REVIEWER ON CRIMINAL LAW

(THIS IS BASED ON THE REVIEWER OF JUDGE MARLO B. CAMPANILLA,

VOLUME I and II, 2020 EDITION AND CONSOLIDATED BAR QUESTIONS
AND SUGGESTED ANSWERS FROM UP LAW CENTER)

TERRITORIAL PRINCIPLE
● Provision of the RPC shall be enforced within the Philippine
territory. (Art. 2, RPC)

Criminal Effects
● For purposes of venue under the ROC and territoriality
principle under the RPC. The following which is an element of
the crime shall be considered.
1. The place of the commission of the crime, and
2. The place of occurrence of the effect of such.

If one pulled the trigger of his gun in Quezon City and hit the victim
in the City of Manila, who died as a consequence, Quezon City and
City of Manila, which are the places of commission of the criminal
act and the occurrence of the criminal effect, are proper venues.

If the psychological violence consisting of marital infidelity

punishable under RA No. 9262 is committed in Singapore but the
psychological effect occurred in the Philippines since the wife and
the children of the offender, who suffered mental anguish, is
residing in the Philippines, our court can assume jurisdiction (AAA
vs. BBB, G.R. no. 212448, January 11, 2018).

Note:

if the commission of the criminal act consummates the crime and the
effect thereof is not an element of the crime, the place of occurrence
of the effect shall not be considered for purpose of venue and
territoriality rule.

Bigamy committed in a foreign land is beyond the jurisdiction of

our court although the offended spouse is residing in the
Philippines since the psychological effect of bigamy to her is not an
element thereof.

Embassy
 ● A person who committed a crime within the premises of an
embassy shall be prosecuted under the law of the Philippines
because of the principle of territoriality. (Reagan v.
Commission on Internal Revenue, G.R. No. L-26379, Dec. 27,
1969; Answers to 2009 Bar Examination Question by UP Law
Complex)
● However, jurisdiction of the Philippines over the embassy is
limited or restricted by “the principles of inviolability of
diplomatic premises”, which is a generally accepted principle
of International Law. A warrant of arrest cannot be served
inside the US embassy without waiver from the government of
its right under the principle of inviolability.

Territorial Waters
● Refers to all waters seaward to a line 12 nautical miles
distant from the archipelagic baseline over which the
Philippines exercises jurisdiction.
● Located between the national or archipelagic waters and the
territorial lands of the Philippines, and the high sea.
● Do not include national waters, which are within the baseline
drawn in accordance with the archipelagic doctrine.

Three fundamental rules in International Law regarding crimes

committed aboard a foreign merchant vessel (not military vessel), if
the same is within 12-mile territorial water of the Philippine (not
internal or archipelagic water or high seas)

1. French Rule (Flag State Principle)

Crimes committed aboard a foreign merchant vessel
within the territorial water of the Philippines are subject
to the jurisdiction of the flag state unless their
commission affects the peace and security of our
country.
2. English Rule (Coastal State Principle)
Crimes committed aboard a foreign merchant vessel
within the territorial water of the Philippines (coastal
state) are subject to the jurisdiction of the Philippines
unless their commission does not affect the peace and
security of our country or has no pernicious effect
therein.
3. Convention of the Law of the Sea
The flag state of the foreign vessel passing through the
territorial sea of the Philippine (coastal state) has
jurisdiction over crimes committed therein.

Except on the following cases:

1. If the consequences of the crime extend to the

Philippines;
2. If the crime is of a kind to disturb the peace of
the Philippines or the good order of the
territorial sea thereof;
3. The assistance of the local authorities has been
requested by the master of the ship or by a
diplomatic agent or consular officer of the flag
state; or
4. If such measures are necessary for the
suppression of illicit traffic in narcotic drugs or
psychotropic substances. (Sec. 2, Art. 27 of the
Convention of the Law of the Sea)

Spratly Islands and Regime of Islands

● Spratly Island are chain of island in the
South China Sea, the ownership of which is
being disputed by the Philippines, Taiwan,
Malaysia, Vietnam, Brunie, and China.
Thus, Philippines had no jurisdiction over a
crime committed by a Filipino in the
disputed Spratly Islands. (2011 Bar Exam)
● However, the court has jurisdiction over a
crime committed in Kalayaan Island or
Scarborough Shoal, regimes of island,
because the Baseline Law (R.A. 9522)
declares that the Philippines exercises
sovereignty and jurisdiction over it.

200 Nautical Miles (EEZ)

● Philippines has no sovereignty over the 200
miles EEZ.
● Only sovereign right to fish and to exploit the
natural resources in the zone.
● Under the convention of the law of the sea,
the Philippine has limited jurisdiction over
 crimes within the EEZ such as those
involving fiscal, custom, immigration, health
and safety and the right of coastal state
under the convention.
● If a Chinese fishing vessel deliberately bump
a Filipino vessel in the West Philippines Sea
covered by the EEZ of the Philippines, and
as a consequence, several Filipino fishermen
died, the Philippines’s jurisdiction over the
crimes of murder cannot be based on the
theory that the Philippines has sovereignty
over the zone. Other principles must be used
to justify its jurisdiction over murders
committed within the zone such as flag state
rule of passive personality principle.
● Under Sec. 3 of R.A. 8550 as amended by
R.A. 10654, the provision of this Code shall
be enforced in the Philippine Waters
including the 200 miles EEZ. Hence, illegal
fishing within the zone is within the
jurisdiction of the Philippines.

Foreign Country
● Under the Principle of Territoriality, the Philippines has
jurisdiction over crimes committed inside its territory except
as provided in the treaties and laws of preferential
application.
● Thus, the court has jurisdiction over concubinage involving
illicit relationship maintained in the Philippines; but has no
jurisdiction over bigamy involving subsequent marriage
contracted in Hong Kong (1984 Bar Exam), Singapore (1994
Bar Exam) or New York (2008 Bar Exam).
● But a lawyer can be disbarred from contracting a bigamous
marriage in a foreign country. (Perez v. Catindig, A.C. No.
5816, March 10, 2015)

X and Y cannot be prosecuted for use of dangerous drugs under

Section 15, R.A. No. 9165 committed in Amsterdam because of the
principle of territoriality. (2018 Bar Exam)

EXTRATERRITORIALITY PRINCIPLE
1. Flag State Rule
Under this rule, the court has jurisdiction over hijacking of
PAL airplane in an American territory since it is registered in
the Philippines. (1971 Bar Exam) The United States of
America has also jurisdiction on over such crime since it was
committed within its territory. In sum, the Philippines and
USA have concurrent jurisdiction over this hijacking.

2. Forgery
Forgery of US dollar committed inside the territory of the
Philippines can be prosecuted in the Philippines because of
territoriality. (2011 Bar Exam)

Forgery of US dollar committed outside the territory of the

Philippines cannot be prosecuted in the Philippines because
the principle of extraterritoriality is only applicable to forgery
of Philippine peso. (1950 Bar Exam)

3. Function-related Crime
Those crimes committed by public officers under the RPC and
under special criminal law such as Anti-graft and Corruption
Practices Law and Plunder Law.

● Falsification of public document by a consul of the

Philippines stationed in a foreign country in connection
with his function of issuing visa allowing foreign
applicant to enter the Philippine soil is within the
jurisdiction of the Philippines. (1962 Bar Exam)
● Plunder committed at his place of assignment abroad by
a Philippine public officer. (2011 Bar Exam)
● Under extraterritoriality rule, the court has jurisdiction
over direct bribery and falsification of document
committed by a public officer in a Philippine consular
premises stationed in America but not corruption of
public officer, and falsification of document committed
by a private individual as principal by inducement.
(1962 and 1986 Bar Exam)

4. National Security
Under the protective principles, the provisions on crimes
against national security, such as treason and espionage,
shall apply even outside the jurisdiction of the Philippines.
 Rebellion is not a crime against national security; hence, the
Code cannot be given extraterritorial application for rebellion
committed outside the territory of the Philippines (2011 Bar
Exam)

5. Universal Crime
Under the universality principle, the court has jurisdiction
over piracy committed in high seas for being a universal
crime.

Exception:
No jurisdiction over murder qualified by the circumstances of
taking advantage of the calamity brough about by piracy on
the high seas.

The 12-mile territorial water of Sabah (1986 Bar Exam),

Taiwan (2008 Bar Exam), or Dutch (People v. Lol-lo and
Saraw, G.R. No. L-17958, February 27, 1992) may be
considered as high sea; hence, piracy committed therein can
be prosecuted in the Philippines because of the universality
principle.

● (1982 Bar Exam) Territoriality; exceptions

Article 2 of the RPC states that the provision of the said Code shall be
applicable to the crimes committed not only within the territorial
jurisdiction of the Philippines, but also outside thereof, in the five (5)
instances mentioned therein. What are the underlying reasons behind, or
rationale for, each of those five (5) instances? Explain fully one by one.

Answer:

The five instances provided in Art. 2 of the RPC in which provisions

are applicable outside the territorial jurisdiction of the Philippines and
the underlying reasons behind each of said instances are the following:

1. While the offender shall commit an offense while on a Philippine

ship or airship. For this is exception to apply, the Philippine ship
or airship must be registered under Philippine Laws. As such it
is considered an extension of Philippine Territory.
2. When the offender should forge or counterfeit any coin or
currency note of the Philippine or obligations and securities
 issued by the government. The reason is to protect Philippine
Currency Notes and obligations, or securities issued by the
government in order to preserve the financial credit and stability
of the government.
3. When the offender should be liable for acts committed with the
introduction in the Philippines of obligations and securities
mentioned in paragraph 2. The reason is to protect the economic
interest of the Philippines as the introduction of such forge or
counterfeit obligations and securities into the country is
dangerous, if not more, as the forging or counterfeiting the
same.
4. When the offender, while being a public officer or employee
should commit an offense in the exercise of his functions. The
offense committed by the public officer affects the integrity of the
office and it is against public administration of the Philippines.
The law should follow the public officer wherever he may be. If
such is not punished by the laws of the country where the
public officer is at the time of the commission, or is not triable
by its court, the absence of this exception would not make the
provision of the Code applicable since the crime is committed
outside the Philippines.
5. When the offender should commit any of the crimes against
national security and the law of nations. The reason is to
safeguard the existence of the state.

● (1986 bar Exam) General principles, territoriality, exceptions

Aaron is the defendant in a civil case being in Manila RTC. Together with
his lawyer, Aaron went to Singapore to take the deposition of a witness
who Aaron hoped, would support his defense. The deposition was taken
in a function room of the Singapore Hotel before Mr. Aguila, the
Philippine Consul General. Neither plaintiff nor his counsel attended the
proceeding. After the deposition taking, Aaron, not satisfied with the
results persuaded Mr. Aguila to make substantial changes in the
transcripts of stenographic notes. Aaron offered $5,000.00 in
Singaporean currency with Aguila readily accepted. Leona, vacationing
daughter of Aguila, was given $200.00 by Aaron when she made the
alterations in the transcripts. The deponent, with neither notice nor
knowledge of the alterations signed the deposition.
May Aaron, Aguila, and Leona be prosecuted in a Philippine Court for
offenses punishable under the RPC? What are the offenses if any?
Explain.

Answer:

Only Aguila can be prosecuted before the Philippine Court. Being

the Philippine Consul General in Singapore, as a public officer, the
provisions of the RPC can be given extra-judicial application, as the
crime committed by hm is related to the duties of his office. Aaron and
Leona, being private persons, cannot be prosecuted before the Philippine
Court because regarding the offenses committed by them, the provisions
of the RPC cannot be given extra-territorial application.

Aguila committed bribery and Aaron corruption of public officer.

Leona committed falsification of a public document as a principal by
direct participation and Aaron as a principal by inducement

● (1994 Bar Exam) General principles; territoriality

Abe, married to Liza, contracted another marriage with Connie in

Singapore. Thereafter, Abe and Connie returned to the Philippines and
lived as husband and wife in the hometown of Abe in Calamba, Laguna.
Can Abe be prosecuted for bigamy?

Answer:

No. Abe may not be prosecuted for
marriage was contracted or solemnized
violation is not one of those where the RPC,
applied extraterritoriality. The general rule
situation.
bigamy since the bigamous
in Singapore, hence such
under Art. 2 thereof, may be
on territoriality governs the

● (1998 Bar Exam) Territoriality, generality, irretrospectivity

What are the three cardinal features or main characteristics of Philippine

Criminal Law?

Answer:

Three main characteristics of the Philippine Criminal Law are:

 1. Generality or its being binding to all persons who live or sojourn
in the Philippine territory subject to certain exceptions;
2. Territoriality or its having force and effect only within the
Philippine territory, subject to certain exceptions also;
3. Irrestrospectivity or its application only to acts and omissions
committed/incurred after the effectivity of the law.

● (2000 and 2012 Bar Exam) Territoriality; jurisdiction over vessel

After drinking one (1) case of San Miguel beer and taking two plates of
“pulutan, Binoy, a Filipino seaman, stabbed to death Sio My, a
Singaporean seaman, aboard MV Princess of the Pacific, an overseas
vessel which was sealing in the South China Sea. The vessel, although
Panamanian registered is owned by Lucio Sy, a rich Filipino
businessman. When MV Princess of the Pacific reached a Philippine Port
at Cebu City, the Captain of the vessel turned over the assailant Binoy to
the Philippine Authorities. An Information for homicide was filed against
Binoy in the RTC of Cebu City. He moved to quash the Information for
lack of jurisdiction. If you were the Judge, will you grant the motion?
Why?

Suggested Answer:

Yes. The motion to quash the Information should be granted. The

Philippine court has no jurisdiction over the crime committed since it
was committed on the high seas or outside of Philippine territory and on
board a vessel not registered or licensed in the Philippines (US vs.
Fowler, 1 Phil 614)

It is the registration of the vessel in accordance with the laws of the

Philippines, not the citizenship of her owner, which makes it a Philippine
ship. The vessel being registered in Panama, the laws of Panama govern
while it is in the high seas.

● (2008 Bar Exam) Territoriality

Hubert and Eunice were married in the Philippines. Hubert took

graduate studies in New York and met his former girlfriend Eula. They
renewed their friendship and finally decided to get married. The first wife,
Eunice, heard about the marriage and secures a copy of the marriage
contract in New York. Eunice filed a case of Bigamy against Hubert in the
Philippines.
(a) Will the case prosper? Explain.
Suggested answer:

No, because the Philippine Courts have no jurisdiction over a crime

committed outside of the Philippine territory. Under the principle of
territoriality, penal laws, specifically the RPC, are enforceable only within
the bounds of our territory (Art. 2, RPC).

(b) If Eunice gave her consent to the second marriage, what will your
answer be? Explain.

Suggested answer:

The answer will be the same. The consent of Eunice would not
confer jurisdiction on the Philippine Courts.

CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY

● Justifying Circumstances
Six justifying circumstances, to wit:

1. Self-defense
2. Defense of relative
3. Defense of stranger
4. Avoidance of greater evil
5. Performance of duty
6. Obedience to an order made by superior officer

SELF-DEFENSE, DEFENSE OF RELATIVE, AND DEFENSE OF

STRANGER

● To justify self-defense the following circumstances concur:

1. Unlawful aggression;
2. Reasonable necessity of the means employed to prevent
or repel it; and
3. Lack of sufficient provocation on the part of the person
defending himself.

(1977 Bar Exam)

When A saw B rushing towards him holding a bolo and poised
to strike him, he immediately picked up a pointed iron bar
and believing that his life was in danger as B was close
enough, he made a trust on B hitting him on the stomach
which caused the death of B thereafter. The truth, however, is
that B was merely trying to play a joke on C who was then
behind A. Is A criminally liable for the death of B? State your
reasons.

Suggested Answer:

A is not criminally liable because he acted in self-defense due

to mistake of facts. As the facts of the problem state, A thrust
the pointed iron bar on B, hitting him on the stomach as he
believed that his life was in danger because B was close
enough when he rushed towards A holding a bolo and poised
to strike him. (U.S. vs. Ah Chong, 15 Phil. 488). Under the
circumstances, he had no time or opportunity to verify
whether B was only playing a joke on C who was behind

Hence, his mistake of the facts was without fault or

carelessness. He had no alternative but to take the facts as
they appeared to him to justify his act. So, A acted in good
faith without criminal intent.

(1978 Bar Exam)

B repeatedly stabbed A with a kitchen knife. A managed to

escape with minor injuries, and to run away from B who
continued to pursue him. A, upon reaching the safety of his
house, took a scythe with which to defend himself against B.
Thus armed, A went out of his house and dared B to come
forward and fight. In the ensuing struggle, A killed B.
Charged with homicide, A claimed self-defense. Is A entitled
to the justifying circumstance? Decide and give your reasons.

Suggested Answer:

A is not entitled to the justifying circumstance of self-defense.

There is no unlawful aggression on the part of the victim B.
There are two stages in the fight. The first stage was when B
stabbed A repeatedly with a kitchen knife, who managed
however to escape and ran away, pursued by B. When A
reached the safety of his house, he was already safe from the
unlawful aggression of B and so such was deemed to have
ceased. When A took a scythe inside his house and while thus
armed, he went out of his house and dared B to come forward
and fight, be became therefore the challenger. From the facts,
a struggle ensued, which implies that the challenge of A was
accepted by B, which is an agreement to fight and hence
there can be no unlawful aggression. (People vs. Astilla, CA-
GR No. 4391 6 Velayo's Digest, page 124).

(1979 Bar Exam)

X, a private citizen, saw two masked men break into a drug

store across his home. He telephoned the police to come.
Without waiting for the police, he went outside his house with
a pistol and tried to intercept the thieves. He told them to
stop but they did not. He fired several shots at them,
wounded them and caused their hospitalization for 20 days.
May the thieves file any criminal case against X? May X
invoke the defense of the person or rights of a stranger?

Suggested Answer:

The thieves can file a criminal action against X. In defense of

the person or property of a stranger, the elements of (1)
unlawful aggression; (2) reasonable necessity of the means
employed to prevent or repel it; and (3) that the person
defending must not be induced by revenge, resentment or any
other evil motive, must be present. In self-defense of property,
the doctrine is that the attack on the property must be
coupled with an attack upon the person of the possessor of
the property. (People vs. Apolinar, CA 38 O.G. 2870). The
same rule should apply to defense of the property of a
stranger since the first two elements of defense of a stranger
are also the first two elements of self-defense, that is unlawful
aggression and reasonable necessity of the means employed
to prevent or to repel it. The means employed by X in firing
several shots at the thieves was not reasonable as there was
no attack upon the person of the owner of the drugstore or of
any person present therein. Nor can there be defense of the
person of a stranger since unlawful aggression is absent.
(1980 Bar Exam)

"F" and "G" quarreled. "F" attacked "G" with a club two or
three times, but "G" was able to parry the attack. "G" did not
move backwards but struck back hitting "F" on his head with
a lead pipe which he picked up from the ground, causing "F's"
death.
"G" was charged with Homicide. If you were the Judge, would
you find "G" guilty as charged?

Suggested Answer:

If the term "quarreled" implies an agreement to a fight, G

would be guilty of the crime charged. He cannot invoke, self-
defense because if there is an agreement to fight there would
be no unlawful aggression. Any attack is considered as a
mere consequence of the agreement to fight.

On the other hand, if the word "quarreled" involves only a

verbal altercation, G would not be guilty because F committed
unlawful aggression when he attacked G three times with a
club. When G struck back hitting F on his head with a lead
pipe which he picked up on the ground, he acted in self-
defense because the aggression of F was still present, and the
pipe was the only means available to him in defending his
person as he was acting under the instinct of self-
preservation. The assumption is that G did not give any
sufficient provocation which immediately preceded the attack
made by F.

(1981 Bar Exam)

"A" is the wife of "B", but she and "X", her former boyfriend,
were having an illicit relation. One afternoon, "B", unnoticed
by "A", followed his wife to a motel and saw her enter a room
and close the door. After the lapse of some minutes, "B"
managed to get in and found "A" and "X" lying together in
bed. With his knife, "B" lunged at "X " but the latter parried
the thrust and was able to wrest the weapon from "B" and
stabbed the latter to death.
Prosecuted for Homicide, "X" invoked the justifying
circumstance of self- defense in killing "B".

Would you uphold the defense? Explain briefly.

Suggested Answer:

X cannot invoke the justifying circumstance of self-defense.

An essential requisite of self-defense is unlawful aggression.
The act of B in assaulting X when he found him and A, B's
wife, lying together in bed in a room of the motel is natural
and lawful, as it was made by B, the deceived and offended
husband in order to defend his honor and rights. X should
have known that having illicit relations with A, a married
woman, X being her former boyfriend, he was performing an
unlawful and criminal act that would expose him to the
vengeance of the offended husband. The act of B in assaulting
X under the circumstances cannot constitute unlawful
aggression (U.S. vs. Merced 39 Phil. 198). Furthermore, in
view of his illicit relations with A, B's wife, and the situation
in which B found them, lying together in bed, would
constitute sufficient provocation to B for him to attack X. The
third requisite of self-defense which is lack of sufficient
provocation on the part of the person defending himself is,
therefore, also absent.

(1982 Bar Exam)

No.2

"A", intending to kill "B", attacked the latter with a bolo. "In
trying to defend himself with a piece of wood by parrying the
blows delivered by "A", "B" hit "C", an onlooker, on the head,
as a result of which "C" died. Is "B" liable for "C'"s death
under the legal provisions that "although the wrong done be
different from that intended?" Explain your answer.

Suggested Answer:

B is not liable for C's death because he acted in self-defense.

The legal provision that "although the wrong done be different
from that intended" contemplates the commission of a felony
and the wrong done is the direct, natural and logical
consequence thereof even though not intended. Had B acted
in incomplete self-defense, then this provision would apply,
because there is mistake in the blow or aberratio ictus. In the
case of self-defense, however, which is a justifying
circumstance, the act committed is lawful, hence B would not
incur any criminal or civil liability.

"A" intending to kill "B", shot the latter with a gun at close
range. Although hit but not mortally wounded, "B" grappled
with "A" for the possession of the gun until "B" succeeded in
wresting it from his adversary. Immediately thereafter, "B"
fired the gun at "A" whom he killed. Prosecuted for homicide,
"B" interposed self- defense. The prosecution however
contended self-defense was untenable because "A" had
already been disarmed. Decide, explaining fully your decision.

Suggested Answer:

The contention of the prosecution that self-defense was

untenable because A had already been disarmed must be
sustained. The reason is there is no more aggression to be
prevented or repelled. Upon almost identical facts, in the case
of People vs. Dayag et al, 98 SCRA 851 (1980) the Supreme
Court held that as the victim was killed after the accused had
wrested the gun from the former, since there was no more
aggression to stop or repel as the victim was shot and killed
when he was already unarmed and defenseless, self-defense
cannot be invoked.

(1985 Bar Exam)

No.3

Feeling homesick and terribly missing his wife after a long

absence, Ronald, without notice, came home from Saudi.
Arriving at their residence, he immediately proceeded to their
bedroom where he saw his wife lying on their bed under a
mosquito net locked in embrace with his compadre Dante
Ayala. He immediately drew his gun but was beaten to a draw
by Dante whose bullet felled him.

Prosecuted for Homicide for killing Ronald, Dante set up self-

defense but was nevertheless convicted.
 (A) Comment on the validity of Dante's conviction.
(B) In the above given case, supposing Ronald shot Dante and
his (Ronald's) wife, while Dante was on top of the latter, thus
killing both of them, will you grant him the benefit of Article
247 of the Revised Penal Code? Explain.

Suggested Answer:

(A) The conviction of Dante was valid. He cannot claim self-

defense as there was no unlawful aggression on the part of
the victim. When Ronald drew his gun upon surprising his
wife locked in embrace with his compadre Dante while lying
on their bed at their residence, his act was natural and lawful
as it was made by a deceived and offended husband. The act
of Dante in maintaining illicit relations with the wife of his
compadre was unlawful. (U.S. v. Merced 89 Phil. 189).

● To justify defense of relatives the following circumstances concur:

1. Unlawful aggression against a relative;

2. Reasonable necessity of means employed to prevent or
repel it; and
3. Lack of participation in relative’s provocation.

NOTE:
If the victim of unlawful aggression is not mentioned in Art.
11(2) RPC, he is a stranger. Thus, a relative by affinity within
fourth degrees such as first cousin of the wife of the accused is
a stranger.

(2016 Bar Exam)

Pedro is married to Tessie. Juan is the first cousin of Tessie,

while at the market, Pedro saw a man stabbing Juan. Seeing
the attack on Juan, Pedro picked up a spade nearby and hit
the attacker on his head which caused the latter’s death.

Can Pedro be absolved of the killing on the ground that it is

in defense of a relative? Explain.

Suggested Answer:
 No. The relatives of the accused for the purpose of defense of
relative under Art. 11(2) of the RPC are his spouse,
ascendants, descendants, or legitimate, natural or adopted
brothers or sisters, or his relatives by affinity in the same
degrees, and those by consanguinity within the fourth civil
degree.

Relative by affinity within the same degree includes the

ascendants, descendants, brother and sister of the spouse of
the accused. In this case, Juan is not ascendants,
descendants, brother or sister of Tessie, the spouse of Pedro.
Relative by consanguinity within the fourth civil degree
includes first cousin. But in this case Juan is the cousin of
Pedro by affinity but not by consanguinity, Juan, therefore is
not a relative of Pedro for purpose of applying the provision of
defense of relative. Pedro, however, can invoke defense of a
stranger.

● To justify defense of stranger the following circumstances concur:

1. Unlawful aggression against a stranger;

2. Reasonable necessity of means employed to prevent or
repel it; and
3. The person defending (accused) be not induced by
revenge, resentment, or other evil motive.

(1992 Bar Exam)

As Sergio, Yoyong, Zoilo and Warlito engaged in a drinking

spree at Heartthrob Disco, Special Police Officer 3 (SPO3)
Manolo Yabang suddenly approached them, aimed his
revolver at Sergio whom he recognized as a wanted killer and
fatally shot the latter. Whereupon Yoyong, Zoilo and Warlito
ganged up on Yabang. Warlilo, using his own pistol, shot and
wounded Yabang.

a) What are the criminal liabilities of Yoyong, Zoilo and

Warlito for the injury to Yabang? Was there conspiracy and
treachery? Explain.
b) In turn, is Yabang criminally liable for the death of Sergio?
 Suggested Answer:

a) The acts of Yoyong, Zoilo and Warlito are justified under

pars. 1 and 2 of Article 11, RPC, that is, self-defense or
defense of a stranger, as they have reason to suspect that
Yabang might not be satisfied in killing Sergio ONLY, the
three being friends and companions of the victim. Hence, they
are entitled to protect their own lives and limbs from the
unlawful aggression of Yabang. Alternatively, they have the
justified right to defend a stranger (Sergio) whose life at that
moment might still be saved by ganging up on Yabang to
prevent the latter from any further attack by the latter. In
either case reasonable necessity of the means employed and
lack of sufficient provocation are present

b) Yabang is liable for Homicide for the killing of Sergio as the

attack was frontal (Alternative: Murder, because of the
qualifying circumstance of abuse of superior strength, in
terms of weapon). Sergio, being a suspected killer, is no
justification to be killed by Yabang (People vs. Oanis).

DEFENSE OF PROPERTY
● In People v. Apolinar, CA, 38 O.G. 2870, defense of property Is not
such important as right to life, and defense of property can be
invoked as a justifying circumstance only when it is coupled with
attack on the owner of lawful possessor thereof. (1977 Bar Exam)
● In People v. Narvaez, G.R. Nos. 33466-67, April 20, 1983, the
invasion of property is treated as an unlawful aggression although
it was not coupled by an attack against the owner thereof. Art. 429
of the NCC provides that “The owner of the lawful possessor of a
thing has the right to exclude any person from enjoyment and
disposal thereof. For this purpose, he may use such force as may be
reasonably necessary to repel or prevent an actual or threatened
unlawful physical invasions or usurpation of his property.” However,
since the means employed to resist the invader (killing) is not
reasonable, the accused is merely given the benefit of incomplete
self-defense.
● Justice Florens Regalado opined that the rule on Apolinar case may
be deemed to have been superseded by Narvaez case.

(1983 Bar Exam)

Considering that the Revised Penal Code provisions on
justifying circumstances apply to anyone "who acts in defense
of his person or rights," can there be self-defense when there
is simply an aggression against one's property, not coupled
with an attack against his person? Explain.

Suggested Answer:

No. Self-defense will be incomplete. Under the Civil Code,

there is unlawful aggression on the property rights of another.
But to constitute self-defense of property two other elements
must be considered, namely, reasonable necessity of the
means employed to repel the aggression and lack of sufficient
provocation on the part of the person defending his property.
People v. Apolinar (38 O.G. 2079 ) held that there is no self-
defense of property if the attack on the property is not
coupled with an attack on the person of the owner or
possessor of the property. If for example, the owner shot the
aggressor altho his person was not attacked, self-defense of
property will not be present, altho there is unlawful
aggression on his property right, because the means adopted
to repel the aggression is not reasonable. (People vs. Navaez
(1983) 121 SCRA 403)

(1996 Bar Exam)

1) A security guard, upon seeing a man scale the wall of a

factory compound which he was guarding, shot and killed the
latter. Upon investigation by the police who thereafter arrived
at the scene of the shooting, it was discovered that the victim
was unarmed. When prosecuted for homicide, the security
guard claimed that he merely acted in self-defense of property
and in the performance of his duty as a security guard.
If you were the judge, would you convict him of homicide?
Explain.

Suggested Answer:

Yes. I would convict the security guard for Homicide if I were

the Judge, because his claim of having acted in defense of
property and in performance of a duty cannot fully be
Justified. Even assuming that the victim was scaling the wall
of the factory compound to commit a crime inside the same,
shooting him is never justifiable, even admitting that such act
is considered unlawful aggression on property rights. In
People vs. Narvaez, 121 SCRA 329, a person is justified to
defend his property rights, but all the elements of self-defense
under Art. 11, must be present. In the instant case, just like
in Narvaez, the second element (reasonable necessity of the
means employed) is absent. Hence, he should be convicted of
homicide but entitled to Incomplete self-defense.

(1977 Bar Exam)

While C was approaching his car, he saw D slowly driving it

away. So he shouted at D to stop but D instead accelerated
his speed. To prevent his car from being car-napped, C drew
at once hit revolver and fired at D who was by then about
twenty meters away, fatally hitting him on the head. When
charged for the death of D, C interposes the defense of his
rights to property. If you were the judge, will you acquit or
convict C? State your reason.

Suggested Answer:

If I were the Judge, I would convict C. There is no defense of

his right to property because although D drove the car of C
away and he did not stop in spite of his shouts for him to do
so, D had not attacked him. To be entitled to complete self-
defense of property, the attack on the property must be
coupled with an attack upon the person of the owner or
possessor of said property. (People vs. Apolinar, CA 38 O.G.
2870).

(1990 Bar Exam)

In the middle of the night, Enyong heard the footsteps of an

intruder inside their house. Enyong picked up his rifle and
saw a man, Gorio, with a pistol ransacking Enyong's personal
effects in his study. He shot and killed Gorio.
a) Is Enyong criminally liable for killing the robber Gorio?
State your reasons.
 b) Suppose Enyong shot Gorio while he was running away
from Enyong's house with his television set, what is Enyong
liable for? Explain your answer.

Suggested Answer:

a) Enyong is not criminally liable because he was acting in

defense of property rights. Under the case of People v.
Narvaez (G.R Nos. L-33466-67, April 20, 1983, 121 SCRA
389} defense of property need not necessarily be coupled with
aggression against persons.
b) There is criminal liability this time with the mitigating
circumstance of incomplete self-defense. Under the case of
People v. Narvaez, defense of property can be availed of even
when there is no assault against a person. It is recognized as
an unlawful aggression.

MISTAKE OF FACT
● The first requisites of defense of relative or stranger is that there
must be unlawful aggression on the part of the person killed or
injured.
● However, even if there was no unlawful aggression, the accused is
entitled to the benefit of justifying circumstances of defense of
relative or stranger as long as he honestly believed that his relative
or the stranger was a victim of unlawful aggression and the threat
to his life and limb was still present. (U.S. v. Esmedia, G.R. No.
5749, October 21, 1910; Olbinar v. Court of Appeals, G.R. No.
76235, January 21, 1991; 2003 Bar Exam)
● Esmedia case is not applicable if perceived unlawful aggression
against the relative has already ceased when the accused assaulted
the victim. (Pepito v. CA, G.R. No. 119942, July 8, 1999)

(2003 Bar Exam)

The accused lived with his family in a neighborhood that

often was the scene of frequent robberies. At one time, past
midnight, the accused went downstairs with a loaded gun to
investigate what he thought were footsteps of an uninvited
guest. After seeing what appeared to him an armed stranger
looking around and out to rob the house, he fired his gun
seriously injuring the man. When the lights were turned on,
the unfortunate victim turned out to be a brother- in-law on
his way to the kitchen to get some light snacks. The accused
was indicted for serious physical injuries. Should the
accused, given the circumstances, be convicted or acquitted?
Why? 4%

Suggested Answer:

The accused should be convicted because, even assuming the

facts to be true in his belief, his act of shooting a burglar
when there is no unlawful aggression on his person is not
justified. Defense of property or property right does not justify
the act of firing a gun at a burglar unless the life and limb of
the accused is already in imminent and immediate danger.
Although the accused acted out of a misapprehension of the
facts, he is not absolved from criminal liability.

Alternative Answer:

Considering the given circumstances, namely; the frequent

robberies in the neighborhood, the time was past midnight,
and the victim appeared to be an armed burglar in the dark
and inside his house, the accused could have entertained an
honest belief that his life and limb or those of his family are
already in immediate and imminent danger. Hence, it may be
reasonable to accept that he acted out of an honest mistake
of fact and therefore without criminal intent. An honest
mistake of fact negatives criminal intent and thus absolves
the accused from criminal liability.

(1977 Bar Exam)

When A saw B rushing towards him holding a bolo and poised

to strike him, he immediately picked up a pointed iron bar
and believing that his life was in danger as B was close
enough, he made a trust on B hitting him on the stomach
which caused the death of B thereafter. The truth, however, is
that B was merely trying to play a joke on C who was then
behind A. Is A criminally liable for the death of B? State your
reasons.

Suggested Answer:
A is not criminally liable because he acted in self-defense due
to mistake of facts. As the facts of the problem state, A thrust
the pointed iron bar on B, hitting him on the stomach as he
believed that his life was in danger because B was close
enough when he rushed towards A holding a bolo and poised
to strike him. (U.S. vs. Ah Chong, 15 Phil. 488). Under the
circumstances, he had no time or opportunity to verify
whether B was only playing a joke on C who was behind A.
Hence, his mistake of the facts was without fault or
carelessness. He had no alternative but to take the facts as
they appeared to him to justify his act. So A acted in good
faith without criminal intent.

(1988 Bar Exam)

(b) Five laborers were hired by Manuel Diong to harvest

coconuts from a plantation which he told them belonged to
him. Unknown to them, the ownership of the land was in
dispute, and the registered owner subsequently filed a case of
qualified theft against them. How would you defend them?
Explain briefly.

Suggested Answer:

b) I would defend them by citing U.S. vs. Ah Chong (15 Phil.

488) on mistake of facts and charge the owner with violation
of Article 282 on grave threats. In U.S. vs. Ah Chong, the
accused was exempted from criminal liability because he
performed an act which would be lawful had it been true as
he believed that "Grave, threats.— Any person who shall
threaten another with the infliction upon the person, honor or
property of the latter or of his family of any wrong amounting
to a crime, shall suffer. ..".

(1985 Bar Exam)

Pat. Josue, a member of the INP Western Police District,

together with two (2) other policemen, was chasing Katindig, a
notorious police killer. Katindig entered a nearby dimly
lighted warehouse. Josue and his companions continued
pursuing him. When they reached the mezzanine, Josue saw
a man crouching behind a pile of boxes, holding what
 appeared to be a long rifle. When the man suddenly stood up
and faced Josue and his companions, Josue fired at the man
hitting him fatally. It turned out, however, that the deceased
was the warehouseman who was holding a mere lead pipe.
Discuss Pat. Josue's criminal liability for the said killing
stating your reasons.

Suggested Answer:

Patrolman Josue will not incur any criminal liability. He can

invoked in his favor mistake of facts due to good faith. Under
the circumstances, Patrolman Josue shot the victim in the
honest belief that he was the notorious police-killer whom
they were chasing until he entered a dimly lighted warehouse.
In the mezzanine of the warehouse, Patrolman Josue saw a
man crouching behind a pile of boxes holding what appeared
to be a long rifle. The patrolman fired at the man when he
suddenly stood up and faced him. He had no opportunity to
verify first the identity of the victim before acting. He acted,
therefore, without criminal intent and had the facts turned
out to be true, as Patrolman Josue believed them to be, that
is, that the victim was the notorious police-killer, that act
committed would be lawful.

BATTERED WOMAN SYNDROME

· Is a defense notwithstanding the absence of any of the elements
for justifying circumstances of self-defense. (Section 26 of R.A.
No. 9262; 2010 and 2016 Bar Exam)

· Elements:
1. That the battering man, with whom the battered woman
has marital, sexual or dating relationship, inflected
physical harm upon her;
2. That the inflection of the physical harm must be
cumulative; and
3. The cumulative abuse results to physical and
psychological or emotional distress to woman. (Section
3(a), (b), and (c) of R.A. No. 9262)

NOTE:
Since the abuse must be cumulative, there must be at least two
episodes involving the infliction of physical harm. If the first
 episode is infliction of physical harm and the second episode is
verbal abuse, the accused cannot avail battered woman
syndrome as a defense. (2015 Bar Exam)

AVOIDANCE OF GREATER EVIL OR INJURY

· To justify felonious act committed under justifying circumstances
of avoidance of greater evil or injury or state of necessity, the
following elements must concur:
a. That the evil sought to be avoided actually exists;
b. That the injury feared be greater than that done to avoid
it; and
c. That there be no other practical and less harmful means
of preventing it.

1. Threat to Commit Suicide

X, a beauty queen who was raped by three black Americans
went to Dr. Yes and asked for abortion. Dr. Yes steadfastly
refused until X produced a bottle of iodine and informed him
that if he would not abort her baby, she would right then and
there commit suicide. With hesitation but pitying X, Dr. Yes
performed an abortion on X. Dr. Yes is not exempt from
criminal liability. Suicide, which is sought to be avoided, is
not an evil greater than abortion. Moreover, the threat to
commit suicide is not imminent. In sum, evil sought to be
avoided does not exist. (1979 Bar Exam)

2. Lawful Act Is Not an Evil

X armed with a weapon attacked A. B drew his gun to defend
A. But the accused prevented B from shooting X and grappled
with him for possession of the gun. A died. The accused
cannot invoke state of necessity as a defense. The act of B in
defending A is lawful. This lawful act is not an evil which can
be sought to be avoided. (People v. Padernal, G.R. No. L-
30527, March 1974; 2004 Bar Exam)

3. Euthanasia
The killing could not be justified as avoidance of a greater evil
since ending the life of the patient is an evil greater than his
physical sufferings. (1990 Bar Exam)

The accused, who shut off the oxygen that was sustaining the
patient resulting to his death, is liable for murder.
 Euthanasia is not a defense. (1991, 2009, and 2011 Bar
Exams)

4. Abortion
The life of a mother may be considered as more important
than that of the fetus. CA Justice Luis Reyes and Justice
Florenz Regalado opined that abortion to save the life of the
mother is justified under the state of necessity rule. (1999
Bar Exam)

5. Saving His Own Life

The accused in saving his life is in effect avoiding evil. This
evil is greater than killing two individuals because the instinct
of self-preservation dictates that life of the actor is of greater
importance than that of another. There is no other practical
and less harmful means to save his life. The accused has no
choice but to swerve to the right to avoid crashing into a
track. (2011 Bar Exam)

PERFORMANCE OF DUTY
· To appreciate the justifying circumstance of performance of duty
the following requisites must concur:
1. The accused must have acted in the performance of a
duty or in the lawful exercise of a right or office; and
2. The injury caused or the offense committed should have
been the necessary consequence of due performance of
duty or lawful exercise of right of office. (People v. Oanis,
G.R. No. 47722, July 27, 1943)

GR:

A police officer in making a lawful arrest or custodian in

preventing a prisoner from escaping should not fire at
the person to be arrested.

EXPN:

1. They could only fire at the person to be arrested or

prisoner in self-defense. (People v. Felipe Delima,
G.R. No. L-18660, December 22, 1922; 1949 and
1993 Bar Exam)
 2. If it is absolutely necessary to prevent his escape.
(People v. Lagata, G.R. Nos. L-1940-42, March 24,
1949)

(2000 Bar Exam)

a) Lucresia, a store owner, was robbed of her bracelet in her

home. The following day, at about 5 o'clock in the afternoon,
a neighbor, 22-year old Jun- Jun, who had an unsavory
reputation, came to her store to buy bottles of beer. Lucresia
noticed her bracelet wound around the right arm of Jun-Jun.
As soon as the latter left, Lucresia went to a nearby police
station and sought the help of a policeman on duty, Pat.
Willie Reyes. He went with Lucresia to the house of Jun- Jun
to confront the latter. Pat. Reyes introduced himself as a
policeman and tried to get hold of Jun-Jun who resisted and
ran away. Pat. Reyes chased him and fired two warning shots
in the air. Jun-Jun continued to run and when he was about
7 meters away, Pat, Reyes shot him in the right leg. Jun-Jun
was hit and he fell down but he crawled towards a fence,
intending to pass through an opening underneath. When Pat.
Reyes was about 5 meters away, he fired another shot at Jun-
Jun hitting him at the right lower hip. Pat. Reyes brought
Jun- Jun to the hospital, but because of profuse bleeding, he
eventually died. Pat Reyes was subsequently charged with
homicide. During the trial, Pat Reyes raised the defense, by
way of exoneration, that he acted in the fulfillment of a duty.
Is the defense tenable? Explain.

Suggested Answer:

No, the defense of Pat. Reyes is not tenable. The defense of

having acted in the fulfillment of a duty requires as a
condition, inter alia, that the Injury or offense committed be
the unavoidable or necessary consequence of the due
performance of the duty (People vs. Oanis, et.al., 74 Phil.
257). It is not enough that the accused acted in fulfillment of
a duty.

After Jun-Jun was shot in the right leg and was already
crawling, there was no need for Pat, Reyes to shoot him
 further. Clearly, Pat. Reyes acted beyond the call of duty
which brought about the cause of death of the victim.

OBEDIENCE TO A LAWFUL ORDER

Requisites:
1. Order has been issued by a superior;
2. Some order must be for some lawful purpose; and
3. Means used by the subordinate to carry out such order
is lawful.

EXEMPTING CIRCUMSTANCES

Two kinds:
1. General exempting circumstances
Are those listed in Article 12 of the RPC such as
insanity, imbecility, accident, irresistible force,
uncontrollable fear, and unlawful and insuperable
clause and Section 6 of R.A. No. 9344 on minority.
(1950 and 1970 Bar Exam)

2. Specific exempting circumstances

The following are specific exempting circumstances:

1. Relationship in favor of accessory by destroying or

concealing the body, instrument or effects of the
crime or by helping the principal to escape under
certain conditions; or (Article 20) in theft, malicious
mischief or swindling; (Article 332)
2. Exceptional circumstance in favor of one who
inflicted slight or less serious physical injuries upon
his spouse or daughter; (Article 247)
3. Minority in prostitution, sniffing rugby, mendicancy,
or status offense, e.g., parental disobedience,
curfew violation or truancy; and (Sections 57 and
58 of R.A. No. 9344)
4. Being a trafficked victim in prostitution, working
without permit, rebellion or any other crime
committed in relation to trafficking in person or in
obedience to the order made by the trafficker in
relation thereto. (Section 17 of R.A. No. 9208)
 (1998 Bar Exam)

Distinguish between justifying and exempting circumstances.

Answer:

In justifying circumstances:
a) The circumstance affects the act, not the actor;
b) The act is done within legal bounds, hence
considered as not a crime;
c) Since the act is not a crime, there is no criminal;
d) There being no crime nor criminal, there is no
criminal nor civil liability.
Whereas, in an exempting circumstances:
a) The circumstance affects the actor, not the act;
b) The act is felonious and hence a crime but the actor
acted without voluntariness;
c) Although there is a crime, there is no criminal
because the actor is regarded only as an instrument of
the crime;
d) There being a wrong done but no criminal, there is
civil liability but no criminal liability.

(1981 Bar Exam) Exempting circumstances; accident

"A" and "B", both civilian guards, were seated inside the
guardhouse. While "A" was cleaning his service pistol, "B"
snatched it. In the ensuing struggle for the possession of the
weapon. "A" succeeded in wresting it from the hand of "B".
But then the pistol exploded with the bullet hitting the breast
of "C", another civilian guard, who died as a consequence of
the gunshot wound. Is "A " criminally liable for the death of
"C''? Why?

Suggested Answer:

A is not criminally liable. Since his service pistol was

snatched by B, in trying to regain its possession, A was in the
lawful exercise of a right. When A succeeded in wresting the
pistol from the hand of B and it exploded with the bullet
hitting C, A cannot incur any criminal liability as he was
performing a lawful act. Even under the Civil Code, he is
justified to employ reasonable force to repel the unlawful
deprivation of his property, (Art. 429, Civil Code). Criminal
intent is not present nor is there negligence under the
circumstances. The death of C was, therefore, accidental.
(People vs. Bindoy 56 Phil. 15).

(1989 Bar Exam) Exempting circumstances; accident

Nicandro borrowed Valeriano's gun, a high-powered M-16

rifle, to hunt wild pigs. Nicandro was accompanied by his
friend, Felix. On their way to the hunting ground, Nicandro
and Felix met Pedro near a hut, Pedro told them where to
hunt. Later, Nicandro saw a pig and then shot and killed it.
The same bullet, however, that killed the pig struck a stone
and ricocheted hitting Pedro on his breast. Pedro later died.
May Nicandro be held liable for the death of Pedro? Explain.

Suggested Answer:

Nicandro may be held liable for the death of Pedro. While

Pedro's death would seem to be accidental, the requisites of
exempting circumstance of accident are not all present. Said
requisites are:
1. A person is performing a lawful act;
2. With due care;
3. He causes an injury to another by mere accident;
4. Without fault or intention of causing it (Art. 12, par. 4,
RPC).

When Nicandro borrowed Valeriano's high-powered M-16 rifle

and used it for hunting wild pigs, he committed the crime of
illegal possession of firearms, as he does not appear to have
either a license to possess a high-powered gun or to carry the
same outside of his residence. At the time he shot at the wild
pig, therefore, Nicandro was not performing a lawful act.

Furthermore, considering that the M-16 is a high-powered

gun. Nicandro was negligent in not foreseeing those bullets
fired from said gun may ricochet.

(2000 Bar Exam) Exempting circumstances; Article 332

 A, brother of B, with the intention of having a night out with
his friends, took the coconut shell which is being used by B
as a bank for coins from inside their locked cabinet using
their common key. Forthwith, A broke the coconut shell
outside of their home in the presence of his friends.

a) What is the criminal liability of A, if any? Explain. (3%)

b) Is A exempted from criminal liability under Article 332

of the Revised Penal Code for being a brother of B?
Explain. (2%)

Suggested Answer:

a) A is criminally liable for Robbery with force upon

things.....

b) No, A is not exempt from criminal liability under Art.

332 because said Article applies only to theft, swindling
or malicious mischief. Here, the crime committed is
robbery.

MITIGATING CIRCUMSTANCES

Circumstances which can mitigate criminal liability

1. Incomplete justifying or exempting circumstances;

2. The offender is under 18 or over 70 years old;
3. No intention to commit so grave a wrong (praeter
intentionem);
4. Sufficient threat or provocation;
5. Vindication of a grave offense;
6. Passion or obfuscation;
7. Voluntary surrender;
8. Physical defect;
9. Illness of the offender;
10. Similar and analogous circumstances; and
11. Humanitarian reasons.

Classes of mitigating circumstances

1. Ordinary mitigating; and

 2. Privileged mitigating

Ordinary mitigating vis-à-vis Privileged mitigating

1. Ordinary mitigating can be offset by aggravating

circumstances. On the other hand, privileged mitigating
can never be offset by any aggravating circumstance.
2. Ordinary mitigating circumstances, if not offset, will
operate to reduce the penalty to the minimum period,
provided the penalty is a divisible one. While privileged
mitigating circumstances operate to reduce the penalty
by one to two degrees, depending upon what the law
provides.

INCOMPLETE JUSTIFICATION OR EXEMPTION

1. If all of the requisites of a circumstance mentioned in Art

11 and 12 are present, justifying or exempting
circumstances shall be appreciated.
2. If majority of the requisites of such circumstances are
present, the privileged mitigating circumstance of
incomplete justification or exemption shall be
appreciated. (Article 69)
3. If only minority of the requisites of such circumstances is
present, the ordinary mitigating circumstance of
incomplete justification or exemption shall be
appreciated. (Article 13)
4. If a circumstance has three requisites, such as self-
defense, two out of three conditions is majority. (1947
and 2013 Bar Exam)

MINORITY

Coverage:
Offenders who are:
1. Over 15 but under 18 years old who acted
with discernment; and
2. Over 70 years old

· In case of minority, the circumstance is either exempting

or privileged mitigating. There is no ordinary mitigating
circumstance of minority. (1953 Bar Exam) In privileged
 mitigating circumstance of minority, the penalty shall be
lowered by one degree. (Article 68)

NOTE:
The second paragraph of Article 68 on lowering the
penalty by two degrees is already obsolete.

· Seniority as mitigating circumstance can only be

considered if the offender is over 70 years of age at the time of
the commission of the crime and not at the time of the
promulgation of the decision. (People v. Reyes, G.R. Nos.
177105-06, August 12, 2010)

PRAETER INTENTIONEM

· The mitigating circumstances that the offender had no

intention to commit so grave a wrong as that committed or
praeter intnetionem 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. (People v.
Maglian, G.R. No. 189834, March 30, 2011)
· The mitigating circumstance of preater intentionem
cannot be appreciated where the acts employed by accused
were reasonable sufficient to produce the death of the victim.
(People v. Sales, G.R. No. 177218, October 3, 2011)

THREAT OR PROVOCATION

· THREAT

Considered as mitigating circumstance if the following

conditions are present:
1. There must be a threat on the part of the offended
party;
2. The threat must be sufficient; and
3. The threat must immediately precede the criminal
act committed by the offender.

· PROVOCATION
 To be considered as mitigating circumstance if the following
conditions are present:
1. There must be provocation on the part of the
offended party;
2. The provocation must be sufficient; and
3. Provocation must be immediately precede the
criminal act committed by the offender.

NOTE:
Provocation can only be appreciated in crime against
person. One cannot provoke another person to commit
forcible abduction, theft or estafa. (2018 Bar Exam)

VINDICATION OF A GRAVE OFFENSE

· To appreciate the mitigating circumstance of vindication of

grave offense, the following requisites must be present:
1. Victim committed grave offense;
2. The grave offense was committed against the
offender or his spouse, ascendants, descendants,
legitimate, illegitimate or adopted brothers or
sisters, or his relatives by affinity within the same
degrees; and
3. The offender committed the crime in proximate
vindication of such grave offense.

· If the grave offense is committed by a third person against

the adopted brother of the accused, vindication is not a
mitigating circumstance. To appreciate this circumstance,
the victim himself must commit the grave offense. (People
v. Dagatan, G.R. No. L-10851, August 28, 1959; 2011 Bar
Exam)

PASSION OR OBFUSCATION

· Requisites:
1. There was an act that was both unlawful and
sufficient to produce such condition (passion or
obfuscation) of the mind;
2. Such act was not far removed from the
commission of the crime by a considerable length
 of time, during which the perpetrator might have
recovered his normal equanimity; and
3. Passion must arise from lawful sentiment of the
offender and not from spirit of lawlessness or
revenge.

· The accused, who raped his victim in extreme state of

passion is not entitled to mitigating circumstance of
passion because this circumstance can only be appreciated
if passion arose from the lawful sentiment of the offender
and not from spirit of lawlessness. (People v. Sanico, C.A.
46 O.G. 98; 2011 Bar Exam)

VOLUNTARY SURRENDER

· A surrender to be voluntary must be spontaneous;

· Showing the intent of the accused to submit himself
unconditionally to the authorities, either because he
acknowledges his guilt, or he wishes to save them the
trouble and expenses necessarily incurred in his search
and capture.
· Voluntary surrender presupposes repentance. (People v.
Tabarnero, G.R. No. 168169, February 24, 2010; 1999 and
2019 Bar Exams)

Requisites:
1. The offender has not actually been arrested;
2. The offender surrendered himself to a person in
authority; and
3. The surrender was voluntary.

VOLUNTARY CONFESSION

· To appreciate voluntary confession as mitigating

circumstance, the following requisites must concur:
1. The accused spontaneously confessed his
guilt;
2. The confession of guilt was made in open
court;
3. The confession was made before a competent
court trying the case; and
 4. The confession of guilt was made prior to the
presentation of evidence by the prosecution.
(People v. Juan, G.R. No. 152289, January
14, 2004; 1999 and 2019 Bar Exams)

PHYSICAL DEFECT
· Requisites:
1. The offender is deaf and dumb, blind, or
otherwise suffering from some physical
defect; and
2. Such physical defect restricts his means of
action, defense, or communication with his
fellow beings.

· According to Justice Florenz Regalado, if the accused

is totally blind or deaf and dumb, he does not have to
prove that his means of action, defense or
communication are thereby restricted; but in the
case of other physical defects, he must prove such
restrictions. (2011 Bar Exam)

ANALOGOUS OR SIMILAR MITIGATING CIRCUMSTANCES

· Extreme Poverty
Extreme poverty and necessity are mitigating
circumstances under Article 13(10) of the RPC in
cognition of the principle that the right to life is
more sacred than mere property right. This rule is
not to encourage or even countenance theft, but
merely to dull somewhat the keen and pain-
producing edges of the stark realities of life.
(People v. Macbul, G.R. No. 48976, October 11,
1943; 2011 Bar Exam)

Extreme poverty as a mitigating circumstance can

only be appreciated in crimes against property
such as theft. It cannot be considered in the crime
of murder (People v. Agustin G.R. No. L-18368,
March 21, 1966) or sale of dangerous drugs
committed by a minor. (Gallardo v. Tabamo, Adm,
Matter No. RTJ-92-881, June 22, 1994)
· Error in Personae is not a Mitigating Circumstance
Killing of person by reason of error in personae or
aberratio ictus is not a circumstance analogous to
praeter intentionem (lack of intent to commit so
grave a wrong)

In People v. Gona G.R. No. 32066, March 15, 1930,

mistake in killing one man instead of another did
not relieve him from criminal responsibility and
could not even be considered a mitigating
circumstance.

· Analogous to Minority or Senority

In People v. Abad, G.R. No. L-430, July 30, 1947,
accused was 20 years of age at the time of the
commission of the crime of treason. His brothers,
on whom he is dependent for support, were in the
service of the Japanese. In view of his immature
age, he did not allow him to fully discern
consequences for his acts. The mitigating
circumstance similar to minority was considered.

In People v. Reantillo and Ruiz, C.A., G.R.No. 301,

July 27, 1938, the fact that the accused was over
60 years old and with failing sight, is analogous to
the mitigating circumstance of seniority.

· Analogous to Vindication
The victim took away the carabao of the accused
and held it for ransom. The carabao died. Accused
killed the victim. The mitigating circumstance
analogous to vindication was considered. (People
v. Monag, G.R. No. L-39528, November 19, 1982)

· Analogous to Passion
The following circumstance were considered as
analogous to passion in the killing of the victims:

1. Outrage feeling of debtor against his

creditor (People v. Ong, G.R. No. L-
34497, January 30, 1975);
 2. Outrage feeling of creditor against his
debtor (The RPC by Luis Reyes;
Merenillo, C.A., 36 O.G. 2283)
3. Outrage feeling of soldier against a
rebel (People v. Quintos, G.R. No.
51107, June 4, 1990)
4. Appeal to esprit de corps (The RPC by
Luis Reyes)

· Analogous to Voluntary Surrender

Restitution of fund or partial restitution is a
mitigating circumstance analogous to voluntary
surrender if it was immediately and voluntarily
made before the case was instituted. This
circumstance can be appreciated in malversation
(Navarro v. Menesses III, supra) or failure to render
an accounting. (People v. Lumauig, G.R. No.
166680, July 7, 2014)

The following circumstances are not analogous to

voluntary surrender:
1. Surrender to authority for rebellion, which is
different from crime (robbery with homicide)
for which he is prosecuted. (People v.
Semañada, G.R. No. L-11361, May 26, 1958);
2. Yielding to arrest without slightest attempt
at resistance (People v. Rabuya, G.R. No. L-
30518, November 7, 1979);
3. Surrender of their weapons to the prison
authorities (People v. Verges, G.R. No. L-
36882-84, July 24, 1981; 2011 Bar Exam);
and
4. Going to the police station the following day
of the crime incident where he was easily
apprehended. (People v. Jabian, G.R. Nos.
139213-14, April 4, 2001)

· Analogous to Voluntary Surrender

Testifying for prosecution without previous
discharge as a state witness is a mitigating
circumstance analogous to voluntary surrender.
 (People v. Navasca, et al., G.R. No. L-28107, March
15, 1977)

INDETERMINATE SENTENCE AND PAROLE LAW

The basic purpose of the Indeterminate Sentence Law is to

uplift and redeem valuable human material, and prevent
unnecessary and excessive deprivation of personal liberty and
economic usefulness; it is necessary to consider the criminal, first,
as an individual and second, as a member of society. The
Indeterminate Sentence Law aims to individualize the
administration of our criminal law to a degree not heretofore known
in these Islands. (People v. Ducosin, G.R. No. 38332, December 14,
1933; 1964 and 1970 Bar Exams) The fundamental principle in
interpreting and applying penal laws is the principle of pro reo.
(2013 Bar Exam) The phrase in dubio pro reo means when in doubt,
for the accused. (Intestate estate of Gonzales v. People, G.R. No.
181409, February 11, 2010) The Indeterminate Sentence Law is
intended to favor the accused, particularly to shorten his term of
imprisonment. (People v. Temporada, G.R. No. 173473, December
17, 2008) Hence, pro reo principle must be used in interpreting
Islaw.

Coverage of the Indeterminate Sentence Law

Under Section 2 of ISLAW and other related laws, the benefits

of parole or indeterminate sentence are not applicable to the
following cases (1947, 1959, 1964, 1970, 1988, 1999 and 2003
Bar Exams):

1. Treason, conspiracy or proposal to commit treason (2012 Bar

Exam), misprision of treason, rebellion or sedition, espionage or
piracy.

2. Habitual delinquents. Note: A recidivist is not excluded from

the coverage of the ISLAW. (2012 Bar Exam)
3. Those who have escaped from confinement or evaded sentence.
(1983 Bar Exam). Note: The law contemplates confinement in
prison and not in a mental hospital. (1991 Bar Exam)

4. Those who violated the terms of conditional pardon.

5. Penalty of imprisonment, the maximum term of which does not

exceed one year. Note: If the duration of penalty is too short such
as 10 days, it is not practical to apply the Islaw for purposes of
parole. Under the law, the penalty must be at least 1 year and 1
day of imprisonment, to apply the rule on indeterminate sentence
for purposes of parole.

The penalty of prision mayor for grave threat exceeds one

year of imprisonment; hence, the accused can avail the
benefit of Indeterminate Sentence Law. (2019 Bar Exam)

6. Death penalty or life imprisonment (Section 2 of Act No. 4103);

or reclusion perpetua. (R.A. No. 9346; 1990 Bar Exam)

Note: To exclude the accused from the coverage of Islaw,

what is important is not the prescribed penalty, but that
actually imposed in accordance with the law. For example, the
penalty is reclusion temporal in its medium period to reclusion
perpetua as prescribed for sexual abuse. If there is an
aggravating circumstance, the court shall impose reclusion
perpetua; hence, Islaw is not applicable. If there is a mitigating
circumstance, the court shall apply the penalty in its
minimum period, and that is, reclusion temporal in its medium
period. Hence, Islaw is applicable. (1955 and 1962 Bar Exams)

The penalty of murder is reclusion perpetua to death;

hence, the accused cannot avail the benefit of Islaw. (2019
Bar Exam)

7. Use of trafficked victim; (Section 11 of R.A. No. 9208, as

amended by R.A. No. 10364) and
 8. Non-prison sentence.

Note: Under the Islaw, in imposing a “prison sentence” for an

offense, the court shall sentence the accused to an indeterminate
sentence. Hence, Islaw is not applicable in imposing “non-prison
sentence” such as destierro or rehabilitation for use of dangerous
drugs. (2007 Bar Exam)

The penalty of disqualification is not subject to the rule on

indeterminate sentence for purposes of parole because it is not a
prison sentence. (Perlas v. People, G.R. Nos. 84637-39, August 2,
1989)

CRIMES AGAINST PERSONS

PARRICIDE

Legitimate Relationship

The rule on not treating illegitimate grand relationship as a

qualifying circumstance in parricide is based on social conditions
before where grandparents were usually not accepting illegitimate
grandchild in the family. The act of killing committed against or by
an illegitimate grandchild is not serious as an act of killing
committed against or by a legitimate grandchild. Hence, an
illegitimate grand relationship under the law will not qualify the
killing into parricide to upgrade the penalty.

An offender, who killed his illegitimate grandchild, who was

asleep, and taking his wallet afterward, is liable for murder
qualified by treachery and aggravated by relationship, and theft.
The crime is not parricide since the relationship of the offender in
this crime with his ascendant other than his child must be
legitimate (2012 Bar Exam).

In parricide involving spouses, the best proof of the legitimate

relationship between the offender and victim is their marriage
certificate. However, in proving the legitimate spousal relationship
between the accused in parricide and the victim, the court may
consider oral evidence, if the same is not contested (1978 Bar
Exam), the admission of the accused (People v. Macal, G.R. No.
211062, January 13, 2016) or the principle of semper praesumitur
pro matrimonio or the presumption established by the Rules of
Court that a man and a woman deporting themselves as husband
and wife have entered into a lawful contract of marriage.

Killing an adopted son is parricide because under Section 17

of R.A. No. 8552, the adoptee shall be considered the legitimate son
of the adopters “for all intents and purposes.”

K is married to H, while D is their daughter. D, who was

impregnated by H, gave birth to a baby boy named V. Exactly three
days after birth, K killed V. What is the crime committed? (2012
Bar Exam)

K is not liable for infanticide since V is not a child less than

three days of age. Neither is K liable for parricide. V being the son of
K’s daughter and K’s husband is the illegitimate grandson by
consanguinity and the stepson (son by affinity) of K. However, an
illegitimate grand relationship and affinity relationship (except
spousal relationship) is not a qualifying circumstance in parricide.
K is liable for murder qualified by treachery.

INFANTICIDE

There are three requisites to make killing as infanticide, to wit:

1. The infant must be killed outside the maternal womb. An

unborn fetus is not an infant. Hence, killing an unborn fetus
regardless of its viability or intrauterine life is not infanticide, but
abortion;

2. The infant must be viable. Even though the fetus is born alive,
if it is non-viable, it shall not be considered as an infant for
purposes of the crime of infanticide. Killing a non-viable fetus
outside the womb is still abortion; and
 3. The infant must be less than three days old. For medical
purpose, a 3-month-old child is an infant. But for purpose of
infanticide, an infant is a child less than 3 days old. A child with
a life of three (3) days or more is not an infant; hence killing a
child who is not an infant, is not infanticide but parricide or
murder.

Live-in partners killed their newly-born child to conceal

dishonor. If the victim is a non-viable fetus, the crime committed is
abortion; if the victim is a viable infant with a life of less than three
days, the crime committed is infanticide. If a victim is a baby with a
life of three days or more, the crime committed is parricide. (2006
Bar Exam)

Killing a three-day old baby is not infanticide since his life is

not less than three days old. The crime committed is murder
qualified by treachery. Minor children, who by reason of their
tender years, cannot be expected to put a defense. When an adult
person illegally attacks a child, treachery exists. (People v. Fallorina,
G.R. No. 137347, March 4, 2004; 2012 Bar Exam)

MURDER is committed by any person who shall kill another person

without the qualifying circumstance of infanticide and parricide,
and with any of the following qualifying circumstances:

PETSA-WICO-MIGO

(1) in consideration of a price, reward or promise;

(2) evident premeditation

(3) treachery

(4) taking advantage of superior strength

(5) aid of armed men

(6) employing means to weaken the defense

(7) employing means or persons to insure or afford impunity

(8) cruelty
 (9) outraging or scoffing at his person or corpse

(10) by means of inundation, fire, poison, explosion,

shipwreck, stranding of a vessel, derailment or assault
upon a railroad, fall of an airship

(11) by means of motor vehicles

(12) with the use of any other means involving great waste
and ruin

(13) on occasion of calamity (Article 248; 2012 Bar Exam)

Disregard of dwelling is not a qualifying circumstance in murder.

(2014 Bar Exam)

Multiple Qualifying Circumstances

There are three rules to be considered if the killing is attended

by several qualifying circumstances, to wit: (1) doctrine of
absorption; (2) the rule on qualifying circumstance and aggravating
circumstances; and (3) the rule on infanticide, parricide, and murder.

1. DOCTRINE OF ABSORPTION – If there are two or more

circumstances based on the same incident, only one will be
appreciated while the others are absorbed. If the offenders,
who killed the victim, took advantage of their superior strength to
render him defenseless, the crime committed is murder qualified
by the circumstance of treachery. Abuse of superior strength is
absorbed in treachery. If the accused who killed the victim, took
advantage of the darkness of the night to render the victim
defenseless, the crime committed is murder qualified by the
circumstance of treachery. Nighttime is absorbed in treachery.

2. RULE ON QUALIFYING CIRCUMSTANCE AND

AGGRAVATING CIRCUMSTANCES – If two or more
circumstances attended the killing, one will be appreciated to
qualify the killing into murder and the others to aggravate the
criminal liability of the accused. If the offender killed the victim
with the circumstances of treachery and evident premeditation,
treachery shall be appreciated to qualify the killing into murder;
and evident premeditation to aggravate his criminal liability.
(1948 Bar Exam)

As a rule, qualifying circumstances in murder under

Article 248 are also listed as ordinary aggravating
circumstance in Article 14. However, there are exceptions.
Scoffing at the corpse and employment of means to afford
impunity are qualifying circumstances in murder, but they are
not ordinary aggravating circumstances. In this situation, the
appreciation of the qualifying circumstance must be giver
priority over that of ordinary aggravating circumstance.

3. RULE ON INFANTICIDE, PARRICIDE, MURDER AND

HOMICIDE – To be held liable for parricide, the killing must not
constitute infanticide. In sum, the child killed by the offender
must not be less than three years old. (The Revised Penal Code
by Justice Luis Reyes) To be held liable for murder, the killing
must not constitute parricide or infanticide. (People v. Dimapilit,
G.R. No. 210802, August 9, 2017) To be held liable for homicide,
the killing must not constitute infanticide, parricide or murder.
(Licyayo v. People, G.R. No. 169425, March 4, 2008)

The provision on infanticide shall be given priority over

those on parricide and murder. The provision on parricide
shall be given priority over that of murder.

1. Father killed his child less than three days old.

(1999 and 1982 Bar Exams) The qualifying
circumstances of infancy, relationship, and
treachery are present in this case. The Court
must appreciate circumstance of infancy to
qualify the killing into infanticide. The
circumstance of relationship shall be
considered to impose penalty for parricide.
 (People v. Jaca, G.R. No. 34866, August 18,
1931) Treachery for being inherent in
infanticide is absorbed. (U.S. v. Oro, 19 Phil.
548)

The penalty for infanticide is the same as that for

parricide or murder (before, the penalty for parricide
than that of murder). If the accused is related to the
infant, the penalty for parricide shall be imposed for
the crime of infanticide. Otherwise, the imposable
penalty for infanticide is that for murder.

2. If the qualifying circumstances of relationship and

by means of poison are present, the court must
appreciate circumstance of relationship to qualify
the killing into parricide. By means of poison shall
be considered as an ordinary aggravating
circumstance.

3. If the qualifying circumstances of treachery and

evident premeditation are present, the court must
appreciate circumstance of treachery to qualify the
killing into murder. Evident premeditation shall be
considered as ordinary aggravating circumstance.

HOMICIDE – is committed by any person who kills another without

the qualifying circumstance in infanticide, parricide, or murder.
(Article 249) The penalty for homicide is reclusion temporal.
However, under Sec. 10 of the R.A. No. 7610, when the victim is
below 12 years of age, the penalty for homicide is reclusion
perpetua. In sum, that the victim is below 12 years of age is a
qualifying circumstance.