Chapter Three

CIRCUMSTANCES WHICH MITIGATE CRIMINAL LIABILITY

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.
- these are justifying and exempting circumstances in which the absent is either one or both of
the last two requisites (incomplete self defense)

Ex of incomplete self defense: unlawful aggression and one of the last two req is present= privileged
mitigating circumstance

Circumstances of J&E which may give place to mitigation

a) Self defense
b) Defense of relatives
c) Defense of stranger
d) State of necessity
e) Performance of duty
f) Obedience to order of a superior
g) Minority above 15 but below 18
h) Causing injury by mere accident
i) Uncontrollable fear

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.
-repealed by Juvenile Justice and Welfare Act of 2006
-15 to 18 years old presumed acted w/o discernment but if proven acted with discernment then
such child shall undergo diversion programs

BASIS: Diminution of intelligence

Diversion- alternative, child appropriate process of determining responsibility and conflict of a child in
conflict with the law

Diversion program- refers to program hat child in conflict with law is required to undergo after he/she is
found responsible for an offense without resorting to formal court proceedings

 That the offender is over 70 years old- mitigating circumstance

 Prohibits death penalty and will only be lowered to life imprisonment

3. That the offender had no intention to commit so grave a wrong as that committed.
- facts shows that there is notable and evident disproportion between the means employed to
execute the criminal act and its consequences

BASIS: intent is diminished

Example:
  husband and wife quarrelling, H punched W in abdomen causing rupture of spleen and she died
 single blow only and died because of lack of medical treatment
 Intention being an internal state must be judged by external acts

Example:

-the blow was not aimed at vital parts of body

- accused allowed victim to secure medical treatment

-rapist held the neck of the victim and pressed it down when the latter resisted

-inflicted a fatal wound but clearly no intention to kill victim

-used a 6 inches long knife =NOT

 The weapon used, part of body injured, the injury inflicted and the manner it is inflicted may
show that the accused intended the wrong committed
Ex: inflicting 5 stab wounds in rapid succession negates pretense of lack of intention to cause
serious injury
 This article not applied when the offender employed brute force
Ex: accused claiming “my intention was only to abuse her” but the victim was of tender age

 It is the intention of the offender atm he is committing the crime which is considered and not
during the planning stage
Ex: accused only planned to rob but not to kill but it was shown that they ganged up their
victim, employed deadly weapons and inflicted mortal wounds. At that precise moment,
they intend to kill the victim.
 Lack of intention to commit so grave a wrong in robbery with homicide= mitigating only
 Lack of intention to commit a grave wrong is not aggravating in treachery because an example of
this is when the accused fled the scene only after the victim had fallen down
 Lack of intent to kill is not mitigating in physical injuries-> such as when a person did not die of
assault the absence of intent to kill will only be converted to physical injuries but not mitigating

NOTE: it is mitigating when victim dies = the physical injuries inflicted on the victim could not have
resulted naturally and logically in the actual death of the victim if the latter’s heart was in good
condition.

 Not applicable to felonies by negligence-> the intent in intentional felonies replaced by lack of
foresight or skill in culpable felonies
 Applicable to felonies where intention of offender is immaterial

Ex: unintentional abortion- NO, but when someone pulled the hair of 3 months pregnant in which
resulted to vaginal hemorrhage- YES

 Applicable only to offenses in resulting physical injuries or material harm-> defamation or

slander= NOT INCLUDED
 Applicable in malversation of public funds
Ex: misappropriated funds used for medical treatment and restituted it later

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

BASIS: diminution of intelligence and intent

Provocation

- unjust or improper conduct capable of exciting, inciting or irritating anyone

- Whether it is sufficient will depend on social standing of a person, place and time when
provocation was made

REQUISITES:

a) That provocation must be sufficient

b) It must originate from offended party
c) Provocation must be immediate to the act

Sufficient- means adequate to excite a person to commit a wrong and must be accordingly
proportionate to its gravity

Ex of sufficient provocation:

- the accused ordered him out but persisted, so a blow was given to him
- kicking and cursing the accused
- accused saw unknown person jump out of a window and wife begged not to
- accused accepted challenge of fight-> no UA but there is sufficient provocation
- when the defendant sought the deceased and willing to fight- no provocation
- hit on the eye before the agreed fight
- intoxicated and found out dinner was not served and killed his wife
- kicking on chest prior to stabbing-> no UA but there is sufficient provocation

Ex of provocation not sufficient:

 asked another for explanation of derogatory remarks

 accused killed police officer giving such order -> performance of duty not a source of
provocation
 Provocation must originate from offended party
 Sufficient provocation as requisite of incomplete self defense pertains on absence on the part of
person defending himself; while as a mitigating circumstance it pertains to the presence on the
part of offended party
- The provocation by the deceased in the first stage of fight is not a mitigating circumstance
when the accused killed him after he had fled.
 Provocation must be immediate to the commission of crime-> there should not be interval of
time as it immediately preceded the act
 Threat immediately preceded the act
NOTE: threat should not be offensive and positively strong as the threat to inflict real injury is a UA
which may give rise to self defense

- vague threats not sufficient such as mere utterance of “if you do not agree beware” but if he say
“follow us if you dare and we will kill you” which is straight to the point then there is sufficient threat.

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.

BASIS: diminution of voluntariness

REQUISITES

a) There must be a grave offense to the one committing felony to relatives

b) The felony is committed in vindication of such grave offense. A lapse of time is allowed between
vindication and doing of grave offense

 Applies to grave offense committed against surviving spouse of deceased relative

Examples of lapse of time:

- Although the grave offense is slapping was not immediate, the influence thereof by reason of its
gravity and circumstances under which it was inflicted lasted until the moment the crime was
committed
- Killing of paramour by offended husband one day after adultery is still proximate
- Abducting the daughter of accused and vindication was two or three days-> offense did not
cease when the whereabouts was unknown and elopement is a grace offense to their honor

 Provocation is made directly only to the person committing the felony; in vindication the grave
offense may be committed also against offender’s relative mentioned by law
 In vindication, offended party must have done grave offense to offender or his relatives; in
provocation, the cause that brought it need not be grave offense
 In provocation, it is necessary that provocation or threat immediately preceded the act as if
there is no interval of time between them. In vindication, there can be interval of time as long as
it is within a reasonable time
 Vindication concerns honor of a person which is more worthy of consideration than mere spite
against the one giving the provocation or threat ex: killing of a relative is a grave offense

NOTE: PASION OR OBFUSCATION OR VINDICATION OF GRAVE OFFENSE- CHOOSE ONE ONLY MITIGTING
CIRCUMSTANCE

 Basis to determine gravity of offense of violation is social standing of the person, the place and
time when insult was made

Example:

- Joke in presence of many guests to a 70 year old man- age and place
- Sarcastic remark implying accused is a petty tyrant
- Remark under ng asawa while there are guests- place
 - You are a Japanese spy during world war- time
- Person kills another having found him in the act of committing an attempt against his wife-
against honor
- Injured party insulted father of accused
 The provocation should be proportionate to the damage cause by the act and adequate to stir
one to its commission
 Grave offense must be directed to the accused- if general at parinig lang bawal pikon

6. That of having acted upon an impulse so powerful as naturally to have produced passion or
obfuscation.
- Must arose from LAWFUL SENTIMENTS. Not applicable in spirit of lawlessness and revenge.

REASON MITIGATING: he loses his reason and self-control diminishing exercise of will power

- Diminution of intelligence and intent

This paragraph requires----

a) The accused act upon impulse

b) Impulse must be so powerful that it naturally produced passion or obfuscation

REQUISITES:

a) There be an act both unlawful and sufficient to produce such a condition of mind
b) That said act which produced obfuscation was not far removed from commission of crime by a
considerable length of time, during which perpetrator might recover his normal equanimity

Examples:

- Common law wife left common law husband- not entitled mitigating because no legitimate right
not married BUT if accused killed his wife because of jealousy and her refusal to return home
then there can be mitigating circumstance. Another thing there should no illicit relationship as it
arose from unlawful. For common law couple it depends if the situation is wherein there is
natural feeling of despair and abandonment because she made tons of sacrifices for husband
but the latter made her broken.
- Natural instinct that impels a father to rush and rescue son regardless of whether the latter be
right or wrong

 Exercise of a right or fulfillment of a duty is not a proper source of passion or obfuscation

 The act must be sufficient to produce such condition on mind- di mababaw
 No passion or obfuscation after 24 hours or several hours or half an hour- accused might have
recovered his normal equanimity
 The defense must prove that the act which produced passion or obfuscation took place at a time
not far removed from commission of crime
 The crime committed must be result of a sudden impulse of natural and uncontrollable fury
- obfuscation cannot be mitigating when pre planned and calmy meditated before execution
 In spirit of lawlessness- an example is when he finds himself in a secluded place with a ravishing
woman almost naked he acted upon impulse so powerful as to have produces passion
  The offender must act under impulse of special motives- excitement is a natural feeling of all
persons engaged in a fight
 Obfuscation arising from jealousy- cannot be invoked if common law wife or kabit
 The cause producing pasion or obfuscation must come from the offended party
 Passion or obfuscation may lawfully arise from honest belief of offender- kahit maling akala

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;

BASIS: voluntary surrender

2 mitigating circumstances are provided:

a) Voluntary surrender to a person in authority or his agents

b) Voluntary confession of guilt before the court prior to the presentation of evidence for
prosecution

- WHEN BOTH ARE PRESENT THEN TWO INDEPENDENT MITIGATING FACTOR

REQUISITES of voluntary surrender

a) The offender had not been actually arrested

b) Offender surrendered himself to a person in authority or to latter’s agent
c) Surrender was voluntary – he acknowledged his guilt or because she wishes to save them the
troubles and expenses necessarily incurred in his search and capture
- His conduct after commission of crime must indicate a desire on his part to own responsibility
for crime

Examples:

- Accused who ran to municipal building after commission of crime indicates voluntary surrender
- Accused helped in carrying victim to hospital where he is disarmed and arrested
- Warrant returned unserved for failure to locate accused and he voluntarily presented himself to
police
- Accused completely surrounded no time to escape- NOT APPLICABLE
 The law does not require that surrender be prior to the order of arrest – it will depend on actual
facts
 Surrender of weapons not be equated with voluntary surrender
 Voluntary surrender does not mean non flight- it doesn’t matter if accused never avoided arrest
and never hid or fled. What the law considers mitigating is voluntary surrender before his arrest
acknowledging his guilt and intention to save authorities from trouble and expense
 Rpc does not make distinction among various moments when surrender may occur such as time
and place. Unless, appellants surrendered because they find it impossible to live in hostility and
resistance when martial law was declared.
 Surrender must be by reason of commission of crime for which defendant is prosecuted- thus if
he surrendered as HUK to take advantage of amnesty but the crime for which he was
prosecuted was separate from rebellion then his surrender is not mitigating
  Surrender through an intermediary is mitigating
 The surrender must be spontaneous- idea of inner impulse acting without external stimulus
- Intention to surrender without actually surrendering not mitigating
- There is spontaneity even if surrender is induced by fear of retaliation by victim’s relatives
- When the offender imposed a condition or acted with external stimulus his surrender is not
voluntary

Plea of guilty

- Must be made before trial begins

- If after trial then not entitled to mitigating
- Plea of guilty on appeal not mitigating because it should be made at first opportunity
- Plea of guilty on preliminary investigation is no plea at all
- The confession of guilt must be made in an open court and not extrajudicial confession
- Confession made prior to presentation of evidence for prosecution
- Withdrawal of plea of not guilty and pleading guilty before presenting evidence is still mitigating
because what law requires is voluntary plea of guilty prior to presentation of evidence of
prosecution
- The change of plea should be made at first opportunity- sometimes kasi it is invoked due to fear
of eventual conviction
- A conditional plea of guilty is not mitigating
- Plea of guilty to amended info is mitigating
- Plea of guilty to lesser offense than that charged, not mitigating
- Plea of guilty to the offense charged in the amended information, lesser than charged in original
complaint is mitigating
- Plea of guilty not mitigating in culpable felonies and in crimes punished by special law
 Death penalty reduced to life imprisonment because of plea of guilty even if done during
presentation of evidence

Reason why plea of guilty is mitigating: act of repentance and respect for law

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.

BASIS: restricts one’s action, defense or communication and does not have complete freedom of action
and therefore there is diminution of that element of voluntariness

 Physical defect- armless, cripple or stutterer

 In equal footing when deaf-mute or blind is educated or not

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.

BASIS: diminution of intelligence and intent

  When the offender completely lost exercise of will power it may be an EXEMPTING circumstance
such as schizophrenia or manic-depressive psychosis= no control whatsoever of his acts
 This par refers only to diseases of pathological state that trouble the conscience or will. May also
include illness of mind not amounting to insanity.

Illness of offender considered mitigating:

- Killing of witches
- Mild behaviour disorder- trauma
- Acute neurosis- ill tempered and easily angered
- Feeblemindedness
- Schizo-affective disorder- diminishes will power

10. And, finally, any other circumstances of a similar nature and analogous to those above
mentioned.
 Over 60 years old with failing eyesight similar to over 70 yrs old mentioned in
paragraph 2
 Outraged feeling of owner of animal taken for ransom analogous to vindication for
grave offense
 Outraged feeling of creditor similar to passion or obfuscation
 Impulse of jealous feeling similar to passion and obfuscation
 Manifestation of battered wife syndrome
 Esprit de corps similar to passion or obfuscation
 Voluntary restitution of stolen property similar to voluntary surrender
 Extreme necessity and poverty similar to incomplete justification based on state of
necessity exc: murder because it is crime of violence
 Testifying for prosecution, analogous plea of guilty
 Restitution in malversation only mitigating
 Killing wrong man not mitigating
 Not resisting arrest not analogous to voluntary surrender

Cirmcumstances neither exempting nor mitigating:

- Mistake in blow
- Mistake in identity
- Entrapment of accused
- Accused over 18 years old
- Performance of a righteous act

Chapter Four
CIRCUMSTANCE WHICH AGGRAVATE CRIMINAL LIABILITY

Aggravating Circumstances- serve to increase penalty without exceeding maximum of penalty

provided by law for the offense
BASIS: greater perversity of offender manifested in commission of felony shown by motivating power
itself, place of commission, means and ways employed and the time or the personal circumstances
of offender or of offended party

NOTE: to be alleged must be aooeged in the information. If not, still be considered as award for
damages.

Article 14. Aggravating circumstances. - The following are aggravating circumstances:

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

Basis: greater perversity of offender as shown by personal circumstances and means used to secure
commission of a crime

 Applicable only when offender is a public officer who uses his influence, prestige,
ascendancy. “Did the accused abuse his office in order to commit the crime?”

 Aggravating circumstance not present when Congressman offered resistance to a peace

officer

 This is applicable when councilor collects fines and misappropriates them- a municipal
councilor is not an official designated by law to collect public fines but the fact that he
deceive and defraud injured parties out of money they paid to him is sufficient ground.

 When the public officer did not take advantage of his influence or his position- NOT
PRESENT because it was not connected with the duties of his office, he will be punished as
private individual without aggravating circumstance.

 There must be proof that accused took advantage of his public position

 Wearing uniform is immaterial in certain cases. Example: although off duty and wearing
civilian, offended party was aware of his being a policeman and sought to impose illegally his
authority.

 Even if did not abuse his office, if its proven that he failed in his duties as public officer there
would still be aggravating

 Not aggravating when it is inherent. Example: malversation and falsification of documents

 Not aggravating if accused could have perpetrated the crime without occupying police
position

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

Basis: lack of respect to public authorities

REQUISITES:

a) Public authority is engaged in the exercise of his functions

 b) That he who is thus engaged in the exercise of said functions is not the person against
whom the crime is committed

c) The offender knows him to be a public authority

d) His presence has not prevented the offender from committing the criminal act

Public authority- sometimes called person in authority is a public officer directly vested with
jurisdiction. Has power to govern and execute law. Ex: councilor, mayor governor and persons in
authority such as barangay captain and barangay chairman. Chief of police is NOT a public
authority.

 Not applicable if crime is committed in presence of agent only like chief of police, barrio
policeman, barrio councilman, barangay leader.

 The crime should not be committed against the public authority

 Knowledge that public authority is present is essential- dapat nagpakilala, if not X

 Presence of of public authority has not prevented offender from committing the crime

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.

Basis: greater perversity of offender

 4 circumstances (RASD) can be considered single or together. If all are present, they have
weight of one aggravating circumstance only.

 Applicable only to crimes against person or honor -> rank, age, sex

 “with insult or in disregard” – there must be evidence that in the commission of the rime, the
accused deliberately intended to offend or insult the sex or age of the offended party

 When insult or in disregard of the respect due to the offended party on account:

1. of the rank of offended party- difference in social condition of offender and offended
party. Rank is a high social position or standing. There is a proof required that there is
disregard and deliberate intent to insult.

2. Of the age of offended party- offended person could be the father of offender, person
killed was very weak, tender age, old age. BUT if there is without thought or intention to
insult upon a child because of her sex or tender age then the circumstance is not
aggravating. Deliberate intent to offend or insult is required. Disregard of old age not
aggravating in robbery with homicide because it is primarily a crime against property.\

3. Of the sex of offended party- refers to FEMALE only not male. However, killing a woman
is not aggravating when offender had no intention to offend or disregard the sex of the
victim.
NOT applicable in certain cases:

- When offender acted with passion and obfuscation – he couldn’t be conscious that his act
was done with disrespect

- When there exists a relationship between offended party and offender

- When the conditions of being a woman is indispensable in commission of a crime. Examples:

parricide, rape, abduction, seduction= sex is not aggravating

 Disregard of sex absorbed in treachery. But jurisprudence also tells that they are
different for treachery refers to ,manner of commission of crime while disregard of age
and sex pertains to relationship of the victim.

 That the crime be committed on dwelling of offended party- exclusively used for rest and
comfort. This is based on sanctity of privacy. The evidence must clearly show that
defendant entered the house of deceased to attack him.

 Offended party must got give provocation in order for dwelling to be aggravating

 There must be close relationship between provocation and commission of crime

 Because provocation is not immediate, dwelling is aggravating.

 Owner of dwelling gave immediate provocation= dwelling not aggravating

 Provocation must prove that no provocation was given by offended part. It is not
presumed.

 It is not necessary the accused actually entered dwelling of victim. It is enough the victim
was attacked inside his house

 Even if killing took place outside the dwelling, it is aggravating provided that the
commission of crime began in dwelling. Likewise, dwelling is aggravating in abduction or
illegal detention. But dwelling is not aggravating in a case where deceased was called
down from his house and was murdered in the vicinity of the house.

Dwelling is not aggravating in following cases:

- Both offender and offended party are occupants of same house- servant

- Robbery – NO. Inherent for robbery with force upon things in inhabited house. Aggravating
only in robbery with intimidation or violence against persons.

- Trespass- inherent

- When owner of dwelling gave immediate and sufficient provocation

- The dwelling where crime was committed not belonging to offended party
 - Rape was committed in ground floor pero paupahan yung baba hind private place of abode

- In adultery when paramour also lives there-> aggrav here is abuse of confidence

- Treachery- not included dwelling

Dwelling is aggravating:

- Victim raped in boarding house where she is bedspacer

- Victim raped in paternal home even if they are guest. Mere visitor not included.

- Victim was killed in house of her aunt where she temporary dwells

- Victim shot while sleeping in a sleepover

- Husband killed wife in house occupied by her, othe than the conjugal home

- Adultery

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

Basis: greater perversity and means and ways employed

Abuse of confidence- offended party has trusted the offender who later abuses such trust by
committing crime

REQUISITES:

a) That the offended arty had trusted the offender

b) That the offender abused such trust by committing a crime against offended party

c) That the abuse of confidence facilitated the commission of a crime

 Betrayal of confidence not aggravating- pwede naman magresist

 Killing of child by an amah is aggravated by abuse of confidence

 The confidence between offender and offended party must be immediate and personal

 Abuse of confidence inherent in some felonies: malversation, wualified theft, estafa, qualified
seduction

 Ungratefulness must be obvious- manifest and clear.

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.
Basis: place of commission of crime which must be respected

Difference of par 2 and par 5:

- In both, public authorities are in performance of their duties

- Par 5, P.A inside office. Par 2, P.A performing duties outside office

- Par 5, he may be offended party. Par 2, P.A should not be the offended party

 Place of commission of felony if its Malacañang Palace or church is aggravating, regardless

of whether there is official or religious functions. The Chief Executive need not be in
Malacañang Palace. His presence alone in any place where crime is committed is enough to
constitute aggravating circumstance.

 But, as to other public authorities, there must be some performance of public functions. If
court already adjourned at time when crime was committed, and the attack was in adjoining
room not in very place where justice of peace is engaged in his duties= no aggravating

 An electoral precinct during election is a place where public authorities are engaged in
discharge of their duties

 Cemeteries NOT dedicated to worship

 Offender must have intention to commit a crime when he intended to enter the place

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.(NUB)

Basis: time and place and means and ways employed

Should these circumstance be considered as one only or three separately? IT DEPENDS

When aggravating----

a) When it is facilitated in the commission of crime

b) Especially sought by offender to insure commission of crime or for purpose of impunity

c) Offender took advantage thereof for purpose of immunity

 Nighttime need not be specifically sought wen it facilitated the commission of offense or the
offender took advantage of same to commit crime. This is because the accused had means
to prevent him being recognized or to secure himself against detection and punishment.

Nighttime- sunset to sunrise. Not itself aggravating, unless especially sought by offender. To be
aggravating, prosecution must show accused purposely sought to commit crime at nighttime
  Not aggravating when crime began at daytime= result of succession of acts

 When place is illuminated by light, nighttime not aggravating

 Use of flashlight or matchsticks does not negate aggravating

Uninhabited place- no housing at all. Could not be seen and couldn’t be heard from nearby house.nt
determined by distance but W/N place of commission of offense there was a reasonable possibility
of victim receiving some help

 The accused sought solitude of place to better attain his purpose without interference and to
secure themselves against detection and punishment.

 When victims are the occupants of the only house in place= uninhabited

Band- 4 or more armed malefactors. All MUST have acted together in commission of offense. Stone
is included in the term arms.

 If one of the 4 armed persons is a principal inducement, they do not form a band

 Aggravating in crimes against property, or against persons or in crime of illegal detention or

treason

 Not applicable in crimes against chastity

 Abuse of superior strength and use of firearms ABSORBED in band

 Inherent in brigandage ex: Money heist= NOT aggravating

 Aggravating in robbery with homocode

7. That the crime be committed on the occasion of a conflagration, shipwreck, earthquake,

epidemic or other calamity or misfortune.

Basis: time of commission of a crime

Reason: instead of lending aid, taking advantage of misfortune.

 Offender must take advantage of calamity or misfortune- not provoked!

 Chaotic conditions- other conditions of distress similar to those precedingly enumerated. EX:
engine trouble is not included.

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

Basis: means and ways of committing crime

REQUISITES
 a) That armed men or persons took part in the commission of crime directly or indirectly

b) Accused availed himself of their aid or relied upon them when the crime was committed

Rule: casual presence of armed men doesn’t constitute aggravating. The accused should have
availed of their aid or rely upon them to commit a crime

EXCEPTIONS:

a) This aggravating circumstance not considered when both parties equally armed

b) Not considered when accuses as well as those who cooperated with him in the commission
of crime acted under the same plan and for the same purpose

 “with the aid of armed men” is preset even if one of the offenders merely relied on their aid
for actual aid I not necessary. “by a band” requires more than 3 armed malefactors shall
have acted together in commission of an offense.

 Aid of armed men is ABSORBED by employment of a band

 Aid of armed men includes armed women too

9. That the accused is a recidivist.

Basis: greater perversity of offender as shown by his inclination to crimes

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.

REQUISITES

a) That the offender is on trial for an offense

b) That he was previously convicted by final judgement of another crime

c) That both the first and second offenses are embraced in the same title of the code. Example:
robbery and theft, homicide and physical injuries, felonies.

d) That the offender is convicted of new offense

 There is no recidivism if subsequent conviction is for an offense committed before the

offense involved in prior conviction

 There is recidivism even if lapse of time between felonies is more than10 years

 Pardon does not obliterated the fact that accused was a recidivist; but amnesty
extinguished he penalty and its effects

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.
REQUISITES

a) That the accused is on trial for an offense

b) That he previously served sentence for another offense to which 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

c) That he is convicted of the new offense

 In reiteracion or habituality it is essential that the offender be previously punished that is

he served sentence for an offense in which law attaches or provides for an equal penalty
than that attached by law to second offense or for two or more offenses in which law
attaches lighter penalty

Example: first offense is homicide and second offense is falsification= there is reiteracion. Pag
binaliktad no habituality because THE PENALTY FOR THE FIRST OFFENSE MUST BE AT LEAST
BE EQUAL TO THAT FOR THE SECOND OFFENSE.

- If homicide 1st offense and homicide again 2nd offense = there is recidivism embraced in
same title of code

- For the previous two offenses the law provides lesser penalties

 Habituality not always aggravating

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

Basis: motivating power itself

 Presupposes two or more offenders

 Applicable to both offenders

 Price, reward or promise MUST BE for the purpose of inducing another to perform the
deed. If without previous promise, given voluntarily as expression of his appreciation and
sympathy then no aggravating.

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.

Basis: means and ways employed

 Unless used by the offender as a means to accomplish a criminal purpose, any of the
circumstances in par 12 cannot be considered to increase penalty or to change nature of
offense

 When there is no actual design to kill a person in burning house, plain arson only even if a
person is killed
  If offender had intent to kill victim, burned the house where latter was and victim died as
consequence, the rime is murder, qualified by circumstance that the crime was committed by
means of fire

 If a house was set on fire after killing of victim, there would be two separate crimes of arson
and murder or homicide. There would be no aggravating circumstance of by means of fire.

 “by means of explosion” crime involving destruction= if no intent destruction only if there is
intent to kill and explosion is used then it is murder.

 They do not increase penalty because they are already induced by law in defining crimes

 Par 12 involves great waste or ruin. Par 7 is committed on occasion of calamity or

misfortune.

13. That the act be committed with evidence premeditation.

BASIS: implies deliberate planning

 Execution of criminal act must be preceded by cool thought and reflection upon resolution to
carry out criminal intent during space of time sufficient to arrive at calm judgement. Ex: el
professor

 The premeditation must be evident and not merely suspected

REQUISITES

The prosecution must prove---

a) The time when offender determined to commit the crime

b) An act manifestly indicating that the culprit has clung to his determination

c) A sufficient lapse of time between the determination and execution to allow him, to reflect
upon consequences of his act and allow his conscience to overcome resolution of his will

Manalinde illustration of 3 requisites

a) Offender is determined to commit crime- date and time essential

b) He undertook journey, by providing himself a weapon- external acts not presumed from mere
lapse of time

c) He killed the victims

 Existence of ill feeling or grudge alone is not proof of evident premeditation.

Sufficient lapse of time- not prompted by impulse of moment. 3 hours or less considered suffient
lapse of time. Only half an hour (x). sufficient time required to serenely think and deliberate on
meaning and consequences of what he planned to do.
  Conspiracy generally presupposes premeditation. Exc: when it is only implied

 Evident premeditation and price or reward can co exist. Exc: inductor

 Premeditation is absorbed by reward or promise

 When victim is different from that intended, premeditation is not aggravating. But if it
was shown the conspirator is also determined not only to kill intended victim but also
one who may help him put a violent resistance (x)

 Not necessary there is plan to kill particular person

 Evident premeditation while inherent in robbery may be aggravating in robbery with

homicide if premeditation included killing of a victim- there should be evidence. If
incidental, not awarded

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

Craft- involves intellectual trickery and cunning on part of accused. Ex: Lupin

 Fraud is present when there is direct inducement by insidious words or machinations. Craft is
constituted when the act of the accused done in order not to arouse the suspicion of the
victim.

Disguise- resorting to any device toc conceal identity. Ex: if natanggal mask aggrav padin

 If face easily recognizeable even if may sunglasses or mask, disguise not considered

 Purpose of offender in using any device must be to conceal his identity ex: Taliban- culture

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

 Use purposely excessive force out of proportion to the means of defense available to the
person attacked

Not to be availed in: passion or obfuscation, quarrel arose unexpectedly

 When attack was made on victim alternately, there is no abuse of superior strength

 Abuse of superior strength when man attacks woman with a weapon

 No abuse of superior strength in parricide against wife- inherent physically stronger male
than female

 Evidence of relative physical strength necessary- superiority of numbers not sufficient. EXC:
the accused were armed.

 Abuse of superior strength will depend on AGE, SIZE, STRENGTH OF PARTIES

  Abuse of superior strength when weapon used is out of proportion to defense available to
offended party

 No abuse when one acted as principal and other two as accompplices

 When there is allegation of treachery, superior strength is absorbed like nighttime

 Aggravating in coercion and forcible abduction when greatly in excess of that required to
commit an offense

 Abuse in illegal detentipm, robbery with rape, multiple rape, robbery with homicide committed
by 3 men

 Aggrav absorbing band

 Intoxicating victim to weaken defense- if impossible for victim to take resistance then
treachery

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.

 Party was not given opportunity to make a defense

 Attack was sudden, unexpected without warning, without giving victim opportunity to defend
himself or repel aggression. In fact, deceased did not sense any danger from assailant.

 Not presumed- must be proven the accused had pondered upon mode or method to insure
the killing or diminish any risk to himself

 Where the meeting between accused and victim Is casual= no treachery- sudden and
unexpected so accused could not have made preparation for attack, the means and mehods
and form of attack not have been thought

Rules:

- Applicable only to crimes against person

- Means methods or forms need not insure accomplishment- sufficient it tends to h\this end

- The mode of attack must be consciously adopted

REQUISITES

a) That at the time of attack, victim was not in position to defend himself
b) Offender consciously adopted particular means, method or form of attack employed by him

 No treachery when victim was already defending himself

 Treachery doesn’t connote element of surprise alone

 Mere sudden and unexpected attack doesn’t auto imply treacheru

 When the accused gave deceased chance to prepare= no treachery

 Calling attention of victim not necessarily warning

 Preceded by heated discussion= no treachery

 Killing a child= treachery

 Intent to kill not necessary in murder with treachery

 Treachery may exist even if attack is face to face- as long as unable to prepare for
defense

 Attack from behind not always treachery= must appear such mode of attack was
consciously adopted

 Treachery need not be present in beginning of assault as longa s it is present and

preceded commencement of attack which cause injury complained of

- When aggression is continuous- treachery must be present at beginning of assault

- When assault was not continuous – there was interruption, it is sufficient treachery was
present at moment of fatal blow was given

 Treachery makes no diff w/n victim was same person whom accused intended to kill

 When there is conspiracy- treachery is considered against all the offender

 Treachery, evident premeditation and use of superior strength ABSORBED in treason by

killings= inherents a treason

 Treachery ABSORBS abuse of superior strength, aid of armed men, by a band, and
means to weaken defense

 Nighttime inherent in treachery

 Craft included in treachery

 Age and sex included in treachery

  Dwelling not included

 Treachery inherent in murder by poisoning

 TREACHERY CANT CO EXIST WITH PASSION OR OBFUSCATION

17. That means be employed or circumstances brought about which add ignominy to the
natural effects of the act.

Ignominy- adds disgrace

 Applicable to crimes against chastity, less physical inuries, light or grave coercion and
murder

 More humiliating or to put offended party to shame

 No ignominy when man is killed in presence of his wife

 Rape as ignominy in robbery with homicide

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.

 Inherent in robbery

 Dwelling and unlawful entry taken separately in murders committed in a dwelling

 Unlawful entry not aggravating in trespass to dwelling= inherent

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

 Not necessary offender entered the building. What aggravates liability is breaking of a part of
building as a means to commission of the crime
 To effect entrance only NOT escape
 Breaking of door or window is lawful in some instances

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).

TWO DIFF AGGRAVATING CIRCUMSTANCE

  minors taking advantage of their irresponsibility- 15 years old and below

 Commit crime and flee and abscond once same is committed- going to place of crime,
carrying away effects an facilitating escape. For flight or concealment of offender

 Theft committed by taking of personal property need not be carried away (X)

 Other similar means of transpo used like automobile or airplane as long s not bicycle

21. That the wrong done in the commission of the crime be deliberately augmented by
causing other wrong not necessary for its commissions.

Cruelty- suffer slowly and gradually causing unnecessary physical pain in consummation of crime. It
is intended to prolong suffering of victim. = SADISTIC CULPRIT

 Plurality of wounds alone doesn’t show cruelty

 No cruelty done after victim was dead

 Ignominy is moral suffering while Cruelty is physical suffering

 Rapes, robbery and other form of cruelties are aggravating circumstance in ignominy and
cruelty in treason

 Rape is aggravating in robbery with homicide

 Rape is aggravating in murder

REQUISITES

a) That the injury caused be deliberately increased by causing other wrong

b) That the other wrong be unnecessary for execution of purpose of offender