exercise of the will-
power of the offender without however depriving him of the consciousness
of his acts.377 

p) Accused has the burden of proof to prove insanity. Insanity is the

exception rather than the rule in the human condition. Under Article 800 of
the Civil Code, the presumption is that every human is sane. Anyone who
pleads the exempting circumstance of insanity bears the burden of proving
it with clear and convincing evidence. It is in the nature of confession and
avoidance. An accused invoking insanity admits to have committed the
crime but claims that he or she is not guilty because of insanity. 378 An
accused invoking the insanity defense pleads not guilty by reason thereof.
He admits committing the crime but claims that he is not guilty because he
was insane at the time of its commission. Hence, the accused is tried on
the issue of sanity alone and if found to be sane, a judgment of conviction
is rendered without any trial on the issue of guilt as he had already
admitted committing the crime.379

q) Proof of insanity required. The defense of insanity or imbecility must be

clearly proved, for there is a presumption that acts penalized by law are
voluntary. Hence, in the absence of positive evidence that the accused
had previously lost his reason or was demented moments prior to or
during the perpetration of the crime, the courts will always presume that
he was in a normal state of mind. 380 For the plea of insanity to prosper,
the accused must present clear and convincing evidence to support
the claim.381

r) Durham Rule not applicable in this jurisprudence. The Durham test

provides "the so-called right wrong test, supplemented by the
377
People v. Rafanan, Jr., G.R. No. L-54135, November 21, 1991
378
People v. Tibon, G.R. No. 188320, June 29, 2010.
379
People v. Madarang, G.R. No. 132319, May 12, 2000.
380
People v. Medina, G.R. No. 113691, February 6, 1998.
381
People v. Roa, supra.
 irresistible impulse test. Under this test, an accused is not criminally
responsible if his unlawful act is the product of a mental disease or a
mental defect. A mental disease relieving an accused of criminal
responsibility for his unlawful act is a condition considered capable
of improvement or deterioration; a mental defect having such effect
on criminal responsibility is a condition not considered capable of
improvement or deterioration, and either congenital, or the result of
injury or of a physical or mental disease." 382 This rule postulated that
an accused is not criminally responsible if his unlawful act was the
result of a mental disease or defect at the time of the
incident. However, in subsequent rulings, US Federal Courts and
State Courts, even by the court which originally adopted it, rejected
and abandoned this rule for being too broad and for lacking a clear
legal standard for criminal responsibility.  In the Philippines, the
courts have established a clearer and more stringent criterion for
insanity to be exempting as it is required that there must be a
complete deprivation of intelligence in committing the act, i.e., the
accused is deprived of reason; he acted without the least
discernment because there is a complete absence of the power to
discern, or that there is a total deprivation of the will. 383

s) The quantum of evidence required to overthrow the presumption of sanity

is proof beyond reasonable doubt. Insanity is a defense in a confession
and avoidance and as such must be proved beyond reasonable doubt. 384

t) Insanity is not present in the following:

i) The fact that accused threatened the victim with death in case she
reported her ravishment indicated that he was aware of the
reprehensible moral depravity of that assault and that he was not
deprived of intelligence.385

ii) The accused knew the nature of what he had done negated his claim
that he was insane when he fatally stabbed his victim. This was
manifested at the time of the incident when he shouted “Napatay ko si
Mrs. Sigua.”386

iii) The accused took 120 cc of cough syrup and consumed three sticks of
382
Syllabi, Durham v. U.S., 214 F. 2nd. 862, 874, 45 A.L.R. 2d. 1430 [1954] cited in People v.
Ambal, G.R. No. L-52688. October 17, 1980.
383
People v. Racal, supra.
384
People v. Dungo, G.R. No. 894240, July 31, 1991.
385
People v. Rafanan, supra.
386
People v. Dungo, supra.
 marijuana before raping his victim and hitting her head with a stone,
had some form of mental illness which did not totally deprive him of
intelligence. The presence of his reasoning faculties, enabling him to
exercise sound judgment and to satisfactorily articulate the aforesaid
matters, sufficiently discounted any intimation of insanity when he
committed the felony.387

iv) Where the accused had a passionate nature, with a tendency to

having violent fits when angry, his acts of breaking glasses and
smashing dishes are indications of an explosive temper and not
insanity, especially considering that he did not turn violent when
a policeman intercepted him after he had killed his wife. 388

v) There is a vast difference between an insane person and one who

has worked himself up into such a frenzy of anger that he fails to
use reason or good judgment in what he does. Persons who get
into a quarrel or fight seldom, if ever, act naturally during the
fight. An extremely angry man, often, if not always, acts like a
madman. The fact that a person acts crazy is not conclusive that
he is insane. The popular meaning of the word "crazy" is not
synonymous with the legal terms "insane", "non compos mentis,"
"unsound mind", "idiot", or "lunatic." 389

vi) The heat of passion and feeling produced by motives of anger,

hatred, or revenge is not insanity.390

vii)One who, in possession of a sound and, commits a criminal act

under the impulse of passion or revenge, which may temporarily
dethrone reason and for the moment control the will, cannot
nevertheless be shielded from the consequences of the act by the
plea of insanity. Insanity will only excuse the commission of a
criminal act, when it is made affirmatively to appear that the
person committing it was insane, and that the offense was the
direct consequence of his insanity.391

viii) The defense of insanity was rejected in a case where the

accused killed by strangulation a sixteen-year-old girl, who got
leaves from his banana plants, and sliced the flesh of her legs,
387
People v. Aquino,  186 SCRA 851.
388
People v. Cruz, 109 Phil. 288.
389
U.S. v. Vaquilar, 27 Phil. 88, 91.
390
Ibid. citing People v. Foy, 138 N.Y. 664.
391
Ibid. citing State v. Strickly, 41 Iowa 232.
 thighs and shoulders, cooked the flesh and ate it like a
cannibal.392

ix) Being weak-minded does not necessarily mean that the accused
is insane.393

x) The fact that immediately after the incident the accused thought
of surrendering to the law-enforcing authorities is incontestable
proof that he knew that what he had done was wrong and that he
was going to be punished for it.394

xi)  Deaf-muteness cannot be equated with imbecility or insanity. 395

u) Examples of mental disorders which negate criminal liability:

i) Dementia praecox/ Schizoprenia. Schizoprenia has been described as

a chronic mental disorder characterized by inability to distinguish
between fantasy and reality, and often accompanied by hallucinations
and delusions. Formerly called dementia praecox, it is said to be the
most common form of psychosis and usually develops between the
ages 15.396

(1) Kurt Schneider's first-rank symptoms include the hearing of one's

thoughts spoken aloud, auditory hallucinations that comment on the
patient's behavior, somatic hallucinations, the experience of having
one's thoughts controlled, the spreading of one's thoughts to
others, delusions, and the experience of having one's actions
controlled or influenced from the outside. 397

(2) In the type of dementia praecox, "the crime is usually preceded by

much complaining and planning. In these people, homicidal attacks
are common, because of delusions that they are being interfered
with sexually or that their property is being taken."398

(3) In previous cases where schizophrenia was interposed as an

exempting circumstance, it has mostly been rejected by the
392
People v. Balondo, L-27401, October 31, 1969.
393
People vs. Martin, 120 Phil. 14,
394
People v. Ambal, G.R. No. L-52688. October 17, 1980.
395
People v. Formigones, supra.
396
People v. Rafanan, supra.
397
People v. Pascual, G.R. No. 95029, March 24, 1993.
398
People v. Bonoan, G.R. No. L-45130, February 17, 1937.
 Court. In each of these cases, the evidence presented tended
to show that if there was impairment of the mental faculties,
such impairment was not so complete as to deprive the
accused of intelligence or the consciousness of his acts. 399

(4) The Court held that schizophrenic reaction, although not

exempting because it does not completely deprive the
offender of the consciousness of his acts, may be considered
as a mitigating circumstance under Article 13(9) of the Revised
Penal Code, i.e., as an illness which diminishes the exercise of
the offender's will-power without, however, depriving him of
the consciousness of his acts.400

ii) Epilepsy. Epilepsy is a chronic nervous disease characterized by fits

and attended by convulsive motions of the muscles and loss of
consciousness. Where the accused claimed that he was epileptic but it
was not shown that he was under the influence of epileptic fit when he
committed the crime, he is not exempt.401

iii) Somnambulism. If it had been proven in the case that the defendant
when he committed these crimes was really asleep, or in a state of
somnambulism, or unconscious of his acts, then instead of coming
under paragraph 1 of article 8 of the Penal Code this case would come
under the provisions of article 1 of the Penal code, because a
somnambulist does not act voluntarily and therefore his acts do not
constitute a crime.402

iv) The defense that the offense charged was committed by the accused
during the prevalence of or in a state of somnambulism has been
recognized; but the latest holding of courts is to the effect that it does
not constitute a defense other than that embraced in a plea of
insanity.403

5) Minority under RA 9344 (Juvenile Justice and Welfare Act of 2006).

a) Nature of the law. Enacted into law on April 28, 2006, and took effect
on May 20, 2006, the law establishes a comprehensive system to manage
children in conflict with the law (CICL) and children at risk with child-
appropriate procedures and comprehensive programs and services such
399
People v. Rafanan, supra.
400
People v. Puno, 105 SCRA 151 (1981).
401
Reyes, Luis B. The Revised Penal Code, 18th ed. citing People v. Mancao, et al. 49 Phil. 887.
402
U.S. v. Odicta, G.R. No. 1749, March 21, 1905.
403
People v. Gimena, G.R. No. L-33877, February 6, 1931.
 as prevention, intervention, diversion, rehabilitation, re-integration and
after-care programs geared towards their development. 404

b) Its intent is to promote and protect the rights of a child in conflict with the
law or a child at risk by providing a system that would ensure that children
are dealt with in a manner appropriate to their well-being through a variety
of disposition measures such as care, guidance and supervision orders,
counseling, probation, foster care, education and vocational training
programs and other alternatives to institutional care. 405

c) This law modifies as well the minimum age limit of criminal irresponsibility
for minor offenders; it changed what paragraphs 2 and 3 of Article 12 of
the Revised Penal Code (RPC), as amended, previously provided i.e.,
from under nine years of age and above nine years of age and under
fifteen (who acted without discernment) to fifteen years old or under and
above fifteen but below 18 (who acted without discernment) in determining
exemption from criminal liability. In providing exemption, the new law as
the old paragraphs 2 and 3, Article 12 of the RPC did presumes that the
minor offenders completely lack the intelligence to distinguish right from
wrong, so that their acts are deemed involuntary ones for which they
cannot be held accountable.406

d) Definition of child. (a) Child - refers to a person under the age of eighteen
(18) years; (b) Child at risk – refers to a child who is vulnerable to and at
the risk of committing criminal offenses because of personal, family and
social circumstances enumerated in Section 2 (d) of the law; (c) Child in
conflict with the law (CICL) – refers to a child who is alleged as, accused
of or adjudged as having committed an offense under Philippine laws.

e) Age of criminal responsibility. (a) 15 years and below – absolutely no

criminal liability but subject to intervention program; (b) 15 years and one
day to 17 years – no criminal liability (but subject to intervention program)
unless he acted with discernment in which case, he shall undergo
diversion program.

f) There is criminal liability if the minor acted with discernment. Discernment

has been defined as the mental capacity of a minor to fully grasp the
consequences of his act, known and determined by taking into account all
the facts and circumstances presented by the records in each case. 407 The

404
Ortega v. People, G.R. No. 151085, August 20, 2008.
405
Sierra v. People, G.R. No. 182941, July 3, 2009.
406
Ibid.
407
People v. Jacinto, G.R. No. 182236, March 16, 2011.
 surrounding circumstances must demonstrate that the minor knew what
he was doing and that it was wrong. 408 Such circumstance includes the
gruesome nature of the crime and the minor’s cunning and shrewdness. 409

g) Examples of act of discernment: (1) choosing an isolated and dark place

to perpetrate the crime, to prevent detection; (2) boxing the victim to
weaken her defense, are indicative of the minor’s mental capacity to fully
understand the consequences of his unlawful action;410 (3) the victim was
a helpless minor; (4) accused-appellant secured the consummation of the
offense with a weapon; (5) he satisfied his lust by penetrating the victim
from behind; and (6) he threatened the victim not to report what
happened.411

h) In both cases, the exemption does not carry with it the civil liability.

i) Determination of age. The CICL enjoys the presumption of minority. In

case of doubt, it shall be resolved in favor of the child pursuant to Section
7 of the law as implemented by Section 20 of the IRR, the age of the child
is determined in the following manner:

i) Obtain documents that show proof of the child’s age, such as:

(1) Childs birth certificate;

(2) Childs baptismal certificate; or
(3) Any other pertinent documents such as but not limited to the child’s
school records, dental records, or travel papers.

ii) When the above documents cannot be obtained or pending receipt of

such documents, the law enforcement officer shall exhaust other
measures to determine age by:

(1) Interviewing the child and obtaining information that indicate age
(e.g. date of birthday, grade level in school);
(2) Interviewing persons who may have knowledge that indicate[s] age
of the child (e.g. relatives, neighbors, teachers, classmates);
(3) Evaluating the physical appearance (e.g. height, built) of the child;
and
(4) Obtaining other relevant evidence of age.

408
Remiendo v. People, G.R. No. 184874, October 9, 2009.
409
Llave v. People, G.R. No. 166040, April 26, 2006.
410
People v. Jacinto, G.R. No. 182236, March 16, 2011.
411
People v. Deliola, G.R. No. 200157, August 31, 2016.
 j) Testimonial evidence is competent evidence to prove the accused’s
minority and age.412

i) In the 1903 case of U.S. v. Bergantino,413 the court accepted

testimonial evidence to prove the minority and age of the accused in
the absence of any document or other satisfactory evidence showing
the date of birth.

ii) This was followed by U.S. v. Roxas,414 where the defendant’s

statement about his age was considered sufficient, even without
corroborative evidence, to establish that he was a minor of 16 years at
the time he committed the offense charged.

iii) Subsequently, in People v. Tismo,415 the Court appreciated the minority

and age of the accused on the basis of his claim that he was 17 years
old at the time of the commission of the offense in the absence of any
contradictory evidence or objection on the part of the prosecution.

iv) Then, in People v. Villagracia,416 the court found the testimony of the

accused that he was less than 15 years old sufficient to establish his
minority.

v) The court reiterated these dicta in the cases of People v. Morial417

and David v. Court of Appeals,418 and ruled that the allegations of
minority and age by the accused will be accepted as facts upon the
prosecutions failure to disprove the claim by contrary evidence.

k) Burden of proof. The burden of evidence has now shifted to the defense
which now claims, by an affirmative defense, that the accused, even if
guilty, should be exempt from criminal liability because of his age when he
committed the crime. The defense, therefore, not the prosecution, has the
burden of showing by evidence that the petitioner was 15 years old or less
when he committed the rape charged.419

i) Any person contesting the age may file a case in a summary

412
Ibid.
413
3 Phil 59, 61 (1903).
414
5 Phil 186, 187 (1905).
415
G.R. No. 44773, December 4,1991.
416
G.R. No. 94471, September 14, 1993.
417
G.R. No. 129295, August 15, 2001.
418
G.R. Nos. 11168-69, June 17, 1998.
419
People v. Concepcion, G.R. No. 136844, August 1, 2002.
 proceeding for the determination of age before the Family Court. 420

ii) In all proceedings, law enforcement officers, prosecutors, judges and

other government officials concerned shall exert all efforts at
determining the age of the child in conflict with the law. 421

l) Treatment of child below age of responsibility.

i) 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 has an initial contact, in consultation with
the local social welfare, has the duty to immediately release the child to
the custody of his parents or guardian, and he shall undergo a
community based intervention program.422

ii) Serious Crimes Committed by Children Who Are Exempt from Criminal
Responsibility. A child over 12 up to 15 is deemed a neglected child
under PD 603 and shall be placed in youth care facility (Bahay Pag-
asa), in the following crimes; parricide, murder, infanticide, kidnapping
and serious illegal detention where the victim is killed or raped,
robbery with homicide or rape, destructive arson, rape, carnapping
where the driver or occupant is killed or raped, and offenses under RA
9165.423

iii) Repetition of Offenses. A child above 12 years of age up to 15 years of

age and commits an offense for the second time or oftener and that he
was previously subjected to a community-based intervention program,
shall undergo an intensive intervention program.

m) Exempting provisions.

i) Status Offenses. – Any conduct not considered an offense or not

penalized if committed by an adult shall not be considered an offense
and shall not be punished if committed by a child. 424

ii) Violations of Local Ordinances. – Ordinances enacted by local

governments concerning juvenile status offenses such as, but not
limited to, curfew violations, truancy, parental disobedience, anti-

420
Section 7, RA 9344.
421
Ibid.
422
Section 20, Ibid.
423
Section 20-A, Ibid.
424
Section 57, Ibid.
 smoking and anti-drinking laws, as well as light offenses and
misdemeanors against public order or safety such as, but not limited
to, disorderly conduct, public scandal, harassment, drunkenness,
public intoxication, criminal nuisance, vandalism, gambling,
mendicancy, littering, public urination, and trespassing, shall be for the
protection of children. No penalty shall be imposed on children for said
violations, and they shall instead be brought to their residence or to
any barangay official at the barangay hall to be released to the custody
of their parents. Appropriate intervention programs shall be provided
for in such ordinances. The child shall also be recorded as a ‘child at
risk’ and not as a ‘child in conflict with the law’. The ordinance shall
also provide for intervention programs, such as counseling, attendance
in group activities for children, and for the parents, attendance in
parenting education seminars.425

iii) Offenses Not Applicable to Children. - Persons below eighteen (18)

years of age shall be exempt from prosecution for the crime of
vagrancy and prostitution under Section 202 of the Revised Penal
Code, of mendicancy under Presidential Decree No. 1563, and sniffing
of rugby under Presidential Decree No. 1619, such prosecution being
inconsistent with the United Nations Convention on the Rights of the
Child: Provided, That said persons shall undergo appropriate
counseling and treatment program. 426

iv) Exemption from the Application of Death Penalty. - The provisions of

the Revised Penal Code, as amended, Republic Act No. 9165,
otherwise known as the Comprehensive Dangerous Drugs Act of 2002,
and other special laws notwithstanding, no death penalty shall be
imposed upon children in conflict with the law.427

n) Programs or actions to be undertaken involving CICL.

i) Intervention. Refers to a series of activities which are designed to

address issues that caused the child to commit an offense. It may take
the form of an individualized treatment program which may include
counseling, skills training, education, and other activities that will
enhance his/her psychological, emotional and psycho-social well-
being.

ii) Who should undergo intervention? CICL who is less than 15 years old
or below, or CICL who is 15 years old and one day to 17 years who did
425
Section 57-A, Ibid.
426
Section 58, Ibid.
427
Section 59, Ibid.
 not act with discernment. If the minor acted with discernment, he
should undergo diversion program.

iii) Diversion Program. It refers to the program that the child in conflict with
the law is required to undergo after he/she is found responsible for an
offense without resorting to formal court proceedings.

iv) Who should undergo? Where the imposable penalty is not more than 6
years and there is a victim – the diversion program shall be before the
law enforcement officer or the Punong Barangay and shall be in the
form of mediation, family conferencing and conciliation attended by the
CICL and his family.428 If there is NO victim, the diversion program shall
be conducted by the local social welfare and development officer with
the CICL and his parents or guardians.

v) Where the imposable penalty is more than 6 years, the diversion shall
be undertaken by the courts only. In case the penalty imposable is not
more than 12 years, regardless of the fine or fine only regardless of the
amount, and before arraignment of the CICL, the court shall determine
whether or not diversion is appropriate.429

vi) If the offense does not fall under any of the above or if the CICL, his
parents or guardians does not consent to a diversion, the authority
handling the case shall forward the records to the prosecutor or court
within three days from the determination of absence of jurisdiction or
termination of the proceedings and shall be filed according to the
regular process.

vii)Suspension of sentence. A CICL under 18 years of age at the time of

commission of the crime who is found guilty of the offense charged
shall be placed under suspended sentence without the need of
application even if the child is already 18 or more at the time of the
pronouncement of guilt unless disqualified under PD 603. 430

viii) If the CICL reached 18 while under suspended sentence, the court
shall either:

(1) Discharge the child;

(2) Order execution of sentence; or
(3) Extend the suspended sentence for a certain period or until he
428
Section 23, Ibid.
429
Ibid.
430
Section 38, Ibid.
 reaches the maximum age of 21 years.431

ix) Section 38 of RA No. 9344 provides that when the child below 18
years of age who committed a crime (acted with discernment) and was
found guilty, the court shall place the child in conflict with the law under
suspended sentence even if such child has reached 18 years or more
at the time of judgment. The suspension of sentence is made without
the need of application.432 The court, however, is mandated to
determine and ascertain any civil liability which may have resulted from
the offense committed.

x) The automatic suspension of sentence under Section 38 applies even

if the minor therein was convicted of reclusion perpetua. The provision
makes no distinction as to the nature of the offense committed by the
child in conflict with the law (unlike PD 603).433

xi) Further, although suspension of sentence still applies even if the child
in conflict with the law is already 18 years of age or more at the time
the judgment of conviction was rendered, however, such suspension is
only until the minor reaches the maximum age of 21 as provided under
Section 40. However, in order to give meaning to the legislative intent
of the Act, the promotion of the welfare of a child in conflict with the law
should extend even to one who has exceeded the age limit of twenty-
one (21) years, so long as he/she committed the crime when he/she
was still a child.434

xii)Upon conviction and upon order of the court, the minor offender may
be made to serve his/her sentence in an agricultural camp and other
training facilities that may be established, maintained, supervised and
controlled by the BUCOR, in coordination with the DSWD, in lieu of
confinement in a regular penal institution. 435

xiii) Probation. Upon application at any time, the court shall place the
child on probation in lieu of service of sentence. The application shall
be filed within 15 days from the promulgation of decision.

431
Article 192, PD 603 (Child and Youth Welfare Code).
432
Suspended sentence is the holding in abeyance of the service of the sentence imposed by the
court upon a finding of guilt of the child in conflict with the law, whereby the child undergoes
rehabilitation within a fixed period under such terms and conditions as may be ordered by the
court. (Sec. 4, A.M. No. 02-1-18-SC, November 24, 2009).
433
People v. Sarcia, G.R. No. 169641, September 10, 2009.
434
People v. Jacinto, supra.; People v. Ancajas, et al., G.R. No. 199270, October 21, 2015.
435
Sec. 51; People v. Deliola, G.R. No. 200157, October 31, 2016.
6) Accident.

a) Accident is something 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. If foreseeable, it will be a
case of negligence.436

b) Requisites:

i) A person performing a lawful act;

ii) With due care;
iii) He causes an injury to another by mere accident;
iv) Without fault or intention of causing it. 437

c) Concepts.

i) The defense of accident presupposes lack of intention to kill. 438

ii) Exemption from criminal liability proceeds from a finding that the harm
to the victim was not due to the fault or negligence of the accused, but
to circumstances that could not have been foreseen or
controlled.439 Thus, in determining whether an "accident" attended the
incident, courts must take into account the dual standards of lack of
intent to kill and absence of fault or negligence. 440 

iii) The legal provision pertinent to accident, contemplates a situation

where a person is in fact in the act of doing something legal, exercising
due care, diligence and prudence, but in the process produces harm or
injury to someone or to something not in the least in the mind of the
actor an accidental result flowing out of a legal act. Accident
presupposes the lack of intention to commit the wrong done. 441

iv) In raising the defense of accident, the accused has the inescapable
burden of proving, by clear and convincing evidence, of accidental
infliction of injuries on the victim. In so doing, the accused has to rely
on the strength of his own evidence and not on the weakness of the
prosecution's evidence.442
436
Reyes, Luis B., supra.
437
Toledo v. People,  482 Phil. 292.
438
Aradillos v. Court of Appeals,  464 Phil. 650.
439
People v. Cariquez, 373 Phil. 877.
440
Pomoy v. People, G.R. No. 150647, September 29, 2004.
441
Talampas v. People, G.R. No. 180219, November 23, 2011.
442
People v. Macal, G.R. No. 211062, January 13, 2016.
7) Compulsion of Irresistible Force.

a) Requisites:

i) That the compulsion is by means of physical force;

ii) That the physical force must be irresistible; and
iii) That the physical force come from third person.443

b) Concepts.

i) Before a force can be considered to be an irresistible one, it must

produce such an effect upon the individual that, in spite of all
resistance, it reduces him to a mere instrument and, as such,
incapable of committing a crime. It must be such that, in spite of the
resistance of the person on whom it operates, it compels his members
to act and his mind to obey. He must act not only without will but
against will. Such a force can never consist anything which springs
primarily from the man himself; it must be a force which acts upon him
from the outside and by means of a third person. 444

ii) Under Article 12 of the Revised Penal Code, a person is exempt from
criminal liability if he acts under the compulsion of an irresistible force,
or under the impulse of an uncontrollable fear of equal or greater
injury, because such person does not act with freedom. For such
defense to prosper, the duress, force, fear or intimidation must be
present, imminent and impending, and of such nature as to induce a
well-grounded apprehension of death or serious bodily harm if the act
be done. A threat of future injury is not enough. 445

iii) A person who acts under the compulsion of an irresistible force, like
one who acts under the impulse of uncontrollable fear of equal or
greater injury is exempt from criminal liability because he does not act
with freedom. The force must be irresistible to reduce him to a mere
instrument who acts not only without will but against his will. The
duress, force, fear or intimidation must be present, imminent and
impending and of such a nature as to induce a well-grounded
apprehension of death or serious bodily harm if the act is not done. A
threat of future injury is not enough. The compulsion must be of such a
character as to leave no opportunity to the accused for escape or self-

443
People v. Fernandez, G.R. L-22087, March 24, 1980.
444
U.S. v. Elicanal, G.R. No. L-11439, October 28, 1916.
445
People v. Anticamara, et al., G.R. No. 178771, June 8, 2011.
 defense in equal combat.446

8) Impulse of Uncontrollable Fear.

a) Requisites:

i) The existence of an uncontrollable fear;

ii) That the fear must be real and imminent; and
iii) The fear of an injury is greater than, or at least equal to, that
committed.447

b) Concepts.

i) Actus me invito factus non est meus actus. “Any act done by me
against my will is not my act.” The force contemplated must be so
formidable as to reduce the actor to a mere instrument who acts not
only without will but against his will. The duress, force, fear or
intimidation must be present, imminent and impending, and of such
nature as to induce a well-grounded apprehension of death or serious
bodily harm if the act be done. A threat of future injury is not
enough. The compulsion must be of such a character as to leave no
opportunity for the accused for escape or self-defense in equal
combat.448

ii) In order that the circumstance of uncontrollable fear may apply, it is

necessary that the compulsion be of such a character as to leave no
opportunity to escape or self-defense in equal combat. 449

iii) The person using force or causing fear is the one liable. The actual
perpetrator is criminally exempt under Article 12.

iv) Distinguished from irresistible force. In irresistible force, the offender

uses violence or physical force to compel another to commit a crime; in
uncontrollable fear, the offender employs intimidation or threat in
compelling another to commit a crime.

9) Lawful or Insuperable Cause.

a) Requisites:
446
People v. Loreno, G.R. No. L-54414, July 9, 1984.
447
People v. Baron, G.R. No. 185209, June 28, 2010.
448
People v. Dequina, G.R. No. 177750, January 19, 2011.
449
People vs. Loreno, 130 SCRA 311, (1984).
 i) The act required by law to be done;
ii) The person fails to perform such act; and
iii) The failure is due to some lawful or insuperable cause.

b) Basis.

i) There is no intent to commit the act.

ii) There is a crime but there is no criminal. Act is not justified but the
actor is not criminally liable.
iii) Some motive which has lawfully, morally, or physically prevented a
person to do what the law commands.

c) Concepts.

i) This exempting circumstance implies knowledge of the precept of the

law to be complied with but is prevented by some lawful or insuperable
cause that is by some motive which has lawfully, morally or physically
prevented one to do what the law commands.450

10)Absolutory Causes.

a) An absolutory cause is present "where the act committed is a crime but for
reasons of public policy and sentiment there is no penalty imposed." 451
The act committed constitutes of a crime but the law does not punish the
offender by reason of public policy.

b) Absolutory causes under the Revised Penal Code.

i) Justifying and exempting circumstances;

ii) Spontaneous desistance during the attempted stage of felony (Art. 6,
par.);
iii) Light felonies are not punishable unless consummated except in
crimes against persons and property (Art. 7);
iv) Accessories are not liable in light felonies (Art. 16);
v) Accessories with respect to their spouses, ascendants, descendants,
legitimate, natural, and adopted brothers and sisters, or relatives by
affinity within the same degrees except if they profit themselves or
assist the offenders to profit by the effects of the crime. (Art. 20);
vi) Commission of crime or violent insanity or any other ailment requiring
compulsory confinement of patient (Art. 124);
450
People v. Bandian, G.R. No. 45186, September 30, 1936.
451
People v. Talisic, G.R. No. 97961 September 5, 1997.
 vii)Physical injuries other than serious physical injuries under exceptional
circumstances (Art. 247);
viii) No trespassing to any person who enters another house for the
purpose of preventing some serious harm to himself, the occupants of
the dwelling or third person, or to any person who enters a house for
purpose of rendering some service to humanity or justice, or to anyone
who enters ca cafes, taverns, inns, and other public house while they
are open. (Art. 280);
ix) Exemption of certain persons in the crimes of estafa, theft, or malicious
mischief. (Art. 332);
x) In cases of seduction, abduction, acts of lasciviousness, or rape, the
marriage of the offender with the offended party. (Art. 344);
xi) Instigation.

c) Instigation.

i) Instigation is the means by which the accused is lured into the

commission of the offense charged in order to prosecute him. The
officers of the law or their agents incite, induce, instigate or lure an
accused into committing an offense which he or she would otherwise
not commit and has no intention of committing.452

ii) The law deplores instigation or inducement, which occurs when the
police or its agent devises the idea of committing the crime and lures
the accused into executing the offense. Instigation absolves the
accused of any guilt, given the spontaneous moral revulsion from using
the powers of government to beguile innocent but ductile persons into
lapses that they might otherwise resist. 453

iii) Entrapment is not a defense available to the accused. It is instigation

that is a defense and is considered an absolutory cause.454

iv) Test to determine whether instigation or entrapment:

(1) To determine whether there is entrapment or instigation, our courts

have mainly examined the conduct of the apprehending officers,
not the predisposition of the accused to commit the crime. This is
called objective test. In subjective test, the accused past and
predisposition to commit crime are considered. However, in People
v. Boholst,455 both tests were applied by examining the conduct of
452
People v.  Gatong-o, G.R. No. L-78698, 29 December 1988.
453
People v. Doria, G.R. No. 125299, 22 January 1999.
454
Ibid.
455
152 SCRA 263, 271 (1987).
 the police officers in a buy-bust operation and admitting evidence of
the accused's membership with the notorious and dreaded Sigue-
Sigue Sputnik Gang. The court also considered accused's previous
convictions of other crimes and held that his opprobrious past and
membership with the dreaded gang strengthened the state's
evidence against him.

(2) The objective test in buy-bust operations demands that the details
of the purported transaction must be clearly and adequately
shown. This must start from the initial contact between the poseur-
buyer and the pusher, the offer to purchase, the promise or
payment of the consideration until the consummation of the sale by
the delivery of the illegal drug subject of the sale. The manner by
which the initial contact was made, whether or not through an
informant, the offer to purchase the drug, the payment of the buy-
bust money, and the delivery of the illegal drug, whether to the
informant alone or the police officer, must be the subject of strict
scrutiny by courts to insure that law-abiding citizens are not
unlawfully induced to commit an offense. 456 

v) Distinguished from entrapment.457

Distinction Instigation Entrapment

Accused is lured into Entrapment is the

the commission of the employment of such ways
Concept offense charged in and means for the purpose
order to prosecute of trapping or capturing a
him lawbreaker.

The criminal intent or

Officers of the law
design to commit the
incite, induce,
offense charged originates
instigate, or lure
in the mind of the accused,
accused to commit
Manner and law enforcement
the offense. Thus, the
officials merely facilitate
criminal intent
the apprehension of the
originates from the
criminal by employing
officers of the law.
ruses and schemes
Legal effect In instigation, where Entrapment cannot bar
456
People v. De Guzman, G.R. 151205, June 9, 2004.
457
People v. Bayani, G.R. No. 179150, June 17, 2008.
 law enforcers act as
co-principals, the
prosecution and conviction.
accused will have to
be acquitted.
Instigation is a "trap
Entrapment is a "trap for
Also known as for the unwary
the unwary criminal."
innocent.”

vi) In United Sates v. Phelps, the accused was acquitted from the offense
of smoking opium after finding that the government employee, a BIR
personnel, actually induced him to commit the crime in order to
persecute him. Smith, the BIR agent, testified that Phelps
apprehension came after he overheard Phelps in a saloon say that he
like smoking opium on some occasions. Smith’s testimony was
disregarded. The court accorded significance to the fact that it was
Smith who went to the accused three times to convince him to look for
an opium den where both of them could smoke this drug. The conduct
of the BIR agent was condemned as most reprehensible. 458 

vii)In People v. Abella, the accused was acquitted of the crime of selling

explosives after examining the testimony of the apprehending police
officer who pretended to be a merchant. The police officer offered a
tempting price, a very high one causing the accused to sell the
explosives. The court found there was inducement, direct, persistent
and effective by the police officer and that outside of his testimony,
there was no evidence sufficient to convict the accused. 459

d) Buy-bust operation (entrapment).

i) A buy-bust operation, considered as a form of entrapment, is a valid

means of arresting violators of Republic Act No. 9165. It is an effective
way of apprehending law offenders in the act of committing a crime. In
a buy-bust operation, the idea to commit a crime originates from the
offender, without anybody inducing or prodding him to commit the
offense. A police officer’s act of soliciting drugs from the accused
during a buy-bust operation, or what is known as a "decoy solicitation,"
is not prohibited by law and does not render invalid the buy-bust
operations. The sale of contraband is a kind of offense habitually
committed, and the solicitation simply furnishes evidence of the

458
G.R. No. L-5728, August 11, 1910.
459
46 Phil. 857 [1923].
 criminal’s course of conduct. 460

ii) A decoy solicitation is not tantamount to inducement or instigation. It is

no defense to the perpetrator of a crime that facilities for its
commission were purposely placed in his way, or that the criminal act
was done at the decoy solicitation of persons seeking to expose the
criminal, or that detectives feigning complicity in the act were present
and apparently assisting its commission. Especially is this true in that
class of cases where the office is one habitually committed, and the
solicitation merely furnishes evidence of a course of conduct. 461

iii) In buy-bust operations, the testimony of the police officers who

apprehended the accused is usually accorded full faith and credit
because of the presumption that they have performed their duties
regularly. The presumption is overturned only if there is clear and
convincing evidence that they were not properly performing their duty
or that they were inspired by improper motive. The courts,
nonetheless, are advised to take caution in applying the presumption
of regularity. It should not by itself prevail over the presumption of
innocence and the constitutionally-protected rights of the individual. 462 

iv) To determine whether there was a valid entrapment or whether proper

procedures were undertaken in effecting the buy-bust operation, it is
incumbent upon the courts to make sure that the details of the
operation are clearly and adequately established through relevant,
material and competent evidence. The courts cannot merely rely on,
but must apply with studied restraint, the presumption of regularity in
the performance of official duty by law enforcement agents. Courts are
duty-bound to exercise extra vigilance in trying drug cases and should
not allow themselves to be used as instruments of abuse and injustice
lest innocent persons are made to suffer the unusually severe
penalties for drug offenses.463

Chapter Six
MITIGATING CIRCUMSTANCES

Mitigating Circumstances

460
People v. Bartolome, G.R. No. 191726, February 06, 2013.
461
People v. Sta. Maria, G.R. No. 171019, February 23, 2007.
462
People v. De Guzman, G.R. No. 151205, June 9, 2004.
463
Valdez v. People, G.R. No. 170180, November 23, 2007.
 Article 13. Mitigating circumstances. - The following are mitigating
circumstances;

1. Those mentioned in the preceding chapter, when all the requisites

necessary to justify or to exempt from criminal liability in the
respective cases are not attendant.

2. That the offender is under eighteen year of age or over seventy

years. In the case of the minor, he shall be proceeded against in
accordance with the provisions of Art. 80.

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

that committed.

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

party immediately preceded the act.

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

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

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

have produced passion or obfuscation.

7. That the offender had voluntarily surrendered himself to a person

in authority or his agents, or that he had voluntarily confessed his
guilt before the court prior to the presentation of the evidence for the
prosecution;

8. That the offender is deaf and dumb, blind or otherwise suffering

some physical defect which thus restricts his means of action,
defense, or communications with his fellow beings.

9. Such illness of the offender as would diminish the exercise of the

will-power of the offender without however depriving him of the
consciousness of his acts.

10. And, finally, any other circumstances of a similar nature and

analogous to those above mentioned.

1) Mitigating circumstances are those circumstances which, if present in the

commission of the crime, do not entirely free the actor from criminal liability,
 but serve only to reduce the penalty.

a) In mitigating circumstances, the following must be considered:

i) The offender commits a crime;

ii) There is a criminal liability;
iii) The effect is to reduce the penalty; and
iv) It does not change the nature of the crime.

b) Basis. There is diminution of either freedom of action, intelligence or

intent, or on the lesser perversity of the offender.

c) Classes: (1) Ordinary mitigating circumstance; and (2) Privileged

mitigating circumstance.

d) Ordinary and privileged mitigating circumstances, distinguished.

i) An ordinary mitigating circumstance can be offset by a generic

aggravating circumstance, whereas privileged mitigating circumstance
cannot be offset;

ii) An ordinary mitigating circumstance, if not offset, has the effect of

imposing a lesser penalty, whereas a privileged mitigating
circumstance has the effect of imposing the penalty by one or two
degrees lower than that provided by law;

iii) Incomplete self-defense and minority are privileged mitigating

circumstances, while the rest are ordinary mitigating circumstances.

e) Other privileged mitigating circumstances.

i) Concealment of dishonor of the mother in Infanticide (255).

ii) Voluntary release of a person detained within 3 days without the
accused attaining his purpose and before the institution of criminal
action (268).
iii) Unjustified abandonment of the spouse in the crime of adultery (333).

2) Types of mitigating circumstances:

a) Incomplete self defense, defense of relatives, and defense of strangers.

i) Basis. Article 69 of the Revised Penal Code provides: "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 articles 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."464

ii) Nature. Incomplete self-defense is not considered as a justifying act,

but merely a mitigating circumstance; hence, the burden of proving the
crime charged in the information is not shifted to the accused. In order
that it may be successfully appreciated, however, it is necessary that a
majority of the requirements of self-defense be present, particularly the
requisite of unlawful aggression on the part of the victim. Unlawful
aggression by itself or in combination with either of the other two
requisite suffices to establish incomplete self-defense. Absent the
unlawful aggression, there can never be self-defense, complete or
incomplete, because if there is nothing to prevent or repel, the other
two requisites of defense will have no basis.465

iii) Unlawful aggression must be present. For this purpose, the accused
must prove the existence of the majority of the elements for self-
defense, but unlawful aggression, being an indispensable element,
must be present. Either or both of the other requisites may be absent,
namely: reasonable necessity of the means employed to prevent or
repel it, or the lack of sufficient provocation on the part of the person
defending himself.466 To be appreciated, the unlawful aggression must
be a continuing circumstance or must have been existing at the time
the defense is made.467 A person making a defense has no more right
to attack an aggressor when the unlawful aggression has ceased. 468

iv) Unlawful aggression must emanate from the victim. There can be no
self-defense, whether complete or incomplete, unless the victim had
committed unlawful aggression against the person who resorted to
self-defense.469 This mitigating circumstance is inapplicable when the
unlawful aggression started from the accused. 470

464
People v. Oandasan, G.R. No. L-29532, September 28, 1968.
465
People v. CA, et al., G.R. No. 103613, Fefbruary 23, 2001.
466
Mendoza v. People, G.R. No. 139759, January 14, 2005.
467
People v. Annibong, G.R. No. 139879, May 8, 2003.
468
People v. Cajurao, G.R. No. 122767, January 20, 2004.
469
People v. Dolorido, G.R. No. 191721, January 12, 2011.
470
Almojuela v. People, G.R. No. 183202, June 2, 2014.
 v) Incomplete defense of a relative. For the claim of incomplete defense
of a relative to prosper, it is essential to prove the primordial element of
unlawful aggression. If there is no unlawful aggression there would be
nothing to prevent or repel. In that event, there could be no defense,
complete or incomplete.471

vi) Incomplete defense of a stranger. Absent either or both of the last two
(2) requisites, the mitigating circumstance of incomplete defense of
stranger may be appreciated. However, in either case, unlawful
aggression is always an essential element. It has been held that
without unlawful aggression, there could never be a defense, complete
or incomplete.472

vii) Penalty lowered to two degrees. Pursuant to Article 69 of RPC, the

penalty lower by one or two degrees 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. Considering that the majority of the
requirements for defense of property are present, the penalty may be
lowered by two degrees.473

b) Minority (above 15 less than 18).

i) General rule. Sec. 6 of RA 9344 exempts a child above fifteen (15)

years but below eighteen (18) years of age from criminal liability,
unless the child is found to have acted with discernment, in which
case, "the appropriate proceedings" in accordance with the Act shall
be observed.474

ii) Discernment. Discernment is that mental capacity of a minor to fully

appreciate the consequences of his unlawful act. 475 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
surrounding circumstances must demonstrate that the minor knew
what he was doing and that it was wrong. 476 Such circumstance
includes the gruesome nature of the crime and the minor’s cunning
and shrewdness.477 The act of a 17-year old offender in choosing an
isolated and dark place to perpetrate the crime, to prevent detection;
471
People v. Layam, 234 SCRA 424.
472
People v. Flores, G.R. Nos. 103801-82, October 19, 1994.
473
People v. Narvaez, G.R. Nos. L-33466-67, April 30, 1983.
474
Sec. 6, RA 9344.
475
Madali v. People, G.R. No. 180380, 4 August 2009.
476
Remiendo v. People, G.R. No. 184874, 9 October 2009.
477
Llave v. People, G.R. No. 166040, 26 April 2006.
 and boxing the victim to weaken her defense" are indicative of his
mental capacity to fully understand the consequences of his unlawful
action.478 The accused-appellant acted with discernment when he
raped the victim is demonstrated by the following surrounding
circumstances: (1) the victim was a helpless minor; (2) accused-
appellant secured the consummation of the offense with a weapon; (3)
he satisfied his lust by penetrating the victim from behind; and (4) he
threatened the victim not to report what happened. 479 In case of
discernment, the imposable penalty is modified in view of the privileged
mitigating circumstance of minority of the accused which has the effect
of reducing the penalty one degree lower than that prescribed by law,
pursuant to Article 68 of the Revised Penal Code. 480

iii) Basis of granting mitigating circumstance. A minor is entitled to the

privileged mitigating circumstance of minority embodied in Article 68(2)
of the Revised Penal Code. It provides that when the offender is a
minor over 15 and under 18 years, the penalty next lower than that
prescribed by law shall be imposed on the accused but always in the
proper period.481

iv) Rationale. The rationale of the law in extending such leniency and
compassion is that because of his age, the accused is presumed to
have acted with less discernment.482

v) Doubts must be resolved in favor of minority. In regard to the doubt as

to whether the accused is over or under 18 years of age, and in the
absence of proof that on the day he committed the crime he was 18
years old, he must perforce be considered as still under that age, and
therefore, the mitigating circumstance mentioned in paragraph No. 2 of
article 9 of the code should be applied in his favor. 483

vi) Minority preferred. Even if minority was not proven during the trial as
the birth certificate was belatedly presented, minority should be
considered since to rule accordingly will not adversely affect the rights
of the state, the victim and his heirs. 484 In the interest of justice, the
Court allowed the presentation of and admitted the birth certificates of
the accused to prove the mitigating circumstance of minority although
478
People v. Jacinto, G.R. No. 182239, March 16, 2011.
479
People v. Deliola, G.R. No. 200157, August 31, 2016.
480
Ibid.
481
People v. Agacer, et al., G.R. No. 177751, January 7, 2013.
482
Ibid. citing People v. Larrañaga, 516 Phil. 52.
483
U.S. v. Barbicho, 13 Phil. 616 (1909); People v. Baroy, G.R. Nos. 137520-22, August 15, 2003.
484
Ibid.
 said birth certificates were not presented or offered in the trial court. 485
The claim of minority has been upheld even without any other proof to
corroborate such testimony, especially when coupled with the fact that
the prosecution failed to present contradictory evidence. 486

vii) Minority applied in drug cases. For violation of Comprehensive

Dangerous Drugs Act (RA 9165), where the accused was 17 years old
at the time of the commission of the offense, the Court held, inter alia,
that: (a) pursuant to Sec. 98 of RA 9165, the penalty for acts
punishable by life imprisonment to death provided in the same law
shall be reclusion perpetua to death when the offender is a minor; and
(b) that the penalty should be graduated since the said provision
adopted the technical nomenclature of penalties provided for in the
Revised Penal Code.  The privileged mitigating circumstance of
minority can now be appreciated in fixing the penalty that should be
imposed. The RTC, as affirmed by the CA, imposed the penalty of
reclusion perpetua without considering the minority of the appellant.
Thus, applying the rules stated above, the proper penalty should be
one degree lower than reclusion perpetua, which is reclusion temporal,
the privileged mitigating circumstance of minority having been
appreciated.487

c) The offender had no intention to commit so grave a wrong (praeter

intentionem).

i) Nature. This mitigating circumstance addresses itself to the intention of

the offender at the particular moment when the offender executes or
commits the criminal act488 not to his intention during the planning
stage.489 This circumstance 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 intention of the accused
at the time of the commission of the crime is manifested from the
weapon used, the mode of attack employed, and the injury sustained
by the victim.490 

ii) The allowance of this mitigating circumstance is consistent with the

rule that criminal liability shall be incurred by any person committing a
485
Co v. CA, et al., 99 SCRA 321 (1980).
486
People v. Villagracia, 226 SCRA 374 (1993); People v. Tismo, 204 SCRA 535 (1991); People
v. Ebora, 141 SCRA 282 (1986).
487
People v. Mantalaba, G.R. No. 186227, July 20, 2011.
488
People v. Badriago, G.R. No. 183566, May 8, 2009.
489
People v. Boyles, G.R. No. L-15308, May 29, 1964.
490
People v. Buenamer, G.R. No. 206227, August 31, 2016.
 felony although the wrongful act done be different from that which he
intended.491

iii) How to determine this circumstance. In determining the presence of

this circumstance, it must be considered that since intention is a
mental process and is an internal state of mind, the accused's intention
must be judged by his conduct and external overt acts. 492 This
circumstance 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 intention of the accused at the time of
the commission of the crime is manifested from the weapon used, the
mode of attack employed and the injury sustained by the victim. 493

iv) “Lucky punch” is indicative of lack of intent to commit so grave a

wrong. Accused tried to avoid the fight, being very much smaller than
the victim. He tried to parry the blows of the latter, albeit he was able,
during the scuffle, to connect a lucky punch that ended the fight. And
lest it be overlooked, accused helped carry his unconscious co-worker
to the office. Such gesture cannot reasonably be expected from, and
would be unbecoming of, one intending to commit so grave a wrong as
killing the victim. A bare-knuckle fight as a means to parry the
challenge issued by the victim was commensurate to the potential
violence accused was facing. It was just unfortunate that victim died
from that lucky punch, an eventuality that could have possibly been
averted had he had the financial means to get the proper medical
attention.494

v)  The mitigating circumstance of lack of intent to commit so grave a

wrong as that committed should be appreciated in favor of accused-
appellant for he had no intent to kill when he attacked the victim. His
intention was merely to inflict injuries on the victim. 495

vi) No mitigating circumstance. The inflicting by the accused of five (5)

stab wounds in rapid succession brings forth in bold relief the intention
of the accused to snuff the life of the deceased, and definitely negated
any pretense of lack of intention to commit so serious an injury. 496 The
act of the accused in pouring kerosene on the body of his wife and was
burned as her body was wet 90% of the chemical cannot be
491
Navarro v. CA, G.R. No. 121087, August 26, 1999.
492
People v. Regato, 212 Phil. 268 (1984).
493
People v. Gonzalez, Jr., G.R. No. 139542, June 21, 2001.
494
Urbano v. People, G.R. No. 182750, January 20, 2009.
495
People v. Flores, G.R. No. 116524, January 18, 1996.
496
People v. Brana, 30 SCRA 308.
 considered lack of intent to commit so grave a wrong where it was
established that he had full possession of the container with
kerosene.497 When a person stabs another with a lethal weapon such
as a fan knife upon a part of the body, for example, the head, chest, or
stomach, death could reasonably be anticipated, and the accused
must be presumed to have intended the natural consequences of his
wrongful act. The means employed contradict the claim that accused
had lack of intention to commit the crime of homicide. 498

vii) The mitigating circumstance of no intention to commit so grave a

wrong cannot be appreciated in cases of murder qualified by
treachery.499

viii) The mitigating circumstance of lack of intent to commit so grave a

wrong as that actually perpetrated cannot be appreciated where the
acts employed by the accused were reasonably sufficient to produce
and did actually produce the death of the victim. 500

ix) Recognizing the malum prohibitum characteristic of hazing, the law

provides that any person charged with the said crime shall not be
entitled to the mitigating circumstance that there was no intention to
commit so grave a wrong.501

d) That sufficient provocation or threat on the part of the offended party

immediately preceded the act (Sufficient provocation).

i) Sufficient provocation as mitigating circumstance. 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. Notably, while an
act cannot be considered an unlawful aggression for the purpose of
self-defense, the same act can be considered as sufficient provocation
for the purpose of mitigating the crime.502

ii) Requisites. For sufficient provocation under Article 13, paragraph

4 of the Revised Penal Code of the Philippines to apply, three
requisites must be present:

497
People v. Maglian, G.R. No. 189834, March 30, 2011.
498
People v. Reyes, G.R. No. L-42117, March 29, 1935.
499
People v. Pajenado, 161 Phil. 233 (1976).
500
Oriente v. People, G.R. No. 155094, January 30, 2007.
501
Dungo v. People, G.R. No. 209464, July 1, 2015.
502
Gotis v. People, G.R. No. 157201, September 14, 2007.
 (1) provocation must be sufficient;
(2) it must be immediate to the commission of the crime; and
(3) it must originate from the offended party.503

iii) "Sufficient" according to jurisprudence means adequate to excite

a person to commit the crime and must accordingly be
proportionate to its gravity. For this mitigating circumstance to
apply, it is not enough that the provocating act be unreasonable
or annoying.504 Certainly, calling a person gay is not the sufficient
provocation contemplated by law that would lessen the liability of
the accused.505

iv) "Immediate" on the other hand means that there is no interval of

time between the provocation and the commission of the crime.
Hence, in one case, the Supreme Court ruled that provocation
occurring more than one hour before the stabbing incident is not
immediate506 and 24 hours before the commission of the crime. 507
Per admission of the defense witnesses, the taunting done by the
victim occurred days before the stabbing incident hence the
immediacy required by law was absent. The lapse of time would
have given the accused the chance to contemplate and to recover
his serenity enough to refrain from pushing through with his evil
plan.508 

v) When provocation is sufficient. When the law speaks of provocation

either as a mitigating circumstance or as an essential element of self-
defense, the reference is to an unjust or improper conduct of the
offended party capable of exciting, inciting, or irritating anyone. 509 It is
not enough that the provocative act be unreasonable or
annoying.510 The provocation must be sufficient to excite one to commit
the wrongful act511 and should immediately precede the act.512 

vi) Sufficient provocation was present in the following cases. The victim,
before the killing, had challenged the accused’s family with a bolo and
an "indian pana." After this attack, the victim went home. The accused
503
People v. Racal, G.R. No. 224886, September 4, 2017.
504
Bautista v. Court of Appeals [G.R. No. L-46025, September 2, 1992.
505
People v. Racal, supra.
506
People v. Co, 67 O.G. 7451.
507
People v. Benito, 62 SCRA 351.
508
People v. Racal, supra.
509
Navarro v. CA, G.R. No. 121087, August 26, 1999.
510
Cano v. People, G.R. No. 155258, October 7, 2003.
511
People v. Nabora, 73 Phil. 434 (1941).
512
People v. Paga, No. L-32040, October 25, 1977.
 thereafter grabbed a bolo, pursued the victim, and killed him. The
Court did not consider the victim’s act as an unlawful aggression for
the purpose of self-defense. However, such was considered a
provocation sufficient to mitigate the crime. 513 The Court had likewise
disregarded the violent act of the victim before the shooting incident as
an unlawful aggression, but appreciated it as a mitigating circumstance
of sufficient provocation.514 The retaliation of the accused, although not
considered an unlawful aggression, was nevertheless deemed as
sufficient provocation. The Court explained, "Thrusting his bolo at
petitioner, threatening to kill him, and hacking the bamboo walls of his
house are, in our view, sufficient provocation to enrage any man, or stir
his rage and obfuscate his thinking, more so when the lives of his wife
and children are in danger.515

e) Immediate vindication of a grave offense.

i) For such mitigating circumstance to be credited, the act should be

committed in the immediate vindication of a grave offense to the one
committing the felony (delito), his spouse, ascendants, descendants,
legitimate, natural or adopted brothers or sisters, or relatives by affinity
within the same degree.516

ii) A nephew is not a relative by affinity "within the same degree"

contemplated in Article 13, paragraph 5 of the Revised Penal Code. 517

iii) The two accused were provoked to commit two murders because of
the indecent propositions made to the women by Jalumio and his
companions. For Mario Aninias, this is the mitigating circumstance of
passion and obfuscation or vindication of a grave offense to his wife. 518

iv) There can be no immediate vindication of a grave offense when the

accused had sufficient time to recover his equanimity. 519  A period of
four days was sufficient enough a time within which the accused could
have regained his composure and self-control. Thus, the said
mitigating circumstance cannot be credited in favor of the accused-
appellant.520
513
Pepito v. CA, G.R. No. 119942, July 8, 1999. 
514
People v. Ubaldo, G.R. No. 129389, October 17, 2001.
515
Romero v. People, G.R. No. 151978, July 14, 2004.
516
Bacabac v. People, G.R. No. 149372, September 11, 2007.
517
Ibid.
518
People v. Timoteo Olgado, et al, L-4406, March 31, 1952; 91 Phil. 908 Unrep.
519
People v. Palabrica, 409 Phil. 618 (2001).
520
People v. Rebucan, G.R. No. 182551, July 27, 2011.
 f) Passion and obfuscation.

i) Requisites:

(1) That there be an act, both unlawful and sufficient to produce such a
condition of mind; and

(2) That said act which produced the obfuscation 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.521

ii) Concepts.

(1) There is passional obfuscation when the crime was committed due
to an uncontrollable burst of passion provoked by prior unjust or
improper acts, or due to a legitimate stimulus so powerful as to
overcome reason.522

(2) Passion and obfuscation as affecting the mind and resulting in lack
of reason and self-control must originate from lawful sentiments. 523
The turmoil and unreason which naturally result from a quarrel or
fight should not be confused with the sentiment or excitement in the
mind of a person injured or offended to such a degree as to deprive
him of his sanity and self-control, because the cause of this
condition of mind must necessarily have preceded the commission
of the offense.524 If the only provocative act came from the parents
who did not approve of the accused proposal to marry their
daughter, this act was not unlawful. Neither was it sufficient to
sustain passion and obfuscation. Accused was actuated more by a
spirit of lawlessness and revenge rather than any sudden and
legitimate impulse of natural and uncontrollable fury. 525

(3) The only causes which mitigate the criminal responsibility for the
loss of self-control are such as originate from legitimate feelings,
not those which arise from vicious, unworthy, and immoral
passions.526 If the accused acted with jealousy out of illicit romantic
521
People v. Lobino, G.R. No. 123071, October 28, 1999.
522
People v. Valles, G.R. No. 110564, January 28, 1997.
523
People v. Reyes, 100 SCRA 581.
524  
People v. Bautista, G.R. No. 109800, March 12, 1996.
525
People v. Gravino, G.R. No. L-31327, May 16, 1983.
526
U.S. v. Hicks, G.R. No. 4971, September 23, 1909.
 relationship, there is no passion and obfuscation. However, there is
passion and obfuscation if the impulse upon which defendant acted
and which naturally "produced passion and obfuscation" was not
that the woman declined to have illicit relations with him, but the
sudden revelation that she was untrue to him, and his discovery of
her in flagrante in the arms of another.527

(4) Moreover, the act producing the obfuscation must not be far
removed from the commission of the crime by a considerable
length of time, during which the accused might have recovered his
normal equanimity.528

(5) There is no uniform rule on what constitutes "a considerable length

of time." The provocation and the commission of the crime should
not be so far apart that a reasonable length of time has passed
during which the accused would have calmed down and be able to
reflect on the consequences of his or her actions. What is important
is that the accused has not yet "recovered his normal equanimity"
when he committed the crime.529

(6) The attack, made 30 minutes between the fistfight and the killing,
cannot be said to be the result of a sudden impulse of natural and
uncontrollable fury. Having been actuated more by the spirit of
revenge or by anger and resentment for having been publicly
berated cannot be credited with the extenuating circumstance of
passion and obfuscation.530

(7) Acts done in the spirit of revenge cannot be considered acts done
with passion and obfuscation.531

g) Voluntary Surrender.

i) Two mitigating circumstances:

(1) Voluntary surrender to a person in authority or his agents; and

(2) Voluntary confession of guilt before the court prior to the
presentation of evidence for the prosecution.

527
U.S. v. Dela Cruz, L-7094, March 29, 1912.
528
People v. Lobino, supra.
529
People v. Oloverio, G.R. No. 2111159, March 18, 2015.
530
Ibid.
531
Ibid.
 ii) Requisites for voluntary surrender:

(1) the accused has not been actually arrested;

(2) the accused surrenders himself to a person in authority or the
latter’s agent; and
(3) the surrender is voluntary.532
(4) there is no pending warrant of arrest or information filed. 533

iii) Concepts.

(1) The essence of voluntary surrender is spontaneity and the intent of

the accused to give himself up and submit himself to the authorities
either because he acknowledges his guilt or he wishes to save the
authorities the trouble and expense that may be incurred for his
search and capture.534 

(2) Without these elements, and where the clear reasons for the
supposed surrender are the inevitability of arrest and the need to
ensure his safety, the surrender is not spontaneous and, therefore,
cannot be characterized as voluntary surrender to serve as a
mitigating circumstance.535

(3) The fourth requisite. In Cagas, after the stabbing incident, the

accused ran to the upper portion of the cemetery where a police
officer caught up with him. Thereupon, he voluntarily gave himself
up. The Court held that if the accused did then and there surrender,
it was because he was left with no choice. Thus, the surrender was
not spontaneous.536

(4) In Taraya, when the accused learned that the police authorities
were looking for him (because of a warrant for his arrest), he
immediately went to the police station where he confessed that he
killed the victim. Notwithstanding such surrender and confession to
the police, the Court refused to appreciate the mitigating
circumstance in his favor.537

(5) In People v. Barcino, Jr.538 the accused surrendered to the

532
People v. Ignacio, G.R. No. 134568, February 10, 2000.
533
People v. Cagas, G.R. No. 145504, June 30, 2004; People v. Taraya, 398 Phil. 311 (2000).
534
People v. Garcia, G.R. No. 174479, June 17, 2008.
535
Ibid.
536
People v. Cagas, supra.
537
People v. Taraya, supra.
538
67 Phil. 709 (2004).
 authorities after more than one year from the incident in order to
disclaim responsibility for the killing of the victim. The Court refused
to mitigate the accused’s liability because there was no
acknowledgment of the commission of the crime or the intention to
save the government the trouble and expense in his search and
capture; and there was a pending warrant for his arrest.

iv) Requisites for voluntary plea:

(1) That the offender spontaneously confessed his guilt;

(2) That the confession of guilt was made in open court, that is, before
the competent court that is to try the case; and
(3) That the confession of guilt was made prior to the presentation of
evidence for the prosecution.

v) Basis: Lesser perversity of the offender.

vi) If both circumstances are present in the same case they have the
effect of two independent circumstances539 and in the absence of
aggravating circumstances, they will reduce divisible penalties by one
degree.

h) The offender is Deaf and Dumb or Blind.

i) Concept. The physical defect contemplated in this mitigating

circumstance must affect the means of action, defense or
communication of the offender with his fellow beings. The nature of the
offense is to be considered as to whether such physical defect is
mitigating.540 This has been extended to cover cripples, armless people
even stutterers. The circumstance assumes that with their physical
defect, the offenders do not have a complete freedom of action
therefore diminishing the element of voluntariness in the commission of
a crime.

ii) Basis. One suffering from physical defect which restricts him does not
have complete freedom of action and therefore, there is diminution of
that element of voluntariness.

i) Illness that Diminishes the Exercise of Will-Power.

i) Requisites:

539
People vs. Fontalba, 61 Phil 589.
540
Gregorio, supra., page 107.
 (1) Illness of the offender must diminish the exercise of his will-power;
and
(2) Such illness should not deprive the offender of consciousness of
his acts.

ii) Concepts.

(1) When the offender completely lost the exercise of will-power, it may
be an exempting circumstance.

(2) Schizophrenia may be considered mitigating under Art. 13(9) if it

diminishes the exercise of the willpower of the accused. 541

j) Analogous and Similar Mitigating Circumstances.

i) Examples:

(1) Defendant who is 60 years old with failing eyesight is similar to a

case of one over 70 years old;
(2) Jealousy similar to passion and obfuscation;
(3) Voluntary restitution of property, similar to voluntary surrender;
(4) Extreme poverty and necessity as a mitigating circumstance falling
within No. 10 of article 13 of the Revised Penal Code, which
authorizes the court to consider in favor of an accused "any other
circumstance of a similar nature and analogous to those above
mentioned." 542
(5) The accused returned home following the incident and resolved to
remain there, knowing that the police was on its way to his house.
And as the policemen approached his home, he directly gave
himself up to them. If accused t wanted to abscond, he could have
readily done so but this, he did not do. This justifies the
appreciation of a mitigating circumstance of a similar nature or
analogous to voluntary surrender, under number 10, Article 13 of
the Revised Penal Code.543

ii) The following are held not analogous or similar mitigating

circumstances: (1) killing a wrong person; (2) one resisting arrest is not
the same as voluntary surrender; (3) running amuck is not mitigating.

541
People v. Villanueva, G.R. No. 172697, September 25, 2007.
542
People v. Macbul, G.R. No. L-48976, October 11, 1943.
543
Eduarte v. People., 617 Phil. 661 (2009).
 Chapter Seven
AGGRAVATING CIRCUMSTANCES

Aggravating Circumstances

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 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 is
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 night time, or in an uninhabited

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

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 persons
who insure or afford impunity.

9. That the accused is a recidivist.

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

10. That the offender has been previously punished by an offense to

which the law attaches an equal or greater penalty or for two or more
crimes to which it attaches a lighter penalty.

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

13. That the act be committed with evidence premeditation.

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

15. That advantage be taken of superior strength, 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 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 vehicles, motorized watercraft,
airships, or other similar means. (As amended by RA 5438).

21. That the wrong done in the commission of the crime be

deliberately augmented by causing other wrong not necessary for its
commissions.

1) Nature. Those which serve to increase the penalty without exceeding the
maximum provided by law because of the greater perversity of the offender
as shown by the motivating power of the commission of the crime, the time
and place of its commission, the means employed or the personal
circumstances of the offender.544

2) Basis. The greater perversity of the offender as shown by:

a) Motivating power itself;

b) Place of the commission;
c) Means and ways employed;
d) Time;
e) Personal circumstances of the offended, or of the offended party.

3) Kinds of aggravating circumstances:

a) Generic or those that can generally apply to all crimes;

b) Specific or those that apply only to particular crimes;
c) Qualifying or those that change the nature of the crime; and
d) Inherent or those that must of necessity accompany the commission of the
crime.545

544
Gregorio, Ibid.
545
People v. Lab-eo, G.R. No. 133438, January 16, 2002.
4) Generic and Qualifying circumstances, distinguished.

a) A generic aggravating circumstance can be offset by an ordinary

mitigating circumstance which is not so in qualifying.
b) A qualifying aggravating cannot be proved unless alleged in the
information. A generic aggravating may be proved even if not alleged.
c) Generic aggravating circumstances not offset have the effect of increasing
the penalty to the maximum but not beyond that provided by law. A
qualifying aggravating changes not only the nature but also the name of
the crime and the offender becomes liable for the new offense which is
more serious in nature.
d) Qualifying must be alleged in the information and be established by direct
and positive evidence, not by mere prescription or inference.

5) Generic aggravating circumstances and special aggravating circumstances.

a) Generic aggravating circumstances.

i) Concept. Generic aggravating circumstances are those that generally

apply to all crimes. Examples:

(1) Taking advantage of official position;

(2) Crime committed in contempt of or with insult to public authorities;
(3) Act committed with insult or lack of regard due to offended party by
reason of age, sex, rank, or the crime is committed in the dwelling
of the offended party, if the latter has not given provocation;
(4) Abuse of confidence;
(5) Crime committed in the (a) palace of the Chief Executive; (b) in his
presence; (c) where public authorities are engaged in the
discharge of duties; or (d) in a place dedicated to religious
worship;
(6) Nighttime, uninhabited place, or band;
(7) Recidivism;
(8) Reiteracion or habituality;
(9) Craft, fraud or disguise is employed;
(10)Unlawful entry;
(11)As a means to the commission of a crime a wall, roof, floor, door,
or window be broken;
(12)With the aid of persons under 15 years or by means of motor
vehicles, airships, motorized water craft or similar means.

ii) Effect. It has the effect of increasing the penalty for the crime to its
maximum period, but it cannot increase the same to the next higher
degree.
 iii) Need to specifically allege. It must always be alleged and charged in
the information, and must be proven during the trial in order to be
appreciated.

iv) Offsetting. It can be offset by an ordinary mitigating circumstance. 546

b) Special aggravating circumstances.

i) Concept. Special aggravating circumstances are those which arise

under special conditions to increase the penalty for the offense to its
maximum period, but the same cannot increase the penalty to the next
higher degree.

ii) Examples:

(1) Quasi-recidivism under Article 160;

(2) Complex crimes under Article 48 of the Revised Penal Code.
(3) Use of loose firearm in the commission of the crime (RA 10591).

iii) Effect. It does not change the character of the offense charged. 547

iv) Need to allege in the information. It must always be alleged and

charged in the information, and must be proven during the trial in order
to be appreciated.

v) Offsetting. It cannot be offset by an ordinary mitigating circumstance. 548

6) The “aggravating circumstances” on the civil liability of the accused. The term
"aggravating circumstances" used by the Civil Code, the law not having
specified otherwise, is to be understood in its broad or generic sense. The
commission of an offense has a two-pronged effect, one on the public as it
breaches the social order and the other upon the private victim as it causes
personal sufferings, each of which is addressed by, respectively, the
prescription of heavier punishment for the accused and by an award of
additional damages to the victim. The increase of the penalty or a shift to a
graver felony underscores the exacerbation of the offense by the attendance
of aggravating circumstances, whether ordinary or qualifying, in its
commission. Unlike the criminal liability which is basically a State concern, the
546
Palaganas v. People, G.R. No. 165483, September 12, 2006.
547
People v. Agguihao, G.R. No. 104725, March 10, 1994.
548
People v. De Leon, G.R. No. 179943, June 26, 2009.
 award of damages, however, is likewise, if not primarily, intended for the
offended party who suffers thereby. It would make little sense for an award of
exemplary damages to be due the private offended party when the
aggravating circumstance is ordinary but to be withheld when it is qualifying.
Withal, the ordinary or qualifying nature of an aggravating circumstance is a
distinction that should only be of consequence to the criminal, rather than to
the civil, liability of the offender. In fine, 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.549

7) Types of aggravating circumstances:

a) Take advantage of public position (generic).

i) Requisites:

(1) The offender is a public officer; and

(2) He used the influence, prestige and ascendancy of his office in the
commission of the crime.

ii) Concepts.

(1) The essence of the matter is presented in the question: Did the
accused abuse his office in order to commit the crime? If the
accused could have killed the victim without having occupied his
position of confidential agent, then there is no abuse of public
position.550

(2) 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, this
circumstance is not considered. This is inherent in the crime since,
it cannot be committed except by public officer.551

b) Contempt or insult to public authorities (generic).

i) Requisites:

(1) Public authority is engaged in exercise of his functions;

549
People v. Catubig, G.R. No. 137842, August 23, 2001.
550
People v. Ordiales, G.R. L-30956, November 23, 1971.
551
Gregorio, supra, page 114 citing People v. Teves, 44 Phil. 275.
 (2) The said person is not the person against whom the crime is
committed; and
(3) The offender knows him to be a public authority.

ii) Concepts.

(1) This circumstance is present when the offender has not been
prevented from committing the criminal act despite the presence of
the public authority.

(2) If the crime is committed against the public authority, the crime
committed is direct assault. This circumstance is absorbed. 552

c) Disregard of rank, age, or sex and dwelling of the offended part (generic).

i) Requisites:

(1) Act of deliberate intention to disregard or insult age, sex, or rank;

and
(2) Proof of fact of disregard and deliberate intent.

ii) Concepts.

(1) Rank – refers to a high position social position or standing, for

example, killing judge because he was strict, 553 or difference in the
social condition of the offender and the offended party.

(2) Age - tender age or old age of the offended party.

(3) Sex - applies to the female sex only. To be aggravating, it must be

shown that the accused deliberately intended to offend or insult the
sex of the victim, or showed manifest disrespect for her
womanhood.554

(4) Dwelling – includes dependencies, staircase, and enclosures.

(a) Dwelling is aggravating in robbery with violence or intimidation

because the crime can be committed without the necessity of
transgressing the sanctity of the house.555

552
People v. Siojo, 81 Phil. 367.
553
People v. Valeriano, G.R. No. L-2159, September 29, 1951.
554
Mari v. Court of Appeals, G. R. No. 127694, May 31, 2000.
555
People v. Dajaresco, G.R. L-32701, June 19, 1984.
 (b) The offender’s deliberate invasion of the tranquillity of one’s
domicile.556 Dwelling is aggravating because of the sanctity of
privacy which the law accords to human abode. He who goes to
another's house to hurt him or do him wrong is more guilty than
he who offends him elsewhere."557 

(c) Dwelling aggravates a felony where the crime is committed in

the dwelling of the offended party provided that the latter has
not given provocation therefor.558

(5) If all four circumstances are present, only one aggravating

circumstance will be considered.

(6) The aggravating circumstances of age, sex and rank are

considered in crimes against persons, security, and honor but not in
crimes against property. Robbery with homicide is a crime against
property.

d) Abuse of confidence and obvious ungratefulness.

i) Requisites:

(1) The offended party trusted the offender;

(2) The offender abused such trust; and
(3) The abuse of confidence facilitated the commission of the crime.

ii) Concepts.

(1) For this aggravating circumstance to exist, it is essential to show

that the confidence between the parties must be immediate and
personal such as would give the accused some advantage or make
it easier for him to commit the criminal act. The confidence must be
a means of facilitating the commission of the crime, the culprit
taking advantage of the offended party’s belief that the former
would not abuse said confidence.559

(2) This circumstance is present when the accused was treated like a
member of the family,560 or who was living in the house of the victim
556
People v. Roncal, et al., G.R. L-26857-58, October 21, 1977.
557
People v. Agcanas, 74 Phil. 626 (2011).
558
People v. Evangelio, 672 Phil. 229.
559
People v. Gelera, 277 SCRA 450 (1997).
560
People v. Verdad, G.R. No. L-51797, Mau 16, 1983.
 employed by the victim as an overseer and had free access in the
house of the victim who was very kind to him.561

e) Palace of the chief executive or place dedicated to religious worship

(generic).

i) Concepts.

(1) The public authority is engaged in the performance of his duty.

(2) The public authority is in his office, or the place dedicated to the
worship of God.

(3) The public authority may be the offended party.

(4) Offender must have the intention to commit a crime when he

entered the place.

(5) It is necessary to show that the offender must have sought any of
the places for the commission of the crime. 562

(6) If any of the said places was not sought for as the crime was
casually committed therein, this circumstance is not present. 563

f) Nighttime, uninhabited place, or band (qualifying).

i) Nighttime.

(1) Nighttime is that period of darkness beginning at the end of dusk

and ending at dawn.564

(2) It is considered an aggravating circumstance only when it is sought

to prevent the accused from being recognized or to ensure their
escape. There must be proof that this was intentionally sought to
ensure the commission of the crime and that the perpetrators took
advantage of it. Although the crime was committed at nighttime, if
there is no evidence that the accused took advantage of nighttime
or that nighttime facilitated the commission of the crime, then this
561
People v. Lupangco, 109 SCRA 109.
562
People v. Jaurigue, 76 Phil. 174.
563
Gregorio, supra, page 125.
564
People v. Garachico, et al., G.R. No. L-30849 March 29, 1982.
 circumstance cannot be appreciated.565

(3) By and 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 his immunity from capture. 566 Stated differently, in default
of any showing or evidence that the peculiar advantages of
nighttime was purposely and deliberately sought by the accused,
the fact that the offense was committed at night will not suffice to
sustain nocturnidad. It must concur with the intent or design of the
offender to capitalize on the intrinsic impunity afforded by the
darkness of night.567

(4) The essence of this aggravating circumstance is

the obscuridad afforded by, and not merely the chronological onset
of, nighttime.568

(5) Nocturnity lures those who crave for blood to yield to their baser
impulses with the false courage borne out of the belief that their
identity would not be brought in the open.569 

(6) It cannot be considered if it is incidental or has no influence in the

commission of the crime (like bigamy).570

(7) Nighttime cannot be considered if it is shown that the place was

adequately lighted.571

(8) Nighttime is absorbed by treachery.572

(9) Tests: There is objective test if nighttime facilitates the commission

of the crime; there issubjective test, if it is purposely sought for by
the offender. Both tests are applied.

565
People v. Tolentino, G.R. No. 176385, February 26, 2008.
566
People v. Alcala, 46 Phil. 739; People v. Matbagon, 60 Phil. 887; People v. Pardo, 79 Phil.
658.
567
People v. Boyles, G.R. No. L-15308, May 29, 1964.
568
U.S.  v. Paraiso, 17 Phil. 142.
569
People v. Arizobal, G.R. No. 135051-51, December 14, 2000.
570
Gregorio, supra. Page 126.
571
People v. Arizobal, supra.
572
People vs. Enot, L-17530, October 30, 1962.
 ii) Uninhabited place. An uninhabited place is one where there are no
houses at all, a considerable distance from town, or where the houses
are scattered at a great distance from each other. 573 

(1) A distance of 200 yards to the nearest house is sufficient to make

the scene of the crime uninhabited. 574 What the Supreme Court
considered as uninhabited is a place about a kilometer from the
nearest house or other inhabited place.575

(2) The place is not uninhabited when the crime was committed on the
railroad tracks, within 90 yards of inhabited houses. The houses
were sufficiently near for the inmates to have heard calls for help if
the deceased had cried out in a loud voice.576

(3) The aggravating circumstance of uninhabited place cannot likewise

be appreciated in the absence of evidence that the accused
actually sought an isolated place to better execute their purpose. 577

iii) Band. An offense shall be deemed to have been committed by a band

whenever more than three (3) armed malefactors shall have acted
together in the commission thereof.578

(1) Band is inherent in brigandage. In simple robbery, it is not.

(2) Band is appreciated in the following: Treason, Crimes against

persons, Robbery with homicide, or rape, or intentional mutilation,
or with physical injuries resulting in insanity, impotency or
blindness.579

g) On occasion of calamity or misfortune (qualifying).

i) Requisites:

(1) The offender must take advantage of the calamity or misfortune;

and
(2) The crime was committed during the conflagration, shipwreck,

573
People v. Salgado, G.R. No. 4498, August 5, 1908
574
People vs. Pulido, 85 Phil. 695 [1905]).
575
People vs. Aguinaldo, 55 Phil. 610
576
U.S. v. Balagtas, G.R. No. L-6422, March 22, 1911.
577
People v. Fortich, 346 Phil. 596.
578
People v. Dela Cruz, G.R. No. 102063, G.R. No. January 20, 1993.
579
People v. Puesca, 87 SCRA 130.
 earthquake, epidemic or other calamity or misfortune.

ii) Concepts.

(1) In this circumstance, the offender takes advantage of the situation.

He commits the crime on the occasion of the calamity. In par. 12 of
Article 14, the crime is committed using fire, inundation or
explosion.

(2) The term “misfortune” does not include the development of engine
trouble at sea. It does not come within the phrase "other calamity or
misfortune" as used in Article 14, paragraph 7 of the Revised Penal
Code, which refer to other conditions of distress similar to those
precedingly enumerated therein, namely, "configuration, shipwreck,
earthquake, epidemic", such as the chaotic conditions resulting
from war or the liberation of the Philippines during the last World
War.580

(3) The reason for the provision of this aggravating circumstance "is
found in the debased form of criminality met in one who, in the
midst of a great calamity, instead of lending aid to the afflicted adds
to their suffering by taking advantage of their misfortune to despoil
them."581

h) Aid of armed men (qualifying).

i) Requisites:

(1) That armed men or persons took part in the commission of the
crime, directly or indirectly; and
(2) That the accused availed himself of their aid or relied upon them
when the crime was committed.

ii) Concepts.

(1) 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 and those armed men acted under the
same plan and for the same purpose as there will be conspiracy. 582

580
People v. Arpa, et al., G.R. No. L-26789, April 25, 1969.
581
U.S. v. Rodriguez, 19 Phil. 150, 157.
582
Gregorio, supra. Citing People v. Abaigar, 2 Phil. 417; People v. Piring, 63 Phil. 546; People v.
Candado, G.R. No. L-34089, August 1, 1978.
 (2) Aid of armed men or persons affording immunity requires that the
armed men are accomplices who take part in minor capacity,
directly or indirectly.583

(3) There is aid of armed men even if the accused merely relied on
their aid as actual aid is not essential.584

(4) This circumstance is not present when it is shown that the accused
as well as those who cooperated with him in the commission of the
crimes in question acted under the same plan and for the same
purpose.585

i) Recidivism (generic).

i) Requisites:

(1) That the offender is on trial for an offense;

(2) That he was previously convicted by final judgment of another
crime;
(3) That both the first and the second offenses are embraced in the
same title of the Code; and
(4) That the offender is convicted of the new offense.

ii) Concepts.

(1) 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.

(2) It is necessary that the first conviction must be by final judgment

and must take place prior to the second conviction. The second
conviction should not be for the offense committed before the
commission of the offense prior conviction.586

(3) The aggravating circumstance of recidivism should be taken into

consideration, notwithstanding the allegation and proof that the
accused were habitual delinquents and should accordingly be
sentenced to the additional penalty provided by law. 587

583
People v.  Candado,  et al., 84 SCRA 508 (1978).
584
Gregorio, supra., page. 133.
585
People v. Piring, et al., G.R. No. 45053, October 19, 1936.
586
People v. Baldera, 86 Phil. 189.
587
People vs. Melendrez, 59 Phil., 154.
 (4) It is not correct to assume that recidivism is twice taken into
account when the accused is declared an habitual delinquent and
when it is deemed to aggravate the crime in fixing the principal
penalty to be imposed, because recidivism as an aggravating
circumstance modifying criminal liability is not an inherent or
integral element of habitual delinquency which the Revised Penal
Code considers as an extraordinary and special aggravating
circumstance.588

(5) For recidivism to exist, it is sufficient that the accused, on the date
of his trial, shall have been previously convicted by final judgment
of another crime embraced in the same title. For the existence of
habitual delinquency, it is not enough that the accused shall have
been convicted of any of the crimes specified, and that the last
conviction shall have taken place ten (10) years before the
commission of the last offense. It is necessary that the crimes
previously committed be prior to the commission of the offense with
which the accused is charged a third time or oftener. 589

(6) Recidivism distinguished from habitual delinquency.

Recidivism Habitual Delinquency

The crimes are specified:
The crimes are embraced in the
Robbery, Theft, Estafa,
Crimes covered same title of the Revised Penal
Falsification, Serious or Less
Code.
Serious Physical Injuries
Conviction of any specified
crimes must take place within
Period No period required.
ten years from the date of last
conviction or release.
Number of There must be third conviction of
Two convictions only.
conviction the crimes specified.
Being a generic circumstance, it It cannot be offset by any
Offsetting
may be offset. mitigating circumstance.
If not offset, it increases the It provides for the imposition of
Effect
penalty. additional penalty

588
People v. Bernal, G.R. No. L-44988, October 31, 1936.
589
Ibid.
 j. Reiteracion or Habituality (generic).

a. Requisites:

i. The accused is on trial for an offense;

ii. He previously served sentence for another offense with an
equal or greater penalty than the new offense.
iii. He is convicted for the new offense.

b. Concepts.

i. There is habituality when the accused at the time of his trial

for an offense, had previously served a sentence for an
offense to which the law attaches an equal or greater than
that attached by law to the second offense, or for two or
more offenses, in which the law attaches a lighter penalty. 590

ii. Recidivism distinguished from habituality.

Recidivism Habituality
Nature There is a previous The offender is previously
conviction. punished.
Crimes The crimes are embraced The crimes are not necessarily
covered in the same title of the embraced in the same title of
code. the code.
Effect Not always aggravating. Its
If present, it is always
appreciation depends upon the
aggravating.
sound discretion of the court.

iii. If the two offenses are embraced in the same title of the
Code, irrespective of whether the law attaches a greater
penalty for the first offense, recidivism and not reiteracion is
present.591

k. Price, reward or promise (qualifying).

a. Requisites:

i. There must be two or more offenders, the one who gives or

offers the price, and the other who accepts it; and
590
Ibid
591
Gregorio, supra., page 136.
 ii. The price, reward or promise is given for the purpose of
inducing another to do the crime.

b. Concepts.

i. In this circumstance, there are two persons affected: the one

giving the price or reward and the one receiving it. The new
rule is it affects both the offeror and the receiver. The offeror
is principal by inducement while the receiver is principal by
direct participation.

ii. The inducement must be the primary consideration in the

commission of the crime as against the person induced. 592 If
the money was given, without any previous promise, after
the commission of the crime as an expression of sympathy,
this circumstance is absent.593

l. By means of inundation or fire (qualifying).

a. Nature. The circumstance must be facilitated as a means to

accomplish the purpose.

b. Concepts.

i. This is the only aggravating circumstance that may

constitute as a crime itself.
ii. When the killing is perpetrated with treachery and by means
of explosives, the latter shall be considered as a qualifying
circumstance. Not only does jurisprudence support this view
but also, since the use of explosives is the principal mode of
attack, reason dictates that this attendant circumstance
should qualify the offense instead of treachery which will
then be relegated merely as a generic aggravating
circumstance.594

m. Evident premeditation (qualifying).

a. Requisites:

i. The time when the offender determined to commit the crime;

592
People v. Paredes, 24 SCRA 635.
593
U.S. v. Flores, 28 Phil. 29.
594
Malana v. People, G.R. No. 173612, March 26, 2008 citing People v. Tintero, G.R. No. L-
30435, February 15, 1982.
 ii. An act manifestly indicating that the culprit has clung to his
determination; and
iii. A sufficient lapse of time between the determination and
execution, to allow him to reflect on the consequences of his
act.595

b. Concepts.

i. The qualifying aggravating circumstance of evident

premeditation, like any other qualifying circumstance, must
be proved with certainty as the crime itself.  A finding of
evident premeditation cannot be based solely on mere lapse
of time from the time the malefactor has decided to commit a
felony up to the time that he actually commits it.596

ii. The prosecution must adduce clear and convincing evidence

as to when and how the felony was planned and prepared
before it was effected.597  The prosecution is burdened to
prove overt acts that after deciding to commit the felony, the
felon clung to his determination to commit the crime.  The
law does not prescribe a time frame that must elapse from
the time the felon has decided to commit a felony up to the
time that he commits it.  Each case must be resolved on the
basis of the extant factual milieu.598

iii. Evident premeditation must be based on external facts

which are evident, not merely suspected, which indicate
deliberate planning. There must be direct evidence
showing a plan or preparation to kill, or proof that the
accused meditated and reflected upon his decision to
kill the victim. Criminal intent must be evidenced by
notorious outward acts evidencing a determination to
commit the crime. In order to be considered an
aggravation of the offense, the circumstance must not
merely be "premeditation" but must be "evident
premeditation."599

iv. Premeditation presupposes a deliberate planning of the

595  
People v.  Sison, 312 SCRA 792, 804 (1999).
596  
People v.  Piamonte, 303 SCRA 577 (1999).
597
People v.  Patrolla, Jr., 254 SCRA 467 (1996).
598
People v. Baldogo, G.R. No. 128106-07, January 24, 2003.
599
People v. Abadies, 436 Phil. 98 (2002) cited in People v. Ordona, G.R. No. 227863,
September 2017.
 crime before executing it. The execution of the criminal act,
in other words, must be preceded by cool thought and
reflection. As here, there must be showing of a plan or
preparation to kill, or proof that the accused meditated and
reflected upon his decision to execute the crime. 600

v. One hour from the time of determination up to the time of

execution has been held sufficient lapse of time.601

vi. Evident premeditation is inherent in crime against property. It

is not considered as an aggravating circumstance in crimes
of robbery because the same is inherent in the crime
specially where it is committed by various persons; they
must have an agreement, they have to meditate and reflect
on the manner of carrying out the crime and they have to act
coordinately in order to succeed. But in the crime of robbery
with homicide, if there is evident premeditation to kill besides
stealing, it is considered as an aggravating circumstance.602

vii. When it is not shown as to how and when the plan was
hatched or what time had elapsed before it was carried out,
evident premeditation cannot be considered.603

n. Craft, fraud or disguise (qualifying).

a. Requisites:

i. This circumstance is present if it is used to aid in the

execution of the criminal design.

b. Concepts.

i. Craft is a circumstance characterized by trickery or cunning

resorted to by the accused to carry out his design. 604 Craft
involves intellectual trickery in order not to arouse suspicion.

ii. Fraud involves insidious words or machinations for direct

inducements.

600
People v. Guzman, G.R. No. 169246, January 26, 2007.
601
People v. Serna, 100 Phil. 1098.
602
People v. Valeriano, 90 Phil. 15.
603
People v. Julandia, Jr., 370 SCRA 448.
604
People v. Barrios, G.R. No. L-34785, July 30, 1979.
 iii. Disguise is used when resorting to any device will conceal
identity.

iv. Craft, fraud or disguise is a species of aggravating

circumstance that denotes intellectual trickery or cunning
resorted to by an accused to aid in the execution of his
criminal design or to lure the victim into a trap and to conceal
the identity of the accused. The fact that one of the
appellants has pretended to be a member of the New
People's Army does not necessarily imply the use of craft,
fraud or disguise, in the commission of the crime. 605

v. It is settled that an aggravating circumstance should be

proven as fully as the crime itself in order to aggravate the
penalty.

vi. To be considered as an aggravating circumstance and

thereby resultantly increase the criminal liability of an
offender, the same must accompany and be an integral part
or concomitant of the commission of the crime specified in
the information; and although it is not necessarily an element
thereof, it must not be factually and legally discrete
therefrom.606

o. Superior strength or means to weaken defense (qualifying).

a. Requisites:

i. In superior strength, (1) there is deliberate intent to take

advantage of superior strength, (2) that there is evidence of
relative physical strength and notorious inequality of forces,
(3) the purpose is to overpower.
ii. In means to weaken defense, the purpose to weaken the
victim’s resisting power.
iii. This circumstance is applicable to crimes against persons
only.

b. Concepts.

i. Abuse of superior strength is present whenever there is a

605
People v. Quinanola, G.R. No. 126148, May 5, 1999.
606
People v. Medina, G.R. No, 127157, July 10, 1998.
 notorious inequality of forces between the victim and the
aggressor, assuming a situation of superiority of strength
notoriously advantageous for the aggressor selected or
taken advantage of by him in the commission of the crime. 607

ii. The fact that there were two persons who attacked the victim
does not per se establish that the crime was committed with
abuse of superior strength, there being no proof of the
relative strength of the aggressors and the victim. The
evidence must establish that the assailants purposely sought
the advantage, or that they had the deliberate intent to use
this advantage.608 

iii. To take advantage of superior strength means to purposely

use excessive force out of proportion to the means of
defense available to the person attacked. 609

iv. The appreciation of this aggravating circumstance depends

on the age, size, and strength of the parties. 610 An attack
made by a man with a deadly weapon upon an unarmed and
defenseless woman constitutes an abuse of the aggressors’
superior strength.611

v. Means employed to weaken the defense can also be

characterized by suddenly casting sand on the eyes of the
victim and then wounding him.612

p. Treachery (qualifying).

a. Requisites:

i. The employment of means, method, or manner of execution

which will ensure the safety of the malefactor from defensive
or retaliating acts on the part of the victim, no opportunity
being given to the latter to defend himself or to retaliate; 613
and
ii. Deliberate or conscious adoption of such means, method, or
607
People v. Daquipil, 310 Phil. 327, 348 (1995).
608
People v. Escoto, 313 Phil. 785, 800-801 (1995).
609
People v.  Ventura, G.R. Nos. 148145-46, July 5, 2004,
610
People v. Moka, G.R. No. 88838, April 26, 1991,
611
People v.  Appegu,  379 SCRA 703 (2002).
612
People v. Siaotong, G.R. No. L-9242, March 29, 1957.
613
People v. Cleopas, 384 Phil. 286.
 manner of execution.614

b. Concepts.

i. 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.

ii. This is applicable to crime is against persons only.

iii. The essence of treachery is that the attack comes without a

warning and in a swift, deliberate, and unexpected manner,
affording the hapless, unarmed, and unsuspecting victim no
chance to resist or escape.615

iv. An unexpected and sudden attack which renders the victim

unable and unprepared to put up a defense is the essence of
treachery.616 The essence of treachery lies in the
suddenness of the attack that leaves the victim unable to
defend himself, thereby ensuring the commission of the
offense.617 It is the suddenness of the attack coupled with the
inability of the victim to defend himself or to retaliate that
brings about treachery; consequently, treachery may still be
appreciated even if the victim was facing the assailant. 618
Thus, there is treachery when the assailants gunned down
the victim while the latter was preoccupied in the kitchen of
his own abode while getting dinner ready for the household.
He was absolutely unaware of the imminent deadly assault
from outside the kitchen, and was for that reason in no
position to defend himself or to repel his assailants. 619

v. The mere suddenness of attack does not, of itself suffice for

a finding of alevosia if the mode adopted by the accused
does not positively tend to prove that they thereby knowingly
intended to insure the accomplishment of their criminal
614
Ibid.
615
People v. Albarido, G.R. No. 102367, October 25, 2001, 
616
People v. Agacer, G.R. No. 177751, December 14, 2011.
617
People v. Sanchez, G.R. No. 188610, June 29, 2010.
618
People v. Aguilar, 88 Phil 693 (1951).
619
People v. Villarico, et al., G.R. No. 158362, April 4, 2011.
 purpose without any risk to themselves arising from the
defense that might be offered.620 The aggravating
circumstance of treachery is not present when decision to
attack was arrived at on the spur of the moment. 621 Such
deliberate or conscious choice was held non-existent where
the attack was the product of an impulse of the moment. 622

vi. However, in some cases, it was held that treachery cannot

be appreciated simply because the attack was sudden and
unexpected. Where the meeting between the accused and
the victim was casual and the attack was done impulsively,
there is no treachery even if the attack was sudden and
unexpected. As has been aptly observed the accused could
not have made preparations for the attack, and the means,
method and form thereof could not therefore have been
thought of by the accused, because the attack was
impulsively done.623 It cannot be presumed that treachery
was present merely from the fact that the attack was sudden.
The suddenness of an attack, does not of itself, suffice to
support a finding of alevosia, even if the purpose was to kill,
so long as the decision was made all of a sudden and the
victim's helpless position was accidental. 624 Treachery
cannot be appreciated if the accused did not make any
preparation to kill the deceased in such manner as to insure
the commission of the killing or to make it impossible or
difficult for the person attacked to retaliate or defend
himself.625

vii. An attack from behind is treachery. The attack on the victim

was characterized by treachery since the attack on the latter
was from behind thereby rendering the victim unable to
defend himself.626 When the accused stabbed the victim, the
latter was sitting on a bench watching the singing and
dancing during the Sinulog festival. The victim was
engrossed in the merrymaking when suddenly appellant
stealthily stabbed him from behind.627 
620
People v.  Torejas, 43 SCRA 158 (1972).
621
Perez  v. Court of Appeals, 13 SCRA 444 (1965).
622
People v.  Macalisang, 22 SCRA 699 (1968).
623
People v. Magallanes, 275 SCRA 222 (1997).
624
People v. Escoto, et al., G.R. No. 91756, May 11, 1995.
625
People v. Bautista, G.R. No. 254 SCRA 621 (1996).
626
People v. Danes, G.R. No. L-30487, August 24, 1984.
627
People v. Rellon, G.R No. 74051, November 8, 1988.
 viii. A frontal attack does not necessarily rule out treachery. The
qualifying circumstance may still be appreciated if the attack
was so sudden and so unexpected that the deceased had no
time to prepare for his or her defense.628

ix. In treachery, it is necessary that the victim must not have

known the peril he was exposed to at the moment of the
attack. Should it appear, however, that the victim was
forewarned of the danger he was in, and, instead of fleeing
from it he met it and was killed as a result, then the
qualifying circumstance of treachery cannot be
629
appreciated. Treachery cannot be appreciated in instances
when the victim had the opportunity to flee or defend
himself.630

x. In the absence of proof as to how the victims were killed,

treachery cannot be properly appreciated. The killings must
be considered as homicide only and not murder since the
circumstance qualifying the killings must be proven as
indubitably as the killings themselves. 631 However, the killing
of a child is characterized by treachery even if the manner of
the assault is not shown because the weakness of the victim
due to her tender age results in the absence of any danger
to the accused.632

xi. Must treachery be present at the inception of the attack?

For treachery to be appreciated, it must be present at the
inception of the attack, and if absent and the attack is
continuous, even if present at a subsequent stage it is not to
be considered.633

xii. The aggravating circumstance of abuse of superior strength

is absorbed in treachery and can no longer be appreciated
separately. In this connection, it bears stressing that when
treachery qualifies the crime to murder, the generic
aggravating circumstance of abuse of superior strength is

628
People v. Perez, 404 Phil. 380, 382 (2001).
629
People v. Se, 469 Phil. 763, (2004).
630
People v. Discalsota, 430 Phil. 406 (2002).
631
People vs. Vicente, G.R. No. L-31725, February 18, 1986.
632
People v. Ganohon, 273 Phil. 672 (1991).
633
People v. Badon, et al., G.R. No. 126143, June 10, 1999.
 necessarily included in the former. Stated differently, when
treachery qualifies the crime to murder, it absorbs abuse of
superior strength and the latter can not be appreciated even
as a generic aggravating circumstance.634

q. Ignominy (qualifying).

a. Nature.

i. Ignominy is a circumstance pertaining to the moral order

which adds disgrace and obloquy to the material injury
caused by the crime.635 There is ignominy where the acts
tend to make the effects of the crime more humiliating or
shameful.

ii. The clause "Which add ignominy to the natural effects of the
act" contemplates a situation where the means employed or
the circumstances tend to make the effects of the
crime more humiliating or to put the offended party to
shame.636

iii. This is applicable to crimes against chastity, less serious

physical injuries, light or grave coercion, and murder.

b. Concepts.

i. There was ignominy because the accused used not only the
missionary position, i.e. male superior female inferior, but
also "The same position as dogs do" i.e., entry from behind.
The accused claims there was no ignominy because "The
studies of many experts in the matter have shown that this
'position' is not novel and has repeatedly and often been
resorted to by couples in the act of copulation. This may well
be if the sexual act is performed by consenting partners but
not otherwise.There is ignominy in rape committed through
“dog style” position.637

ii. In a case, the Court held there was ignominy when the
accused forced the man to rape the victim, and laughed as

634
People v. Fuertes, et al., G.R. Nos. 95891-92, February 28, 2000.
635
People v. Fuertes, et al., supra.
636
Ibid.
637
People v. Saylan, 130 SCRA 159, 167 [1984].
 the latter was being raped by the man, and when they
ordered victim’s siblings to look at their naked sister after the
accused had raped her.638 

r. Unlawful entry (qualifying).

a. Nature.

i. There is unlawful entry when the entrance is effected by a

way not intended for that purpose.

ii. One who acts without respect to walls erected by men to

guard their property and provide for personal safety, shows a
greater perversity and audacity. Hence, the law punishes
him with more severity.

b. Concepts.

i. To be aggravating, unlawful entry must be made for the

purpose of entrance and not for the purpose of escape.
There is unlawful entry when the accused destroyed the
glass blades or jalousies of a window in gaining entry into
the house.639

ii. The unlawful entry is made for the purpose of committing

crime. It is inherent in trespass to dwelling and robbery with
force upon things.640

s. Breaking wall, roof, floor, doors or windows (qualifying).

a. Nature and concepts.

i. This circumstance is used as a means to the commission of

a crime, or as a means to effect entrance.

ii. It is inherent in the crime of robbery with force upon things.

t. Aid of minor or by means of motor vehicles (qualifying).

a. Concepts.

638
People v. Cortezano, et al., G.R. No.123140, September 23, 2003.
639
People v. Galapia, G.R. No. L-39303, August 1, 1978.
640
Gregorio, supra.
 i. The minor is 15 years.
ii. A vehicle is used to furnish a quick means to commit the
crime, flight and concealment.

u. Cruelty (qualifying).

a. Requisites:

i. That the injury caused be deliberately increased by causing

other wrong;
ii. That the wrong be unnecessary for the execution of the
purpose of the offender; and
iii. Deliberate prolonging of the physical suffering.

b. Concepts.

i. For cruelty to be appreciated against the accused, it must be

shown that the accused, for his pleasure and satisfaction,
caused the victim to suffer slowly and painfully as he inflicted
on him unnecessary physical and moral pain. The crime is
aggravated because by deliberately increasing the suffering
of the victim the offender denotes sadism and consequently
a marked degree of malice and perversity. 641 

ii. Although the accused stabbed the victim several times, the
same could not be considered as cruelty because there was
no showing that it was intended to prolong the suffering of
the victim.642 

iii. The mere fact of inflicting various successive wounds upon a

person in order to cause his death, no appreciable time
intervening between the infliction of one (1) wound and that
of another to show that he had wanted to prolong the
suffering of his victim, is not sufficient for taking this
aggravating circumstance into consideration.643

iv. It is error to appreciate the generic aggravating circumstance

of cruelty based solely on the fact that the victim was
stabbed thrice - cruelty cannot be appreciated in the

641
People v. Cortez, G.R. No. 137050, July 11, 2001.
642
Ibid.
643
People v. Magayac, 330 SCRA 767 [2000].
 absence of any showing that the accused, for their pleasure
and satisfaction, caused the victim to suffer slowly and
painfully and inflicted on him unnecessary physical and
moral pain.644

Aggravating circumstances under special penal laws.

Comprehensive Firearms and Ammunition Regulation Act ((RA 10591).

1) Use of loose firearm in the commission of the crime as an aggravating

circumstance.

a) Aggravating when the use of firearm is inherent in the commission of the

crime punishable under the RPC or other special laws subject to the
following conditions:

i) If the crime committed with the use of a loose firearm carries a

maximum penalty LOWER THAN that prescribed for illegal
possession, the penalty for ILLEGAL POSSESSION shall be imposed.

ii) If the crime committed with the use of a loose firearm is penalized with
a maximum penalty EQUAL to that imposed for illegal possession, the
penalty of PRISION MAYOR, minimum period shall be imposed IN
ADDITION to the penalty for the crime committed with the use of loose
firearm.

The Comprehensive Dangerous Drugs Act of 2002 (R.A. No. 9165).

1) Use of dangerous drug in the commission of crime is qualifying aggravating

circumstance.645

a) Importation of dangerous drugs (even for floral, decorative and

culinary purposes) and/or controlled precursors and essential chemicals.
644
People v. Sion, 277 SCRA 127.
645
Sec. 25, RA 9165.
 i) If the importation was through the use of a diplomatic passport,
diplomatic facilities or any other means involving the offender’s official
status.
2) Sale, administration, delivery, distribution and transportation of dangerous
drugs.

a) Within 100 meters from a school;

b) If minors/mentally incapacitated individuals are used as runners, couriers
and messengers of drug pushers.
c) If the victim of the offense is a minor, or should a prohibited/regulated
drug involved in any offense under this section be the proximate cause of
the death of a victim thereof.

3) Maintenance of a den, dive, or resort where any controlled precursor

and essential chemical is sold or used.

a) Where a prohibited/regulated drug is administered, delivered, or sold to a

minor who is allowed to use the same in such place; or
b) Should a prohibited drug be the proximate cause of the death of the
person using the same in such den, dive or resort.

4) Manufacture of dangerous drugs and/or controlled precursors and essential

chemicals.

a) Any phase conducted in presence or with help of minors;

b) Established/undertaken within 100m of residential, business, church or
school premises;
c) Laboratory is secured/protected by booby traps;
d) Concealed with legitimate business operation;
e) Employment of practitioner, chemical engineer, public official or foreigner.

5) Manufacture or delivery of equipment, instrument, apparatus, and other

paraphernalia for dangerous drugs and/or controlled precursor and essential
chemicals.

a) Use of a minor or a mentally incapacitated individual to deliver such

equipment, instrument, apparatus or other paraphernalia.
6) Possession of dangerous drugs, regardless of the degree of purity.

a) Party, social gathering, or in the proximate company of at least 2 persons,

regardless of quantity.

7) Possession apparatus and other paraphernalia fit for introducing dangerous

 drugs into the body.

a) Party, social gathering, or in the proximate company of at least 2 persons.

8) Cultivation or culture of plants which are dangerous drugs or are sources

thereof.

a) The land is part of the public domain.

b) Organizes, manages or acts as financier.

Chapter Eight
ALTERNATIVE CIRCUMSTANCES

Alternative Circumstances

Article 15. Their concept. - Alternative circumstances are those

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

The alternative circumstance of relationship shall be taken into

consideration when the offended party in the spouse, ascendant,
descendant, legitimate, natural, or adopted brother or sister, or relative by
affinity in the same degrees of the offender.
 The intoxication of the offender shall be taken into consideration as
a mitigating circumstances when the offender has committed a felony in a
state of intoxication, if the same is not habitual or subsequent to the plan
to commit said felony but when the intoxication is habitual or intentional, it
shall be considered as an aggravating circumstance.

1) Concepts.

a) Those which must be taken into consideration as aggravating or mitigating

circumstances according to the nature and effects of the crime, and other
conditions attending its commission.

b) Based on a strict interpretation, alternative circumstances are thus not

aggravating circumstances per se.646

c) However, in a dissenting opinion, Justice Romeo Callejo observed that

Article 14 of the Revised Penal Code is not the repository of all the
aggravating circumstance covered by Article 63 of the Revised Penal
Code. Absent any provision in Article 63 of the Revised Penal Code,
excluding the alternative aggravating circumstances under Article 15 of
the Revised Penal Code from the application thereof, such alternative
aggravating circumstances must be considered in graduating the penalty
for quasi-heinous crimes. It cannot be argued that simply because Article
14 of the Revised Penal Code does not contain any provision similar to
Article 13, paragraph 10 of the Revised Penal Code, no other aggravating
circumstances exist in the Revised Penal Code. Article 14 of the Revised
Penal Code must be considered in relation to and not independent of
Article 15 of the Revised Penal Code.647

2) Types of alternative circumstances:

a) Relationship.

i) Relationship is taken into consideration when the offended party is the:

(1) Spouse;
(2) ascendant;
(3) descendant;
(4) legitimate, natural or adopted brother or sister; or
(5) Relative by affinity in the same degree.
(6) Relationship of stepfather or stepmother and stepson or
646
People v. Orilla, G.R. Nos. 148939-40, February 13, 2004.
647
Concurring and Dissenting Opinion of Justice Romeo Callejo, Re.: People v. Orilla, Ibid.
 stepdaughter is included by analogy as similar to ascendant or
descendant.648 But relationship between uncle and niece is not
included.

ii) Outside of these enumerations and consistent with the doctrine that
criminal laws must be liberally construed in favor of the accused, no
other relationship, kinship or association between the offender and the
victim may aggravate the imposable penalty for the crime committed.
The fact, then, that the offended party is the granddaughter or
descendant of appellants’ live-in partner cannot justify the imposition of
death upon the rapist.649 

iii) When mitigating.

(1) Mitigating in crimes against property.

(2) In crimes of less serious physical injuries and if the offended party
is a relative of lower degree than the offender.

iv) When aggravating.

(1) In crimes against persons if the offended party is a relative of

higher degree, or when the offender and the offended party are
relatives of the same level.650

(2) In the crimes against chastity due to the nature of the crime. 651

(3) In homicide and murder, when the offended party is a relative of

lower degree.

v) Not mitigating nor aggravating.

(1) In the crimes of parricide, adultery or concubinage, where

relationship is an element of the crime.

vi) When exempting.

(1) In the crimes of theft, estafa and malicious mischief.

648
People v. Bersabal, 48 Phil. 439.
649
People v. Atop, G.R. Nos. 123303-05, February 10, 1998.
650
People v. Mercado, 51 Phil. 99.
651
People v. Porras, 58 Phil. 578.
 (2) Accessories who conceal or destroy the body of the crime or effects
or instruments thereof, or harbour, conceal or assist in the escape
of the principal of the crime.652

(3) Physical injuries committed by one spouse/parent who caught his

wife/daughter in the act of committing sexual intercourse with other
person.653

vii)Concepts.

(1) The "circumstances pertinent" to the relationship must be alleged

in the information and duly proven in the trial. In the present case,
the Amended Information did not allege the "circumstances
pertinent" to the relationship of appellant and Remilyn and the
prosecution did not prove these circumstances during the trial. 654

b) Intoxication.

i) Nature.

(1) Intoxication is meant that the offender’s mental faculties is affected

by drunkenness.

(2) Mere drinking of liquor prior to the commission of the crime does
not necessarily produce a state of intoxication.

ii) Rules.

(1) When mitigating - To be mitigating, it must be shown (1) that at the

time of the commission of the act, the accused has taken such
quantity of alcoholic drinks as to blur his reason and deprive him of
certain degree of control, and (2) that such intoxication is not
habitual or subsequent to the to the plan to commit the felony. 655 It
must be proved to the satisfaction of the court, and in the absence
thereof, it is presumed to be not habitual but accidental. 656

(2) When aggravating - To be aggravating, there must be excessive

652
Article 20, RPC.
653
Article 247, Ibid.
654
People v. Orilla, supra.
655
People v. Boduso, G.R. No. L-0440-51, September 30, 1974.
656
People v. Dacanay, et al., 105 Phil. 1265.
 and habitual use or specific purpose to commit the crime by getting
drunk, otherwise, it will be mitigating. 657

iii) Concepts.

(1) Ordinarily, intoxication may be considered either aggravating or

mitigating, depending upon the circumstances attending the
commission of the crime. Intoxication has the effect of decreasing
the penalty, if it is not habitual or subsequent to the plan to commit
the contemplated crime; on the other hand, when it is habitual or
intentional, it is considered an aggravating circumstance. 658

(2) A person pleading intoxication to mitigate penalty must present

proof of having taken a quantity of alcoholic beverage prior to the
commission of the crime, sufficient to produce the effect of
obfuscating reason. At the same time, that person must show proof
of not being a habitual drinker and not taking the alcoholic drink
with the intention to reinforce his resolve to commit the crime. 659

(3) Drug addiction is not an aggravating circumstance. Neither Article

14 of the same Code on aggravating circumstances nor Article 15
on alternative circumstances, however, contain a provision similar
to Article 13(10).660

c) Degree of Instruction or Education.

i) Concepts.

(1) Lack of instruction is generally mitigating in all crimes except in the

crimes of murder because to kill is forbidden by natural law,
robbery, and rape.661

(2) It is not mitigating, if the offender is exceptionally intelligent and

mentally alert that he easily realizes the significance of his act.

(3) High degree of education is aggravating if the accused availed

himself or took advantage of it in committing the crime. E.g. A
lawyer who commits falsification or doctor who kills his victim by

657
People v. Moral, 132 SCRA 474.
658
People v. Pinca, 318 SCRA 270 [1999]; People v. Tambis, 311 SCRA 430 [1999].
659
Ibid.
660
People v. Itchon, G.R. No. 134362, February 27, 2002.
661
People v. Mutya, G.R. No. L-11255-56, September 30, 1959.
 means of poison.662

(4) Lack of instruction must be proved positively and directly and

cannot be based on mere deduction or inference. 663

Chapter Nine
PERSONS CRIMINALLY LIABLE

Persons Criminally Liable

Article 16. Who are criminally liable. - The following are criminally

liable for grave and less grave felonies:

1. Principals.
2. Accomplices.
3. Accessories.

The following are criminally liable for light felonies:

1. Principals
2. Accomplices.

662
Gregorio, supra., page 171.
663
People v. Bernardo, CA 40 O.G. 1707.
1) Who are criminally liable.

a) For grave or less grave felonies, the following are liable:

i) Principals.
ii) Accomplices.
iii) Accessories.

b) For light felonies:

i) Principals.
ii) Accomplices.

c) Rules relative to light felonies.

i) Light felonies are punishable only when consummated.

ii) Except when light felonies are committed against persons or property,
they are punishable even they are frustrated or attempted.
iii) But only principals and accomplices are liable. Accessories are not
liable even if for the crimes against persons or property.

2) Active and passive subjects of the crime.

a) The active subject is the criminal (offender);

b) The passive subject is the victim (or the injured party).

3) Natural and juridical persons.

a) As a rule, only natural persons are criminally liable.

b) Reasons:

i) The RPC requires that the offender should have acted with personal
malice or negligence.
ii) A juridical person cannot commit a crime in which a wilful purpose or a
malicious intent is required. It cannot be arrested and imprisoned. 664
iii) Penalties like imprisonment and deprivation of liberty can only be
executed by natural persons.

c) When a juridical person is criminally liable.

664
Ong v. Court of Appeals, 499 Phil. 691 (2003).
 i) General rule: If the crime is committed by a corporation or other
juridical entity, the directors, officers, employees or other officers
thereof responsible for the offense shall be charged and penalized for
the crime, precisely because of the nature of the crime and the penalty
therefor. A corporation cannot be arrested and imprisoned; hence,
cannot be penalized for a crime punishable by imprisonment.

ii) Exception: A corporation may be charged and prosecuted for a crime if

the imposable penalty is fine. Even if the statute prescribes both fine
and imprisonment as penalty, a corporation may be prosecuted and, if
found guilty, may be fined.665

d) Special penal laws which specifically provide for the criminal liability of
corporate officers.

i) Illegal recruitment (RA 8042, as amended by RA 10022).

(1) The crime of illegal recruitment can be committed by the officers

having ownership, control, management or direction of their
business who are responsible for the commission of the offense
and the responsible employees/agents thereof. 666

(2) An employee of a company or corporation engaged in illegal

recruitment may be held liable as principal, together with his
employer, if it is shown that he actively and consciously participated
in illegal recruitment. Settled is the rule that the existence of the
corporate entity does not shield from prosecution the corporate
agent who knowingly and intentionally causes the corporation to
commit a crime. The corporation obviously acts, and can act, only
by and through its human agents, and it is their conduct which the
law must deter. The employee or agent of a corporation engaged in
unlawful business naturally aids and abets in the carrying on of
such business and will be prosecuted as principal if, with
knowledge of the business, its purpose and effect, he consciously
contributes his efforts to its conduct and promotion, however slight
his contribution may be.667

(3) A mere secretary whose task is limited to hold and document

employment contracts from the foreign employers and who did not
entertain applicants and she had no discretion over how the

665
Ching v. Secretary of Justice, et al., G.R. No. 164317, February 6, 2006.
666
Sec. 6 ((Migrant Workers and Overseas Filipinos Act of 1995).
667
People v. Chowdury, G.R. Nos. 129577-80. February 15, 2000.
 business was managed is not criminally liable under RA 8042. 668

ii) Fencing (PD 1612) - If the fence is a partnership, firm, corporation or

association, the president or the manager or any officer thereof who
knows or should have known the commission of the offense shall be
liable.669

iii) Corporation Code of the Philippines (B.P. Blg. 68) – Corporations may
be fined for certain violations of the Code.

iv) Insurance Code (PD 612, as amended by RA 10607).

(1) Any person, company or corporation subject to the supervision and

control of the Commissioner who violates any provision of this
Code, for which no penalty is provided, shall be deemed guilty of a
penal offense.

(2) If the offense is committed by a company or corporation, the

officers, directors, or other persons responsible for its operation,
management, or administration, unless it can be proved that they
have taken no part in the commission of the offense. 670

Principals

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.

1) The following are considered principals:

668
People v. Corpuz, G.R. No. 148198, October 1, 2003.
669
Sec. 4.
670
Sec. 442.
 a) Those who take a direct part in the execution of the act;
b) Those who directly force or induce others to commit it;
c) Those who cooperate in the commission of the offense by another act
without which it would not have been accomplished.

2) Principals by direct participation.

a) Nature.

i) The principal by direct participation personally takes part in the

execution of the act constituting a crime.

ii) When two or more persons are principals by direct participation, the
following are the requisites:

(1) They participated in the criminal resolution;

(2) They carried out their plan and personally took part in its execution
by acts which directly tended to the same end.

b) Concepts671

i) Whenever there are two or more involved in a crime, it becomes

necessary to find out those who actually executed the act so that all
may be held equally 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. 672

ii) In order to hold an accused guilty as co-principal by reason of

conspiracy, it must be established that he performed an overt act in
furtherance of the conspiracy, either by actively participating in the
actual commission of the crime, or by lending moral assistance to his
co-conspirators by being present at the scene of the crime, or by
exerting moral ascendancy over the rest of the conspirators as to move
them to executing the conspiracy.673

iii) Where there are several accused and conspiracy has been
established, the prosecution need not pinpoint who among the
accused inflicted the fatal wound.674

671
More discussion on conspiracy under Article 8 of this book.
672
People v. Ong Chiat Lay, 60 Phil. 788.
673
People v. Vasquez, et al., G.R. No. 123939, May 28, 2004.
674
People vs. Bernardo, 222 SCRA 502.
 iv) Where conspiracy has been established, evidence as to who among
the accused rendered the fatal blow is not necessary. All the
conspirators are liable as co-principals regardless of the intent and
character of their participation because the act of one is the act of all. 675

v) Conspiracy need not be proven by direct evidence. It may be inferred

from the conduct of the accused before, during and after the
commission of the crime, showing that they had acted with a common
purpose and design. Conspiracy may be implied if it is proved that two
or more persons aimed by their acts towards the accomplishment of
the same unlawful object, each doing a part so that their combined
acts, though apparently independent of each other were, in fact,
connected and cooperative, indicting a closeness of personal
association and a concurrence of sentiment. Conspiracy once found,
continues until the object of it has been accomplished and unless
abandoned or broken up. To hold an accused guilty as a co-principal
by reason of conspiracy, he must be shown to have performed an
overt act in pursuance or furtherance of the complicity. There must be
intentional participation in the transaction with a view to the furtherance
of the common design and purpose.676

vi) Each conspirator is responsible for everything done by his

confederates which follows incidentally in the execution of a common
design as one of its probable and natural consequences even though it
was not intended as part of the original design. Responsibility of a
conspirator is not confined to the accomplishment of a particular
purpose of conspiracy but extends to collateral acts and offenses
incident to and growing out of the purpose intended. Conspirators are
held to have intended the consequences of their acts and by purposely
engaging in conspiracy which necessarily and directly produces a
prohibited result, they are, in contemplation of law, chargeable with
intending that result. Conspirators are necessarily liable for the acts of
another conspirator unless such act differs radically and substantively
from that which they intended to commit. 677

3) Principals by inducement.

a) Nature. Principals by inducement are those who directly force or induce

another to commit a crime.

675
People vs. Magalang, 217 SCRA 571.
676
People v. Bisda, G.R. No. 140895, July 17, 2003.
677
Ibid.
 b) Ways of inducement:

i) By directly forcing another to commit a crime:

(1) By using irresistible force; and

(2) By causing uncontrollable fear.
(3) In these cases, there is no conspiracy.
(4) The person using force or causing fear is the one liable.
(5) The actual perpetrator is criminally exempt under Article 12.

ii) By directly inducing another to commit a crime:

(1) By giving price, or offering reward or promise; and

(2) By using words of command.

c) By directly inducing another to commit a crime.

i) Requisites:

(1) Inducement be made directly with the intention of procuring the

commission of the crime; and

(2) That such inducement be the determining cause of the said

commission by one induced.678

ii) Concepts.

(1) In this kind of principal, there are two (2) actors involved: the one
inducing is called principal by inducement and the one executing or
committing the crime is principal by direct participation.

(2) To constitute inducement, there must exist on the part of the

induced the most positive resolution and the most persistent effort
to secure the commission of the crime, together with the
presentation to the person induced of the very strongest kind of
temptation to commit the crime.679

(3) Inducement comprises reward, promise, command and pacto. With

678
U.S. v. Indanan, 24 Phil. 203 (1913).
679
People v. Yanson-Dumancas, et al., G.R. Nos. 133527-58, December 13, 1999.
 respect to command, it must be the moving cause of the offense. 680
Inducement may be by acts of command, advice or through
influence or agreement for consideration.681

(4) The giving of price or reward is an aggravating circumstance under

Article 14 of the Revised Penal Code. It affects not only the person
who gave the price or reward but also the person who received it.
The offender who induced another to commit a crime for a price,
promise or reward is a principal by inducement. 682 There is a
collective criminal responsibility. The aggravating circumstance can
only be appreciated against the principal by direct participation and
not against the principal by inducement.683

(5) With respect to words of command, both the inducer and the
person who committed the crime are collectively liable. 684 The
requisites are:

(a) That the one uttering the words of command must have the
intention of procuring the commission of the crime;
(b) That the one who made the command must have an
ascendancy or influence over the person who acted;
(c) That the words used must be so direct, so efficacious, so
powerful as to amount to physical or moral coercion;
(d) The words of command must be uttered prior to the commission
of the crime;
(e) The material executor of the crime as no personal reason to
commit the crime.685

(6) Before such act can be considered direct inducement, it is

necessary that such advice or such words have a great dominance
and great influence over the person who acts; it is necessary that
they be as direct, as efficacious, and as powerful as physical or
moral coercion or as violence itself.  The phrases must be
considered the principal and moving cause of the effect produced,
and the inducement must precede the act induced and must be so
influential in producing the criminal act that without it the act would
680
Gregorio, supra, page 181 citing People v. Gensola, et al., G.R. No. L-24491, September 30,
1969.
681
People v. Batin, G.R. No. 177223, November 28, 1997.
682
Gregorio, supra, page 137 citing People v. Alincastre, 40 SCRA 391, and People v. Otero, et
al., 51 Phil. 201.
683
Paňa v. Judge Buyser, et al., G.R. No. 130144, May 24, 2001.
684
U.S. v. Gamao, 23 Phil. 81.
685
Reyes, supra.
 not have been performed.686

(7) Where the inducement offered by the accused is of such a nature

and made in such a way that it becomes the determining cause of
the crime, and such inducement was offered with the intention of
producing that result, then the accused is guilty by inducement of
the crime committed by the person so induced. The inducement to
the crime must be intentional on the part of the inducer and must be
made directly for the purpose in view. It is necessary to remember
only that the inducement must be made directly with the intention of
procuring the commission of the crime and that such inducement
must be the determining cause of the crime. 687

(8) The words of advice or the influence must have actually moved the
hands of the principal by direct participation. 688  Words of command
of a father “Sige, banatan mo na” may induce his son to commit a
crime.689 The moral influence of the words of the father may
determine the course of conduct of a son in cases in which the
same words coming from a stranger would make no impression. 690
However, when the father had uttered “patayin, patayin iran amen”
(kill them all) after his son had already hacked the victim, the
utterances could not have been the determining cause of the
commission of the crimes. The act clearly demonstrated his
concurrence in his sons’ aggressive design and lent support to their
nefarious intent and afforded moral and material support to their
attack against the victims. Thus, he is a mere accomplice. 691 

(9) Not all inducement falls within the purview of the law. A chance
word spoken without reflection, a wrong appreciation of a situation,
an ironical phrase, a thoughtless act, may give birth to a thought of,
or even a resolution to, crime in the mind of one for some
independent reason predisposed thereto without the one who
spoke the word or performed the act having any expectation that
his suggestion would be followed or any real intention that it
produce a result.692

(10)The remark of the accused to "take care of the two" does not

686
U.S. v. Indanan, supra.
687
Ibid.
688
People v. Batin, supra., at note 479.
689
Ibid.
690
People v. Tamayo, 44 Phil. 38, 57 (1922).
691
People v. Rafael, G.R. No. 123176, October 13, 2000.
692
Ibid.
 constitute the command required by law to justify a finding that she
is guilty as a principal by inducement.693

(11)The utterance "Kill him and we will bury him" amounts but to

imprudent utterances said in the excitement of the hour or in the
heat of anger, and not, rather, in the nature of a command that had
to be obeyed.694

(12)If the act is not indispensable to the consummation of the crime,

or when there is doubt as to whether a guilty participant in the
killing has committed the role of a principal or that of an
accomplice, the court should favor the milder form of
responsibility.695

4) Principals by indispensable cooperation.

a) Nature. Those who cooperate in the commission of the offense by another

act without which it would not have been accomplished.

b) Requisites:

i) Participation of the subject accused in the criminal resolution; and

ii) Performance by him of another act indispensable to the
accomplishment of the crime.696

c) Concepts.

i) To cooperate means to desire or wish in common a thing. The

common purpose does not necessarily mean previous understanding
for it can be inferred from the circumstances of each case.

ii) The participation of the accused was not indispensable to the

commission of the crime since the assailants could have located the
victims. There were others who could point to the whereabouts of the
victim. If the cooperation is not indispensable, the offender is only
liable as accomplice.697

iii) Examples.
693
People v. Yanson-Dimancas, supra.
694
People v. Agapinay, et al., supra.
695
People v. De Vera, G.R. No. 128966, August 18, 1999.
696
People v. Fronda, G.R. Nos. 102361-62, May 14, 1993.
697
Ibid.
 (1) Providing the weapon or tools, or the key to open the building.
(2) Providing the mode of transportation to enable the accused to
reach the place of the scene of the crime.
(3) Dragging he victim to the place of execution.
(4) Leaving open the doors, giving the key to open the building.
(5) Holding on to a victim to preventing him victim from resisting or
drawing a weapon.

iv) There can be cooperation by negligence. One who, by acts of

negligence, cooperates in the commission of estafa through
falsification or malversation through falsification without which
negligent acts the commission of the crime would not have been
accomplished.698

Accomplices

Article 18. Accomplices. - Accomplices are those persons who, not

being included in Article 17, cooperate in the execution of the offense by
previous or simultaneous acts.

1) Nature. Accomplices are those, not being principals, who cooperate in the
execution of the offense by previous or simultaneous acts.

2) Requisites:

a) That there be a community of design, i.e., knowing that criminal design of

the principal by direct participation, he concurs with the latter in his
698
Samson v. Court of Appeals, 103 Phil. 277.
 purpose;

b) That he cooperates in the execution of the offense by previous or

simultaneous acts; and

c) That there must be a relation between the acts done by the principal and
those attributed to the person charged as accomplice. 699

3) Concepts.

a) First, an accomplice is not part of the conspiracy.

b) Accomplices are known also as “accessories before the fact.

c) The participation of an accomplice is not indispensable. The previous acts

of cooperation by the accomplice should not be indispensable to the
commission of the crime; otherwise, she would be liable as a principal by
indispensable cooperation. The act of the accused in forcing the victim to
drink beer before the latter was raped by the co-accused was not
indispensable to the crime of rape. Hence, she should be held liable as an
accomplice.700

d) Participation is of minor character. To be convicted as such, it is

necessary that he be aware to the criminal intent of the principal and
thereby cooperates knowingly or intentionally by supplying material or
moral aid for the efficacious execution of the crime. A person is
considered as an accomplice if his role in the perpetration of the crime is
of a minor character.

e) The acts performed by appellant are not, by themselves, indispensable to

the killing of the victims since the whereabouts of the latter could still be
ascertained not only by the accused but by the others. 701

f) The accused is an accomplice when he merely looked for a jeep to be

used as getaway vehicle of the robbers and, to that end, he intentionally
sought out and convinced another to act as driver. 702

g) The liability of one whose participation was limited to looking for a banca

699
People v. Elijorde, G.R. No. 126531, April 21, 1999.
700
People v. Tampus, G.R. No. 181084, June 16, 2009.
701
People v. Fronda, supra.
702
People v. Corbes, et al., G.R. No. 113470, March 26, 1997.
 and providing one to a gang of bank robbers, 703 or one who went with the
actual perpetrators of a crime without conspiring with them, is only that of
an accomplice,704 or where the quantum of proof required to establish
conspiracy is lacking, the doubt created as to whether accused acted as
principal or accomplice will always be resolved in favor of the milder form
of liability, that of a mere accomplice.705

h) Moral encouragement. The utterance of the father “Patayin, patayin iran

amen! “ after his sons had already hacked the victim clearly demonstrated
his concurrence in their aggressive design and lent support to their
nefarious intent  merely afforded moral and material support to their attack
against the victim.  Thus, he is only an accomplice.706

i) Complicity. In the case of People v. Tamayo, et al.,707 the Court

enunciated this doctrine which means that criminal complicity in the
character of an accomplice necessarily reposes on knowledge of the
criminal design on the part of the principal and participation therein, and
that a man cannot be an accomplice in a crime without participating in the
criminal design of the principal. In this case, the trial court convicted five
persons including Hilario, Ramon, and Jose (all surnamed Tamayo) and
two others for the death of Catalino. When a quarrel erupted between
Catalino and Hilario, the latter choked the former. Seeing this, Catalino’s
brother, Francisco, ran to aid his brother and succeeded in breaking
Hilario and his brother. Ramon approached Catalino and also held his
neck. While in that situation, Jose rushed and, while armed with bamboo
stick, struck Catalino on the head. Federico and Teodoro were standing
nearby and shouting “sige, sige.” The High Court modified the ruling
sentencing Jose guilty of homicide and acquitting Hilario, Teodoro, and
Federico. Was Ramon a principal or accomplice? To consider as
accomplice, the test to be applied is: Whether Ramon, in holding and
choking the deceased when the latter was struck by Jose, was acting in
furtherance of the criminal design entertained against the deceased by
Jose. If yes, Ramon is collectively liable as principal with Jose. If not, he is
a mere accomplice. On the other hand, the utterance of “sige, sige” does
not make the utterer an accomplice. The mere circumstance that a
person, present at a quarrel, says aloud, so as to be heard by one of the
contending parties, "there you have them," "now they are yours," "strike
them," "this is the time," is not sufficient to fix complicity upon such person
as an accomplice in the crime of homicide, where other facts show that
703
People v.  Doble, G.R. No. L- 30028, 31 May 1982.
704
People v.  Balili, G.R. No. L-14044, 5 August 1966.
705
People v.  Bongo, G.R. No. L-26909, 22 February 1974.
706
People v. Rafael, surpa.
707
G.R. No. L-18289, November 17, 1922.
 the spokesman did not speak said words with the intention that the person
slain should be wounded. In this case, when Federico is supposed to have
used the expression "go ahead!" (¡sigue!), a mere assault was being
made, and it does not appear that he intended anything more than that the
deceased should receive a beating. It results that Federico Tibunsay must
also be absolved from complicity in the homicide.

j) It was held that as an essential condition to the existence of complicity that

there be not only a relation between the acts done by the principal and
these attributed to the person charged as an accomplice, but that the
latter, with knowledge of the criminal intent, cooperated with the intention
of supplying material or moral aid in the execution of the crime in an
efficacious way. So that there are two elements required, in accordance
with the definition of the term accomplice given in the Penal Code, in order
that a person may be considered an accomplice to a criminal act, namely,
that he take part in the execution of the crime by previous and
simultaneous acts and that he intend by said acts to commit or take part in
the execution of the crime.708

k) Acting as a look out. Is look out an accomplice or conspirator? The

following doctrinal pronouncements will help in determining whether the
offender, who acted as look out, is an accomplice or conspirator:

i) Accused presence was not innocuous. Knowing that his co-accused

intended to kill the victim and that the three co-accused were carrying
weapons, he had acted as a lookout to watch for passersby. He was
not an innocent spectator; he was at the locus criminis in order to aid
and abet the commission of the crime. These facts, however, did not
make him a conspirator; at most, he was only an accomplice. Lack of
complete evidence of conspiracy, that creates the doubt whether they
had acted as principals or accomplices in the perpetration of the
offense, impels this Court to resolve in their favor the question, by
holding that they were guilty of the milder form of responsibility, i.e.,
guilty as mere accomplices. Appellant De Vera knew that Kenneth
Florendo had intended to kill Capulong at the time, and he cooperated
with the latter. But he himself did not participate in the decision to kill
Capulong; that decision was made by Florendo and the others. He
joined them that afternoon after the decision to kill had already been
agreed upon; he was there because nagkahiyaan na.709

ii) The accused participated in the commission of the crime even before

708
 People vs. Tamayo, 44 Phil. 38.
709
People v. De Vera, G.R. No. 128966, August 18, 1999.
 complainant was raped. He was present when co-accused abducted
complainant and when he brought her to the barn. He positioned
himself outside the barn together with the other accused as a lookout.
When he heard the shouts of people looking for complainant, he
entered the barn and took complainant away from the rapist. Having
known of the criminal design and thereafter acting as a lookout,
petitioner is liable as an accomplice. 710

iii) In People v. Corbes,711 the Court noted that Manuel Vergel knew of the
criminal design to commit a robbery, and that he cooperated with the
robbers by driving the vehicle to and from the crime scene. In
convicting him as an accomplice and not as a conspirator, the Court
observed that he was merely approached by one of the robbers who
was tasked to look for a getaway vehicle. He was not with the robbers
when they resolved to commit a robbery. When his services were
requested, the decision to commit the crime had already been made.

iv) In People v. Tatlonghari,712  the Court was asked to resolve the

responsibility of some appellants who knowingly aid[ed] the actual
killers by casting stones at the victim, and distracting his attention. The
Court ruled that they were accomplices and not co-conspirators, [i]n
the absence of clear proof that the killing was in fact envisaged by
them.

v) In People v. Suarez et al.,713 Wilfredo Lara merely introduced the gang

of Reyes to Suarez who intended to perpetrate the crime with the help
of the said group. In ruling that he was merely an accomplice, the
Court noted that there was no evidence showing that he took part in
the planning or execution of the crime, or any proof indicating that he
profited from the fruits of the crime, or of acts indicative of confederacy
on his part.

vi) In People v. Balili,714 the Court convicted appellant as an accomplice,

holding that in going with them, knowing their criminal intention, and in
staying outside of the house with them while the others went inside the
store to rob and kill, [he] effectively supplied the criminals with material
and moral aid, making him guilty as an accomplice. The Court noted
that there was no evidence that he had conspired with the malefactors,

710
Garces v. People, G.R. No. 173858, June 17, 2007.
711
270 SCRA 465.
712
27 SCRA 726.
713
267 SCRA 119.
714
17 SCRA 892
 nor that he actually participated in the commission of the crime.

vii) In People v. Doble,715 the Court held that Cresencio Doble did not
become a conspirator when he looked for a banca that was eventually
used by the robbers. Ruled the Court: Neither would it appear that Joe
Intsik wanted to draft Crescencio into his band of malefactors that
would commit the robbery more than just asking his help to look for a
banca. Joe Intsik had enough men, all with arms and weapons to
perpetrate the crime, the commission of which needed planning and
men to execute the plan with full mutual confidence of each other,
which [was] not shown with respect to appellants by the way they were
asked to look and provide for a banca just a few hours before the
actual robbery.

viii) In the following cases, a look out was considered to be a conspirator:

1) In People v. Castro,716 the Court convicted Rufino Cinco, together

with two others, as a principal, although he had acted merely as a
lookout. The Court held that their concerted action in going armed
and together to their victim’s house, and there, while one stayed as
a lookout, the other two entered and shot the mayor and his wife,
leaving again together afterwards, admits no other rational
explanation but conspiracy. It may be noted further that Cinco
executed a Sworn Statement that the three of them, together with
some others, had planned to kill the victim on the promise of a
P5,000 reward.

2) In People v. Tawat et al.,717 the lookout, Nestor Rojo, was convicted

as a principal for conspiring with two others. The Court ruled that
the conspiracy was shown by their conduct before, during and after
the commission of the crime. The Court also noted that, upon their
arrest, they disclosed that they had intended to rob the victims store
and that they did so in accordance with their plan. In that case, it
was clear that all three of them, including the lookout, were the
authors of the crime.

3) In People v. Loreno,718 the Supreme Court convicted all the

accused as principals because they had acted in band. In acting as
a lookout, Jimmy Marantal was armed at the time like the other
715
114 SCRA 131.
716
11 SCRA 699.
717
126 SCRA 362.
718
130 SCRA 311.
 conspirators, and he gave his companions effective means and
encouragement to commit the crime of robbery and rape.

l) Distinctions between conspirators and accomplices. 719

Conspirators Accomplices
Accomplices come to know
Conspirators know the
about it after the principals
criminal intention because
Knowledge of have reached the decision,
they themselves have
criminal intent and only then do they
decided upon such course
agree to cooperate in its
of action.
execution. 
Accomplices do not decide
whether the crime should
Who decides the Conspirators decide that a
be committed; they merely
commission of crime should be
assent to the plan and
the crime. committed.
cooperate in its
accomplishment.
Accomplices are merely
their instruments who
Conspirators are the
Participation perform acts not essential
authors of a crime.
to the perpetration of the
offense.

m) To be convicted as such, it is necessary that he be aware of the criminal

intent of the principal and thereby cooperates knowingly or intentionally by
supplying material or moral aid for the efficacious execution of the
crime.720 t is well settled that if there is ample of criminal participation but a
doubt exist as to the nature of liability, courts should resolve to favor the
milder form of responsibility, that of an accomplice. 721

n) Quasi-collective Criminal Responsibility. Some of the offenders in the

crime are principals and others are accomplices. But the criminal liability
are not the same. The criminal liability of principal is higher than that of
accomplice.

o) May the liability of an accomplice be determined in the absence of trial of

the supposed principals? In Vino v. People of the Philippines and Court of

719
People v. De Vera, supra.
720
People v. Fronda, G.R. No. 102361-62, May 14, 1993.
721
People v. Doctolero, 193 SCRA 632.
 Appeals,722  it was held 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.

Accomplices under special penal laws (SPLs).

Human Security Act of 2007 (RA 9372).

1) Any person who, not being
Penal Code or a conspirator
the execution of either the
terrorism by previous or
accomplice.
a principal under Article 17 of the Revised
as defined in Section 4 hereof, cooperates in
crime of terrorism or conspiracy to commit
simultaneous acts shall be liable as an

Anti-Trafficking in Person Act (RA 9208 as amended by RA 10364).

1) Whoever knowingly aids, abets, and cooperates in the execution of the

722
178 SCRA 626.
 offense by previous or simultaneous acts defined in this Act shall be
punished in accordance with the provisions of Section 10(c) of this Act.

The Terrorism Financing Prevention and Suppression Act of 2012 (RA

10168).

1) Any person who, not being a principal under Article 17 of the Revised
Penal Code or a conspirator as defined in Section 5 hereof, cooperates in
the execution of either the crime of financing of terrorism or conspiracy to
commit the crime of financing of terrorism by previous or simultaneous
acts is liable as an accomplice.

Code of Conduct and Ethical Standards for Public Officials and Employees.
(RA 6713).

1) Private individuals who participate in conspiracy as co-principals,

accomplices or accessories, with public officials or employees, in violation
of this Act, shall be subject to the same penal liabilities as the public
officials or employees and shall be tried jointly with them.

Migrant Workers and Overseas Filipinos Act of 1995 (RA 8042, as amended
by RA 10022

1) Illegal recruitment shall mean any act of canvassing, enlisting, contracting,

transporting, utilizing, hiring, or procuring workers and includes referring,
contract services, promising or advertising for employment abroad,
whether for profit or not, when undertaken by non-licensee or non-holder
of authority contemplated under Article 13(f) of Presidential Decree No.
442, as amended, otherwise known as the Labor Code of the Philippines

2) The persons criminally liable for the above offenses are the principals,
accomplices and accessories. 
Accessories

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 instruments thereof, in order to prevent its discovery.

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

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

1) Nature. An accessory does not participate in the criminal design, nor

cooperate in the commission of the felony, but, with knowledge of the
commission of the crime, he subsequently takes part in three ways:

a) By profiting or assisting the offender to profit from the effects of the crime;
b) By concealing or destroying the body of the crime, the effects or
instruments of the crime in order to prevent discovery; and
c) By harbouring, concealing, or assisting in the escape or concealment of
the principal of the crime, provided he acts with abuse of his public
functions, OR the principal is guilty of treason, parricide, murder, or
attempt to take the life of the Chief Executive, or is known to be habitually
 delinquent.723

2) Important principles to consider:

a) “Having knowledge” - An accessory must have knowledge of the

commission of the crime, and having that knowledge, he took part
subsequent to its commission. An accessory should not be in conspiracy
with the principal. He is not part of the conspiracy since his participation
comes only after the commission of the crime. Mere knowledge of the
crime is required. Knowledge of the commission of the crime may be
established by circumstantial evidence. 724

b) “Commission of the crime” – the crime must be proved beyond reasonable

doubt.

c) “Without having participated therein either as principals or accomplices” –

accessory should not participate in the commission of the crime.

d) “Takes part subsequent to its commission” – the accessory takes part

after the crime has been committed.

3) Specific acts of accessory:

a) By profiting or assisting the offender to profit from the effects of crime.

i) Two acts are punished:

i. By profiting themselves by the effects of the crime; or

ii. By assisting the offender to profit by the effects of the crime.

ii) To be considered as accessory, he must receive from the principal. If

he takes it without the consent of the principal, he is not an accessory
but a principal in the crime of theft or robbery, as the case may be.

iii) The accessory should materially benefit from the act. Riding in a stolen
vehicle is not considered “profiting” since it does not improve his
economic condition. Profiting is not synonymous with intent to gain as
element of theft.725

iv) The accessory should not take the property without the consent of the
principal. He must receive the property from the principal. He should
723
People v. Verzola, et al., G.R. No. L-35022, December 21, 1977.
724
Mendoza v. People, G.R. No. L-46484, January 29, 1988.
725
Gregorio, supra. citing People v. Morales, (CA) 71 O.G. 529 (1974).
 not take it without the consent of the principal. If he took it without the
consent of the principal, he is not accessory but principal in the crime
of theft.726

v) Fencing. In accessories for the crimes of robbery and theft, there is a

special law (PD 1612) and the penalty is heavier. Fencing is the act of
any person who, with intent to gain for himself or for another, shall buy,
receive, possess, keep, acquire, conceal, sell or dispose of, or shall
buy and sell, or in any manner deal in any article, item, object or
anything of value which he knows, or should be known to him, to have
been derived from the proceeds of the crime of robbery or theft.

vi) The accessory in the crimes of robbery and theft could be prosecuted
as such under the Revised Penal Code or under P.D. No. 1612.
However, in the latter case, the accused ceases to be a mere
accessory but becomes a principal in the crime of fencing. Otherwise
stated, the crimes of robbery and theft, on the one hand, and fencing,
on the other, are separate and distinct offenses. 727

vii) The State may thus choose to prosecute him either under the Revised
Penal Code or P. D. No. 1612, although the preference for the latter
would seem inevitable considering that fencing is malum prohibitum
and the law prescribes a higher penalty based on the value of the
property 728

viii) Mere possession of any goods, article, item, object, or anything of

value which has been the subject of robbery or thievery is prima facie
evidence of fencing.729

ix) The law on fencing does not require the accused to have participated
in the criminal design to commit, or to have been in any wise involved
in the commission of, the crime of robbery or theft. 730

x) In PD 532, there is aiding or abetting of pirates or brigands when a

person who knowingly acquires or receives property taken by such
pirates or brigands or in any manner derives any benefit therefrom.
The offender however is not accessory but as an accomplice.

726
Reyes, supra.
727
People v. de Guzman, 227 SCRA 64 (1993).
728
Tan v. People, G.R. No. 134298, August 26, 1999.
729
Ibid.
730
People vs. de Guzman, supra.
 b) By concealing or destroying the body of crime or the effects or instrument
thereof to prevent its discovery.

i) To conceal or destroy the body of the crime includes all manner of

interfering with, or altering the original conditions of the crime scene, or
of anything therein which may be considered as evidence, prior to a
completion of the evidence gathering by the law enforcers. 

i. Examples:

(a) Changing the position of the body of the victim;

(b) Placing a weapon or removing one or replacing a weapon;
(c) Throwing pieces of evidence as cigarettes butts;
(d) Washing off the blood stains or cleaning the crime scene;
(e) Placing a suicide note;
(f) Making unnecessary foot prints.

ii) The subject may be the body of the crime, the effects, or instrument
thereof.

i. Body of the crime refers to the corpus delicti. Corpus delicti refers
to the fact of the commission of the crime charged or to the body or
substance of the crime.731 It does not refer to the ransom money in
the crime of kidnapping for ransom or to the body of the person
murdered.732 To prove the corpus delicti, it is sufficient for the
prosecution to be able show that (1) a certain fact has been proven
-- say, a person has died or a building has been burned; and (2) a
particular person is criminally responsible for the act. 733

ii. Examples of effects or instruments of crime.

(a) Effects. A person who received personal property knowing that

it had been stolen for the purpose of concealing the same.

(b) Instruments. A person who received a knife knowing it was used

in the crime of homicide and concealed it.

iii) To be punishable as accessory, the act must be done to prevent the

discovery of the crime. The body was left at the foot of the stairs at a
place where it was easily visible to the public. Under such
circumstances there could not have been any attempt on the part of
731
Rimorin v. People, G.R. No. 146481, April 30, 2003.
732
Ibid.
733
People v. Boco, 38 Phil. 341.
 the accused to conceal or destroy the body of the crime. 734

iv) There is no accessory when the offender took away the truck used in
illegal possession of lumber (under PD 705). In order to be considered
as accessory, the act of concealing or destroying the body of the
crime, the effects or instruments thereof must be for the purpose of
preventing its discovery. When the crime has already been discovered
and the truck was taken, the offender can no longer be charged as
accessory but he is liable for obstruction of justice under PD 1829. 735

c) By harboring, concealing or assisting in the escape of the principal of the

crime.

i) Two classes of accessories:

i. Public officers who harbor, conceal, or assist in the escape of the

principal of the any crime (not a light felony) who abuse their public
functions; or

ii. Private persons who harbor, conceal, or assist in the escape of the
author of the specific crime (treason, parricide, murder, or attempt
to take the life of the Chief Executive, or known to be habitually
delinquent.)

ii) First class of accessory. The accessory here is a public officer who
abuses his public functions.

i. Requisites:

(a) a public officer;

(b) he harbours, conceals, or assists in the escape of principal;
(c) he acts with abuse of public functions;
(d) the crime committed by the principal is any crime which is not
light felony.

iii) Second class of accessory. The accessory here is a private person.

i. Requisites:

(a) the accessory is a private person;

(b) he harbours, conceals, or assists in the escape of the author of

734
People v. Versola, et al., supra at note 525.
735
Padiernos v. People, G.R. No. 181111, August 17, 2015.
 the crime; and
(c) the crime committed is either treason, murder, parricide, an
attempt to take the life of the Chief Executive, or the principal is
known to be habitually guilty of some other crime.

iv) The Revised Penal Code does not penalize a person who harbors,
conceals or assists in the escape of an author of a crime other than
those specifically enumerated therein – treason, parricide, murder, or
an attempt on the life of the President.  The Code does not penalize
private persons who harbor, conceal or assist in the escape of the
author of crimes other than those mentioned thereunder. However, he
is still criminally liable under PD 1829 (Obstruction of Justice), the act
of harboring or concealing, or facilitating the escape of any person he
knows or has reasonable ground to believe or suspect, has committed
any offense under existing penal laws in order to prevent his arrest,
prosecution and conviction. 

v) Distinctions between accessory under the RPC and offender under PD

1829.

Revised Penal Code Obstruction of

Accessory Justice
The offender is not
The offender is merely
an accessory. He is
accessory who is either:
a principal in the
Offender (a) Public officer (who
offense for violation
abuses public functions) or
of PD 1829.
a private individual
If the accessory is public
officer, any crime committed
by the principal.
If by person person, only the Any crime under the
crimes of treason, parricide, RPC or offense
Crimes committed
murder, murder, attempt to under special penal
take the life of the Chief laws.
Executive, or is known to be
habitually guilty of some
other crime.
Conviction It is required that the It is not necessary
principal be declared guilty that the principal be
of any of the specified convicted first. The
crimes. person can be
 charged without the
principal having
been convicted.

Nature Malum in se Malum prohibitum

vi) Evasion of arrest is not a violation of PD 1829.  The failure on the part
of the arresting officer/s to arrest the person of the accused makes the
latter a fugitive from justice and is not equivalent to a commission of
another offense of obstruction of justice.736

d) Concepts applicable to three situations.

i) Apprehension and conviction of the principal is not necessary for the

accessory to be held criminally liable. Thus, even if the principal is
unknown or at large, the accessory may be held criminally liable
provided the requisites prescribed by law for the existence of a crime
are present and someone committed it. The same rule applies if the
trial of the principal has not yet terminated. The accessory may be held
for trial since the corresponding responsibilities for principal,
accomplice, or accessory are distinct from each other.

ii) When the principal is acquitted, may the accessory be convicted?

i. In the U.S. v. Villaluz et al.,737a case involving the crime of theft, the
Court ruled that notwithstanding the acquittal of the principal due to
the exempting circumstance of minority or insanity (Article 12,
Revised Penal Code), the accessory may nevertheless be
convicted if the crime was in fact established.

ii. In U.S. v. Mendoza,738 where this Court held in an arson case that

the acquittal of the principal must likewise result in the acquittal of
the accessory where it was shown that no crime was committed
inasmuch as the fire was the result of an accident. Hence, there
was no basis for the conviction of the accessory.

iii. Where the crime and the responsibility of the accused as accessory
are established, the accessory can be convicted notwithstanding

736
Angeles v. Gaite, et al., G.R. No. 165276, November 25, 2009.
737
32 Phil. 377 (1915).
738
23 Phil. 194 (1912).
 the acquittal of the principal.739

iii) Does death of the principal who is charged with murder before trial
extinguish the liability of the accessory? Yes, because had he been
alive, he would have been found guilty of homicide.

Accessories Exempt from Criminal Liability

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 relatives by affinity
within the same degrees, with the single exception of accessories falling
within the provisions of paragraph 1 of the next preceding article.

1) General rule. As a rule, an accessory is exempt from criminal prosecution

when the principal is his:

a) Spouse;
b) Ascendant;
c) Descendant;
d) Legitimate, natural, and adopted brother and sister;
e) Relative by affinity within the same degree.

2) Exception. Even if the principal is his spouse, ascendant, descendant, brother

or sister, or relative by affinity within the same degree, accessory is criminally
liable if he has performed any acts under Paragraph 1, Article 19:

a) By profiting themselves; or
b) By assisting the offender to profit by the effects of the crime.

3) Basis. 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-quoted article. 740 

4) Illustration. Since Ruby’s act of driving the car where the corpse of Michelle
was hidden, her resistance to stop the car when chased by the police and to
immediately open the luggage compartment as requested by the police, her
act of lying to the police by claiming that the box in the compartment
contained only dirty clothes, and her refusal to open said box sufficiently
739
Vino v. People, G.R. No. 84163 October 19, 1989.
740
People v. Mariano, et al., G.R. No. 134847, December 6, 2000 (per curiam).
 indicate knowledge of the crime and assistance to Ruth in concealing the
corpus delicti to prevent its discovery. Ruby is an accessory to the murder
committed by her sister, Ruth. However, under Article 20 of the Code, she is
exempt from criminal liability since they are sisters. 741

Accessories under special penal laws (SPLs).

Human Security Act of 2007 (RA 9372).

1) Any person who, having knowledge of the commission of the crime of

terrorism or conspiracy to commit terrorism, and without having participated
therein, either as principal or accomplice under Articles 17 and 18 of the
Revised Penal Code, takes part subsequent to its commission in any of the
following manner:

a) by profiting himself or assisting the offender to profit by the effects

of the crime;
b) by concealing or destroying the body of the crime, or the effects, or
instruments thereof, in order to prevent its discovery;
c) by harboring, concealing, or assisting in the escape of the principal
or conspirator of the crime.

2) The penalties prescribed for accessories shall not be imposed upon those
who are such with respect to their spouses, ascendants, descendants,
legitimate, natural, and adopted brothers and sisters, or relatives by affinity
within the same degrees, with the single exception of accessories falling
within the provisions of subparagraph (a).

Anti-Torture Act of 2009 (RA 9745).

1) Any public officer or employee shall be liable as an accessory if he/she has

knowledge that torture or other cruel, inhuman and degrading treatment or
punishment is being committed and without having participated therein,
either as principal or accomplice, takes part subsequent to its commission
in any of the following manner:

a) By themselves profiting from or assisting the offender to profit from

the effects of the act of torture or other cruel, inhuman and
degrading treatment or punishment;

b) By concealing the act of torture or other cruel, inhuman and

degrading treatment or punishment and/or destroying the effects or
741
Ibid.
 instruments thereof in order to prevent its discovery; or

c) By harboring, concealing or assisting m the escape of the

principal/s in the act of torture or other cruel, inhuman and
degrading treatment or punishment: Provided, That the accessory
acts are done with the abuse of the official's public functions.

Anti-Enforced or Involuntary Disappearance Act of 2012 (RA 10353)

1) Enforced or involuntary disappearance refers to the arrest, detention,

abduction or any other form of deprivation of liberty committed by agents of
the State or by persons or groups of persons acting with the authorization,
support or acquiescence of the State, followed by a refusal to acknowledge
the deprivation of liberty or by concealment of the fate or whereabouts of
the disappeared person, which places such person outside the protection of
the law.

2) The penalty of reclusion temporal and its accessory penalties shall also be

imposed upon persons who, having knowledge of the act of enforced or
involuntary disappearance and without having participated therein, either as
principals or accomplices, took part subsequent to its commission in any of
the following manner:

a) By themselves profiting from or assisting the offender to profit from

the effects of the act of enforced or involuntary disappearance;

b) By concealing the act of enforced or involuntary disappearance

and/or destroying the effects or instruments thereof in order to
prevent its discovery; or

c) By harboring, concealing or assisting in the escape of the

principal/s in the act of enforced or involuntary disappearance,
provided such accessory acts are done with the abuse of official
functions.

Anti-Trafficking in Person Act (RA 9208, as amended by RA 10364).

1) Trafficking in Persons – (a) refers to the recruitment, obtaining, hiring,

providing, offering, transportation, transfer, maintaining, harboring, or
receipt of persons with or without the victim’s consent or knowledge, within
or across national borders by means of threat, or use of force, or other
forms of coercion, abduction, fraud, deception, abuse of power or of
position, taking advantage of the vulnerability of the person, or, the giving or
receiving of payments or benefits to achieve the consent of a person having
 control over another person for the purpose of exploitation which includes at
a minimum, the exploitation or the prostitution of others or other forms of
sexual exploitation, forced labor or services, slavery, servitude or the
removal or sale of organs.

2) The recruitment, transportation, transfer, harboring, adoption or receipt of a

child for the purpose of exploitation or when the adoption is induced by any
form of consideration for exploitative purposes shall also be considered as
‘trafficking in persons’ even if it does not involve any of the means set forth
in the preceding paragraph.

3) Accessories. Whoever has the knowledge of the commission of the crime,

and without having participated therein, either as principal or as
accomplices, take part in its commission in any of the following manners:

a) By profiting themselves or assisting the offender to profit by the

effects of the crime;

b) By concealing or destroying the body of the crime or effects or

instruments thereof, in order to prevent its discovery;

c) By harboring, concealing or assisting in the escape of the principal

of the crime, provided the accessory acts with abuse of his or her
public functions or is known to be habitually guilty of some other
crime.

The Terrorism Financing Prevention and Suppression Act of 2012 (RA

10168).

1) Any person who, having knowledge of the commission of the crime of

financing of terrorism but without having participated therein as a principal,
takes part subsequent to its commission:

a) by profiting from it or by assisting the principal or principals to profit

by the effects of the crime, or

b) by concealing or destroying the effects of the crime in order to

prevent its discovery, or

c) by harboring, concealing or assisting in the escape of a principal of

the crime shall be guilty as an accessory to the crime of financing of
terrorism.
Code of Conduct and Ethical Standards for Public Officials and Employees.
(RA 6713).

1) Private individuals who participate in conspiracy as co-principals,

accomplices or accessories, with public officials or employees, in violation
of this Act, shall be subject to the same penal liabilities as the public officials
or employees and shall be tried jointly with them.

Migrant Workers and Overseas Filipinos Act of 1995 (RA 8042, as amended
by RA 10022).

1) Illegal recruitment shall mean any act of canvassing, enlisting, contracting,

transporting, utilizing, hiring, or procuring workers and includes referring,
contract services, promising or advertising for employment abroad, whether
for profit or not, when undertaken by non-licensee or non-holder of authority
contemplated under Article 13(f) of Presidential Decree No. 442, as
amended, otherwise known as the Labor Code of the Philippines.

2) The persons criminally liable for the above offenses are the principals,
accomplices and accessories. 

Chapter Ten
MULTIPLE OFFENDERS/HABITUAL OFFENDERS

Multiple Offenders/Habitual Offenders

1) Nature and concept.

a) A habitual offender, repeat offender or career criminal is a person

convicted of a new crime who was previously convicted of a crime(s). 742 A
742
https://en.wikipedia.org/ 13 June 2018.
 repeat offender is a person who has already been convicted for a crime,
and who has been caught again for committing the crime and breaking the
law for which he had been prosecuted earlier. 743 A habitual offender is
person who has been convicted of a crime several times. The term
“habitual offender” may imply that the person has been convicted of the
same crime many times, but it may also refer to a person who has many
convictions for different crimes on their record. 744

b) In the Philippine setting, it has been held that in order that an accused
may be legally deemed an habitual criminal, it is necessary that he should
have been convicted three times of any of the crimes enumerated in the
law, or of three such crimes, and that the second crime was committed
after the first conviction, and the third after the second conviction, then, in
order to apply the additional penalty for the fourth commission of crime, he
must also have been convicted or have served the sentence for the third
crime, and so on.745 

c) When an habitual criminal, after serving as additional penalty again

commits several crimes, whether at the same time or one after another, he
thereby shows that the additional penalty attached to the principal penalty
to which he has been sentenced, and which he has served was not
enough to reform him. In committing new crimes, his mental and moral
perversity was not greater when he committed the second that when he
committed the first crime, nor when he committed the third than when he
committed the second, whether he did so simultaneously or successively.
746

d) Kinds of multiple offenders:

Recidivism;
Habituality (Reiteracion);
Quasi-recidivism;
Habitual Delinquency.

i) Recidivism.

(1) Nature. In recidivism or reincidencia, the offender shall have

been previously convicted by final judgment of another crime
embraced in the same title of the Revised Penal Code. In

743
https://definitions.uslegal.com/ 13 June 2018.
744
https://www.legalmatch.com/law-library/13 June 2018.
745
People v. Santiago, G.R. Nos. L-32456-57, November 14, 1930.
746
Ibid.
 recidivism, it is required that the subsequent conviction must be for
an offense committed before the offense involved in the prior
conviction.747

(2) Basis: This is based on the greater perversity of the offender as

shown by his inclination to crimes.748

(3) Provision: Article 14, par. (9), Revised Penal Code. “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.”

(4) Requisites:

(a) That the offender is on trial for an offense;

(b) That he was previously convicted by final judgment of another

crime;

(c) That both the first and second offenses are embraced in the
same title of the Code;

(d) That the offender is convicted of the second offense.

(5) Concepts.

(a) It is enough that there must be at least 2 convictions. The first

conviction must be by final judgment and must take place prior
to the second conviction.

(b) Both convictions must be embraced in the same title of the

Code.

(c) It is a generic aggravating circumstance which can be offset by

ordinary mitigating circumstance.749

(d) It must always be alleged and charged in the information, and

must be proven during the trial in order to be appreciated. 750

747
Reyes, supra. page 393.
748
Ibid.
749
Palaganas v. People, G.R. No. 165483, September 12, 2006.
750
Rule 110, Sections 8 and 9 of the Revised Rules on Criminal Procedure.
 (6) Effect

(a) As a generic aggravating circumstance, it has the effect of

increasing the penalty for the crime to its maximum period, but it
cannot increase the same to the next higher degree. 751 

ii) Habituality (Reiteracion).

(1) Nature. In reiteracion, the offender shall have been punished

previously for an offense to which the law attaches an equal or
greater penalty or for two or more crimes to which it attaches a
lighter penalty. Unlike in reincidencia, the offender
in reiteracion commits a crime different in kind from that for which
he was previously tried and convicted.752

(2) Basis: This is based on the greater perversity of the offender as

shown by his inclination to crimes.

(3) Provision: Article 14, par. 10, Revised Penal Code. “That the
offender has been previously punished by an offense to which
the law attaches an equal or greater penalty or for two or more
crimes to which it attaches a lighter penalty.”

(4) Requisites:

(a) That the accused is on trial for an offense;

(b) That he previously served sentence for an offense to which the

law attaches an equal or greater penalty, or for two or more
crimes to which it attaches lighter penalty than that for the new
offense; and

(c) That he is convicted for the new offense.

(5) Concepts.

(a) It is essentially that the offender be previously punished or has

served the sentence for an offense in which the law provides for
an EQUAL OR GREATER penalty than that attached by law to
the second offense, or for two or more offenses, in which the
law attaches a lighter penalty.

751
Ibid.
752
People v. Real, G.R. No. 93436, March 24, 1995.
 (b) It requires the offender to have served the sentence.

(c) It is a generic aggravating circumstance which can be offset by

an ordinary mitigating circumstance. However, it is not always
aggravating as the court has discretion to consider it depending
on the circumstances.

(d) It must always be alleged and charged in the information, and

must be proven during the trial in order to be appreciated.

(6) Effect

(a) If considered, it has the effect of increasing the penalty for the
crime to its maximum period, but it cannot increase the same to
the next higher degree.

iii) Quasi-Recidivism.

(1) Nature. Quasi-recidivism is a special aggravating circumstance

where a person, after having been convicted by final judgment,
shall commit a new felony before beginning to serve such
sentence, or while serving the same.

(2) Basis: The severe penalty imposed on a quasi-recidivist is justified

because of the offender’s perversity and incorrigibility. 753

(3) Provision: Article 160, Revised Penal Code. “Besides the

provisions of Rule 5 of Article 62, 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 punished by the maximum period of the penalty
prescribed by law for the new felony.

Any convict of the class referred to in this article, who is

not a habitual criminal, shall be pardoned at the age of seventy
years if he shall have already served out his original sentence,
or when he shall complete it after reaching the said age,
unless by reason of his conduct or other circumstances he
shall not be worthy of such clemency.”

(4) Requisites:
753
People v. Peralta, et al., G.R. No. L-19069, October 29, 1968.
 (a) The offender is convicted by final judgment of a felony or an
offense; and

(b) He commits another felony before beginning to serve such

sentence or while serving the same.

(5) Concepts.

(a) The first conviction must pertain to either a felony or an offense.

The second crime must be a felony (not an offense).

(b) The essence of this circumstance is that the second felony is

committed while the offender is about to serve or while serving
the first sentence.

(c) This is a special aggravating circumstance. It must always be

alleged and charged in the information, and must be proven
during the trial in order to be appreciated. Moreover, it cannot be
offset by an ordinary mitigating circumstance.754

(6) Effect.

(a) This has the effect to increasing the penalty for the new felony
to its maximum period, but the same cannot increase the
penalty to the next higher degree. 

iv) Habitual Delinquency

(1) Nature.

(a) A person shall be deemed to be habitually delinquent, if within a

period of ten years from the date of his release or last conviction
of the crime of serious physical injuries or less serious physical
injuries, robbery, theft, estafa, or falsification, he is found guilty
of any of said crimes a third time or oftener.755

(b) The purpose is to prevent those who for the second time or
more commit the crimes from relapsing thereafter at least during
the period fixed thereby.756

754
Palaganas v. People, supra.
755
People v. Bernal, G.R. No. L-44988, October 31, 1936.
756
People v. De Jesus, G.R. No. L-45198, October 31, 1936.
 (c) Habitual delinquency is not a crime. It is simply a fact or
circumstance which, if present in a given case with the other
circumstances enumerated in rule 5 of said article, gives rise to
the imposition of the additional penalties therein prescribed. 757

(d) Provision: Article 62, par. (5), Revised Penal Code. “Habitual
delinquency shall have the following effects:

(i) 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;

(ii) 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

(iii) 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.

(2) Requisites:

(a) There must be at least three convictions, the third conviction to

757
Ibid.
 take place within 10 years from his last release or last
conviction;

(b) The crimes are specified: robbery, theft, estafa, falsification,

serious or less serious physical injuries;

(c) Each conviction must take place within ten years from the last
conviction or release.

(3) Concepts.

(a) May recidivism be appreciated at the same with habitual

delinquency? Yes, because recidivism as an aggravating
circumstance modifying criminal liability is not an inherent or
integral element of habitual delinquency. Recidivism is not a
factor or element which necessarily forms an integral part of
habitual delinquency.758 The elements as well as the basis of
each of these circumstances are different. For recidivism to
exist, it is sufficient that the accused, on the date of his trial,
shall have been previously convicted by final judgment of
another crime embraced in the same title. For the existence of
habitual delinquency, it is not enough that the accused shall
have been convicted of any of the crimes specified, and that the
last conviction shall have taken place ten (10) years before the
commission of the last offense. It is necessary that the crimes
previously committed be prior to the commission of the offense
with which the accused is charged a third time or oftener. 759

(b) A habitual delinquent is necessarily a recidivist 760 because

recidivism requires only two convictions of crimes embraced in
the same title. The crimes involved in habitual delinquency are
classified under three titles, to wit: crimes against property
(robbery, theft, and estafa), crimes against persons (serious or
less serious physical injuries) and crime against public interest
(falsification).

(c) However, a recidivist does not necessarily follow a habitual

delinquent because the latter requires at least three convictions.

(d) In averring habitual delinquency in the information, it is required

that (a) the dates of the commission of his previous crimes, (b)
758
People v. Bernal, supra.
759
Ibid.
760
People v. Tolentino, et al., G.R. No. L-48740, August 5, 1942.
 the dates of his convictions, and (c) those of his release for
service of sentence must be stated so as to avoid the
inconveniences.761

(e) Special (or extraordinary) aggravating circumstance. 762 It must

be alleged in the information and proven during trial.

(4) Effect.

(a) It provides for the imposition of additional penalty such as:

(i) On the third conviction – prision correcional in its medium

and maximum periods;
(ii) On the fourth conviction – prision mayor in its minimum and
medium periods;
(iii) On the fifth or additional convictions – prision mayor in its
maximum period to reclusion temporal in its minimum period;
(iv) In no case, the total penalties to be imposed shall not
exceed 30 years.

(5) Distinctions.

Quasi Habitual
Recidivism Reiteracion
Recidivism Delinquency
Previous
punishment or Crimes are
service of sentence Offender specified:
of an offense with previously robbery, theft,
Involves two
equal or greater convicted by estafa,
Situation convictions
penalty than the final falsification,
of crimes.
second offense, or judgement serious or less
for two or more light with offense. serious physical
offenses which have injuries.
lighter penalty.

761
People v. Tapel, G.R. No. 45220, September 18, 1936.
762
People v. Bernal, supra.
 There must be at
least 3
The crimes convictions, the
He commits a
must be last conviction to
Requires the felony before
embraced in take place within
offender to have he has served
Requisite the same 10 years from last
served the penalty the penalty, or
title of the conviction or
of the first offense. while serving
Revised release (each
the same.
Penal Code. conviction to take
place within 10
years.)
Cannot be
Mere offset by
generic Not always ordinary
aggravating aggravating; court mitigating Cannot be offset;
circumstanc has discretion to circumstance; imposition of
Effect additional
e; increases apply; increases the punished by
the penalty penalty to maximum maximum penalty.
to maximum period. period of the
period. penalty new
felony.

Chapter Eleven
PLURALITY OF CRIMES

Plurality of Crimes

1) Concepts.

a) Plurality of crimes consists in the successive execution by the same

individual of different criminal acts upon any of which no conviction has yet
been declared.
b) There is plurality of crimes or (concurso de delitos) when the actor
commits various delictual acts of the same or different kind. 763
c) Compared with recidivism. In plurality of crimes, there are no convictions
yet of the crimes involved. In recidivism, the offender has already been
convicted of the first crime.

763
Gamboa, et al., v. CA, G.R. No. L-41053, November 28, 1975.
2) Classification of plurality of crimes:

a) Formal/Ideal plurality. Ideal plurality occurs when a single act gives rise to
various infractions of law. This is illustrated by Article 48 of the Revised
Penal Code which states: (a) when a single act constitutes two or more
grave or less grave felonies (compound crime); and (b) when an offense is
a necessary means for committing another offense (complex proper). 764

b) Real/Material plurality. Real plurality arises when the accused performs an

act or different acts with distinct purposes and resulting in different crimes
which are juridically independent.765 

i) Kinds of formal/ideal plurality of crimes:

(1) Complex crime;

(2) Special complex crimes; and
(3) Continued crimes.

3) Complex crimes

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.

(1) Concept and basis.

(a) Under Article 48 of the Revised Penal Code, 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. Although two or more
crimes are actually committed, they constitute only one crime in
the eyes of the law as well as in the conscience of the
offender. Hence, there is only one penalty imposed for the
commission of a complex crime.766

(b) The underlying philosophy of complex crimes in the Revised

Penal Code, which follows the pro reo principle, is intended to
favor the accused by imposing a single penalty irrespective of
764
Ibid.
765
Ibid.
766
People v. Gaffud, G.R. No. 168050, September 19, 2008.
 the crimes committed. The rationale being, that the accused
who commits two crimes with single criminal impulse
demonstrates lesser perversity than when the crimes are
committed by different acts and several criminal resolutions. 767

(c) Article 48 is a procedural device allowing single prosecution of

multiple felonies falling under either of two categories: (1) when
a single act constitutes two or more grave or less grave felonies
(thus excluding from its operation light felonies); and (2) when
an offense is a necessary means for committing the other. The
legislature crafted this procedural tool to benefit the accused
who, in lieu of serving multiple penalties, will only serve the
maximum of the penalty for the most serious crime. 768

(d) In a complex crime, although two or more crimes are actually

committed, they constitute only one crime in the eyes of the law
as well as in the conscience of the offender. Hence, there is
only one penalty imposed for the commission of a complex
crime.769

(2) Kinds of complex crimes:

(a) Compound crime - when a single act constitutes two or more

grave or less grave felonies.

(b) Complex crime proper - when an offense is a necessary means

for committing the other.

(3) Compound crime.

(a) The classic example of the first of kind is when a single bullet
results in the death of two or more persons, or the single act of
throwing a grenade resulting in the death of another person and
injuring four others produced the complex crime of murder and
multiple attempted murders.770 In another case, it was held
there was complex crime when the offender hurled a
grenade into the bedroom of the victims causing the death
of three persons and injuries to one person which
constituted the complex crime of multiple murder and

767
Ibid.
768
Ivler v. Hon. Modesto-San Pedro, G.R. No. 172176, November 17, 2010.
769
People v. Gaffud, supra.
770
People v. Guillen, 85 Phil. 307.
 attempted murder.771

(b) The single act of burning the house of the victim, with the main
objective of killing the latter and his daughter, resulting in their
deaths resulted the single act of accused-appellant in the
complex crime of double murder.772

(c) The single act by appellant of detonating a hand grenade may

quantitatively constitute a cluster of several separate and
distinct offenses, yet these component criminal offenses should
be considered only as a single crime in law on which a single
penalty is imposed because the offender was impelled by a
single criminal impulse which shows his lesser degree of
perversity.773

(d) There is complex crime if the killing was the result of a single
impulse, which was induced by the order of the leader to fire,
and continued with the intention to comply therewith, as the
firing stopped as soon as the leader gave the order to that
effect. There was no intent on the part of the offenders either to
fire at each and every one of the victims as separately and
distinctly from each other. It has been held that if the act or acts
complained of resulted from a single criminal impulse, it
constitutes a single offense.774

(e) The single act of accused in burning the house of his aunt
which resulted in her death and her partner produced the
complex crime of double murder.775

(f) However, a single act of pressing the trigger of an automatic

rifle is not a complex crime. The offender knew that, in view of
the special characteristic of automatic machine gun, there are
as many offenses as the numbers of victims of the bullets fired.
Although the burst of shots was caused by one single act of
pressing the trigger of the Thompson sub-machine gun, in view
of its special mechanism, the person firing it has only to keep
pressing the trigger with his finger and it would fire continually.
Hence, it is not the act of pressing the trigger which should

771
People v. Carpo, et al., G.R. No. 132676, April 4, 2001.
772
People v. Gaffud, supra.
773
People v. Comadre, G.R. No. 153559, June 8, 2004.
774
People v. Lawas, G.R. No. L-7618-20, June 30, 1955.
775
People v. Mercado, G.R. No. 218702, October 17, 2017.
 produce the several felonies, but the number of bullets which
actually produced them.776

(g) When various victims expire from separate shots, such acts
constitute separate and distinct crimes. For Article 48 to apply,
there must be singularity of criminal act; not singularity of
criminal impulse because it is not written into the law. Thus,
where the six defendants, with others (armed with pistols,
carbines and also a submachine gun and Garand rifles), fired
volleys into a house killing eleven and wounding several others,
each of the said accused is "guilty of as many crimes of murder
as there were deaths.777

(h) If there is no conspiracy, and it is impossible to ascertain the

individual deaths caused by each and everyone of the accused,
then there is complex crime.778

(i) Article 48 of the Revised Penal Code is not applicable because

the death of each of the five persons who were killed by
appellant and the physical injuries inflicted upon each of the two
other persons injured were not caused by the performance by
the accused of one simple act as provided for by said article.
Although it is true that several successive shots were fired by
the accused in a short space of time, yet the factor which must
be taken into consideration is that, to each death caused or
physical injuries inflicted upon the victims, corresponds a
distinct and separate shot fired by the accused, who thus made
himself criminally liable for as many offenses as those resulting
from every single act that produced the same. Although
apparently he perpetrated a series of offenses successively in a
matter of seconds, yet each person killed and each person
injured by him became the victim, respectively, of a separate
crime of homicide or frustrated homicide.779

(j) Article 48 is not applicable to acts punished under Article 365 of

the Revised Penal Code. Meaning, acts punished under the
said article could not be complexed and should be prosecuted
under one information only regardless of their number and

776
People v. Desierto, (C.A.) 45 O.G. 4542 (1942).
777
Ibid.
778
People v. Lawas, supra.
779
People v. Tabaco, G.R. No. 100382-385, March 9, 1997, citing People v. Desierto, C.A. 45
O.G. 4542 [1948].
 severity.780

(4) Complex crime proper.

(a) Nature. The second part of Article 48 deals with complex crime
proper. This refers to a situation that the offender commits a
crime to insure and facilitate the commission of another crime.
The first crime is resorted to give way to another crime.

(b) Requisites:

(i) That at least two offenses are committed:

(ii) That one or some of the offenses must be necessary to
commit the other; and
(iii) That both or all the offenses must be punished under
the same statute.

(c) Concepts.

(i) The two crimes must be punished by the same statute

otherwise, there is no complex crime. 781 A felony cannot be
complexed with a special penal law.

(ii) The phrase “necessary means” has been interpreted not to

mean “indispensable means” because if it did, then the
offense as a necessary means to commit another would be
an element of the crime. 782 This means that the offense is
committed to facilitate the commission of the other.

(iii) There is no complex crime if the means (crime) is

already defined by law as crime. e.g. where the killing was
committed by means of fire or explosion, there is no complex
crime of arson with homicide. The crime is plainly murder.

(iv) There is no complex crime of arson with homicide. 

When fire is used with the intent to kill a particular person
who may be in a house and that objective is attained by
burning the house, the crime is murder only. When the Penal
Code declares that killing committed by means of fire is
murder, it intends that fire should be purposely adopted as a

780
Ivler v. San Pedro, supra.
781
People v. Araneta, 49 Phil. 650.
782
People v. Hernandez, 99 Phil. 515.
 means to that end. There can be no murder without a design
to take life. In other words, if the main object of the offender
is to kill by means of fire, the offense is murder. But if the
main objective is the burning of the building, the resulting
homicide may be absorbed by the crime of arson.  If the
objective is to kill and arson is resorted to as a means to
cover up the killing, the offender may be convicted of two
separate crimes of either homicide or murder, and arson. 783

(v) In the complex crime of forcible abduction with rape, any

subsequent intercourse is a separate crime. In the first act of
rape, the crime of forcible abduction is already
consummated, so that each of the succeeding rape is a
separate crime.

(vi) There is no complex crime when trespass to dwelling

is a direct means to commit a grave felony. Trespass shall
be treated as aggravating circumstance of unlawful entry.

(vii) There is no complex crime if one offense is committed in

order to conceal the other.

(viii) There is no complex crime if one of the offenses is

penalized
by special law. The exception is when the special law so
provides, e.g. carnapping with homicide.

(ix) When two or more crimes are committed but not by a

single act or one is not necessary means for committing the
other, there is no complex crime. e.g. the accused compelled
the pilot to change the course of flight, and when the pilot
refused, shot the latter. 2 crimes: frustrated coercion and
murder.

(x) There is no complex crime of rebellion with murder. Murder

is inherent or thus absorbed in rebellion if the killing was for
political purpose.

(xi) There is no complex crime of estafa through

falsification of private document because damage is an
element common to both crimes.784

783
People v. Cedenio, G.R. No. 93485, June 27, 1994.
784
People v. Dizon, (CA) 48 O.G. 168.
4) Special Complex Crimes (Composite Crimes)

(1) Concept and basis.

(a) Where the law provides a single penalty for two or more
component offenses, the resulting crime is called
a special complex crime.785  It is composed of two or more
crimes but is treated by law as a single indivisible and unique
offense for being the product of one criminal impulse. 786  It is not
of the same legal basis as nor subject to the rules on complex
crime in Article 48 of the Revised Penal Code, since it does
not consist of a single act giving rise to two or more grave or
less grave felonies (compound crimes) nor do they involve an
offense being a necessary means to commit another (complex
crime proper). Just like the regular complex crimes, only a
single penalty is imposed for each of such composite crimes
although composed of two or more offenses. 787

(b) Distinguished from complex crimes. Composite crime is a specific

crime with a specific penalty provided by law, and is to be
distinguished from a compound or complex crime under Article
48 of the Revised Penal Code. It is truly distinct and different
from a complex or compound crime. In a composite crime, the
composition of the offenses is fixed by law, but in a complex or
compound crime, the combination of the offenses is not
specified but generalized, that is, grave and/or less grave, or
one offense being the necessary means to commit the other. In
a composite crime, the penalty for the specified combination of
crimes is specific, but in a complex or compound crime the
penalty is that corresponding to the most serious offense, to be
imposed in the maximum period. A light felony that
accompanies the commission of a complex or compound crime
may be made the subject of a separate information, but a light
felony that accompanies a composite crime is absorbed. 788 

(c) In a special complex crime, the prosecution must necessarily

prove each of the component offenses with the same precision
that would be necessary if they were made the subject of
separate complaints.789 
785
People v. Larraňaga, 466 Phil. 324.
786
People v. Esugon, G.R. No. 195244, June 22, 2015.
787
People v. Barros, G.R. Nos. 101107-08, June 27, 1995.
788
People v. Esugon, supra.
789
People v. Larraňaga, supra.
 (d) Some of the special complex crimes under the Revised Penal
Code are (a) robbery with homicide, (b) robbery with rape,
(c) kidnapping with serious physical injuries, (d) kidnapping with
murder or homicide, and (e) rape with homicide. 

(2) Examples of special complex crimes:

(a) Robbery with homicide.

(i) Elements: (1) The taking of personal property belonging to

another; (2) with intent to gain; (3) with the use of violence or
intimidation against a person; and (4) on the occasion or by
reason of the robbery, the crime of homicide, as used in its
generic sense, was committed.790 

(ii) In robbery with homicide, the original criminal design of the

malefactor is to commit robbery, with homicide perpetrated
on the occasion or by reason of the robbery. The intent to
commit robbery must precede the taking of human life. The
homicide may take place before, during or after the robbery.
It is only the result obtained, without reference or distinction
as to the circumstances, causes or modes or persons
intervening in the commission of the crime that has to be
taken into consideration. There is no such felony of robbery
with homicide through reckless imprudence or simple
negligence. The constitutive elements of the crime, namely,
robbery with homicide, must be consummated. 791

(iii) It is immaterial that the death would supervene by

mere accident; or that the victim of homicide is other than
the victim of robbery, or that two or more persons are killed,
or that aside from the homicide, rape, intentional mutilation,
or usurpation of authority, is committed by reason or on the
occasion of the crime. Likewise, immaterial is the fact that
the victim of homicide is one of the robbers; the felony would
still be robbery with homicide. Once a homicide is committed
by or on the occasion of the robbery, the felony committed is
robbery with homicide. All the felonies committed by reason
of or on the occasion of the robbery are integrated into one
and indivisible felony of robbery with homicide. The word
homicide is used in its generic sense. Homicide, thus,
790
People v. Sugan, G.R. No. 192789, March 23, 2011.
791
People v. De Leon, G.R. No. 179943, June 26, 2009.
 includes murder, parricide, and infanticide.792

(iv) Robbery with homicide is a composite crime with its

own definition and special penalty in the Revised Penal
Code. There is no special complex crime of robbery with
murder under the Revised Penal Code. Here, treachery
forms part of the circumstances proven concerning the
actual commission of the complex crime. Logically it could
not qualify the homicide to murder but, as generic
aggravating circumstance, it helps determine the penalty to
be imposed.793

(b) Rape with homicide.

(i) Elements. In a special complex crime of rape with homicide,

the following elements must concur: (1) the accused had
carnal knowledge of a woman; (2) carnal knowledge of a
woman was achieved by means of force, threat or
intimidation; and (3) by reason or on occasion of such carnal
knowledge by means of force, threat or intimidation, the
accused killed a woman794

(ii) Both rape and homicide must be established beyond

reasonable doubt.795 The term homicide is to be understood
in its generic sense, and includes murder and slight physical
injuries committed by reason or on occasion of the
rape.796 Hence, even if any or all of the circumstances
(treachery, abuse of superior strength and evident
premeditation) alleged in the information have been duly
established by the prosecution, the same would not qualify
the killing to murder and the crime committed by appellant is
still rape with homicide.797

(c) Robbery with rape.

(i) Elements: To be convicted of robbery with rape, the

following elements must concur: (1) the taking of personal
property is committed with violence or intimidation against
792
Ibid.
793
People v. Macabales, G.R. No. 111102, December 8, 2000.
794
People v. Nanas, 415 Phil. 683.
795
Diega v. Court of Appeals, G.R. Nos. 173510 and 174099, March 15, 2010.
796
People v. Nanas, G.R. No. 137299, August 21, 2001.
797
People v. Laog, G.R. No. 178321, October 5, 2011.
 persons; (2) the property taken belongs to another; (3) the
taking is characterized by intent to gain or animus lucrandi;
and (4) the robbery is accompanied by rape.798
 
(ii) For a conviction of the crime of robbery with rape to stand, it
must be shown that the rape was committed by reason or on
the occasion of a robbery and not the other way around. This
special complex crime under Article 294 of the Revised
Penal Code contemplates a situation where the original
intent of the accused was to take, with intent to gain,
personal property belonging to another and rape is
committed on the occasion thereof or as an accompanying
crime.799

(iii) This felony contemplates a situation where the

original intent of the accused was to take, with intent to
gain, personal property belonging to another, and rape
is committed on the occasion thereof or as an
accompanying crime. In other words, the offenders had
an intent to rob personal property belonging to another,
and such intent preceded the rape. If the original plan
was to rape but the accused after committing the rape
also committed the robbery when the opportunity
presented itself, the offense should be viewed as
separate and distinct; if the intention of the accused was
to rob, but rape was committed even before the
asportation, the crime is robbery with rape. The rape
must be contemporaneous with the commission of the
robbery. Article 294 of the RPC does not distinguish
whether the rape was committed before, during or after
the robbery; it suffices that the robbery was
accompanied by rape.800

(iv) There is no crime of Robbery with attempted rape

(under Art. 48) because a robbery cannot be a necessary
means to commit attempted rape. Or Article 294 (as a
special complex crime) only punishes a consummated rape.
If both homicide and rape were committed in the course of
robbery, the crime is Robbery with homicide, rape is a mere

798
People v. Suyu,  G.R. No. 170191, August 16, 2006.
799
People v. Tamayo, 434 Phil. 642.
800
People v. Remobio, G.R. No. 227705, October 11, 2017.
 aggravating circumstance.801

(d) Kidnapping with murder or homicide/serious physical injuries.  

(i) Elements: (a) the offender is a private individual; (b) he

kidnaps or detains another, or in any manner deprives the
latter of his liberty; (c) the act of detention or kidnapping
must be illegal; and (d) in the commission of the offense,
any of the following circumstances is present: (1) the
kidnapping or detention shall have lasted for more than three
days; (2) it is committed by simulating public
authority; (3) any serious physical injuries shall have been
inflicted upon the person kidnapped or detained or threats to
kill him are made; or (4) the person kidnapped or detained is
a minor, female or public officer 802 and on the occasion
thereof the victim dies or is killed or is subjected to torture or
dehumanizing acts.

(ii) This amendment introduced in our criminal statutes the

concept of 'special complex crime' of kidnapping with murder
or homicide. It effectively eliminated the distinction drawn by
the courts between those cases where the killing of the
kidnapped victim was purposely sought by the accused, and
those where the killing of the victim was not deliberately
resorted to but was merely an afterthought. Consequently,
the rule now is: Where the person kidnapped is killed in the
course of the detention, regardless of whether the killing was
purposely sought or was merely an afterthought, the
kidnapping and murder or homicide can no longer be
complexed under Article 48, nor be treated as separate
crimes, but shall be punished as a special complex crime
under the last paragraph of Art. 267, as amended by RA No.
7659.803

(e) Kidnapping with rape.

(i) Elements: (a) the offender is a private individual; (b) he

kidnaps or detains another, or in any manner deprives the
latter of his liberty; (c) the act of detention or kidnapping
must be illegal; and (d) in the commission of the offense,

801
People v. Ganal, 85 Phil 743.
802
People v. Jacalne, G.R. No.168552, October 3, 2011.
803
People v. Ramos, G.R. No. 118570, October 12, 1998.
 any of the following circumstances is present: (1) the
kidnapping or detention shall have lasted for more than three
days; (2) it is committed by simulating public
authority; (3) any serious physical injuries shall have been
inflicted upon the person kidnapped or detained or threats to
kill him are made; or (4) the person kidnapped or detained is
a minor, female or public officer 804 and on the occasion
thereof the victim is raped.

(ii) When the victim is killed or dies as a consequence of the

detention or is raped, or is subjected to torture or
dehumanizing acts, the maximum penalty shall be
imposed. This provision gives rise to a special complex
crime. This arises where the law provides a single penalty
for two or more component offenses. Notably, however, no
matter how many rapes had been committed in the special
complex crime of kidnapping with rape, the resultant crime is
only one kidnapping with rape. This is because these
composite acts are regarded as a single indivisible offense
as in fact R.A. No. 7659 punishes these acts with only one
single penalty. In a way, R.A. 7659 depreciated the
seriousness of rape because no matter how many times the
victim was raped, like in the present case, there is only one
crime committed the special complex crime of kidnapping
with rape. However, for the crime of kidnapping with rape, as
in this case, the offender should not have taken the victim
with lewd designs, otherwise, it would be complex crime of
forcible abduction with rape. In People v. Garcia, it was held
that if the taking was by forcible abduction and the woman
was raped several times, the crimes committed is one
complex crime of forcible abduction with rape, in as much as
the forcible abduction was only necessary for the first rape;
and each of the other counts of rape constitutes distinct and
separate count of rape.805

(f) Carnapping with homicide. The elements of carnapping: 1. That

there is an actual taking of the vehicle; 2. That the vehicle
belongs to a person other than the offender himself; 3. That the
taking is without the consent of the owner thereof; or that the
taking was committed by means of violence against or
intimidation of persons, or by using force upon things; and 4.

804
People v. Jacalne, supra.
805
People v. Mirandilla, G.R. No. 186417, July 27, 2011.
 That the offender intends to gain from the taking of the
vehicle.806 The prosecution has to prove the essential requisites
of carnapping and of the homicide or murder of the victim, and
more importantly, it must show that the original criminal design
of the culprit was camapping and that the killing was
perpetrated "in the course of the commission of the carnapping
or on the occasion thereof " In other words, to prove the special
complex crime of camapping with homicide, there must be proof
not only of the essential elements of carnapping, but also that it
was the original criminal design of the culprit and the killing was
perpetrated in the course of the commission of the camapping
or on the occasion thereof.807

5) Continued Crimes/Continuing Crimes.

(1) Concepts.

(a) A continued or continuing crime is a single crime consisting of

series of acts arising from one criminal resolution and is
therefore not a complex crime.808

(b) This is a single crime consisting of a series of acts arising from

a single criminal resolution or intent not susceptible of division.
When the actor, there being unity of purpose and of right
violated, commits diverse acts, each of which, although of a
delictual character, merely constitutes a partial execution of a
single particular delict, such concurrence or delictual acts is
called a "delito continuado". In order that it may exist, there
should be "plurality of acts performed separately during a period
of time; unity of penal provision infringed upon or violated and
unity of criminal intent and purpose, which means that two or
more violations of the same penal provision are united in one
and the same intent leading to the perpetration of the same
criminal purpose or aim.809

(c) According to Cuello Calon, for delito continuado to exist there

should be a plurality of acts performed during a period of time;
unity of penal provision violated; and unity of criminal intent or
purpose, which means that two or more violations of the same
penal provisions are united in one and same instant or
806
People v. Bernabe, et al,, 448 Phil. 269 (2003).
807
People v. Donio, G.R. No. 212815, March 1, 2017.
808
Gregorio, supra.
809
Gamboa, et al. v. CA, supra.
 resolution leading to the perpetration of the same criminal
purpose or aim.810

(d) According to Guevarra, in appearance, a delito

continuado consists of several crimes but in reality there is only
one crime in the mind of the perpetrator. 811 Padilla views such
offense as consisting of a series of acts arising from one
criminal intent or resolution.812

(e) Delito continuado is applicable to special penal laws.813

(2) Examples of continuing crimes.

(a) The theft of 13 cows belonging to two different owners

committed by the accused at the same time and at the same
period of time. 814

(b) The theft of six roosters belonging to two different owners from
the same coop and at the same period of time.815

(c) The theft of two roosters in the same place and on the same
occasion.816

(d) The illegal charging of fees for services rendered by a lawyer

every 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.817 The collection 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.818

(e) The act of approving thirty two (32) applications filed by

unqualified aliens under the Alien Legalization Program
constituted one crime only. The approval of the application or
810
II Derecho Penal, p. 520; I Aquino, Revised Penal Code, 630, 1987 ed.
811
Commentaries on the Revised Penal Code, 1957 ed., p. 102; Penal Science and Philippine
Criminal Law, p. 152).
812
Criminal Law, 1988 ed. pp. 53-54.
813
People v. Sabbun, 10 SCRA 156 (1964).
814
People v. Tumlos, 67 Phil. 320 (1939).
815
People v. Jaranillo, 55 SCRA 563 (1974).
816
People v. De Leon, 49 Phil. 437 (1926).
817
People v. Sabbun, 10 SCRA 156 (1964).
818
People v. Lawas, 97 Phil. 975 (1955 ).
 the legalization of the stay of the 32 aliens was done by a single
stroke of the pen, as when the approval was embodied in the
same document. Technically, there was only one crime that was
committed. The 32 amended information charged what is known
as delito continuado.819

(3) There is no continuing crime in the following:

(a) Two estafa cases, one of which was committed during the
period from January 19 to December 1955 and the other from
January 1956 to July 1956. 820 The said acts were committed on
two different occasions.

(b) Several malversations committed in May, June and July, 1936,

and falsifications to conceal 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."821

(c) Two estafa cases, one committed in December 1963 involving

the failure of the collector to turn over the installments for a
radio and the other in June 1964 involving the pocketing of the
installments for a sewing machine.822

(d) 75 estafa cases committed by the conversion by the agent of

collections from customers of the employer made on different
dates.823

819
Santiago v. Court of Appeals, G.R. No. 109266, December 2, 1993.
820
People v. Dichupa, 113 Phil. 306 (1961).
821
People v. Cid, 66 Phil. 354 (1938 ).
822
People v. Ledesma, 73 SCRA 77 (1976).
823
Gamboa v. Court of Appeals, 68 SCRA 308 (1975).
 Chapter Twelve
PENALTIES

1) Penalties in general

a) Concept

i) Penalty means the suffering in person, rights, or property that is

annexed by law or judicial decision to the commission of a crime or
public offense.824

ii) In legal parlance, it means the suffering undergone because of the

action of society, by one who commits a crime. It is imposed only after
a conviction in a criminal action.825

b) Purpose in punishing crimes

i) To secure justice. The State has an existence of its own to maintain, a

conscience of its own to assert, and moral principles to be vindicated.
Penal justice must therefore be exercised by the State in the service
and satisfaction of a duty, and rests primarily on the moral rightfulness
of the punishment inflicted.826

c) Theories justifying penalty.827

i) Deterrence - the State is concerned in the imperative necessity of

protecting the social organization against the criminal acts of
destructive individuals.828 

ii) Retributive justice - crimes must be punished by the State as an act of

retributive justice, a vindication of absolute right and moral law violated
by the criminal.

iii) Reformation - the State is also concerned in redeeming the individual

for economic usefulness and other social ends.829

iv) Reintegration – the State must consider the criminal as a member of

society, his relationship, first, toward his dependents, family and
824
Merriam-Webster; https://www.merriam-webster.com/ 13 June 2018.
825
Gregorio, supra., page 199.
826
Ibid., citing Albert, Revised Penal Code.
827
People v. Temporada, G.R. No. 173473, December 17, 2008.
828
People v. Ducosin, G.R. No. L-38332, December 14, 1933.
829
Ibid.
 associates and their relationship with him, and second, his relationship
towards society at large and the State. 830

d) Purpose of penalties under the Revised Penal Code

i) Retribution or expiation – the penalty commensurate with the gravity of

the offense.

ii) Correction or reformation – this is shown by the rules which regulate

the execution of the penalties consisting in deprivation of liberty.

iii) Social defense – this is shown by its inflexible severity to recidivist and
habitual delinquents.831

e) Nature of system of penalties provided in the Revised Penal Code

i) Rigid – the rigidity lies in the classification of penalties.

ii) Elastic – the elasticity lies in the range of each class, period or degree
of penalty.832

2) Classification of penalties and their range.

a) Classification

i) Principal

(1) Capital Punishment –Death

(a) Afflictive penalties

(i) Reclusion perpetua

(ii) Reclusion temporal
(iii) Perpetual or temporary absolute disqualification
(iv) Perpetual or temporary special disqualification
(v) Prision mayor

(b) Correctional penalties

(i) Prision correcional

(ii) Suspension
830
Ibid.
831
Reyes, supra.
832
Gregorio, supra. page 199.
 (iii) Destierro
(iv) Arresto mayor

(c) Light penalties

(i) Arresto menor

(ii) Public censure

(d) Penalties common to the three preceding classes

(i) Fine
(ii) Bond to keep the peace

(e) Accessory Penalties

(i) Perpetual or temporary absolute disqualification;

(ii) Perpetual or temporary special disqualification;
(iii) Suspension from public office, the right to vote and be voted
for, the profession of calling;
(iv) Civil interdiction;
(v) Indemnification;
(vi) Forfeiture or confiscation of instrument and proceeds of the
offense;
(vii) Payment of costs.

ii) Concepts.

(1) Reclusion perpetua and life imprisonment, distinguished. Reclusion

perpetua is not synonymous with life imprisonment. They are
different and distinct from each other. 833 The Code does not
prescribe the penalty of life imprisonment for any of the felonies
therein defined, that penalty being invariably imposed for serious
offenses penalized not by the Revised Penal Code but by special
laws. Reclusion perpetua entails imprisonment for at least thirty
(30) years after which the convict becomes eligible for pardon, it
also carries with it accessory penalties, namely: perpetual special
disqualification, etc. It is not the same as life imprisonment which,
for one thing, does not carry with it any accessory penalty, and for
another, does not appear to have any definite extent or duration. 834
Every judge should take note of the distinction and this Court
expects that, henceforth, no trial judge should mistake one for the
833
People v. Ruelan, 231 SCRA 650 [1994].
834
People v. Baguio, 196 SCRA 459; People v. Gregorio, et al., G.R. No. 109614-15, March 29,
1996.
 other.835

Reclusion Perpetua Life Imprisonment

Source Revised Penal Code Special Penal Laws

Duration 20 to 40 years Indefinite duration
The penalty comes with
Accessory penalty No accessory penalty
accessory penalty.
Eligible for parole after 30
Eligibility for parole No details on parole
years

(2) Destierro. Destierro means banishment or only a prohibition from

residing or entering the place or places designated in the sentence,
or within the radius therein designated, which shall include a
distance of 25 kilometers at least, and 250 kilometers at most, from
the place designated.836 It involves deprivation of liberty.837

(a) It is imposed in the following cases:

(i) Death or serious physical injuries under exceptional

circumstances (Art. 247);
(ii) In case of failure to give bond for good behavior (Art. 284);
(iii) As a penalty for the concubine in concubinage (Art. 334);
(iv) In cases where after reducing the penalty by one or more
degrees destierro is the proper penalty.

(2) Fine under Article 26 merely classifies fine and has nothing to do
with the definition of light felony.838

(a) Afflictive – exceeds Php1,200,000.00;

(b) Correctional – Php40,000.00 to Php1,200,000.00
(c) Light – less than Php40,000.00.

Duration of penalties

Penalty Duration

835
SC Administrative Circular No. 6-A-92, June 21, 1993.
836
Legarda v. Valdez, G.R. No. 513, February 25, 1902.
837
People v. Bastasa, G.R. No. L-32792, February 2, 1979.
838
Reyes, supra.
 20 years, 1 day to 40 years (after
Reclusion perpetua
30 years, he is eligible for parole)
Reclusion temporal 12 years, 1 day to 20 years
Prision mayor and temporary
6 years, 1 day to 12 years
disqualification
Prision correcional, suspension, and
6 months, 1 day to 6 years
destierro
Arresto mayor 1 month, 1 day to 6 months
Arresto menor 1 day to 30 days
Bond to keep peace as the court may require

Preventive imprisonment

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 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 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."

1) Nature.

a) 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.

2) Requisites:

a) if the detention prisoner agrees voluntarily in writing after being informed

of the effects thereof and with the assistance of counsel;

b) to abide by the same disciplinary rules imposed upon convicted prisoners.

c) Except in the following cases:

i) When they are recidivists, or have been convicted previously twice or

more times of any crime; and

ii) When upon being summoned for the execution of their sentence they
have failed to surrender voluntarily.

iii) 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 of the time during which he has
undergone preventive imprisonment.

iv) Credit for preventive imprisonment for the penalty of reclusion

perpetua shall be deducted from thirty (30) years.

v) 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.
 c) Computation of preventive imprisonment for purposes of immediate
release under this paragraph shall be the actual period of detention with
good conduct time allowance:

i) If the accused is absent without justifiable cause at any stage of the

trial, the court may motu proprio order the re-arrest of the accused:

(1) That recidivists, habitual delinquents, escapees and persons

charged with heinous crimes are excluded from the coverage of this
Act.

(2) 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.

3) Concepts.

b) Although destierro does not constitute imprisonment, it is nonetheless a

deprivation of liberty. It follows that Art, 29 is applicable when the penalty
is destierro. The accused should be credited with the time during which he
has undergone preventive imprisonment.839

c) A habitual delinquent is not entitled to the full time or 4/5 of the time of
preventive imprisonment because a habitual delinquent is necessarily a
recidivist or that at least he has been convicted previously twice or more
times of any crime.840

Effects of penalties

1) Perpetual or temporary absolute disqualification for public office

a) Deprivation of public offices and employments even by election;

b) Deprivation of right to vote or to be elected;
c) Disqualification for the offices of public employments and for the exercise
of any of the rights mentioned;
d) Loss of right to retirement pay or pension for any office formerly held.

2) Perpetual or temporary special disqualification for public office, profession or

calling

a) Deprivation of the office, employment, profession or calling affected;

839
People v. Bastasa, 88 SCRA 184.
840
People v. Gona, G.R. No. 47177, Nov. 4, 1940.
 b) Disqualification for holding similar offices or employments perpetually or
during the term of the sentence.

3) Perpetual or temporary special disqualification for the exercise of right of

suffrage

a) Deprivation of the right to vote or to be elected to any public office;

b) Cannot hold any public office during the period of disqualification.

4) Suspension from public office, profession or calling or the right of suffrage

a) Disqualification from holding such office or exercising such profession or

calling or right of suffrage during the term of the sentence;
b) If suspended from public office, the offender cannot hold another office
having similar functions during the period of suspension.

5) Civil interdiction

a) Deprivation of the rights of parental authority or guardianship of any ward;

b) Deprivation of marital authority;
c) Deprivation of the right to manage his property and of the right to disposed
of such property by any act of any conveyance inter vivos.

6) Bond to keep the peace

a) The offender must present two sufficient sureties which shall undertake
that the offender 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; or
b) The offender must deposit such amount with the clerk of court to
guarantee said undertaking; or
c) The offender may be detained, if he cannot five the bond, for a period not
to exceed 6 months of prosecuted for grave or less grave felony, or for a
period not to exceed 30 days, if for a light felony.

7) Pardon by the Chief Executive

a) Absolute pardon extinguishes the criminal liability of the offender;

b) It does not exempt the offender from the payment of civil indemnity;
c) It does not restore the right to hold public office or the right of suffrage
unless such rights are expressly restored by the terms of pardon.

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

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

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

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

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

3. When the principal penalty imposed is higher than prision

correctional, no subsidiary imprisonment shall be imposed upon the
culprit.

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

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

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

1) Nature.

a) If the convict has no property with which to meet the fine, he shall be
subject to a subsidiary personal liability at the rate of one day for each
amount equivalent to the highest minimum wage rate prevailing in the
Philippines at the time of the rendition of judgment of conviction by the trial
court, subject to the following rules:

i) If the principal penalty imposed be prision correcional or arresto and

fine, he shall remain under confinement until his fine 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.

ii) When the principal penalty imposed be only a fine, the subsidiary
imprisonment shall not exceed six months, if the culprit shall have
been prosecuted for a grave or less grave felony, and shall not exceed
fifteen days, if for a fight felony.

iii) When the principal penalty imposed is higher than prision correccional,

no subsidiary imprisonment shall be imposed upon the culprit.

iv) 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.

v) 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.

b) When not proper:

i) The principal penalty imposed is more than prision correccional (more

than 6 years);

ii) The principal penalty is not to be served by confinement and is not of

fixed duration (ex. fine not exceeding P200 and censure);

iii) Subsidiary penalty is not expressly stated in the sentence to take the
place of fine in case of insolvency; 

iv) The sentence imposed does not include fine; and

v) If convict has the means to pay the fine.

1) Concepts.

a) The additional penalty for habitual delinquency is included in determining

whether the subsidiary penalty is to be imposed. So, if even if the principal
penalty is less than prision correccional and fine but there is an additional
penalty of 12 years and 1 day because the offender is a habitual
 delinquent, there is no subsidiary imprisonment. 841

b) If the offender has been sentenced to several penalties, the aggregate

penalties should be considered in bulk, not separately. So if the aggregate
penalty exceeds 6 years, there is no subsidiary imprisonment.842

c) On February 14, 2001, SC issued Administrative Circular No. 13-2001

clarifying the imposition of imprisonment for violations of Batas Pambansa
Blg. 22 and subsidiary imprisonment upon the accused found guilty but is
unable to pay the fine he is sentenced to pay. In clarifying the imposition
of subsidiary imprisonment, the Circular states that if the accused is
unable to pay the fine imposed by the trial court, there is no legal obstacle
to the application of the Revised Penal Code provisions on subsidiary
imprisonment.843

d) The Supreme Court has, on several occasions, imposed subsidiary

imprisonment in case of insolvency to pay the fine for violation of special
laws, notwithstanding the absence of such provision in said laws. The
Court imposed subsidiary imprisonment on petitioner who was convicted
of violating B.P. Blg. 22.844

e) Issues in the application of the law

i) May the offender be made to undergo the subsidiary imprisonment if it

is not expressly provided in the judgment? No. 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.

ii) May the convict choose to serve the subsidiary imprisonment in lieu of
paying the fine? No. If the convict has properties, he has no option to
serve the subsidiary imprisonment because subsidiary imprisonment is
applied only in case of insolvency.

iii) Does subsidiary penalty apply to criminal negligence? Yes.

iv) May an accused found guilty of violations of Batas Pambansa Blg. 22

be made to suffer subsidiary imprisonment in case he fails to pay the
fines imposed by the trial court for such violations (notwithstanding that
841
People v. Concepcion, G.R. No. 46652, September 23, 1939.
842
Toledo v. Supt. of the Correctional Institution for Women, G.R. No. L-16311, Jan. 25, 1962.
843
Jao Yu v. People, G.R. No. 134172. September 20, 2004.
844
Diongson v. CA, G.R. No. 114823, December 23, 1999.
 it is a special law and does not contain a provision for subsidiary
imprisonment)? Yes. The provisions on subsidiary imprisonment can
be applied suppletorily to Batas Pambansa Blg. 22 pursuant to Article
10 of the RPC.

v) When after the culprit had served subsidiary penalty, he became

solvent, is he still liable to pay the fine? Yes. Subsidiary imprisonment
does not extinguish the non-payment of fine. Article 39 of the RPC
provides that 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.

vi) Does subsidiary imprisonment violate the constitutional prohibition

imprisonment for non-payment of debt? No. The debt intended to be
covered by the constitutional provisions must be a debt arising
exclusively from actions ex contractu, and was never meant to include
damages arising in actions ex delicto, or fines, penalties, and other
impositions imposed by the courts in criminal proceedings as
punishments for crimes committed against the common or statute
law.845

Application of penalties

1) Rules on application of penalties on specific cases

a) Complex crime – the penalty to be imposed is for the most serious crime;

b) Crime committed is different from that intended

i) If penalty for felony committed is higher than the crime intended – the
penalty of the crime intended to be imposed in maximum period;

ii) If penalty for felony committed is lower than the crime intended – the
penalty for the crime committed to be imposed in maximum period;

iii) If the act committed constitutes an attempt or frustration of another

felony and the law prescribes a higher penalty for either of the latter –
the penalty for attempted or frustrated felony in maximum period.

c) Table of application of Articles 50 to 57

i) Principal of frustrated felony;

845
U.S. v. Cara, 41, Phil 828.
 ii) Principal of attempted felony;
iii) Accomplice in consummated felony;
iv) Accessories in consummated felony;
v) Accomplice in frustrated felony;
vi) Accessory in frustrated felony;
vii) Accomplice in attempted felony;
viii) Accessories in attempted felony.

Consummated Frustrated Attempted

Principal 0 1 2
Accomplice 1 2 3
Accessory 2 3 4

(0 represents the penalty to be imposed on the principal in consummated felony.

Other figures represent the degrees to which the penalty must be lowered.)

d) Penalty for impossible crime – arresto mayor or a fine ranging from 200 to
500 pesos.

Graduation of penalties

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.

The courts, in applying such lower or higher penalty, shall observe

the following graduated scales:

SCALE NO. 1

1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Destierro,
8. Arresto menor,
9. Public censure,
 10. Fine.

SCALE NO. 2

1. Perpetual absolute disqualification,

2. Temporal absolute disqualification
3. Suspension from public office, the right to vote and be voted for,
the right to follow a profession or calling,
4. Public censure,
5. Fine.

1) Scale of penalties in Article 71.

a) Death;
b) Reclusion perpetua;
c) Reclusion temporal;
d) Prision mayor;
e) Prision correccional;
f) Arresto mayor;
g) Destierro;
h) Arresto menor;
i) Public censure; and
j) Fine.

2) Concepts.

a) Has death penalty been abolished?

i) In a case, the Court held that the 1987 constitution does not abolish
death penalty. It merely suspends the imposition of death penalty. A
reading of Section 19(l) of Article III will readily show that there is really
nothing therein which expressly declares the abolition of the death
penalty. The provision merely says that the death penalty shall not be
imposed unless for compelling reasons involving heinous crimes the
Congress hereafter provides for it and, if already imposed, shall be
reduced to reclusion perpetua..846

ii) In 2006, RA 9346 was passed prohibiting the imposition of death

penalty.

iii) In a subsequent case, "death," as utilized in Article 71 of the Revised

846
People v. Munoz, G.R No. 38969-70, February 9, 1989.
 Penal Code, shall no longer form part of the equation in the graduation
of penalties. Thus, in the determination of penalty, the lowering of the
same shall be reckoned not from two degrees lower than death, but
two degrees lower than reclusion perpetua.847

Rules for graduating penalties

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.

847
People v. Bon, G.R. No. 166401, October 30, 2006 (En Banc).
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.

1) First Rule. When the penalty is single and indivisible (reclusion

perpetua) - the penalty next lower is reclusion temporal.

2) Second Rule.

a) When the penalty is composed of two indivisible penalties (reclusion

perpetua to death) – the next penalty lower is reclusion termporal;

b) When the penalty is composed of one or more divisible penalties to

be imposed to their full extent – the penalty immediately following the
divisible penalty of reclusion temporal is prision mayor; and the
penalty immediately following the lesser penalties of prision
correccional to prision mayor is arresto mayor.

3) Third Rule. When the penalty is composed of one or two indivisible

penalties and the maximum period of a divisible penalty – the penalty
next lower in degree is composed of the medium and minimum
periods of the proper divisible penalty and the maximum of that
immediately following in graduated scale. (Example is the penalty for
murder – reclusion temporal in its maximum period to death);

2) Fourth Rule. When the penalty is composed of several periods – the

penalty next lower shall be composed of the period immediately
following the minimum prescribed and of the two next following. The
several periods must correspond to different divisible penalties.

a) When the penalty has two periods – the penalty next lower is formed
by two periods to be taken from either the penalty prescribed, if
possible, or from the period of next lower divisible penalty;

b) When the penalty has one period, the penalty next lower in degree
shall be that period next following the given penalty. For example, the
penalty immediately lower to prision mayor in its maximum period is
prision mayor in its medium period.
 3) Fifth Rule. When the law prescribes a penalty for a crime in some
manner not specially provided for in the foregoing rules – the court by
analogy shall impose the corresponding penalties upon those guilty
as principals of the frustrated felony, or of attempt to commit the
same, and upon accomplices and accessories.

4) Simplified rules for Paragraphs 4 and 5 of Article 61:

a) If he penalty prescribed consists in three periods, the penalty next

lower in degree is the penalty consisting in the three periods down
the scale;
b) If the penalty prescribed consists of two periods, the penalty next
lower in degree is the penalty consisting in two periods down in the
scale;
c) If the penalty prescribed consists in only one period, the penalty next
lower in degree is the next period down in the scale.

Rules for application of penalties containing three periods

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:

1. When there are neither aggravating nor mitigating circumstances,

they shall impose the penalty prescribed by law in its medium
period.

2. When only a mitigating circumstances is present in the

commission of the act, they shall impose the penalty in its minimum
period.

3. When an aggravating circumstance is present in the commission

of the act, they shall impose the penalty in its maximum period.

4. When both mitigating and aggravating circumstances are present,

the court shall reasonably offset those of one class against the other
according to their relative weight.
5. When there are two or more mitigating circumstances and no
aggravating circumstances are present, the court shall impose the
penalty next lower to that prescribed by law, in the period that it may
deem applicable, according to the number and nature of such
circumstances.

6. Whatever may be the number and nature of the aggravating

circumstances, the courts shall not impose a greater penalty than
that prescribed by law, in its maximum period.

7. Within the limits of each period, the court shall determine the
extent of the penalty according to the number and nature of the
aggravating and mitigating circumstances and the greater and lesser
extent of the evil produced by the crime.

1) The rules apply only when the prescribed penalty is reclusion temporal,
prision mayor, prision coreccional, arresto mayor, arresto menor, or
prision correccional to reclusion temporal because they contain three
periods.

2) Rules to be observed:
a) No aggravating and no mitigating – medium period;
b) Only a mitigating – minimum period;
c) Only an aggravating – maximum period;
d) When there are aggravating and mitigating – offsetting of
circumstances will be made;
e) Two or more mitigating and no aggravating – penalty next lower
depending on the number and nature of circumstances;
f) No penalty greater than the maximum period of the penalty
prescribed by law shall be imposed, no matter how may aggravating
circumstances present;
g) The court can determine the extent of the penalty within the limits of
each period, according to the number and nature of the aggravating
and mitigating circumstances and the greater or lesser extent of the
evil produced by the crime.
Rules on the imposition of fines (Article 66)

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.

1) The court may fix any amount within the limits set by law.
2) The court also must consider the mitigating and aggravating circumstances
and the wealth or means of the offender.

Successive Service of Sentences or the Three-Fold Rule (Article 70)

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.

1) Under Article 70, when the offender has to serve two or three penalties,
he shall serve them simultaneously if the nature of the penalties so
permit. Otherwise, he has to serve them successively in the order of their
respective severity. The maximum duration of the sentence should not be
more than three times the most severe penalty. However, the maximum
period cannot exceed 40 years.

2) This article is to be taken into account not in the imposition of the penalty
but in connection with the service of the sentence imposed 848. Article 70
speaks of "service" of sentence, "duration" of penalty and penalty "to be
inflicted". Nowhere in the article is anything mentioned about the
"imposition of penalty". It merely provides that the prisoner cannot be
made to serve more than three times the most severe of these penalties
the maximum of which is forty years.849

3) The correct rule is to multiply the highest principal penalty by 3 and the
result will be the aggregate principal penalty which the prisoner has to
serve plus the payment of all the indemnities (fine) which he has been
sentenced to pay. This does not include subsidiary penalty. So, if the
848
People v. Escares, 102 Phil. 677 (1957).
849
Mejorada v. Sandiganbayan, G.R. No. L51065-72, June 30, 1987.
 offender after serving the three-fold maximum penalty cannot pay the
fine, he has still serve the subsidiary imprisonment. 850 

4) The three-fold rule applies although the penalties were imposed for
different crimes at different times and under separate information. 851’

5) Court must impose all the penalties for all the crimes of which the
accused is found guilty, but in the service of the same,
they shall not exceed three times the most severe and shall not
exceed 40 years.852

6) The rule does not apply when the convict two or three sentences. There
must be at least four sentences.853

7) Material accumulation system provides that all the penalties for all the
violations were imposed even if they reached beyond the natural span of
human life. Juridical accumulation system provides that the convict must
serve sentence to not more than three-fold the length of time
corresponding to the most severe and in no case to exceed 40
years. The latter is adopted in the Philippines.

8) The rule is inapplicable when the accused absconds to become a fugitive

from justice and makes a mockery of the judicial process, designed to
protect society in general and particular members thereof directly
offended.854 

Indeterminate Sentence Law (Act 4103)

1) Nature.

a) Indeterminate sentence is a sentence with a minimum term and a

maximum benefit of a guilty person, who is not disqualified therefore,
when the maximum penalty of imprisonment exceeds one year.  It

850
Bagtas v. Director of Prisons, G.R. No. L-3215, October 6, 1949.
851
Gregorio, supra at page 277 citing Torres v. Superintendent, 58 Phil. 847.
852
People v. Odencio, et al., G.R. No. L-31961, January 9, 1979.
853
Reyes, supra. at page 768.
854
Communications Insurance Company, Inc. v. Villaluz, et al., G.R. No. L-36721-27, August 29,
1980.
 applies to both violations of the Revised Penal Code and special penal
laws.

2) Purposes.

a) To uplift and redeem valuable human material and prevent unnecessary

and excessive deprivation of personal liberty and economic usefulness.
(People v. Onate, 78 SCRA 43) 
b) As a rule, it is intended to favor the accused particularly to shorten his
term of imprisonment, depending upon his behavior and his physical,
mental, and moral record as a prisoner to be determined by the Board of
Indeterminate Sentence.

3) Coverage.

a) Revised Penal Code

a) The court shall sentence the accused to an indeterminate

sentence the maximum term of which shall be that which, in view of
the attending circumstances, could be properly imposed under the
Code, and the minimum term which shall be within the range of the
penalty next lower in degree to that prescribed by the Code for the
offense. The maximum is the penalty imposed as provided by law,
depending upon the attending circumstances.  The minimum is one
degree next lower to the penalty prescribed for the offense.  The
latter is determined without considering the attending circumstances
to the penalty prescribed, and is left to the discretion of the court. 855

b) Example: Homicide with one mitigating circumstance.  The maximum

penalty prescribed by law is Reclusion temporal.  Since there is
one mitigating and no aggravating it will be in the minimum or
reclusion temporal minimum period.  On the other hand, the minimum
is one degree next lower to reclusion temporal without considering
the mitigating circumstance and that will be prision mayor.  The range
of prision mayor will depend upon the discretion of the court. 
Therefore, the indeterminate penalty is a minimum of prision mayor
(within the range fixed by the court) to a maximum of reclusion
temporal minimum period.

b) Special Penal Law.

a) The court shall sentence the accused to an indeterminate sentence,

855
People v. Yco, G.R. No. 6545, July 27, 1954.
 the MAXIMUM TERM of which shall not exceed the maximum fixed
by said law and the minimum shall not be less than the MINIMUM
TERM prescribed by the same. 

b) Example:  Penalty is one year to 5 years.  Indeterminate sentence

may be one year to 3 years or 3 years to 5 years.

2) Exceptions.

a) Those convicted of offenses punished with death or life imprisonment.

b) Those convicted of treason, conspiracy or proposal to commit treason,
misprision of treason, rebellion, sedition or espionage, or piracy.
c) Those who are habitual delinquents. (Recidivists are entitled to an
indeterminate sentence.)856
d) Those who shall have escaped from confinement or evaded sentence.
(A minor who escaped from confinement in the reformatory is entitled to
the benefits of the law because confinement is not considered
imprisonment.)857
e) Those who having been granted conditional pardon by the President
shall have violated the terms thereof.
f) Those whose maximum period of imprisonment does not exceed one
year. (The application of which is based upon the penalty actually
imposed in accordance with law.)858
g) Those already serving final judgment upon the approval of this Act
(December 5, 1933).
h) Those sentenced to the penalty of destierro or suspension.

3) Concepts.

a) Whenever any prisoner who shall have served the minimum penalty
imposed on him, said Board of Indeterminate Sentence may, in its
discretion, and in accordance with the rules and regulations adopted
thereunder, authorize the release of such prisoner on parole.  If during
the period of surveillance, such parolee shall show himself to be a law-
abiding citizen and shall not violate any of the laws of the Philippines, the
Board may issue a final certificate of release in his favor.  Whenever
any prisoner released on parole shall, during the period of surveillance,
violate any of the conditions of his parole, the Board may issue an order
for his re-arrest and shall serve the remaining unexpired portion of the
maximum sentence.

856
People v. Jaranilla, G.R. No. 28547, February 22, 1974.
857
People v. Perez, 44 OG 3884.
858
People v. Hernandez, G.R. No. L-7616, May 10, 1955.
 b) The application of the Indeterminate Sentence Law is mandatory if the
imprisonment would exceed one year.  It would be favorable to the
accused.859

c) The application of the Indeterminate Sentence Law is based upon the

penalty actually imposed in accordance with law and not upon that which
may be imposed in the discretion of the court. 860

d) How to compute:

a) The RPC provides for an initial penalty as a general prescription for

the felonies defined therein which consists of a range of period of
time. This is what is referred to as the "prescribed penalty." For
instance, under Article 249 of the RPC, the prescribed penalty for
homicide is reclusión temporal which ranges from 12 years and 1
day to 20 years of imprisonment. Further, the Code provides for
attending or modifying circumstances which when present in the
commission of a felony affects the computation of the penalty to be
imposed on a convict. This penalty, as thus modified, is referred to
as the "imposable penalty." In the case of homicide which is
committed with one ordinary aggravating circumstance and no
mitigating circumstances, the imposable penalty under the RPC
shall be the prescribed penalty in its maximum period. From this
imposable penalty, the court chooses a single fixed penalty (also
called a straight penalty) which is the "penalty actually imposed" on
a convict, i.e., the prison term he has to serve.

b) Concretely, in U.S. v. Saadlucap, a pre-ISL case, the accused was

found guilty of homicide with a prescribed penalty of reclusión
temporal. Since there was one ordinary aggravating circumstance
and no mitigating circumstances in this case, the imposable penalty
is reclusión temporal in its maximum period, i.e., from 17 years, 4
months and 1 day to 20 years. The court then had the discretion to
impose any prison term provided it is within said period, so that the
penalty actually imposed on the accused was set at 17 years, 4
months and 1 day of reclusión temporal, which is a single fixed
penalty, with no minimum or maximum term.

c) With the passage of the ISL, the law created a prison term which
consists of a minimum and maximum term called the indeterminate
sentence. Thus, the maximum term is that which, in view of the

859
People v. Judge German Lee, Jr., G.R. No. 86859, September 12, 1984.
860
People  v. Dimalanta, 92 Phil., 239.
 attending circumstances, could be properly imposed under the RPC.
In other words, the penalty actually imposed under the pre-ISL
regime became the maximum term under the ISL regime. Upon the
other hand, the minimum term shall be within the range of the
penalty next lower to the prescribed penalty. To illustrate, if the case
of Saadlucap was decided under the ISL regime, then the maximum
term would be 17 years, 4 months and 1 day of reclusión
temporal and the minimum term could be anywhere within the range
of prisión mayor (6 years and 1 day to 12 years) which is the penalty
next lower to reclusión temporal. Consequently, an indeterminate
sentence of 10 years of prisión mayor as minimum to 17 years, 4
months and 1 day of reclusión temporal as maximum could have
possibly been imposed. If we use the formula as proposed by the
dissent, i.e., to compute the minimum term based on the maximum
term after the attending or modifying circumstances are considered,
the basis for computing the minimum term, under this interpretation,
is the imposable penalty as hereinabove defined. This interpretation
is at odds with Section 1 of the ISL which clearly states that the
minimum of the indeterminate sentence shall be "within the range of
the penalty next lower to that prescribed by the Code for the
offense." Consequently, the basis for fixing the minimum term is the
prescribed penalty, and not the imposable penalty. In People v.
Gonzales, the Court held that the minimum term must be based on
the penalty prescribed by the Code for the offense "without regard to
circumstances modifying criminal liability." The Gonzales’ ruling that
the minimum term must be based on the prescribed penalty "without
regard to circumstances modifying criminal liability" is only
a restatement of Section 1 of the ISL that the minimum term shall be
taken from within the range of the penalty next lower to the
prescribed penalty (and from nowhere else). 861

861
People v. Temporada, G.R. No. 173473, December 17, 2008 (en banc).
Execution and service of sentence

Article 78. When and how a penalty is to be executed. - No penalty

shall be executed except by virtue of a final judgment.

A penalty shall not be executed in any other form than that

prescribed by law, nor with any other circumstances or incidents than
those expressly authorized thereby.

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

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

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

1) When a penalty to be executed.

a) The judgment must be final before it can be executed. The penalty can
be executed in the form prescribed by law or with circumstances or
incidents expressly authorized by law.
b) Thus, if the judgement is silent as regards subsidiary imprisonment in
case of insolvency, the convict cannot be required to suffer the same in
case of inability to pay the fine imposed on him. 862

2) Suspension of Sentence, when allowed.

a) Insanity/Imbecility
i) When the convict becomes insane or imbecile after the final

862
People v. Jarumayan, 52 O.G. 249.
 sentence has been pronounced, the execution of the sentence is
suspended as regards personal penalty.
ii) Upon his recovery, his sentence shall be executed unless the
penalty has already prescribed.
iii) The same rule applies if the convict becomes insane while serving
the sentence.
iv) Only the execution of personal penalty is suspended. The payment
of civil liability is not suspended.

b) Minor (Juvenile) delinquency (RA 9344).

i) The minor delinquent described in Article 80 of the Revised Penal

Code has been renamed “child in conflict of with the law” under RA
9344, otherwise known as the Juvenile Justice and Delinquent Act
of 2006. Under the law, a child in conflict with the law refers to a
child who is alleged as, accused of, or adjudged as, having
committed an offense under Philippine laws.

ii) A child in conflict with the law is a person who at the time of the
commission of the offense is below eighteen (18) years old but not
less than fifteen (15) years and one (1) day old. 863 Under RA 9344,
a minor who is above fifteen (15) years but below eighteen (18)
years of age shall likewise be exempt from criminal liability unless
he/she has acted with discernment. 864 Discernment has been
defined as the mental capacity of a minor to fully grasp the
consequences of his act, known and determined by taking into
account all the facts and circumstances presented by the records in
each case.865 The surrounding circumstances must demonstrate
that the minor knew what he was doing and that it was wrong. 866
Such circumstance includes the gruesome nature of the crime and
the minor’s cunning and shrewdness. 867

iii) Section 38 of RA No. 9344 provides that when the child below 18
years of age who committed a crime and was found guilty, the court
shall place the child in conflict with the law under suspended
sentence even if such child has reached 18 years or more at the
time of judgment. The suspension of sentence is made without the
need of application. The court, however, is mandated to determine
and ascertain any civil liability which may have resulted from the
863
A.M. No. 02-1-18-SC, November 24, 2009.
864
Section 6.
865
People v. Jacinto, G.R. No. 182236, March 16, 2011.
866
Remiendo v. People, G.R. No. 184874, October 9, 2009.
867
Llave v. People, G.R. No. 166040, April 26, 2006.
 offense committed.

iv) Suspended sentence is the holding in abeyance of the service of

the sentence imposed by the court upon a finding of guilt of the
child in conflict with the law, whereby the child undergoes
rehabilitation within a fixed period under such terms and conditions
as may be ordered by the court.868

v) The automatic suspension of sentence under Section 38 applies

even if the minor therein was convicted of reclusion perpetua. The
provision makes no distinction as to the nature of the offense
committed by the child in conflict with the law (unlike PD 603). In
construing Sec. 38 of R.A. No. 9344, the Court is guided by the
basic principle of statutory construction that when the law does not
distinguish, we should not distinguish. Since R.A. No. 9344 does
not distinguish between a minor who has been convicted of a
capital offense and another who has been convicted of a lesser
offense, the Court should also not distinguish and should apply the
automatic suspension of sentence to a child in conflict with the law
who has been found guilty of a heinous crime.869

vi) Further, although suspension of sentence still applies even if the

child in conflict with the law is already 18 years of age or more at
the time the judgment of conviction was rendered, however, such
suspension is only until the minor reaches the maximum age of 21
as provided under Section 40. However, in order to give meaning to
the legislative intent of the law, the promotion of the welfare of a
child in conflict with the law should extend even to one who has
exceeded the age limit of twenty-one (21) years, so long as he/she
committed the crime when he/she was still a child. The offender
shall be entitled to the right to restoration, rehabilitation and
reintegration in accordance with the Act in order that he/she is
given the chance to live a normal life and become a productive
member of the community. The age of the child in conflict with the
law at the time of the promulgation of the judgment of conviction is
not material. What matters is that the offender committed the
offense when he/she was still of tender age.870

vii) Upon conviction and upon order of the court, the minor offender
may be made to serve his/her sentence in an agricultural camp and
other training facilities that may be established, maintained,
868
Sec. 4, A.M. No. 02-1-18-SC, November 24, 2009.
869
People v. Sarcia, G.R. No. 169641, September 10, 2009.
870
People v. Jacinto, supra.; People v. Ancajas, et al., G.R. No. 199270, October 21, 2015.
 supervised and controlled by the BUCOR, in coordination with the
DSWD, in lieu of confinement in a regular penal institution. 871

Probation Law (PD 968, as amended by RA 10707).

1) Nature.

a) Probation is a disposition, under which a defendant after conviction and

sentence, is released subject to the conditions imposed by the court and
to the supervision of a probation officer.

b) Probation is not a right of an accused but a mere privilege, an act of grace

and clemency or immunity conferred by the state, which is granted to a
deserving defendant who thereby escapes the extreme rigors of the
penalty imposed by law for the offense of which he was convicted. 872 As a
special privilege granted by to a penitent qualified offender, it should be
availed of at the first opportunity by convicts who are willing to be
reformed and rehabilitated, who manifest spontaneity, contrition and
remorse.873

c) The primary consideration in granting probation is the reformation of the

probationer. That is why, under the law, a post sentence investigation,
which is mandatory, has to be conducted before a person can be granted
probation to help the court in determining whether the ends of justice and
the best interest of the public as well as the defendant will be served by
the granting of the probation.874

2) Purposes.

a) To promote the correction and rehabilitation by providing the correction

and rehabilitation by providing the offender with individualized treatment;

b) To provide an opportunity for the reformation of an offender which might

be less probable if he were to serve a prison sentence; and
c) To prevent the commission of offenses.

3) Exceptions.

a) Sentenced to serve a maximum term of imprisonment of more than six (6)

years;
871
Sec. 51; People v. Deliola, G.R. No. 200157, October 31, 2016.
872
Santos  v. Court of Appeals, 377 Phil. 642, (1999).
873
Francisco v. Court of Appeals, G.R. No. 108747, April 6, 1995.
874
Salgado v. Court of Appeals, G.R. No. 89606, August 30, 1990.
 b) Convicted of any crime against the national security; 875

c) Who have previously been convicted by final judgment of an offense

punished by imprisonment of more than six (6) months and one (1) day
and/or a fine of more than one thousand pesos (P1,000.00);

d) Who have been once on probation under the provisions of this Decree;
and

e) Who are already serving sentence at the time the substantive provisions
of this Decree became applicable pursuant to Section 33 hereof.

2) When to file.

a) As a rule, the application for probation within a period to appeal, i.e. within
15 days after the promulgation of sentence.

3) Application barred if appeal is made, exception.

a) No application for probation shall be entertained or granted if the

defendant has perfected the appeal from conviction.

b) However, when the judgement of conviction imposing a non-probationable

penalty is appealed or reviewed, and such judgment is modified through
imposition of probationable penalty, the defendant shall be allowed to
apply for probation based on the modified decision before it becomes final.
However, should he seek a review of the modified decision which already
imposes a probationable penalty, he loses the benefit of probation.

4) Where to file.

a) The application for probation shall be filed in the trial court where the
judgement of conviction imposing a non-probationable penalty was
rendered, or in the trial court where such case has been re-raffled.

5) Where there are several defendants.

a) In a case several defendants where some have taken further appeal, the
other defendants may apply for probation by submitting a written
875
Title One: (1) Treason; (2) Conspiracy and proposal to commit treason; (3) Misprision of
treason; (4) Espionage; (5) Inciting to war or giving motives for reprisals; (6) Violation of
neutrality; (7) Correspondence with hostile country; (8) Flight to enemy’s country; (9) Piracy and
mutiny; and (10) Qualified piracy.
 application attaching thereto a certified copy of the judgment of conviction.

6) Effect of filing of application on the right to avail of probation.

a) The filing of application shall be deemed a waiver of the right to appeal.

7) What may be the subject of application for probation.

a) Probation may be granted whether the sentence imposes a term of

imprisonment or a fine only.

8) Status of order granting or denying probation.

a) The order of probation is not appealable.

9) Effect of filing of application based on modified decision.

a) The trial court shall suspend the execution of sentence imposed in the judgment.

10) Procedure to be followed by the accused after the application is granted.

a) Present himself to the probation officer within 72 hours from receipt of

probation order;

b) Report himself to the probation officer at least once a month during the
period of probation;

c) The court, after considering the nature and seriousness of the violations of
probation (if any), may issue a warrant for the arrest of the probationer. 
He is then brought to the court immediately for hearing, which is summary;

d) If violation is established, the court may revoke or continue the probation

and modify the conditions thereof;

e) If revoked, the probationer shall be ordered to serve the sentence

originally imposed and shall commit the probationer.  The order of the
court is not appealable.

11) Period of probation.

a) The period of probation of a defendant sentenced to a term of

imprisonment of not more than one year shall not exceed two years, and
in all other cases, said period shall not exceed six years.
 b) When the sentence imposes a fine only and the offender is made to serve
subsidiary imprisonment in case of insolvency, the period of probation
shall not be less than nor to be more than twice the total number of days
of subsidiary imprisonment as computed at the rate established, in Article
thirty-nine of the Revised Penal Code, as amended.

12) Effects after accused served the probation.

a) After the period of probation and upon consideration of the report and
recommendation of the probation officer, the court may order the final
discharge of the probationer upon finding that he has fulfilled the terms
and conditions of his probation and thereupon the case is deemed
terminated.

b) The final discharge of probationer shall operate to restore to him all civil
rights lost or suspended as a result of his conviction and to totally
extinguish his criminal liability as to the offense for which probation was
granted.

13) Concepts.

a) Except for the reasons specified by the law, a trial court should not deny a
petition for probation, especially when the probation officer has favorably
recommended the grant of probation. The denial must be based on the
fact that the accused falls within any one of the disqualification. 876
Although an order granting or denying probation is not appealable, an
outright denial by the court is a nullity which is correctible by certiorari.877 

b) A penalty of six years and one day is not entitled to the benefits of the law.
In case of multiple prison terms, the totality of the prison terms should not
be taken into account for the purposes of determining the eligibility of the
accused for the probation.  The law uses the word “maximum term”, and
not total term.  It is enough that each of the prison term does not exceed 6
years.  The number of offenses is immaterial for as long as the penalties
imposed, when taken individually and separately, are within the
probationable period.878

c) Even if at the time of conviction the accused was qualified for probation
but at the time of his application for probation, he is no longer qualified, he
is not entitled to probation.  The qualification for probation must be

876
Balleta v. Leviste, 92 SCRA 719.
877
De Luna v. Hon. Medina, CA 78 OG 599.
878
Ibid.
 determined as of the time the application is filed in court. 879

d) No application for probation shall be entertained or granted if the

defendant has perfected an appeal from the judgment of conviction. In
other words, the filing of the application for probation is considered as a
waiver of the right of the accused to appeal. The perfection of an appeal is
a relinquishment of the alternative remedy of availing of the Probation
Law, the purpose of which is to prevent speculation or opportunism on the
part of an accused who, although already eligible, did not at once apply for
probation, but did so only after failing in his appeal. 880

e) The provisions of the Probation Law should be liberally construed in order

that the objective should be realized and achieved. 881 

f) In probation, the imposition of the sentence is suspended and likewise its

accessory penalties are likewise suspended.  An order placing the
defendant on probation is not a sentence but is rather in effect a
suspension of the imposition of the sentence.  It is not a final judgment but
is rather an interlocutory judgment in the nature of a conditional order
placing the convicted defendant under the supervision of the court for his
reformation.882

g) The accessory penalties 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, attendant to the penalty of arresto mayor in its
maximum period to prision correccional in its minimum period imposed
upon the accused were similarly suspended upon the grant of probation.
Thus, during the period of probation, the probationer is not disqualified
from running for a public office because the accessory penalty of
suspension from public office is put on hold for the duration of the
probation.883

h) Clearly, the period within which a person is under probation cannot be

equated with service of the sentence adjudged. Sec. 4 of the Probation
Law specifically provides that the grant of probation suspends the
execution of the sentence. During the period of probation, the probationer
does not serve the penalty imposed upon him by the court but is merely
required to comply with all the conditions prescribed in the probation

879
Bernardo v. Judge Balagot, G.R. No. 86561, November 10, 1992
880
Lagrosa  v. People, G.R. No. 152044, July 3, 2003.
881
Santos v. Hon. Paňo, G.R. No. L-55130, January 17, 1983.
882
Baclayon v. Hon. Mutia, 129 SCRA 148.
883
Moreno v. COMELEC, G.R. No. 168550, August 10, 2006 (En Banc).
 order.884

i) The accused was charged with frustrated homicide. He was convicted by

the trial court. On appeal invoking self-defense and praying for a lesser
crime that is attempted homicide, the CA affirmed the conviction but
deleted the award for lost income. A petition was filed with the SC. One of
the issues is whether of not the accused is entitled to probation on remand
of the case to trial court assuming he was convicted by a lower crime.
Ordinarily, the accused would no longer be entitled to apply for probation,
he having appealed from the judgment of the RTC convicting him for
frustrated homicide. But, the Court finds him guilty only of the lesser crime
of attempted homicide and holds that the maximum of the penalty
imposed on him should be lowered to imprisonment of four months
of arresto mayor, as minimum, to two years and four months of prision
correccional, as maximum. With this new penalty, it would be but fair to
allow him the right to apply for probation upon remand of the case to the
RTC. Some in the Court disagrees. They contend that probation is a mere
privilege granted by the state only to qualified convicted offenders. Section
4 of the probation law (PD 968) provides: That no application for probation
shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction. Since the accused appealed his
conviction for frustrated homicide, he should be deemed permanently
disqualified from applying for probation. But, firstly, while it is true that
probation is a mere privilege, the point is not that he has the right to such
privilege; he certainly does not have. What he has is the right to apply for
that privilege. The Court finds that his maximum jail term should only be 2
years and 4 months. If the Court allows him to apply for probation because
of the lowered penalty, it is still up to the trial judge to decide whether or
not to grant him the privilege of probation, taking into account the full
circumstances of his case. Secondly, it is true that under the probation law
the accused who appeals from the judgment of conviction is disqualified
from availing himself of the benefits of probation. But, as it happens, two
judgments of conviction have been meted out to him: one, a conviction for
frustrated homicide by the regional trial court, now set aside; and, two, a
conviction for attempted homicide by the Supreme Court. If the Court
chooses to go by the dissenting opinions hard position, it will apply the
probation law on the accused based on the trial courts annulled judgment
against him. He will not be entitled to probation because of the severe
penalty that such judgment imposed on him. More, the Supreme Courts
judgment of conviction for a lesser offense and a lighter penalty will also
have to bend over to the trial courts judgment even if this has been found
in error. And, worse, he will now also be made to pay for the trial courts
erroneous judgment with the forfeiture of his right to apply for
884
Ibid.
 probation. Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw (the
horse errs, the carabao gets the whip). Where is justice there?885

j) The conditions listed under Section 10 of the Probation Law are not
exclusive. Courts are allowed to impose practically any term it chooses,
the only limitation being that it does not jeopardize the constitutional rights
of the accused. Courts may impose conditions with the end that these
conditions would help the probationer develop into a law-abiding
individual.886

14) Distinction between suspension of sentence and suspension of

promulgation of sentence.

a) Under the Probation Law what is suspended is the execution of the

sentence, while RA 9344, what is suspended is the pronouncement of the
sentence upon request of the youthful offender.  The suspension of the
sentence, however, has no bearing on the civil liability, which is separate
and distinct from the criminal action. 887 Although the execution of sentence
is suspended by the grant of probation, it does not follow that the civil
liability of the offender, if any, is extinguished. 888

b) If the accused appeals the civil liability, he can still apply for probation.
Suspension of sentence is only true with criminal liability. Probation does
not extinguish civil liability.889

Chapter Thirteen
EXTINCTION OF CRIMINAL LIABILITY

Ways of extinction of criminal liability

Article 89. How criminal liability is totally extinguished. - Criminal

liability is totally extinguished:

1. By the death of the convict, as to the personal penalties and as to

pecuniary penalties, liability therefor is extinguished only when the
death of the offender occurs before final judgment.

885
Colinares v. People, G.R. No. 182748, December 13, 2011 (En Banc). This decision paved the
amendment of the Probation Law in 2015.
886
Baclayon v. Mutia, G.R. No.  59298, April 30, 1984.
887
Budlong v. Apalisok, G.R. No. 60151, June 24, 1983.
888
Salgado v, Court of Appeals, G.R. No. 89606, August 30, 1990.
889
Budlong v. Apalisok, supra.; Salvan vs. People, G.R. No. 153845, September 11, 2003.
 2. By service of the sentence;

3. By amnesty, which completely extinguishes the penalty and all its

effects;

4. By absolute pardon;

5. By prescription of the crime;

6. By prescription of the penalty;

7. By the marriage of the offended woman, as provided in Article 344

of this Code.

Article 90. Prescription of crime. - Crimes punishable by death,

reclusion perpetua or reclusion temporal shall prescribe in twenty years.

Crimes punishable by other afflictive penalties shall prescribe in

fifteen years.

Those punishable by a correctional penalty shall prescribe in ten

years; with the exception of those punishable by arresto mayor, which
shall prescribe in five years.

The crime of libel or other similar offenses shall prescribe in one

year.

The crime of oral defamation and slander by deed shall prescribe in

six months.

Light offenses prescribe in two months.

When the penalty fixed by law is a compound one, the highest

penalty shall be made the basis of the application of the rules contained in
the first, second and third paragraphs of this article. (As amended by RA
4661, approved June 19, 1966).

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 terminate without the
accused being convicted or acquitted, or are unjustifiably stopped for any
reason not imputable to him.

The term of prescription shall not run when the offender is absent
from the Philippine Archipelago.

Article 92. When and how penalties prescribe. - The penalties

imposed by final sentence prescribe as follows:

1. Death and reclusion perpetua, in twenty years;

2. Other afflictive penalties, in fifteen years;

3. Correctional penalties, in ten years; with the exception of the

penalty of arresto mayor, which prescribes in five years;

4. Light penalties, in one year.

Article 93. Computation of the prescription of penalties. - The period

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

1) Total extinction

a) Death;
b) Service of sentence;
c) Amnesty;
d) Absolute pardon;
e) Prescription of crime;
f) Prescription of penalty; and
g) Marriage.

2) Partial extinction.

a) Conditional pardon;890
b) Commutation of sentence;
890
The discussion on conditional pardon is found under the preceding sub-title on Pardon.
 c) For good conduct allowances.
d) Other causes of partial extinction (not listed in Article 94) are parole and
probation.

Total extinction of criminal liability

a) Death

i) Concept.

(1) Criminal liability is totally extinguished, inter alia, by death of the

convict, as to the personal penalties; and as to pecuniary penalties,
liability therefor is extinguished only when the death of the offender
occurs before final judgment.891

ii) Guidelines to be observed.

(1) Death of the accused pending appeal of his conviction extinguishes

his criminal liability as well as the civil liability based solely
thereon. As opined by Justice Regalado, in this regard, the death of
the accused prior to final judgment terminates his criminal liability
and only the civil liability directly arising from and based solely on
the offense committed, i.e., civil liability ex delicto in senso
strictiore.

(2) The claim for civil liability survives notwithstanding the death of the
accused, if the same may also be predicated on a source of
obligation other than delict. Article 1157 of the Civil Code
enumerates these other sources of obligation from which the civil
liability may arise as a result of the same act or omission:

i) Law
ii) Contracts
iii) Quasi-contracts
iv) x x x  x x x
v) Quasi-delicts

(3) Where the civil liability survives, as explained in Number (2) above,
an action for recovery therefor may be pursued but only by way of
filing a separate civil action and subject to Section 1, Rule 111 of
the 1985 Rules on Criminal Procedure as amended. This separate
civil action may be enforced either against the
executor/administrator or the estate of the accused, depending on
891
Article 89, RPC.
 the source of obligation upon which the same is based as explained
above.

(4) Finally, the private offended party need not fear a forfeiture of his
right to file this separate civil action by prescription, in cases where
during the prosecution of the criminal action and prior to its
extinction, the private-offended party instituted together therewith
the civil action. In such case, the statute of limitations on the civil
liability is deemed interrupted during the pendency of the criminal
case, conformably with [the] provisions of Article 1155 of the Civil
Code, that should thereby avoid any apprehension on a possible
privation of right by prescription.892

(a) It is clear that the death of the accused pending appeal of his
conviction extinguishes his criminal liability, as well as the civil
liability ex delicto. The rationale, therefore, is that the criminal
action is extinguished inasmuch as there is no longer a
defendant to stand as the accused, the civil action instituted
therein for recovery of civil liability ex delicto is ipso
facto extinguished, grounded as it is on the criminal case. 893

(b) Whether or not appellant was guilty of the crime charged had
become irrelevant because even assuming that appellant did
incur criminal liability and civil liability ex delicto, these were
totally extinguished by his death, following the provisions of
Article 89(1) of the Revised Penal Code. 894

(c) Except when the claim for civil liability survives the death of the
accused, if the same may also be predicated on a source of
obligation other than delict, such as law, contract, quasi-
contracts and quasi-delicts. Examples of cases where civil
liability survives the death of the accused:

(i) In case of physical injuries. Under Art. 33 of the Civil Code, it

provides that a civil action for damages may be filed
separately and distinctly from the criminal action.

(ii) In the crime of estafa, when the civil liability arises from a
civil contract as in the contract of sale.

892
People v. Bayotas, G.R. No. 102007, September 2, 1994; People v. Culas, G.R. No. 211166,
June 5, 2017.
893
People v. Romero, 365 Phil. 531 (1999).
894
People v. Bayotas, supra.
 (iii) Death of the offended party does not extinguish the criminal
liability of the offender.

Service of sentence

1) Crime is a debt incurred by the offender as a consequence of this wrongful

act and the penalty is but the amount of his debt. When the payment is made,
the debt is extinguished.895

a) Concepts

i) The “conviction and sentence” clause of the statutory definition clearly

signifies that probation affects only the criminal aspect of the case.896
Novation is not a mode of extinguishing criminal liability under the
penal laws of the country. Only the. State may validly waive the
criminal action against an accused. Novation is relevant only to
determine if the parties have meanwhile altered the nature of the
obligation prior to the commencement of the criminal prosecution in
order to prevent the incipient criminal liability of the accused. 897

ii) Novation is not a ground under the law to extinguish criminal liability.
Article 89 (on total extinguishment) and Article 94 (on partial
extinguishment) of the Revised Penal Code list down the various
grounds for the extinguishment of criminal liability. Not being included
in the list, novation is limited in its effect only to the civil aspect of the
liability, and, for that reason, is not an efficient defense in estafa. This
is because only the State may validly waive the criminal action against
an accused.898 The role of novation may only be either to prevent the
rise of criminal liability, or to cast doubt on the true nature of the
original basic transaction, whether or not it was such that the breach of
the obligation would not give rise to penal responsibility, as when
money loaned is made to appear as a deposit, or other similar disguise
is resorted to.899

(1) The novation theory may perhaps apply prior to the filing of the
criminal information in court by the state prosecutors because up to
that time the original trust relation may be converted by the parties
into an ordinary creditor-debtor situation, thereby placing the
complainant in estoppel to insist on the original trust. But after the
895
Reyes, supra.
896
Budlong v. Apalisok, supra.
897
Degaňos v. People. G.R. No. 162826, October 14, 2013.
898
Article 2034, New Civil Code of the Philippines.
899
People v. Nery, No. L-19567, February 5, 1964.  
 justice authorities have taken cognizance of the crime and instituted
action in court, the offended party may no longer divest the
prosecution of its power to exact the criminal liability, as
distinguished from the civil. The crime being an offense against the
state, only the latter can renounce it.900

Amnesty and pardon

1) Amnesty

a) Nature of amnesty.

i) It is an act of sovereign power granting oblivion or a general pardon for

a past offense, and is usually exerted in behalf of certain classes or
persons, who are subject to trial but have not yet been convicted. 901

b) Concepts.

i) Amnesty commonly denotes a general pardon to rebels for their

treason or other high political offenses, or the forgiveness which one
sovereign grants to the subjects of another, who have offended, by
some breach, the law of nations. Amnesty looks backward, and
abolishes and puts into oblivion, the offense itself; it so overlooks and
obliterates the offense with which he is charged, that the person
released by amnesty stands before the law precisely as though he had
committed no offense.902

ii) Amnesty presupposes the commission of a crime, and when an

accused maintains that he has not committed a crime, he cannot have
any use for amnesty. Where an amnesty proclamation imposes certain
conditions, as in this case, it is incumbent upon the accused to prove
the existence of such conditions. The invocation of amnesty is in the
nature of a plea of confession and avoidance, which means that the
pleader admits the allegations against him but disclaims liability
therefor on account of intervening facts which, if proved, would being
the crime charged within the scope of the amnesty proclamation.903 

(1) Amnesty cannot be invoked, where the accused actually denies the
commission of the offense charged. He must admit that he
900
Ibid.
901
Brown v. Walker, 161 U.S. 602.
902
People v. Patriarca, et al., G.R. No. 135457, September 29, 2000.
903
People v. Llanita, et al., G.R. No. L-2082, April 26, 1950; People v. Guillermo, et al. G.R. No. L-
2188, May 18, 1950.
 committed the crime.904

(2) In the grant of amnesty, the Constitution itself provides that it can
be granted by the President only with the concurrence of the
Congress. The concurrence must be given by a majority of all the
members of the Congress.905
(3) Paragraph 3 of Article 89 of the Revised Penal Code provides that
criminal liability is totally extinguished by amnesty, which
completely extinguishes the penalty and all its effects. 906

(4) Civil liability is not extinguished by amnesty.907

2) Pardon.

a) Nature of pardon.

i) Pardon 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 punishment the law inflicts for a crime he has
committed. It is the private, though official act of the executive
magistrate, delivered to the individual for whose benefit it is intended
and not communicated officially to the court. 908

ii) A pardon is a deed, to the validity of which delivery is essential, and

delivery is not complete without acceptance.909

b) Kinds of pardon.

i) Absolute pardon;
ii) Conditional pardon.

c) Concepts.

i) Absolute pardon is one extended without any strings attached, so to

speak. The pardonee has no option at all and must accept it whether
he likes it or not.910

904
Vera, et al., v. People, G.R. No. L-18184, January 31, 1963 (En Banc).
905
Cruz, Isagani; Philippine Political Law, page 453, 2014 ed.
906
People v. Patriarca, supra.
907
U.S. v. Madlangbayan, 2 Phil. 426.
908
Monsanto v. Factoran, Jr.,  G.R. No. 78239, February 9, 1989.
909
Monsanto v. Factoran, Ibid.
910
Cruz, supra.
 ii) Conditional pardon is one under which the convict is required to
comply with certain requirements. The pardonee has the right to reject
it since he may feel that the condition imposed is more onerous than
the penalty sought to be remitted.911

iii) Conditional pardon is in the nature of a contract between the the Chief
Executive and the convicted criminal. By his consent, he has placed
himself under the supervision of the Chief Executive or his delegate
who is duty bound to see to it that the pardonee complies with the
conditions of the pardon.912

iv) The conviction by final judgment limitation under the Constitution

prohibits the grant of pardon, whether full or conditional, to an accused
during the pendency of his appeal from his conviction by the trial
court. Any application therefor, if one is made, should not be acted
upon or the process toward its grant should not be begun unless the
appeal is withdrawn.   The acceptance of the pardon shall not operate
as an abandonment or waiver of the appeal, and the release of an
accused by virtue of a pardon, commutation of sentence, or parole
before the withdrawal of an appeal shall render those responsible
therefor administratively liable.913

v) In case of violation of conditional parson, the Executive Department

has two options: (i) to proceed against him under Section 64 (i) of the
Revised Administrative Code; or (ii) to proceed against him under
Article 159 of the Revised Penal Code. 914

vi) However, if the release was effected through amnesty, instead of

pardon, the release of the convict is valid even if the appeal is still
pending. Amnesty may be granted generally before or after the
institution of the criminal prosecution and sometimes after
conviction.915 

d) Effects of absolute pardon.

i) Pardon granted after conviction frees the individual from all the
penalties and legal disabilities and restores him to all his civil rights.

911
Torres v. Gonzales, et al., G.R. No. 76872, July 23, 1987.
912
In Re: Petition for Habeas Corpus of Wilfredo S. Sumulong, G.R. No. 122338, December 29,
1995.
913
People v. Salle, G.R. No. 103567, December 4, 1995.
914
Torres v. Gonzales, supra.
915
People v. Casido, et al., G.R. No. 116512, March 7, 1997.
 But unless expressly grounded on the person's innocence (which is
rare), it cannot bring back lost reputation for honesty, integrity and fair
dealing.916 

ii) Pardon does not ipso facto restore a convicted felon to public office

necessarily relinquished or forfeited by reason of the
conviction although such pardon undoubtedly restores his eligibility for
appointment to that office.917

iii) A pardon looks to the future. It is not retrospective.  It makes no

amends for the past. It affords no relief for what has been suffered by
the offender. It does not impose upon the government any obligation to
make reparation for what has been suffered. "Since the offense has
been established by judicial proceedings, that which has been done or
suffered while they were in force is presumed to have been rightfully
done and justly suffered, and no satisfaction for it can be required." 918 

iv) Amnesty and pardon, distinguished. Pardon is granted 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; while amnesty 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. 

v) Pardon is granted to one after conviction; while amnesty is granted to

classes of persons or communities who may be guilty of political
offenses, generally before or after the institution of the criminal
prosecution and sometimes after conviction. 

vi) Pardon looks forward and relieves the offender from the consequences
of an offense of which he has been convicted, that is, it abolishes or
forgives the punishment, and for that reason it does not work the
restoration of the rights to hold public office, or the right of suffrage,
unless such rights be expressly restored by the terms of the pardon,
and it in no case exempts the culprit from the payment of the civil
indemnity imposed upon him by the sentence (article 36, Revised
Penal Code). While amnesty looks backward and abolishes and puts
into oblivion the offense itself, it so overlooks and obliterates the
offense with which he is charged that the person released by amnesty
stands before the law precisely as though he had committed no

916
Monsanto v. Factoran, supra.
917
Ibid.
918
Ibid.
 offense.919

vii) Pardon and amnesty do not extinguish the civil liability.  Petitioner's
civil liability may only be extinguished by the same causes recognized
in the Civil Code, namely: payment, loss of the thing due, remission of
the debt, merger of the rights of creditor and debtor, compensation and
novation.920

Prescription of crime

1) Prescription of crime is the forfeiture or loss of the right of the State to

prosecute the offender after the lapse of a certain time fixed by law. 921

2) Prescription of crimes (Art. 90) under the Revised Penal Code:

Penalty of the crime Prescriptive Period

20 years
Reclusion perpetua and reclusion temporal

Afflictive penalties 15 years

10 years
Correctional (including destierro)
5 years
Arresto mayor
Libel
1 year
Oral defamation (Grave) 6 months
Oral defamation (Simple) 2 months
Light offenses 2 months

3) If the crimes are punishable by fines, the periods are:

Fine Prescriptive Period

Afflictive 15 years
Correctional 10 years
919
Barrioquinto  v. Fernandez, 82 Phil. 642 [1949]; People v. Casido, et al., G.R. No. 116512,
March 7, 1997.
920
Ibid.
921
People vs. Moran, 44 Phil., 387. 
 Light 2 months

4) Prescription of offenses under special laws (Act 3326, as amended by Act

3763)

Period of imprisonment Prescriptive Period

Fine or imprisonment of not more than one 1 year

month or both
Imprisonment of more than one month but 4 years
less than 2 years
Imprisonment for 2 years but less than 6 8 years
years
Imprisonment for 6 years or more 12 years
Internal Revenue Offenses 5 years
Municipal ordinances 2 months

5) Rules to be observed:

a) Article 91 of the Code provides:

i) The period of prescription commences to run from the day on which

the crime is discovered by the offended party, the authorities or their
agents;
ii) It is interrupted by the filing of the complaint or information;
iii) It commences to run again when such proceedings terminate
without the accused being convicted or acquitted or are unjustifiably
stopped for any reason not imputable to him;
iv) The term of prescription shall not run when the offender is absent in
the Philippines.

b) For violations of special laws, prescription shall begin to run from the day
of the commission of the violation of the law, and if the same be not known
at the time, from the discovery thereof and the institution of judicial
proceedings for its investigation and punishment. 922

c) In resolving the issue of prescription of the offense charged, the following

should be considered:

i) The period of prescription for the offense charged;

ii) The time the period of prescription starts to run; and

922
Section 2, Act 3326.
 iii) The time the prescriptive period was interrupted. 923

b) In computing, the first day is to be excluded and the last day included.
When the last day falls on legal holiday or a Sunday, the information can
no longer be filed on the next day as the crime has already prescribed.
The waiver or loss of the right to prosecute such offenders is automatic
and by operation of law. Where the sixtieth and last day to file an
information falls on a Sunday or legal holiday, the sixty-day period cannot
be extended up to the next working day. Prescription has automatically set
in.924

c) The month in Article 90 of the Revised Penal Code should be understood

to mean the regular 30 — day month in accordance with the provisions of
the Civil Code.925

d) Interruption of the period prescription. Under Article 91 of the Code, the

filing of the complaint or information interrupts the running of the period of
prescription. For purposes of interrupting the period, the said article, in
declaring that the prescriptive period shall be interrupted by the filing of
the complaint or information, does not distinguish whether the complaint is
filed for preliminary examination or investigation only or for an action on
the merits.926 The filing of the complaint even with the fiscal’s office
suspends the running of the statute of limitations. 927
e) The rule applies to both crimes under the Revised Penal Code and special
penal laws. There is no more distinction between cases under the RPC
and those covered by special laws with respect to the interruption of the
period of prescription.928 The institution of proceedings for preliminary
investigation against the accused interrupts the period of prescription. 929
Even investigations conducted by the Securities and Exchange
Commission for violations of the Revised Securities Act and the Securities
Regulations Code effectively interrupts the prescription period because it
is equivalent to the preliminary investigation conducted by the DOJ in
criminal cases.930 Commencement of the proceedings for the prosecution
923
Domingo v. Sandiganbayan, 379 Phil. 708 (2000).
924
Yapdiangco v. Buencamino, G.R. No. L-28841, June 24, 1983.
925
People v. Del Rosario, G.R. No. L-7234, May 21, 1955.
926
People v. Olarte, 19 SCRA 494 (1967) and Reodica v. Court of Appeals, G.R. No. G.R. No.
125066. July 8, 1998.
927
Francisco v. Court of Appeals, 122 SCRA 538 [1983]; People v. Cuaresma, 172 SCRA 415,
[1989]; Reodica v. Court of Appeals, G.R. No. 125066. July 8, 1998.
928
People v. Pangilinan, G.R. No. 152662, June 13, 2012.
929
Llenes v. Dicdican, 328 Phil. 1272 (1996); Brillantes v. Court of Appeals, 483 Phil. 568 (2004);
Ingco, et al. v. Sandiganbayan, G.R. No. 112584, May 23, 1997.
930
Securities and Exchange Commission v. Interport Resources Corp. Inc., G.R. No. 135808, 6
October 2008.
 of the accused before the Office of the City Prosecutor effectively
interrupted the prescriptive period for the offenses they had been
charged.931

f) For violation of municipal ordinances, the running of the prescriptive

period is not tolled when a complaint with the prosecutor’s office. As it is
clearly provided in the Rule on Summary Procedure that among the
offenses it covers are violations of municipal or city ordinances, it should
follow that a charge for violation of a municipal ordinance, is governed by
that rule and not by Section 1 of Rule 110. Under Section 9 of the Rule on
Summary Procedure, The prosecution of criminal cases falling within the
scope of this Rule shall be either by complaint or by information filed
directly in court without need of a prior preliminary examination or
preliminary investigation. Although this provision does not prevent the
prosecutor from conducting a preliminary investigation if he wants to, the
case shall be deemed commenced only when it is filed in court, whether or
not the prosecution decides to conduct a preliminary investigation. This
means that the running of the prescriptive period shall be halted on the
date the case is actual filed in court and not on any date before that. This
interpretation is in consonance with the afore-quoted Act No. 3326 which
says that the period of prescription shall be suspended "when proceedings
are instituted against the guilty party." The proceedings referred to in
Section 2 thereof are "judicial proceedings." In conclusion, the Court held
that if there be a conflict between the Rule on Summary Procedure
(creation of Sec. 36 of BP Blg. 129) and Section 1 of Rule 110 of the
Rules on Criminal Procedure, the former should prevail as the special law.
And if there be a conflict between Act No. 3326 and Rule 110 of the Rules
on Criminal Procedure, the latter must again yield because this Court, in
the exercise of its rule-making power, is not allowed to "diminish, increase
or modify substantive rights" under Article VIII, Section 5 (5) of the
Constitution Prescription in criminal cases is a substantive right. 932

g) However, in a subsequent case, interpreting the provision of the same

law, Act No. 3326, on prescription which reads “Prescription shall begin
to run from the day of the commission of the violation of the law, and if the
same be not known at the time, from the discovery thereof and the
institution of judicial proceedings for its investigation and punishment,” the
Court held that “while it may be observed that the term "judicial
proceedings" in Sec. 2 of Act No. 3326 appears before "investigation and
punishment" in the old law, with the subsequent change in set-up whereby
the investigation of the charge for purposes of prosecution has become
the exclusive function of the executive branch, the term "proceedings"
931
Panaguiton v. Department of Justice, G.R. No. 167571, November 25, 2008. 
932
Zaldivia v. Reyes, et al., G.R. No. 102342. July 3, 1992.
 should now be understood either executive or judicial in character:
executive when it involves the investigation phase and judicial when it
refers to the trial and judgment stage. With this clarification, any kind of
investigative proceeding instituted against the guilty person which may
ultimately lead to his prosecution should be sufficient to toll
prescription.”933

h) In another much later case, the Court reiterated the ruling that with regard
to the prescription period, Act No. 3326, as amended, is the only statute
that provides for any prescriptive period for the violation of special laws
and municipal ordinances. No other special law provides any other
prescriptive period, and the law does not provide any other distinction.
Moreover, as provided in the Revised Rules on Summary Procedure, only
the filing of an Information tolls the prescriptive period where the crime
charged is involved in an ordinance. As it is clearly provided in the Rule on
Summary Procedure that among the offenses it covers are violations of
municipal or city ordinances, it should follow that the charge against the
petitioner, which is for violation of a municipal ordinance of Rodriguez, is
governed by that rule and not Section 1 of Rule 110. 934

i) To harmonize, the doctrines enunciated in Zaldivia and Jadewell apply

only to cases covered by the Rules on Summary Procedure, and that
includes violation of municipal (city) ordinance. In all cases, the running of
the prescriptive period is not tolled when a complaint is filed with the
prosecutor’s office because it is expressly stated thereunder that
commencement of the cases is done by filing either of complaint or
information directly with court without need of a prior preliminary
examination or preliminary investigation. Meaning, the conduct of
preliminary investigation by the prosecutor’s office is not condition
precedent. Should it conduct a preliminary investigation, the prescriptive
period shall continue to run. On the other hand, in cases not covered by
the Rules on Summary Procedure where a preliminary investigation is
required, the filing of the complaint with the prosecutor’s office tolls the
running of the period. The provisions of Act No. 3326 pertaining to judicial
proceedings should be understood “executive in character” for purposes of
tolling the period in connection with the conduct of preliminary
investigation (and in accordance with Panaguiton doctrine).

j) As to the issue whether the prescriptive period began to run anew after
the investigating prosecutor’s recommendation to file the proper criminal
information against respondent was approved by the City Prosecutor, the
answer is in the negative. The proceeding is not terminated upon the City
933
Panaguiton v. DOJ, supra.
934
Jadewell Parking Systems Corp. v. Lidua, et al., G.R. No. 169588, October 7, 2013.
 Prosecutor's approval of the investigating prosecutor's recommendation
that an information be filed with the court. The prescriptive period remains
tolled from the time the complaint was filed with the Office of the
Prosecutor until such time that respondent is either convicted or acquitted
by the proper court.935

k) For violation of special penal laws, the absence of the offender from the
Philippines does not toll the running of the prescriptive period. Section 2 of
Act. No. 3326 is conspicuously silent as to whether the absence of the
offender from the Philippines bars the running of the prescriptive period.
The silence of the law can only be interpreted to mean that Section 2 of
Act No. 3326 did not intend such an interruption of the prescription unlike
the explicit mandate of Article 91. In the prosecution for violation of RA
3019 (Anti-Graft and Corrupt Practices Act), the law on prescription is
found in Act 3326 which does not provide for the interruption of the period
based on the absence of the offender. The only inference that can be
gathered from the foregoing is that the legislature, in enacting Act No.
3326, did not consider the absence of the accused from the Philippines as
a hindrance to the running of the prescriptive period. 936

l) The Revised Penal Code explicitly states that the absence of the accused
from the Philippines shall be a ground for the tolling of the prescriptive
period while Act No. 3326 does not. In such a situation, Act No. 3326 must
prevail over Article 91 because it specifically and directly applies
to special laws while the Revised Penal Code shall apply to special
laws only suppletorily and only when the latter do not provide the contrary.
Indeed, elementary rules of statutory construction dictate that special legal
provisions must prevail over general ones.937

m) Suspension of prescriptive period under Katarungang Pambarangay Law.

The Local Government Code) states while the dispute is under mediation,
conciliation, or arbitration, the prescriptive periods for offenses and cause
of action under existing laws shall be interrupted upon filing of the
complaint with the punong barangay.938 The law provides for the
suspension of the prescriptive periods of offenses during the pendency of
the mediation, conciliation, or arbitration process. 939

n) To determine the prescriptibility of an offense penalized with a fine,

whether imposed as a single or as an alternative penalty, such fine should
935
People v. Bautista, G.R. No. 168641, April 27, 2007.
936
Romualdez v. Marcelo, et al., G.R. No. 165510-33, July 28, 2006.
937
Ibid.
938
Section 410, RA 7160.
939
Uy v. Contreras, et al., G.R. No. 111416 September 26, 1994.
 not be reduced or converted into a prison term, but rather it should be
considered as such fine under Article 26 of the Revised Penal Code; 940

o) Light offenses, for purpose of computing prescription, should be

understood in the light of the definition "light offense" under Article 9 (not
under Article 26), and hence, prescribes in two months under Article 90.
Article 26 has nothing to do with the definition of offenses, but merely
classifies fine, when imposed as a principal penalty, whether singly or in
the alternative into the categories of afflictive, correctional, and light
penalties.941

p) In continuing crimes, the period of prescription never runs. 942

Prescription of penalties.

1) Prescription of penalty is the loss of the right of the State to execute the final
sentence after a lapse of a certain time.

a) Requisites:

i) That the penalty is imposed by final judgement;

ii) That the convict evaded the service of the sentence by escaping
during the term of his sentence;
iii) That the convict who escaped from prison has not given himself up, or
been captured, or gone to foreign country with which the Philippines
has not extradition treaty, or committed another crime;
iv) That the penalty has prescribed, because the lapse of time from the
date of evasion of the service of the sentence by the convict.

Penalty Prescriptive Period

Reclusion perpetua 20 years

Afflictive penalties 15 years
Correctional penalties 10 years
Arresto mayor 5 years
Light penalties 1
1year

b) Rules to be observed:

940
People v. Basalo, 101 Phil. 57.
941
People v. Hai, G.R. No. L-9598, August 15, 1956.
942
People v. Bellasillo, 81 Phil. 190.
 i) The period of prescription of penalties commences to run from the date
when the convict evaded the service of sentence.
ii) It is interrupted if the convict:
iii) Gives himself up;
iv) Be captured;
v) Goes to foreign country with which the Philippines has no extradition
treaty;
vi) Commits another crime before the expiration of the period of
prescription.

c) Concepts

i) Evasion of service of sentence same as that of Article 157. For

prescription of penalties to apply, it is required that the convict must
evade the service of sentence. The concept of evasion of sentence is
the same as that of Article 157 of the Revised Penal Code. Elements
of evasion of service of sentence are: (1) the offender is a convict by
final judgment; (2) he "is serving his sentence which consists in
deprivation of liberty"; and (3) he evades service of sentence
by escaping during the term of his sentence. A convict evades "service
of his sentence", by "escaping during the term of his imprisonment by
reason of final judgment." That escape should take place while serving
sentence.943

ii) According to Article 93 of the Revised Penal Code the period of

prescription of penalties commences to run from the date when the
culprit should evade the service of his sentence. It is evident from this
provision that evasion of the sentence is an essential element of
prescription. There has been no such evasion in this case. Even if
there had been one and prescription were to be applied, its basis
would have to be the evasion of the unserved sentence, and
computation could not have started earlier than the date of the order
for the prisoner's re-arrest.944

iii) Article 93 of the Revised Penal Code provides when the prescription of
penalties shall commence to run. Under said provision, it shall
commence to run from the date the felon evades the service of his
sentence. Pursuant to Article 157 of the same Code, evasion of service
of sentence can be committed only by those who have been convicted
by final judgment by escaping during the term of his sentence.
"Escape" in legal parlance and for purposes of Articles 93 and 157 of
943
Tanega v. Masakayan, G.R. No. L-27191, February 28, 1967.
944
Infante v. Warden, G.R. No. L-4164 December 12, 1952; cited in Pangan v. Gatbalite, et al.,
G.R. No. 141718, January 21, 2005.
 the RPC means unlawful departure of prisoner from the limits of his
custody. Clearly, one who has not been committed to prison cannot be
said to have escaped therefrom.945

iv) No evasion of service. One who had been granted a conditional

pardon and was re-arrested cannot be considered as evaded his
sentence.946

Marriage.

1) Marriages contracted between the offender and the offended party in the
crime of rape, as well as in the crime of abuse of chastity (seduction,
abduction, acts of lasciviousness), to totally extinguish the criminal liability of
and the corresponding penalty that may have been imposed upon those
found guilty of the felony.947  The marriage was entered into in bad faith.

2) Bases of the extinction are Articles 89 and 344 of the Revised Penal Code.

Partial extinction of criminal liability

Commutation of sentence

1) It is a change of the decision of the court made by the Chief Executive by

reducing the degree of penalty inflicted upon the convict, or by decreasing the
length of the imprisonment or the amount of fine. 948

2) Parole 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. 949

3) Conditional pardon distinguished from parole.

4) Conditional pardon is given by the Chief Executive after conviction under the
provisions of the Revised Administrative Code, while parole is given by the
Board of Pardon and Parole to a prisoner who served the minimum of an
indeterminate sentence.;

5) For violation of conditional pardon, the offender may either be re-arrested to

serve the remitted penalty or prosecuted under Article 159, whereas for
945
Del Castillo v. Torrecampo, et al., G.R. No. 139033, December 18, 2002.
946
Infante v. Warden, supra.
947
People v. De Guzman, G.R. No. 185843, March 3, 2010.
948
Reyes, supra.
949
Gregorio, supra.
 violation of parole, the convict is re-arrested to serve the unexpired portion of
the penalty.950

Good conduct allowance (Article 97 as amended RA 10592)

Article 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."

1) Nature.

a) Good conduct time allowance reduces the actual time a prisoner will serve
his prison sentence. It arises from having observed prison rules and
regulations and it automatically accrues whenever a person exemplifies
good behavior or spends time for studying, teaching, or mentoring other
prisoners.

950
Ibid.
2) Who are covered.

a) The good conduct of any offender qualified for credit for preventive
imprisonment pursuant to Article 29 of this Code; and

b) any convicted prisoner in any penal institution, rehabilitation or detention

center or any other local jail.

3) Period to be deducted.

a) First two years of imprisonment, 20 days off for each month.

b) Third and Fifth year, 23 days off.
c) Following year up to 10th year, 25 days off.
d) Eleventh and successive years, 30 days off.
e) Additional deduction period of fifteen days, in addition to numbers one to
four hereof, for each month of study, teaching or mentoring service time
rendered.
f) Appeal shall not deprive the accused of entitlement to the allowances of
good conduct.

4) Who grants the allowance:

a) the Director of the Bureau of Corrections;

b) the Chief of the Bureau of Jail Management and Penology; and/or
c) the Warden of a provincial, district, municipal or city jail.

5) Effect of the grant.

a) Such allowances once granted shall not be revoked.

6) Faithful compliance is enjoined. The penalty of one (1) year imprisonment, a

fine of One hundred thousand pesos (P100,000.00) and perpetual
disqualification to hold office shall be imposed against any public officer or
employee who violates this law.

7) Concepts.

a) The allowance is given in consideration of the good conduct of the

prisoner while serving the sentence. Therefore, there is no allowance of
good conduct while prisoner is released under conditional pardon. 951

b) These allowances are granted by the Director of Bureau of Corrections,

the Chief of the Bureau of Jail Management and Penology and/or the
951
People v. Martin, 68 Phil 122.
 Warden of a provincial, district, municipal or city jail shall grant allowances
for good conduct, and once given cannot be revoked.

c) The trial court has no power to grant the accused time allowances for
good conduct because in accordance with Article 99 of the Revised Penal
Code it is the Director of the Prisons who shall grant allowances for good
conduct if such good conduct has been observed by the prisoner
concerned.952 

Special time allowance for loyalty (Article 98, as amended by RA 10592)

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 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.

1) Who are entitled.

a) any detention prisoner who is one prisoner who is preventive

imprisonment; or
b) a convicted offender serving his sentence.

2) Requisites

a) First type.

i) The prisoner is either a detention prisoner or convicted offender

serving his sentence;

ii) He evades his detention or service of sentence by leaving the jail

facilities or penal institution;

952
Kabigting v. Director of Prisons, G.R. No. L-12276, Aug. 26, 1958.
 iii) On the occasion of disorder resulting from a conflagration, earthquake,
explosion, or similar catastrophe, or during a mutiny in which he has
not participated;

iv) He gives himself up to the authorities within 48 hours following the

issuance of a proclamation announcing the passing away of the
calamity or catastrophe or mutiny.

b) Second type.

i) The prisoner is either a detention prisoner or convicted offender

serving his sentence;

ii) There is disorder resulting from a conflagration, earthquake, explosion,

or similar catastrophe, or during a mutiny in which he has not
participated in his place of confinement;

iii) He chooses to stay therein despite the said calamity, catastrophe or

mutiny.

c) Period of deduction

i) For first type – one-fifth (1/5) of the period of the sentence;

ii) For second type – two-fifths (2/5) of the period of the sentence.

3) Concepts.

a) A prisoner who evades the preventive imprisonment or service of

sentence by leaving the place of confinement due to catastrophe,
calamity, or mutiny, and fails to give himself up to the authorities within 48
hours following the proclamation of passing away of such calamity is liable
under Article 158 for evasion of service of sentence. He shall suffer an
increase of one-fifth of the time still remaining to be served under the
original sentence, which in no case exceeds six months.

b) Take note, however, that Article 158 has not been amended unlike Article
98 of the Code. Under Article 98, the prisoner is either a detention
prisoner or a convict by final judgment. The offender for evasion of service
under Article 158 is a convict serving final judgment.

c) Mutiny under Article 158, implies an organized unlawful resistance to a

superior officer, a sedition, a revolt.953
953
Reyes, supra., citing People v. Padilla, (CA) 46 O.G. 2151.
 Chapter Fourteen
CIVIL LIABILITY ARISING FROM CRIMES

Article 100. Civil liability of a person guilty of felony. - Every person

criminally liable for a felony is also civilly liable.

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.

1) Purpose of civil actions.

a) While the purpose of criminal action is not only to punish offender and
deter others from committing crimes, the purpose of civil action is for the
restitution, reparation or indemnification of the private offended party for
the damage or injury he sustained by reason of the felonious act of the
accused.954

b) Laws governing civil Liability arising from crimes.

i) Article 100, Revised Penal Code. Every person criminally liable is

civilly liable.

954
Lo Bun Tiong v. Balboa, G.R. No. 158177, January 28, 2008.
 ii) Article 20, New Civil Code. Every person who contrary to law, willfully
or negligently causes damage to another, shall indemnify the latter for
the same.

iii) Article 2176, New Civil Code. The civil liability arising from negligence
under the Revised Penal Code is entirely distinct and separate from
responsibility for fault or negligence called quasi-delict.

iv) Article 1161, Civil Code. Civil obligation arising from criminal offenses
shall be governed by penal laws subject to the provision of Article
2177.

v) Article 1157, New Civil Code. Obligations arise from:

(1) Law;
(2) Contracts;
(3) Quasi-contracts;
(4) Acts or omissions punished by law;
(5) Quasi-delicts.

c) Specific rules regarding civil liability.

i) Insane or imbecile persons. – The civil liability is imposed upon those

having legal authority or control over them except when there was no
fault or negligence of their part.

ii) Juvenile delinquents (CICL) - Parents and other persons exercising

parental authority shall be civilly liable for the injuries and damages
caused by the acts or omissions of their unemancipated children living
in their company and under their parental authority subject to the
appropriate defenses provided by law. 955 

iii) State of necessity - Generally, the offender is not civilly liable. The
person benefitted by the act is civilly liable.

iv) Compulsion of irresistible force/Impulse of uncontrollable fear – the

persons using violence or causing fear are civilly liable.

d) How civil liability arising from delicts is enforced.

i) Through a civil action that is deemed impliedly instituted in the criminal

action;

955
Art. 221, Family Code.
 ii) Through a civil action that is filed separately either before the criminal
action or after upon reservation of the right to file it separately in the
criminal action.956

e) Civil action is impliedly instituted in criminal action.

i) When a criminal action is instituted, the civil action for the recovery
arising from the offense charged is deemed instituted except (a) where
there is waiver, (b) there is reservation to file it separately; or institution
of civil action prior to criminal action.957

ii) What is deemed instituted is only the action to recover civil liability
arising from the crime.

iii) The waiver must be made before the court where the criminal action is
pending. It must be made by the offended party.

iv) After the criminal action has been commenced, the separate civil
action arising therefrom cannot be instituted until final judgment has
been entered in the criminal action.958

v) The offended party is given the option to file a separate civil action by
reserving the right in the criminal action. The reservation must be
made before the prosecution presents its evidence. The offended party
is deemed to make such reservation if he files a separate civil action
before the filing of criminal action. The civil action is suspended. 959

vi) If the criminal action is filed after the civil action has already been
instituted, the latter shall be suspended in whatever stage it may be
found before judgment on the merits. The suspension shall last until
final judgment is rendered.960

vii) Independent civil actions (ICAs) are those provided under Articles 32,
33, 34, and 2176 of the Civil Code. They may be filed separately and
prosecuted independently even without reservation in the criminal
action. Failure to make reservation in the criminal action is not a waiver
of the right to file separate or independent action.

956
Co v. Munoz, G.R. No. 181986, December 4, 2013.
957
Section 1, Rule 111, 2000 Revised Rules on Criminal Procedure.
958
Section 2, Ibid.
959
Moya, Salvador; The 2000 Rules of Criminal Procedure Notes and Cases, 2017 ed.
960
Ibid.
 (1) Article 32 – refers to action against a public officer or employee, or
private individual who obstructs, defeats, or violation, or in any
manner impedes the rights and liberties of another person;
(2) Article 33 – in cases of defamation, fraud and physical injuries;
(3) Article 34 – refers to an action against member of a city or
municipal police force who refuses or fails to render aid or
protection to any person in danger of life or property;
(4) Article 2176 – refers to torts or quasi-delicts.

f) Rules regarding criminal and civil prosecution for violation of BP Blg. 22.

i) Section 1, Rule 111 of the Rules of Court specifically provides that:

(1) The criminal action for violation of Batas Pambansa Blg. 22 shall be
deemed to include the corresponding civil action. No reservation to
file such civil action separately shall be allowed.

ii) With respect to criminal actions for violation of BP 22, it is explicitly

clear that the corresponding civil action is deemed included and that a
reservation to file such separately is not allowed.

iii) There is no independent civil action to recover the value of a bouncing

check issued in contravention of BP 22. 961

iv) May the accused be held civilly liable in estafa case after he was
acquitted in the case for violation of BP Blg. 22? Yes. While the filing of
the two sets of Information under the provisions of BP Blg. 22 and
under the provisions of the Revised Penal Code, as amended, on
estafa, may refer to identical acts committed by the petitioner, the
prosecution thereof cannot be limited to one offense, because a single
criminal act may give rise to a multiplicity of offenses and where there
is variance or differences between the elements of an offense is one
law and another law as in the case at bar there will be no double
jeopardy because what the rule on double jeopardy prohibits refers to
identity of elements in the two (2) offenses. Otherwise stated,
prosecution for the same act is not prohibited. What is forbidden is
prosecution for the same offense. Hence, the mere filing of the two (2)
sets of information does not itself give rise to double jeopardy.962

v) Reason for the prohibition: This rule was enacted to help declog court
dockets which are filled with B.P. 22 cases as creditors actually use
the courts as collectors.  Because ordinarily no filing fee is charged in
961
Heirs of Eduardo Simon v. Chan, et al., G.R. No. 157457, February 23, 2011.
962
Rimando v. Aldaba, et al., G.R. No. 203583, October 13, 2014.
 criminal cases for actual damages, the payee uses the intimidating
effect of a criminal charge to collect his credit gratis and sometimes,
upon being paid, the trial court is not even informed thereof. The
inclusion of the civil action in the criminal case is expected to
significantly lower the number of cases filed before the courts for
collection based on dishonored checks.  It is also expected to expedite
the disposition of these cases.  Instead of instituting two separate
cases, one for criminal and another for civil, only a single suit shall be
filed and tried.963 

g) Effect of acquittal on civil liability.

i) The acquittal of an accused of the crime charged does not necessarily

extinguish his civil liability.964 The extinction of the penal action does
not carry with it the extinction of the civil liability where: (a) the acquittal
is based on reasonable doubt as only preponderance of evidence is
required; (b) the court declares that the liability of the accused is only
civil; and (c) the civil liability of the accused does not arise from or is
not based upon the crime of which the accused is acquitted. However,
the civil action based on delict may be deemed extinguished if there is
a finding on the final judgment in the criminal action that the act or
omission from which the civil liability may arise did not exist or where
the accused did not commit the acts or omission imputed to him. 965

ii) Thus, if demurrer is granted and the accused is acquitted by the court,
the accused has the right to adduce evidence on the civil aspect of the
case unless the court also declares that the act or omission from which
the civil liability may arise did not exist. This is because when the
accused files a demurrer to evidence, he has not yet adduced
evidence both on the criminal and civil aspects of the case. The only
evidence on record is the evidence for the prosecution. What the trial
court should do is issue an order or partial judgment granting the
demurrer to evidence and acquitting the accused, and set the case for
continuation of trial for the accused to adduce evidence on the civil
aspect of the case and for the private complainant to adduce evidence
by way of rebuttal. Thereafter, the court shall render judgment on the
civil aspect of the case.966

963
Hyatt Industrial Manufacturing Corporation v. Asia Dynamic Electrix Corporation, G.R. No.
163597, July 29, 2005.
964
Daluraya v. Oliva, G.R. No. 210148, December 8, 2014.
965
Dayap v. Sendiong, 597 Phil. 127 (2009).
966
Ibid. citing   Hun Hyung Park v. Eung Won Choi, 544 Phil. 431, 444 (2007).
 iii) In case of an acquittal, the Rules of Court requires that the judgment
state whether the evidence of the prosecution absolutely failed to
prove the guilt of the accused or merely failed to prove his guilt beyond
reasonable doubt. In either case, the judgment shall determine if the
act or omission from which the civil liability might arise did not exist. 967

Kinds of civil liability.

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;
3. Indemnification for consequential damages.

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 him.

This provision is not applicable in cases in which the thing has been
acquired by the third person in the manner and under the requirements
which, by law, bar an action for its recovery.

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.

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.

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

967
Daluraya v. Oliva, supra.
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.

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.

1) Restitution. Restitution is defined as the compensation for loss; it is full or

partial compensation paid by a criminal to a victim ordered as part of a
criminal sentence or as a condition for probation. The thing itself must be
restored even if found in the possession of a third person who acquired it by
lawful means. This rule however will not apply if the possessor of the thing
has acquired it in good faith at a public sale. He must be reimbursed of the
price paid therefor.

2) Reparation. Reparation and indemnification are similarly defined as the

compensation for an injury, wrong, loss, or damage sustained. Reparation is
made if restitution is no longer possible. The court determines the amount of
damages by considering the price of the thing and its special sentimental
value. If there is no evidence as to the value, there can be no reparation.
Reparation is generally made to the victims of crimes against property.

3) Indemnification for consequential damages. Damages may be defined as the

pecuniary compensation, recompense, or satisfaction for an injury sustained,
or, as otherwise expressed, the pecuniary consequences that the law
imposes for the breach of some duty or the violation of some right. 968 As such,
damages refer to the amount in money awarded by the court as a remedy for
the injured.969

4) Although money has been accepted as the most frequently used means of
punishing, deterring, compensating and regulating injury throughout the legal
system, it has been explained that money in the context of damages is not
awarded as a replacement for other money, but as substitute for that which is

968
People v. Ballesteros, G.R. No. 120921, January29, 1998.
969
Casis, Rommel J., Analysis of Philippine law and Jurisprudence on Damages, University of the
Philippines College of Law, 2012, p.2.
 generally more important than money; it is the best thing that a court can
do.970

5) The civil indemnity for death, being compensatory in nature, must attune to
contemporaneous economic realities; otherwise, the desire to justly indemnify
would be thwarted or rendered meaningless. This has been the legislative
justification for pegging the minimum, but not the maximum, of the
indemnity.971

6) Damages recoverable in case of death.972

a) Death indemnity refers to the award given to the heirs of the deceased as
a form of monetary restitution or compensation for the death of the victim
at the hands of the accused. Its grant is mandatory and a matter of
course, and without need of proof other than the fact of death as the result
of the crime or quasi-delict. It derives from the legal obligation of the
accused or the defendant to fully compensate the heirs of the deceased
for his death as the natural consequence of the criminal or quasi-delictual
act or omission;

b) Loss of earning capacity of the deceased to be paid to the heirs of the

latter;

i) Formula: The formula for the computation of unearned income is:

Net Earning Capacity = life expectancy x (gross annual income -

reasonable and necessary living expenses).

Life expectancy is determined in accordance with the formula:

2/3 x [80 age of deceased at the time of death]

(a) Jurisprudence provides that the first factor, i.e., life expectancy,

shall be computed by applying the formula (2/3 x [80 - age at

970
Ibid.
971
People v. Oandasan, G.R. No. 194605, June 14, 2016 (En Banc).
972
Ibid.
 death]) adopted in the American Expectancy Table of Mortality
or the Actuarial of Combined Experience Table of Mortality. 973

c) The heirs may demand support from the person causing the death, for a
period not exceeding five years, the exact duration to be fixed by the
court;

d) Moral damages for mental anguish by reason of the death of the

deceased may be demanded by the heirs of the latter.

e) Exemplary damages can be awarded, not only due to the presence of an

aggravating circumstance, but also where the circumstances of the case
show the highly reprehensible or outrageous conduct of the offender.

f) Temperate damages can be awarded when no documentary evidence of

burial or funeral expenses is presented in court.

g) In addition, the foregoing are subject to interest at the rate of six percent
(6%) per annum from the finality of the decision until fully paid.

Guidelines on fixing the civil liabilities in specific crimes resulting in the

death of the victims.974

1) For those crimes like, Murder, Parricide, Serious Intentional

Mutilation, Infanticide, and other crimes involving death of a victim where the
penalty consists of indivisible penalties:

a) Where the penalty imposed is death but reduced to reclusion

perpetua because of RA 9346:

i) Civil indemnity – ₱100,000.00

ii) Moral damages – ₱100,000.00
iii) Exemplary damages – ₱100,000.00

b) Where the crime committed was not consummated:

i) Frustrated:
(1) Civil indemnity – ₱75,000.00
(2) Moral damages – ₱75,000.00
(3) Exemplary damages – ₱75,000.00
i) Attempted:
(1) Civil indemnity – ₱50,000.00
973
Candano Shipping Lines, Inc. v. Sugata-on, G.R. No. 163212, March 13, 2007.
974
People v. Jugueta, G.R. No. 202124, April 6, 2016 (En Banc).
 (2) Exemplary damages – ₱50,000.00
(3) Exemplary damages – ₱50,000.00

c) Where the penalty imposed is reclusion perpetua, other than the above-
mentioned:

i)Civil indemnity – ₱75,000.00

ii) Moral damages – ₱75,000.00
iii) Exemplary damages – ₱75,000.00

d) Where the crime committed was not consummated:

i) Frustrated:
(1) Civil indemnity – ₱50,000.00
(2) Moral damages – ₱50,000.00
(3) Exemplary damages – ₱50,000.00

ii) Attempted:
(1) Civil indemnity – ₱25,000.00
(2) Moral damages – ₱25,000.00
(3) Exemplary damages – ₱25,000.00

2) For Simple Rape/Qualified Rape:

a) Where the penalty imposed is Death but reduced to reclusion

perpetua because of RA 9346:

i) Civil indemnity – ₱100,000.00

ii) Moral damages – ₱100,000.00
iii) Exemplary damages – ₱100,000.00

b) Where the crime committed was not consummated but merely attempted:

i) Civil indemnity – ₱50,000.00

ii) Moral damages – ₱50,000.00
iii) Exemplary damages – ₱50,000.00

c) Where the penalty imposed is reclusion perpetua, other than the above-

mentioned:

i) Civil indemnity – ₱75,000.00

ii) Moral damages – ₱75,000.00
iii) Exemplary damages – ₱75,000.00
 d) Where the crime committed was not consummated, but merely attempted:

i) Civil indemnity – ₱25,000.00

ii) Moral damages – ₱25,000.00
iii) Exemplary damages – ₱25,000.00

3) For Complex crimes under Article 48 of the Revised Penal Code where death,
injuries, or sexual abuse results, the civil indemnity, moral damages and
exemplary damages will depend on the penalty, extent of violence and sexual
abuse; and the number of victims where the penalty consists of indivisible
penalties:

a) Where the penalty imposed is Death but reduced to reclusion

perpetua because of RA 9346:

i) Civil indemnity – ₱100,000.00

ii) Moral damages – ₱100,000.00
iii) Exemplary damages – ₱100,000.00

b) Where the penalty imposed is reclusion perpetua, other than the above-

mentioned:

i) Civil indemnity – ₱75,000.00

ii) Moral damages – ₱75,000.00
iii) Exemplary damages – ₱75,000.00

4) The above Rules apply to every victim who dies as a result of the crime
committed. In other complex crimes where death does not result, like in
Forcible Abduction with Rape, the civil indemnity, moral and exemplary
damages depend on the prescribed penalty and the penalty imposed, as the
case may be.

5) For Special Complex Crimes like Robbery with Homicide, Robbery with Rape,
Robbery with Intentional Mutilation, Robbery with Arson, Rape with
Homicide, Kidnapping with Murder, Carnapping with Homicide or Carnapping
with Rape, Highway Robbery with Homicide, Qualified Piracy, Arson with
Homicide, Hazing with Death, Rape, Sodomy or Mutilation and other crimes
with death, injuries, and sexual abuse as the composite crimes, where the
penalty consists of indivisible penalties:

a) Where the penalty imposed is Death but reduced to reclusion

perpetua because of RA 9346:
 i) Civil indemnity – ₱100,000.00
ii) Moral damages – ₱100,000.00
iii) Exemplary damages – ₱100,000.00

(1) In Robbery with Intentional Mutilation, the amount of damages is

the same as the above if the penalty imposed is Death but reduced
to reclusion perpetua although death did not occur.

b) For the victims who suffered mortal/fatal wounds and could have died if
not for a timely medical intervention, the following shall be awarded:

i) Civil indemnity – ₱75,000.00

ii) Moral damages – ₱75,000.00
iii) Exemplary damages – ₱75,000.00

c) For the victims who suffered non-mortal/non-fatal injuries:

i) Civil indemnity – ₱50,000.00

ii) Moral damages – ₱50,000.00
iii) Exemplary damages – ₱50,000.00

d) Where the penalty imposed is reclusion perpetua, other than the above-

mentioned:

i) Civil indemnity – ₱75,000.00

ii) Moral damages – ₱75,000.00
iii) Exemplary damages – ₱75,000.00

(1) In Robbery with Intentional Mutilation, the amount of damages is

the same as the above if the penalty imposed is reclusion perpetua.

e) For the victims who suffered mortal/fatal wounds and could have died if
not for a timely medical intervention, the following shall be awarded:

i) Civil indemnity – ₱50,000.00

ii) Moral damages – ₱50,000.00
iii) Exemplary damages – ₱50,000.00

f) For the victims who suffered non-mortal/non-fatal injuries:

i) Civil indemnity – ₱25,000.00
ii) Moral damages – ₱25,000.00
iii) Exemplary damages – ₱25,000.00
 (1) In Robbery with Physical Injuries, the amount of damages shall
likewise be dependent on the nature/severity of the wounds
sustained, whether fatal or non-fatal.

(2) The above Rules do not apply if in the crime of Robbery with
Homicide, the robber/s or perpetrator/s are themselves killed or
injured in the incident.

(3) Where the component crime is rape, the above Rules shall likewise
apply, and that for every additional rape committed, whether
against the same victim or other victims, the victims shall be
entitled to the same damages unless the other crimes of rape are
treated as separate crimes, in which case, the damages awarded to
simple rape/qualified rape shall apply.

6) In other crimes that result in the death of a victim and the penalty consists of
divisible penalties, i.e., Homicide, Death under Tumultuous Affray, Infanticide
to conceal the dishonor of the offender, Reckless Imprudence Resulting to
Homicide, Duel, Intentional Abortion and Unintentional Abortion, etc.:

a) Where the crime was consummated:

i) Civil indemnity – ₱50,000.00

ii) Moral damages – ₱50,000.00

b) Where the crime committed was not consummated, except those crimes
where there are no stages, i.e., Reckless Imprudence and Death under
tumultuous affray:

i. Frustrated:
(1) Civil indemnity – ₱30,000.00
(2) Moral damages – ₱30,000.00

b) Attempted:
(1) Civil indemnity – ₱20,000.00
(2) Moral damages – ₱20,000.00

(a)If an aggravating circumstance was proven during the trial, even if

not alleged in the Information, in addition to the above mentioned
amounts as civil indemnity and moral damages, the amount of
₱50,000.00 exemplary damages for consummated; ₱30,000.00 for
frustrated; and ₱20,000.00 for attempted, shall be awarded.
7) In the crime of Rebellion where the imposable penalty is reclusion
perpetua and death occurs in the course of the rebellion, the heirs of those
who died are entitled to the following:

i) Civil indemnity – ₱100,000.00

ii) Moral damages – ₱100,000.00
iii) Exemplary damages – ₱100,000.00

a) For the victims who suffered mortal/fatal wounds in the course of the
rebellion and could have died if not for a timely medical intervention, the
following shall be awarded:

i) Civil indemnity – ₱75,000.00

ii) Moral damages – ₱75,000.00
iii) Exemplary damages – ₱75,000.00
b) For the victims who suffered non-mortal/non-fatal injuries:

(i) Civil indemnity – ₱50,000.00

(ii) Moral damages – ₱50,000.00
(iii) Exemplary damages – ₱50,000.00

(1)In all of the above instances, when no documentary evidence of

burial or funeral expenses is presented in court, the amount of
₱50,000.00 as temperate damages shall be awarded.

(2) In addition, the civil indemnity, moral damages, exemplary

damages and temperate damages payable by the accused are
subject to interest at the rate of six percent (6%) per annum from
the finality of the decision until fully paid. 975

Rules on subsidiary liability.

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
975
Dario Nacar v. Gallery Frames and/or Felipe Bordey, Jr., G.R. No. 189871, August 13, 2013.
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.

Article 102 of the Revised Penal Code deals with the subsidiary liability of
innkeepers, tavern keepers, and proprietors of establishments.

1) Under paragraph 1 of Article 102, innkeepers, tavern keepers, and proprietors

of establishments are subsidiarily liable when all of the following elements are
present:

a) The innkeeper, tavern keepers, and proprietor of establishments or his

employee committed a violation of a municipal ordinance or some general
or police regulation.
b) A crime is committed in such inn, tavern or establishment.
c) The person criminally liable is insolvent.

2) In the second paragraph of Article 102, when all of the following elements are
present, the innkeeper is subsidiarily liable:

a) The guests have notified in advance the innkeeper or the person

representing him of the deposit of their goods within the inn.
b) The guests have followed the direction of the innkeeper or his
representative with respect to the care and vigilance of their goods.
c) Such goods of the guests lodging in therein were taken by robbery or
theft.

3) Even if the guests did not deposit their goods and a notice of disclaimer of
liability was posted in a hotel, it does not free the owner from subsidiary
liability. It is enough that the goods were stolen within the inn.

Subsidiary liability of other persons.

Article 103. Subsidiary civil liability of other persons. - The

subsidiary liability established in the next preceding article shall also apply
to employers, teachers, persons, and corporations engaged in any kind of
industry for felonies committed by their servants, pupils, workmen,
apprentices, or employees in the discharge of their duties.
 Article 103 deals with the subsidiary liability of employers, teachers,
persons, and corporations engaged in any industry for crimes committed by their
servants, pupils, workmen, apprentices or employees in the discharge of their
duties.

The elements:

1) The employee committed a crime in the discharge of his duties;

2) The employee is insolvent and has not satisfied the civil liability.

a) Rules to be observed. Before the employer’s subsidiary liability is

enforced, adequate evidence must exist establishing that (1) they
are indeed the employers of the convicted employees; (2) they are
engaged in some kind of industry; (3) the crime was committed by
the employees in the discharge of their duties; and (4) the
execution against the latter has not been satisfied due to
insolvency.976

b) The determination of these conditions may be done in the same

criminal action in which the employees liability, criminal and civil,
has been pronounced, in a hearing set for that precise purpose,
with due notice to the employer, as part of the proceedings for the
execution of the judgment.977

i) Thus, victims of negligence or their heirs have a choice between an

action to enforce the civil liability arising from culpa criminal under
Article 100 of the Revised Penal Code, and an action for quasi-
delict (culpa aquiliana) under Articles 2176 to 2194 of the Civil Code. If
the action chosen is for quasi-delict, the plaintiff may hold the employer
liable for the negligent act of its employee, subject to the employer’s
defense of exercise of the diligence of a good father of the family. On
the other hand, if the action chosen is for culpa criminal, the plaintiff
can hold the employer subsidiarily liable only upon proof of prior
conviction of its employee.978

ii) Article 1161 of the Civil Code provides that civil obligation arising from
criminal offenses shall be governed by penal laws subject to the
provision of Article 2177. Plainly, Article 2177 provides for the
alternative remedies the plaintiff may choose from in case the
obligation has the possibility of arising indirectly from the delict/crime or
directly from quasi-delict/tort. The choice is with the plaintiff who makes
976
Calang et al., v. People, G.R. No. 190696, August 3, 2010.
977
Philippine Rabbit Bus Lines, Inc. v. People, G.R. No. 147703, April 14, 2004.
978
L.G. Foods Corp., et al., v. Agraviador, G.R. No. 158995, September 26, 2006.
 known his cause of action in his initiatory pleading or complaint, 979 and
not with the defendant who can not ask for the dismissal of the
plaintiffs cause of action or lack of it based on the defendants
perception that the plaintiff should have opted to file a claim under
Article 103 of the Revised Penal Code.

iii) Under Article 2180 of the Civil Code, the liability of the employer is
direct or immediate. It is not conditioned upon prior recourse against
the negligent employee and a prior showing of insolvency of such
employee.

iv) Distinctions of subsidiary liability under the Revised Penal Code and
Civil Code.

(1) Under Article 103 of the Revised Penal Code, liability originates
from a delict committed by the employee who is primarily liable
therefor and upon whose primary liability his employer's subsidiary
liability is to be based. Before the employer's subsidiary liability may
be proceeded against, it is imperative that there should be a
criminal action whereby the employee's criminal negligence or
delict and corresponding liability therefor are proved. If no criminal
action was instituted, the employer's liability would not be
predicated under Article 103.
 
(2) On the other hand, under Articles 2176 and 2180 of the Civil Code,
liability is based on culpa aquiliana which holds the employer
primarily liable for tortious acts of its employees subject, however,
to the defense that the former exercised all the diligence of a good
father of a family in the selection and supervision of his
employees.980

Extinction 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.

Civil liability is extinguished by:

1) payment or performance;
979
Ibid.
980
Franco et al., v. IAC, et al., G.R. No. 71137, October 5, 1989.
 2) loss of the thing due;
3) condonation or remission of the debt;
4) confusion or merger of the rights of creditor and debtor;
5) Compensation;
6) Novation

a) Loss of the thing due does not extinguish civil liability because if the
offender cannot make restitution, he is obliged to make reparation.
Unless extinguished, civil liability subsists even if the offender has
served sentence consisting of deprivation of liberty or other rights or
has served the same, due to amnesty, pardon, commutation of
sentence or any other reason.

Obligation to satisfy civil liability.

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.

Unless extinguished, civil liability subsists even if the offender has served
sentence consisting of deprivation of liberty or other rights or has not served the
same, due to amnesty, pardon, commutation of the sentence or any other
reason.

1) Under the law as amended, even if the subsidiary imprisonment is served for
non- payment of fines, this pecuniary liability of the defendant is not
extinguished.

2) While amnesty wipes out all traces and vestiges of the crime, it does not
extinguish the civil liability of the offender. 981 A pardon shall in no case exempt
the culprit from the payment of the civil indemnity imposed upon him by the
sentence.982

981
U.S. v. Madlangbayan, 2 Phil. 246.
982
Article 35, RPC.