REVISED PENAL CODE OF THE PHILIPPINES

ACT NO. 3815

AN ACT REVISING THE PENAL CODE AND OTHER PENAL

LAWS
(DECEMBER 8, 1930)

Preliminary Article – This law shall be known as “The Revised

Penal Code”.

BOOK ONE

GENERAL PROVISIONS REGARDING THE DATE OF

ENFORCEMENT AND APPLICATION OF THE PROVISIONS OF
THIS CODE, AND REGARDING THE OFFENSES, THE PERSONS
LIABLE AND THE PENALTIES

Preliminary Title
DATE OF EFFECTIVENESS AND APPLICATION OF THE
PROVISIONS OF THIS CODE

ARTICLE 1. Time when Act takes effect – This Code shall take
effect on the first day of January, nineteen hundred and
thirty two. (January 1, 1932)

Criminal Law is defined simply as that branch or division in the

study of law which defines crimes, treats of their nature, and provides
for their punishment.

It defines crimes:
We are familiar with the Criminal Law axiom nullum crimen,
nulla poena sine lege, that is there is no crime where there is no
law punishing an act or omission as a crime. It tells us what is
punishable and what is not punishable.

Treats of their nature:

Crimes belong to different classes. In Book II alone, crimes are
divided or classified into 13 classifications – from Crimes Against
National Security and the Law of Nations, to Quasi-Offenses, Crimes
Against Honor, etc.
And there are many classifications of penalties, like the
consummated, attempted and frustrated, the grave, less grave and
the light. These are what you call the nature of the crimes.
We are concerned not only of crimes under the Penal Code, but
this include those acts punishable under special laws. So, you must
understand the nature of each. Each one has its own special rules to
be followed.

Provides for their penalty:

One of the weaknesses of bar candidates is the law on penalties.
They are afraid of computation. But you cannot avoid this because
whether you like it or not, the law on penalties is part and parcel of
the Revised Penal Code.

Q: What are the sources of criminal law?

A: There are only two known sources of criminal law:

 Revised Penal Code (Act 3815), as amended; and

 Special Laws – (Anti-graft; Dangerous Drugs Act, BP 22,
etc.)

But actually, if you analyze it, there is only one source, the law
itself because the Revised Penal Code is the general law. But
definitely, common sense would tell us that not all crimes in the
Philippines are found in the Revised Penal Code. There are crimes
that are found in various special laws.

Q: Why is it that there is only one source of criminal law, because in

the final analysis, there is only one source – the law itself?
A: You go back to nullum crimen, nulla poena sine lege. There is
no crime if there is no law that penalizes an act or omission as a
crime.

Q: Is there such a thing as a common law crime?

A: There is NO such thing as a common law crime because common
law is based on customs and tradition. There is no such thing as
crimes by tradition in the Philippines. Tradition or custom itself cannot
create a crime, but the law itself must provide and penalize an act as
a crime.

Q: Is the Constitution a source of criminal law?

A: NO, because it does not define “crime”, nor provide for a penalty.
You still have to hear of an information filed in court for the violation
of the Constitution. The Constitution is the source of many rights of
an accused, but you cannot find any crime defined and penalized in
the Constitution. So, theoretically, the Constitution is not a source of
criminal law. The Constitution is merely a source of rights.

 CHARACTERISTICS OF CRIMINAL LAW:

1.) General;
2.) Territorial;
3.) Prospective

Generality:
Philippine criminal laws are binding on all persons who live or
sojourn in Philippine territory – when one commits a crime in the
Philippines, whether he is a resident citizen, alien, resident alien, a
transient, or a tourist, he is subject to prosecution before Philippine
courts. That is what you mean by the general character of criminal
law.

Q: Are there exceptions? Are there people who are in the Philippines
who commit a criminal act, but are immune?
A: By way of exception, YES. There are two:

(1) Those who are exempt by virtue of the principle of

Public International Law

These are the:

 Heads of State; and

 Diplomatic officials.

EXAMPLE: President Bush went to the Philippines on a state visit, and

upon landing in Manila, the first thing that he did was to molest
somebody. Can he be accused of acts of lasciviousness or rape? NO.
He cannot even be arrested and charged before our courts because
he is a head of state. He is immune.

You also cannot arrest anybody who holds a diplomatic rank,

whether he be a diplomat of any nation, or an ambassador, ministers
plenipotentiary, ministers residents, or charge d’ affaires. These are
the people who are exempt.

SCHNECKENBURGER vs. MORAN

63 Phil. 250

HELD: It is well-settled that a consul is not entitled to the privileges

and immunities of an ambassador or minister, but is subject to the
 laws and regulations of the country of which he is accredited.

A consul does not represent the political interests of his country,

but only the commercial interests. In the absence of a treaty to the
contrary, a consul is not exempt from criminal prosecution for
violations of the laws of the country where he resides.
(2) Those who are exempt by virtue of treaties

When the Philippines enters into a treaty with a foreign country and
grants immunity from criminal prosecution of its nationals by
agreement – the best example of such a treaty was the former US-
Philippines Military Bases Agreement where for certain crimes
committed in the Philippines by American Servicemen who were
discharging their official duties, they could not be charged in
Philippine Courts. They could be charged by the United States under
their laws. We cannot do anything about that because we agreed to
it. That is a treaty.

The principle of generality and its exceptions are clearly

expressed in the Civil Code of the Philippine which states:

ARTICLE 14, CIVIL CODE: Penal laws and those of public

security and safety shall be obligatory upon all who live and
sojourn in Philippine territory, subject to the principles of
public international law and to treaty stipulations.

Territoriality:
This means that penal laws of the Philippines are enforceable
only within its territory. We cannot enforce them outside of the
Philippines if the crime was committed outside.

PROBLEM: A and B are Filipino Citizens. They took a tour in Japan.

When they were in the tour, A attacked B in Tokyo, inflicting upon B
physical injuries. When B came back here, the first thing that he did
was to file a case of physical injuries against A, in Philippine courts.

Q: Can the Philippine courts try the case of physical injuries, because
anyway both parties are residents of the Philippines?
A: NO, because even if the crime of physical injuries will be admitted
by A, it did not happen here. It happened in Japan. We cannot
enforce our Revised Penal Code for the crime committed outside of
Philippine territory.

Q: What is the difference between generality and territoriality?

A: They are almost the same.
General characteristic Territorial characteristic
enforceable upon everyone who enforceable only for crimes
resides or visits or sojourns in committed in the Philippines. They
the country may appear to be overlapping, but
there is a slight difference
the emphasis is on the the emphasis is upon the place
offender, the person who only. However, the territorial
commits the crime, whether he character of criminal law has
is a resident alien or not, tourist known exceptions. Meaning, even
or citizen – the emphasis is the if the crime committed outside
person who commits the crime Philippine territory, the offender
can still be charged under
Philippine laws and tried by our
courts, even if the act was not
committed here

There are supposed to be five exceptions to the territorial

characteristic of criminal law. These exceptions are found in Article 2
of the Revised Penal Code.
Prospectivity or Non-retroactive
This means that crimes are punished under the law in force at
the time of their commission.

So, if the act becomes a crime today because the law itself fixed
it such that it be considered a crime today, you cannot prosecute a
person who had done the act yesterday. Criminal law looks forward.
That is the general rule.

Q: May a penal law be given retroactive effect?

A: YES, when a law is more favorable to the accused. An example of
such penal statute is if a new law reduces the penalty of your offense.

EXAMPLE: You commit a crime punishable by 5 years imprisonment.

Now, there is a new law reducing the penalty to 5 months.

Q: Can the offender claim now that, upon conviction, his penalty
should be only 5 months?
A: YES, he is covered & he can claim it.

ORDOÑEZ vs. VINARAO

Facts: Somebody was found guilty of selling marijuana. The law in

force at the time of the commission of the offense was the Dangerous
Drugs Act (RA 6425), which penalizes the selling of marijuana with
life imprisonment. The convict had been serving sentence since 1986.

In 1995, RA 7659, or the Heinous Crime Law, was passed amending,

among others, RA 6425. This new law provides for a penalty which
depend upon the number of grams or sticks of marijuana that is sold.
Insofar as this particular convict is concerned, the law had the effect
of reducing his sentence, considering that he sold only two sticks of
marijuana.

Held: The new law should be given retroactive application because it

is favorable to the convict. The Director of the Bureau of Prisons was
ordered to release the convict from the National Penitentiary.

But there are exceptions to the exceptions. Meaning, even if

favorable, it will not be given retroactive effect. You then go back to
the general rule.

(1) If the new law is expressly made inapplicable to pending

actions or causes of action.

If the law is silent, it should be given retroactive effect if

favorable. Supposing the law will say that it is not applicable to
pending actions. None, even if it is favorable, it will not be given
retroactive effect. Meaning, the law provides for non-retroactivity.
That is why such a provision must be express.

(2) Where the offender is a habitual delinquent under Article

65, of the Revised Penal Code

 CONSTRUCTION OF PENAL LAWS

If there is doubt, the doubt is resolved in favor of the accused.

Thus, applying the constitutional presumption of innocence. But this
rule of construction is applied only where the law is ambiguous, and
there is doubt as to its interpretation. Where the law is clear, there is
no room for the application of this rule.
But there is also a special rule of construction. In the
construction or interpretation of the provisions of the Revised Penal
Code, the Spanish text is controlling because the Code was
approved by the Philippine Legislature in its Spanish text. This was
the language of the lawmakers in expressing the intent of the law. If
there is a conflict between the English version and the Spanish
version of the Revised Penal Code, the Spanish text shall prevail.

PEOPLE vs. MANGULABNAN

99 Phil. 993

Facts: During the robbery in a dwelling house, one of the culprits

fired his gun upward in the ceiling, not knowing that the owner of the
house was hiding in the ceiling. The owner was hit by the slug that
passed through it and was killed unintentionally.

Article 294 (1) of the Revised Penal Code provides that the
crime is robbery with homicide when by reason or an occasion of
the robbery, the crime of homicide shall have been committed.
The Spanish text of the same provision reads: cuando con
motivo o occasion del robo resultare homicido (resulting to
homicide).

Held: In view of the Spanish text which must prevail, the crime
committed is robbery with homicide supervened by mere accident.

People vs. Abilong

 BRIEF HISTORY OF THE REVISED PENAL CODE

The Revised Penal Code originated from the old Spanish Penal
Code of 1887 which took effect in July 14, 1887. And that was the
prevailing law up to the coming of the Americans .The Americans did
not touch the Penal Code and the Civil Code. They introduced laws
especially on criminal procedure, but the substantive law remained
the same.
 However, sometime in 1914, there was an attempt by the
government to change the old Spanish Penal Code. And the
government commissioned a Committee, chaired by Rafael del Pan, to
draft a new law. That Committee came out with a proposed law to
replace the old Penal Code. The proposed law was called the
Proposed Correctional Code of del Pan . However, the draft was never
acted upon by the Philippine Legislature.

About ten years later, the government created another

Committee which was given instructions to revise the old Penal Code.
The Committee was chaired by Anacleto Diaz, with the following
members:
• Quintin Paredes
• Guillermo Guevarra
• Alex Reyes
• Mariano de Joya

The Committee came out with their draft and the Philippine
Legislature passed it into law on December 8, 1930 and became
effective on January 1, 1932. It came to be known as Act 3815, or
the Revised Penal Code. So, the Revised Penal Code has been
effective for 71 years already. It has undergone several amendments,
but the basic structure of the law is the same.

During the late 1940’s, there was an attempt to redraft the

Revised Penal Code (RPC). The committee charged come out with the
proposed Code of Crimes which, however, was not passed by
Congress. And in the late 1970’s , the UP Law Center came out with
another draft which was also called the Code of Crimes. It was
submitted to the Batasang Pambansa but to no avail.

In 1995, the then Congress passed another bill – to be called the

Code of Crimes again. Although it is a different one from the previous
drafts. It was sponsored by Congressman Sergio Apostol. He
conducted public hearings, including in Davao, but it still remains to
be seen whether the bill will be finally enacted into law.

In other words, there has been several attempts to amend or

replace the RPC for the past 71 years. It has passed the test of time;
it is a very durable law.

 THEORIES UNDERLYING THE REVISED PENAL CODE

Every country in the world has its system of penology. Every

country has its own theory of what is a crime. How did it start? It
depends upon the orientation of that country. But it is admitted that
in criminal jurisprudence anywhere in the world, there are two basic
schools of thought or theories underlying Criminal Law.

THE CLASSICAL THEORY

This is the older one. It is also called the Traditional Theory

because it is the one that is older that the positivist Theory, which is a
more modern thought. What we should remember here are the basic
principles underlying the Classical Theory. What to Classicists
advocate? What do they say about crimes, about criminals?

The Classicist’s Theory: Man is a rational being. If he is a rational

being, he can distinguish right from wrong. If he commits a crime,
such as murder, he assumes he knows that he is wrong. Since he
knew that it was wrong, he must prepare himself for the
consequences of what he did. That is the theory of the Classicists.
And crimes vary. There is a serious one; there is the not-so-serious
one, and there are slight ones.
 There should be a mechanical proportion between the crime and
the penalty. That is why the penalty in the RPC on slight physical
injuries is not the same penalty as in murder. Otherwise, there must
be a disproportion. If you punish murder with death and punish also
physical injuries with death, there is a disproportion.

☻ THE POSITIVIST THEORY

The Positivists’ advocate that we cannot simply consider a

crime as permanently governed or continuously governed by laws.
Meaning, we have to take into consideration the environment, the
social conditioning of persons. And therefore it is wrong to simply fix
a predetermined penalty for a crime, because there are so many
factors to consider. At least, the basic difference between the two
theories is on their emphasis.

Difference: The Classical Theory gives more emphasis upon the

ACT committed rather than the actor. Whereas the Positivist Theory
gives more emphasis on the ACTOR rather than the act. There is a
focus of attention on the DOER rather than on what he did. The
focus on Classical Theory is on WHAT HE DID rather than the actor.

Q: Upon which of these two schools of thought is the RPC based?

A: The RPC is almost 80% reproduction of the Penal Code of Spain.
Since the Spanish Penal Code is based on the Classical Theory,
necessarily our RPC is based on the Classical Theory of Criminal Law.
There were certain changes introduced by the RPC. Certain Positivist
provisions were inserted. The framers of the RPC had the complete
authority to throw away the Spanish Penal Code. But they were
cautious, they were not prepared. They came basically with the
Spanish Penal Code, revised. So, they still adhered to the structure of
the Spanish Penal Code. That is why our RPC is still with the Classical
Theory.
 BOOK ONE

ARTICLE 2. Application of its provisions. – Except as provided in

the treaties and laws of preferential application, the
provisions of this Code shall be enforced not only within the
Philippine Archipelago, including its atmosphere, its interior
waters and maritime zone, but also outside of its
jurisdiction, against those who:

1.Should commit an offense on Philippine Ship or airship;

2.Should forge or counterfeit any coin or currency note of
the Philippine Islands or obligations and securities
issued by the Government of the Philippine Islands;
3.Should be liable for acts connected with the introduction
into these islands of the obligations and securities
mentioned in the preceding number;
4.While being a public officer or employees, should
commit an offense in the exercise of their functions; or,
5.Should commit any of the crimes against national
securities and the law of nations, defined in Title One of
Book Two of this Code.

The phrase, “except as provided in treaties or laws of

preferential application”, these are the so called Exceptions to the
General Characteristics of Criminal Law. Meaning, the RPC is binding
on all who live and sojourn in the Philippines, except people who are
not covered by the RPC due to treaty stipulations, because of laws of
preferential application.

Q: What are these laws of preferential application?

A: These are laws which are enacted to put into effect the principles
of public international law granting diplomatic immunity to sovereign
heads of state, ambassadors, ministers plenipotentiary, etc. who are
accorded diplomatic status from the laws of another country.

Meaning, with the exceptions of ambassadors, heads of states,

everyone who commits a crime within the Philippine territory is
answerable under the RPC.

Q: What does “Philippine Territory” cover?

A: The first paragraph of the RPC in Article 2 expresses the Territorial
Principle: “Philippine territory” comprises the Philippine Archipelago,
its atmosphere, the space above it, subject to the aviation rights of
other countries.

During that time, the concept of outer space is not yet recognized.
That is beyond the territory of any country. There is only a certain
limit in territorial waters. Only a portion of the sea is considered as
Philippine Territory. These are all parts of public international law.

Q: What is the accepted radius?

A: It used to be three miles, then it became six. Now, it is twelve
miles. It also covers the Economic Zone, such as the Spratlys. That is
not part of its economic zone. China, Vietnam, Taiwan are also
claiming it. That might become a source of war. That is Philippine
Territory.

As a general rule, the RPC and other penal laws can only be
enforced within Philippine Territory. They cannot be enforced outside.
There are Five exceptions to the territorial character of Criminal Law.

Q: When may the provisions of the RPC be enforced outside

Philippine Territory? What are the exceptions to the territorial nature
of the RPC? In what instances may the provisions of the RPC be given
EXTRATERRITORIAL effect?

1) If the crime is committed on board a Philippine ship

or airship.

The term “airship” instead of “airplane” was used because at the

time of the drafting of the RPC, there were no commercial planes
yet. The means of transportation then were the dirigibles, those
which look like big ballons (the Lindenburg of American accident
fame). That is what they mean by the term “airship”.

A ship or airship, which is of Philippine registry, is

considered as Philippine territory.

PROBLEM: Mr. A, while on board a Philippine vessel anchored at the

Davao Gulf in Sasa, commits a crime against Mr. B on board that
vessel.

Q: Are the provisions of the RPC applicable?

A: YES, because the crime was committed in Philippine territory. Sasa
is not yet outside of Philippine territory. That is covered by the
opening paragraph, because the crime was committed within the
Philippine territorial waters. So, the reason is not based on paragraph
1, but because of the opening paragraph of Article 2.

Q: What is this paragraph 1?

A: That is when the ship is outside the Philippines. What gives
jurisdiction to the Philippines is not the fact that crime was committed
on board a Philippine ship under paragraph 1, but because of the fact
that it was committed in Philippine Territory- because it falls under the
exception. This is one of the instances when the RPC may be given
extraterritorial effect.

So, paragraph 1 refers to a ship already outside of the

Philippine territory. If the problem says that the ship is in the middle
of the Pacific Ocean, does Philippine law apply? YES. Why? Because
the crime was committed on board a Philippine vessel. Even if it is
outside of Philippine territory because it falls under the exception.
This is one of the instances when the RPC may be given
extraterritorial effect.

The same thing with airplanes. The plane is flying in the middle of
the atmosphere over the Pacific Ocean, between the United States
and the Philippines. If the crime is committed aboard that plane, the
crime is triable in the Philippines. That is an exception also.

We have no problem if the crime is committed on board a

Philippine ship or airplane, while it is outside the Philippines, flying or
sailing, as the case may be, in international waters or airspace. The
problem comes in if the crime is committed on board a Philippine ship
outside the Philippines where it is anchored and it is under the
territory of another country.
Q: Suppose, a Japanese vessel is in the middle of the Pacific Ocean,
and a Japanese crew member killed another Japanese crew member.
Whose law shall be applied on the prosecution of the crime?
A: I do not know, and I do not care. It did not happen in our territory.
It did not happen in our ship or airship. Presumably, it is the Japanese
law, but I do not know Japanese law.

But if a Philippine ship is in the middle of the Pacific Ocean and a

crime is committed on board it, no country will assume any interest
there.

Q: Was it committed in Philippine territory?

A: Of course not, the crime took place while the vessel was in the
middle of the Pacific Ocean.

Q: Can the crime be tried in the Philippines?

A: Yes, because of Article 2(1). The crime was committed outside
Philippine territory, but on board a Philippine ship.

But the problem in paragraph 1 comes in when the crime is

committed on board a Philippine ship while the same is in the territory
of another country.

EXAMPLE: While a Philippine ship is anchored in Tokyo Bay, or a PAL

plane is about to land at the Narita Airport in Tokyo, a passenger
killed another passenger.

Q: Where will the crime be tried? Suppose the Philippines would say,
“We should try is here in the Philippines because the crime took place
on board a Philippine ship or airplane.” Is that correct?
A: YES, based on Article 2(1).

But suppose Japan would say, “No, the crime is triable by our
courts because it was committed in Japanese territory. That is also
correct. How do you resolve that issue. Both sides have legal basis.

That kind of problem has been in existence for hundreds of years

now. That is why it gave rise to two sets of rules:

 THE ENGLISH RULE

This holds the view that when a crime is committed on

board a foreign vessel while that vessel is in the territory of another
country, the crime shall be tried under the law of the territory where
it is committed.

Except when the crime is minor, something which affects or

involves only the internal management of the vessels, in which case,
it would be tried in the country under whose flag the vessel navigates
or where it is registered.

 THE FRENCH RULE

It came out with an opposite view. The French believe that if

a crime is committed on board a foreign vessel while the same is
anchored in another country, the crime should be tried not in that
country, but in the home state of the vessel.

Except if it affects the peace, security and safety of the territory

where the crime was committed, in which case it should be tried
here.

So, the only difference is that the English Rule makes the
territorial principle of criminal law as the general rule and the
extraterritorial principle as the exception, whereas the French Rule
holds the opposite view. It is actually a set of inverse rules- because
of the fact that what the general rule is there is an exception, which is
the general rule in the other. It is actually the same dog with the
collar at different ends, depending upon who put it.

Q: Which rule is followed in the Philippines?

A: According to the old case of US vs. Bull (15 Phil. 14) , the
Supreme Court said that we adhere to the English Rule.

However, based on public international law, these vessels should

be MERCHANT VESSELS. This is not applicable to warships because
warships are considered extensions of the territory of the mother
state wherever it may be.

EXAMPLE: A ship of an enemy is in the Philippine waters, and a crime

is committed. The English Rule cannot be applied. The navy vessel of
a country is not subject to the laws of a foreign sovereign.

2) Should forge or counterfeit any coin or currency note

of the Philippine Islands or obligations and securities
issued by the Government of the Philippine Islands.

The second exception applies also to government bonds,

treasury warrants, sweepstakes tickets, etc.

EXAMPLE: You are responsible for counterfeiting Philippine money

abroad. Every week you fly to the Philippines, and then you are
caught. You say you cannot be charged under Philippine laws because
you say you counterfeited currency, but not in Philippine territory.
That will not prosper! You can be arrested as if you committed the
crime here. That constitutes economic sabotage, so we can try the
crime in our courts as if the crime was committed in Philippine
territory.

3.) Should be liable for acts connected only by

introduction into these Islands of the obligations and
securities mentioned in the preceding number.

The third exception is related to the second. You may not be the
forger or counterfeiter, but you are the importer into the Philippines of
these forged or counterfeited currencies and securities. So, you are
liable for the introduction of the same in the Philippines.

4.) While being public officers or employees, should

 commit an offense in the exercise of their functions.

This applies more particularly to those in the foreign service.

Because the offender here is a public officer who commits a crime in
the exercise of his function. For example, officers of the Philippine
Embassy and Consulate malversed government funds of the embassy.

Q: Does it mean that every crime committed abroad by these officers

can be tried here?
A: NO, only those committed in the exercise of their functions .
Meaning, the acts were related to their jobs – where the element of
being a public officer is an essential ingredient. If you commit an
offense which is purely private, and it has nothing to do with your
being a public officer, it is not covered. The crimes here are those
under the Title of Crimes Against Public Office - malversation, bribery
or crimes committed under the Anti-Graft Act.

5.) Should commit any of the crimes against national

security and the law of nations defined in Title One of
Book Two of the Code.

Example of a Crime Against National Security: treason,

espionage. A Filipino citizen, during the war, commits an act of
treason while he is abroad. After the war, he goes back to the
Philippines. He can be arrested for that crime even if the crime was
not committed here because that is against the national security of
the state.

Example of Crimes Against the Laws of Nations : piracy,

mutiny. A group of pirates committed piracy in Indonesia. That is
clearly outside Philippine territory. But the pirates are apprehended in
Philippine waters. They can be charged under Philippine law. They
cannot say the act of piracy was committed beyond Philippine
territory, that they committed it in Indonesia. Piracy is a crime against
the laws of nations and the offenders can be apprehended and tried
under the law of the country where they are caught.

TITLE ONE

FELONIES & CIRCUMSTANCES WHICH AFFECT CRIMINAL

LIABILITY

CHAPTER ONE
FELONIES

ARTICLE 3. Definitions – Acts or omissions punishable by law

are felonies (delitos).
Felonies are committed not only by means of deceit
(dolo) but also by means of fault (culpa).
There is deceit when the act is performed with
deliberate intent and there is fault when the wrongful act
results from imprudence, negligence, lack of foresight or
lack of skill.

According this article, felonies are acts and omissions

punishable by law. But that is not the complete definition. That is
only 1/3 of the definition. The concept of felony covers the entire
Article 3. It is not limited only to the first paragraph. You have to
incorporate the entire Article 3.

Q: How do you rephrase that?

A: Felonies are acts or omissions punishable by law which can be
committed either by means of deceit (dolo) when the act is
committed with deliberate intent, or by means of fault (culpa) when
the wrongful act results from imprudence or negligence, lack of
foresight or lack of skill.

That is the complete definition.

Q: What are the elements of a felony?

A: The elements of a felony are taken from the definition itself. Based
on the definition, the following are the key phrases:

1.ACTS OR OMISSIONS
2.THE ACT OR OMISSION MUST BE PUNISHABLE BY LAW
OR THE RPC
3.THERE IS DECEIT (dolo) OR FAULT (culpa)

1. ACTS OR OMISSIONS

Q: Define an “act”
A: An act is a physical movement, a physical activity of a human body
which tends to influence the outside world.
Practically, 90% of all felonies are done through physical act.
How do you kill? By shooting or stabbing. There should be some
movement of the muscles. How about oral defamation? There is still
in this the movement of your tongue; the muscles of your throat are
working when you utter defamatory words. So, you cannot kill
somebody by simply sitting on a bench and stare at somebody. It’s
impossible even with dagger looks!

Q: Define “omission”
A: This is the opposite. Omission is defined as inaction. It is the
exact opposite of action.

In a felony by act, you commit an act which the law says you should
not commit. In omission, it is the other way around. It is the failure
to do a positive duty which the law commands to be done. So, to say
that there is no crime when there is no movement is wrong. You may
be prosecuted not by doing something but by failing to act. But
omissions are the minority. Majority of felonies are done through
actions. Among the most famous ones is Misprision of Treason under
Article 116 of the RPC. If you have knowledge of any conspiracy, you
have to report it.

ARTICLE 116. Misprision of Treason: Every person owing

allegiance to the Government of the Philippine Islands,
without being a foreigner, and having knowledge of any
conspiracy against them, conceals or does not disclose and
make known the same, as soon as possible to the governor
or fiscal of the province, or the mayor or fiscal of the city in
which he resides, as the case may be, shall be punished as an
accessory to the crime of treason.

If you find a person dying in the middle of the forest, then you just
left him there, you are liable under Article 275 for abandonment of
persons in danger. Normally, you are liable for not doing. The Chinese
proverb ( Too much talk, too many mistakes. Less talk, less mistake.
No talk, no mistake) is the general rule, but not in the felony of
omission. You have to do something.
Q: Based on paragraph 1, classify felonies.
A:
(1) felonies by act;
(2) felonies by omission

2.THE ACT OR OMISSION MUST BE PUNISHABLE BY

LAW OR THE RPC

Q: What is the principle here?

A: No matter how bad, no matter how condemnable, immoral or
atrocious an act or omission is, if there be no law penalizing it, there
is not crime. The solution is to write to your congressman and ask
him to pass a law. The Latin Maxim is “nullum crimen, nulla
poena sine lege”. There must be first a law penalizing it. You
cannot convict a person for a crime which does not exist in the RPC.
There is no crime if there is no law making it a crime.

Q: How many laws are there which penalize crimes?

A: There are so many. Generally, there is the RPC. Illegal possession
of firearms is punishable by PD 8066. Smoking or selling marijuana is
punishable by the Dangerous Drugs Act. Drinking liquor on election
day is punishable by the Omnibus Election Code. Issuing a bouncing
check is penalized under BP 22, etc.

Q: Are these illegal possession of firearms, smoking or selling

marijuana, etc., felonies?
A: NO, because they are not punishable by the RPC. They are
punishable under special laws.

So, when Article 3 says punishable by law, it refers to the RPC

only. A better way of expressing it is: “Felonies are acts or
omissions punishable by the RPC”. That would be the more
accurate way. For example, murder.
Q: Is there a difference between a crime and a felony?
A: The word “crime” is generic, because it refers to all acts or
omissions punishable by any law. Even the RPC uses the word
“crime” to refer to felonies of Book Two on Crimes Against National
Security. But the more accurate term for acts or omissions punished
by the RPC are “felonies”. Those punished by special laws are called
“crimes” or “offenses”. “Felony” is a technical term. Those
punishable by ordinance are called infraction of ordinance.

If you say murder is a crime, that is correct because the term is

used in its generic sense. But when you say murder is a felony, you
must be a law student. You are expected to know the meaning of the
word felony. On the other hand, if you say that issuing a bouncing
check is a felony you do not know what you are talking about. It
cannot be a felony, because it is not found in the RPC.

3.THERE IS DECEIT (dolo) OR FAULT (culpa)

When you say “deceit” it means you were fooled. For example,
you run out cash, so you issue a check which you know will bounce
because there is no fund for it. There is deceit there. In estafa, there
is also deceit. But there are felonies where there is no deceit. For
example, Give me your money or else I’ll kill you. There is a felony,
i.e. a robbery or hold-up, but there is no deceit. There is intimidation
and intent to gain but there is no deceit.

Q: If there are many crimes where there is no deceit, how come the
law says felonies are committed by means of either deceit or fault?
A: Because deceit is a wrong translation of the word “dolo”. Deceit is
a form of dolo but not every dolo constitutes deceit. The better
translation for the Spanish word “dolo” is intent. So, there must be
intent, instead of deceit. “Culpa” means fault – when there is
negligence or imprudence. There is no intent but it is substituted by
lack of foresight or lack of skill.

Based on the third element, there are two types of felonies:

• intentional felonies
• culpable felonies

Another classification is (based on the first element of felony):

• felonies by act;
• felonies by omission

Q: Intent is in the mind. But how do you prove intent? For example,
when you kill somebody, how do I prove that you have the intent to
kill?
A: There is no need to prove it. There is a presumption in law that
criminal intent is presumed from the commission of a criminal act.
When you kill somebody, the law presumes intent to kill. When you
divest somebody of his money in a robbery or theft, the law presumes
that there is intent to gain. And that is fair enough, because how can
the prosecution prove what is in the mind of a person? So, what is in
the mind is judged by your actions.

Q: Why is there such a presumption?

A: Because of the Classical Theory of criminal law that man is a
rational being, so that when he commits a criminal act, it is presumed
that he did it knowingly, and therefore, his criminal intent is presume
from his commission of a criminal act. Without such presumption, it
would be very difficult for the prosecution to be required to prove
criminal intent. But the presumption could be rebutted.
Q: Distinguish “motive” from “intent”.
A: Both are in the mind.
Motive intent
the moving power that impels a the purpose to use a particular
person to commit a crime means to achieve a particular
result
completely immaterial. an element of a felony

EXAMPLE: A shoots B to death.

Q: What was the intent of A?

A: His intent was to kill.

Q: What was the motive of A in killing B?

A: I don’t give a damn. Maybe it is anger, revenge, jealousy, etc.
In the realm of criminal law – substantive law - motive is
immaterial, it is not an element of the crime. Hence, it need not be
proved for purposes of conviction. Otherwise, if we were to require
motive to be an element of a crime, many criminals will not be
prosecuted. When the commission of a crime is proved and the
identity of the criminal is established, motive is immaterial.

Motive is important, not in substantive law, but in procedural law

– the law on Evidence. Motive may constitute circumstantial evidence.
Meaning, if you have no direct evidence that A killed B, I will gather a
series of possible reasons to show why A is guilty. So, motive is
important to prove the probability that A is the criminal, but it is not
important to prove the existence of a crime. But if you have a
hundred witnesses, it is not necessary to prove motive because in
that case, the reason for committing the crime becomes completely
immaterial.
 People vs. Mosende
228 SCRA 341

No motive or reason for the killing here dealt with as revealed by the
proofs. This is immaterial, where the evidence otherwise persuasively
demonstrates who is the killer and the acts by which he has carried
out his nefarious intent.

This is not to say that what lies in the murky criminal mind is not of
interest, especially to penalogists, criminal psychologists, or social
scientists. But it is immaterial in reaching a conclusion of guilt and
imposing an appropriate penalty on the basis of a cold, dispassionate
appraisal of the bare facts exposed by the evidence.

In other words, motive would be a subject of penalogists, criminal

psychiatrists or social scientists. But for purposes of getting a
conviction, it is completely immaterial for as long as there is evidence
to prove that the crime was committed and it was the accused who
committed it.

Q: Can a person be held criminally liable under the RPC even if he has
no criminal intent?
A: YES, if it is committed by means of fault or culpa which is
substituted for intent.

Culpable felonies are known under Article 365 as QUASI-OFFENSES.

There is no criminal intent but is substituted by fault – imprudence or
negligence.

 Imprudence means deficiency of action, lack of skill.

 Negligence refers to deficiency of perception, lack of foresight.
Meaning, the failure to foresee what a reasonable man ought to
foresee.
EXAMPLE: A motorist drove his car at a speed of 100 kph in the
middle of San Pedro St. Suppose he bumps somebody. That is normal
– for incidents as that to happen. But there must be something wrong
in his foresight. Why is he driving at a very fast speed in a busy
street?

Q: What is the test of negligence?

A: The test is the failure to foresee what any ordinary person would
have ordinarily done.

Q: What is the test of imprudence?

A: The failure to do what any ordinary person would have ordinarily
done.

Q: Why does the law penalize people who commit culpable felonies,
when actually there was no criminal intent?
A: Because he is penalized for his lack of foresight or lack of skill.
According to the Supreme Court, it is very dangerous if a person
can get away with a criminal act simply because he did not
have the intent. Society will be at a great risk if people can
be careless anytime.

Another important principle: when the law says there must be

criminal intent or fault, what it means is the act must be
committed voluntarily. Every felony must be committed
voluntarily.

Q: What are the elements of voluntariness in an intentional felony?

A: There must be, on the part of the actor, the following:
1.) freedom;
2.) intelligence; and
3.) intent
Q: How about in a culpable felony?
A: In a culpable felony, the elements of voluntariness are:
1.) freedom of action;
2.) intelligence; and
3.) fault or negligence

Q: What do you mean by voluntary act in a felony?

A: It is an act which is free, intelligent and intentional. When you
remove one of these elements, the act ceases to be voluntary. There
might be intelligent and intent, but if there is no freedom, the act
ceases to be voluntary.

EXAMPLE: Article 12 – one who acts under the compulsion of an

irresistible force, one who acts under the impulse of an uncontrollable
fear of an equal or greater injury. Under these two circumstances, the
offender acts with intelligence and intent, but there is no freedom of
action, as he is only forced, threatened or intimidated to commit the
crime. So, he is exempt from criminal liability because the act ceases
to be voluntary. There is a Latin maxim: actus me invito, factus
non est meus actus. As it is done against my will, it is not my act.

If there is freedom, there is intent but there is no intelligence – it

has the same effect. The act ceases to be voluntary. For example:
Article 12 – an imbecile or insane person; a minor under 9 years of
age.

Suppose there is freedom, there is intelligence, but there is no

intent. What happens is that the person is again free from criminal
liability. It is true that criminal intent is presumed, but such
presumption is not conclusive, it is rebuttable.

US vs. AH CHONG
35 Phil. 488

FACTS: Ah Chong was a cook in Fort Mckinley. He was afraid of bad

elements. One evening before going to bed, he locked himself in his
room by placing a chair against the door. He called out twice, “ Who is
there?” but received no answer. Fearing that the intruder is a robber,
he leaped from his bed and called out again “if you will enter the
room, I will kill you!” But at that precise moment, he was struck by
the chair that had been placed against the door, and believing that he
was being attacked, he seized a kitchen knife and struck and fatally
wounded the intruder who turned out to be his roommate.

HELD: Ah Chong is not liable for the death of his roommate because
of mistake of fact.

Q: Define mistake of fact

A: Mistake of fact is a misapprehension of fact on the part of the
person who caused injury to another. He is not, however, criminally
liable because he did not act with criminal intent.

Q: What are the requisites of mistake of fact?

A: The requisites are:
a. that the act done would have been lawful had the facts been or
turned out as the believe the to be;
b. that the intention of the accused in performing the act should be
lawful;
c. that the mistake must be without fault or carelessness on the
part of the accused.

Q: What is the reason why Ah Chong killed the intruder?

A: Because he believed that the intruder was inside his room in the
dark to kill him, and therefore, he had to kill him first.
Q: Suppose what he believed turned out to be true. An intruder in the
middle of the night enters his room to kill him, but he kills him first. Is
he liable?
A: Of course not! Because of self-defense. Meaning if you believe it to
be so true, you are not liable. So, the first element is there.

Q: What was the intention of Ah Chong in killing that man?

A: The intention is lawful – to act in self-defense, to protect his life
and limb.

Q: Was he careless? Did he just immediately stab the person when

the latter entered the room?
A: NO, in fact Ah Chong asked who he was and even gave him
warnings not to enter the room or else Ah Chong would kill him. And
it was dark, so how can he determine whether the intruder was his
roommate or not. In other words, the element of intent and culpa
were all negated.

That is the classic example of mistake of fact. And the Latin

maxim there is Actus non facit reum nist mens sit rae. The act is
not criminal when the mind is not criminal.

Another maxim. Ignorantia facti excusat ( mistake of fact is

an excuse) is not to be confused with the ignorantia legis non
excusat. While ignorance of the law excuses no one from compliance
therewith, ignorance or mistake of fact relieves the accused from
criminal liability.

PEOPLE vs. OANIS

76 Phil. 257

FACTS: Chief of Police Oanis and his co-accused, Corporal

Galanta, were under instructions to arrest one Balagtas, a
 notorious criminal and escaped convict, and if overpowered to
get him dead or alive. Proceeding to the suspected house, they
went into a room and on seeing a man sleepjng with his back
towards the door, simultaneously fired at him, without first
making any reasonable inquiry as to his identity. The victim
turned out to be an innocent man, Tecson, and not the wanted
criminal.

During the trial, the accused invoked the Ah Chong case.

HELD: Both accused are guilty of murder. The Ah Chong case

does not apply here. The first requisite of mistake of fact is
lacking - that the act done would have been lawful had the facts
been as the accused believed them to be. Assuming it was the
wanted criminal that they were ordered to apprehend, do they
have the authority under the law to shoot him down? Even if
they invoke the mitigating circumstance of fulfillment of duty, it
will not be appreciated in their favor because although they are
authorized to use force in order to effect the arrest, the law says
reasonable force. It was not necessary for them to shoot him
down immediately. Even hardened criminals, if they can be
caught without killing them, then there is no need to shoot them
to death.

Q: Was there fault or negligence on their part?

A: Of course! They did not even bother to discover his identity –
whether the guy was the right person. They just started shooting
him. So, that is the difference between these two cases.

While it is true that in a culpable felony, intent is not necessary,

however, the law still requires voluntariness on the part of the
offender in a culpable felony. The element being still freedom,
intelligence and negligence. So, it is not correct to say that in reckless
imprudence case, the act is not voluntary.

If you are reckless, you ask yourself, were you forced to be

reckless? Did somebody compel you to perform a negligent act? If
there is none, then there is freedom. Were you crazy or out of your
mind when you committed the crime? If you were not, then there is
intelligence. In other words, even in culpable felonies, the elements of
voluntariness are still there.

Q: How does Article 365 define imprudence?

A: Article 365 defines reckless imprudence as voluntarily but without
malice doing or failing to do an act. So there, you will see that in
reckless imprudence cases, there is no dolo, but still the act must be
voluntary.

Q: Can a person be held criminally liable under Philippine law even if

there is no criminal intent on his part?
A: YES.
1.) when the felony is classified as culpable in nature, like
reckless imprudence; and,
2.) if the crime for which he is accused is classified as a crime
malum prohibitum.

Q: Distinguish mala in se and mala prohibita

A: They are distinguished as follows:
MALA IN SE MALA PROHIBITA
Crimes so serious in their effects violations of mere rules of
to society as to call for convenience designed to secure a
unanimous condemnation of its more orderly regulation of the
members affairs of society
criminal intent is necessary criminal intent is immaterial
because the only inquiry is: has the
law been violated?
generally refers to those acts or generally refers to acts or
omission punished by the RPC omissions made criminal by special
laws

Example of crimes mala in se are murder, homicide, robbery or

rape. They are not only crimes under our laws, but they go against
natural law, the basic commandments of God. Even without knowing
the law, your conscience would tell you that there is something wrong
with these crimes. They are wrong per se. Even without the RPC, the
human conscience will tell us that there is something wrong when a
person kills, robs, or rapes somebody. With or without the RPC,
society could not accept these evils.

However, there are also crimes which are NOT inherently wrong –
mala prohibita. They are wrong only because they are prohibited.
They are violations of mere rules of convenience enacted by the state
for the proper and orderly administration of society. Examples of
these are illegal possession of firearms, violations of traffic rules.

Q: Is there anything inherently immoral when a person brings a gun

with him?
A: One may not possess or own a firearm without a license because
the law says so. It is wrong because it is prohibited, not because it is
immoral.

Q: Is there anything wrong when a person drinks a bottle of beer

during election day?
A: None, but it comes a crime because the law says so. It says one
may drink on any other day, but not on election day.

Q: Why are people prohibited from drinking on election day?

A: Because this may lead to more violence, added to electoral
terrorism, on that day. Suppose B drinks on election day, but he has
no intention of committing acts of violence or terrorism. Meaning, he
has no criminal intent to terrorize voters. This is immaterial. The law
still says that the above act is a violation. The only issue is whether or
not the law was violated. That is all.

ARTICLE 4 – Criminal liability – Criminal liability shall be

incurred:
(1) By any person committing a felony (delito) although
the wrongful act done be different from that which he
intended;
(2) By any person performing an act which would be an
offense against persons or property were it not for the
inherent impossibility of its accomplishment or on
account of the employment of inadequate or ineffectual
means

Q: Suppose a person commits a felony and the wrongful act done is

precisely what he intended. For example, B kills A. B aimed his gun
towards A and shoots him, B’s intent was to kill A, and A died. Does
he incur criminal liability?
A: Of course! But this is not mentioned in Article 4 which says “ the
wrongful act done be different from that which he intended. Here, it
was really the intention of B to kill A.

Q: But why is B liable when it is not covered by Article 4?

A: Article 4 enumerates only the EXTRAORDINARY manner of
committing a crime or incurring criminal liability. The ordinary
way is to commit a felony and the wrongful act done was precisely
what you intended. But the wrongful act done is different from that
which he intended, that is not normal. That does not happen
everyday. That is why it is extraordinary, and that is what is covered
by Article 4. One incurs criminal liability even if his intention is
different from what actually happened.
 You will notice that based on that definition, the first paragraph
of Article 4 applies only to felonies by act. It cannot apply to felonies
by omission because the wrongful act done be different form that
which he intended. So, there was really intent. Therefore, it is also
limited to intentional felonies. It has no application to culpable
felonies.

Q: How can a person commit a felony and the wrongful act done is
different from that which he intended?
A: There are three situations contemplated by Article 4 (1):

1.) error in personae – error in identity

2.) aberration ictus- mistake in the blow, and
3.) praeter intentionem- the result exceeded the intention

ERROR IN PERSONAE

A wants to kill B so, he decided to ambush B in the dark. One

night, A waited for B, when he thought he saw B coming, A attacked
and killed B. Later on, A found out that the person he attacked was
not actually B, but X. He killed the wrong guy. Of course, A will be
prosecuted for the death of X, and B is very much alive. This is A’s
defense: He should not be liable for the death of X because he (A)
did not intent to kill X. He just misidentified the victim.

Q: Is that a valid defense?

A: Of course not! A is still liable for the death of X because although
there was a mistake in identity of the victim, he still had the intention
to kill.

ABERRATIO ICTUS
 This is not mistake in identity, but a mistake in the blow. For
example, A wanted to kill B, A drew his gun, pointed it to B and fired
at him. But the bullet did not hit B. Instead, the bullet hit X, killing the
latter. Prosecuted for the death of X, A’s defense is that X was not the
intended victim.

Q: Is A liable for the death of X, although he (A) did not even intend
to kill him?
A: Yes. That defense will not hold any water. A is liable for the felony
although it was not the one he intended.

So, in error in personae, there is a correct aim but the actual

victim turned out to be a person different from the intended victim. In
aberration ictus, on the other hand, because of a faulty aim, the
intended victim is not the person hit.

PRAETER INTENTIONEM

The result exceeded the intention, Most of the decided cases fall
here.

PEOPLE vs. CAGOCO

58 Phil. 524

FACTS: The accused had the intention to inflict physical injuries upon
the person of B. Approaching B, accused hit him with his fist.
Because of the first blow, B fell down on the floor. B’s head hit a rock.
It fractured his skull and thus caused his death. A had no intention of
killing B. His intention was merely to inflict upon B physical injuries.
But B died.

ISSUE: Is A liable for homicide although his intended felony was only
physical injuries?
HELD: A is liable for homicide, although his intention was merely to
inflict upon B, physical injuries. It is conceded that under Article 13,
he is entitled to the mitigating circumstance that the offended did not
intended to commit so grave a wrong as that committed. But that is
beside the point. The issue here is whether the crime he committed is
homicide or only slight physical injuries.

US vs. VALDEZ
41 Phil. 497

FACTS: The accused chased the victim with a knife causing the
victim to panic and run the latter jumped into the sea and drowned.

ISSUE: Is the accused liable for the drowning of the victim?

HELD: Yes, although the drowning was not intended

PEOPLE vs. QUIAMSON

62 Phil. 162

The accused inflicted wounds upon B. The accused stabbed B, but B

was brought to the hospital, so he was saved. In the hospital, there
were many instruments attached to him. The victim was restless,
while in the hospital bed. Then he started removing the bandages on
his wounds. Eventually, B died. Accused said the B’s death was not
due to his (A) fault. But the court still held the accused liable for the
death of B.

US vs. MARASIGAN
27 Phil. 504

FACTS: The victim here was stabbed. Because of his refusal to

submit to medical treatment, the wound got infected, and the injury
became worse. Slight physical injuries became serious physical
injuries. The accused was charged with serious physical injuries.
Accused claimed he should be liable only for slight physical injuries,
because the victim’s serious physical injuries arose from his (victim’s)
refusal to see the doctor.

ISSUE: Is the accused liable for serious physical injuries?

HELD: Yes, the accused is still liable for the serious physical injuries
inflicted upon the victim although it was not intended. The victim was
not obliged to submit to medical treatment to relieve the accused
from the natural and ordinary results of the crime. It was his
voluntary act which disabled the victim and he must abide by the
consequences resulting therefrom.

PEOPLE vs. MARTIN

98 Phil. 18

The husband strangled his wife who was then suffering from a heart
disease. While being strangled by the husband, the wife suffered a
heart attack which eventually caused her death. So, the cause of his
wife’s death was not suffocation but heart attack. The court held that
the husband is still liable for the death of his wife – Parricide.

A person, committing a felony, is liable for the direct, logical and

natural consequences of his criminal act.

In other words, the principle which the Supreme Court applied is

the so – called “doctrine of proximate cause”, and is defined as
that cause which in the natural and continuous sequence, unbroken
by any efficient intervening cause, results in a particular felony,
without which the felony would not have resulted.

Q: In the case of Cagoco, the victim did not die because of the
punch. The victim died because his head hit a piece of rock. Would
you say that the hitting of his head on the rock which caused his
death was something absolutely foreign, something which broke the
relation between cause and effect, between the punching and the
death?
A: No, That is not an efficient intervening cause. The immediate
cause of death was the fractured skull, but the punching was the
proximate cause based on the logic that without the punching, there
is no falling down. Without the falling down, there is no head hitting a
piece of rock, and if that did not happen, there will be no death. So,
everything is traceable to the original criminal act.

So, the principle laid down by the Supreme Court is : “He who is
the cause of the cause is the cause of the evil caused.” The
cause of death is actually the cause of the evil caused.

In other words, the effect is death, immediate cause – the fractured

skull, proximate cause – punching. So, the immediate cause of death
was the fractured skull, but the cause of the fractured skull is the
punching. Therefore, the punching is the proximate cause of death.

ILLUSTRATION:

Punch victim head hits rock victim

dies

(proximate cause) (fractured skull) effect

immediate cause
EXAMPLE: I stabbed A. Because I stabbed A, his wound got infected.
And because of the infection, he died or the wound became worse.
QUESTION: Is the infection, the invasion of bacteria, considered as an
efficient cause which would break the relation between cause and
effect, between his death and the initial injury? ANSWER: No.

Q: What do you mean by efficient intervening cause?

A: An efficient intervening cause is something absolutely foreign
and totally unexpected which intervened and which break
the relation of cause and effect, between the original
felonious act and the result.

Generally, infections are all considered as a continuation or the

natural effects of what happened to the victim. They are not efficient
intervening cause.

The law says that one is not liable if there are efficient
intervening causes. Meaning, if there is something which happened in
between which is absolutely foreign between the victim’s death and
the original act, there is a break in the relation of cause and effect,
then one is liable only up to that point. Beyond that, no more.

Take note that the Supreme Court says that one is liable for all
the direct, logical and natural consequences of his criminal act. The
Supreme Court never said that he is liable for all the possible and
probable consequences of his act.
There are some cases where the factor that intervened between
the criminal act and the resulting injury was considered as an efficient
intervening cause, something totally unexpected, something
absolutely foreign which broke the relation of cause and effect
between the original act and the resulting injury. So, when you are
liable for a felony, you are liable only up to a certain point.
 US vs. DE LOS SANTOS

FACTS: The accused here inflicted a wound upon the victim, which
was not really very serious. It was the type that would heal in one
week or less. So, the crime is slight physical injuries. But the victim
said that he wanted to hold the accused liable for a more serious
crime. What the victim did was to contaminate his wound,
deliberately causing it to be infected. The wound worsened.

HELD: The victim’s act of deliberately aggravating or worsening his

wound was considered as an efficient intervening cause. The accused
here should be liable only for slight physical injuries, not for serious
physical injuries, which is caused by the infection no longer in normal
circumstances. It is because of the bad faith on the part of the victim
himself.

Normally, jurisprudence would say that infections are efficient

intervening causes, except in this case of de los Santos, where it was
caused deliberately.

There is also another unique case decided by the Supreme Court

where the infection was considered an efficient intervening cause.
There are some queer cases where the Supreme Court went outside
the normal pattern. Because if we follow the general pattern, when a
person injures another and the victim suffers an infection maybe
because of carelessness or poor medical attendance, but not
intentional, the accused should be held answerable for everything.
That is his burden.
 URBANO vs. IAC
157 SCRA 1

FACTS: The accused wounded the victim who was a farmer. Despite
the wound, the farmer continued working hard in the field. After
several days or weeks, the wound was infected with tetanus, So, the
victim dies.

ISSUE: whether or not tetanus can be considered as an efficient

intervening cause of the victim’s death for which the accused should
be held liable.

HELD: There is a likehood that the wound was but the remote cause,
and its subsequent infection for failure to take the necessary
precautions with tetanus may have been the proximate cause of the
victim’s death, with which the accused has nothing to do.

So, the proximate cause of the victim’s death was not the wounding,
but the tetanus, because the wounding was but a remote cause. This
is one of the few cases where the accused was not held liable for the
resulting infection. The Supreme Court here did not apply paragraph
1 of Article 4 but applied the doctrine of remote cause, rather that
proximate cause. As a matter of fact, in the Urbano case, the
Supreme Court seems to be “dissecting” medical wounds. That case
became more of a medical textbook for tetanus, that a Supreme
Court decisioMarn.
 PEOPLE vs. PALALON
49 Phil. 177

FACTS: The accused slapped a boy. The victim subsequently

developed a fever due to malaria. Then the boy died. Accused was
charged with homicide.

ISSUE: whether or not malaria is an efficient intervening cause for

which the accused should be held liable for the death of the boy.

HELD: The slapping or punching could but have caused malaria.

Malarial caused the boy’s death. But malaria is caused by mosquito
bites. The intervention of malaria here was an efficient intervening
cause which broke the relation of cause and effect between the
slapping and the death. It was something foreign or remote. It had
nothing to do with the original act. It is not the direct, natural and
logical consequence of the act of the accused.

Take note of the premises of paragraph 1 of Article 4. The law is very

clear: a person is committing a felony although the wrongful act done
be different from that which he intended. So, this does not apply to
felony by omission.

Like for example, in one case, the mere act of punching is already
intended. In the case of Marasigan, the act of wounding the victim is
already a felony. In the case of Martin, where he strangled his wife,
that is already a felony, although the cause of her death is heart
attack. That is started with a felony. But if one is not committing a
felony, he is NOT liable for the direct, natural and logical
consequences of his act.

Q: A wanted to play a joke on his friend. Since, this is where he

passed every night, A waited to the friend. When he reached the
place, A surprised him. The friend died due to heart attack. Is A liable
for the friend’s death on the theory of paragraph 1, although the
wrongful act done be different from that which he intended? Was A
committing a felony when he played a joked on his friend?

A: No, A is not liable for the death of his friend. If there was a felony,
yes he is liable. But is there a law in the Philippines, that prohibits
from playing joke on somebody? None. Since A here was not
committing a felony when he played a joke on his friend, then he is
not liable for his friend’s death. It could be something unexpected and
tragic. But it is not enough to make a person criminally liable. There is
no basis.

(2) By any person performing an act which would be an

offense against persons or property were it not for the
inherent impossibility of its accomplishment or on account of
the employment of inadequate or ineffectual means.

This is known as the concept of “IMPOSSIBLE CRIME”.

Q: Define “Impossible Crime”.

A: An impossible crime is a crime committed by a person who
performs an act which would be an offense against the persons or
property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or
ineffective means.

THERE IS NO SUCH THING AS IMPOSSIBLE CRIME BY OMISSION

Q: Why is it that in paragraph 2 the Penal Code says, “performing an

act”, whereas paragraph 1 says, “committing a felony”?
A: Precisely because in paragraph 2 there is no known felony. Unlike
in paragraph 1 where there is a known felony that the offender
committed, here he did not actually commit a known felony as
defined in the RPC, Book II; but he performed an act which would
have been an offense against persons or property.

Meaning, the act should have been a crime against persons or

property but it did not turn out to be that way because of the
inherent impossibility of its accomplishment or on account of the
employment of inadequate or ineffectual means.

PEOPLE vs. BALMORES

85 Phil. 493

FACTS: This is about a crime of somebody trying to counterfeit a

currency note. He put a chemical on the note so that he could get
an impression. The trouble was that it was not done properly. All
the markings on the face of the forged bill were inverted. It looked
like a genuine bill with the exception of the inverted letters. He was
charged with counterfeiting…forgery.

HELD: No, it was not counterfeiting or forgery. Counterfeiting or

forgery means an exact reproduction of what the genuine currency
looks like. This is not an exact reproduction of the original for
everything is inverted. Therefore, he is not guilty of counterfeiting,
but he is guilty of an impossible crime because of the inherent
impossibility of its accomplishment or on account of the
employment of inadequate or ineffectual means.

But there is something wrong with this decision. Counterfeiting or

forgery is not a crime against person or property. It is a crime against
public interest. The concept of impossible crime is limited only to
crimes which would have ended as crimes against persons or
property. If we stick to the law, the correct ruling would be that he
neither committed any crime nor an impossible crime.

Normally you commit a crime against person. But you can also
commit a crime against property. Examples are the following: robbery,
theft, etc.. Against persons: murder, homicide, physical injuries, etc..

Q: Are all impossible attempts to commit a crime punishable?

Meaning, when you committed an act which turned out not to be an
offense because of an inherent impossibility, are you liable?
A: No. In order to be considered an impossible crime, it would have
been an offense against persons or property. So, when you perform
an act which would be an offense against chastity, against honor, or
against public interest, that is not covered by paragraph 2 of Art. 4
because of the special hatred by the RPC for crimes against persons
and property.

CRIMES AGAINST PERSONS

Suppose, you want to kill Lei and you plan to stab him in his room in
the middle of the night while he is sleeping. So, you go to his room,
you see him there lying, then, you start stabbing him to death, but
without knowing that he is already dead because one or two hours
earlier he died in his sleep.
Q: Are you liable for murder?
A: No, murder is impossible because you cannot kill somebody who
is already dead. There is a physical impossibility; you cannot kill a
cadaver. So, you did not commit murder. But had he been alive, it
would have been murder.

Q: What crime did you commit?

A: You committed an impossible crime because of the physical
impossibility of killing somebody who is dead. That is Art. 4, p(2).
CRIMES AGAINST PROPERTY

I want to steal your fountain pen. That pen is similar to the pen that I
lost. I cannot buy another one; so, I steal yours. Upon looking at the
pen, I realize that it is mine. it is the fountain that I lost.

Q: Did I commit the crime of theft?

A: No, there is legal impossibility. One of the elements of theft is
that the personal property taken by the offender belongs to another.
If it belongs to another, it cannot be theft. It is impossible for the
offender to be at the same time the victim of his act. One cannot
steal from himself.

Q: Is there a crime committed?

A: Yes, an impossible crime.
INADEQUATE MEANS

For example, I placed a small quantity of poison in the food of

somebody. He took the food but he did not die because the dosage
that I put in the food was insufficient to kill a person. I am liable for
committing an impossible crime.

Q: For instance, the poison that I placed in the food was adequate
but I did not know that the person was especially immune from the
chemical that I used. So, he did not die despite the sufficient amount
of poison. Did I commit an impossible crime?
A: No, that would be more of a frustrated murder. The offender
performed all the acts of execution which would produce the felony as
a consequence but which, nevertheless, did not produce it by reason
of causes independent of the will of the perpetrator. So, it is
frustrated murder under Art. 6, rather than an impossible crime under
Art. 4 p(2).
INEFFECTUAL MEANS
For example, I placed something in your coffee believing that it was
poison, but actually it was salt or sugar. You could not have been
killed because it was not poison. But because I believed that I could
have killed you were it not for the ineffectual means, I am liable for
an impossible crime.

THERE MUST BE CRIMINAL INTENT ON THE PART OF

THE OFFENDER. IN OTHER WORDS, HE BELIEVED HE WAS
COMMITTING A CRIME AT THAT MOMENT

Suppose, I want to kill Dao while he is asleep in his room. I go to

Dao’s room and see him lying in bed. I approach him, and I notice
that he is not moving. I touch him (cute nya); he is already dead!
(ngee, takot ako!) So, I said; “Shit! Why do you have to die before I
kill you?!?” so, I just stab his body, knowing that anyway he is already
dead.

Q: Am I liable for an impossible crime?

A: No, because there is no intent to kill. It is different when you
think you are killing him when actually he is already dead.

A PERSON COULD BE LIABLE FOR AN IMPOSSIBLE

CRIME ONLY IF THE ACT DOES NOT FALL UNDER ANY SPECIFIC
PROVISION OF THE RPC. IMPOSSIBLE CRIME IS THE LAST RESORT
A, who knew that B owned and always carried a watch, decided to
rob B of said watch. When A met B for that purpose, B did not have
the watch because he forgot to carry it with him. Thinking that B had
the watch with him, A pointed his gun at him and asked for the
watch. Finding that B did not have the watch, A allowed B to go
without further molestation.

Q: Is he liable for an impossible crime because it was impossible for

him to take something which is not there?
A: NO. That is not an impossible crime, that is an attempted robbery.
It would fit the definition of an attempted robbery better than the
definition of an impossible crime. And the mere act of placing or
poking a gun at somebody is by itself already a felony. So, it falls
under a specific provision of the RPC, then, it should not be treated as
an impossible crime.

Q: What is the basis for this impossible crime doctrine? Why should a
person be held liable when actually he did not commit any crime?
A: The principle here is objectively he is not a criminal, but
subjectively he is a criminal. He thought he was committing a crime.
So he should be punish for that. In the positivist thinking, he is a
socially dangerous person; he is criminally minded.

Q: Why are we talking about the person? Didn’t we say that the RPC
is based on the Classical theory of criminal law, where we are looking
at the effect rather than the person? How come you are now
emphasizing the criminal mind of the actor rather than the act? Is this
not a violation of the classical theory of criminal law?
A: NO. Article 4(2) of the RPC is one of the few principles which is
positivist-oriented. Our RPC is mainly based on the Classical theory,
but there are few positivist-oriented provisions and one of them is the
impossible crime concept, under Article 4(2) of the RPC.
Q: What is the penalty to be imposed on impossible crimes? Can we
penalize the offended for murder, or homicide or robbery etc, - the
crime which he would have committed?
A: Of course not! He cannot be penalized for the crime which he
would have committed precisely because he did not commit the
crime.

Q: What crime did he commit?

A: He committed an impossible crime.

Q: What then is the penalty for an impossible crime?

A: Article 59, RPC. _Penalty to be imposed in case of failure to
commit the crime because the means employed or the aims sought
are impossible. – When the person intending to commit an offense
has already performed the acts for the execution of the same but
nevertheless the crime was not produced by reason of the fact that
the act intended was by its nature one of impossible accomplishment
or because the means employed by such person are essentially
inadequate to produce the result desired by him, the court, having in
mind the social danger and the degree of criminality shown by the
offended, shall impose upon him the penalty of arresto mayor or a
fine ranging from 200 to 500 pesos.
Article 5. Duty of the Court in connection with acts which should be
repressed but which are not covered by the law, and in cases of
excessive penalties. – Whenever a court has knowledge of any
act which it may deem proper to repress and which is not
punishable by law, it shall render the proper decision and
shall report to the Chief Executive, though the Department of
Justice, the reasons which induce the court to believe that
said act should be made the subject of penal legislation.
In the same way the court shall submit to the Chief
Executive, though the Department of Justice, such statement
as may be deemed proper, without suspending the execution
of sentence, when a strict enforcement of the provisions of
this Code would result in the imposition of a clearly
excessive penalty, taking into consideration the degree of
malice and the injury caused by the offense.

Q: What does the first paragraph of Article 5 mean? Suppose a

person is accused in court criminally, and it turned out that the act is
not a crime. Meaning, there is no law that penalizes this act. What
should the court do?
A: The law says that the court should render the proper decision.

Q: What is the proper decision?

A: Acquit. How can you convict a person when there is no existing
crime. NULLUM CRIMEN, NULLA POENA SINE LEGE. But the court
should inform the executive branch that it should recommend the
passage of the law. Sometimes, it happens that you commit an act
which appears to be immoral and illegal, but there is no governing
law. So, you now recommend that a new law be passed. This is to
cover the loophole in the law.
But the second paragraph states the opposite situation. If a person is
found guilty of a crime – there is no question about it; there is no
question that he is liable – and this is the proper penalty. This penalty
must still be imposed on the convict even though it is excessive. Why
excessive? Because of some special circumstances. Normally, it is not
circumstances. Normally, it is not circumstances, it becomes one. But
there is nothing that the judge can do. He still must impose it but he
must recommend executive clemency. That is for the President to
grant. The judge has no power to pardon. The judge has no power to
commute or to grant conditional pardon. The executive branch must
take over but as a judge, he has no other choice but to apply the law.
People vs. Orefon

Facts: A girl was accused of parricide for killing her own father.
 The prescribed penalty for parricide is reclusion perpetua to
death. That is a heinous crime. But during the trial, based on the
evidence, it came out that the accused killed her own father
because she could no longer withstand what her father was
doing to her. She was raped from time to time - - incestuous
rape. So, she killed her own father. Well, for killing the father she
still committed parricide. There is no exception there and the
penalty is reclusion perpetua to death. That cannot be lowered
by any mitigating circumstance. So the judge has no choice but
to sentence her to perpetua. But based on the circumstances of
the case, there is something exceptional which makes the penalty
excessive. In other words, the court also has to consider the
feeling of the girl.

Held: The trial court is ordered to sentence her to perpetual, but

in the decision, recommend executive clemency. The executive
branch will take that into consideration.
This has happened very recently. In the case handled by the late
Judge Ocampo, in beautiful Cebu. He convicted the killers of the
Chiong sisters, finding them guilty beyond reasonable doubt, but he
imposed the penalty of reclusion perpetua, when there is no question
that the applicable penalty is death. The judge has applied his own
norm of morality, or his own concept of the death penalty. The law is
the law for all its seeming harshness. We, as court of judges, have to
apply the law regardless of personal beliefs and compassion. Dura lex
sed lex.
People vs. Villorente
210 SCRA 647

Facts: The case is one for forcible abduction with rape filed
against Villorente and his mother. Why was the mother included
as co-accused? This Villorente was in love with a certain girl but
 he doesn’t know how to court the girl. The mother pitied her son
and decided to abduct the girl and have her son raped her. The
mother, in fact, cooperated with her son and both of them were
sentenced to reclusion perpetua. The case reached the SC.

Held: The penalty is excessive for Teresita Villorente. Unschooled

like her son, she appears to have acquiesced with Charlie on
account of her maternal concern. She must have agonized with
Charlie who did not know how to court the girl of his dreams. Not
knowing how to court Jonah. Charlie look at her from a distance
until he could no longer hold his desire and with the complicity of
his mother, abducted and raped her. It is, therefore, necessary
that under the provision of Article 5 of the Revised penal Code,
the attention of the President should be called to the mother.

Meaning, sometimes, a mother will go out of her way just to help her
child. Of course, you cannot condone that. She still committed a
crime because she wanted her son to be happy.

How a felony develops

I. Mental Process/Internal Acts - not punishable

II. External/Physical Acts:
a. Preparatory Acts –
General Rule: not punishable
Exception: If the RPC penalizes it
Eg. Article 304 (possession of picklocks & false keys)
 b. Acts of Execution:
1. Attempted }
2. Frustrated } - punishable

3. Consummated }

Normally, as outlined in some books, a crime usually starts with a

person arriving at the decision to commit a crime and then he plans it
out. We call that the mental process or some authors call them
internal acts. Although the word internal acts does not seem to be
accurate because in criminal law, when we say “act” as defined in
Article 3, it is physical action, a moving of the muscle. If it is a mental
process, it cannot be an act but we will just use the word act loosely.

At this stage, this is still beyond the scope of criminal law. No one can
charge you for thinking of committing a crime. That is a problem
which should be solved by the person with his spiritual director. But it
is not the concern of the law. So if you want to murder your enemies,
you just imagine. If you want to rape beautiful girls, you just imagine.
You cannot be guilty of that. Nobody can accuse you criminally. That
is beyond the scope of criminal law.

However, usually after the decision and the planning, that is followed
by external acts, the physical activity. So, the mental process will now
be followed by external or physical acts. But external acts should be
divided into two. First, are the PREPARATORY ACTS.

Like for example, you want to poison your enemy, you will buy
poison. If you want to stab him, you buy a knife and sharpen it. If
you want to shoot him, you get a gun and practice shooting…… target
practice. Those are preparations.

Q: Are they punishable?

A: The general rule is NO> the act of buying poison is not the act of
poisoning the victim. The act of sharpening a knife is not the act of
stabbing. Except when the law penalizes such preparatory acts.

Preparatory external acts of preparation for the commission of a

felony are not punishable, except when the law specifically provides
for a penalty for such preparatory acts.

The best example is Article 304 of the RPC which penalizes the crime
known as possession of picklocks and similar tools. Picklocks and
similar tools are usually objects of gadgets which are owned by
robbers. They use it to open doors, windows, etc.

But actually, the possession of a false key or a picklock is not the

actual act of robbery. It is only in preparation of robbery. Normally, it
should not be punishable but the trouble is Article 304 says the mere
possession of these objects which are preparatory to the crime of
robbery with force upon things is also punishable.

After the preparatory acts comes the ACTS OF EXECUTION. Where a

person now proceeds to implement his plan. He now executes the
commission of the act and there are three possibilities, which the RPC
calls as the attempted, frustrated and consummated or merely
frustrated or attempted is already punishable. So we are concerned
here because these are all punishable already.

Article 6. Consummated, frustrated and attempted felonies. –

Consummated felonies as well as those which are frustrated
and attempted, are punishable.
A felony is consummated when all the elements
necessary for its execution and accomplishment are present;
and is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence
but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator.
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his
own spontaneous desistance.
 Attempted Stage

There is an attempt when the offender commences the commission of

the felony directly by an overt act. Since the law says by overt acts,
the conclusion is: In felony by omission, there is no attempted stage.
So, there is no such thing as attempted stage in a felony by omission
because attempted stage applies only to felony “by act.”
The SC laid down the rule that in order to convict a person for an
attempted felony, the overt act must have a direct relation to the
felony for which he is charged. There must be a direct relation
between the overt act and the elements of the felony for which he is
charged.
People vs. Lamahang
61 Phil 707
Facts: One night, a group of policemen, while patrolling on a
neighborhood, saw a figure in the dark inside the house. They
stopped and observed what the guy was doing. The guy did not know
that he was being watched by the group of policemen patrolling.
What the guy was doing was that he tried to remove a portion of the
wall. He was trying to create an opening to enter the house. When he
was able to create an opening, and the accused was already in the
act of entering the house in the middle of the night, that was the time
when the policemen caught him. And for that he was charged for the
crime of attempted robbery. Meaning, he commenced the commission
of robbery by over acts by trying to enter the house in the Middle of
the night. Although he did not succeed because he was caught.

Held: There was no attempted robbery. There is no connection

between what he was doing and the elements of robbery. Why? How
do you commit robbery? Robbery is committed by taking personal
property belonging to somebody. But here, he has not yet
commenced the act of taking something. They caught him in the act
of entering, but robbery is not committed by entering but by taking.
So there is no connection between the act and the crime for which he
is charged. For they know, once he is already inside the house, his
intention might be to rape or kill somebody. So it was premature to
charge him with attempted robbery.

However, one thing is clear. He was in the act of entering a

house in the middle of the night, while all the occupants were
asleep. And when one enters a house against the will of the
occupants, he commits the crime of trespass to dwelling. So the
crime he has committed is attempted trespass to dwelling, not
attempted robbery.

In the attempted felony, the offender here had started to commit the
felony. But the trouble is, he did not finish. He was halfway through or
less than halfway through, but he did not continue because he failed
to perform all the acts of execution which should have produced the
felony. Why? Because of a cause or because of an accident other than
his own spontaneous desistance.
 CAUSE

Theft, pickpocket. He was trying to pick the pocket of the victim. He

was trying to lift the wallet inside the pocket or the bag. The owner of
the wallet detected it, and held the hands of the thief. So, he failed to
take the wallet. There was the act of taking but he failed to complete
the possession of the wallet. The reason here why he failed to
perform all the acts of execution was because the owner prevented
him. That is a cause other than his own spontaneous desistance. So
attempted thief.

 ACCIDENT

I want to kill A. I aim the gun. I fired, but the gun jammed. It did not
explode. So, with that I failed to kill the victim. Well, when I pointed
my gun to the victim, I have already commenced the act of trying to
kill. But the trouble is it did not explode. The jamming of the gun was
an accident which prevented the performance of all the acts of
execution. The crime was not consummated, not because the
offender stopped from proceeding, but because of something else.

 OTHER THAN YOUR OWN SPONTANEOUS DESISTANCE

If a person commences the commission of a felony, but did not

complete it because of his own spontaneous desistance, according to
Viada, there is no criminal liability. He is not even guilty of attempted
felony on the theory that a person who is already on the verge of
committing a crime but desists or decides not to pursue because his
conscience bothers him should not be penalized. In fact, he should be
rewarded for hearkening to his conscience.

Q: Suppose, A would like to kill Z. As a matter of fact, he already

commenced the commission of the felony but hr realized that there
were many eyewitnesses. So, he desisted. Can he be liable?
A: Viada says, never mind what is the motive for not continuing.
What is important is that he did not continue with the crime; he
desisted voluntarily. Viada does not care whether his desistance was
based on a noble reason, remorse, or out of fear of being caught.
What is important is his desistance. When he tries again, that is
another story. But for the moment, since he desisted, he would not be
liable.

But take note that the desistance must come before the
consummation of the crime. You cannot desist when all the acts of
execution are already accomplished.

For example, I want to kill P. Bang! Bang! Bang! P was fatally hit. He
fell down. Ahhh…. Uy!!! I’m sorry; I desist! Hindi pwede. The
desistance must come before all the acts of execution have been
accomplished.

Another story: I steal your wallet (unsa man ni uy! Ako naman nuon
ang kriminal!). then, I go out. I am already out. I decide to go back
and return the wallet.

Q: Is there an attempted theft? Or is there no theft a all because of

my desistance?
A: The crime of theft is consummated. Ulahi na ang pagbasol. The
moment I take your wallet and then leave, the crime is accomplished
or has already been fully consummated. So, when I return it to you, I
cannot say that I desist.

Take note of that; you cannot desist when the crime is already
consummated. However, under Art. 13, I will be entitled to a
mitigating circumstance that is analogous to voluntary surrender.

Some authors call that the OBJECTIVE STAGE and the SUBJECTIVE
STAGE. In the objective stage, the actor is still in control of his act. It
is still within his means to desist. If he desists, he is not liable. But if
he did not proceed not because of his desistance but because of a
cause or accident other than his desistance, he is still liable for an
attempted felony. But if he reaches the subjective stage where he can
no longer desist, then, he has reached either the frustrated stage or
consummated stage, depending on whether the crime is
accomplished or not. He has gone beyond the stage of attempted
felony.
 FRUSTRATED STAGE
Q: How does the law define a frustrated felony?
A: In a frustrated felony, the offender has performed all the acts of
execution which would produce the felony as a consequence but
which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.

Q: Distinguish attempted stage from frustrated stage.

A: In the attempted stage, the offender has not performed all the
acts of execution which should produce the felony; whereas, in
frustrated stage, the offender has performed all the acts of execution
which would produce the felony as a consequence.

Sometimes, these two stages are difficult to distinguish. Even the SC

in some old decisions admitted its difficulty. The line that divides the
two stages seems to be very thin. The best illustration of determining
the stage of a crime is in crimes against persons which involve an
attempt to kill – attempted or frustrated murder or homicide. But
there are some crimes which show very unclear differences, like rape,
arson, etc.

PEOPLE v. BORINAGA
55 P 433

FACTS: The accused, with intent to kill, approached the victim from
behind. The victim was sitting on the chair. The accused had a very
long dagger. There was treachery here. He plunged the dagger
towards the back of the victim but the dagger hit the wooden frame
of the chair. The dagger was imbedded; the victim was thrown
forward because it was a very powerful blow. There was no injury to
the victim because the dagger hit the wood.

ISSUE: Whether the felony was an attempted murder or a frustrated

murder.

RULING: The crime was frustrated murder because the offender has
performed all the acts of execution which would have produced the
murder or the death of the victim as a consequence but which,
nevertheless, did not produce the death of the victim because of a
cause independent of the will of the offender, and this cause is the
dagger hitting the wooden frame rather than the back of the victim.

Note: (dissenting opinion) It is attempted murder. It cannot be

frustrated because the offender has not performed all the acts of
execution. How can you kill a person unless you hit him? The
victim was not even hit.

So, unless you hit the victim, you have not performed all the acts of
execution which would produce the death of the victim as a
consequence. The death of the victim cannot be produced unless you
hit him first and he sustains a wound that is sufficient to kill, one that
is fatal.

However, according to the majority, the wooden frame which was

hit by the dagger prevented the victim’s death. But the minority
contends that the wooden board did not save the victim from death;
it saved him from being hit. You cannot talk of death unless the victim
is first hit. In other words, the minority is of the opinion that the
offender did not perform all the acts of execution because of a cause
or an accident (the dagger hitting the wooden frame) other than his
own spontaneous desistance.

Q: Which of the two contending discussions is correct?

A: In subsequent cases, after Borinaga, it appeared that the
majority ruling was wrong, and the minority view was the correct one.
Borinaga should have been convicted only of attempted murder and
not frustrated because later decisions rectify whatever error came out
in the case of Borinaga.

Later decisions came out with a view that in crimes against persons
which involve intent to kill, before a person could be convicted of
frustrated murder, the prosecution must establish that the victim
sustained an injury which could normally kill. Therefore, if the wound
is not mortal, then, the crime is only attempted homicide or murder.

Q: Suppose, I shot K but the gun jammed. Is that attempted or

frustrated?
A: Attempted. How can K die when I did not even hit him. The
jamming of the gun is an accident other than my own spontaneous
desistance.

Q: Suppose, I shot K, but because of my poor aim, he was not him.

what is that?
A: That is still attempted. How can he die unless I hit him. so, my
poor aim is the cause other than my own spontaneous desistance.

Q: Suppose, I hit him but the wound is not really fatal. So, he did not
die. Is it attempted or frustrated?
A: It is still attempted because I have no performed all the acts of
execution. How can K die without a fatal wound? So, until the
offender inflicts a fatal wound which could normally kill, it can be
rightfully claimed that the offender has not performed all the acts of
execution which would produce the felony as a consequence.

But, suppose, the offender, with the use of a .45 caliber pistol, shot
the victim in the head blowing off his brain, hit him in his chest
blasting his heart and still another shot blasting his liver. Then, the
victim was rushed to a hospital. Because of modern apparatus, he
was able to survive. This modern science is the cause independent of
the will of the perpetrator. I did everything to kill him. Definitely, I’ve
performed all the acts of execution. He is supposed to be dead by
now. That is frustrated. (na-frustrate ka ba)

Q: A doctor wanted to poison his wife. So, he placed poison in his

food. this wife ate the food with poison. When the wife had already
swallowed the food, the doctor was bothered by his conscience. He
was remorseful; so, he administered first aid and forced her to vomit.
The wife survived. Was the crime attempted or frustrated parricide?
A: Let us analyze:

 In attempted parricide, the offender has not performed all the

acts of execution. In other words, it would be attempted if the
wife, who has already taken the poison, vomited by herself. When
she spit out the poison, that constitutes an accident other than the
husband’s desistance. But if the husband had his conscience
stricken before the wife had swallowed the poison, then, there is
not even an attempted parricide because of his own spontaneous
desistance.

 But if the wife has already swallowed the poison, and it was
already in her stomach, desistance is immaterial. You cannot order
the poison to go out of the body. he has in fact passed the
 frustrated stage because he has already performed all the acts of
execution. But to convict a person of frustrated parricide, the law
requires that the felony did not materialize because of causes
independent of the will of the perpetrator, like you shot somebody
but because of timely intervention by a doctor, he survived. But,
here, the offender himself saved the wife. In other words , it would
not also fit the definition of a frustrated felony.

Q: So, what was the crime committed?

A: The crime of administering injurious beverage under Art. 364. It is
a form of serious physical injuries.

Q: How do we distinguish the attempted or frustrated stage of a

felony from an impossible crime?
A: In an impossible crime, the crime to be committed was inherently
impossible of commission; whereas, in attempted or frustrated felony,
the crime is possible of accomplishment, but it was not produced
because of a cause or an accident other than the offender’s
desistance, or because of causes independent of the will of the
perpetrator.
Intod Vs. CA
212 SCRA 52

FACTS: Intod and his companions, with intent to kill, fired at the
bedroom where they thought the victim was sleeping. It turned out,
however, that the victim was in another city and no one was in the
room when the accused fired the shots. No one was hit by the
gunfire.

The accused contends that the crime is an impossible crime under

Article 4(2). They performed an act which would be an offense
against persons – murder, were it not for the inherent impossibility of
its accomplishment. How can they accomplish when the victim was
not there, when he turned out in other places?

On the other hand, the prosecution believes that it was an attempted

murder. They failed to kill him because they failed to perform all the
acts of execution, because of a cause other than their own
spontaneous desistance. And that cause is the fact that the victim
turned out not to be there.

ISSUE: What crime was committed?

RULING: The factual situation of the case at bar presents a physical

impossibility which render the intended crime impossible of
accomplishment, and under Article 4(2), such is sufficient to make the
act an impossible crime. To uphold the contention of the prosecution
that the offense is attempted murder because the absence of the
victim was the supervening cause independent of the actor’s will will
render useless the provision of Article 4 of the RPC. In that case, all
circumstances which prevented the consummation of the offense will
be treated as an accident independent of the actor’s will.

So, the SC agreed with the accused. It is a case of impossible crime

because everytime a crime is not committed, because of a cause or
accident other than the desistance of the accused, or causes
independent of his will, it would be attempted or frustrated. There is
no more application of Article 4(2), if we follow the logic of the
prosecution.

1994 Bar Question: Jippy, Arias and Randal planned to kill Elsa, a
resident of Brgy. Ula, Laurel, Batangas. They asked the assistance of
Ella who is familiar with the place. On April 3, 1992 at about 10:00 in
the evening, Jippy, Arias and Randal, all armed with automatic
weapons went to Bragy Ula. Ella being the guide directed her
companions to the room of Elsa. Whereupon, Jippy, Arias and Randal
fired their guns toward the room. Fortunately, Elsa was not around as
she attended a prayer meeting that evening in another barangay.
Jippy, et.al., are charged and convicted of attempted murder by the
RTC of Tanauan, Batangas. On appeal to the CA, all the accused
ascribed to the trial court its error in finding them guilty of attempted
murder. If you are the ponente, how would you decide the appeal?

ANSWER: I will reverse the trial court’s decision and convict them of
impossible crime under the doctrine enunciated by the SC in the case
of Intod vs. CA.
CONSUMMATED

Q: What is a consummated felony?

A: A felony is consummated when all the elements necessary for its
execution and accomplishment are present.

The definition of a crime in Book II contains the elements which you

can detect by splitting the definition into parts. And to convict a
person of a particular crime, you have to prove all the elements to
establish the crime. If all the elements of a crime are present, then
the felony is consummated. That’s the simple test.

For example, with intent to kill. A shot B and B died. That is

consummated homicide or murder.

Q: But suppose some elements are present and some elements are
absent. Suppose a crime is composed of several elements, then the
prosecution has established only some of the elements but the others
are not, what will happen?
A: There are Three Possibilities.

1. The accused can be found guilty only of frustrated or

attempted felony.
Example: A, with intent to kill, shoots at B. But B did not die because
the doctor saved his life.

Q: Is the crime consummated homicide?

A: Of course not. It is frustrated homicide.

2. The accused cannot be convicted of the felony charged in

its consummated stage but he can be found guilty of
another felony also in its consummated stage.

Example: A person is charged with robbery. Robbery is committed

when, with intent to gain, one takes personal property belonging to
another with violence or intimidation of persons or force upon things.
The offender is proved to have taken, with intent to gain, property of
another but there was no force upon things, or violence or
intimidation against persons.

Q: What crime was proven?

A: What was proven is the crime of simple theft.

Example: A is accused of murder because according to the

prosecution, with intent to kill, A shot B and killed him by means of
treachery. During the trial, the prosecution proved that the accused
shot the victim. He shot A with intent to kill. The victim died but there
was no treachery. So, the charge is consummated murder, the crime
proven is consummated homicide.

That is the 2nd possibility. When the prosecution prove less than the
elements of the crime charged, the accused can be convicted of
another crime also in its consummated stage. In the law on criminal
procedure, that means the accused is convicted of a crime necessarily
included in the crime charge.
 3. When a person is charged with a crime which consists of
two or more elements, some elements are proven but the
others are not, the accused should be acquitted because
no crime was established.

Example: A accused B of estafa under the Penal code. Generally, the

elements of estafa are:
a. Misappropriation;
b. Deceit or abuse of confidence; and
c. Pecuniary damage suffered by the plaintiff.

During the trial, the prosecutor proved that the accused was able to
get money from the victim and he did not return the money. So there
was pecuniary damage. But there was no deceit, no abuse of
confidence.

Q: So, what has been proved?

A: It is a simple loan. Therefore, there is no estafa. It is purely a
civil obligation. In the absence of abuse of confidence or deceit, the
cause of action is purely civil. No crime is proven but there is civil
liability.
However, there are certain crimes where you will have a hard time
determining the stage of execution.

SPECIAL CRIMES

1) THERE IS NO DISTINCTION BETWEEN THE ATTEMPTED FELONY

AND CONSUMMATED FELONY
You have to take note also that in some special crime the attempted
stage and the consummated stage are identical. Meaning, when you
do it, consummated. When you attempt to do it, also consummated.
So, there is no distinction between the attempted and the
consummated because they carry the same penalty.

Art. 121. Flight to enemy's country. — The penalty of arresto

mayor shall be inflicted upon any person who, owing
allegiance to the Government, attempts to flee or go to an
enemy country when prohibited by competent authority.

Problem: Philippines is at war with another country. So. All citizens

of he Philippines are banned from going to that country. Suppose, in
violation of that, you decide to go to that country. When you come
back, the government will file a case against you because you visit a
country with which we are at war and there is prohibition.

You really wanted to go. You are on the act of going; you are about
to board a plane. You are caught! So, you are not able to go. You
attempt to go, consummated. You go and you are caught,
consummated also. The attempted and consummated stages are
identical, that is why a mere attempt is already considered
consummated.

2) CONSUMMATED OR NOTHING

There are some crimes where there is no attempted or frustrated. It’s

either consummated or nothing.

Examples:
a. FELONY BY OMISSION – You failed to do an act which the law
commands you t do as a duty. So, if you do act, you don’t
 commit any crime. But if you do not do it, there is a crime. Either
you do or you do not do.
b. FALSE TESTIMONY IN COURT
c. SLANDER – When you orally defame somebody in public
presence; kawatan ka, rapist pa gyud!!! What did you commit.
You have orally defamed the person to put him in dishonor.
Suppose, you just said; kaw… You did not finish. Is that
attempted slander? NO! Either you say the whole thing or you
don’t.

Some authors call that FORMAL CRIMES where there is only one
stage as distinguished from crimes composed of stages which are
called MATERIAL CRIMES, like homicide. But even in material crimes,
it is also hard to distinguish one from the other.

For instance, ARSON.

You burn a building. Out of 30 rooms, only two are totally burned.
The fire was extinguished. So, 2/30.

Q: What is that – attempted, frustrated, or consummated? How

much portion of the building must be burned before it becomes
consummated, frustrated, or attempted?
A: According to the SC counting the number of rooms or percentage
of the building which was burned is not the way to determine the
stage of execution of arson. No matter how small is the portion
burned, that is already consummated arson.

Q: If that is so, how can you commit frustrated or attempted arson?

Is there such a thing as attempted or consummated arson?
A: Yes. That is answered by jurisprudence.

The same thing with rape. According to the SC, there is no such thing
as half measure or quarter measure in a rape. Mere penetration of
the labia no matter slight or momentary, even if there is no emission,
consummates the crime.

If there is sexual intercourse between the rapist and the victim, even
how fleeting it is, or how shallow the penetration, that is already
consummated. If it is in the act of entering but it is discontinued, that
is attempted.

Q: Where is the frustrated there?

A: In one case the Sc said that there is no frustrated stage in rape.
These can only be learned if you know the jurisprudence.

Q: So, based on Art. 6, what are the classifications of felonies

according to stages of execution?
A: They are the following:
1. attempted;
2. frustrated; and
3. consummated.

Art. 9. Grave felonies, less grave felonies and light felonies. —

Grave felonies are those to which the law attaches the
capital punishment or penalties which in any of their periods
are afflictive, in accordance with Art. 25 of this Code.
Less grave felonies are those which the law punishes with
penalties which in their maximum period are correctional, in
accordance with the above-mentioned Art..
Light felonies are those infractions of law for the
commission of which a penalty of arrest menor or a fine not
exceeding 200 pesos or both; is provided.

Q: What are the classifications of felonies according to their

gravity?
A: According to their gravity, felonies are either:
1. grave;
2. less grave; or
3. light.

 SUMMARY OF CLASSIFICATIONS OF FELONIES UNDER THE

RPC

1. Art. 3 – a) felonies by act

b) felonies by omission

2. Art. 3 – a) intentional felonies

b) culpable felonies

3. Art. 6 – a) attempted
b) frustrated
c) consummated

4. Art. 9 – a) grave
b) less grave
c) light

 GRAVE FELONIES

Q: How do you determine whether a felony is grave, less grave, or

light?
A: It depends on the penalty attached by law to the crime
committed. This is a manifestation of the classical theory of criminal
law. There must be a proportion between the seriousness of the
crime and the penalty.

Q: How do I know that a felony is grave?

A: According to Art. 9, if it is punishable by death, or any penalty
which the Code classifies as afflictive, it must be a grave felony.

Q: What are the afflictive penalties?

A: Under Art. 25, you have the following:
1. reclusion perpetua;
2. reclusion temporal;
3. perpetual or temporary absolute disqualification;
4. perpetual or temporary special disqualification; and
5. prision mayor.

So, any crime in the RPC which carries any one of those penalties is
automatically a grave felony.

 LESS GRAVE FELONIES

Q: What is a less grave felony?

A: It is one which, in its maximum period is punishable by a penalty
classified as correctional in nature. If the penalty is correctional, it is
less grave.

Q: What are the correctional penalties?

A: Art. 25 of the RPC gives the answer.
1. prision correcional;
2. arresto mayor;
3. suspension; and
4. destiero.
LIGHT FELONIES

Q: What are light felonies?

A: They are infractions or violations of the RPC where the prescribed
penalty is imprisonment of arresto menor, or a fine not exceeding
P200 or both.

Art. 7. When light felonies are punishable. — Light felonies are

punishable only when they have been consummated, with
the exception of those committed against persons or
property.

GENERAL RULE: Light felonies under Art. 9 are only punishable if they
are consummated.
EXCEPTIONS:
1. light felonies against persons;
2. light felonies against property.

In other words, light felonies must be consummated to be punishable.

So, if the felony is light and it is only attempted or frustrated, there is
no liability. It is not punishable. In effect, there is no crime and you
are not liable.

The reason for the rule is that a light felony is merely a minor
infraction of the law. As a matter of fact, even if the light felony is
consummated, the penalty is only arresto menor or a fine not
exceeding P200. damage or injury to society or to the public order is
very negligible. If it is negligible, what possible damage to society is
there if the light felony is only attempted or frustrated? It is so
microscopic in size that the law would rather not punish it anymore.

However, Art. 7 has also an exception: x x x with the exception of

those committed against persons or property. If the light felony is
classified as an offense against persons or property, it will be
punishable even if it is only attempted or frustrated. Meaning, the law
does not forgive it. It would still penalize the felony even if it is
negligible.

Q: What is the reason why the law gives this exception?

A: Crimes which would be an offense against persons or property
which show or demonstrate a greater degree of the moral depravity
or perversity of the offender. Meaning, those who commit crimes
against persons are more perverse than those who violate the other
Titles of the Book.

That is correct. In the newspaper, 99% of all the crimes reported

nowadays are against persons or property. Estafa, murder,
homicide…. These are the most common crimes. So, the Penal Code
has a special treatment for crimes against persons or property. That is
illustrated in impossible crimes.

Art. 4. Criminal liability. — Criminal liability shall be incurred:

x x x

2. By any person performing an act which would

be an offense against persons or property, were it not
for the inherent impossibility of its accomplishment or
an account of the employment of inadequate or
ineffectual means.

Crimes against persons and property are special targets of the RPC.

Art. 8. Conspiracy and proposal to commit felony. — Conspiracy

and proposal to commit felony are punishable only in the
cases in which the law specially provides a penalty therefor.
A conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide
to commit it.
There is proposal when the person who has decided to
commit a felony proposes its execution to some other person
or persons.

Art. 8 gives us the concept of proposal to commit a felony and

conspiracy. Of course, Art 8 presupposes that there are at least two
persons involved. You cannot give a proposal to yourself and agree
with yourself. So, minimum of two. The person proposing the felony,
and the person to whom the proposal is made.

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

felony proposes its execution to some other person or persons.

In other words, a person who has decided to commit a felony

proposes its execution to some other person or persons. He is not
joking. He has decided.

EXAMPLE: I approach A and say, “I will pay you P1,000.00, you

assassinate X.” From that time, there is already a crime of proposal
to commit homicide or murder, because I decided to commit a crime
and proposed it to somebody.

Q: Suppose, the gunman did not agree to the proposal and said; “No,
shit. I don’t accept!” Is there still a proposal?
A: Of course, because proposal is unilateral. Once a proposal is made,
it is there whether the person to whom the proposal is made accepts
it or not. As a mater of fact, the person should not accept because
once he does so, there is now an agreement and the proposal
becomes a conspiracy.

As defined in the RPC, a conspiracy exists when two or more

persons come to an agreement concerning the commission of a felony
and decide to commit it. so, I propose; you agree. We decide to
commit the felony. There is now conspiracy.

Once the proposal is accepted, it now reaches the stage of

conspiracy, and the parties are now covered by the definition of
conspiracy. Suppose, at that moment, they are caught and arrested.

Q: Is there an attempted murder?

A: No, not yet. Because in murder, the offender must have
commenced the commission of the act. So, the fiscal will charge them
with the crime of conspiracy to commit murder.

Q: If you are the lawyer of the accused, what will you do?
A: I will move to quash the information because according to Art. 8
mere proposal to commit a felony, mere conspiracy to commit a
felony is not punishable. There is no commencement yet; the act is
only preparatory. The conspiracy or proposal is only a preparatory act
to the crime.

Q: So, is there such a crime of conspiracy to commit murder?

A: NO, because the preparatory act is not punishable.

Q: So, what is the legal principle involved in proposals or conspiracies

to commit a felony?
A: The rule is they are not punishable.

Q: If we agree to rob a bank, and before we have started the robbery

we are caught. You cannot say there is robbery because we have not
even commenced the overt act of robbery. It is just an agreement.
Are we guilty of conspiracy to commit robbery?
A: No. There is no article in the RPC which penalizes the crime of
conspiracy to commit robbery. So, in reality, according to Art. 8, mere
conspiracy to commit a felony is not punishable. REASON: They are
only preparatory acts. When I propose the commission of a crime, we
agree, we are not yet in the act of executing the crime. We are still
preparing for it. and we have learned that preparatory external acts
as a rule are no punishable, except when the law provides a penalty
for a mere preparatory. So, we have to apply the exception here.

Art. 8 says “unless the law specially provides a penalty

therefore”. Meaning, conspiracy or proposal is not punishable unless
the law makes conspiracy or proposal punishable for certain offenses.

Q: Are there instances when mere conspiracy or mere proposal

becomes a felony?
A: Yes. That is when the law provides a penalty therefore. And there
are many crimes in the RPC which can be consummated by mere
proposal or mere conspiracy, such as the following:

1. machinations in public auctions;

2. monopoly or combination in restraint of trade;
3. abuses against chastity (as when a public officer or a prison
warden makes unchaste proposal to a woman prisoner who is
under his custody, there is already a crime)

But the most famous conspiracies that constitute crimes are those
which are directed against the internal or external security of the
State, such as the following:

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

2. conspiracy to commit rebellion or insurrection (Art. 136);
3. conspiracy to commit coup d’etat (Art. 136, as amended by RA
6968); and
4. conspiracy to commit sedition (Art. 141)
Q: How about proposals? Enumerate some important crimes in the
RPC which are punishable even if they have only reached the proposal
stage.
A: More or less the same. They are the following:
1. proposal to commit treason (Art. 115);
2. proposal to commit rebellion or insurrection (Art. 136); and
3. proposal o commit coup d’etat (Art. 136).

Q: Is there a proposal to commit sedition?

A: The RPC is silent. The RPC mentions conspiracy to commit sedition
but there is no mention of proposal to commit sedition.
CONCLUSION: PROPOSAL TO COMMIT SEDITION IS NOT
PUNISHABLE.
There is conspiracy to commit sedition but there is no proposal to
commit sedition. So, we apply the general rule that mere proposal to
commit a crime is not punishable, unless the law provides a penalty
therefore.

In general, mere proposal is not punishable. But in crimes of

treason, rebellion, coup d’ tat, the State itself is the victim. If you
succeed in your treason or rebellion, the State is the victim. Since the
crime is directed against the State, the State has the absolute power
o prosecute you even if you are only preparing to commit a crime.
You do not have to wait for the commencement.

Art. 10. Offenses not subject to the provisions of this Code. —

Offenses which are or in the future may be punishable under
special laws are not subject to the provisions of this Code.
This Code shall be supplementary to such laws, unless the
latter should specially provide the contrary.
Q: What are the sources of criminal law?
A: There are two.
1. the Revised Penal Code; and
2. special penal laws.

Q: What is a special penal law insofar as the study of criminal law is

concerned?
A: It has two definitions.
1. A special penal law is a law which punishes acts or omissions
not defined and penalized by the RPC.

Example: violations of the Dangerous Drugs Act – like

pushing – that is not found in the RPC but in another law,
that is, RA 6425, as amended. Another is illegal possession
of firearms which is penalized by PD 1866.

2. It is a statute enacted by the legislative branch, penal in

character, which is not an amendment to the RPC.

Congress can pass a law anytime amending the RPC. It is

incorporated in the RPC. Congress may also pass a law
adding another crime in the RPC. That is not a special law
because a special law is intended to stand separately from
the RPC; it is no intended to form part of the RPC.
Example: law on coup d’etat
Art 10 is a statement of whether the RPC should or should not
apply to crimes punished by special laws. Crimes in this jurisdiction
may be penalized by the RPC or special laws – mala in se or mala
prohibita.
Q: Does the RPC apply to crimes punishable by special laws?
A: The general rule is NO, It does not. The provisions of the RPC do
not apply to special laws because the provisions of the RPC, as a rule,
apply only to felonies. However, if the special law is deficient, the
provisions of the RPC can apply suppletorily o crimes punished by
special laws. And in case of conflict between the RPC and the special
law, the latter prevail.
So, the RPC can still apply to crimes punishable by special laws in a
supplementary capacity to provide what is lacking in the special law.
But if the special law is complete or sufficient, do not apply the RPC.
ILLUSTRATION:
A special law is passed penalizing a certain crime. Somebody
attempts to commit the crime but does not succeed.
Q: Should the offender be liable for attempted violation?
A: NO. If the special law does not penalize the attempted or
frustrated stage of the crime, then, the conclusion is that it is not
punishable because the provisions of Art 6 of the RPC do not apply to
special laws.
A case has been decided by the SC where the accused was
prosecuted for an attempted violation of the Anti-graft Act. There are
many crimes punishable by the Anti-graft Act, one of which is when
you cause injury to the government. There was an attempt to cause
injury to the government – the cheating of taxes. But they were
merely attempts because it was discovered by the Bureau of Customs.
They were charged with “Attempted Violation of the Anti-Graft Act”.
Q: Is there such a crime?
A: The SC ruled that there is none because there is nothing in the
Anti-Graft Act which penalizes a mere attempt. And Art. 6 of the RPC
would not apply.
Q: Why is it that the attempted and frustrated felonies do not apply
to crimes penalized by special laws?
A: The reason is because of the penalties. Under the RPC, penalties
have their own specific nomenclatures, like death, reclusion perpetua,
prision mayor, etc., and there is a scale of penalties. The general rule
is that the penalty for the attempted or the frustrated stage is one or
two degrees lower than the penalty prescribed for the consummated
felony.
But in special laws, penalties are not denominated as prision
mayor, etc. if found guilty, you are sentenced to imprisonment for,
say, 1 to 5 years or 9 years. That’s the penalty. There is no more one
or two degrees lower or higher because there will be no basis for the
penalty. If the special law says that the act of doing this is a crime,
then, the attempt or frustration to commit it cannot be a crime.
In other words, you cannot apply by analogy the attempted or
frustrated stage. In he first place, you have no basis for the penalty.
The basis for attempted or frustrated is the penalty for the
consummated crime – prision correctional, reclusion temporal, etc. –
one or two degrees lower, as the case may be.
The same principle will control with respect to the liability of the
accomplices and accessories under Arts. 17 to 20. If the special law
does not penalize the accomplice or the accessory, then, only the
principal is held liable because, again, there is no basis for fixing the
penalty for these people, in the absence of rules on graduation of
penalties.
Moreover, the SC said that as a general rule the provisions on
mitigating and aggravating circumstances do not apply to special laws
because they only apply to penalties prescribed by the RPC. Penalties
under special laws do not have minimum, medium, or maximum
periods.
 EXCEPTION
The exception is if the special law is insufficient and there is no
conflict anyway, then, the provisions of the RPC may be applied in
supplementary manner.
Q: A special law borrows the penalties under the RPC, can there be a
penalty for the attempted or frustrated crime?
A: YES, because there is now an attempt to borrow the principles in
the RPC, you can now apply the RPC in a suppletory manner.

The perfect example would be RA 7659, he Heinous Crime Law,

which amended the Dangerous Drugs Act, adopting the penalties of
the RPC. The penalties in the RPC are now adopted in RA 7659. With
that, the intention is to make the RPC supplementary.

Q: Suppose, a person is convicted of possession of illegal drugs. After

he is convicted, what will happen to the exhibits? Will it be returned
to him?
A: Of course, NOT. It should be forfeited by the State.
Q: If the law is silent, what will the court do?
A: Apply the RPC.
Art. 45. Confiscation and forfeiture of the proceeds or instruments of
the crime. — Every penalty imposed for the commission of a
felony shall carry with it the forfeiture of the proceeds of the
crime and the instruments or tools with which it was
committed.
Such proceeds and instruments or tools shall be confiscated and
forfeited in favor of the Government, unless they be property of a
third person not liable for the offense, but those articles which are not
subject of lawful commerce shall be destroyed.
You can apply it suppletorily because such is not there. There is no
conflict between them.
 CIRCUMSTANCES SURROUNDING CRIMINAL LIABILITY
Q: What are the five circumstances affecting criminal liability of a
person under the RPC? Describe each and cite two examples.
A: The following are the circumstances affecting criminal liability:
(1) Justifying Circumstances – those where the act of a
 person is said to be in accordance with law, so that such
person is deemed not to have transgressed the law and is
free from both criminal and civil liability, except in
paragraph 4 (state of necessity/emergency rule) where the
civil liability is borne by the person benefited by the act.
Examples are: self-defense, fulfillment of duty or lawful
exercise of a right or office.
(2) Exempting Circumstances (non-imputability) –
those grounds for exemption from punishment because
there is wanting in the agent of the crime any of the
conditions which make the act voluntary, or negligent, such
as intelligence, freedom of action, intent or negligence.
Examples are: imbecility and minority.
(3) Mitigating Circumstances – those which, if present
in the commission of a crime, do not entirely free the actor
from criminal liability, but serve only to reduce the penalty.
Examples are: incomplete self-defense, the offender had no
intention to commit a wrong as that committed.
(4) Aggravating Circumstances – those which, if
attendant in the commission of a crime, serve to increase
the penalty without, however, exceeding the maximum
penalty provided by law for the offense. Examples are:
treachery and recidivism.
(5) Alternative Circumstances – those which must be
taken into consideration as aggravating or mitigating
according to the nature and effects of the crime and the
other conditions attending to the commission. Examples
are: relationship and intoxication.
 SYNOPSIS:
NUMBE CIRCUMSTANCE ARTICLE
R
6 Justifying Art. 11
 7 Exempting Art. 12
10 Mitigating Art. 13
21 Aggravating Art. 14
3 Alternative Art. 15

JUSTIFYING CIRCUMSTANCES
Q: What is the definition of that?
A: Well, the word justifying is a hint. Justifying circumstances are
those which, if attending the commission of an act, make the act
lawful. The act is lawful; it is justified. It is in accordance with law.
Therefore, the act committed is not a crime.

Art. 11. Justifying circumstances. — The following do not incur

any criminal liability;
1. Anyone who acts in defense of his person or rights,
provided that the following circumstances concur;
First. Unlawful aggression.
Second. Reasonable necessity of the means employed to prevent
or repel it.
Third. Lack of sufficient provocation on the part of the
person defending himself.
2. Any one who acts in defense of the person or rights of
his spouse, ascendants, descendants, or legitimate,
natural or adopted brothers or sisters, or his relatives by
affinity in the same degrees and those consanguinity
within the fourth civil degree, provided that the first and
second requisites prescribed in the next preceding
circumstance are present, and the further requisite, in
case the revocation was given by the person attacked,
that the one making defense had no part therein.
 3. Anyone who acts in defense of the person or rights of
a stranger, provided that the first and second requisites
mentioned in the first circumstance of this Art. are present
and that the person defending be not induced by revenge,
resentment, or other evil motive.
4. Any person who, in order to avoid an evil or injury,
does not act which causes damage to another, provided
that the following requisites are present;
First. That the evil sought to be avoided actually
exists;
Second. That the injury feared be greater than that done
to avoid it;
Third. That there be no other practical and less harmful
means of preventing it.
5. Any person who acts in the fulfillment of a duty or in
the lawful exercise of a right or office.
6. Any person who acts in obedience to an order issued
by a superior for some lawful purpose.

1. Anyone who acts in defense of his person or rights,

provided that the following circumstances concur;
First. Unlawful aggression.
Second. Reasonable necessity of the means employed to
prevent or repel it.
Third. Lack of sufficient provocation on the part of the
person defending himself.

Self-defense only applies to crimes against persons, as when you

are accused of homicide, murder, or physical injuries. Meaning, it
applies to crimes against persons when you are accused of the death
of or injuring somebody, and you claim that you had to do it because
you had no choice. I had to act in defense of my person.
Q: Who bears the burden of proof?
A: Generally, it is the prosecution’s job to prove the guilt of he
accused who is presumed innocent. However, as these are matters of
defense, the burden is shifted to the accused. It is for him to prove
these circumstances; it is not for the prosecution to prove them.

Q: Why?
A: Because when you invoke self-defense, you automatically admit
that you killed the other, hat you are the author of his death (in case
of homicide or murder). So, you better justify the death of the victim.
Give a good explanation as to why you should not go to jail for killing
a human being. That is why the SC said that the defense of self-
defense should be proved by clear and convincing evidence which is
approximately proof beyond reasonable doubt.

Q: Why does the law allow self-defense?

A: There are two reasons.

1. It is the duty of the State to defend its citizens

That is why the State has a law enforcement agency, the PNP – to
protect the citizens from the assault of others. But this agency has
gained a negative image. People believe that the policemen, who are
supposed to secure, protect and defend us from criminals, are the
very same people involved in crime nowadays. Theoretically, it is the
job of the State to protect us. That’s why we pay our taxes for peace
and order.

But the State recognizes the fact that it could not protect everybody
24 hours a day. That is impossible. That is tantamount to asking the
State to assign one policeman for every citizen. We have to be
realistic. The State cannot afford it. it does not have the manpower to
defend everybody 24 hours a day.

Therefore, if somebody attacks you, and there is no policeman to

defend you, you defend yourself. If in the process, it becomes
inevitable for you to disable or kill the attacker, you are not liable
because you are only doing what the State should be doing for you.
So, the State cannot take that against you. You only have assumed
the obligations of the State.

2 It is a recognition of the natural law of self-preservation.

Every living being, whether animal or plant, has the instinct for self-
preservation. So, the concept of self-defense only acknowledges the
natural instincts of man. It is absurd to expect a person not to defend
himself when he is under attack because there is a natural instinct for
self-preservation.

To prove self-defense, it requires the concurrence of these three

elements.

 UNLAWFUL AGGRESSION

Without which, there could be no self-defense. It is

indispensable in the sense that there could be unlawful aggression
even without the second and the third elements. But the second and
the third cannot exist without the first. That is really indispensable.
The existence of the second and third presume the existence of the
first. When the first is out, all three are out. And if either of the
second or third element is lacking, as long as there is unlawful
aggression, it constitutes an incomplete self-defense, which is a
mitigating circumstance.
Q: Define aggression?
A: Aggression, as contemplated by the law, means a physical attack.
An aggression which can cause you injury or even death, like
somebody stabs you or beats you with a club. So, so if there is no
physical aggression, there is no aggression to speak of.

For example, A started to insult B, uttering derogatory remarks

against B. B hit back and injured A. For the injury sustained by A, B
pleads self-defense. QUESTION: Can B invoke self-defense?
ANSWER: NO, B cannot claim that he acted in self-defense because
B was the aggressor. There can be no self-defense here
because the aggression is verbal. What the law
contemplates is physical attack. Insulting words, no matter how
slanderous, cannot cause death or physical injuries. It is directed
against your name or honor, but not your body. So, that does not
constitute aggression within the meaning of Article II(1).

Take note also of certain important doctrines in self-

defense.

1) when one claims self-defense, the law assumes that there is no

mutual agreement between both parties to fight. when there is
mutual agreement to fight, no one can claim self-defense and each
one is responsible for each one’s injury.

EXAMPLE: Two people agree to fight. And in the course of the

fistfight. A inflicted injury on B. B inflicted injury on A. and each of
them files a case against the other for the injuries. They ended up
suing each other for physical injuries. And of course, the defense of
both is self-defense. QUESTION: Who is entitled to self-defense? No
one is entitled. When both of them agreed to fight, each of them
became an aggressor against the other. No one can claim self-
defense. In fact, each of them is liable for the other’s injury.
 “By agreement” means that there is no need of a written
contract. A verbal agreement is sufficient.

2) a person does not have to be cornered against the wall before he

can lawfully defend himself from an unlawful aggression.

The old concept of self-defense is “retreat to the wall”. One can

only act in self defense if he is cornered. Meaning, if somebody is
going to kill you, try to avoid him. But if you are already cornered,
you have no more means of escaping, that is the only time you can
defend yourself. But that concept has already been DISCARDED.

The rule now is maintain your ground when in the right.

Meaning, if you are wlaking peacefully and here comes somebody
who wants to stab you, there is no obligation to run. There so no
rule which requires you to run away and then when you are already
cornered, that is the only time you can act.

If somebody is going to kill you with a knife, if you are brave, do

not run away. Wait for him, and then defend yourself. If you kill him,
you can still invoke self-defense. It cannot be taken against you. The
rule is stand ground when you are right. You have the right to act
where you are because you are not the aggressor.

There are two types of aggression:

A. Lawful Aggression

Example: Aggression by a public officer who is acting in the

fulfillment of a duty to effect an arrest.

Q: How does he arrest the person?

A: According to the Rules of Court, the arresting officer can use such
force as may be reasonably necessary to effect the arrest. And
because he can use force in the process of effecting the arrest, the
policeman may become an aggressor.

Suppose, here is a thief running with his stolen items. The police
is after him. The thief hits back at the policeman. Now, the
policeman sues him for direct assault. The thief invokes self-defense.
His defense is that the policeman is an aggressor. If the policeman
did not try to arrest him, he would not hurt the policeman. The latter
should have left the policeman alone. That cannot be! There is
aggression, but it is a LAWFUL aggression. That is the duty of the
policeman, so his aggression is lawful in nature.

B. Unlawful aggression

Example: If you are walking on the street peacefully an here comes

somebody with a knife. He tries to stab you with it. That is
unlawfully aggression. Unless he can point to a law which authorizes
him to approach anybody and stab him.

By “unlawful aggression”, it means that there is danger to your

life and limb. Aggression can either be an actual or threatened
aggression. Aggression need not be actual, it could also be a
threatened.

There is no problem if the aggression is actual. If it is actual, it is

on-going.

Q: But does the law expect the aggression to commence before you
can act in self-defense?
A: No, the law does not really require a person to wait before
defending himself because it might be too late. The law would be
demanding too much if it requires that the person defending must
first wait for the aggressor to pull out his gun from his waist before
the former can defend himself. When the law says ”unlawful
aggression”, it contemplates of actual aggression or threatened,
imminent aggression. A threatened aggression amounts to actual
aggression.

Q: When does a threatened aggression amount to actual aggression?

What is the TEST given by the Supreme Court?
A: The criterion reached by the Supreme Court is a threatened
aggression amounts to actual aggression, if the threatened harm is
imminent, or on the point of happening. Meaning, maybe in less
than one second, you are dead. Your enemy beat you first. So, that
is the criterion – imminent or at the point of happening.
Therefore, if it does not meet that standard, it is not unlawful
aggression.

PEOPLE VS. CABUNGCAL

51 PHIL 803

FACTS: The accused is a boatman. His occupation is to transport

people across a channel. Just like the means of transportation when
you go to Samal Island. Once, after the fiesta in the island, some
passengers went on board including a drunk man. In the middle of
the sea, this drunk passenger started to rock the banca. The accused
warned him, Don’t do that; we might capsized. But the drunken
passenger continued to rock the banca.

So, the accused hit this drunk and the latter fell. But he surfaced and
threatened that he would capsize the banca. In so saying, he again
started to rock it, to the point that the women and children
passengers panicked. So, the accused hit him back with the paddle.
This made the drunk to drown and died.

Issue: Was there unlawful aggression?

Held: YES, the accused does not have to wait to find out if the drunk
passenger was serious or joking. If he was able to turned it around,
they will all die. People will start drowning.

Due to the condition of the river at the point where the deceased
started to rock the boat, if it had capsized, the passengers would run
the risk of losing their lives, the majority of whom were women
especially the nursing child. The conduct of the deceased in rocking
the boat until the point of it having taken in water, and his insistence
on this action inspite of the accused’s warning, gave rise to the belief
on the part of the accused that it would capsize if he did not separate
the deceased from the boat in such a manner as to give him no time
to accomplish the purpose. It was necessary to disable him
momentarily.

For this purpose, the blow given by the accused on the forehead with
an oar was the least that could reasonably have been done. And this
consideration militates with greater weight with respect to the second
blow given in his neck with the same oar because then the danger
was greater in that the boat might upset, especially as the deceased
had expressed his intention to upset it.

If you will say that the accused will have to wait to see if the drunk
will be able to capsize the banca, you are running the risk of all
possibilities that the banca will sink in the middle of the sea. To tarry
for a while might be too late. That is already an actual aggression.
There will be more dead if the accused waited. So, the alleged
offender there did not only act in defense of his person, bur also that
of strangers.
 Suppose, you are inside your house in the second floor. Then
somebody from below shouts at you, challenging you to fight, wait
there and I will kill you! He’s going to kill you but to beat him to it.
You killed him first. You are now prosecuted for his death. You claim
self-defense, because there was a threat…he was going to kill me.
QUESTION: Is the threatened harm imminent? Take note that he
still has to go up. ANSWER: NO, the threatened harm is not at the
point of realization. A threatening attitude is not equivalent to an
actual aggression. So, I doubt whether that the threatened assault
amounts to actual aggression. That is not self-defense. The most
you can invoke there is the mitigating circumstance of sufficient
provocation or threat on the part of the offended party immediately
preceding the act, under Article 13(4).

So, it is a question of evidence. Is there harm now or on the

point of happening? Is there death now or on the point of
happening? If the answer is no, then the threatened harm does not
amount to an unlawful aggression. It is a future aggression. You
have no right to act now simply because there is a threat.

Another important principle in unlawful aggression is the rule laid

down by the Supreme Court that you can only act in self-defense
when the aggression is ongoing or about to begin. But once the
aggression has ended and because you wanted to get even, you hit
back, that is no longer self-defense. That is retaliation, getting even.
The rule to remember is when the aggression has ceased, there
is no more room for aggression because the danger to life
and limb has ended.

Suppose A attacked B, and B landed on the ground, sustaining

many blows. Then A left. When A left, B stood up, chased A and
attacked him. B killed A. B claimed that the killing of A is self-
defense because it was A who attacked him first. QUESTION: Is B
entitled to self-defense? ANSWER: NO, because of the rule that you
could only act in self-defense: while the aggression is still going
on or is about to start.

PEOPLE VS. ALCONGA

79 PHIL 366

FACTS: The victim here was playing cards – blackjack. He was the
dealer until he noticed that he was losing. He suspected Alconga as
the one giving the signal to the winning party. So, he started to
attack Alconga by hitting him with a cane. Alconga had to run under
a bench, but the dealer continued hitting him.

This made Alconga think that the victim was serious. He had to draw
his gun, fired at the dealer and inflicting a would. When the dealer
realized that this time he was wounded, he ran away. Alconga started
to chase him, overtook him and fired the second shot, killing the
victim. Alconga was accused of homicide, and his defense was self-
defense.

Held: There was no self-defense. When the dealer started to hit

Alconga, that constituted unlawful aggression. So that when Alconga
shot the victim, he was justified in doing so as he was only acting in
self-defense. But from the moment the victim ran away, the danger
to Alconga’s life and limb ceased. The unlawful aggression has
ended, and therefore, there was no more reason for Alconga to fire
the second shot. But when Alconga gave chase and overtook the
victim, he was no longer acting in self-defense. As a matter of fact,
at that stage of the fight, Alconga became the unlawful aggressor.
 In other words, there seems to be two stages of the fight: the
first stage where the victim was the unlawful aggressor, and the
second stage where Alconga became the unlawful aggressor because
after the first stage was over, by reason of the running away of the
unlawful aggressor, there was no more room for self-defense because
the danger to Alconga’s life and limb has ceased. That is already
retaliation. That is not the concept of self-defense.

Another point that you will notice in the law of self-defense is

that the law says that self-defense applies to anyone who acts in
defense of his person or rights. There is no question about “person”.
When somebody is trying to hurt or kill me, I can act in defense of my
person. But the problem is the “rights”.

Q: What are the rights which can be defended under Article 11(1)?
A: The right to chastity of a woman. For example, a guy is about to
rape a woman and the woman killed the would-be rapist. She is
accused of homicide. She can claim that she acted in self-defense.
Although rape is not considered as a crime against person, but
against chastity, a woman’s right to defend her honor from sexual
attack is considered as a right similar to defending one’s person under
Article 11(1). NOTE: rape now is a crime against PERSON.

What is controversial here is whether the right to protect one’s

property can give rise to self-defense under Article11(1). If, for
example, a thief or robber tries to run with your wallet or jewelry, and
in order to stop him from running away, you shoot him to death, can
you now claim self-defense? There was unlawful aggression on your
property right because he was taking your property. Can you say that
I had to shoot him because there was an aggression on my property
right? Is that a valid defense? ANSWER: NO, defense of property
can give rise to self-defense under Article 11(1) only if the attack on
one’s property is coupled with an attack on his person.
Like, for example, a robber tried to get your money and when you
tried to resist, he drew out his knife. So, you have to give him your
money. Or, suppose a robber entered your house and in getting your
property, he tried to kill you but you killed him first. QUESTION: Are
you entitled to self-defense? ANSWER: YES, because the attack or
aggression on your property was coupled with an attack against your
person.

Q: But suppose, when that same robber saw you, he started to run
away, but when he was about to jump out of the window, you shot
him. Are you acting in self-defense?
A: NO, because there is no assault on your person. What justified
killing is not the assault on the property right, but the assault or
attack on one’s person. So, it must be coupled with an attack on
one’s person. The reason is simple: the value of property can never
be equated to human life which is supposed to be priceless.

PEOPLE VS. NARVAEZ

121 SCRA 389

FACTS: There was a land conflict between a big corporation and

some persons, one of whom was Narvaez. He had a house and a
rice mill, which the corporation wants to get from him.

One day, after sleeping inside the house, he woke up and

saw men hammering away. They were putting up a fence
around the property. So, Narvaez got his rifle and fired at them,
hitting one of the victims. The others started to run towards the
jeep to get their arms. Narvaez also shot at and killed all of
them.

He was charged with homicide and his defense is that there

 was unlawful aggression against his property. But there was no
danger to his life. The aggression against his property was not
coupled with an attack against his person.

Held: strangely, he was acquitted. This was self-defense.

The act of the victims in ordering the fencing of the home and
ricemill of Narvaez
constitutes unlawful aggression against his property.

This is a stray decision. It cannot be reconciled with the general rule.

This should not be considered as the controlling rule because it is in
fact an aberration.

 REASONABLE NECESSITY OF THE MEANS EMPLOYED TO

PREVENT THE AGGRESSION

Q: What do you prevent?

A: You prevent an actual aggression. You repel a threatened
aggression. But in either way, you must use reasonable means.

Q: What do you mean by reasonable means?

A: Reasonable means refer to two means:
1. the course of action taken is reasonable; and
2. the weapon used to defend is also reasonable.

Course of action taken by the offender means his conduct and

response to the occasion whether your reaction is reasonable or not.

Q: How do you determine the reasonableness of one’s reaction to the

aggression?
A: it depends on the factors. It depends on the circumtances of the
person, time and place.
Q: if somebody is walking in a very dark street which is a very
dangerous area, and all of a sudden somebody in the dark held him
tightly at the back, and he responded by hitting his attacker, could
you say that the reaction of the person is reasonable?
A: YES, based on the circumstances of time and place.

But, for example, you are inside the classroom, and then you feel
somebody behind you. He touched you, then you turned around and
threw a punch on his face because he might attack you. That is a
different story. That is not reasonable.

Reasonableness of the weapon used. The law does not require

perfect equality of weapons. What the law requires is reasonable
equality. This does not mean to say that you should not use gun
because the aggressor is attacking you only with a bolo or knife. A
gun is more powerful than a bolo or knife, but you are now placed in
danger because of the aggression. It is not perfect equality but
reasonable, considering the fact that when a person is under attack,
instinctively he will use the first available means at his disposal to
defend himself, and when a person is under unlawful aggression, you
cannot expect him to think coolly and to choose what kind of weapon
to use.

For example, if somebody attacks you with sticks, does it authorize

you to use your armalite? It is unreasonable for a person, while
being attacked by somebody with a pichicorno or chaco, to use an
M206 submachine gun to defend himself. That is too much!
Obviously, there is no proportion between the weapon used by the
aggressor and the one used by the person defending himself. The
weapon used by the aggressor is not sufficient to kill. Why will you
use a weapon that can kill?

However, reasonableness of the weapon is not only measured by –

using a knife as against a fist; using a club as against a chaco. You
also have to consider:
* the size or power of the weapon;
• the character of the parties; and
• their relative standing.

Size. So, if somebody attacks you with a knife, and then you defend
yourself also with a knife, you cannot say that the means is
reasonable because his is larger, and yours is shorter.

Power. The law says the means is reasonable if a gun is used to

defend yourself from somebody who attacks you with a knife. You
say that it is reasonable because a gun is more powerful against a
knife. No all things are being equal. A knife can also kill especially if
the assailant succeeds.

Character of the parties & their relative standing. Maybe it is

unreasonable to use a knife when somebody attacks you with a fist,
one-by-one. But when five or ten people attack you with their fists,
and you use a knife against them, that is reasonable.

Q: When we say reasonable of the means, are we referring only to

weapons? Is this the only factor?
A: NO, there are other factors. You, too, will have to consider the
number of aggressors.

For example, you were attacked by fist blows, and you used a
knife or club to defend yourself. It might be unreasonable because
you should also use your fist, that is true. But all things being equal,
suppose the aggressor who attacks with a fist is Manny Pacquiao, or
Mike Tyson, you are not required to use your fist. It is reasonable for
you to use a club because, considering the relative strength, you have
might have a chance with a club. Or you are attacked by 7 men.
There are 7 of them who maul you, and you are alone. Here, you
may use a club.

Q: What is that called?

A: The Number of Aggressor Rule. So, that is the balance.
Reasonable equality, not perfect equality.

LACK OF SUFFICIENT PROVOCATION OF THE PERSON DEFENDING

HIMSELF

If you are a victim of unlawful aggression, even if you defend yourself

reasonably, still you cannot claim self-defense if you were the cause
of the aggression, because you gave sufficient provocation. You are
also at fault. You are partly to blame for the other party’s reaction.
So, if I provoked you and because of that provocation you attack me
and I have to defend myself with reasonable means, I cannot claim
self-defense because I an also at fault.

Q: what are the principles to be remembered under the 3rd element?

A: First, there was no provocation at all on the part of the
person defending himself. Without doing anything, somebody
attacks you. There was total absence of any provocation.

Second, the person defending himself might have given

some provocation but it is not sufficient. In that sense, the law
allows him to plead self-defense because, even if he gave
provocation, it is not commensurate with the reaction on the attacker.

Q: How do you determine the sufficiency or insufficiency of a

provocation?
A: The guide there is, the provocation that you gave is such that it is
normal and natural for him to react by becoming an unlawful
aggressor. Meaning, if I uttered a remark, which is annoying or
irritating, it does not justify you to start to kill me. I can still plead
self-defense because the reaction is not commensurate with the
provocation the provocation, assuming there is one, is not
sufficient.

Like in one case, a landowner saw somebody trespassing on his

land. One day, he watched out for him to pass by. When the
landowner saw the trespasser, he asked, why are you passing through
my property? Who gave you the permission? The guy did not
answer, but instead killed him. QUESTION: Was there sufficient
provocation? ANSWER: Maybe yes. If the landowner did not
confront the accused, he would not have been killed. Does this mean
that the landowner has no right to ask a trespasser? The landowner
could have given the provocation, but that is not sufficient for a
trespasser to kill the landowner. The accused was only asked. And
the landowner has the right to ask him.

Third, the person defending himself might have given

sufficient provocation, but his provocation was not
immediate to the act of aggression, he can still invoke self-
defense.

EXAMPLE: I provoked Mr. A today, but he did not react. Then, after
six months, when we met at San Pedro St., he started to attack me.
So, I have to defend myself. QUESTION: Can I claim self-defense?
ANSWER: YES, because the provocation was not proximate or
immediate to the act of aggression. It is different if I provoke you
now, you react immediately.

Meaning, I gave a provocation now, sufficient provocation. You

attack me and I kill you, there is no self-defense because of the
absence of the 3rd element. But if I gave a provocation now, and then
you attack me one year from now, and I kill you, I can claim self-
defense. You cannot invoke the provocation I gave last year to defeat
my claim for self-defense.

There is a close co-relation between the first and the third elements
– unlawful aggression and lack of sufficient provocation.

An aggression may also be a provocation. When I attack you,

that could be a provocation on my part for you to be also an
aggressor against me. My aggression, which should work against me,
could be a provocation on my part in order for you to also become an
aggressor. It is convertible.

That is very well illustrated in the case of Alconga. The deceased

attacked Alconga with a club. So, the deceased is the unlawful
aggressor. Then, when Alconga fought back and the deceased
realized that he was wounded, the deceased ran away. So, there is
no more aggression. But Alconga pursued him and killed him.
Alconga was accused for the death of the victim.

Q: Can the victim, who is now the accused, claim self-defense?

A: Let’s find out:
• Was there unlawful aggression by Alconga?
YES, he went after the man to kill him. (at the second stage of
the fight, Alconga was the unlawful aggressor)
• did he use reasonable means to kill Alconga?
We will assume that.
• Was there lack of sufficient provocation on the part of the
person defending himself?
NO, Why did Alconga want to kill him? It was because he
wanted to kill Alconga at the first stage of the fight.
So, his aggression earlier became a provocation on his part in
the second stage of the fight.
So, if that was what happened, that Alconga was the deceased and
the deceased was the accused and latter invokes self-defense, still he
cannot claim self-defense because this time, there is the absence of
the 3rd element. That is how you correlate those two element. Either
way, Alconga could not claim self-defense.

(2)Any one who acts in defense of he person or rights of his

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

This is called the justifying circumstance on DENFENSE OF

RELATIVES. If you act for the defense of yourself, there is no
reason why you cannot act for the defense of your relatives. This
is based on two reasons: humanitarian and blood ties.

Q: Who are considered your relatives?

A: They are:
- spouse
- ascendants
- descendants
- brothers and sisters, whether legitimate, illegitimate,
natural or adopted
- relatives by affinity, within the same degree, like:
parents-in-law
son-in-law
daughter-in-law
brother or sister-in-law
 - relatives of consanguinity within the fourth civil degree

Q: What are the elements?

A: The elements are:
(1) Your relative must be a victim of unlawful
aggression. If your relative is the aggressor, and you
came to his aid to finish off his opponent, you cannot
claim defense of relatives.
(2) You have also to use reasonable means –
reasonable necessity of the means employed to prevent
or repel the aggression.
(3) The one making the defense had no part therein.

In case your father or brother gave the provocation to attack, you can
still defend him if you are not part of the provocation. The law does
not say that your relative must be the provocator.

If your brother has not provoked anybody and is attacked, all the
more that you can legally defend him: it’s better that your brother
has not provoked anybody and is attacked, you can defend him. But
if your brother or your father provoked somebody, and your brother
or father attacked, he cannot invoke complete self-defense because
his provocation will prejudice him.

However, even if it prejudices him, it will not prejudice you.

While he may not act in lawful self-defense, you may still act in lawful
defense of relative because what is important is that you have no part
in the provocation.

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

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

Briefly DEFENSE OF STRANGERS

Q: Define a stranger?
A: A stranger is a person who is not among the relatives in
paragraph 2. So, if you defend a relative in the 5 th civil degree, that is
already a stranger. The word “stranger” is not literal, as somebody
who is unknown to you. If you have a best friend, you see him being
attacked, and you came to help him, that constitutes defense of
stranger. So, stranger is practically, the whole human race.
Q: Why? What is the principle behind defense of stranger?
A: Humanitarian reasons. What you can do for yourself, the law
allows you to do it for others. My fellowmen, my keeper. That’s a
noble principle.

The element are the same with the two first elements of self-
defense:
(i) unlawful aggression;
(ii) reasonable necessity of the means employed to prevent
or repel the aggression; and
(iii) that the person defending be not induced by revenge,
resentment or other evil motive.

So, what differs this is the third element. It means that you were
motivated by humanitarian sentiment. You really did it to defend the
stranger. You were not induced by revenge, resentment, or other evil
motives.

But, for example, I am looking for my enemy because I want to

kill him. And then when I saw him, he was attacking somebody, so I
entered the scene and killed him. Let us assume these things are
established because these are matters of evidence. QUESTION: Am
I entitled to complete defense of stranger? ANSWER: NO, because
actually, it was just a coincidence that my enemy was attacking a
stranger. And since the aggressor was my long time enemy, it is
apparent that I was induced by revenge, resentment, or other evil
motive.

(4) Any person who, in order to avoid an evil or injury, does

an act which causes damage to another, provided that the
following requisites are present:
First. That the evil sought to be avoided actually
exists;
Second. That the injury feared be greater than that done
to avoid it:
Third. That there be no other practical and less harmful
means of preventing it.

Briefly, this is the justifying circumstance of STATE OF NECESSITY

or the Emergency Rule. You are confronted with a situation where
you are left with no choice because either way you do it, you also
cause harm, injury, or damage to the property of another. In order to
avoid evil or injury to yourself, you commit acts which would also
injure others, provided that the three requisites are present.

EXAMPLES:

(1) If the injury feared is greater than that done – injury feared in
death

You are driving your car in the highway, observing traffic

rules and regulations. Then all of a sudden in front of you is an
over speeding 6x6 truck straight to your direction. What will you
do? If you will drive on, you will be squashed to death. If you
 stopped, you will still be killed. Your only recourse is to turn left
or right to avoid the collision. But if you turn left, you will fall
into a cliff and surely you will also die. The only alternative is to
turn right, but by turning right, there are people who will surely
be ran over. Since you have no choice, you have to adopt the
only remaining alternative through which you can save your own
life. And for the death or injury to those people that you would
run over, you can invoke the emergency rule or state of
necessity.

But suppose, I am also overspeeding. And even if apply my

brakes, I will still collide with the truck. Then I cannot avail of
this rule in case I injure or kill somebody because the
emergency rule cannot invoked by the person who
caused the state of emergency.

(2) To save more properties from fire, a property will be sacrificed

– destroy three or more houses to save fifty houses.

(3) To save a vessel and people’s lives, the cargoes will be

jettisoned.

No one can invoke the emergency rule if he brought out the

emergency himself. One who causes the emergency has right to
invoke the emergency rule.

Like a person who is over speeding and saves his life by killing
somebody. He wanted to avoid collision. He is not entitled to the
rule because he is the one who brought out the emergency himself.

As we shall see later, and even as expressed in Article 101 of the

RPC, this is the only justifying circumstance where there is no criminal
liability, but there is civil liability. Normally, the person, who
successfully invokes and proves any of the justifying circumstances
under Article 11, does not incur any criminal or civil liability. This
paragraph 4 is where there is no criminal but there is civil liability to
be borne by the persons benefited by the act.

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

lawful exercise of a right or office

This provision is short, but actually, it talks of three separate and

distinct justifying circumstances:

 one who acts in the fulfillment of a duty;

 one who acts in the exercise of a right;
 one who acts in the exercise of an office.

Q: What are the requisites?

A: They are:
(i) that the accused acted in the performance of a duty or
in the lawful exercise of a right or office;
(ii) that the injury caused or the offense committed be the
necessary consequences of the due performance of a
duty or the lawful exercise of such right or office.

 In the fulfillment of duty

The best example for this is applicable to law enforcement

officers because in the performance of their duty, they can hurt
people. Arresting officers, who are authorized to employ reasonable
force sometimes injure, and then the person arrested sues the
policeman for physical injury or even homicide.

Q: What would be the defense of the policeman?

A: He acted in fulfillment of his duty.
 But take note that in order to avail of this justifying circumstance,
it must be established that is a proper fulfillment of a duty. A
policeman cannot simply commit homicide when there is no need for
him to kill person to be arrested. In that case, the fulfillment of the
duty would be improper.

The use of force may be improper if the person to be arrested is

peacefully surrendering. So, for example, if the guy is surrendering,
there is no need to use force. And if the person who surrendered
sues you for using force against him, then you cannot claim that it is
a fulfillment of a duty because your act is improper. The Rules of
Court requires that the use of force must be reasonable.
PEOPLE VS. DELIMA
FACTS: Policeman Delima is tasked t arrest a dangerous escapee-
convict. When he tried to apprehend the convict, the latter fought
back with a sharpened bamboo pole. But the policeman was able to
evade the attack and the convict turned around and ran away.
Delima chased him, demanded his surrender, but the convict
continued to run away with the bamboo pole, so Delima had to shoot
him. He was accused of homicide.

Issue: whether nor not Delima is liable.

Held: He is not liable because he acted in the fulfillment of his duty

to arrest the convict. There was no other way of apprehending the
victim and the latter showed that he was resisting the arrest. As a
matter of fact, he attacked Delima earlier. And even when he was
running away, he was taking with him the bamboo pole. That
showed his determination no to surrender. There is no other way of
catching him alive and the only way is to kill him.
This Delima case is often confused with the Alconga case. In the
case of Alconga, the victim was already running away, he was chased
and killed by Alconga. The court ruled there that Alconga was liable.
How come here in this case the ruling is different when the facts are
identical because here the victim was also running away, and so there
is no more unlawful aggression?

Q: Is there a conflict between the Delima ruling and the Alconga

ruling?
A: There is no conflict because the Alconga case wa decided under
paragraph 1, on self-defense, the Delima case is decided under
paragraph 5, on fulfillment of a duty. The ruling in Alconga case was
based on the fact that in self-defense, there is no need for unlawful
aggression. There can be no self-defense without unlawful
aggression. That’s why since there was no more unlawful aggression,
Alconga cannot invoke self-defense. But in the fulfillment of a duty,
paragraph 5 does not require that the person fulfilling his duty must
be the victim of an unlawful aggression.
As a matter of fact, the law recognizes that in the fulfillment of a
duty, the law enforcement officer himself may be the aggressor, but
for as long as the exercise of his duty is proper, he cannot be held
liable for any injury sustained by, or death of, the person arrested.
That is why, there is really no conflict between the two ruling because
the philosophy behind self-defense is not the same as the philosophy
behind the fulfillment of a duty.

For example, the policeman is going to arrest you and then you tried
to kill him, instead of surrendering. So, the policeman killed you.
What is the difference? As a matter of choice, I can invoke self-
defense, but he could also claim fulfillment of duty. But when you
turn your back and rum away, you don’t give up and the policeman
has no choice, so he killed you. Self-defense is not anymore there.
But he can still rely on paragraph 5 – fulfillment of duty.
 In the exercise of a right

Q: Is there such a thing as self-defense of property?

A: Under paragraph 1, there is none, because in order to invoke self-
defense of property, under self-defense, there must be an attack on
your person. And if there is none, there is no such thing as defense
of property. That is not one of the rights contemplated under
paragraph 1.

But there is such an animal as defense of property under

paragraph 5, when the accused can prove that he is in the exercise of
his right to defend his property. It must be a proper, due exercise of
a right. Now, this paragraph 5 is the real law on self-defense of
property.

Q: What law gives the right to an owner or possessor of a property

to defend his property when he is unjustly attacked?
A: The Civil Code, which is called as the DOCTRINE OF SELF-
HELP.

ARTICLE 429, CIVIL CODE. The owner or lawful possessor of a

thing has the right to exclude any person from the
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 invasion or
usurpation of his property.

A lawful owner of a property has the right to defend his

possession of the property and for this purpose he may use such
force as may be reasonably necessary in order to prevent or repel an
actual or threatened invasion of his property.
Q: If, for example, a group of people is going to forcibly occupy your
land, do you have the right to drive them out?
A: Of course!

Q: If you are sued by these people for driving them out, what is your
defense?
A: The right to defend your property. But do not invoke Article
11(1), you invoke paragraph 5 because you are acting in the exercise
of a right.

But take note, under the Civil Code, the use of force to defend
your possession of property must be reasonable. For example, a
pickpocket grabbed your expensive watch. You chased him. In order
to prevent him from escaping, you drew your gun and shot him in the
leg. As a result of which he could no longer run. You are able to
recover your watch. He sues you for physical injuries for the wound
that you inflicted in his leg.

Q: What will be your defense?

A: Do not invoke self-defense as it is not covered. So you say that
you acted in the exercise of a right to prevent or repel the act of the
victim in getting your property.

Q: Is it reasonable for the owner of the watch to immobilize the thief

by shooting him in the leg so that he cannot run?
A: YES.

Let us change the story. Your watch was taken from your wrist,
the thief was able to run away. Since you cannot overtaken him, and
in order to prevent the thief from running away with your watch, you
shot him in the body and killed him. QUESTION: Can the accused
invoke the doctrine of self-defense under Article 11(1)? ANSWER: Of
course not! There was no attack on his person. The law requires
that there must be an attack on your person, not simply an attack on
your property right.

Q: Can he invoke paragraph 5, that he acted “in the exercise of his

right”?
A: NO, because while under paragraph 5, in relation to Article 429 of
the Civil Code, the owner or possessor of a property has the right to
exclude any person from the enjoyment or disposal of his property,
the law requires that in so doing, he may use such reasonable force
to prevent or repel an actual or threatened unlawful physical invasion
or usurpation of his property. Is was not reasonable for the owner of
the watch to kill the thief to recover the watch. That is based on the
principle that no one is justified to take human life simply
because of property.
 In the exercise of an office

Q: What is the example:

A: Executioner of the National Bilibid Prison.

Q: Suppose you are the official executioner. You are the one
assigned to condemn the convict to death by electrocution or lethal
injection. The convict died. So, now you are sued. What is your
defense?
A: That you acted in the lawful exercise of an office. You are an
executioner. That is your job.

But, take note that paragraph 5 says “in the lawful exercise of x
x x office”. So, the exercise of an office must be proper. For
example, the execution is at 3:00 PM. Do not execute him at any
other time, say 12:00 noon. That is improper because the President
might grant him pardon or commutation of the sentence. But if you
execute him on time, and you are charged with homicide, you can
invoke paragraph 5 as a defense.
 Another example: As a surgeon, you have to amputate the leg of
a patient because of gangrene. You have to save his life by
amputating his leg. And after that, the patient sued for the crime of
Mutilation of the second type, which is punishable by the RPC.
QUESTION: What is the surgeon’s defense? ANSWER: That he was
in the lawful exercise of his office.

TABUENA VS. SANDIGANBAYAN

268 SCRA 332

HELD: Tabuena was found by the SC not liable for

malversation of public funds thru negligence. Tabuenal does not
have a choice but to comply with the Presidential directive or
memorandum given by Marcos, his superior.

(6) Any person who acts in obedience to an order issued

by a superior for some lawful purpose.

 Requisites:
(i) that an order has been issued by a superior;
(ii) that such order must be for some lawful purpose; and
(iii) that the means used by the subordinate to carry out said
order is lawful.

The best examples are people in the military or police. They are
normally following orders. The Supreme Court said that the order
must be lawful or at least prima facie lawful, and the means to carry
out the order must be lawful.

If you are a subordinate, you were just ordered by a superior,

you followed the order and it turned out to be illegal. Now, you are
being sued. Your defense is that you are just following the order of a
superior officer. That is not a valid defense. The condition is that the
order must be lawful.

Q: So, going back to the whole of Article 11, what is the basis for not
being criminally liable?
A: That the act is justified. The act is in accordance with law. If that
is so, the accused does not incur criminal liability. And obviously, it
follows that if the act is in accordance with law, he will not also incur
any criminal or civil liability, except in paragraph 4 (state of necessity)
where there is civil liability.

EXEMPTING CIRCUMSTANCES

Q: What is the essence of an exempting circumstance?

A: An exempting circumstance is a circumstance which, if present in
the commission of a crime, makes the offender exempt from criminal
liability. He is not criminally liable for the crime committed because
when he committed the felony, he acted without intelligence, or
without freedom, or without intent or negligence. And therefore,
since there is the absence of any of these, the felony was not
committed with voluntariness.

ARTICLE 12. Circumstance which exempt from criminal

liability – The following are exempt from criminal liability:
(1) An imbecile or an insane person, unless the latter has
acted during a lucid interval. When the imbecile or insane
person has committed an act which the law defines as
felony (delito), the court shall order his confinement in
one of the hospitals or asylum established for persons
 thus afflicted, which he shall not be permitted to leave
without first obtaining the permission of the same court.

This is known as the exempting circumstance of IMBECILITY or

INSANITY.

Q: What is the basis of paragraph 1?

A: Complete absence of intelligence.

Q: What is imbecility?
A: It is a condition of the mind where the offender might be advance
in age but the mental development is comparable to that of a child
between two and seven years of age.

Insanity lays down a condition: unless the insane person has acted
during a lucid interval. This qualification applies only to insane
people, not to imbeciles. When you are an imbecile, there is no such
thing as lucid interval. You are an imbecile all your life, through and
through. You cannot be a retarded person now, then tomorrow you
are normal. Whereas, there are types of insanity where there is some
period of time when he is normal. And if the insane person commits
a crime at the time he is normal, he is liable.
Q: What is the presumption?
A: The presumption is he is insane. But it can be rebutted by
evidence that he acted during a lucid inteval.

 If there is doubt between sanity and insanity, sanity prevails.

Burden on proof is on the defense. If there is doubt, convict the
accused. The general rule that doubt should be resolved in favor of
the accused does not apply, especially in this case where one is
invoking an exempting circumstance.

Q: What is the definition of insanity?

A: It has a medical definition. But the legal concept of insanity is the
inability to distinguish what is right from what is wrong.
PEOPLE VS. DUNGO
199 SCRA 660

Under foreign jurisdictions, there are three major criteria in

determining the existence of insanity:

(1) Delusion Test – Insane delusion is manifested by a false

belief for which there is a number reasonable basis and which
would be incredible under the given circumstances to the same
person if he is of compos mentis. An insane person believes in
a state of things, the existence of which no rational person
would believe.

(2) Irresistible Impulse Test – A person acts under an

irresistible impulse when by reason of duress or mental
disease, he has lost the power to choose between right and
wrong, to avoid the act in question, his free agency being at
the time destroyed. In other words, he can distinguish
between right and wrong, but he has lost the power to choose.
He cannot resist the urge to commit a crime because he has
no more power to choose, although he recognizes the
difference between right and wrong.

(3) Right and Wrong Test – A person is insane when he

suffers from such perverted condition of the mental and moral
faculties as to render him incapable of distinguishing between
right and wrong.

In the Philippines, there is no definite criterion for insanity. But the

Supreme Court adopted a definition from the Revised Administrative
Code, Section 1039, which states that insanity is a manifestation in
language or conduct, of disease or defect of the brain or a more or
less permanently diseased or disordered condition of the mentality,
functional or organic, and characterized by perversion, inhibition, or
by disordered function of the sensory or of the intellective faculties,
or by impaired or disordered volition.

Insanity, as defined above, is evinced by a deranged and perverted

condition of the mental faculties which is manifested in language or
conduct. An insane person has no full and clear understanding of the
nature and consequences of his act.
PEOPLE VS. MANCAO
49 PHIL 887
FACTS: This is a case involving an epileptic. During the influence of
an epileptic fit, he attacked the victim. He committed a crime. He
pleaded insanity as a defense.

Issue: whether he is liable or not.

Held: Epilepsy is not insanity from the medical point of view. But
from the point of view of the law, that is precisely the concept of
insanity. He cannot distinguish what is right from wrong because the
condition of the mind is not the same.

It is important to note, however, that the epileptic, to be exempt from

liability, must have committed the crime at the very moment that he
was under the influence of an epileptic fit. Otherwise, even if he is an
epileptic, he is not exempt from liability if he did not commit the crime
during an epileptic attack.
PEOPLE VS. TANCO
58 PHIL 255
FACTS: A somnambulist or sleepwalker, while sleeping, got up. Got a
bolo, and upon meeting his wife who tried to stop him, wounded her
and also attack other persons.

Held: He is not criminally liable, it appearing that the act was

committed while in a dream. He is covered by the term “insanity”
because at the time he committed the crime, he lack intelligence.

Under the law, even if you are medically insane, if you commit a
crime during a lucid interval, you are liable. There are types of
insanity where the doctor will say that he is insane for a certain time
and for another time, he is normal. The lucid interval is the period of
sanity. There are also types of insanity where there are no lucid
interval. If they are in their lucid interval, they are liable because
during that period they are sane, and therefore, they can distinguish
what is right from what is wrong.

There are persons who are not normal during full moon – lunatics.
At the last quarter, they become normal. The mind is affected by the
movements of the moon, like the waves, high tide if full moon. There
must be scientific explanation on that. How come some persons
during those periods manifest some kind of lunacy?

(2) A person under nine years of age.

(3) A person over nine years of age and under fifteen, unless he
has acted with discernment, in which case, such minor shall be
proceeded against in accordance with the provisions of Article 80
of this Code. (note: relate PD 603, 192)
When such a minor is adjudged to be criminally
irresponsible, the court, in conformity with the provisions
 of this and the preceding paragraph, shall commit him to
the care and custody of his family who shall be charged
with his surveillance and education otherwise, he shall be
committed to the care of some institution or person
mentioned in said Article 80. (note: obsolete)

Paragraph 2 and 3 are identical. This is called the exempting

circumstance of MINORITY.

- paragraph 2 – a person under nine years of age;

- paragraph 3 – a person over nine years of age and under fifteen

Q: When a minor is exactly nine years old, where will he fit – the 2 nd
of 3rd paragraph?
A: The Supreme Court said he falls under paragraph 2, because, as
interpreted by the SC, “under nine” means nine years old or
below. Otherwise, there will be a vacuum. So, if he is exactly 9, he
is under the 2nd paragraph.

Suppose, the child is a wonder boy, whose mental development

is advanced and so can distinguish what is right and wrong. He is still
exempt because the does not distinguish between a minor who is
mentally advance and one who is not. Insofar as the 2 nd paragraph is
concerned, there is a conclusive presumption of law that when a
minor is nine or below, he has no intelligence. He cannot distinguish
right from wrong. That is conclusive and cannot be overcome.

But the prosecution would insist that it has proven that the boy
knows what is right and what is wrong. At the age of eight, he
already wrote a book on ethics, or he is a chess grandmaster.
QUESTION: Is that allowed? ANSWER: NO, the exemption is
binding. If the child is 9 or below, he is exempt. That is conclusive
and cannot be changed anymore – complete exemption.
Q: Suppose the minor is over 9 up to exactly 15, is he exempt?
A: This time it is conditional. The minor is exempt, unless he acted
with discernment.

Q: What does “acting with discernment” mean?

A: Discernment means the mental capacity of the minor to
distinguish what is right from what is wrong. So, if the minor
did not act with discernment, he is exempt. If he acts with
discernment, he is liable, not exempt.

Q: Who will prove that?

A: The rule is that it is for the prosecution to prove that he acted
with discernment because the presumption is he did not act with
discernment, therefore, he is exempt. But the presumption can be
overcome by proof of discernment.

Q: How do you establish discernment?

A: It depends on the actuation of the minor before, during and after
the crime.

EXAMPLE: The commission of a crime by a minor appears to be well-

planned. Everything was coordinated and premeditated. That is a
sign that he knew because a minor who acts without discernment
acts by impulse, not by planning. Or, in one case where a minor, after
hitting the victim with a stone, shouted: Putang ina mo! Mabuti
nga sa’yo! Mamatay ka! The Supreme Court said that kind of remark
is not the remark of a person who is doing an innocent act. That is a
sign of discernment.

GUEVARRA VS. ALMODOVAR

196 SCRA 476
FACTS: Guevarra was an 11-year old kid who was playing a rifle with
a playmate. Accidentally, the rifle was discharged and exploded
fatally hitting his playmate. Of course, he did not really intend to kill
his playmate. There was no dolo there. He was charged with
reckless imprudence resulting to homicide.

He contended that he should be exempt because, as a minor, he did

not act with discernment. It was for the prosecution to allege that he
acted with discernment in order to hold him liable. When the
prosecutor charged him with reckless imprudence resulting to
homicide, that is an automatic admission by the prosecution that
there was no criminal intent on his part. And therefore, since the
prosecution admits there was no criminal intent, then that is an
admission that he acted without discernment because if there is no
criminal intent, automatically there is no discernment.

Issue: Is the term “discernment” synonymous with “intent”? (Such

that if there is no intent, there is no discernment)

Held: the word “intent” has been defined as a determination to do a

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

On the other hand, ‘discernment” convey thoughts. While both are

products of the mental processes within a person, the former(intent)
refers to the desired effect of one’s act; while the latter(discernment)
relates to the moral significance that a person ascribes to the said act.
Hence, a person may not intend to shoot another but may be aware
of the consequences of his negligent act which may cause injury to
the same person in negligently handling an air rifle.
It is not correct, therefore, to argue as accused-petitioner Guevarra
does, that since a minor over 9 but under 15 acted with discernment,
then he intended such act to be done. He may negligently shoot his
friend, thus did not intend to shoot him, and at the same time
recognize the undesirable result of his negligence.

Intelligence embraces the concept of discernment. Discernment is

not equivalent to intent. Intelligence which includes discernment is a
distinct element of dolo as a means of committing an offense.
Therefore, discernment is part of intelligence. And there are three
things there to make the act voluntary – freedom, intelligence, and
intent. Intent is in the mind, intelligence is in the mind, and
discernment is embraced in intelligence.

In felonies committed by means of culpa, three elements are

indispensable – intelligence, freedom of action and negligence. Intent
is wanting in such felonies. However, intelligence remains as an
essential element. Therefore, it is necessary that the minor between
9 to 15 be possessed with intelligence in committing a negligent act.
To be liable, he must discern the rightness or wrongness of the act.
( ART 80 is repealed by PD 603)

Meaning, I did not shoot you intentionally, but I’m aware that what
happened is wrong. That is what is meant by discernment – you
know what is wrong. But you did not intend it to happen.

(4) Any person who, while performing a lawful act with due
care, causes an injury by mere accident without fault or
intention of causing it.
(5) Any person who acts under the compulsion of irresistible force.
 ELEMENTS:
(i) that the compulsion is by means of physical force;
(ii) that the physical force must be irresistible;
(iii) that the physical force must come from a third person.

(6) Any person who acts under the impulse of an

uncontrollable fear of an equal or greater injury.

 ELEMENTS:
(i) that the threat which caused the fear is of an evil greater
than, or at least equal to that which he is required to
commit;
(ii) that it promises an evil of such gravity and imminence than
the ordinary man would have succumbed to it.
The basis of paragraph 5 and 6 is the absence of freedom of action.
There is intelligence, there is intent, but there is no freedom. You
were literally compelled against your will to commit the felony. Actus
invito factus non est meus actus. An act done against my will is not
my act.

Q: Distinguish irresistible force from uncontrollable fear?

A:
Irresistible force Uncontrollable fear
the offender was compelled to the manner by which he was
commit a crime through the use compelled to commit a crime was
of physical force, like torture. not through force, but through
He was tortured until he had no threat or intimidation
more choice but to commit the
crime.

The second is more common than the first.

 When you allege that there is an irresistible inner force which
makes me commit a crime. I was possessed by a demon. That is
NOT covered. It may be insanity, bur definitely you cannot invoke
irresistible force there.

US VS. CABALLEROS
4 PHIL 350

FACTS: This is a case where some American school teachers were

murdered by a band. Accused Baculi was then in a plantation
gathering bananas. Upon hearing the shooting, the poor farmer ran
towards the scene of the crime. However, he was seen by the leader
of the band. They struck him with the barrel of their rifles and
compelled him to bury the corpses. He was caught by the authorities
and was charged as accessory in the murder of the Americans for
concealing the body of the crime.

Held: Baculi was not criminally liable as accessory for concealing the
body of the crime of murder committed by the band because he acted
under the compulsion of an irresistible force.

The second one (uncontrollable fear) is more common. The offender

is compelled to commit a crime against his will by means of threats.
In order to avail of this, there must be a demonstration that:
 there is no possibility of defending yourself from the threat.
Meaning if you threaten me with a gun, I have no obligation to
fight back just to avoid committing the crime.
 There is no possibility of escaping from the threat. If there is a
chance of escaping so that you will commit the crime, then you
are not covered.
 The threat must be of equal or greater injury. It must be clear,
concrete, not speculative.
 PEOPLE VS. MORENO
77 SCRA 549
FACTS: Accused Moreno was charged with murder for killing fellow
filipinos upon order of Major Sasaki of the Japanese Imperial Army.
Moreno claimed that he could not refuse to comply with that order
because the Japanese officer made a threat. The testimony of Major
Sasaki showed that the threat was not really serious. It was to the
effect that if Moreno will not comply, the Japanese soldiers will take
him along with them.

Held: A speculative, fanciful and remote fear is not “uncontrollable

fear”. If the only evidence relating t a sort of a threat is the
testimony of the defendant: As they insisted and I informed them
that I could not do it, Capt. Susuki told me “You have to comply with
that order of Major Sasaki; otherwise you have to come along with
us”, that threat is not of such a serious character and imminence as to
create in the mind of the defendant an uncontrollable fear that an
equal or greater injury would be inflicted upon him if he did not
comply with the alleged order to kill the deceased.

(7) Any person who fails to perform an act required by law

when prevented by some lawful or insuperable cause.
 ELEMENTS:
(i) that an act is required by law to be done;
(ii) that a person fails to perform such act;
(iii) that his failure to perform such act was due to some lawful
or insuperable cause.

This exempting circumstance applies exclusively to people who are

charged with felony by omission. Here, the offender is not
prosecuted for doing an act, but for failing to do an act.

Q: What is your defense when you failed to do an act as required by

law?
A: I was prevented by a lawful cause or an insuperable cause. That
is the defense.

EXAMPLE: The accused is a Filipino citizen who is a priest.

Somebody in the confessional confessed to him as being a co-
conspirator in the crime of treason. So, the priest learned about it.
If he does not report the matter to the authorities, he violates the
law, as criminally liable for misprision of treason under Article 116 of
the RPC. If he reports the matter to comply with the Penal Code, he
violates the seal of confession. Then later, the conspirator was
arrested, investigated and he admitted that the person to know about
it was the priest. So, the priest is now charged with Misprision of
Treason. QUESTION: What is the defense of the priest? ANSWER:
He was prevented by a lawful cause (secrecy of confession) from
revealing the matter.

Q: What do you mean by prevented by an insuperable cause?

A: A cause beyond the control of the peace officer.
Example is an officer who is prosecuted under Article 125 for the
crime of Delay in the Delivery of Detained Persons to Proper Judicial
Authorities. In case of lawful warrantless arrests, a peace officer or a
private person may arrest another even without a warrant and detain
him. But there is a limit as to the maximum number of hours within
which the detaining officer is allowed to detain the person arrested.
If the arresting officer wants to detain him further, he’d better file the
necessary criminal information in court. If the person arrested is
detained beyond that period without being lawfully charged in court,
the detaining officer is liable.
ARTICLE 125, RPC. Delay in the delivery of detained persons to the
proper judicial authorities – The penalties provided in the next
preceding article shall be imposed upon the public officer or
employee who shall detain any person for some legal ground
and shall fail to deliver such person to the proper judicial
authorities within the period of:
• twelve (12) hours for crimes or offenses punishable by
light penalties, or their equivalent;
• eighteen (18) hours, for crimes or offenses punishable
by correctional penalties, or their equivalent; and
• thirty-six (36) hours, for crimes or offenses punishable
by afflictive or capital penalties, or their equivalent.
In every case, the person detained shall be informed of the
cause of his detention and shall be allowed upon request, to
communicate and confer at any time with his attorney or
counsel.

Suppose a policeman caught somebody without warrant because

he was actually committing murder or homicide in the hinterlands – a
certain very far away barangay. He was to bring him to town and to
formally charge him in court. But it takes 3 to 4 days to reach the
town proper from said barangay. So, how can he comply with his
duty within 36 hours (because murder or homicide is a grave felony)
to charge the person arrested. He should keep him within 36 hours
only, otherwise he should be liable.

So, necessarily, he detained him for more than 36 hours. By the

time he reached the town, it is more than 36 hours. So, the
policeman is charged of Delay in the delivery of detained person.

Q: What is his defense?

A: He was prevented from doing the act because of the cause
beyond his control – insuperable cause. How can he do something
within 36 hours when it will take him nore than 36hours to reach the
town?

Q: What is the effect of exempting circumstance in general?

A: When there is an exempting circumstance, the offender is not
liable. He is exempt from criminal liability.

Q: How about civil liability?

A: He is civilly liable because the exemption from criminal liability
does not include exemption from civil liability in the cases provided in
paragraph 1, 2, 3, 5, and 6 of Article 12. So, he is not criminally
liable, except in paragraph 4 (accident) and paragraph 7 (lawful or
insuperable cause). In these two instances, not only is there an
exemption from criminal liability, but also exemption from civil liability.

Q: Enumerate at least ten exempting circumstances?

A: Seven are in Article 12. Others are:
• Article 6 – when a person did not perform all acts of
execution which would produce the felony because of his own
voluntary desistance. One who voluntarily desist from
committing a crime is exempt from any criminal liability
because of public policy.

• Article 7 – light felonies are punishable only when they are

consummated, except those committed against persons or
property. So, the rule is: attempted or frustrated light felonies
are not punishable if they are not committed against persons
or property. That is an exemption from liability for reason of
 public policy. But if the light felony is committed against
persons or property, they are punishable even if attempted or
frustrated.

• Article 16 – where accessories re not liable for light felonies.

• Article 20 – where the accessory who is related to the

principal is exempt from criminal liability.

• Instigation – based on public policy, based on certain

jurisprudence; police dragnet; it was the SC who recognized
such exemption.

Q: Distinguish instigation from entrapment?

A: In instigation, a public officer or a private detective induces an
innocent person to commit a crime and would arrest him upon or
after the commission of the crime by the latter. It is an absolutory
cause. And jurisprudence says the person instigated who commits a
felony is exempt from a criminal liability. The reason is public policy.
Peace officer should be the last person in the world to induce people
to commit crimes. It is not a sound practice to allow public officers
who should be the one apprehending the criminals to be the very
person who will induce somebody to commit a crime.

In entrapment, a person has planned, or is about to commit,

a crime, and ways and means are resorted to by a public officer to
trap and catch the criminal. Entrapment is not a defense. In
entrapment, the person has decided to commit a crime and the police
officer went along with him, pretending to be agreeing to its
commission. Then when the criminal is in the act of committing the
crime, the peace officer who pretended to do along with him will now
be instrumental in arresting him. Now, that is not a defense when
you entrapped. It is not an exempting circumstance.
 For example, a buy-bust operation against drug pusher. A peace
officer will pretend to be a user or drug addict and he will buy from
the pusher. Upon giving the signal to his companions, the pusher is
arrested. That is entrapment.

Take note that in entrapment, the idea of committing the crime

did not come from the policeman but from the person arrested. The
policeman only resorted to ways and means to catch the criminal in
the act of selling prohibited drugs. But in instigation, the idea of
committing the crime came from the policeman himself. It was he
who induces an innocent person to commit a crime.

In instigation, the trap is against an unweary innocent; whereas,

in entrapment, the trap is against an unweary criminal.

Q: Suspecting that Juan was a drug pusher, SPO2 Mercado, leader

of a NARCOM Team, gave Juan a P100-bill and asked him to buy
some marijuana cigarettes. Desirous of pleasing SPO2 Mercado, Juan
went inside a shopping mall, while the officer waited in one corner of
the mall. After 15 minutes, Juan returned with 10 sticks of marijuana
cigarettes which he gave to SPO2 Mercado, who thereupon placed
Juan under arrest and charged him with violation of the Dangerous
Drugs Act for selling marijuana cigarettes. Is Juan guilty of any
offense punishable under the Dangerous Drugs Act?
A: There is instigation here. This is not an entrapment. Juan was
not a pusher. In fact, it was SPO2 Mercado who asked Juan to buy
marijuana cigarettes for him. It was only because Juan wanted to
please Mercado that the latter bought the said marijuana cigarettes.
Therefore, Juan is not guilty of any violation of the Dangerous Drugs
Act.

The exempting circumstances under Article 12 are based in the

philosophy that there was lack of voluntariness because of the
absence of freedom, intelligence or intent. The other exempting
circumstances, which are not found under Article 12, exempt the
offender from criminal liability not because there was no voluntariness
but because of public policy.

Q: Distinguish justifying from exempting circumstances?

A:
JUSTIFYING EXEMPTING CIRCUMSTANCE
CIRCUMSTANCE
The act committed by a person The offender committed a crime,
is justified; it is in accordance but when he committed it, there
with the law. No crime is was no voluntariness on his part
committed by the accused. because he acted without freedom,
intelligence or intent. There is a
crimebut there is no accused.
There is no civil liability, except There is civil liability, except in
in paragraph 4 (state of paragraph 4 (accident) and
necessity) paragraph 7 (lawful or insuperable
cause)
 MITIGATING CIRMSTANCES

Q: Define mitigating circumstance in general?

A: In general, mitigating circumstances refers to those circumstances
which, if present in the commission of a felony, makes the offender
liable but it would reduce or mitigate the imposable penalty because
when he committed the felony, he committed it with a reduction or
diminution of freedom, intent or intelligence.

Therefore, there was less degree of voluntariness in committing

the crime. Or because the offender has shown in the commission of
the crime or afterwards a lesser degree of moral depravity or
perversity.
ARTICLE 13. Mitigating circumstances – The following are
mitigating circumstances:
(1) Those mentioned in the preceding chapter, when all
the requisites necessary to justify the act or to exempt
from criminal liability in the respective cases are not
attendant.

This refers to INCOMPLETE JUSTIFYING or INCOMPLETE

EXEMPTING circumstance. For example – incomplete self-defense,
incomplete defense of relative, incomplete state of necessity,
incomplete accident, incomplete irresistible force, incomplete
uncontrollable fear.

Suppose I am the accused, I prove that I am a victim of unlawful

aggression, that’s why I had to kill the victim. But I did not use
reasonable means to defend myself. So, unlawful aggression is
present but the other two requisites of self-defense are not present.
That is no longer self-defense, but that constitutes a mitigating
circumstance under paragraph 1 of Article 13.

The same thing with paragraph 4 of Article 11 (state of necessity),

paragraph 6 of Article 12 (uncontrollable fear). Those circumstances
that have requisites, but not all are present. But there are
circumstances where you cannot apply paragraph 1 of Article 13, like
imbecility. That is exempting but there is no such thing as
incomplete imbecility.

(2) That the offender is under eighteen years of age or

over seventy years. In the case of the minor, he shall be
proceeded against in accordance with the provisions of
 Article 80. (note: Article 80 is amended by sec 192, PD
603)

This is also known as the mitigating circumstance of MINORITY

or SENILITY because the offender is below 18 or over 70 years old.

You will notice that the age of a person plays a big role in
determining his mental liability, or the proper imposable penalty under
the Penal Code:

AGE DESCRIPTION
EFFECTS
9 years & Age of complete Exempting (Article 12(2)
below irresponsibility
Over 9 under Age of conditional - Exempting, if the minor
15 criminal responsibility acted without discernment-
Art. 12(3)
- Mitigating, if he acted with
discernment
16 to 17 Age of mitigated Mitigating (Article 13(2)
years old criminal responsibility
18 to 70 Age of complete None
years old criminal responsibility
Over 70 Age of mitigated Mitigating (Article 13(2)
years old criminal responsibility * Basis: impaired intelligence

Q: Is a baptismal certificate admissible in evidence to prove the

minority of an accused?
A: If we go by the Rules of Evidence, a baptismal certificate is not
competent to prove a person’s age because it is not recognized as an
official document. It does not prove your name, status, or age. What
is competent is the official birth certificate.
 PEOPLE VS. REGALARIO
220 SCRA 368

Minority, as a mitigating circumstance, is presumed in case of doubt.

A baptismal certificate or other evidence of this character may be
admitted to show minority.

That ruling, about legal interpretation of minority, should not be

confused with insanity which must be proven by clearly and
convincingly. For example, I want to prove that the accused is a
minor through his own testimony.

COUNSEL: When were you born?

ACCUSED: I was born on June 2, 1990. (this is theoretically hearsay)
COUNSEL: How did you know that you were born on that date?
ACCUSED: My mother told me. (this is an exception to the hearsay
rule…because of family reputation or tradition)
COUNSEL: Ah, that is self-serving. Maybe you just made that so that
you can prove that you are below 18 years old.

Q: Is there a need for a corroborative evidence? (i.e. aside from the

accused’s testimony, you will present his birth certificate, or the
testimony of his father or mother or anybody older than the accused).
To establish the mitigating circumstance of minority, will the testimony
of the accused be sufficient, or must he present corroborative
evidence to prove his age considering the fact that his statement
might be considered as self-serving on his part?
A: In the case of People vs. Lugto (190 SCRA 754), the Supreme
Court said that the accused has the burden of proof to show that he
was a minor at the time of the commission of the crime. So, if you
have the burden of proof, your testimony alone does not seem
sufficient. You have to present corroborative evidence to make it
convincing.
 However, the Supreme Court re-examined the Lugto ruling:

PEOPLE VS. TISMO

204 SCRA 535

The appellant’s claim that he was 17 years old at the time the crime
was committed, even without any proof to corroborate his testimony,
is sufficient. Considering that the prosecution failed to present
contradictory evidence, we have applied to appellant therein the
privilege mitigating circumstance of minority under the second
paragraph of Article 13 of the Revised Penal Code.

The Lugto ruling appears to be an aberration from the long line of

decisions antedating it. From US vs. Bergantino (3 Phil 118) o People
vs. Ebora (141 SCRA 282), we have consistently ruled that, although
the accused did not offer any evidence to support his claim of
minority, this fact will remain as such, until disproved by the
prosecution.
In other words, the answer to the question of whether or not the
accused’s lone testimony as to his minority would be sufficient, is YES.
It can be done. That is where we apply the rule on liberality.
Anyway, the prosecution will present its own evidence, and it is there
that we will know if the accused is telling the truth. But if his
testimony is unchallenged, then it would suffice.

(3) That the offender had no intention to commit so grave

a wrong as that committed.

Obviously, this only applies to intentional felonies. This will not

apply to culpable felonies. This is related to Article 4 (1) on praeter
intentionem.

PROBLEM: A, with the intent of inflicting physical injuries on B, hit B

with his fist. The latter fell down and his head hit a concrete
pavement, thereby fracturing his skull. And he subsequently dies.
QUESTION: Is A liable for the crime of slight physical injuries which
he intended, or is he liable for homicide that resulted? ANSWER: He
is liable for homicide, the crime that resulted, applying Article 4 (1),
that one is liable for the felony actually committed although it is
different from the one which he intended.

Q: Is A entitled to any circumstance in his favor, assuming that he is

liable for the crime that resulted?
A: YES, he is entitled to the mitigating circumstance under Article 13
(3) that the offender had no intention to commit so grave a wrong as
that committed. There is diminution of criminal intent.

(4) That sufficient provocation or threat on the part of the

offended party immediately preceded the act.
There are actually two circumstance here:
(1)that sufficient provocation on the part of the offended party
immediately preceded the act;
(2)that sufficient threat on the part of the offended party
immediately preceded the act.

 Sufficient Provocation

It seems to be closely linked to the 3 rd element of self-defense –

lack of sufficient provocation on the part of the person defending
himself. So, we will connect this with self-defense

The best illustration is the case of Alconga. The deceased

attacked Alconga with a piece of wood. Alconga defended himself by
shooting the deceased. When the deceased realized he slightly
wounded, he turned his back and ran away. Alconga chased him,
overtook him and killed him on the spot. QUESTION: Is Alconga
entitled to the justifying circumstance of self-defense for the death of
the victim? ANSWER: NO, because there was no unlawful
aggression. While it is true that there was unlawful aggression on the
part of the victim earlier, it has already ceased when the victim ran
away. There is no more danger to the life and limb of Alconga, and
therefore, there was no more reason for him to defend himself. As a
matter of fact, in the second stage of the fight, Alconga became the
unlawful aggressor.

Q: If Alconga is liable for homicide for the killing of the victim, is he

entitled to any circumstance in his favor?
A: YES, he is entitled to the mitigating circumstance under Article 13
(4) that sufficient provocation on the part of the offended party
immediately preceded the act.

Q: Can Alconga not claim the benefit of incomplete self-defense under

Article 13 (1)?
A: NO, because there is lacking the requisites. Where there is no
unlawful aggression, nothing exists. Therefore, there is no self-
defense, complete or incomplete.

Q: Suppose, when Alconga was chasing the victim, the victim was
forced to fight back and in the process he killed Alconga, can he claim
self-defense under Article 11 (1)?
A: NO, because of the absence of the third element – lack of
sufficient provocation on the part of the person defending himself.
The reason why Alconga attacked is because earlier he attacked
Alconga. So, he gave sufficient provocation. Because of the absence
of the third element, he is not entitled to complete self-defense.
Q: Can Alconga”s victim claim any circumstance in his favor?
A: YES, he can claim the mitigating circumstance of incomplete self-
defense because there was unlawful aggression, the means he used
to defend himself was reasonable, bur he gave sufficient provocation.

 Sufficient Threat
A threat also amount to provocation because when you are
threatening somebody, you are provoking him. Like for example, A:
You watch out! One of these days, I am going to kill you. B: You
are threatening me? It would be good if I kill you first! So, B killed
A. that is the mitigating because the offended party (A) gave
sufficient threat preceding the act.

PROBLEM: A wanted to kill B. A drew his gun and told B, I’ll kill you
now! When B realized that A is going to kill him, B drew out his gun
ahead and killed A. so, B is accused of homicide for the death of A.
B went to a lawyer, who advised him to invoke the mitigating
circumstance under Article 13 (4). QUESTION: Is the lawyer correct?
ANSWER: NO, he should invoke self-defense, not the mitigating
circumstance of sufficient provocation or threat.

The rule is when the threatened act is about to happen, that is

equivalent to actual aggression. That is justifying because the threat
is imminent, at the point of happening and therefore, that constitutes
unlawful aggression. But if the threat is still in the future, and not at
the point of happening, then it is not equivalent to unlawful
aggression. That may constitute the mitigating circumstance under
Article 13 (4). So, that is the connection between the threat here and
the threatened assault in Article 11 (1).

(5) That the act was committed in immediate vindication

of a grave offense to the one committing the felony
 (delito), his spouse, ascendants, descendants, legitimate,
natural or adopted brothers or sisters, or relatives by
affinity within the same degree.

The essence of this circumstance is REVENGE. Somebody

commits a wrong, a grave offense to you or a member of your family,
a relative, and you seek revenge. Like for example, somebody kills
your brother, so you look for the killer to kill him. Now, that revenge
can never be justified under the law. It does not exempt you from
liability if you kill somebody because he killed a member of your
family. That can never be justified. “Revenge is mine”, says the law.

However, the law understand the feeling of the accused. He did it

because a grave offense was committed against him, or a member of
his family. So, the law recognizes the “diminution” of one’s penalty if
he acts in retaliation.

The relatives mentioned in this paragraph 5 are identical with the

relatives mentioned in Article 11 (2) – defense of relatives. All of
them are the same except one, relatives by affinity within the fourth
civil degree. They are not mentioned in this Article.

Q: What do you mean by “grave offense”? Does this mean to say

you are a victim of a grave felony, as defined in Article 9?
A: NO, the word “grave” here is not identical with the technical
definition of grave felony. What it means is somebody offended you
seriously. If it is serious, it is not necessarily a grave felony.

Q: And how do you determine if the wrong committed upon you or

your relative is serious?
A: If depends on many factors. You consider the nature of the act
committed by the victim, the age of the offender, the social standing.
What is serious to one may not be serious to another.
 US VS. AMPAR
37 PHIL 201

FACTS: There was a party during a fiesta where the accused

who is an old man went to the victim who was serving lechon.
Ampar asked for lechon. The victim played a joke on Ampar. In
the presence of many guests, the deceased insulted the old man,
saying: “There is no more. Come here and I will make roast pig
out of you”. It was a joke, and all the guests laughed. But the
deceased made a mistake. Maybe the joke would not have
bothered if it were a young man, but to the old man, it was
something else. So, the old man left, got an ax. A little later,
while the deceased was squatting down, the old man came up
behind him and struck him on the head with the ax.

Held: He acted in vindication of a grave offense committed

against him. It was just a joke, but considering his age and the
occasion, it was something serious. You should not play jokes on
or ridicule me in the presence of others.

Take note that the law says that you x x x committed the act in the
immediate vindication x x x you committed the act in immediate
vindication. Just like in the previous mitigating circumstance, that
sufficient provocation or threat on the part of the offended party
immediately preceded the act.

However, there is a difference between the word “immediate” in

paragraph 4 and the word “immediate” in paragraph 5. In the
previous mitigating circumstance, sufficient provocation or threat on
the part of the offended party immediately preceded the act. In
paragraph 4, the interpretation of the word “immediate” there is
literal. There must be no gap between the threat or provocation and
the crime. You commit a crime immediately after the provocation or
threat. In paragraph 5, the use of the word “immediate” is not really
literal.

Q: For example, a man is killed and after the funeral of the

deceased, the son looks for the killer and kills him. And he finds the
killer after one month. So, he kills the killer for killing his own father.
Would you say that the killing was “immediate” after the grave
offense was committed against the father?
A: It is not. It is not immediate. There was a gap of one month.
But there is a relation of cause and effect between the crime
committed by the killer and the crime which the son now commits
against the killer. So, the word “immediate” there is a misnomer
because the word “immediate” is an incorrect translation of the
original Spanish word proxima. The appropriate translation would be
“proximate”. That the act was committed in the PROXIMATE
vindication of a grave offense.

Q: What is the difference between “proximate” and “immediate”?

A: In “proximate”, the act is not immediate in point of time of the
grave offense, but what is also important is that there is still the
relation of cause and effect between them.

(6) That of having acted upon an impulse so powerful as

naturally to have produced passion or obfuscation.

Q: What do you mean by “passion or obfuscation”?

A: Where a person is overwhelmed by passion or his mind is
obfuscated, he becomes “illusionado”, his action is more of a
product of emotion rather than of a careful knowing. So,
somehow, the freedom and intelligence are also impaired.

Sometimes, we experienced that. When you become very angry,

sometimes you think or utter words which you will later regret. When
you have cooled down, you realize that you should not have uttered
such words. But why is it that when you are angry or when you are
not thinking, you do things which you actually do not mean?

Why? Because your mind is obfuscated. That in the mind, the

decision was prompted by emotion rather than by reason. That is
why there is this nice saying: When you are angry, do not make any
decision. When you are happy, do not make any promises. That is
fair enough.

There are some principles on this:

1)the passion or obfuscation must arise from lawful sentiments

US VS. HICKS
14 PHIL 217

FACTS: A married man was maintaining an illicit relationship with

a woman, a concubine. After a while, the concubine told him. I
think I have to stop this relationship. I have no future with you.
In the first place, you are married. I want to have my own life.
Of course, the man became emotional and killed the woman,
because he could not bear the thought of this woman separating
from him, when they have been together for 7 years.

In his defense, he pleaded the circumstance of passion and

 obfuscation, that he was obfuscated when the girl said that she
wanted to part ways with him.

Held: Defense untenable. It was a passion which arose from an

ILLICIT relationship.

2)the passion or obfuscation must not be committed in a spirit of

revenge

PEOPLE VS. CALISO

58 PHIL 283

FACTS: Here, the yaya killed the child because she was angry,
because the parents of the child scolded her earlier. Because of
the scolding, she became emotional. She got so emotional that
she killed the baby.

Held: We cannot accept the fact that you acted under passion or
obfuscation because that was a passion or obfuscation generated
by the spirit of revenge. So, it was not a valid emotion.

3)the passion and onfuscation must not be committed in a spirit of

lawlessness

PEOPLE VS. SANICO

Facts: A man was accused of rape. His explanation was : I was

in a very scenic spot. There no people around. Then, I saw the
victim. She was alone, bathing in the river. So, my initial instinct
 was that I was aroused, I had to rape her. I acted with passion.

Held: That is not the kind of passion contemplated by law. That

is libido.

Q: Now, suppose a person became of an act - a terrible act

committed by the victim against him, retaliated by killing the victim.
So, he says I killed him because of sufficient provocation or threat on
the part of the offended party immediately preceding the act, so I am
entitled to the mitigating circumstance #5 because I committed the
act in the immediate vindication of a grave offense committed against
me, and also I am entitled to #6 because I acted on an impulse so
powerful as would naturally produce passion. So, I am entitled to
three mitigating circumstances. Is that correct?

A: No, he is entitled to only one because numbers 4,5 and 6 have the
same source. They have a common denominator - that the mind is
actually overwhelmed by anger or emotion. So, he cannot claim three
mitigating circumstances. Assuming that all of them will apply, the
application of one is sufficient. You cannot claim three separate
mitigating circumstances.

 In passion or obfuscation, you lose self-control as to deprive you of

reason; you do not lose consciousness.

(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.

These ( voluntary surrender and voluntary confession) are the

most common mitigating circumstances invoked in court. If the two
are present, definitely the accused is entitled to two mitigating
circumstances.

 Voluntary Surrender

After the killing, the accused went to the police and gave up. The
reason behind this is that he has shown a lesser degree of perversity,
that he is willing to answer for the crime he committed. He is better
that the one who has remained at large.

Q: To whom shall the accused surrender?

A: The accused should surrender to the right person. To a person in
authority or his agent.

 The voluntary surrender need not be in the same place where the
crime took place. You may have committed the crime in Davao and
surrendered in Manila.

Q: Who is a person in authority or his agent?

A: The guide is in Book II

ARTICLE 152, RPC. Person in authority and agents of person in

authority - Who shall be deemed as such - In applying the
provisions of the preceding and other articles of this Code,
any person directly vested with jurisdiction, whether as an
individual or as a member of some court or government
corporation, board or commission, shall be deemed a person
in authority. A barrio captain and a barangay chairman shall
also be deemed a person in authority.

A person who by direct provision of law or by election or by

appointment by competent authority, is charged with the maintenance
of public order and the protection and security of life and property,
such as a barrio captain, barrio councilman, barrio policeman and
barangay leader and any person who comes to the aid of persons in
authority, shall be deemed an agent of a person in authority.

In applying the provisions of Articles 148 ad 151 of this Code,

teachers, professors and persons charged with the supervision of
public or duty recognized private schools, colleges and universities,
shall be deemed persons in authority.

So, if you surrender to a clerk of the City Hall, you will not fall
under this because an ordinary clerk of the government is not a
person in authority. He is not also an agent of a person in authority.
He must fit the definition in Article 152. Also, you must surrender
yourself. Like in one case, the accused killed somebody. And then,
he sent his weapon to the police, the murder weapon. Is that
necessary? The Supreme Court said that is not surrender, because
you should surrender your body, not the weapon.

Q: When should you surrender?

A: One thing that the Supreme Court has emphasized is that the
surrender must be SPONTANEOUS.

ESTACIO vs. SANDIGANBAYAN

183 SCRA 12

The mitigating circumstance of voluntary surrender may properly be

appreciated in favor of the accused when the following requisites
concur:

 The offender has not actually been arrested;

 The offender surrendered himself to a person in authority
or an agent of the person in authority
 The surrender was voluntary.
 The foregoing requisites are not present in the case at bar.
The evidence of record shows us that the accused went to the
NBI upon the instruction of his superior, not upon his own
accord.

PEOPLE vs. LEE

204 SCRA 900

Issue: Is there voluntary surrender if an accused gives himself up to

ensure his safety? Meaning, his life may be in danger. There might
some people who wanted him dead, so he decided to surrender.

Held: For a surrender to be voluntary, it must be spontaneous, and

should show the intent of the accused to submit himself
unconditionally to the authorities, either:
 Because he acknowledges his guilt; or
 Because he wishes to save them ( police and
government) the trouble expenses to be necessity incurred
for his search and capture.

In the absence of these two reasons, and in the event that

the only reason where the accused is supposed to surrender is to
ensure his safety -- his arrest being inevitable, the surrender is NOT
spontaneous, and hence not voluntary.

This is similar to an old case where a wanted criminal was tracked

down by the authorities. They found his hideout, and then they
surrounded his hideout early one morning. They shouted, " Come out
peacefully because there is no way for you to escape. You are
surrounded!" The criminal looked at all the directions, and found out
that they were all sealed. So, knowing that there is no more escape,
he came out. Now, he is asking for the mitigating circumstance of
voluntary surrender. That cannot be. He did not surrender; he was
caught. In the other words, that was not really a surrender in the
sense that the criminal gave up spontaneously. He had no choice.

PEOPLE vs. MORATO

224 SCRA 361

Issue: Is there voluntary surrender if the accused gave himself

up after a shoot-to-kill order was issued against him and he was
persuaded to surrender because of his employer?

Held: The fact that the Provincial Commander had announced

over the radio that he would issue a shoot-to-kill order unless the
accused-appellant voluntarily surrendered, and that the accused-
appellant was persuaded to surrender by his employer, do not
militate against the consideration of his voluntary surrender as
mitigating circumstance. The stone-cold fact remains that he
was not arrested and that he presented to the Provincial
Commander.
The ruling of Morato seems to go against the ruling of the Supreme
Court in 1990 decision, which has the very same fact. A man
committed a crime. He was convinced by his superior to surrender,
so he surrendered to the NBI.

PEOPLE vs. PAGSANJAN

221 SCRA 735

Issue: Is there mitigating circumstance if it took 2 years and 5

months after the issuance of the warrant of arrest against the
accused before he surrendered?
 Held: The mitigating circumstance of voluntary surrender
cannot, as appellant pleads, be considered in his favor. He did
not surrender voluntarily. It took 2 years and 5 months after the
issuance of a warrant of arrest against him before he
surrendered. Apparently, when he gave himself up, it was not to
save the state from the time and effort needed to capture him,.
But because he had gotten tired of the life of a fugitive, or saw
no other reasonable alternative to continue absence from his
home.

Estanislao Case
265 P 10

Two months after the incident, voluntary surrender… NO

spontaneity.
(8)That the offender is deaf and dumb, blind or otherwise
suffering some physical defect which thus restricts his means
of action, defense, or communication with his fellow beings.

People vs. Rabanillo

307 SCRA 613

FACTS: Accused submitted himself to the custody of the law even

though charges have yet to be filed against him when the Barrio
Captain went to his house.

HELD: No voluntary surrender because it was the Barrio Captain

who went to his house. It was not him who went to the person
 in authority to surrender.

 VOLUNTARY CONFESSION OF GUILT

This is manifested in Criminal Procedure by a plea of guilty

entered by the accused during the arraignment. That is when you
voluntarily confess your guilt to the court prior to the trial, prior to the
presentation of evidence by the prosecution.

Q: Can I withdraw? Can a person who entered a plea of "not guilty"

later on change his mind and withdraw that plea and change it to
"guilty"? Is he still entitled to this mitigating circumstance?
A: Yes, because what is important is that he has confessed his guilt
before the prosecution has laid its evidence. In order to prevent
speculation on the part of the accused: If the evidence is strong, I
will surrender. If the evidence is weak, trial goes on!
In other words, you should not speculate. Even before seeing
and knowing the evidence of the prosecution, you admit your guilt-
that shows that you have less perversity.

So, you can change your plea of " not guilty" to " guilty".
What is important is that you must confess your guilt prior to the
presentation of the evidence for the prosecution.

Q: Can you change your plea of " not guilty" in the middle of the trial?
Can that be done?
A: Of course, you can change your mind and enter plea of " guilty"
anytime, even before trial, during trial, and even before the trial ends.
But if you do it much later, it will no longer be considered as a
mitigating circumstance. That's the difference.

People vs. Magallanes

 275 SCRA 222

FACTS: In the prosecution for murder, the accused willingly

pleaded guilty to a lesser offense of homicide. The prosecution
here did not agree to his plea of guilty to a lesser offense. So, the
trial went on. During the trial it was shown that he was not guilty
of murder.

HELD: He is allowed to be credited of the mitigating circumstance

of voluntary confession of guilt, where the prosecutor has not
proven the graver crime but only the lesser crime of homicide.

Any physical defect by the accused is automatically mitigating

even if it does not have something to do with the crime. Like , you
are dear and dumb, or blind or you are cripple. The mere fact that
the person is not physically normal, that is considered automatically
as a mitigating circumstance in his favor because that is a diminution
of his freedom - freedom of action. Even a person who stutters is
included.

(9) Such illness of the offender as would diminish the

exercise of the will-power of the offender without however
depriving him of consciousness of his acts.

This is the mitigating circumstance which should correlate with

the Article 12 (1) on insanity, because medically this will be a form of
insanity. An illness of the offender which diminishes the exercise of
the will-power of the offender. If you follow the guideline in the case
of Dungo, some countries may recognize this as a type of insanity, by
applying what is known as the irresistible impulse test.
He cannot resist the impulse to commit a crime. Now, is that
 recognized in the Philippines? NO. As a matter of fact, another case
where the Supreme Court thoroughly discussed this type of mental
illness is in the 1991 case of People vs. Rafanan (204 SCRA 65).
The discussion in the Rafanan case is related to the test in People
vs. Dugno.
In the case of Rafanan, the Supreme Court adhered to the
guidelines it laid down in the earlier case of People vs. Golez, a 1915
decision. And the Supreme Court in the case of Rafanan says: " the
required standards of legal insanity were elaborated in the 1950 case
of People vs. Golez. And the Supreme Court said: " A linguistic or
dramatical analysis of this standard suggest that Golez established
two distinguishable tests."
Of course, this is another viewpoint. There are supposed to be
three tests according to Dungo. That is correct, but based on another
point of view, based on Rafanan , there are actually two tests: the
test of cognition and the test of volition, according to the Supreme
Court.
Q: What is the test of cognition?
A: The test of cognition means the complete deprivation of
intelligence in committing the criminal act.

Q: What is the test of volition?

A: there must a total deprivation of the freedom of the will.

In the Dungo case, that is called the irresistible impulse test.

And the test of cognition - complete deprivation of intelligence - in
the Dungo case, was called the Right or Wrong Test.

But in the case of Rafanan, quoting the case of Golez, it is the

test of cognition versus the test of volition. Now, which of the two is
considered as covered by insanity, under the mitigating
circumstances?
 The Supreme Court continued: " We have gone over all
decided cases before this Court. We will still have to see one where
we acquitted somebody simply because there was no freedom on the
will. We have not done it, where the accused failed to show
complete impairment or loss of intelligence, the Court has recognized
it a most as a mitigating circumstance , not an exempting
circumstance, in accord with Article 13 (9) of the RPC."

So the test of volition is the recognized test in the mitigating

circumstances under Article 13 (9). For insanity, the test of cognition.

(10) And, finally, any other circumstance of a similar nature

and analogous to those abovementioned.

So, any circumstance that is similar to any paragraph 1 to 9.

And the Supreme Court applied this in so many cases. There was
this case of an old man. He was around 65, but he could hardly
walk, he could hardly see. The Supreme Court gave to his benefit
the circumstance analogous to " above 70". Although he was not
really above 70, considering his physical condition, that is analogous.

And there was the case of the creditor who could not collect
form the debtor. Each time he
would go to the debtor to collect the account, the debtor would
always tell him to come back the nest day. One day, the creditor got
so sick and tired of the debtor's alibis, that he mauled the latter. Is
he liable for physical injuries? According to the Supreme Court, the
feeling of the creditor is analogous to one of passion or obfuscation.
So, in this case, the creditor was given the benefit of mitigating
circumstance.

Or in the case of a thief who stole the property of the victim.

After one or two days, he was filled with remorse that he returned the
stolen property. Is he liable for attempted theft? No more. That is
already consummated. From the moment he took the property which
then came to his possession and control, the theft was already
consummated. Desistance was too late. Returning the property
cannot be desistance. You cannot desist when all the elements have
already been completed. But definitely, what he did as a point in his
favor. He is to be given the mitigating circumstance, analogous to
voluntary surrender. This analogous to somebody who commits a
crime and voluntarily surrenders himself to the authorities or their
agents.

Q: What are the mitigating circumstance in the Penal Code?

A: There are two:

(a) Ordinary Mitigating Circumstance -- these are the

mitigating circumstances
found in Article 13.

(b) Privilege Mitigating Circumstance -- they are all

scattered all over the RPC,
especially in Book II. You cannot find them, you have to
identify them one by one.
Q: Distinguish one from the other.
A:
ORDINARY PRIVILEGED
If there is an ordinary mitigating If the mitigating circumstance is
circumstance, the penalty is privileged, it is better because,
fixed within the minimum period according to the law, the penalty
within the same penalty. The should be lowered by one or two
presence of an ordinary degrees. Now, if penalty is
mitigating circumstance will call punishable by prision correcional,
for the imposition of the penalty the privilege mitigating
within the minimum period of circumstance will even lower the
that particular penalty. penalty not only to the minimum
of prision correctional, but to the
penalty next lower in degree,
which under the scheme of
penalties is arresto mayor..
An ordinary mitigating A privilege mitigating circumstance
circumstance is offset by an cannot be cancelled or offset by an
aggravating circumstance. They aggravating circumstance.
eliminate each other.

Q: So, if there is privilege mitigating circumstance, you are entitled to

a penalty that is one degree lower. But will the aggravating
circumstance bring it back to one degree higher?
A: No, that cannot be done because a privilege mitigating
circumstance cannot be offset by an aggravating circumstance.

Chapter Four
CIRCUMSTANCE WHICH AGGRAVATE CRIMINAL LIABILITY

Q: How do we define the concept of aggravating circumstances?

A: They are circumstances which, if attending the commission of a
felony, would tend to increase the prescribed penalty to the
maximum period of the prescribed penalty.

Q: Why? What is the reason?

A: Because the offender has shown a greater perversity or moral
depravity as manifested by the following:

(i) by the time of the commission of the crime;

(ii) the place of the commission of the crime;
(ii) the ways and means employed or involved in the
commission of the crime;
(iii) the motive or motivation behind the crime; or
 (iv) because of the personal background of the offender and the
offended party.

You will notice that there are only 10 mitigating circumstances under
Article 13, there are 21 aggravating circumstance under Article 14.
More than double. It simply proves true the statement that there are
more ways to do evil that to do good, and the road to hell is wider
that the road to heaven.

ARTICLE 14. Aggravating circumstances - The following

are aggravating circumstances:
(1) That advantage be taken by the offender of his public
position

FIRST: This will not apply to private individuals. The offender here
must be a public officer.

SECOND: That not every public officer who commits the crime will
automatically be affected. The law says that he must take
advantage. If he did not take advantage of his public position, his
liability should not be aggravated.

US vs. TORRIDA
23 Phil. 189

Facts: The accused, shortly after entering upon his duties as

councilor of the town of Aparri, ordered that deaths of all large
animals must be reported to him as councilman. As a result of
this instruction, the owners of several such animals were induced
to pay the accused supposed fines on the belief that such were
required by a municipal ordinance. He spent the money paid to
and received by him as fines.
 Held: The fact that the accused was councilor at the time
placed him in a position to commit these crimes. If he were not
a councilor he could not have induced the injured parties to pay
there alleged fines. It was on account of his being councilor that
the parties believed that he had the right to collect fines and it
was for this reason that they made the payment. It is true that
he had no right to either impose or collect any fine whatsoever
and it is likewise true that a municipal councilor is not an official
designated by law to collect public fines, but these facts do not
destroy or disprove the important fact that the accused did by
taking advantage of his public position deceive and defraud the
injured parties out of the money they paid him.

ARTICLE 62, PARAGRAPH 1-a, RPC. When in the commission of

the crime, advantage was taken by the offender of his public
office, the penalty to be imposed shall be in its maximum
regardless of mitigating circumstances.

Article 14(1) talks of an ordinary aggravating circumstance which

can be offset also by a mitigating circumstance. But Article 62(1) is a
special aggravating circumstance which cannot be offset by a
mitigating circumstance because the latter says regardless of any
mitigating circumstance.

Q: Does this mean that Article 14 is now useless because of that

amendment?
A: To apply Article 62(1-a), it must be alleged in the complaint. If it is
not alleged in the complaint but is proved during the trial, apply
Article 14(1). If it was alleged in the complaint and proved during
trial, then you apply Article 62.
(2) That the crime be committed in contempt of or with
insult tot he public authorities.
 The best example of this is when the mayor is conducting an
official inspection, or when he is outside of his office, talking to the
people, or he is inaugurating something, and they you, the accused
commit a crime in his presence - meaning, his presence did not
prevent you from committing the crime , and you know he is there.
That would be an insult to him! Then the crime is considered
aggravated because of the place and time. But be sure that the
public officer or authority is not the victim, that he is just a spectator.
You commit a crime in his presence.

Q: Suppose I will commit a crime within the presence of the PNP

Superintendent. His presence did not prevent me from committing the
crime. Is this covered by paragraph 2?
A: No, paragraph 2 will not apply in the above case. The aggravating
circumstance does not apply to crimes committed within the presence
of constabulary soldiers or PNP men.

Q: Why?
A: Because in order to apply, the crime must be committed in
contempt of or with insult to the public authorities.

Q: What do you mean by " public authority" ?

A: Public authority refers to persons in authority, like mayors,
governors, etc. If you commit the crime in the presence of a PNP
Superintendent, that is not contemplated because he is not a person
in authority. He is an agent of a person in authority.

However, such doctrine was reversed in 1981.

PEOPLE vs. RODIL

109 SCRA 308
 Facts: The crime was committed in the presence of a
constabulary captain, who is considered as an agent of a person
in authority.

Issue: whether or not paragraph 2 applies.

Held: The term "public authorities" are not confined to persons

in authorities because if the intention of the law was to confine
paragraph 2 to persons in authority, then the law should have
been specific. The law should have been worded as: the crime
be committed in contempt of or with insult to PERSONS IN
AUTHORITY , but he law didi not use " person in authority" but
instead the term " public authorities". " Public authorities" is
broader, it includes agents of persons in authority.

(3) That the act be committed with insult or is in disregard

of the respect due to the offended party on account of his
rank, age or sex, or that it be committed in the dwelling of
the offended party, if the latter has not given provocation.

An analysis of this paragraph would show that there are four

circumstances there. That the crime be committed in disregard of
respect due to the offended party on account of his:

(i) Rank;
(ii) Age;
(iii) Sex; or
(iv) That the crime be committed in the dwelling of the offended
party, if the latter has not given provocation.

Q: Suppose the four are present in one case, would you say that
there are four separate aggravating circumstances:
A: Numbers (I) and (iii) should be treated as one. But if it is also
committed in the dwelling of the offended party, then that should be
regarded as a separate aggravating circumstance. The basis for this
is that rank, age and sex have a common characteristic- they are part
of the personal background of the victim. You are perverse
considering the personal circumstances of the offended party, as
compared to yours.

But dwelling, on the other hand, is based not on personal

qualification, but on place.

Rank:
It means that there is a difference in social standing between you
( the offender) and the victim. Social standing could mean many
things. The best example is in the military. If a private assaults a
captain, then the crime should be aggravated. In an office, if the
rank-and-file employee assaults the manager of the company, that
should be considered as an aggravating circumstance.

Or in a community, if a well-known civic leader, a well-known

person in the community whose stature is high, is assaulted by
somebody in the community who is not so well-known, or by an
"istambay", that is aggravated.

Age:
The law does not contemplate that the offender is simply
younger than the victim. What the law refers to is somebody, whose
difference in age (with respect to the victim) should be one or such
that one qualifies to be the parent of the other. The age difference
should be substantially farther. The wider is the gap between the
offended and the offender, the circumstance, becomes clearer.
 For example, the age gap is 20 years. This can now apply. The
older the victim, the better. You are 20 years old, then you assault
somebody who is 70 years old, who is old enough to be your
grandfather. Then that becomes aggravating.

Q: Suppose, it's the other way around. Suppose a 70-year old man
physically assaulted a 20-year old, will the aggravating circumstance
apply?
A: Yes, because the law does not distinguish who is older and who
should be younger.

People vs. Padilla

301 SCRA 265

HELD: Although the disregard of the respect due to the victim by

reason of his/her age can be taken into account when the victim
is of old age as well as of tender age, the same act can be
considered only in cases of crimes against person and honor.

Here, age gap goes both ways. According to Dean, it applies one way
only. Why? The law says, “in disregard of the respect…” In our
culture, it is the younger who should respect the older ones.

Sex:
The offender and the offended should belong to the opposite
sexes. Now, this is one way. The offender here is male: the
offended party is female. It cannot be the other way around. It is
absurd that if a woman will maul a man, then the man will accuse the
woman of physical injuries with the aggravating circumstance of
disregard for his sex. In other words, there is something wrong
there.

However, this will not apply if the difference is INHERENT in the

crime, like rape or seduction. By nature, the offender is male and the
offended party is female. So, you don not say that a man is guilty of
raping a woman with the aggravating circumstance of disregard of
respect due to the victim because of her sex. But you are not to rape
except a woman!

Also, when a crime is committed with passion or obfuscation, this

paragraph is automatically out. Because you cannot deliberately
disregard respect to the victim when you are already acting with
passion or obfuscation, because the two are inconsistent positions.

Mari vs. CA
332 SCRA 475
The mere fact that the victim is a woman does not in itself make it an
aggravating circumstance.

There must be deliberate disregard of her womanhood.

Dwelling:

Q: What was the reason behind this?

A: A man's home is supposed to be his castle. One who goes to his
house to commit a crime against him is more perverse than
somebody who offends him somewhere else. If the offender waits for
you to go out of your house before he commits a crime, at least he
know to respect the rules of man. It is worse when somebody goes
to your house, then goes to your bedroom and attacks you inside.
This guy is more perverse. And the perversity is shown by the place
of the commission of the crime.

Q: What is meant by "dwelling"?

A: It is supposed to be a structure used for rest or comfort. Dwelling
includes the dependencies of the house, the staircase and the
enclosure under the house. That's the concept. It includes even the
garage beside the house where you clean your car.

"Dependencies" of one includes the jamb of the house. The

staircases part of the dwelling.

Q: Is it necessary for the offender to go inside the house to commit

a crime?
A: No. In the case of People vs. Ambo, where the accused shot the
victim from the street- meaning he shot him through the window and
killed the occupant inside the house - the Supreme court applied the
aggravating circumstance of dwelling.

Also, it is NOT necessary that the crime is finally consummated

inside the house of the victim. Like what happened in one where the
offender went to the house of the victim to kill him. In this case, is
dwelling aggravating? Yes, because the initial attack started in the
residence of the victim. " Dwelling" in Spanish is known as the
aggravating circumstance of morada.

Q: When is dwelling not aggravating? When does dwelling not apply

as an aggravating circumstance?
A: There are several:

1.) It is not aggravating if the offended part has given provocation.

Meaning, your house is your castle. People are expected to

respect that. They should no go there to commit a crime against you.
But you should not use this castle as a fortress to abuse others.

For example, you are in your house. Everyone, who passes by,
you insult. In other words, you taunt them. One of them go pissed.
He went inside your house and attacked you.
Question: Is dwelling aggravating? Answer: No, you gave provocation.
In this sense, you have waived the sanctity of your own dwelling by
doing that.

2.) Dwelling is not aggravating if it is an integral part or inherent in

the crime.

Example: Trespass to Dwelling. In the crime of trespass to

dwelling, dwelling is not aggravating anymore; it is already part of the
crime. Or robbery of an inhabited house. That is a crime necessarily
committed in your house, and such is no longer aggravating.

3.) Dwelling is not aggravating if both the offender and the offended
party live in the same house.

You cannot complain that the sanctity of your house is violated.

The offender would just retort that the house is also his. Both of you
have the right ot live in the house. However, this exception does not
apply in a boarding house, where the offender and the offended party
are both boarders.

If, for example, in a boarding house, a boarder enters your room,

an exclusive room, and commits crime against you. There, he
assaults you. It should be aggravated by dwelling, although both of
the offender and the victim are living in the same house on the theory
that, while it is true that you share the same dining room, the same
sala , the room of one boarder is exclusively his.
 The decided case is a case on trespass t dwelling wherein a
boarder forcibly entered the room of another boarder. The Supreme
Court said: there is trespass to dwelling because the offender had no
right to enter the room of the victim.

Q: Suppose the person who is the victim is staying in that house

temporarily. He does not own it. He is just a house guest and he
commits a crime there while he is a guest. Is this aggravating?
A: Yes. Dwelling is aggravating even if the stay of the victim in the
house is as a transient, it is only temporary. This is already considered
covered by paragraph 3.

(4) That the act be committed with abuse of confidence or

obvious ungratefulness.

There are situations here. That the act is committed with:

(a) abuse of confidence; and

(b) obvious ungratefulness

Abuse Of Confidence

One of the ways of aggravating a crime is through the ways and

means employed in its commission.

This will not apply again if the abuse of confidence is already a

part of the elements of the crime. A good example is estafa through
abuse of confidence. When you misappropriate goods entrusted to
you, that is estafa. That is not aggravating because that type of
estafa is coupled with abuse of confidence. That is already
considered a part of the crime.

Or, qualified theft by an employee who committed it with abuse

of confidence. No more. The abuse of confidence there is already an
integral part of the crime, so it is no longer considered aggravating.

This was applied in the case where a " yaya" killed the child
entrusted to her care and custody. So, the killing of the child was
considered as aggravated by abuse of confidence on the part of the
offender.

With Obvious Ungratefulness

For example, you take somebody to your house. You pity him
because he is homeless. He has no place to go; he is starving. And
you are a good Samaritan. You know the Bible, you put clothing on
his back, you feed the hungry, etc… because whatever you have done
to the least of My brethren you have done unto Me. So, you believe in
that too. You took pity on him . When you wake up one morning,
your appliances are gone. What kind of man is that! No "utang na
loob"! that is the essence of obvious ungratefulness. He repays your
kindness with a crime. That is what makes the crime aggravated.

(4) 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.

What makes the crime aggravated is the place where it was

committed. There are actually four separate circumstances here:

(i) that it is committed in the place of the Chief Executive ---

 Malacanang Palace. Now, the Chief Executive need not be
there. What is important is the place.
(ii) In the presence of the Chief Executive . This is wherever he
may be, for as long as the crime is committed in his
presence.
(iii) Where public authorities are engaged in the discharge of
their duties. A good example is when a crime is committed
in front of a judge while he is presiding in the courtroom. Of
if the crime is committed in the presence of the city mayor
while he is discharging his duties at the mayor's office. Now,
suppose the crime is committed inside the courtroom, or
inside the mayor's office when he is already gone. Meaning
after the court session has ended or after office hours. It is
not aggravating. The law requires that it be committed in
his presence.
(iv) That the crime be committed in a place dedicated to
religious worship. Now, suppose there is no religious
worship. That is immaterial. What is important is that it is
committed in a place dedicated to worship. There need not
be a religious ceremony going on at that time. So, the
church, the mosques --- or any other place where people
pray that is considered a holy place. This is because of all
places where you could commit it, why commit it in that
place? He could commit the crime anywhere else. Why
choose to commit it -- of all places-- in a place dedicated to
religious worship.
Q: How do you compare (iii) with paragraph 2 -- that the crime be
committed in contempt of pr wit insult to the public authorities?
A: The distinction is: If the public authority is in the discharge of his
duties inside his office and you commit a crime in his presence, you
fall under paragraph 5. If he is engaged in the discharge of his duties
outside his office and you committed a crime in his presence, you are
covered by paragraph 2. That is the difference.
 Moreover, in paragraph 2, a public authority, like a mayor, should
not be the victim of the crime. It was simply committed in his
presence. In paragraph 5, he may or may not be the victim of the
crime. If you committed a crime in his presence inside his office, you
are covered. If you assault the mayor inside his office, while he is
engaged in the discharge of his duties, you are covered by paragraph
5.
(5) 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.
There are three circumstances here:
(i) committed in the night time;
(ii) committed in an uninhabited place; or
(iii) committed by a band

Q: What happens if the felony is committed at nighttime, in an

uninhabited place and committed by a band? So, all the three
present, how many aggravating circumstance are there?
A: There seems to be a conflict here:

 The authors of many books cite the Supreme Court of Spain based
on the identical provisions of the Spanish Penal Code. In one
decision, the Spanish Supreme Court said that the three should be
treated only as one.
 But in another decision, the same Supreme Court said that there
should be three because they do not have any common
denominator. Night time is aggravating because of the time, an
uninhabited place because of the place, band because of the ways
and means employed. So, one who commits a crime when all three
are present is more perverse than one who committed it only with
 one of them present.
Nocturnidad

Q: What do you mean by nighttime?

A: Well, we have in the Civil Code, for instance, sunset to sunrise.
So, if the crime is committed during daytime, it will not be
aggravating. In the first place, does daytime facilitates the
commission of the crime? On the contrary, in the dark, the possibility
of detection, the possibility of being recognized is low.
However, not every crime committed at nighttime becomes
aggravating. There are two tests to determine whether or not the
crime is aggravating. The objective test and the subjective test. In
order that nighttime may be considered as aggravating, at least one
test should apply.

Q: What is the subjective test?

A: Subjective test: whether or not nighttime is purposely sought by
the offender in order to successfully commit the crime with impunity.

Q: What is the objective test?

A: Objective test: even if nighttime is not especially sought for, it
facilitated the commission of the crime.

PROBLEM: Suppose a crime is committed by the accused against you

inside a movie house? You go to a movie house during daytime --
when you have just entered, chances are, you cannot see anything
because your eyes have not yet adjusted to the darkness. But after a
few minutes, after you have adjusted to the dark, you can now see.
So , at that very moment, the accused assaulted you. Obviously, the
darkness of the movie house has facilitated the commission of the
crime. QUESTION: Is that aggravating? ANSWER: No. Even if it will
pass the test, still it is not nighttime. Nighttime speaks of sunset to
sunrise. If you enter the movie house at 12:00 noon, it cannot be
nighttime, no matter how you look at it. You cannot say that if you
are inside the movie house, it is nighttime. That when you go
outside, it is daytime, and when you enter again, it is nighttime again.

Despoblado

Uninhabited place is also know as the aggravating circumstance

of SOLITUDE.

Q: When is a place uninhabited?

A: Where there are no houses around; the place is of considerable
distance from the town proper. Or even if there are some houses,
they are so far from each other that you cannot reach or seek help
from your nearest neighbor. The test is on whether or not there is a
possibility of calling for help.

Q: There was a case in which the crime was committed in the middle
of the forest. Because the offender found it best to commit the crime
in a place where no one could help. But accidentally, there were
hunters who were around at that time. Was the crime aggravated by
despoblado?
A: Yes. It is not sufficient that at that very moment, there were many
people around. That is not the test. The test is by its very nature. Are
there people there? Meaning, by accident, it turns out that there were
people.

In the same manner that even if nobody helps you, if the place in
NOT an uninhabited place, it will not also be aggravating.

Q: A person was attacked at night in the middle of the subdivision.

He was shouting for help, but nobody came out to help him. Does
the aggravating circumstance of solitude apply?
A: No, because he was attacked in the middle of the subdivision.
Q: But nobody helped him; nobody came out….
A: That is not the test. The test is the very nature of the place, not
the accidental fact that nobody went to his rescue.

Q: The victim was killed in the middle of Manila Bay. He was there
fishing. So, the offender followed him in a motorboat and killed him.
What are the aggravating circumstances present?
A: There is one - uninhabited place. Nobody lives in the middle of
Manila Bay.

Quadrilla

The law gives us the definition of a band: wherever 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.

Take note that the law says MORE THAN THREE, so there are at
least four.
Q: Suppose 100 people attacked you. Three of them are armed, the
97 are unarmed. Is the crime aggravated?
A: NO, because the law says that more than three armed men.
Hence more than three should have been armed.

Q: Suppose 100 people attacked you. Three of them are armed, the
97 are unarmed. Is band an aggravating applicable?
A: Still the answer is NO, because the law says " more than three
armed men".

Q: These four or more offenders are armed with what?

A: The law says " armed". Suppose one has a bolo, one has a gun,
and the other one has a club. Then, if effect they are armed because
it is not necessary that they are armed with firearms or guns.
 PEOPLE vs. MANLOLO
169 SCRA 394

Facts: Somebody, when he was going home, was attacked by a group

of istambays. They hit him and then they get stones and threw
stones and rocks at him. They were about 4 or 5. This happened in
Pasay City.

Issue: Whether or not a crime was committed by a band.

Held: Exactly, the offenders, who were many, attacked the man by
throwing stones at him. There was an intention to cause death when
the accused threw stones at the victim - thus, including stones under
the term " armed", under the phrase " more than 3 armed
malefactors acted together'> So, there is an aggravating circumstance
of band.

(6) That the crime be committed on the occasion of a

conflagration, shipwreck, earthquake, epidemic or other
calamity or misfortune.

Take note that on occasion like these, people should help one
another. But in your case, you took advantage of the confusion to
commit the crime. The best example is during a fire or conflagration.
People go out there not to help but to steal. Looters. That is
precisely what is contemplated in this aggravating circumstance. As
a matter of fact, based on the amendment of Article 310 of the RPC
(qualified theft by a special law), when the crime of theft is
committed during a fire, the crime is no longer simple theft but is
considered as qualified theft, raising it to the category of a higher
offense.
 However, if it is not properly alleged in the information, the crime
is simple theft, aggravated by paragraph 7. But if it is properly
alleged, paragraph 7 is converted from an ordinary aggravating to a
qualifying circumstance.

Q: What is an example of other calamity or misfortune?

A: Based on statutory construction, it should be of the same
magnitude as a conflagration , shipwreck, earthquake or epidemic.

A good example is the Mt. Mayon eruption. While people are

fleeing for their lives, you are committing a crime during the height of
a volcanic eruption or during the height of a typhoon.

There was a case before decided by the former CFI of Davao

City where a motor launch runs out somewhere between Davao and
Davao del Sur. Some of the passengers decided to rob their fellow
passengers and escaped. They left the motor launch after robbing
their co-passengers and killing some of the passengers. They were
convicted here in Davao and the judge here said that the crime was
aggravated by paragraph 7 because it was committed on the occasion
of misfortune. What misfortune? That the motor launch was left just
floating out there in the sea?

When the case reached the Supreme Court, the court rejected
the application of the aggravating circumstance because the
misfortune contemplated by the law is not that which will affect only a
small number of people in the motor launch. It should be big in
magnitude. When we say shipwreck, earthquake, it involves a lot of
people in a water area rather than the people who were stuck in the
motor launch.

(8) That the crime be committed with the aid of armed men
or persons who insure or afford impunity.
Q: How do you distinguish this from a crime committed by a band?
A: In here, there are also some armed men. In band, there should be
four or more armed men.

Q: Suppose there are only two or three men?

A: Then it falls under paragraph 8, when the crime is committed with
the aid of armed men.

Moreover, to constitute a band, the four armed men should act

together in the commission of the felony. Meaning, their participation
was direct and they should have acted together. But here, it is not
necessary that the armed men acted directly in the commission of the
felony. It is enough that the crime be committed with the aid of
armed men. Meaning, that they acted indirectly is sufficient.

Like for example, one commits the crime and then he relies on
the armed men behind him to help if necessary. So, meaning, you
are emboldened to commit a crime because you have a " back-up".
But they did not act directly. They are accomplices. In this case, the
liability of the principal is aggravated by paragraph 8.

PEOPLE vs. BUELA

227 SCRA 534

Issue: Is the aid of armed men aggravating if the three persons

were all armed under the same plan and with the same purpose?

Held: When the crime is committed by three persons who were

all armed, the aggravating circumstance of the crime having been
committed with the air of armed men under Article 14(8) of the
RPC cannot be appreciated in this case because if they acted with
the same plan and with the same purpose -- meaning, in order
 for it to be aggravated in the situation, their participation should
be indirect rather than direct.

Q: What happens if the crime is committed by a band when 4 or 5

persons acted together? What happens to paragraph 8?
A: That is already absorbed by a band.

(9) That the accused is a recidivist.

A recidivist is one who, at the time of his trial for one crime,
shall have been previously convicted by final judgment of
another crime embraced in the same title of this Code.
(10) That the offender has been previously punished for an
offense to which the law attaches an equal or greater
penalty or for two or more crimes to which it attaches a
lighter penalty

Q: What are the four types of criminal repetition in the Penal Code? _
meaning , the offender is not committing the crime for the first time.
A: In the RPC, there are four types of criminal repetition:

(i) recidivism
(ii) habituality or (reiteration),
(iii) habitual delinquency (multi-recidivism)
(iv) quasi-recidivism

Recidivism and habitually are ordinary aggravating circumstances

which are found in Article 14. The third one, habitual delinquency, is
what is called extraordinary aggravating circumstances. And the last
one, quasi-recidivism, is a special aggravating circumstance.

REINDINCIA
Q: Who is a recidivist?
A: A recidivist is a person, who, while on trial for one offense, has
been previously convicted by final judgment of another crime
embraced within the same title of the Penal Code. So obviously, he is
at least a second offender, and he must be found guilty for the second
offense.

He has a previous criminal record; he has a previous conviction

for another felony. So, the previous conviction is not of a special law,
but for the same felony. And what is important is that the felony
which he previously committed, for which he was convicted, and the
present felony for which he is now found guilty , are embraced within
the same title of the Revised Penal Code.

So, if the two felonies are not embraced in the same title of the
Code, there is no recidivism. The best example is, you were
convicted before for physical injuries, and you are found guilty of
homicide. Physical injuries and homicide are both Crimes against
Persons . Or you were convicted before of the crime of theft, and you
are found guilty of robbery or estafa - which fall under Crimes Against
Property.

Q: Suppose a person was convicted before for the crime of homicide,

and the case is not now on appeal with the Court of Appeals. And
now, he is found guilty of the crime of physical injuries, a Crime
Against Person. Can his liability of physical injuries be aggravated by
recidivism?
A: Yes. The law does not require service of sentence. The law just
states x x x has been previously convicted by final judgment.
Meaning, even if he was pardoned, the pardon may erase the penalty,
but it will not erase the fact of conviction. The important thing is the
conviction, not the service of sentence.
REITERACION

Take note that in paragraph 10, habituality need not embrace

similarity of the previous offense and present offense. Should not be,
because if they are embraced in the same title, then it becomes
recidivism.

For example, a person commits or was convicted before and

punished for a Crime Against Property for which he was sentenced to
the penalty of reclusion temporal. Now, he is found guilty of a Crime
Against Person. So, it is not embraced in the same title of the Penal
Code for which he is sentenced by the trial court prision mayor.
Reiteracion applies because he has been previously punished for
another offense for which the law attaches a higher penalty.

Q: Suppose the penalty for the first felony is prision mayor, and the
penalty for the new felony is also prision mayor?
A: Then reiteracion applies because the law says he has been
punished for a crime to which the law attaches an equal penalty.
Either higher or same.

PROBLEM: Suppose a man, several years ago, was found guilty of

slight physical injuries -- a light felony and he was sentenced to one
day of arresto menor. And then after a year, he was found guilty of
slight oral defamation. He was sentenced a penalty of one day
imprisonment of arresto menor. And now, he is found guilty of rape,
and he is punished with the penalty of reclusion perpetua. If you look
at his record, no two crimes are embraced in the same title of the
Penal Code. The first one is slight physical injuries ( Crimes Against
Persons); slander (Crimes Against Honor), and Rape ( Crimes against
Chastity). So, he is not a recidivist.
QUESTION: The first offense is a light felony; the second offense is
also a light felony. As a matter of fact, he was only sentenced to one
day of arresto mayor. This time the felony (rape) is punishable with
reclusion perpetua. Is there reiteracion?
ANSWER: Yes, because he has been previously punished for two
offense to which the law attaches a lesser penalty.

PROBLEM: Suppose a person was found guilty of the crime of

homicide and was sentenced to a penalty of reclusion temporal, but
was pardoned by the President. So, he did not serve any single day
in jail. Later on, he was found guilty of robbery, another felony? And
the penalty for homicide before was higher.
QUESTION: Is there reiteracion? ANSWER: NO. What is important in
reiteracion is he was previously punished, not convicted.

In recidivism, all that the law requires is a PREVIOUS FINAL

JUDGMENT of conviction. In reiteracion, the law requires that he has
PREVIOUSLY BEEN PUNISHED, not merely convicted.

(11) That the crime be committed in consideration of a

price, reward or promise.

What makes the crime aggravating is the motivating power. The

best example would be the hired assassin. You hire somebody to kill
for you. That guy has no grudge against the victim; he does not even
know the victim. But because he is willing to commit a felony - that
shows perversity on the part of the offender. Hired guns, hired killers,
guns for hire, mercenaries are best examples. The crime was
committed in consideration of price, reward or promise.

What is contemplated by the law here is that there was a previous

proposal and a previous conspiracy. Because, how can you hire
somebody if he will not agree if there is no agreement? So, they did
not stop the conspiracy. In other words, the crime was fully executed
by one. We call the one that hired him as principal by inducement,
and the one that commits the crime is called principal by direct
participation under Article 17 of the RPC.

Q: If I hire someone to kill my enemy, whose liability under paragraph

11 will be aggravated? The liability of the killer only, or should price,
reward or promise be aggravating for both of us?
A: IT is not only the one who receives the price, but it also includes
the giver.
Now, in the book of Reyes, he cited some old decisions which
appear to be conflicting. The case of People vs. Parro (36 Phil. 923)
and US vs. Maharaja (38 Phil.1), where the Supreme Court said that
the aggravating circumstance applies both to the one giving the price
or reward AND the person who receives the price or reward. But in
another case also cited in his book, the case of People vs. Talledo (85
Phil.539), the implication was that it is only aggravating for the
person who receives the reward or price. It will not affect the giver
because the law says xxx that the crime be committed in
consideration x x. And the implication is that "committed" refers to
the one committing it. Meaning, the principal by direct participation,
not the mastermind.

However, the case of Talledo, has been misinterpreted because

the Supreme Court has already corrected that in 1971. Whatever
statements that appear in the book of Reyes about the

doubt, there is no more doubt as that has been settled. Paragraph 11

is already settled as applied to both the participants and the inducer.

PEOPLE vs. ALINCASTRE

40 SCRA 391
 The price, reward or promise is aggravating for both not only
the receiver but also the giver. If a person is considered as morally
depraved for committing a felony in exchange of a material reward,
then the person who gave the offer to commit the crime in
exchange for a reward is also a depraved person.

The general rule about aggravating circumstances is that even if an

aggravating circumstance is not alleged in the complaint or
information, but proven during the trial, it should be appreciated. It is
not necessary to allege it. The important thing is that it was
established during the trial.

However, the rule does not seem to apply to recidivism because,

based on some decisions of the Supreme Court, recidivism should be
alleged in the information. To appreciate recidivism, it is necessary to
allege it in the information. Absence of this allegation bars the trial
court from allowing of evidence regarding the matter. So, it should be
properly alleged.

(12) That the crime be committed by means of inundation,

fire, poison, explosion, stranding of a vessel or
intentional damage thereto, derailment of a locomotive,
or by the use of any other artifice involving great waste
and ruin.

Now, what qualifies it as aggravating is the manner, the ways and

means of the crime. Do not confuse this with paragraph 7. In
paragraph 7, the crime was committed on the occasion of a
conflagration, or fire, etc. so, the timing x x x ON THE OCCASION x
x x. Here , the crime was committed BY USE OF x x x. However, this
would not apply if the use of fire is included in the definition of the
crime. Like arson, since the means used is fire, fire can no longer be
aggravating, being already considered as part of the elements of the
crime.
Another example would be that the crime was committed by
means of poison. When you kill somebody by poisoning him under
Article 248, the crime is murder. That is one of the qualifying
circumstance of murder. If properly alleged in the information, in
which case, the use of poison is no loner aggravating. It is already
part of the elements of the crime.

However, if a person is charged only with homicide, and in the

course of the trial, it was established that he killed the victim by
poisoning him What crime did he commit? Is it still homicide under
the Rules of Criminal Procedure because you cannot convict a person
for an offense higher than the one being charged. So, the crime is
homicide, aggravated by the fact that he committed it by means of
poison. But if it is alleged in the information, it is called murder,
qualified by the use of poison under Article 248, not under Article 14.

Q: Suppose the husband killed his wife by poisoning her. The use of
poison was alleged in the information. Is the use of poison
aggravating under paragraph 12?
A: Yes, because if the husband kills the wife, the crime is not murder,
but PARRICIDE. And the qualifying circumstance in parricide is not
poison, but relationship. So, since the qualifying circumstance is
relationship, the use of poison becomes an aggravating circumstance
under Article 14(12). So, that's how you apply the circumstances in
relation to Book II.

(13) That the act be committed with evident

premeditation.
 In Spanish, it is called premeditacion. Now, this is the exact
opposite of the mitigating circumstances that the crime was
committed with passion or obfuscation. In passion or obfuscation,
the offender did not have sufficient time to reflect the commission of
the crime, so it was more of emotion than reason. It is the other way
around here. He has all the time to reflect; he has all the time to
reconsider, but still he proceeded. Despite the careful deliberation,
thinking, still proceeded to commit the crime.

This is one of the hardest aggravating circumstance to prove

because it is not enough that you prove that the accused committed
the crime, you must also prove that the accused already planned or
was determined to commit the crime, even before the date it was
actually committed. You must have a previous history of the party.

And the last requisite is a matter of computation. There must be

sufficient time between the determination to commit the crime and
the day the crime was committed to show that he has the time t
reflect. Now, what is sufficient time is relative. Suppose, he planned
to commit the crime one or two days before it can be, How about 15
minutes? The number of hours is sufficient. The longer the time gap,
the better, the application- of this circumstance becomes clearer.
The loner the time he has to reflect, the premeditation becomes more
evident.

Evident premeditation WILL NOT APPLY in error in personam.

PROBLEM: A planned to kill X and he has planned to kill X for so long.

He planned and he made preparations to kill X. One day, he started
to implement it. He killed X but it turned out to be Y. He did not kill
X because of error in personam. Of course, based on Article 4, he will
not be prosecuted for the death of X because he did not kill X. He
will now be prosecuted for the death of Y and it was established that
he has been planning to kill X for so long.
QUESTION: is the killing of Y aggravated by evident premeditation?
ANSWER: No, there is none because he did not premeditate the
death of Y. The evidence would show that he premeditated the death
of X. So, Y was not a part of that premeditation.

However, that should not be confused with the ruling that it is not
necessary to premeditate for a specific victim. So, for example,
where the accused planned to be amok. He will kill every person he
meets. Is my liability aggravated by evident premeditation? Yes. But I
did not ponder. You did not ponder, but there is no error in personam.
Why? Because when I premeditate, I will kill the people I will meet.
Whoever I meet is part of my premeditation. There is no error. That
is the phrase to whom that may concern. Therefore, it is a meditated
act.

(14) That craft, fraud or disguise be employed.

Now, actually, craft and fraud are identical. There is an

employment of tricks. The offender resorted to tricks to commit the
crime. The only difference is the manner the trickery was committed.
If the trickery is more of scheme or action, rather than the use of
words - intellectual the use of words - intellectual f craft. Whereas,
fraud refers more to the trickery or to the use of words by the
offender. Insidious machination by the offender.

For example, somebody rides a taxi, tells the driver to bring him to
this place, and then when they reach that place, the passenger now
announces a hold-up and divests the driver of his income at that time,
or even kills the driver. The robbery there is definitely aggravated by
the use of craft. And what is the trick? The offender who is actually a
robber pretended to be a paying passenger. He tricked the driver to
bring him to a designated spot. If the driver knows your intention, he
will not get you as a passenger. Why will he allow himself to be
robbed or even killed? Just for that distinction, craft and fraud are
almost identical. There is the use of trick or scheme by the offender.

PEOPLE vs. EMPACIS

222 SCRA 59

The stratagem and ruses that constitute craft of fraud are the
following:
♦ Where are accused pretended to be
constabulary soldiers and by that ploy, gained entry into
the residence of their prey, to rob them thereafter.
♦ They pretended to be needful or medical
treatment, and due to this, they were able to enter the
house of the victim and there robbed and killed him;
♦ When they pretended to be customers wanting
to buy a bottle of wine;
♦ When they pretended to be customers wanting
to buy a bottle of wine;
♦ When they pretended to be the co-passengers
of the victim in a public utility vehicle;
♦ They posed as customers to buy cigarettes, or
as being thirsty asking to drink a glass of water,etc.

In all those instances, the crime was aggravated with craft and fraud.
DISGUISE

When the offender tries to conceal his identity.

PEOPLE vs. SONSONA

 Facts: The offender covered his face with a handkerchief in
order to prevent his being identified. But despite that, the
victim recognized him.

Held: Disguise is not aggravating because he was not

successful. Actually, he was still recognized even if he
disguised.

PEOPLE vs. CABATO

160 SCRA 98

Facts: The accused disguised himself by covering his face

and the disguise fell down, or the cover of his face
accidentally fell down. Therefore, he was recognized.

Held: The disguise is aggravating.

Q: What makes this case different?

A: In the Solsona case, nothing fell down. The cover is still intact, but
just the same, he was not successful. In Cabato case, the disguise
could have been successful, only that it fell down. Meaning, had it
not fell down, the disguise would have been successful. So, the
Supreme Court considered the circumstance still as applicable.

(15) That advantage be taken of superior strength, or

means be employed to weaken the defense.

This generally applies to Crimes Against Persons. Now, in order

for the aggravating circumstance of superior strength to apply, there
must be evidence that the offender is of superior strength than the
other. It cannot be presumed. It has to be clearly established. And
when we say " superior strength", shall it mean to say you have more
assets than that of the other?

Like for example, when two or more people committed the crime,
superiority in number would definitely give the offender superior
strength. OR when one is armed with the weapon and the other is
not armed with a weapon, then superior strength is really apparent.
And not only that. He clearly took advantage of it because if the
crime is the product of anger or emotion, then we cannot say that he
deliberately took advantage. There is no showing that the offender
really relied on superior strength.

That means be employed to weaken the defense

The other one is a little bit different. Maybe, the parties are of
equal strength, no one is superior than the other. But the accused
saw to it that the victim will be at the disadvantage. So, if you are
now in a disadvantage, in effect, my strength becomes superior.

It has been applied to cases:

♦ Where the accused threw sand into the eyes of the

victim. If your eyes are filled with sand, you cannot see. You
have to close your eyes. So how can you defend yourself?
♦ Where the offender deliberately intoxicated his victim
and the victim was already drunk he could hardly stand. That
is the time he is assaulted.

(16) That he act be committed with treachery (alevosia).

There is treachery when the offender commits any of the
crimes against persons, 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.

In Spanish, this is aggravating circumstance of ALEVOSIA. Now,

treachery is defined as when the offender commits any of the crimes
against persons, 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. Based on the definition, treachery
applies only in Crimes Against Persons, like killing somebody, or
physical injuries. There is no such thing as treachery in Crimes
Against Property.

The requisites:

(i) that the crime should be a Crime Against Persons;

(ii) what makes the basis for aggravation is the ways and
means employed.

The law does not say the crime was successfully committed. NO.
The mere fact that you mad it to ensure even if you were not
successful, the treachery is already applicable. So, it is not the result
which matters but the manner.

Otherwise, for example, I want to kill somebody. And I want to

kill him by attacking him from behind so that he cannot defend
himself. But still, he survived. The killing was not successful. It was
not accomplished. But the mere fact that I attacked from behind,
treachery is aggravating.

So, it is not the effect but more on the manner, otherwise, if we

say that everything must be successful, then there is no more crime
of frustrated murder or attempted. Treachery will only apply every
time there is a consummation of the offense. So, there is treachery
even if it is only frustrated or attempted.

First Requisite: When the victim was attacked at the very

moment he was not in the position to defend himself.

That is why generally, when there is an attack from behind, there

is treachery. Generally, when the attack is frontal, there is no
treachery. Because when the attack is frontal, the accused is given
sufficient warning.

Second Requisite: The manner for the attack was sufficiently

planned beforehand.

It is not enough that the attack was from behind and therefore
the victim was not in the position to defend himself. It must be
established that the mode of attack was conclusively adopted
beforehand to make it aggravating.

PEOPLE vs. CAÑETE

44 Phil. 478

Facts: The accused assaulted the deceased with a knife and in

the course of the fight which ensued, inflicted a serious cut on
his thigh. Upon receiving the wound, the deceased turned
around and fled, and was immediately pursued by the accused.
After going a short distance, the deceased fell to the ground face
downwards; and before he could recover his equipoise and
resume his fight, the accused ran up and delivered a fatal thrust
with his knife in the back of the deceased.

Issue: Whether treachery would apply in that case.

 Held: No, there is none. The first element is there. When he
was stabbed from behind in that position, he could not defend
himself. But the mode of attack was not previously adopted. In
other words, when they attacked each other frontally - the
accused could not have conceived that in the course of the fight,
the other one will run away, and then would fall down. He never
knew how it would end. So, the second element is missing.

Q: Is treachery applicable in crimes committed through error in

personam?

A: Yes, because treachery refers to the mode of attack, and the victim
has no chance to defend himself. Whether you attack the right victim
or by mistake, you attack the wrong victim - the effect is the same.
The victim did not have the chance to defend himself, that is why it
will prejudice him. Whether it is the right victim or a wrong victim,
one thing is clear: the wrong victim did not have the chance to
defend himself. So, treachery will apply even in error in personam.

(17) That means is employed or circumstances brought

about which add ignominy to the natural effect of the act.

Ignominia is a circumstance pertaining to the moral order which

adds disgrace to the natural effects of the crime. Another way of
saying it, you are adding insult to injury. The commission of the
crime was not only criminal, the manner of its commission has made
it disgraceful. It was applied in a case where the offenders, before
killing the victim, compelled the victim to kiss the toes of their feet.

It was applied to a case where a married woman was raped by the

accused in the presence of her husband. So, the crime was
aggravated by ignominy. What is aggravating was the manner the
crime was committed.

Mind you, under RA 7659, if rape is consummated, for example, in

the presence of the husband, that is not only considered now, if
properly alleged in the information, as an aggravating circumstance
under Article 14. It is treated as a qualifying circumstance which calls
for the imposition of the supreme penalty of death.

(18) That the crime be committed after an unlawful

entry. There is an unlawful entry when an entrance is
effected by a way not intended for the purpose.

PROBLEM: I wan to kill you inside your house. And I entered your
house through the window. Then I killed you inside your house.
QUESTION: What are aggravating circumstances?
ANSWER: There are two:
1. dwelling; and
2. unlawful entry

Q: Now, suppose I enter your house through the door, commit a

crime against you and then jump out to the window. Is there an
aggravating circumstance?
A: There is none. The law talks of entry. It does not talk of exit. So,
the law is only concerned with the manner of entry, no the manner of
exit.

Take note, however, that the aggravating circumstance do not

apply when it is inherent or part of the commission of the crime. Like
for example, robbery. Robbery in an inhabited house. One of the
ways by which a robbery is committed is when you enter the building
through an opening not intended for entrance or entry.
 The Spanish term for this is ESCALAMIENTO.

(19) That as a means to the commission of the crime a

wall, roof, floor, door or window be
broken.

This is similar to the previous one. Only, in paragraph 18,

nothing is broken. Let's say you entered through the window. But
the windows are closed. You destroyed it, broke some panes, and
you entered. That is already aggravating! And not only the windows.
This applies also to doors or floors. To gain entrance to a building,
you destroyed something. There is the use of force. That is why,
some text writers called this as the aggravating circumstance of
FORCIBLE ENTRY. Unlawful entry aggravated by forcible entry.

But do not confuse this with the special civil action of forcible
entry, where you enter a piece of land. Here it is only an aggravating
circumstance.

(20) That the crime be committed with the aid of persons

under 15 years old or by means of a motor vehicle,
motorized watercraft, airships or other similar means.

♦ That the crime be committed with the aid of persons under 15

years old

PROBLEM: Now, some people ask minors to commit the crime - like
theft. They use minors to steal, or they ask them to enter a house
through a small opening. Then, you direct them to open the door so
that the rest will come in. QUESTION: Is the minor liable? ANSWER:
It depends. If the minor is 9 or below, he is exempt because he
might think it's just a game, just part of playing, If the minor is 9 to
15, he may or may not be liable, depending on whether or not there
is discernment. But even if there is discernment, the minors is liable
but his liability is mitigated.

But definitely, the adult person who is enlisting the minor's help is
aggravated because the use of minors to help the offender to commit
the crime is an aggravating circumstance through and through.

♦ by means of a motor vehicle, motorized watercraft, airships or

other similar means.

It has been applied, for example, when the offender abducted a

girl. Forcible abduction. Or when the offender kidnapped a person,
brought him to the car and somewhere. This is very common. You
can abduct a girl without the use of a motor vehicle. But chances
are, you will be caught. The best way to do it to succeed in the
kidnapping or the abduction of a victim is the use of a motor vehicle.

Q: Now, suppose the offender did not commit abduction or

kidnapping. Suppose, he committed robbery - with accomplices, they
rob a bank, and after robbing, they escape form the scene through
the use of a motor vehicle. Is that aggravating ? Is the crime of
robbery aggravated?
A: If you read the law, the language seems that the use of motor
vehicle is not aggravating in that crime. The law says x x x by
means of x x x . Robbery is committed by taking property. So, when
you run towards the motor vehicle, the robbery is finished. It is
already consummated. So, the vehicle is used, not as a means to
commit the crime of robbery, but as a means of escape from the
scene of the crime. The crime of robbery with the use of motor
vehicle will apply.
 The same thing applies to murder. You kill somebody, and then
you escaped from the scene of the crime through a motor vehicle.
The victim cannot say that the killing was accomplished by means of
a motor vehicle. No, you did not use the motor vehicle to kill him.
You use the vehicle to escape from the scene of the crime. But since
it would facilitate the escape of the offender, then there is no question
- it would not be applicable.

On the other hand, the Supreme Court refused to apply this to a

case of estafa. The accused swindled and he rode on a car. In other
words, how can a car be used as a means to swindle? Swindling is by
deceit or by the use of fraud, abuse of confidence, it will not apply.
Swindling is not committed by means of a motor vehicle.

Or other means similar to motor vehicle or motorized watercraft.

So, for example, I will abduct a girl – because in abduction, you have
to take her away – you have to take her somewhere else. So, if I
abduct the girl, and then I force her to ride a bicycle, that is not a
motorized vehicle.

21 That the wrong done in the commission of the crime

be deliberately augmented by causing other wrong not
necessary for its commission.

Briefly, it is called the aggravating circumstances of cruelty. In

Spanish, this is the aggravating circumstance of ENSAÑAMIENTO.

Q: Distinguish ensañamiento ( cruelty from unlawful entry.

A: Cruelty only applies to Crimes Against Persons. It cannot be
appreciated in other crimes. It applies only when the suffering of the
victim was augmented. Meaning, there was no necessity for the
result. You just prolonged his suffering.
Example:

♦ The victim was made to suffer unnecessary pain before he was

killed.
♦ Before killing the baby, the offender burned the baby little by little
with a cigarette.
♦ Where the offender, before killing the victim, pulled out his pointed
key and used it uto remove the eyes of the victim.

Q: How do you distinguish ensañamiento from ignominy?

A: In ignominy, the victim suffered morally. There is moral suffering,
there is insult addd to injury. In ensañamiento, the suffering of the
victim is physical.

PROBLEM: After the offender has killed the child, he threw him out of
the window.
QUESTION: Is cruelty there aggravating? ANSWER: No more because
the baby did not suffer anymore any pain. The victim was already
dead.

Actually in Book II, there are circumstances – especially in

murder, Article 248 which are identical with these aggravating
circumstances here. Like treachery, evident premeditation and of
armed men or with the use of superior strength, the crime is murder.
So, what is their difference? Actually, none, in the sense that they are
of the same description and application. However, there is one slight
difference. In Article 248, we do not call them ordinary aggravating.
These are called qualifying circumstances.

Q: How do we then classify aggravating circumstances?

A: There are two types:
(i) the ORDINARY AGGRAVATING under Article 14, and
 (ii) the QUALIFYING under Book II, Article 248.
Q: What are the distinctions between the two?
A: There are three main distinctions.
ORDINARY AGGRAVATING
Has the effect of maximizing the
penalty for that felony. The
penalty should be in the
maximum period.
has the effect of maximizing the
penalty for that felony. The
penalty should be in the
maximum period.
Not part of the element of the
crime. Hence, it can be proven
even if not alleged in the
information.
QUALIFYING CIRCUMSTANCE
Does not only affect the penalty. It
charges the nature of the crime.
Ordinarily, when you kill somebody,
it is only homicide. But if it was
qualified, for example, by
treachery, the crime is no loner
homicide, but murder.
Can never be offset by a mitigating
circumstance. So, if a person is
accused of murder, qualified by
treachery, and then upon
arraignment, he pleaded guilty,
and then upon arraignment, he
pleaded guilty, we do not say that
the plea of guilty, which is
mitigating, has canceled the
treachery and that therefore, the
crime should be homicide. No, it
shall remain as murder, qualified
by treachery with the mitigating
circumstance of plea of guilty.
Being part of the crime, it is part
of the element of the crime. Thus,
to be appreciated as a qualifying
circumstance, it should be properly
 alleged in the criminal complaint
and information, and proven
during the trial. Even if it is proven
during he trial, then it should only
be treated as an ordinary
aggravating circumstance.

CHAPTER 5
ALTERNATIVE CIRCUMSTANCES

ARTICLE 15. Their concept.- Alternative circumstances are those

which must be taken into consideration as aggravating or mitigating
according to the nature and effects of the crime and the other
conditions attending its commission. They are the relationship,
intoxication and the degree of instruction and education of the
offender.The alternative circumstance of relationship shall be taken
into consideration as a mitigating circumstance when the offender
has committed a felony in a state of intoxication, if the same is not
habitual or subsequent to the plan to commit said felony; but when
the intoxication is habitual or intentional, it shall be considered as an
aggravating circumstance.

Q: Why are the circumstances called alternative?

A: Because they can be aggravating or mitigating. They are “double-
bladed”. They can work in your favor, or against you. They can be
aggravating or mitigating, depending upon the nature of the crime or
upon the other conditions attending the commission of the crime. So,
you can have nature, effect and other conditions of the commission of
the crime.

There are three alternative circumstances:

♦ relationship
 ♦ intoxication, and
♦ degree of instruction and education

RELATIONSHIP

The offender and the offended party are relatives. That is the
first thing to be remembered. The relationship must be among those
mentioned in Article 15. Practically, they are the same relatives
mentioned in Article 11 and Article 13, minus relatives by
consanguinity within the fourth civil degree.

The Supreme Court said that the relationship between

ascendants and descendants include the relationship between the
adopting parents and the adopted children. It is relative by analogy,
step-parents and step-children.

Q: Suppose I commit a crime against my relative, is it mitigating or

aggravating?
A: It depends on the nature of the crime.

Q: So, what are the rules?

A:
 Crimes Against Property- Relationship could even be
exempting. Then, it could be mitigating.

Examples: Robbery, Theft, Estafa, Malicious Mischief.

So, I commit any of the above crimes against my relatives. What

is the effect? It could be exempting under Article 332. If it is not
covered by Article 332, then it is covered by Article 15.

ARTICLE 332, RPC. Persons exempt from criminal liability. – No

criminal, but only civil liability, shall result from the
commission of the crime of theft, swindling or malicious
mischief committed or cause mutually by the following
persons:
1.) Spouses, ascendants and descendants,or relatives
by affinity in the same line;
2.) The widowed spouse with respect to the property
which belonged to the deceased spouse before the
same shall have passed into the possession of another;
and
3.) Brothers , sisters and brothers-in-law and sisters-
in-law, if living together.
The exemption established by this article shall not be
applicable to strangers participating in the commission of the
crime.

It is an exempting circumstance. For example, the wife steals

from the husband. There will be no criminal liability. In other words,
you do not file a case against your wife. Or, a brother swindles
another brother. Or, the brother will destroy the things of his sisters.
There is civil liability, but NO CRIMINAL liability if the crime of estafa,
theft of malicious mischief committed by the persons enumerated in
Article 332. So, that is an exempting circumstance by reason of
public policy. That is not even mitigating. However, the exemption is
limited only to theft, estafa and malicious mischief.
Q: Suppose, the crime is robbery?
A: There is no exemption. However, by analogy, it is not exempting
under Article 332, we apply Article 15. It could be a mitigating
circumstance.

Suppose, the son, at the point of a gun, divested his father of his
wallet. That is not covered by Article 332. That is not theft, but
robbery. By analogy, it belongs to Article 15, since it is a Crime
Against Property, it will be mitigating circumstance. That’s the
connection between the two, as to the nature of the crime.

 Crimes against chastity: Relationship could be a qualifying

circumstance.

For example, under the Heinous Crimes Law, if an ascendant

rapes a descendant and it is alleged in the information, it is not
merely aggravating. It can call for a mandatory penalty of death.

Or if an ascendant seduces a descendant, for example, for a

brother to seduce his sister -- the relationship is not only
aggravating, it becomes a qualified circumstance which will create
the crime of qualified seduction. However, if it is not a qualifying
circumstance in Crimes Against Chastity, like for example, when a
brother rapes his sister ( that is not covered by the Heinous Crime
Law), then by analogy, it becomes aggravating under Article 15.

So that is how we look at the law. If a special law or rule

covers it, that rule will apply. If not, then we apply Article 15.

If relationship is already inherent in the crime – that

relationship is part of the element – then Article 15 will NOT apply.
Example: Parricide, Adultery, Concubinage.

The offender and the offended party are spouses. But

outside of adultery or concubinage, there is another crime where
relationship is inherent, that is qualified seduction through abuse of
confidence, when an ascendant seduces a descendant, or a brother
seduces a sister.

Q: But in other crimes like rape or acts of lasciviousness, what is

the effect of the relationship between the offender and the
 offended party?
A: It is always AGGRAVATING. It will always aggravate the felony of
the accused.

Q; Now, why is it that in crimes against Property, the relationship is

mitigating and not exempting. But in Crimes Against Chastity, is it
aggravating?
A: Because of the Nature of the Crime.

It is not shocking to hear a wife stealing from her husband, or a

brother swindling his brother. That is not very shocking to the
society. But it is very shocking to hear of an ascendant raping his
own descendant. In other words, it goes against our own culture. It
is shocking to the senses.

Q: Now, how about in Crimes Against Persons?

A: Relationship could even be a qualifying circumstance.

For example, a husband kills his wife, or a son kills his father.
Relationship there is not covered by Article 15. It is a qualifying
circumstance which will convert the crime from ordinary homicide to
parricide. But if it is not covered Book II, then Article 15 applies.

When you kill your spouse, ascendant or descendant, or all, that

is already qualifying. But if you kill your own brother, that is not
parricide. Because parricide is limited to relationship in the direct line
and does not cover relationship in the collateral line. Killing your
brother is either murder or homicide, aggravated by the relationship
under Article 15.

Q: When is relationship aggravating?

A: Based on jurisprudence, it depends on who is the offender and
who is the offended party. The general rule is: If the offended party
or victim is a relative in a higher level or degree, it becomes an
aggravating circumstance. Like if the son mauls his father.

If they are relatives of an equal level—like if a brother mauls his

brother or brother-in-law, the rule is the same. Relationship is
aggravating.

Suppose the victim is a relative of lower level, like if a son is

being mauled by his father. This time, relationship becomes
mitigating circumstance, provided, the felony is a light felony.

In Crime Against Persons, assuming it is not parricide, relationship is

always aggravating if the victim is of a higher level.

Killing your father-in-law, or mauling your father, that is not

parricide. But since the victim is of a higher level, relationship is
aggravating. Relationship is also aggravating when the relative is of
an equal level. Killing your brother, sister, brother-in-law, or sister-in-
law.

Q: Now, suppose the victim is of a lower level, like injuring your son
or the father-in-law committing physical injuries on the son-in-law,
what is the effect?
A: The effect is the same. Relationship is aggravating, except if the
felony is light, like slight physical injuries, then relationship is
mitigating.

INTOXICATION

Article 15, 3rd paragraph—The intoxication of the offender shall

be taken into consideration as a mitigating circumstance when the
offender has committed a felony in a state of intoxication, if the
same is not habitual or subsequent to the plan to commit said
felony; but when the intoxication is habitual or intentional, it shall be
considered as an aggravating circumstance.
The crime was committed when the offender was intoxicated.
The offender was drunk. Intoxication means a state of drunkenness.
It has been defined as a state where the mental faculties of the
accused are already affected by alcohol. Because there are different
degrees of intoxication.

For example, you commit a crime after drinking one bottle of

beer, that is not intoxication. So, there must be evidence that the
degree of alcohol in your body has already blurred your senses.
Now, will it help or will it be held against you? It depends.

It is mitigating, if the intoxication is:

 Not habitual or
 Not intentional
It is aggravating, if the intoxication is:
 Habitual or
 Subsequent to the plan to commit a crime or
 Intentional

Q: What do you mean by “ habitual”?

A: It means a confirmed habit, like he is drunk everyday. It means
that drinking has already become part of his system, his way of life –
habit.

Q: Now, what is the presumption?

A: The presumption is that it is not habitual, that it is mitigating.
But, if it is habitual, it is aggravating.
 The rule that is mitigating is because it analogous to Article
13(9), the illness of the offender which will impair his will-power.

ARTICLE 13(9), RPC. Mitigating Circumstances. – Such illness of

the offender as would diminish the exercise of the will-
power of the offender without however depriving him of
consciousness of his acts.

The will-power is impaired by the effects of the alcohol.

Q: Why is it aggravating when habitual?
A: It is because drunkenness or alcohol lessens the person’s
resistance to criminality.
So, if a person is always drunk, he always invites danger. He
endangers his position. He puts himself in a situation in which he is
easily tempted to commit a crime. So, it cannot be appreciated in his
favor.
There are some who, subsequent to a plan to commit a crime.
Embolden themselves by drinking alcohol. That’s aggravating.
There was a case recently decided by the Supreme Court regarding
intoxication. It is in the case of People vs. Capoquian (236
SCRA 655) , where a merry-making turned into a tragedy. There
were friends, they were joking around each other. Then this ended
up into a stabbing incident.
Justice Florenz Regalado gave a brief comment about the
effects of intoxication and expressed the philosophy behind Article 15.
“Moderate inhibition of liquor can be medicinal, but excessive intake
can be hazardous. This case illustrates the deplorable past-time of
drinking bout in this country. Starting with conviviality but ending in
animosity. The tragedy is that of such a diversion, sometimes resorts
in one terminated existence consigned to the cemetery, and the other
suspended life lodged in the penitentiar y.” That is how he described
the effect of intoxication.

DEGREE OF INSTRUCTION AND EDUCATION

As a general rule, if the degree of education of the offender is

low, it is mitigating circumstance. If high, it is aggravating. Another
name for the former is the mitigating circumstance of ILLITERACY.
However, the decided cases on how degree of instruction are quite
confusing because sometimes the SC says it is mitigating, and at
other times sys it is aggravating.

In one case, the accused has managed to reach Grade 1 or

Grade 2. It is therefore follows that he know his alphabets. That is
his highest educational attainment. He invoked it. The SC said that
this applies only if you have not gone to school at all. So, practically,
who else is qualified? No more because even the poorest person has
sometimes managed to reach at least Grade 1 or Grade 2 only.

Then, there was somebody who committed a crime. And

really, he was a complete illiterate. He was a member of a cultural
minority group and has not gone to school. The SC said that it will
not apply because the way he committed the crime, it seems that he
has natural talent. So, what is contemplated by the law is not only
education but the innate, natural talent.

Then in one case, robbery and theft, committed by an

illiterate. SC said that it is not aggravating. You don’t have to go to
school in order to know that to steal or kill is wrong because that is
part of your conscience. It is against the natural law and the person
is supposed to know that without going to school. So, it is not
mitigating.
 However, in the case of People vs. Punong, the offender
killed an old woman in the town because he believed that she was a
witch. That she was supposed to be responsible for the epidemic in
town. The SC said, if you believe in witchcraft, you are ignorant,
hence, mitigating.

In the case of People vs. Lacsamana : He was accused of

treason. He betrayed his country during the war and he was
completely illiterate. SC said, it is NOT mitigating. Love of country
and patriotism is in the heart of every person. You don’t have to go
to school in order to know that.

Then in the case of People vs. Marasigan, which is similar

to the Lacsamana case. He committed treason . The SC said, how
can the offender know patriotism if he has not gone to school?

Q: How about the high degree of education?

A: It is aggravating on the condition that you use your special
knowledge to commit a crime.
For example: A doctor uses his special knowledge to kill
somebody, or an accountant uses his knowledge to manipulate the
records to defraud the company.

NOTE: The rule on constructive notice cannot apply in the crime of

bigamy, notwithstanding the possibility of its being more favorable to
the accused. ( Sermonia vs. CA, 233 SCRA 155.)

For the qualifying circumstance of treachery to be

present, two conditions must concur:

 That the employment means of execution that gives the

person attacked no opportunity to defend himself or retaliate;
 and
 That said means of execution was deliberately or
consciously adopted.( People vs. Verchez, 233 SCRA 174)

The qualified offense of illegal possession of firearms in furtherance of

rebellion under PD 1866 is distinct from the crime of rebellion
punished under Articles 134 and 135 of the Revised Penal Code.
(People vs. De Garcia, 233 SCRA 716)
TITLE TWO
PERSONS CRIMINALLY LIABLE FOR FELONIES

In every felony, there are generally two (2) parties involved:

1. The offended party – the victim; and

2. The person who commits the felony.

Now, the person who commits the felony must be natural person.
So, only human
beings are contemplated by law. That is obvious because in every
felony, there is an act or omission.

Act means a physical action, a physical movement. A

corporation has no physical existence. It is only a person under the
law. Also, for a person to be liable for a felony, he must have:

 Freedom
 Intelligence and
 Intent

These are faculties belonging to a human being. A corporation

can be held liable for
committing a criminal act, but generally the one who will go to jail are
the officers because the corporation can only act through its officers.

However, the victim of a corporation can be a juridical person.

You can swindle another company and you commit estafa by running
away with corporate funds.

So, a corporation cannot be an offender, but it can be an

offended party. Of course, the one who will file the case, is the
officer in behalf of the corporation. But the offended party is the
corporation. But definitely, whether you are the offender or the
offended party, you must be a person because if you are not a
person, you have no right under the law.

So, logically, a dead man cannot be a victim of any felony except

the crime of defamation or libel under Article 253. The concept of
libel can be committed to blacken the memory of the dead, because
libel or defamation is felony against honor.

While it is true that a person’s rights die with him, his honor is
not supposed to die with him. His honor is supposed to live after him
forever. So no one has the right to defame the honor of another
person just because he is already dead.

Now, we are not interested here in the victim. We are interested

in the persons who are criminally liable:

 Principals
 Accomplices, and
 Accessories

In Spanish, they call the principals “autores”. The accomplices

and accessories are
called “encubridores”. The “autores” and the “encubridores” are the
principal and minor characters in the list of characters.

There is an analogy about movies, the principal or

main actor is the lead, the story revolves around them. Now, what
about the accomplice? They are the supporting cast, the minor
characters. How about the accessories? These are the “extras”, they
are seen only in a scene or two.

Article 16. Who are criminally liable? – The following are criminally
liable for grave and less grave felonies:
1. Principals;
2. Accomplices;
3. Accessories
The following are criminally liable for light felonies:
1. Principals
2. Accomplices

Article 16 immediately gives us the principle. For

grave and less grave felonies, all of them are liable. But for light
felonies, only the principals and accomplices are liable. So,
conclusion: accessories are exempt from criminal liability in
light felonies.

In effect, Article 16 is an exempting circumstance based on public

policy. The reason
behind this is similar to that in Art. 7 where the general rule also is :
light felonies are only punishable when they are
consummated.

Q: Why?
A: The role of an accessory is very minor. Even in grave or
less grave felonies, the penalty given to an accessory is very
light, very much lower than the principal. How much are
more if the felony is light? If the felony is light, even the
penalty for the principal is also light. So what would be the
penalty for the accessory? Very, very negligible. So, there is
no more liability. It creates an exempting circumstances
under Article 16.

So with this, you will notice that there are certain principles to
remember about light felonies. Light felonies are defined in Art.9.
There are 2 principles which create exempting circumstances: one is
found in Art.7 and the other in Art. 16.

EXEMPTING CIRCUMSTANCES

1.) Art. 7. When light felonies are punishable—Light felonies

are punishable only when they have been consummated with
the exception of those committed against persons or property.
2.) Art. 16. Who are criminally liable. – The following are
criminally liable for grave or less grave felonies:
1. Principals
2. Accomplices
3. Accessories
The following are criminally liable for light felonies:
1. Principals
2. Accomplices

Article 16 says: Only accessories are exempt from criminal

liability in light felonies
regardless of whatever crime that is a light felony, whether it is
against persons or property.

Article 17. Principals. – The following are considered principals:

1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it; Those who
cooperate in the commission of the offense by another act without
which it would not have been accomplished.

While the law divides persons criminally liable into 3

classes, Article 17, further provides or classifies principals into 3
types:
1.) Those who take a direct part in the execution of the act,
known briefly as PRINCIPALS BY DIRECT PARTICIPATION;
2.) Those who directly force or induce others to commit it, who
are briefly called PRINCIPALS BY INDUCEMENT OR
INDUCTION;
3.) Those who cooperate in the commission of the crime by
another act without which it would not have been accomplished :
PRINCIPALS BY INDISPENSABLE COOPERATION

When a felony is committed by only one person and you are

asked what you think is his role. Then without thinking you say that
he is a principal by direct participation. He cannot be an accomplice.
If he is an accomplice, who is the principal? There is no accomplice if
there is no principal. So, necessarily, if he is only one, he must be the
principal, and necessarily, he must be a principal by direct
participation.

Now, there would be no principal by inducement if there is no

principal by direct participation. There could be no principal by
indispensable cooperation, without a principal by direct participation.
That’s why when you say that there is a crime committed by one
person without looking you can say that he is a principal by direct
participation. There could be no other role.

The problem will arise if there are two or more people involved in
the commission of the felony, because it is possible that one is the
principal, another one is an accomplice, and the third one is an
accessory. Or, principal and accessory only, without accomplice.

Or, it is possible that all of them are principals. What type of

principal? One of them by direct participation, another one by
inducement, and the other one by indispensable cooperation. Or,
principal by direct participation and inducement, without the third.
Or, principals by direct participation and indispensable cooperation,
without the second type. Or, it is still possible that all of them are co-
principals by direct participation.

So, it is possible for a felony to be committed by 10 people? YES,

they are classifies as principals by direct participation. Therefore, that
is now our problem.

Q: When do you classify? 2 or more persons as co-principals by

direct participation?
A: 2 or more persons committing a felony are classified as co-
principals by direct participation when 2 requisites are present:

1.) That these people participate in the criminal resolution

That is tantamount to saying that you were “in conspiracy” with
each other. There must be a conspiracy between them – a conspiracy
which is defined in Art. 8 as an agreement between 2 or more
persons. They agreed.

So you say that you will present somebody who was listening
when they were agreeing. That’s difficult! Chances are, when two or
more persons agree, there are no other persons present then. So
you can hardly prove the agreement by direct evidence. But, the
agreement can be proven indirectly. Why? The agreement is here (in
the head); it is a meeting of the minds. When there is a meeting of
the minds between two persons, there is an agreement.

Q: And what principle to apply?

A: The best evidence of what is in the minds is through one’s action.
So, the principle has evolved:

When 2 or more persons commit a crime together, each

performing an act in harmony with each other, and everything is
veered towards the same criminal objective, then their action betrays
the conspiracy. The conspiracy is proven by their own actions. That
is the principle to remember.

Example: 3 or more people (A, B, C and D) simultaneously enter a

bank. They are armed. A will disarm the security guard. B will herd
all the people in the bank. C and D will start scooping the money
from the teller’s booth and vault. Then all of them will simultaneously
withdraw from the bank. Then the vehicle outside was driven by E;
they ride in the vehicle.

Based on what you have witnessed, do you think there is an

agreement among these 5 people? Is there an agreement among
them to commit robbery? Or can we say that, “ No, that could have
been merely a coincidence”. That it is possible that A, B, C & D were
acting independently, and by coincidence, they entered the bank
together.

And then by instinct A, disarmed the guard, and B also, by

instinct, herded everybody into a corner. C& D without knowing each
other (because they didn’t know each other), got all the money and
then without any agreement, they all withdrew from the bank. And
accidentally, there was somebody waiting (F), then they took a ride.
Then the said to each other, “ What are we? Who are you?”
(joke,joke,joke!)

The human mind will be taxed to its limits. That is the essence
of criminal resolution because direct proof of conspiracy is very hard
and the best proof of it is by action.

Q: Now, what is the importance of this element of conspiracy?

A: The importance of the application of this rule that when there is
conspiracy, the act of one is the act of all. Then all of them are
equally liable for the crime. All of them will get the same penalty for
robbery. So, they have collective criminal liability.

And therefore in that particular sense, A & B cannot say, “ We

are not guilty of robbery because in robbery, you commit the crime by
taking the property. We did not take anything!” A will say, “ What I
did was to disarm the security guard.” B says, “ me too, all I did was
to herd off the people. It was C and D who took the money. Then
they shall be liable for robbery because I did not take anything.”
Then E will say, “ Neither will I be liable, because I did not even
enter the bank.” In conspiracy, the act of one is the act of all.

Or, in one case, 4 or 5 people conspired to kill the victim. So,

they cornered him inside the restaurant. So they started to assault
the victim and one of them held the victim. The 4 th one stabbed him.
According to the third member, “ I am not liable, it was the 4 th guy
who stabbed the victim. My job was to hold the victim’s hands. ( how
sweet!) Then the other one says, “ Neither will I be liable , I was just
at the door. My role is to prevent the victim from running away.” No,
it is as if all of you stabbed him. The act of one is the act of all.
That’s the importance of conspiracy.

Now, I noticed last year, there was a problem in the BAR and that
principle was applied. Actually, I already mention this problem earlier.
This is the case of Mambolo. At about 9:30 P.M., while Dino and
Raffy were walking ( hand in hand, uuy!) along Padre Faura St. in
Manila, Johnny hit them with a rock, injuring Dino, then Bobby
stabbed Dino. But suddenly Jerry, Vic,Vaness and Ken ( F4!)
surrounded Dino, then Jerry stabbed Dino. Vic, Vanness and Ken
kept on hitting Dino and Raffy with rocks. As a result, Dino died.
Johnny, Jerry, Vic, Vanness and Ken were charged with Homicide.

Q: Is there conspiracy in this case? It is clear that they acted in

unison extending, towards the culmination of the same criminal
resolution. So what is the conclusion?
A: There is conspiracy because their action betrays their agreement.

There is another problem: Ben, a widower, driven by bestial

desire, poked a gun at his daughter, forcibly undressed her and tied
her legs to the bed. (bad!) He also burned her face with a lighted
cigarette and like madman, laughed while he was raping her.

Q: What aggravating circumstances are present in this case?

A: 1.) Alternative circumstances of relationship
2.) Ignominy

Q: Is it possible that 2 or more persons commit a crime and appear to

be acting in a conspiracy but in reality, they are acting independently
of each other? Meaning, just a coincidence that the incident
happened. Is that possible?
A: Yes, because when we say that when 2 or more persons act
together towards the commission of the crime, there is a presumption
of conspiracy because it is very hard to say that there is none. But
suppose it is proven really that they know each other?

PROBLEM: A has an enemy, X. B, another person is also the enemy

of X. One day, A decided to maul X. B, on the other hand, hass
already looked for X to kill him. And both of them, acting
independently, started looking for X. A saw X, immediately
approached him and started to hit him. At that precise moment, B
arrived. During the fray, B stabbed X. X died. QUESTION: Is there
conspiracy? ANSWER: Based on the facts, there is no conspiracy.

Since A’s intention is to inflict physical injuries—and he merely

inflicted fist blows upon the victim, is only liable as a principal by
direct participation for Physical injuries against the victim. On the
other hand, who stabbed the victim is liable as principal by direct
participation for the crime of Homicide. So in effect, there are 2
separate crimes, 2 criminals acting independently. That is called
individual liability, as distinguished from collective liability.

Q: Now, what happen if 2 or more persons conspire to commit a

crime, but while committing the crime, one of them went beyond the
agreement and committed another crime not contemplated in the
conspiracy? Are his companion also liable for the crime? Are all co-
conspirators liable for the crime committed by their companion which
was not within the scene of their conspiracy.
EXAMPLE: Article 296. Robbery committed by a Band. Paragraph 2-
Any member of a band who is present at the commission of a robbery
by the band, shall be punished as principal of any of the assaults
committed by the band, unless it be shown that he attempted to
prevent the same.

So, at least 4 persons conspired to commit robbery. So, they

entered the house of A. At the point of a gun, they divested A of his
belongings. And then, one of them attacked the victim and killed
him. This is robbery with homicide.

Q: Who is liable for the Robbery with Homicide? Others would say
that, only the one who attacked and killed A is liable.
A: All of them are liable because according to Article 296 in Robbery
by a Band, all of them are liable for any assault committed by their
companions unless you can show that you tried to prevent it. So if
you don’t try to prevent it, you are also liable. In a conspiracy, the
act of one is the act of all.

But Article 296 applies to Robbery with Homicide and committed

by a band. So, if there are only three persons, this will not apply.

Q: Suppose there are only 2 or 3 robbers and they conspired to

commit robbery only and then one of them killed the victim. Will all
of them be liable for the assault, or only him?
A: This time we can apply another principle: That the conspirators are
only liable for the crime contemplated in the conspiracy if there is no
direct provision on that.

EXAMPLE: X and Y conspired to kill A> Then, X killed B. Now,

who is liable for the death of B? The conspirators conspired to kill A,
they never conspired to kill B. X is the only one liable. QUESTION: In
another case, the offenders conspired to injure A. So, all of them
mauled A. But one of the conspirators pulled out a knife and killed A.
Who is liable for the Homicide? ANSWER: All of them are liable
because in a conspiracy the act of one is the act of all.

So, there are two principles here that you have to balance:
1.) In a conspiracy the act of one is the act of all.
2.) The co-conspirators are not liable for any act of another
conspirator not contemplated in the conspiracy.

Q: Now, when do you apply one and when do you apply the other?
How come that in that case where 5 people conspired to injure the
victim, the SC said all of them are implicated. But in another case,
the conspirators conspired to kill A but one of them killed B, the SC
said only the killer of B is liable.
A:When you try to examine, there really is a difference. In the first
example, the contemplated victim is A, and the one who was killed
was A. So, the same victim. Moreover, in Crimes against Persons,
when the victim is killed, the physical injuries are absorbed. The
conspirators are not separately liable. The physical injuries are
absorbed in the killing. There is still one crime.

But in the second example, there were really 2 crimes, because

there were 2 victims. The killing of A is a separate crime from the
killing of B so you do not say that the killing of B is absorbed in the
killing of A. Unlike in the first instance, the victim to be killed is A and
the person killed is A. And the physical injuries are absorbed in the
killing of A.

But in the other case, the intended victim is killed, another

person is also killed. So, there are 2 crimes. So you cannot say that
the death of B is absorbed in the killing of A, because there is an
entirely different victim.

So based on that, in the first case, all of them are liable for the
death of A. In a conspiracy, the act of one is the act of all. But in the
second case, all of them are liable for the death of A but only one of
them is liable for the death of B. That is entirely separate crime to be
charged separately. That seems to be distinct.

2.)That the offenders, co-principals carried out the resolution by

performing acts which tend to accomplish the objective.
In effect, they must be present in the commission. So, we plan
and we implement the plan. That is the second element.
 PEOPLE vs. TIMBOL
Facts: The accused , 4 brothers, conspired to kill somebody.
They met several times and planned. In the final meeting, they
decided to implement the plan. Then the following day, one of
the brothers had cold feet. He did not show up. So, only 3
brothers were there at the meeting place, and they agreed to
proceed with the crime. So, they went with the plan, minus the
other brother.

Held: SC said that the one who did not show up is

not liable. The second element is missing. He did not appear at
the scene of the crime. Mere conspiracy is not punishable.

Q: Was the first element present?

A: Yes, because evidence shows that he participated in the planning
of the crime. The second element is missing. So he could not be a
co-principal because the SC said if he participated in the planning
only, he is guilty of a conspiracy to commit a felony.

ARTICLE 8,RPC.Conspiracy and Proposal to commit a Felony. –

Conspiracy and proposal to commit felony are punishable only in the
cases in which the law specially provides a penalty therefore.
A conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to
commit it.

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

felony proposes its execution to some other person or persons.

PEOPLE vs. DE LOS REYES

Facts: A group of people tried to commit a crime. Then, while

 the crime was in progress, one of them left. And the question is:
Whether or not he is liable?

Held: To extricate himself from criminal liability, the conspirator

himself must have performed an overt act to disassociate or
detach himself from the unlawful plan to commit the felony.
While he did leave the scene of the crime while it was in
progress, such abandonment came too late. In legal
contemplation, there was no longer a conspiracy to be repudiated
because he had already participated in it.

People vs. Federico

247 SCRA 246

Where conspiracy was to kill only a particular person and the

accused did not conspire with the other accused in killing another
person, he cannot be held liable as co-conspirator of the latter
crime.
Here, there are really two crimes.

For example, A, B and C planned to kill D. After killing D, c also

killed D’s wife. Only C is liable to the two killings. A and B are liable
only to the death of D and not to D’s wife.

Let us now review the second type of Principal: Principal by

inducement. Those who directly force and induce others to commit
a crime.
Q: How do you fall under this classification?
A: There are two ways:
1.) You directly force the principal by direct participation to
commit the crime; or
2.) You directly induce him to commit a crime.
FORCE OR INDUCE

How do you force? By the use of irresistible force or by forcing

under uncontrollable fear. That is how you do it. However, if you do
that, the principal by direct participation has a very good defense—
Art. 12. That there was no voluntariness. That there was no
freedom. That leaves you alone liable.

But the normal way of falling under this classification is when you
are induced. When you persuade the other party to commit the crime
and he agreed to do it, what is now the effect? There is a conspiracy
again. So principals by direct participator is also in conspiracy with
the principal by inducement. So what binds them together will be
conspiracy.

Q: How do you persuade, how do you induce another or convince

him to commit the crime?
A: There are many ways: By words of inducement, by promises of
price, or reward. So that is one way. And also it becomes an
aggravating circumstance—price, reward or promise.

To be classified as principal by inducement, 2 requisites must be

present:
 That the principal by inducement mad the
inducement with the intention of procuring the commission of
the crime (In re: Art. 8); and
 That the inducement was the determining cause
of the commission of the crime without which the crime could
not have been committed.

First: That the inducement was made with the intention of

procuring... meaning the inducer is serious. He was really interested
in committing the crime. He was not joking. Because the concept of
inducement has the same definition as proposal under Art. 8.

Q: How do you induce?

A: It may be a proposal.

Q: How do we define proposal?

A: There is proposal when a person who has decided to commit a
felony proposes its execution. Decided. Not a joke.

Let us illustrate. There was a case where a woman claimed that

she could no longer bear her husband. My husband is like this, like
that, etc. What shall I do? The friend in a joking manner said:
“Whew, it’s simple, kill your husband?” So the woman killed her
husband. She implicated her friend. When she mad the proposal,
there was no intention to kill. It would have been an ill advice. The
effect was fatal. That is not the type of inducement here.

Or in one case, somebody needs money. Then someone advised

him and said:” It’s simple, just hold-up a bank.” He indeed held-up a
bank, but unfortunately, he was caught. He implicate the other. The
statement was not made with the intention of procuring the
commission of the crime.

Second: Without such inducement, the crime would not have been
committed. The inducement was the only reason for the commission
of the crime. Without it the principal by direct participation would not
have committed the crime.
Example: Guns-for–hire. You are told to kill the victim. He said:
“Give me a picture in order to identify him.” He gave you because
you are being paid. Without the payment, he will not ask you.
Nothing personal. Everything is business.. That’s how assassins
worked. The assassin would say: “ I will kill people for money but
you, you are my friend. I kill you for nothing. Normally, I do not kill
people if it is not for money. But since you are my friend, I will kill
you for nothing. Just to show that it is for free.

The words of inducement must be offered PRIOR to the commission

of the crime. How can you say that the inducement was the
determining cause when it is made after the crime? For example,
somebody approaches you and says: ‘I would like to tell you
something. I killed so and so.” You killed? Well, congratulations!
That’s a good thing.” I’m not a principal by inducement. The crime
has already been committed. I only praised you but you do not say
that my word is the determining factor.

And another principle is: The principal by direct participation had no

reason to commit the crime on his own. That’s why your inducement
is the only determining factor.

PEOPLE vs. OMINE

61 Phil. 611

Facts: There was a quarrel between A and B. A is the principal

by direct participation . B is the victim. A was approaching B one
night. A was holding a knife and he was approaching B. At that
moment, X arrived. X shouted to A: “Yes kill him, stab him!”. A
killed B with the knife. X who uttered the shouts before the
stabbing was impleaded as a principal by inducement. Bu the court
acquitted him.

Held: Do not tell me that without the shouting of X, A would

not have stabbed B. A was really going to stab B. There as a
personal reason on the part of A. So, do not say that if it were not
for the shouting of X, A would not stab B. It is just an additional.
In other words, just a firewood to keep the fire burning but actual ,
 although without the shout there was already a reason for the
principal to do that.

Q: Principal by inducement is closely related to a person making a

proposal to commit a felony under Article 8. What are the
distinctions?
A: Principal by inducement, there must be a principal by direct
participation. Even if I keep on inducing you, but you will not commit
a crime, there is still no principal by inducement. But in certain
crimes, like treason, rebellion, coup d’etat, the mere proposal to
commit a felony is punishableto commit a felony is punishableother
party will actually commit it. And you do not call a person making the
proposal a principal by inducement. He is classified as principal by
direct participation. This is the distinction between the two.

THE THIRD TYPE OF PRINCIPAL

Those who cooperate in the execution of the offense by another

act which the crime would not have been committed. Briefly, it is
called, Principal by Indispensable Cooperation.

Sometimes, there is a confusion on whether a principal is by

direct participation or by indispensable cooperation. Because how do
you become a principal by direct participation with another person?
By cooperating with him. So, when I cooperate with you in the
commission of a crime, I am also a principal by direct participation.
But I would also be a principal by indispensable cooperation.

Q: What’s the difference?

A: The distinction is only on what the cooperation is all about.

Q: In what way do I cooperate?

A: If I cooperate in the execution of the crime, I am principal by
direct participation. But if I cooperated by another act without which
a crime would not have been committed am a principal by
indispensable cooperation. So, the cooperation in this type of
principal is not in the execution of the crime but another act, an act
other than the execution of the crime without which the crime would
not have been committed.

Example: A person cooperates with the principal by another act,

other than the execution of the crime. And please take note that
what binds a principal by direct participation with a principal by
indispensable cooperation is that there is again an agreement—
conspiracy. Hence, what is common between these people is criminal
conspiracy. They are in conspiracy. That is why we apply the rule on
conspiracy—the act of one is the act of all. They are in conspiracy
with each other.

PEOPLE vs. LIMBUANGKO

14 Phil. 184

Facts: The principal by direct participation got hold of some

blank checks of somebody. So he planned to forge or counterfeit
the signature of the drawer and encash in the bank the check.
But he know he will not succeed because the bank can easily
detect that his signature is not really that of the drawer. There is
an employee in the bank whose job is specifically to compare the
specimen. So what did he do? He befriended the employee in
the bank, the signature verifier. He said to him to cooperate. He
succeeded in encashing the check.

Held: Can we prosecute him for estafa through

 falsification of commercial document, the complex crime of
estafa? Who is the principal by direct participation? The one who
forged. He was the one who counterfeited the signature of the
drawer. He was the one who encashed it. So he executed the
crime. How about the signature verifier? He did not counterfeit
the signature. He was not the one encashed the check. But he
cooperated with the principal without such the crime would not
have been succeeded. So he is held liable as principal by
indispensable cooperation. That is the perfect example.

Sometimes it is easy; sometimes it is really very hard to determine

whether you are a principal by direct participation or a principal by
indispensable cooperation. In one case, you cooperated with the
other principal. Sometimes, is the act or cooperation in executing, a
crime a cooperation by another act?

EXAMPLE: I will agree that you kill somebody. I hold him so he

will not escape. What’s that? What is my cooperation? In the
execution of the crime of Homicide, or by another act? Just like in
rape. A wants to rape the girl. So, he sought the help of B and C to
subdue the girl, to prevent the girl from disturbing him while he rapes
her. B & C complied. They held the girl, the victim was subdued. And
A raped her. There is no question, B & C are also liable.
QUESTION: How many are the principals? Principal by direct
participation in the crime of rape or principal by indispensable
cooperation? By direct participation or by indispensable cooperation?

How do you commit rape? No question about conspiracy. All of

them are conspirators. What type of principal are they? Are B and C
principals by direct participation or indispensable cooperation?

Who believe that they are principals by direct participation also,

that they took direct participation in the commission of rape? How is
it that in the crime of homicide, the one who held the victim and
prevented him from running was considered as principal by direct
participation when he was not the one who stabbed the victim?

There are cases where the SC said: Well, they prevented the girl
from struggling or resisting, so they are also principals by direct
participation. That is taking part directly in the crime of rape. So all
of them are principals by direct participation.

But there are also some cases where the SC said that they are
also principals by indispensable cooperation. Because the issue here
is this: How do you commit rape? By having sexual intercourse.
They did not have sexual intercourse with the girl. It was only A, but
their help was indispensable to the commission of the crime of rape
by virtue of the conspiracy. So there are 2 sets.

But, this question is moot and academic because whether you

are a principal by direct participation or by indispensable cooperation,
they are similar. The act of one is the act of all. It does not make
one any better than the other. You will say: “I’m not a principal by
direct participation; I’m a principal by indispensable cooperation.”
Okay, but the penalty is still the same. The act of one is the act of all
because of conspiracy. As a matter of fact if you look at the
information filed by the fiscal—it will say that they are co-principals.
Then, if you look at the decisions, the court will say that they are co-
principals.

ARTICLE 18 ---Accomplices are persons who, not being

included in Article 17, cooperate in the execution of the
offense by previous or simultaneous acts.
 So if you are a principal, you cannot be an accomplice at the
same time. So if you are falling under Article 17, Article 18 will not
apply to you.

Q: How do you become an accomplice?

A: Obviously, if you are not in conspiracy with the principal by direct
participation—because if you are in conspiracy, you fall under Article
17. What do you do? You cooperate. You cooperate with whom?
You cooperate with the principal by direct participation through
previous or simultaneous acts. That is why we must distinguish what
type of cooperation is this. If you commit a crime and I cooperate
with you. I could be a co-principal by direct participation; I would be
a principal by indispensable cooperation; I could also be an
accomplice, because an accomplice also cooperates.

Q: How do you distinguish cooperation by a principal from

cooperation by an accomplice?
A: If the cooperation is pursuant to a conspiracy, you are a principal.
You fall under Article 17. If your cooperation is not pursuant to a
conspiracy, you are under Article 18. As to the exact act, there is
sometimes no difference. It will be your cooperation and his
cooperation. The only important question is whether there was a
conspiracy or none.
Therefore, if there is doubt as to whether there is conspiracy or
there is no conspiracy, the doubt is resolved in favor of the lesser
degree of participation, para mahulog ka na accomplice.

Q: How to cooperate? How can I cooperate without being in

conspiracy? How will that happen? How can you cooperate without
an agreement?
A: The concept of cooperation by an accomplice is that a person is an
accomplice who, not being in conspiracy with the principal, but
knowing about the criminal intent of the offender, concurs with it and
cooperated either in a previous or simultaneous act. Not being in
conspiracy but knowing of the criminal intent, concurs. Meaning, I
agree. So I will just cooperate.

Example: You are a taxicab driver. Then one night 2 or 3

passengers hailed you to take a ride. The while driving, you
overheard their conversation. You listened. Base on their
conversation, they were going to commit robbery. You learned about
it. When they reached that place, they asked you to wait. “Wait for
30 minutes, okay” We are just going to that house and rob
somebody in it.” Okay, you agree. So you knew that they are going to
rob somebody then after 30 minutes they returned, then drove them
off. So in effect, you are the driver of the getaway vehicle.

Did they ask you to join them? No. There was no agreement. But
knowing about their intent to rob, you stayed all along, you
cooperated. You will get a bigger payment. What is the liability of
the driver? Accomplice.

But suppose the passenger will say, “Pare, we are going to rob a
house, you will be our driver, wait for us outside. Will you agree or
not? “Agree”. What’s that? Principal? There is already a conspiracy.
So, in case of doubt, the doubt is resolved in favor of less
cooperation. That is the role of an accomplice. How do you
cooperate? By previous or simultaneous act. That is simultaneous.
Simultaneous act of robbery.

Somebody approaches me: “Sir, do you have a gun?” Yes, I have,

why? “may I borrow it” Why? “I’m going to kill somebody.” So I lent
him the weapon and killed the person. What is my role? I am an
accomplice. Knowing his criminal intent to kill, he borrowed my gun
and I cooperated—by a previous or simultaneous act.
Q: Distinguish principal by inducement or indispensable cooperation
from accomplice. Because both types cooperate with the principal.
A:

PRINCIPAL
The cooperation of a principal by
indispensable cooperation is
indispensable, without which the
crime would not have been
committed.
The cooperation of the principal
by indispensable cooperation is
pursuant to a conspiracy
ACCOMPLICE
The cooperation of an accomplice
may be necessary but no
indispensable. Meaning, the crime
may still be committed.
But the cooperation of an
accomplice is not pursuant to a
conspiracy

EXAMPLE: Without the cooperation of the signature-verifier, I would

not succeed. But: “may I borrow your gun?” Sure. QUESTION: Is my
lending the gun indispensable or necessary> do you mean to tell me
without my gun you cannot kill him? You can kill him with another
gun or with a knife. You can kill him with a bolo. ANSWER: so, my
lending the gun is necessary, but not indispensable. That’s the
distinction given by some. This distinction is correct.
Take note, that you are also liable for the same crime committed
by the principal although the penalty is a little bit lower. That’s why
we have discussed collective liability. You are a co-principal in a
conspiracy. The act of one is the act of all. Collective.

Let us change the facts: A and B do not know each other. There
is no conspiracy. A wanted to injure X. A will pull X. B, on the other
hand wanted to kill X. So they were acting separately. A saw X, he
started to throw punches at X. Then afterwards, B suddenly entered
and stabbed X. X died. Take not, that A had not intent to kill X. He
only wanted to injure him. He is principal by direct participation for
the crime of physical injury serious or less serious.
 Then B said: “Well, in that case, I am the accomplice of A.
Because when A attacked X, I learned of the criminal intent of A, and
therefore when I came in and entered the fray and stabbed X, I
concurred with the criminal intent of A and therefore I am an
accomplice.” So, A is the principal for the crime of slight physical
injury B, who stabbed X, is liable as an accomplice. Now, who will be
liable for the death of X? Zero? The one who stabbed the victim is
only the accomplice. Something is wrong there. That kind of
reasoning is wrong.

How can you concur with A when A had no intention to kill? The
intent to kill came from B. You cannot say that A concurred with B
because he was the first to commit the crime, B only entered the
scene. So there are 2 kinds. A is liable for physical injury as a
principal by direct participation. B is liable for homicide.

We will again reverse the facts. The same: A wanted to harm X.

B wanted to kill X, this time, the first one who came was B. B saw X.
He approached and started stabbing X. A arrived, approached X, “I’ll
join you”. He entered the scene and started to attack X with his first,
even preventing X from running. So, X died.

B is liable for homicide as a principal by direct participation. So

A? “Physical injuries only, I only punched him.” No, when you saw B
stabbing X you joined the fray and starting also hitting X, you
concurred without any conspiracy. You concurred with the criminal
intent of B to kill, and you cooperated with him with the simultaneous
act of assaulting the victim. So there is only one crime. You are the
principal. A is the accomplice. That is what you call quasi-collective.
That is the illustration:

Liability:
 Collective = Conspiracy
Quasi-collective = Accomplice
Individual = 2 crimes, each to his own

ARTICLE 19 . Accessories --- Accessories are those who, having

knowledge of the commission of the crime, and without
having participated therein either as principals or
accomplices, take part subsequent to its commission in any
of the following manner:
1.by profiting themselves or assisting the offender to
profit by the effects of the crime;
2.by concealing or destroying the body of the crime or
the effects or instruments thereof, in order to prevent
its discovery;
3.by harboring, concealing, or assisting in the escape of
the principal of the crime, provided the accessory acts
with abuse of his public functions or whenever the
author of the crime is guilty of treason, parricide,
murder, or an attempt to take the life of the Chief
Executive, or is known to be habitually guilty of some
other crime.

Accessories are the last set of those persons criminally liable. To

be liable as an accessory, the felony committed by the principal
should be a LESS GRAVE or GRAVE FELONY. Even if you perform any
of these acts under the definition of Art. 19, if it is a light felony you
are not liable because of Art. 16. Only principals and accomplices are
liable for a light felony. The premise is that the felony is not a light
felony. You have to correlate this with Art. 16.
The distinction between principals or
accomplices, and accessories is that the principal or the accomplice
participates prior to or at the latest simultaneously with the
commission of the crime; whereas the accessory comes only after the
crime has been committed. That is why he is known as the accessory
after the fact.

PROBLEM: A saw X and started to stab the latter. When B arrived, he

saw A stabbing X, he joined the fray holding X in order to prevent him
from going away. After X died, A and B dug up a grave in order to
prevent the body of the victim from being discovered.

Q: Can we consider either A or B as accessories for having concealed

the body of the victim under paragraph of Article 19?
A: NO, because to be an accessory you should not have participated
either as a principal or accomplice. Now if A is the one who killed X,
then he is already a principal. B there is already an accomplice.
Hence, they are not accessories. That is the meaning of the phrase
“without having participated therein.”

But after A and B ask C to bury the cadaver , then C can be

considered an accessory because he neither participated as principal
nor accomplice.

However, the accessory must have knowledge of the commission

of the offense. Otherwise, if he did not know of the commission of the
crime, he is not liable.

Q: How do you prove knowledge?

A: That is circumstantial evidence. It can be proven directly or
indirectly. But what is important is that he has knowledge of the
commission of the crime.

Q: what are the acts of an accessory?

A: First is by “profiting by the effects of the crime”. A good example
of profiting by the effects of the crime is to receive a stolen property
as a gift knowing it to be stolen. Like when a person robs the bank
for P1M, then he gives you P1,000.xx as “balato”, you become an
accessory. Or, another example, is you know that a certain property
is stolen and you know that that property is valuable. But the robber
wants to dispose of it as fast as possible so he sells it to you at
P1,000 even if its real worth is P10,000. So you but it—so in effect,
you profit. Even if you did not receive anything from the stolen
property but you looked for a buyer in behalf of the robber, you are
an accessory because you assisted the robber for the latter to profit
by the effects of the crime.

Q: How do we compare paragraph 1 of Article 19 with a special law

known as the “Anti-Fencing Law” (PD 1612)? How do you define the
word “fencing”?
A: That is section 2 Paragraph 2.
Fencing is the act of any person who, with intent to gain for
himself or for another, shall buy receive, possess, keep, acquire,
conceal, sell or dispose of, or shall buy and sell, or in any other
manner deal in any article, item, object, or anything of value which
he knows, or would be known to him, to have been derived from the
proceeds of the crime of robbery or theft.

Prior to the passage of the Anti-Fencing Law, the

liability for these acts were considered as those of accessories.

Dela Torre vs. COMELEC

A Petition for disqualification was filed for having been

convicted of a crime involving moral turpitude – a disqualification
in the Local Government Code.
 The SC said that violation of the Anti-Fencing law is a crime
involving moral turpitude.

This case also provided for the elements evincing fencing.

Q: What is the penalty for the accessory?

A: It is very much lower. But in reality according to the whereas
clause of the Marcos Decree, thieves and robbers are encouraged to
steal and rob because there are people who buy. If you discourage
buyers by making the penalty heavier, the robbers are discouraged.
So, PD 1512 was enacted to discourage buyers who are not
considered accessories but as principals.

Q: Can I be liable as an accessory for the crime of robbery or theft,

and be liable for the violation of the anti-fencing law – because there
are 2 separate crimes but relying on the same facts and
circumstances, so double jeopardy may be invoked. What is act of
fencing?
A: With intent to gain for yourself or for another. So, profiting or
assisting the thief or robber to profit, receive, possess, acquire,
conceal, sell or dispose of, or shall buy and sell, or in any other
manner deal in any article, item, object, or anything of value which he
knows, or should be known to him, to have been derived from the
proceeds of the crime of robbery or theft. There is no loophole. You
can be arrested. But if you are an accessory, if you do no know that
the thing is stolen, you are not liable. The law requires that you must
know that the property is stolen. But in Anti-Fencing, not only what
you know is included, but also, what should be known to you.

For example, you buy property form someone who is not the
usual dealer of that item. If you that expensive property from a
department store and it turned out to be stolen – and you claimed
that you did not know that it is stolen…Several years ago, there was a
group of minors who “specialized” in removing tires. They would sell
the tires to a dealer of stolen tires. Who are the persons to be
charged with fencing? The dealer. But the dealer will say: “I did not
know. I thought those kids were dealers of Firestone tires.” Or
somebody is offering a watch valued at P10,000, but which is sold to
you at P3,000. That is already a sign that it is probably stolen and it
should have been known to you.

Another important section here is that the penalty is higher than

that imposed upon an accessory.

SECTION 5, PD 1612. Mere possession of any goods, article, item,

or anything of value which has been the subject of robbery or
thievery shall be prima facie evidence of fencing.
Of course, this presumption could be rebutted – that you did not
know or that it could not have known. The presumption here is that
you are liable for fencing in that you have in your possession the
stolen property.

Q: IS this provision constitutional considering that the Constitution

presumes innocence of the accused?
A:
DIZON-PAMINTUAN vs. PEOPLE
234 SCRA 63

Does the law have the right to create that presumption?

Section 5 of PD 1612 provides that “mere possession of any
goods, article, item, object, or anything of value which has been
the subject of robbery or thievery shall be prima facie evidence of
fencing.”

The presumption is reasonable for no other natural and

logical inference can arise from an established fact of possession
 of the crime of robbery or theft. This presumption foes not
offend the presumption of innocence of the accused enshrined in
our fundamental law.

In cases of statutory crimes, no constitutional provisions is

violated by statute that proof by the state of some material state
of fact or facts shall constitute prima facie evidence of guilt and
that the burden is shifted to the accused for the purpose of
showing that such act or acts are innocent and are committed
without lawful intention.

The second way of committing, as an accessory is by concealing or

destroying the body of the crime. In Latin, corpus delicti. In the
crime of homicide (fact of death – corpse – is the body of the crime),
how do you conceal it? By burying the corpse.

Why? The reason is simple: murder or homicide, to be established

to have been committed by the accused, the prosecution must prove
that the victim died. How can you prove the death of the victim if
you hide the body? The evidence would probably be that you have
been seen with the victim the last time. But it does not prove that
the victim died.

With that, what happens? The victim is declared a missing person

because there is no evidence that he is dead. So, the most that can
be done is to declare him civilly dead, but not criminally dead. The
prosecution cannot file a murder or homicide case if the proof of
death is absent. You can conceal the body by burying it. Or you can
destroy the corpse.

Or you can conceal or destroy the effects of the crime…like the

murder weapon...throw it away. You are not he killer but you
assisted. Or you hide a stolen car. Here, I can be held liable as an
accessory and under the anti-fencing law. So, one who conceals the
effects of the crime under paragraph 2 are also liable under the Anti-
Fencing Law, because that is also one way of concealing stolen
property under PD 1612.

The third is by harboring, concealing, or assisting in the escape of

the principal of the crime, provided that the accessory acts with abuse
of public functions or whenever the author of the crime is guilty of
treason, parricide, murder, or an attempt to take the life of the Chief
Executive, or is known to be habitually guilty of some other crime.
The one concealed is not the body,--the effects of the crime, but the
criminal himself. You harbor a criminal.
Suppose, while I am walking in an uninhabited place, I saw A kill
B, since there is o witness, nobody knows who is the killer. So, the
wanted criminal is unknown. But I did not report it. I remained
silent. In effect, I have harbored – I have assisted the criminal from
escaping. That is the net effect. Am I liable as an accessory under
Paragraph 3? NO, the act referred to here by the law is an active act,
not a passive act. Because a passive act is an omission not covered
under Article 19. You may be accused of lack of civil spirit, but you
are not criminally liable as an accessory.

Q: How do you become an accessory under paragraph 3?

A: There are 2 types of persons who can be accessory:

1. those by harboring, concealing, or assisting in the escape of the

principal of the crime provided that the accessory acts with
abuse of his functions.

Meaning, he is in government service. For example, A commits rape

or homicide. Then he tells his policeman-friend, “ Pare, I killed
somebody. Please help me.” “Okay, then I will help you.”
Q: Is the policeman an accessory for the crime of rape?
A: Yes. Well, there is no mention of rape under paragraph 3. It only
mentions treason. Parricide, murder, or an attempt to take the life of
the Chief Executive, or is known to be habitually guilty for some other
crime. If the accessory is a public officer, he is am accessory for any
crime committed, provided, that the penalty is light. It is not limited
to those enumerated. The crimes specifically mentioned refers to, if
the person who helps you escape is a private individual.

Q: So how do you interpret this?

A: There are 2 persons who can commit as an accessory:
(1) a private person(only those mentioned); or
(2) a public officer( automatically an accessory regardless of the
crime except when the felony is light).

So, based on the problem, A commits rape and he approaches

his kumpare who is a private individual. Is he an accessory? He is
not, because he is not one of those enumerated.

PROBLEM: Suppose, the principal commits murder knowing

about it, I assisted him to escape. So, there are 2 cases filed against
me and against the principal. But he was at large and I am arrested.
QUESTION: Can I be tried and convicted without the principal being
arrested and convicted? The cases before decided by the SC said no
because the guilt of the accessory will depend on the guilt of the
principal. The law says that whenever the principal of the crime is
guilty, the accessory can be guilty.

Another reason in the SC, suppose that after the principal is

found guilty of homicide and not murder, what happens to you?
You’re free. So, it is necessary that the principal comes first. But this
reasoning has been reversed. The accessory can be tried before the
principal is convicted. But how do you reconcile that with the law
that he must be found guilty?

What it means is that before the accessory can be convicted, the

prosecution must prove that the crime was committed and that the
principal who is still at large committed it. Hence, the probable of
hypothetical guilt of the principal must first be proved before the
accessory can be convicted. The hypothetical guilt is only used as a
stepping-stone to convict the accessory. For, to mean that the
principal must first be convicted would result in a miscarriage of
justice.

BINO vs. PEOPLE

178 SCRA 626

Issue: Can the trial of an accessory proceed without awaiting the

result of the separate charge of the principal?

Held: YES. The corresponding responsibilities of a principal,

accomplice and accessory are distinct from each other. As long
as the commission of the offense can be duly established in
evidence, the determination of the liabilities of accomplices and
accessories may proceed independently of that of the principal.

In connection with paragraph 3, there is a law where the language is

similar to paragraph 3 but broader. That is PD 1829, also known as
Law Penalizing Obstruction of Justice.
SECTION 1, PARAGRAPH c “x x x harboring or concealing, or
facilitating the escape of any person he knows, or has reasonable
ground to believe that the suspect has committed any offense under
existing penal laws in order to prevent his arrest, prosecution and
conviction.
 For example, A committed rape and asks his friend to help him
escape. Is the friend an accessory under the Penal Code? The
answer is NO, because there is no mention of rape. Can the friend be
liable under PD 1829? YES, because the law says; “xxx any offense
under existing penal laws”. Similar to Anti-Fencing Act, you are not
an accessory but a principal for obstruction of justice.

Q: Suppose, the crime is drug pushing, are you an accessory under

the RPC?
A: No. but, under PD 1829, you can still be liable.

This is the interesting question: you commit a felony…a slight

physical injury. I am a policeman and I concealed you. So, the public
officer exceeded his function. QUESTION: Is the policeman liable as
an accessory under RPC? ANSWER: NO, because it is only a light
felony. But is liable under PD 1829? YES, because it does not
distinguish. It states “ any offense”. What is worse is the penalty for
the principal is arresto menor but under PD 1829, prision
correctional…so, 6 years. Am I saying that that is the answer? I do
not say that that is the answer, but that seems to be the answer.

People vs. Ortega Jr.

July 29, 1997

Facts: X stabbed A. Y came along believing A was already dead

assisted X in concealing the body of A by throwing the body inside a
well. It turned out that A was still alive and died by drowning.
Held: Y is not only liable as accessory to X’s crime but as a
Principal of homicide being responsible for all the consequences of his
unlawful act.
ARTICLE 20. Accessories who are exempt from criminal liability.----
The penalties prescribed for accessories shall not be imposed
upon those who are such with respect to their spouses,
ascendants, descendants, legitimate, natural and adopted
brothers and sisters, or relatives by affinity within the same
degree, with the single exception of accessories falling
within the provisions of paragraph 1 of the next preceding
article.

What is contemplated by the law is that the principal and the

accessory are related. It is natural that relatives protect each other.
Hence, the law understands that. So, the relative who conceals the
body or effects of the crime or conceals the criminal who is a relative
is exempted form criminal liability by reason of public policy.
Take note: this is an exempting circumstance. Exception is an
accessory under paragraph 1 who profits or assists the offender to
profit by the effects of the crime. In that situation, you have not
desired to make the family clean, you have also tainted the family’s
name.

Title Four
EXTINCTION OF CRIMINAL LIABILITY

Chapter One
TOTAL EXTINCTION OF CRIMINAL LIABILITY

ARICLE 89. How criminal liability, is totally extinguished. – Criminal

liability is totally extinguished:
1. By the death of the convict, as to the personal
penalties; and as to pecuniary penalties, liability
 therefor is extinguished only when the death of the
offender occurs before final judgment.
2. By service of the sentence.
3. By amnesty, which completely extinguishes the
penalty and all its effects.
4. By absolute pardon.
5. By prescription of the crime.
6. By prescription of the penalty.
7. By the marriage of the offended woman, as provided
in Article 344 of this Code.

The modes of extinguishing criminal liability. Take note that

criminal liability begins with a crime. Criminal liability starts by
incurring it, but there is also an end or extinction to criminal liability.
Q: What are the grounds for the total extinction of criminal liability?
A: There are exactly 7 ways of totally extinguishing criminal liability
under the Revised Penal Code.

1. By the death of the convict, as to the personal penalties; and as to

the pecuniary penalties, liability therefore is extinguished only when
the death of the offender occurs before final judgment.

What more can you ask of him if he dies? So, if the accused dies
during the trial, after the trial, or even while he is serving sentence, it
does not matter. From the moment he dies, his criminal liability is
extinguished. The trial cannot proceed, the case has to be dismissed.

We cannot say that we will continue the trial for the record. If he is
serving his sentence, after his death, that is the end. Who will serve
his sentence after his death? If you will say, “we will let the family
continue—they will inherit the penalty.” Is there such a thing as
criminal liability by succession?
The death of the convict extinguishes his criminal liability as to the
personal penalties.

Q: What are personal penalties?

A: They are penalties which consist in imprisonment, loss of rights –
like disqualification, suspension. These are what you call personal
liabilities – perpetual disqualification, suspension, civil interdiction.

Q: How about the pecuniary penalty?

A: An example of a pecuniary penalty is fines.

Q: Suppose a convict is sentenced to pay a fine. And then he dies,

what happens to his obligation to pay the fine?
A: This time, the RPC distinguishes whether he died BEFORE the
judgment became final, or AFTER the judgment became final.

For example, while the case is on appeal, he dies, then it is also

finished. The obligation to pay the fine is extinguished. But, if the
pecuniary judgment has become final and executory, then he dies,
the obligation to pay the fine is not extinguished because the fine can
be collected by the State through his assets. Based on his assets, the
government can enforce the payment of the fine. That is the
distinction. Distinguish whether the penalty is personal or pecuniary.

How about the civil liability? Suppose, a person is convicted by

the RTC for homicide, sentenced to imprisonment and ordered to
indemnify the family of the victim the sum of P20,000 by way of
compensatory damages. Or, any other type of criminal case where
there is civil liability. The accused appealed. While the appeal is
pending in the CA, the accused died.

What happens now to the civil liability? Can this continue or not?
The old rule was, from the moment the convict died, the case would
be dismissed. The civil liability would also be extinguished.

However, that ruling – that the case can no longer continue after
the death of the accused as to both criminal and civil liability – was
reversed starting with the rulings in the case of Torrejos vs. CA, (67
SCRA 349), reiterated in the more famous case of People vs.
Sendaydiego, (81 SCRA 120).

These cases are commentaries on what happens after the death

of the convict, as to civil liability. What will happen to the case on
appeal? The first two cases are followed by a few more cases, then
in 1992, People vs. Badico, (204 SCRA 182) – and among others,
about 8 cases where upon the death of the accused or convict, while
the case is on appeal, the criminal liability extinguished but not the
civil liability.
Q: But how can the civil liability proceed?
A: By substitution of party defendant. In other words, convert it into
a civil case.

Q: What is the basis for that?

A: The cases for that was Article 30 of the Civil Code and Section 20,
Rule 3 of the 1997 Rules of Court. Remember Civil Procedure, Sec.
20, Rule 3? That’s where after the death of the defendant, if there is
already a final judgment by the RTC but not yet final, and then the
defendant dies, you do not dismiss the case anymore but you
substitute with the heir of legal representative.

ARTICLE 9, CIVIL CODE. When a separate civil action is brought

to demand civil liability arising from a criminal offense, and no
criminal proceedings are instituted during the pendency of the civil
case, a preponderance of evidence shall likewise be sufficient to
prove the act complained of.
SECOND 20, RULE 3, RULES OF COURT. Where claim does not
survive. – When the action is for recovery of money, debt or interest
thereon, and the defendant dies before final judgment in the RTC, it
shall be dismissed to be prosecuted in the manner especially provided
in these rules.
That was the basis. And that ruling subsisted until the SC en
banc – so, doctrinal, reversed all these previous cases and reverted to
the original rule, in the leading case of People vs. Bayotas, (236
SCRA 239). This was promulgated by the SC en banc on Sept. 2,
1994.

People vs. Bayotas

Civil and criminal liability, ONLY THOSE BASED ON THE

CRIME, upon the death of the accused, during the pendency of
his appeal are EXTINGUISHED without prejudice to the filing of a
separate civil action or claim against the estate of the deceased.

The other sources of obligation are not extinguished. Those

arising either from:
Quasi-delict;
Contract;
Quasi-contract;
Law.

The civil liability arising from the crime is extinguished. The SC

never said that the civil liability arising from all sources of obligation
are extinguished.

Q: Does the death of the accused pending appeal of his conviction

extinguish his civil liability? Does such death affect his criminal
responsibility and civil liabilities which are the consequences of his
crime?
A: Yes. We go back to the old rule. The SC said the earlier ruling in
Torrejos vs. CA; People vs. Sendaydiego and succeeding cases,
are abandoned. Why? In these cases, there was a mistaken reliance
on Article 30 of the Civil Code and Section 20, Rule 3 of the Rules of
Court. In other words, the SC after several cases said, “We made a
mistake.”

If we were to render the penalty in the intendment of Art. 100 of

the RPC, which provides that every person criminally liable for a
felony is also liable, in such cases extinction of the criminal action due
to the death of the accused pending appeal inevitably signifies the
concomitant extinction of the civil liability, works only in absolving.
So, meaning, no more substitution. You cannot say, “Okay, we will
substitute the heirs to continue the case as to the civil aspect.”

Q: Don’t you think it is quite unfair—just imagine if you’re a victim of

theft or estafa, and there is no more means of getting back what was
taken away from you?
A: No, what the SC is saying is that you cannot extinguish the civil
liability in the criminal case. The SC never said you can never collect
in the civil case if the defendant died. What it is saying is that you
cannot collect the civil liability in the criminal cases. It cannot
continue. Substitution is not allowed.

Q: What is the philosophy behind this?

A: You go back to the Civil Code. Article 1157 of the Civil Code.

ARTICLE 1157, CIVIL CODE. Obligations arise from:

1. Law;
2. Contracts;
3. Quasi-contracts;
4. Acts or omissions punished by law; and,
 5. Quasi-delicts.

Number 4, acts or omissions by law – that includes civil liability

arising from crimes. That is also a source of obligations. But
obligations arise not only from crimes; they also arise from quasi-
delict (culpa-aquiliana), quasi-contracts, or contract, or the law itself.
The SC said, in this case of Bayotas, if the obligation to recover
is extinguished, with the case is only coming from the crime – the
only source of the obligation is the crime, the death of the convict
also extinguishes it. However, it is also possible that the obligation to
pay arises also from the crime and from other sources.

EXAMPLE: You entrusted me to your goods, and then I run away with
your goods. That is estafa. I will be liable for estafa, abuse of
confidence. Do I have the obligation to return to you your goods? Of
course. Why? As a civil liability for the crime of estafa. But even if
there is no estafa, I still have to return to you your goods because of
the contract of agency. So, the obligation here arises from 2 possible
sources.

Or, for example, you hit a pedestrian while you are driving a
vehicle. So you are accused of homicide or reckless imprudence. If
you are convicted, you have to indemnify the family. Your obligation
here arises from a criminal act. But, even without the criminal act,
you are still liable under the source of quasi-delict. Meaning, the civil
liability here can arise from 2 possible sources.

If the source of the liability is only the crime, then it’s goodbye for
you. Death dissolves everything. But, if aside from the crime the
civil liability can be recovered from any other source – for example –
contract or quasi-delict, then you can still recover despite the death
of the defendant.
Q: What is the correct procedure?
A: The correct procedure is not to continue with the criminal case but
to file a separate civil action. Or, if it is arising from the contract, you
can file a claim against the estate of the deceased under Rule 85,
under the Rules on Special Proceedings. That is the correct
procedure now. but definitely you cannot ask the criminal case to be
continued and convert it into a civil case.

This distinction presupposes that the civil liability is deemed

instituted in the criminal case. That the victim never made the
reservation for an independent or separate civil action.

Do not be afraid because when you file the criminal case where
the civil case is deemed instituted.

To summarize the new rulings in the case of Bayotas:

 The death of the accused pending of his conviction extinguishes his

criminal as well as the civil liability based solely thereon. Meaning,
the source of the obligation is only the crime.
 Corollarily, the claim for civil liability survives notwithstanding the
death of the accused if the same may also be predicated on a
source of obligation other than the crime, citing Article 1157 of the
Civil Code.
 Where the civil liability survives as explained in #2 above, an action
for recovery thereof may be pursued but only by way of filing a
separate civil action and subject to Sec. 1, Rule 111 of the 1985
Rules on Criminal Procedure. This separate civil action or claim
may be enforced against the executor or administrator of the estate
of the deceased, depending on the source of obligation upon which
the same is based. If the claim is arising form contract, you claim
against the estate. If it is arising from quasi-delict, claim by civil
action against the executor.
 The private offended party need not fear the forfeiture of his rights
to file a separate civil action by prescription.

In such case, the statute of limitations does not run. The liability
is deemed interrupted during the pendency of the criminal case
conformably with Article 1155 of the Civil Code. That should avoid
any apprehension the possible of right by prescription.

2. By service of the sentence.

3. By amnesty, which completely extinguishes the penalty and
all its effects.
4. By absolute pardon.

Q: Distinguish amnesty from pardon?

A:

AMNESTY PARDON
Covers a group of people Individually
Covers Political Crimes only May be granted for common
crimes
Erases the crime Erases the penalty but not the
crime. The conviction remains
Amnesty can come before Generally pardon comes after
conviction. Meaning, during or conviction.
after conviction. It can be given
anytime.
Amnesty is an OFFICIAL ACT. Pardon is a private act by the
The Executive Department President. And not within the
confers it and there is no need realm of judicial notice. In order
to present evidence on the to invoke it, one must present
amnesty proclamation. evidence with respect to the
pardon.
 MONSANTO vs. FACTORAN
170 SCRA 190

Facts: Linda Lopez was convicted by the Sandigan Bayan of

Estafa and falsification of public documents. She was sentenced
accordingly. She was ordered to pay, among others, P5,000.00
representing the balance of the amount defrauded. That is the
civil liability for the crime of estafa. The case reached the SC,
which affirmed the judgment of conviction. During the pendency
of the appeal, Lopez filed a motion for reconsideration in the SC.
In the said court, the President extended to her an absolute
pardon. By reason of such pardon, she returned to the
Department of Finance and requested that she be reinstated to
her former position as Asst. Treasurer which was still vacant.

The Department ruled that Linda may be reinstated to her former

position without the necessity of reappointment and directed her
to see to it that the sum of P5,000.00 is satisfied. She may be
reinstated but she has to pay the civil liability. Claiming that she
is not obliged to pay P5,000, Linda appealed to the Office of the
President. Even the P5,000, she would not like to pay . The
Office of the President dismissed the appeal, and her acquittal
due to the pardon is the only ground for her reinstatement to her
former position. That absolute pardon does not exempt the
culprit from paying the civil liability. Mosanto went to the SC.

Held: She will be entitled to apply again. The SC based its ruling
on the nature of the pardon. The very essence of pardon is
forgiveness or remission of guilt. Pardon implies guilt. It does
not erase the fact of the commission of the crime and the
conviction thereof. The conviction stays. Pardon does not was
out the moral stain. It involves forgiveness and not
 forgetfulness. Pardon looks to the future. It is not retrospective.
It makes no amends for the past. It affords to relieve from what
has been suffered by the defendant.

Pardon may relieve a person form disability of fines and

forfeitures attendant in a conviction. But it cannot erase the
stain of bad character which has definitely been fixed. Pardon
cannot produce such moral charges as to equate the pardoned
convict in character and conduct with one who was constantly
maintained the mark of good law-abiding citizen. Pardon cannot
bring back lost virtue for honesty, integrity and credibility.

So, what is the ruling? Lopez is not entitled. The pardon does not
entitle her to get back her former position. There is a missing
question: How about the civil liability? Art. 113. Pardon extinguishes
only the criminal aspect; the civil liability in favor of the government,
the fine, yes, but not the civil aspect of the case.

ARTICLE 113, RPC. Obligation to satisfy civil liability.— Except in

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

 Pardon cannot be given if there is no conviction by final judgment

yet.
REMEDY: Withdraw the appeal and let it become final to avail of the
benefit of pardon.

People vs. Bacang

 Facts: While appeal for murder was pending in the SC, the
President granted the pardon.
Held: The pardon is null and void. The accused were re-
arrested. The officers recommending the accused for pardon to
the President were ordered to show cause within 30 days why
they should not be held liable.

5. By prescription of the crime.

Prescription of the crime means the State forfeits or loses its right
to prosecute the Offender by reason of the lapse of time. So there is
a deadline for the filing of a criminal case. Beyond that, the criminal
liability is already extinguished. The periods for the prescription of
crimes is found in the next article.

6. By prescription of the penalty

The State forfeits its right to enforce a given

penalty also because of the lapse of time. They are already all
convicted, take note. They have been convicted- final, there is
already a sentence. There is already a penalty.

Suppose, somehow you are able to evade the penalty.

The penalty cannot be served because you cannot be found. You
disappeared. The State also has a deadline within which to catch you
compel you to serve your penalty. Beyond a certain period of time,
the penalty also will prescribe. After that, you can no longer be
compelled to serve penalty.

7. By the marriage of the offended woman, as provided in

 Article 344 of this Code.

This is applicable only to Crimes against Chastity—rape, seduction,

abduction, acts of lasciviousness. When the victim of the rape, etc.
marries the abduction or the rapist, the criminal liability of the
accused is automatically extinguished. So, from victim to wife.

ARTICLE 90. Prescription of Crime—Crimes punishable by

death, reclusion perpetua or reclusion temporal shall
prescribe in twenty years.
Crimes punishable by other afflictive penalties shall
prescribe in fifteen years.
Those punishable by a correctional penalty shall
prescribe in ten year; with the exception of those punishable
by arresto mayor, which shall prescribe in five years.The
crime of libel or other offenses shall prescribe in one year.
The offenses of oral defamation or slander by deed shall
prescribe in six months.
Light offenses prescribe in two months.
When the penalty fixed by law is a compound one, the
highest penalty shall be made the basis of the application of
the rules contained in the first, second and third paragraphs
of this article.

 Applies ONLY to FELONIES

Meaning, a case must be filed within a certain period. Otherwise,

lapsed. The period starts from the highest to the lowest. From crimes
punishable by death, reclusion perpetua—the gravity. Then from 15
to 20 years. Afflictive penalties: prision mayor, reclusion temporal, etc.
 Then, crimes punishable by CORRECTIONAL PENALTIES with the
exception of arresto mayor. Suspension, destierro are 10 years. The
lowest, arresto mayor is 5 years. So, 20-10-5, and then light felonies
—prescribed penalty 2 months (60 days).

There are certain crimes with special prescriptive periods, like

libel, which prescribes only in 1 year. Oral defamation and slander by
deed are also special crimes. But oral defamation and slander by
deed (6 months) refer to grave oral defamation, or serious or grave
slander by deed. If it is slight oral defamation, that’s only 2 months.
That’s only a light felony.

DAMASCO vs. LAQUI

166 SCRA 214
(reiterated in the case of
MAGAT VS. PEOPLE)

Facts: A is accused of less serious physical injuries. This is

punishable by arresto mayor, prescriptive period: 5 years. The
case was filed within 1 year after the incident. So, it was filed
on time. The case was tried. After trial, the court said: “ The
accused is guilty as charged.” But actually in this case, less
serious physical injuries, the injury is only slight. Lesser offense.
So the court convicted the accuse of the crime of slight physical
injuries.

But the charge is less serious physical injuries. With that,

the accuse said:” I move to set aside the conviction including the
penalty.” Why? “Because if it is slight physical injuries only, I
committed only a light felony. Therefore, the charge against me
should have been
 filed within 2 months. You filed the information for 1 year.” The
prosecutor said: “But we did not accuse you of slight physical
injuries. We accused you of less serious physical injuries, which
prescribes in 5 years. It is only accidental that you were
convicted of slight physical injuries.”

Held: Prescribed. The information should have been filed within

2 months. If we will follow the prosecution’s theory, you can
easily beat prescription. That will be one way of circumventing
the law of prescription.

Where the accused has been found to have committed a

lesser offense included within the criminal offense charged, he
cannot be convicted of the lesser offense if it has already
prescribed. To hold otherwise would be to sanction a
circumvention of the law on prescription by the simple expedient
of accusing the defendant of the graver offense.

Q: The crime is committed on March 15, 1995. Slight physical injuries

(light felony). The information was filed on My 15, 1995. Has the
crime prescribed, or was the deadline met by the prosecution?
A: What do you mean by months? Months mean 30 days. March has
31 days. March 15 to April 14 is one month. April has only 30 days
( April 14 to May 14). Therefore, in the given case, the information
was filed on May 15, so the deadline to file was supposed to be on
May 14. So you must know how to compute.

Q: Suppose the last day fall on a Sunday. How can I file the case on
a Sunday? Or, if the last day is a holiday?
A: The law on pleadings. If you failed to file an answer in a civil case,
or if the filing of the appeal falls on a Sunday or a holiday, it can be
done on the next business day. That is found in the revised
Administration Code. Meaning, there is an automatic extension. So,
now the failure to file an answer in a civil case, the period to file the
notice of appeal, if it falls on a Sunday, then file it in the next
business day (Only applies in pleadings and in civil cases NOT to the
filing of criminal complaints or information) . That was the issue in the
case of Yapdiangco vs. Buencamino (122 SCRA 713).

Q: How do you compute the prescriptive period of a crime?

A: The prescriptive period under Article 90 applies only to those which
are in the penal code. It does not apply to crimes punishable by
special laws. In special laws, it provides for its own prescriptive
period. Well, I think most annotated books, the author cites an old
law which gives the prescriptive period of crimes punishable by
special law.

LLENES VS. DICDICAN

260 SCRA

Act No. 3326 provides for the prescription period for offenses
under special laws.

 Light offenses prescribes in two months.

April 15 – committed – 4/15 – 4/30 – 15

- 5/01 – 5/31 – 31
June 15 - filed - 6/01 – 6/15 – 15
Prescribed!!! 61

 There are 30 days in one month.

Q: What is the prescriptive period for crimes punished by Special
Laws?
A: Act No. 3326 provides for the same.

Article 90 and 91 – covers those felonies found in the RPC.

Act No. 3326 – provides for those penalized by Special Laws.

ARTICLE 91. Computation of Prescription of Offenses. – The

period of prescription shall commence to run from the day
on which the crime is discovered by the offended party, the
authorities, or other agents, and shall be interrupted by the
filing of the complaint or information, and shall commence
to run again when such proceedings terminate without the
accused being convicted or acquitted, or are unjustifiably
stopped for any reason not imputable to him.
The term of prescription shall not run when the offender
is absent from the Philippine Archipelago.

The period of prescription commences to run from the date the

crime is discovered. Take note, the word is “discovered” and NOT
committed. Normally, the crime is discovered only when it is
committed. It is absurd. When you box me and you will only
discover this fact tomorrow. You discovered the offense upon
commission. But there are some crimes where the date of discovery
will not coincide with the date of commission of the offense.

A good example is murder or homicide. If a victim is killed and

his cadaver is buried to prevent its discovery. So the person killed is a
missing person because nobody knows where his cadaver is. But
after one year his cadaver was discovered and identified. In other
words, the discovery came after one year from its commission.

Another example is if in a public gathering you were not there.

There, you were defamed by the accused. He said so many things
about you publicly. So he committed the crime of oral defamation.
But you did not know about it. So one day one of those who were
present in the gathering told you that this is what happened. Oh, so
I see! How do you compute the prescriptive period in this case? It is
not the day of the commission but on the date of discovery. That is
how discovery and commission of the offense will not coincide.

Bu the law says, not only discovered… discovered by whom? It is

discovered by the
1. Offended party;
2. The authorities; or
3. His agents.

Now in the case of offended party in crimes against persons, it is

not the person who died first but his family.

PROBLEM: Suppose, A murders B in an uninhabited place without

knowing it that there is somebody who saw it. X who is a farmer saw
it. He did not say anything about it. So assuming A hid the cadaver
and thought that nobody has seen the crime. Now, for several years,
X kept silent and then after several years, he told the authorities of
the death of B and the killer, A. Just look over there, where the body
is.

Q: When does the prescriptive period commence to run?

A: It commences to run from the time after he told the police and it
does not commence to run form the time the farmer saw it because
he is not related to the victim, he is not a person in authority or his
agent. So, it must be discovered by the right person.

The law says the discovery of the crime, NOT the discovery of the
criminal. Suppose the crime is committed today and it was
discovered today but nobody knows the criminal, when do you start
computing the prescriptive period? Of course today. Because it was
today that the crime was discovered. But nobody knows the killer. For
20 years the killer is in hiding. And after 10 years he surfaces.
PROBLEM: A murdered B. The police discovered the crime one year
from its commission. Twenty years later, A confessed that he
committed the murder.

Q: Prescribed?
A: Yes. What the police must do to prevent this is to file a complaint
before the court, People vs. John Doe. Hence, even if the above-
situation surfaces the accused may still be prosecuted because the
case has already been filed. The prescriptive period has been
stopped to run.

When does the time of running the prescriptive period stop to

run? By filing a complaint or criminal information. Well, you know in
criminal procedure, you know the distinction between a complaint and
a criminal information.

In criminal procedure, a MTC judge can conduct preliminary

investigation on cases triable by the RTC. Unlike in the city, it is not
allowed. Suppose the complaint for murder is filed in the MTC for
preliminary investigation because they cannot try the murder case
because it is not within their jurisdiction. Is the filling of the criminal
complaint for preliminary investigation in the MTC sufficient to
interrupt the running of the prescriptive period or is it the filing of a
case in a court which has jurisdiction?

That is where jurisprudence sets in.. People vs. del Rosario,

but the doctrine is in the case of People vs. Olarte. The SC said:
The filling of the complaint for the purpose of preliminary
investigation stops the running of the prescriptive period. Why?
Because according to the SC, Article 91 does not distinguish whether
the complaint was filed for trial or for preliminary investigation.

Let us go to the fiscal because a complaint for a preliminary

investigation can also be filed in the fiscal’s office. It is called a
“denuncia”. Suppose a police files a criminal complaint for murder or
denuncia before the fiscal’s office. Will the filing thereof interrupt the
prescriptive period? The old rule in No. That which is filed in the
MTC, yes, in the fiscal, no. But one division of the SC in 1983 said
the filing of complaint before fiscal’s office stops the running of the
prescriptive period.

Then, two years later came the 1985 Rules on Criminal Procedure
which rejected the ruling. So, the filing does not interrupt. But in
1998, the criminal procedure was amended. The last paragraph of
Sec. 1, Rule 110 says: “ The institution of a criminal case,
whether it is instituted in the fiscal’s office or court, whether
for trial or criminal investigation is sufficient to interrupt the
prescriptive period. The amendment in 1988 reinstated the
Francisco ruling. So, since 1988, the filing of a complaint in the
fiscal’s office is also sufficient.

However, in 1991 or 1992 in the case of REYES, the SC

distinguished if the complaint filed in the fiscal’s office is covered by
the summary rules, it does not interrupt. But if it is not covered by
the summary rules, then it does interrupt. But we will touch this
more in the rules on criminal procedure. So, from the filing of the
complaint, the running of the prescriptive period stops but it
continues to run again if the proceedings are terminated again
without any acquittal or condition.

If the case ends with an acquittal or termination, then it cannot

be re-filed because there is already double jeopardy. But if the case
ends not based on acquittal or termination, meaning the case ends
without all the conditions for double jeopardy present, the running of
the prescriptive period continues. A good example is when the case
is dismissed because of technicality like lack of jurisdiction or the
information is not charging an offense or the person filing the
information has no authority to do so.

And the period of prescription according to article 91 does not

run if the offender is outside the country because there is no way for
the court to acquire jurisdiction over your person and because if you
go into hiding it works against you.

PEOPLE vs. REYES

175 SCRA 597

Facts: This involves the crime of falsification of public document.

A deed of sale was falsified by the accused. And the accused
registered it in the Register of Deeds on May 26, So, I falsified
the document, meaning, I made it appear that the property was
sold to me and I forged the signature, then I registered the deed
of sale in the Office of the Registry of Deeds in 1961.
Complainants, the owner of the property claim that they
discovered the falsified deed of sale on June 1983.

So, when was the crime? 1961, Registered? 1961. But the
complainant said: “We discovered in June 1983. A criminal case
for falsification was filed on October1984, one year later. The
prescriptive period for falsification: ten years. When do you start
counting the prescriptive period? In 1961, there are 22 years, so
it cannot be, or in 1983 where the complainants claim that they
discovered the existence of the falsified document. The law said
“discovered”.

Held: The crime has prescribed. The prescriptive period starts

from 1961. Why? Under the law on property registration,
registration of the document with the register of deed is notice to
the whole world. Meaning, the whole world and the
complainants are deemed notified. So it is constructive notice.

It is established that registration to the public registry is

addressed to the whole world, in legal contemplation, discovery
must be reckoned to have taken place from the time it is
registered in the Register of Deeds. The presumption in rules of
interpretation used in prescription on civil suits including the rules
on constructive notice can be applied to rules on criminal
actions. The rule on prescription of crimes is an act of amnesty or
liberality on the part of the state tin favor of the accused. The
rule on constructive notice in the construction of Art. 91 would
work favorably to the accused.

SERMON vs. CA
233 SCRA 155

Facts: This involves prosecution of bigamy. A man has 2

marriage contracts. He was prosecuted for bigamy and he
pleaded prescription. The wife said: “I discovered the second
marriage when I was in the State. The husband said nothing.
Remember the marriage contract was registered in the civil
registry and that is also constructive place under the case of
Reyes.

Issue: Whether in computing the prescriptive period for the

crime of bigamy, should discovery be deemed to have taken
place from the time the offended party actually knew of the
subsequent marriage or from the second marriage was
registered in the civil registry consistent with the notice.

Held: The computation starts form the time the offended party
actually knew. So, not the time of registration. While the rules
 on constructive notice in civil cases may be applied in criminal
actions, if the actual and legal circumstances so warrants.
However, it will not apply in the crime of bigamy notwithstanding
its being favorable to the accused.

In the criminal cases cited, wherein the constructive notice

was applied, what is involved therein were land or property
disputes and certainly marriage is not property. What is
constructive notice? That is found in Section 52 of the Property
Registration Act. This provision has no counterpart either under
RA3753 ( Civil Registry Act) or under article 407-412 of the Civil
Code that there is constructive notice which leads us to the
conclusion that there is no legal basis on the constructive notice
rule to apply to the documents registered in the Civil Registry.

Where we put our imprimatur to the theory of the accused,

in all likelihood we would be playing right into the hands of
philanderers, for we would be equating the contract of marriage
into an ordinary contract or other similar document without due
regard to the stability of marriage as a social inviolable institution
the preservation of which is prime social duty.
What is going to prescribe is not the crime but the penalty
already imposed. So, what is the assumption? The assumption is
that the accused has been tried and convicted. As a matter of fact,
the only thing left is to enforce the penalty but somehow the convict
has evaded sentence and after the lapse of a certain period the
penalty will prescribe. Read Article 92. For example, you are
convicted to death and you escaped, be sure that you go in hiding for
20 years.

GARCIA VS. CA
266 SCRA 678
 Facts: Wife(husband) knew of the bigamous marriage of her(his)
husband(wife). Only after 15 years that she decided to file a
case for bigamy.
Held: The wife is also an offended party just like the State.
Hence, the crime has prescribed.
Side Issue: Temporary trips abroad are not included to interrupt
the prescriptive period.

If you look at the prescriptive periods here, they are almost

identical under Article 90- 20-15-10-5. In Article 90, the prescriptive
period for a light felony is 2 months. But in article 92, the prescriptive
period for a light felony is one year. That’s the difference. So for
example, you are found guilty of committing a light felony and you
were sentenced to one day of arresto menor. You do not want to
serve that. So you evade for one year. So, you need one year before
it will prescribe.

ARTICLE 92. When and how penalties prescribe. - The

penalties imposed by final sentence prescribe as follows:
1.) Death and reclusion perpetua, in twenty years;
2.) Other afflictive penalties, in fifteen years;
3.) Correctional penalties, in ten years, with the
exception of the penalty of arresto mayor which
prescribes in five years;
4.) Light penalties, in one year.

The assumption here is that the accused has already been tried
and convicted. The only thing left is to enforce the penalty but
somehow the convict has evaded serving the sentence and after the
lapse of a certain period the penalty will prescribe.
For example: You are sentenced to death. So you’d rather disappear
but be sure that you’ll not be caught for 20 years. After 20 years, the
penalty has already prescribed.

Prescription of penalties is almost similar to prescription of crimes

( Art. 90). The only variation is in Art, 90 the prescriptive period for
a light felony is 2 months, whereas in Art. 92 it is 1 year.

Example: You are found guilty committing a light felony. You were
sentenced to 1 day of arresto menor. But you don’t want to go to jail
to serve that 1 day. So, you must evade that for 1 year. So, you
need 1 year before it will prescribe.

ENFANTE VS. PROVINCIAL WARDEN

The reason for Article 92 citing Viada’s opinion of the

Supreme court of Spain.

During the period of prescription, the convict’s life is like an

animal which is hunted. He lives a life of misery, loneliness, etc…

ARTICLE 93. Computation of the prescription of penalties.-

The period of prescription of penalties shall commence to
run from the date when the culprit should evade the service
of his sentence, and it shall be interrupted if the defendant
should give himself up, be captured, should go to the same
foreign country with which this Government has no
extradition treaty or should commit another before the
expiration of the period of prescription.
 It commences to run from the date culprit evade his sentence.
So, you must evade, like escaping from jail. Or before you are to go
to jail, you evade like what happened to Rolito Go. The prescriptive
period had started to run in his favor. The judgement is final. I think
that is murder. So, that prescribes in 20 years. But it is interrupted
when you surrender or you are captured.

Suppose, you are sentenced to a crime where the penalty

prescribes in 15 years. I evade. After ten years I was captured. So,
I have to serve the penalty. Then, I escaped again. How long
should I remain at large? 5 years, because you have a deposit of ten
years.

The law says interrupted but it is not forfeited. It is also

interrupted when you go to a foreign country where our government
has no way of acquiring jurisdiction. So, be sure that you are here
when you want that prescription run in you favor. Also, be sure that
there is no extradition treaty in the country where you will hide.
Lastly, you must not commit another crime before the expiration of
the period of prescription. So, you must behave while you are in
hiding.

Q: Is this tantamount to encouraging person to escape? Why should

we reward a person from escaping?
A: The philosophy behind this provision was cited by Viada. There is
a similar provision in the Spanish Penal Code which was quoted by
the SC in the case of Infante vs. Prison Warden.

This is what is says: If a convict under confinement, at the risk of

being killed, succeed in breaking jail and also succeeds in evading re-
arrest for a certain period of time which by no means is short, despite
the effort of all the instrumentalities of the government including
sometimes the setting of prize or reward on his head, which here by
enlists the aid of the citizenry, that calls off the search for him, and
condones the penalty. This against the Government of the
Philippines. This is you against the whole world.

So, the fight is not even, the Government is stronger than you.
So, if you succeed in outwitting the government, the Government will
give a sort of amnesty.

But during that period of prescription, the escaped convict lives a

life a hunted animal, hiding mostly in the mountains and forests in
constant mortal fear of being caught. His life is far from being
happy, comfortable and peaceful, is reduced to a mere existence filled
with fear, discomfort, loneliness and misery. As Viada, the convict
who evades sentence is sometimes sufficiently punished by his
voluntary and self-imposed banishment, and at times that voluntary
exile is more grievous than the sentence he was trying to avoid. And
at all times he was to utilize every ingenuity and means to outwit the
Government agencies bent on recapturing him. For all this, the
government extends to him a sort of a condonation or amnesty.

Requisite: The period of prescription of penalties shall commence to

run from the date when the culprit should evade the service of his
sentence. Meaning, he must evade.

So for example: escaping from jail or before you could be

brought to jail, you hide. But it is interrupted when the convict:

1. Gives himself up;

2. Is captured;
3. Should go to some foreign country with which the government
has no extradition treaty; or
4. Should commit another crime before the expiration of the
 period of prescription.

Chapter Two
PARTIAL EXTINCTION OF CRIMINAL LIABILITY

ARTICLE 94. Partial extinction of Criminal liability – Criminal liability

is extinguished partially:
1. By conditional pardon;
2. By commutation of sentence; and
3. For good conduct allowances which the culprit may earn while
he is serving his sentence.

There are two ways of extinguishing criminal liability:

 Article 89, Total Extinction
 Article 94, Partial Extinction

Q: What are the modes of totally extinguishing criminal liability?

A: Article 89.
Q: What are the modes of partially extinguishing criminal liability?
A: Article 94. So, pardon. There are 2 types: if total, Article 89; if
conditional, Article 94.

In conditional pardon, the President will grant you pardon out

with conditions. If you do not want the conditions, you will not
pardoned. But you must not also commit a violation of the condition
or else you will be recommitted in jail. But in absolute pardon, it is
different—unless you commit another crime, that is another story.

Commutation of the sentence is the lowering of the penalty.

Another penalty will be imposed in place of a higher penalty, like you
were sentenced to death in the RTC, then the SC will lower it to
reclusion perpetua. The President can also commute the penalty. He
can pardon and he can also commute. As a matter of fact, when the
1987 Constitution was passed, where the death penalty could not be
imposed anymore unless the Congress revives it because of heinous
crimes—so, we had no death penalty from 1987 to 1994. The heinous
crime law took effect on January 1994. Now, what happens to those
people who were sentenced to death but before it could be imposed
here comes the 1987 Constitution. Is says that all those who were
sentenced to death are automatically commuted. So, this is
constitutional commutation.

Good conduct allowance is discussed in the preceding sections.

This is being imposed by the Bureau of Prisons. If a prisoner is
behaving well, they deduct days from his penalty. Just like in ROTC,
there is merit if you acted in good conduct.

Q: Article 94 only gives 3, but there are others which partially

extinguish criminal liability. What are they?
A:
 The system of PAROLE under the Indeterminate Sentence
Law; and
 The system of PROBATION under the Probation Law

Title Five

CIVIL LIABILITY

CHAPTER ONE

PERSONS CIVILLY LIABLE FOR FELONIES

ARTICLE 100. Civil liability of a person guilty of felony. –
Every person criminally liable for a felony is also civilly
liable.

That is a very short article but the ramifications are very

complicated. A complete understanding of Art. 100 is not confined to
Criminal Law. It also includes some principles in Civil Law—
Obligations and Contracts, Torts and Damages, and Criminal
Procedure. The procedural ramifications of Article 100 are not found
in the RPC. They are found in Rule 111 of the 1985 Rules on Criminal
Procedure. What are we going to review in Article 100 are only the
basic ideas.

When a criminal case if filed against you, whether you like it or

not a civil case is also filed. So in effect, when a criminal case is filed,
there is automatically or impliedly a civil case for recovery of civil
liability filed. So when you are sentenced, you are sentenced not only
for the criminal offense but you are also sentenced as to your civil
liability. That is why there are 2 aggrieved parties in the criminal
action. One is the State represented by the prosecutor for the criminal
offense. The other one is the private offended party who is given the
law the right to recover civil liability. How is this litigated? Through
representation by the private prosecutor.

 Bayotas Case: If a person dies, criminal liability is extinguished.

It follows, of course, that the civil liability will also be extinguished.

Q: How do you divorce the civil from the criminal?

A:
• By waiving it, or
• The most common—he reserves the right to file a separate
civil action; or
 • When the civil action is instituted ahead of the criminal
action. In this case, this is now purely State vs. accused
because the civil action is litigated separately. With that, you
cannot intervene in the criminal action.

Q: Suppose a civil case is segregated or reversed, the question now

is: Which of the two should be decided or litigated first?
A: The general rule is that the criminal case must precede the civil
case. The civil case must await the outcome of the criminal case.
The civil case is suspended until the criminal case is decided.
Suppose, he is acquitted. How about that? No problem because Rule
111 says that the extinction of criminal liability does not extinguish
civil liability.

In civil cases, only preponderance of evidence is needed. The

evidence may not be sufficient to convict but it is sufficient to prove
your cause of action. But what happens if you already have file the
civil case? According to Criminal Procedure, when the criminal case is
filed, the trial of the civil case is suspended to await the outcome of
the criminal case unless there is an attempt to consolidate the trial.
So, the rule is: The criminal case takes precedence over civil case.

Q: Is there an exception? Is there an instance where if the civil

action is not suspended it will not await the outcome of the criminal
action?
A: In other words, let the civil and criminal cases proceed
simultaneously—separately, without minding the outcome of either. Is
that possible? This is true if your civil action is classified as an
independent civil action.

Independent civil actions, according to Rule 111 are those found

in Arts. 32, 33, 34 and 2176 of the Civil Code. So, the following can
be filed separately from the criminal case.
 The third situation is entirely different. The civil case takes
precedence over the criminal case. The pendency of the civil case will
suspend the criminal. This is the exact opposite of the first rule.
What is this rule? This rule is known as a Prejudicial Question where
the innocence or guilt of the accused depends on the outcome of the
civil case. These principles and their ramifications are treated more in
Criminal Procedure.

ARTICLE 101. Rules regarding civil liability in certain cases.-

The exemption from criminal liability established in
subdivisions 1,2,3,5 and 6 of Article 12 and in subdivision 4
of Article 11 of this Code does not include exemption from
civil liability which shall be enforced subject to the following
rules:
First: In cases of subdivisions 1,2 and 3 of Article 12, the
civil liability of acts committed by an imbecile or insane
person, and by a person under nine years of age, who acted
without discernment, shall be devolve upon those having
such a person under their legal authority or control, unless it
appears that there was no fault or negligence on their part.
Should there be no person having such insane, imbecile,
or minor under his authority, legal guardianship, or control,
or if such person be insolvent, said insolvent, said insane,
imbecile, or minor shall respond with their own property,
excepting property exempt from execution, in accordance
with the civil law.
Second: In cases falling within subdivision 4 of Article
11, the persons for whose benefit the harm has been
prevented shall be civilly liable in proportion to the benefit
which they have received.
The courts shall determine, in their sound discretion, the
proportionate amount for which each one shall be liable.
When the respective shares cannot be equitably
determined, even approximately, or when the liability also
attaches to the Government, or to the majority of the
inhabitants o f the town, and in all events, whenever the
damage has been caused with the consent of the authorities
or their agents, indemnification shall be made in the manner
prescribed by special laws or regulations.
Third: In case falling within subdivision 5 and 6 of
Article 12, the persons using violence or causing the fear
shall be primarily liable and secondarily, or if there be no
such persons, those doing the act shall be liable, saving
always to the latter that part of their property exempt from
execution.

Q: This goes back to those circumstances which justify criminal

liability. Is there civil liability?
A: None, except those that fall under subdivision 4 of Article 11. In
exempting, the general rule is: There is civil liability except
paragraphs 4 and 7. This is what the discussion of civil liability in
those cases. The first is minority or insanity or imbecility. They are
exempt from criminal liability but they are not exempt from civil
liability.

Q: How do you enforce the civil liability of minor with respect to a

crime he has committed?
A: The law governing the civil liability of minor is this Article 101,
paragraph 1 of the RPC. But this was subsequently amended by PD
603. However, PD 603 was further modified by Article 221 of the
Family Code, as amended by EO 227.
Q: What is now the present governing law with respect to the civil
liability of minors?
A: It is not Article 221 of the Family code as amended by EO 227.
This is what Article 221 says:” Parents and other persons exercising
parental authority shall be civilly liable for the injuries and damages
caused by the acts of their unemancipated children living in their
company and under their parental authority subject to the appropriate
defenses provided by law.

The liability now devolves upon those who exercise parental

authority. But you can raise defenses.

Originally, many thought that this Article only applies to quasi-

delicts (because of Article 180, NCC). Meaning, parents are only civilly
liable for acts or omissions committed by their unemancipated
children arising from culpa aquiliana subject to defenses. But the SC
said in the case of Libi vs. IAC,214 SCRA 16, Article 221 of the
Family Code applies also to civil liability committed by minors arising
from a crime. It is not confined only to quasi-delict. The parents are
liable and be held primarily liable for civil liability arising from criminal
offenses committed by their minor children under their authority or
control or who live in their company unless it is proven that the
former acted with the diligence of a good father of a family.

That primary liability under the provisions of Article 101 of the

RPC with respect to damages ex-delicto caused by their children.
Such primary liability is imposed pursuant to Article 2180 of the Civil
Code. Therefore, ultimately, the civil liability of parents for the crimes
committed by their children is also governed by Article 2180 of the
Civil Code. That is on quasi-delict where the parents can claim the
exercise of a good father of a family.

That is why LIBI case is doctrinal. Before, the issue was: Can
the parents avoid liability by claiming exercise of due diligence in the
supervision of their children? Well, you will say that it is only possible
when I am suing for quasi-delict, but here we are talking of civil
liability arising from a crime. You cannot use Article 2180 for this.
The SC said, NO! It is because of Article 221 of the Family Code, and
clarified by the case of Libi vs. IAC. This question should have come
out in the bar.

Q: How about state of necessity?

A: Article 101. Well, our example before was that the fire department
destroyed some buildings to prevent the fire from spreading. Who
will shoulder the civil liability? Well, all those who benefited.

The third refers to uncontrollable fear and irresistible force. The

person using violence or cause fear shall be primarily liable civilly.
Those who do the act are secondarily liable. So, those primarily liable
civilly are also criminally liable as principals by inducement.

ARTICLE 102. Subsidiary civil liability of innkeepers, tavern-

keepers, and proprietors of establishments.- In default of
the persons criminally liable, innkeepers, tavernkeepers, and
any other person or corporations shall be civilly liable for
crimes committed in their establishments, in all cases where
a violation of municipal ordinances or some general or
special police regulations shall have been committed by
them or their employees.
Innkeepers are subsidiarily liable for the restitution of
goods taken by robbery or theft within their houses from
guests lodging therein, or for the payment of the value
thereof, provided that such guests shall have notified in
advance the innkeeper himself, or the person representing
him, of the deposit of such goods within the inn; and shall
furthermore have followed the directions which such
innkeeper or his representative may have given them with
respect to the care of and vigilance over such goods. No
liability shall attach in case of robbery with violence against
or intimidation of persons unless committed by the
innkeeper’s employees.

The first paragraph refers to liabilities of innkeepers,

tavernkeepers. These terms are old English. The modern concept is
hotels or lodging houses. Taverns are bars or restaurants. For
example, an ordinance prohibits the selling of liquor after midnight.
Suppose one customer kills another customer while still serving
liquor. So, when the crime was committed you were still serving
liquor. Who is liable criminally? Of course, the customer. Who is
civilly liable? Of course, the customer. What if he is insolvent? The
owner of the bar is liable. This is how you apply the first paragraph.

The second paragraph is very common. The hotel owner will

say: “Do not leave your belongings inside your room. We are not
taking responsibility if your things are taken by others. Leave your
things with us; deposit them in a deposit box. Now, you violate the
instruction. A stranger entered the room. You cannot hold the hotel
owner subsidiarily liable for the loss. But when the property was lost
or stolen while it is in their possession, they are liable.

ARTICLE 103. Subsidiary civil liability of other persons.- The

subsidiary civil liability established in the next preceding
article shall also apply to employers, teachers, persons and
corporations engaged in any kind of industry for felonies
committed by their servants, pupils, workmen, apprentices,
or employees in the discharge of their duties.

This is what you call as the subsidiary liability of employees. The

perfect example when you are engaged in a transportation business.
That is very common. Your driver, while driving the car, hits
somebody—homicide through reckless imprudence. So, your driver is
the one charged criminally. The driver was convicted. The judgment
has become final. He was sent to jail and to pay the family of the
victim the sum of P50,000. He cannot pay. In most cases, that is
what happens. The driver is insolvent.

What will happen? The employer will pay. That is subsidiary. If

the driver is insolvent, the employer shall be liable. Suppose he
happened to be my family driver. Can you apply this? NO. Because
there you are not engaged in business. There is employer-employee
relationship. But you can sue under culpa aquiliana. But not Article
103. This one applies only to employees for crimes committed by
their employees if they are engaged in an industry. He employs a
person for his business, not his household.

Q: Is this not the same culpa-aquiliana where for the act of the
employee, the employer is liable?
A: No, here in culpa-aquliana, you can sue directly the employer. In
Article 103, you must wait for the conviction to happen. You must
wait for the finality. You must prove insolvency of the employee
before you can recover. What is the advantage? The employer cannot
say that he exercised diligence in the supervision of his employee.
That is only applicable in culpa aquiliana. That is not available as a
defense under Article 103. The defense is that I am not engaged in
an industry, or he is not acting in the discharge of his duties.

The third party will not be liable because of the protection for
innocent purchasers for value. What is your right? You are the owner,
your right is to run against the Assurance Fund. It is different when I
steal your title then I pretend that I knew, let us say, I introduce
myself as the title owner, then I sell it to you citing my name as the
name of the true owner. My buyer did not have a better title because
the one who sold the land to him is not the real owner. The seller is
somebody who merely impersonated the true owner.

Q: Suppose, a hotel guest was told by the management: Do not keep

your goods inside your hotel room. One day, the roomboy or the
chambermaid entered the room. The chambermaid saw the guest’s
money and stole it. The thief was identified, so the thief-employee
was charged with theft and found guilty. He was sentenced to
indemnify—restitution or reparation for the loss of property. But he
did not pay. Is his employer liable? Is the hotel manager liable for
the losses if the victim did not follow his instruction? Is the hotel
management liable?
A: Under Article 102, the hotel management is not liable. But under
Article 103, it is liable because the chambermaid, the thief is its
employee. What is integrated by article 102 is theft committed by
third persons on hotel guests, but not theft committed by the hotel
employees—Article 103 applies. Even if the hotel guest did not follow
the instructions, that is not an excuse for not being liable.

YONAHA VS. CA
255 SCRA 397

Held: Subsidiary liability of an employer under Article 103

attaches if the following requirements are complied with:
1. Employer-employee relationship exists;
2. employer is engaged in some kind of industry;
3. Employee is insolvent;
4. Conviction of a crime committed while in the performance
of his function.
 PAJARITO VS. CA

There is no need to file another case to enforce the

subsidiary liability of the employer. A mere motion in the same
criminal case to enforce employer’s subsidiary liability is sufficient
wherein he will be given an opportunity to be heard.

Chapter Two

WHAT CIVIL LIABILITY INCLUDES

ARTICLE 104. What is included in civil liability. – The civil

liability established in articles 100, 101, 102, and 103 of this
Code includes:
1.Restitution;
2.Reparation of damage caused;
3.Indemnification for consequential damages.

ARTICLE 105. Restitution.- The restitution of the things itself

must be made whenever possible, with allowance for any
deterioration, or diminution of value as determined by the
court.
The thing itself shall be restored, even though it be
found in the possession of a third person who has acquired it
by lawful means, saving to the latter his action against the
proper person who may be liable to him.
This provision is not applicable in a case in which the
thing has been acquired by the third person in the manner
and under the requirements which, by law, bar an action for
its recovery.

There is a case involving a robber for theft or robbery for as long

the property is proven to have been transferred to a third person,
who is not a party. The recovery from the third person can be made
in the same criminal case.

MUNSAYAC vs. VILLASOR

185 SCRA 324

Facts: Two informations for theft of jewelry and gold coins were
filed against Eduardo Asuncion. During the hearing of the cases,
complainant, the victim of the theft, desisted from pursuing the
criminal cases upon learning that the stolen items were already
sold by the accused to Edilberto and Elena Munsayac. Obviously,
the victim is more interested in recovering the stolen property
than in prosecuting the accused. The cases against Asuncion
were dismissed based on complainant’s affidavit of desistance.
The complainant then filed in the same criminal cases a motion
for restitution of the stolen properties directed against Edilberto
and Elena Munsayac. The rule is you can recover the properties
in the same criminal case.

Held: The complainant was in error. Why? Because you can

recover when the criminal case went on and led to a conviction.
But when you desisted from prosecuting, the case ends there.
The dismissal of the criminal charges at the complainant’s
instance carried the dismissal of the civil aspect of the
accompanying the filing of the criminal information of the
criminal cases. Without any judgment of conviction in the
criminal cases, restitution cannot be ordered. Anyway, said the
SC, complainant still has the right to recover the properties she
 lost by filling an entirely new civil action.

 Between two people who are in good faith.

 You cannot give something which is not yours.

 The liability of the buyer can be enforced in the same case. There
is no need to file another action against him.

ARTICLE 106. Reparation. – How made. The court shall

determine the amount of damage, taking into consideration
the price of the thing, whenever possible, and its special
sentimental value to the injure party, and reparation shall be
made accordingly.

Reparation is really applied in crimes against property. For

example, in theft or in robbery, if the object can no longer be
returned because it is already consumed ( if consumable0, or it was
sold to somebody who can no longer be found. Or you cannot return
something, like it was razed by fire. How to recover it? The next
substitute is reparation. You pay for the value of the property
destroyed , property stolen.

Q: How do you determine the value?

A: The market value, including other factors, like the sentimental
value of the property.

ARTICLE 107. Indemnification —What is included. -

Indemnification for consequential damages shall include not
only those caused by the injured party, but also those
suffered by his family or by a third person by reason of the
crime.

For physical injuries, you pay damages to the victim, loss of

earning capacity, actual and compensatory. This is where the law on
torts and damages comes in.

If you murder somebody, you have to indemnify the family, actual

and compensatory. OF course, what is the value of human life?
There is no definite value. You cannot place a value on how much a
life of a human being costs. Based on practice and policy of the SC
as of today, what is the standard rate for the life of a human being?
P50,000. But it could be higher but not less. That is the standard
minimum. That is automatic. If the victim died, the court will decree
indemnity for the family for P50,000. Not only that, there are other
damages under the law.

Q: Are moral damages recoverable in a felony?

A: Yes, for the physical anguish, the suffering, the mental anguish.
How about the family, can they recover? Yes, the law says so: xxx
including those suffered by his family, or by a third person by reason
of crime.

A good example of a third person is, if you are supported by the

deceased. You are not his son, nor related to the deceased but he is
giving you support, like he sent you to school. That person was killed.
You are entitled to indemnification even if you are not a member of
the family. Because by that, you have cut-off the consideration
(suppor). So, third person is not a member of the family can claim for
loss of support.

Exemplary damages are also recoverable. According to the Civil

Code, if the crime is attended by one or more aggravating
circumstances, the court can award exemplary damages (Art. 2230,
Civil Code). So, that is what is meant by indemnification.

People vs. Dianos April 7, 1998

People vs. Gementiza

The award of P50,000.00 for civil indemnity is mandatory.

The award for moral damages is different.

People vs. Jobalones

Facts: Five victims were shot. Two died, 3 almost died. Accused
was found guilty for the crime. The court awarded P50,000.00
for the families of the persons who died and P20,000.00 for the
families of those who almost died.

Held: The award of P50,000.00 was proper. There is no need for

proof other than the fact of the victims’ death. The award of
P20,000.00 is, however, not proper. There is no such thing as an
automatic award for frustrated murder. There is only entitlement
for actual expenses incurred due to the injuries sustained.

People vs. Mangahas

Expenses incurred in relation to the 9 th day, 40 days and

death anniversary is not included for the damages which is
compensable.

ARTICLE 108. Obligation to make restoration, reparation for

damages, or indemnification for consequential damages and
action to demand the same.—Upon whom it devolves. The
obligation to make restoration or reparation for damages
and indemnification for consequential damages devolves
upon the heirs of the person liable.
The action to demand restoration, reparation, and
indemnification likewise descends to the heirs of the person
injured.

If the victim dies before he can recover (damages), his heirs will
inherit his right to recover. Suppose, it is accused who died before he
could pay his liability, who will now pay? That law says, it shall
devolve upon the heirs of the accused. It does not mean to say that
the heirs will pay the liability from their own pockets. The heirs of the
accused will pay only out of what they inherited from the deceased.
If the deceased or accused died a pauper, you cannot tell his family,
“You raise money for me”. If nothing is left to them, you cannot
recover. If something is left to you, obligation first before inheritance.
So, that is based on what the accused left behind. Do not interpret it
in such a way the heirs have to work for raising the money to pay for
the liability.

ARTICLE 109. Share of each person civilly liable..--- If there

are two or more persons civilly liable for a felony, the courts
shall determine the amount for which each must respond.

ARTICLE 110. Several and subsidiary liability of principal,

accomplices and accessories of a felony.—Preference in
payment. --- Notwithstanding the provisions of the next
preceding article, the principal, accomplices and accessories,
each within their respective class shall be liable severally (in
solidum) among themselves for their quotas, and subsidiarily
for those of the other persons liable.
The subsidiary liability shall be enforced, first against the
property of the principal; next against that of that
accomplices, and lastly against that of the accessories.
Whenever the liability in solidum or the subsidiary
liability has been enforced, the person by whom payment
has been made shall have a right of action against the others
for the amount of their respective shares.

ARTICLE 111. Obligation to make restitution in certain cases.

—Any person who has participated gratuitously in the
proceeds of a felony shall be bound to make restitution in an
amount equivalent to the extent of such participation.

What is an example of a person who has participated gratuitously

in the proceeds of a felony? It applies to a person who received, by
way of gift, stolen property. He acquired it gratuitously. We will
assume that the third person who received a stolen ring, did not
know that it was stolen, because if he knew he will be an accessory.
Or fence. Now, assuming he is in good faith, he cannot be held
criminally liable as a fence or accessory, but he cannot avoid civil
liability.

Q: How do you compare Art. 111 from Art. 105?

A:

ARTICLE 105 ARTICLE 111

The third person who acquired He is also bound to make
the property is also required to restitution
return it to its owner
The third person acquired stolen The third person acquired it
property by lawful means gratuitously
 According to the law, such third person is liable to make a
restitution in an amount equivalent to the extent of his participation.
For example, a thief gave his girlfriend a diamond ring worth P50,000
as a gift. Then, later they broke up. The girl sold the ring for
P20,000. Later on, it was established that the ring was stolen. It was
given to her, but she was in good faith. What happened to the ring?
She sold it away. To whom did she sell it? She didn’t see her
anymore. What is the civil liability of the girlfriend? The P20,000
should be returned to its owner. But the ring is worth P50,000. You
are able to restitute only in an amount equivalent to the extent of
your participation. The benefit or participation of the girlfriend is only
worth P20,000. She cannot be made to pay higher than that. That is
what it means.

Suppose, I steal food, for example, cake from the bakeshop

worth P 100. I gave it to you, you ate it. And then there is now civil
liability in favor of the owner of the bakeshop on account of the theft.
QUESTION: Are you liable because you acquired the cake gratuitously
and you were satisfied because you ate it? Are you liable for
reparation in the amount of P100. ANSWER: No. That is not
applicable to that case because this applies only when your fortune is
augmented—when you become richer, your income increases.

Chapter Three

EXTINCTION AND SURVIVAL OF CIVIL LIABILITY

ARTICLE 112. Extinction of civil liability. - Civil liability

established in Articles 100, 101, 102 and 103 of this Code shall be
extinguished in the same manner as obligations, in accordance with
the provisions of the Civil Law.

Do not confuse extinction of criminal liability from the extinction

of civil liability. Extinction of criminal liability is Art.89, Total
Extinction, Art. 94, Partial Extinction.

Q: How do you distinguish civil liability?

A: According to ART. 112, civil liability is extinguished in the same
manner as any obligation extinguished under the Civil Code.

Q: What are the modes of extinguishing obligations?

A: Civil liability is extinguished by:
 Payment or performance;
 Condonation or remission of the debt;
 Confusion or merger of the rights of the creditor and debtor;
 Compensation;
 Novation;
 Annulment;
 Rescission;
 Fulfillment of a resolutory condition; and
 Prescription

So, the modes of extinguishing civil liability are the same with the
provisions of the Civil Code. There is only mode for extinction of
obligations under the Civil Code which is not recognized in the Penal
Code. That is the loss of the thing due by virtue of fortuitous event.
Remember, when the obligor is to deliver to the obligee a determinate
thing, and that determinate thing was lost because of fortuitous
event, the obligation is totally extinguished.

PROBLEM: Somebody was stealing cattle. While the cattle was in his
possession, the cows died because of some disease.
Q: Is the accused, upon conviction, liable to pay for the value of the
cattle? Or is the obligation extinguished because they died of animal
disease?
A: He is liable because the loss of the thing due, even if due to
fortuitous event, does not extinguish the obligation to pay for the
value of the cattle. So, that is the only mode not recognized under
the Penal Code.

ARTICLE 113. Obligation to satisfy civil liability. – Except in

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

The grounds for extinction of criminal liability are separate and

distinct from the grounds of extinction of civil liability. Pardon by the
President, or amnesty may extinguish the criminal liability, but does
not extinguish the civil liability because that is separate and distinct.
The President can pardon the criminal liability, but not the civil
liability. You have to separate the rules in extinguishing criminal
liability from the rules extinguishing civil liability. That is very clear
under Art. 113.

Q: Is there an obligation on the part of the accused despite the

pardon to still pay the civil liability?
A: Article 113 is very clear. Pardon does not wipe out civil liability.

Title Three
PENALTIES

Chapter One
PENALTIES IN GENERAL

ARTICLE 21. Penalties that may be imposed. – No felony

shall be punishable by any penalty not prescribed by law
prior to its commission.

Whether you like it or not, the study of penalties is part of the RPC.
Even in the definition of the course, it is a branch or division of law
which defines crimes, treats of their nature and provides for their
punishment. So, what is the use of defining crime without any
penalty?

For example, under the Penal Code, if you kill somebody with
treachery, you commit murder. So, what happens to you? With intent
to kill, you stabbed somebody, then he died. When you attacked him,
you did not give him a chance to defend himself—admitted. That the
mode of attack was blunt--, again, admitted. So, you are guilty of
murder—still admitted. What about it? There is no penalty, anyway.
That is why the law on penalties is unavoidable.

Q: How do you define penalty?

A: Penalty is the suffering that is inflicted by the State for the
violation or transgression of a law. Penalty signifies pain. It is
something that you do not relish because if penalty is something
enjoyable, then everybody would be encouraged to commit a crime.

Q: What are the juridical conditions of penalty under the Classical

Theory of Criminal Law?
A: These are not part of the article, but these are the philosophical
background behind the penalty. The different juridical conditions of
penalty are the following:
 Must be productive of suffering, without however affecting the
integrity of the human personality. ( Suffering: if you suffer, your
dignity as human being should also not be impaired. That’s why
the constitution prohibits unusual punishment, because they are
degrading.)
 Must be commensurate with the offense —different crimes
must be punished with different penalties. (Commensurate: That
is one of the characteristics of the Classical theory. A grave
felony deserves a higher penalty. A less grave felony or light
felony deserves a lesser penalty. There must be a proportion.
It is absurd when the penalty for murder and the penalty for
slight physical injuries are the same. There is something wrong.
It is inequitable; it is unfair.)
 Must be personal. –No one shall be punished for he crime of
another. (The criminal liability (personal penalt), once the convict
dies, is totally extinguished. You do not say, he has a son, he
will continue the penalty under the law on Succession.)
 Must be legal. – No one should be punished for the crime of
another. (Nullum crimen, sine lege. If there is no law, there is no
penalty.)
 Must be certain. No one may escape its effects.( That is a
theory. No one may escape its effects, theoretically. That is
being required by the law. The law should be fair, whether you
are rich or poor. Only, men have prostituted the law. But the
 law itself is supposed to be certain and equal.)
 Must be equal for all; and
Must be correctional.( That purpose is correctional—to correct
you so that you will not repeat it.)

Q: What is the purpose of the State in punishing crimes?

A: To secure justice. The State has an existence of its own to
maintain a conscience of its own to assert, and moral principles to be
vindicated. Penal justice must therefore be exercised by the State in
the service and satisfaction of a duty, and rests primarily on the moral
rightfulness of the punishment inflicted.

THEORIES JUSTIFYING PENALTY:

a.) Prevention – The State must permit the criminal to prevent
or suppress the danger of the State rising from the criminal
acts of the offender.
b.) Self-defense—The State has a right to punish the criminal
as a measure of self-defense so as to protect a society from
the threat and wrong inflicted by the criminal.
c.) Reformation- the object of punishment in criminal cases is
to correct and reform the offender.
d.) Exemplarity–- The crime must be punished to serve as an
example to deter others from committing crimes.
e.) Justice- The criminal is punished to serve by the State as
an act of retributive justice, a vindication of absolute right and
moral law violated by the criminal.

Social defense and exemplarity justify the penalty of death.

When a person has proved himself to be a dangerous enemy of
society, the latter must protect itself from such enemy by taking his
life in retribution for his offense and as an example and warning to
others.

 Penalties under the RPC have three-fold purpose:

1. Retribution or expiation – The penalty is commensurate with
the gravity of the offense.
2. Correction or reformation – As shown by the rules which
regulate the execution of the penalties consisting in deprivation of
liberty.
3. Social defense – As shown by its inflexible severity to recidivists
and habitual deliquents

ARTICLE 22. Retroactive effect of penal laws. – Penal laws

shall have a retroactive effect insofar as they favor the
persons guilty of a felony, who is not a habitual criminal, as
this term is defined in Rule 5 of Article 65 of this Code,
although at the time of publication of such laws a final
sentence has been pronounced and the convict is serving the
same.

Q: We will give a penal law retroactive effect if it is favorable to the

accused. Even if the accused is already serving sentence?
A: Yes, it will benefit him in whatever stage he is found, whether
before the trial or during the trial.

Q: What is the reason why a favorable statute may be given

retroactive effect?
A: The reason: to be consistent with public policy. If Congress
changes the law, let us say, by lowering the penalty or eliminating the
crime, the crime has already been eliminated because the act,
criminal before is no longer a crime now, then it could be inconsistent
for the State to still insist on the continued punishment or prosecution
of a person. There might have been already a supervening case of
policy.

So, to maintain consistency why do we insist that these people

be still prosecuted when there is already a change in the policy of the
State? That is the reason behind that. That’s why even if he is in jail,
the question is: How do you have a person released from jail when
there is already a final judgment? The remedy is habeas corpus,
because the moment the new law repealed the old law or the new
law imposed a lower penalty and you have already gone beyond it,
the excess, the penalty, or the confinement automatically becomes
illegal.

That has been applied recently by the SC in the case of Ordoñez

vs. Vinarao, a 1994 decision. People who were convicted before the
drug pushing, under the law- under the old law, the penalty for drug
pushing was life imprisonment. Even if you are caught pushing one
stick of marijuana, life imprisonment. You sell one truckload of
marijuana, life imprisonment. If you are caught selling one or two
sticks, life imprisonment.

But RA 7659 has changed the policy, now it’s by gram. For
marijuana, it is 750 grams or more, possession or pushing, the
penalty is reclusion perpetua to death. From 1 gram to 749 grams,
by stages. So, in effect, if you are a small time pusher the penalty
under the new law is lower. Now, this is the new law, so it benefits
those who were convicted under the old law, those sentenced to life
imprisonment.

There was a pusher convicted in 1986, life imprisonment. In

1994, he has already been in jail for 8 years and still has a long time
to go because of life imprisonment. He said: “If I were prosecuted
under the new law, 6 years should have been the maximum, prision
correctional. I have been in jail for 8 years now. What should I do?
The CIR through its Chairman Sedfery Ordonez filed a petition for
habeas corpus for him, because the law should be given retroactive
effect.

The SC said: Yes, applying Article 22 of the RPC. They have been
in jail for eight years; release them. They should be ordered
released. The habeas corpus proceeding decided on December 1994.
As a matter of fact, the SC ordered in that case of Ordoñez vs.
Vinarao, the Director of Prisons to submit to this Court a list of all
prisoners there who were convicted under the old law.

The SC ordered their release because it was beyond the

maximum term under the law. It is a perfect example of retroactivity
of a new law.

Q: Is there an exception?
A: The law is very clear:
 You will not benefit if you are classifed as a habitual
delinquent under Article 62.
 It will not be given retroactive effect if the law makes itself
inapplicable to pending suits.

ARTICLE 23. Effect of pardon by the offended party. – A

pardon by the offended party does not extinguish criminal
action except as provided in Article 344 of this Code; but civil
liabilities with regard to the interest of the injured party is
extinguished by his express waiver.

The offended party cannot pardon, because the offense is not

against you. It is against the People of the Philippines and technically
you are only a witness for the society. So, you cannot “talk” of society.
That is the reason behind that. If you ask: How come, in practice,
there are may cases dismissed because of the Affidavit of Desistance,
where the witness does not want to testify? That is what is
happening in practice. Well, actually there, the fiscal may file a
motion – not because of pardon. Because if the fiscal will state in his
motion: We move to dismiss because the accused has already been
pardoned by the offended party. If I will be the judge, I will deny
your motion because you are violating Article 23.

Pardon by the offended party is a mere agreement. Usually the

fiscal will state in his motion: With the hostility of the principal
witness, I can no longer prove this case beyond reasonable doubt.

How can I prove this case if no one will testify? The

prosecution’s witness turned hostile, who is the offended party. So,
the judge will dismiss the case for insufficiency of evidence. Well, in
reality in the motion it is not a ground. Under the Rules on Criminal
Procedure, if the prosecution witness is hostile, the fiscal can move
for his arrest and place him in jail until he cooperates.

The reason is you are not a witness for yourself, you are a
witness for the People. How come this is happening everyday?
Because nobody is complaining. If you are the accused will you
complain? You are happy because there is no more case. If you are
the offended party or victim, will you be satisfied? Of course,
because the civil liability has been paid. It is too much hassle to go to
and fro in court. If you are the defense lawyer, you are happy
because the case is over. You are given your attorney’s fees. The
fiscal is happy because that in one work less. The judge is happy
because that is minus one case. Because everybody is happy, nobody
will complain.

But actually, they escape Article 23. They cannot cite pardon.
What is extinguished is the civil liability. That is within your control—
condonation or remission of the debt, one of the modes of
extinguishing civil obligation. The only instance under the Penal
Code, where pardon by the offended party produces certain effects.

ARTICLE 334(3), RPC. – The offenses of seduction, rape or

acts lasciviousness, shall not be prosecuted except upon a
complaint filed by the offended party or her parents,
grandparents, or guardian, nor in any case, if the offender
has been expressly pardoned by the above-named persons,
as the case may be.

These are private crimes which cannot be prosecuted de officio.

If the victim refuses to testify, you have to honor the spirit because of
the ruling that: If you are a victim of rape, etc, that is something
personal, you may prefer to suffer in silence rather than go through
the scandal of a public trial. Pardon here is a bar to criminal liability.
Meaning, it is an obstacle to the case proceeding in court.

So, it must be made before the institution of the action. So,

what happened when the case of rape was already filed in court and,
in the middle of the trial, the victim will say: I don’t want to do this
anymore! Can her pardon be given effect?

No more, because the criminal action has already been instituted

and it is no longer within her control. Because when you say pardon
is a bar, it means it is an obstacle to the filing of the criminal case.
Once the case is filed, pardon is useless.

What extinguishes criminal liability where the case is instituted is

marriage between the offender and the offended party. That is one
of the modes of extinguishing criminal liability under Art.89 (7). By
marriage of the offended woman, as provided in Article 344 of this
Code. Notice, under Article 89, what are the modes of extinguishing
criminal liability? There is no mention of pardon. What is mentioned
there is marriage between the offender and the offended party. The
only pardon mentioned there is absolute pardon by the President
under Art.89(4) and not pardon by the offended party.

ARTICLE 24. Measures of prevention or safety which are not

considered penalties.—The following shall not be considered as
penalties:
1. The arrest and temporary detention of accused persons, as
well as their detention by reason of insanity or imbecility, or
illness requiring confinement in a hospital.
2. The commitment of a minor to any of the institutions
mentioned in Article 80 and for the purposes specified
therein.
3. Suspension from the employment or public office during the
trial or in order to institute proceedings.
4. Fines and other corrective measures which, in the exercise
of their administrative or disciplinary powers, superior
officials may impose upon their subordinates.
5. Deprivation of rights and the reparations which the civil law
may establish in penal form.

Q: What are the conditions of penalty under the Classical Theory in

Criminal Law?
A: It is commensurate to the offense, rational. One of the
characteristics is that it is legal. Penalties should be legal. Meaning,
it is a penalty provided for by law and imposed by the court.

Now, Art. 24 enumerates certain acts where there appears to be

a penalty because penalty could mean pecuniary penalty like a fine.
Incarceration, your liberty is taken from you like imprisonment. And if
you look at Art. 24, it seems to fit a penalty but the trouble is that
there is n judgment of conviction. The court has never ordered you
to pay a fine or has never ordered your incarceration.

So, it appears to be penalty in the eyes of the Penal Code. Why?

It is only a measure of prevention or safety. You are not being
penalized. It is a measure of prevention or safety for you. So, if you
undergo any one of these, you come out, we cannot say you are an
ex-convict because you have never been penalized. Unlike a person
who is sentenced to jail, he served the sentence. When he go out
from jail, ex-convict. But if you go to Art. 24, you are not a convict
because it is not a penalty.

If the person is insane, he is killing people, what shall we do?

Well, he could be ordered arrested and confined at a mental hospital.
Put him in the isolation ward. He is like being in prison. He is being
placed there like a sentenced criminal. How can he be liable? He is
even exempt from criminal liability for being insane. What is the
confinement for? That is only a measure of prevention or safety.
Because if he will be allowed to walk around, he might kill more
people. So, he is not really being penalized. ( Art.24(2))

Article 80 there has already been taken over by PD 603. This

refers to suspended sentence for minors. He asks for a suspended
sentence. He is committed to a rehabilitation center. So, it is as if he
is imprisoned. NO, that is not the measure of prevention or safety.
How can he be penalized when practically there is a suspension of the
sentence? So, it is not considered as a penalty.

 Article 24 (3)
Actually suspension from employment or public office is a type of
penalty under the RPC for certain crimes. Once you are found
 guilty, you are suspended from holding public office. That is the
penalty but the suspension referred here is not a penalty because
you have not been convicted.

Like for example: How come that under the Anti-Graft Act, if you
are a public officer facing a crime, under the law, the Sandiganbayan
will order you suspended for 90 days – even a policeman facing a
criminal case? He will be suspended. Are they already adjudged as
guilty? Are they being penalized? No. They are still presumed
innocent. What is that suspension? That is a measure of prevention
or safety. So that you will not use your position to influence
witnesses for or against you. So, that is not a penalty, but only a
measure. So, you cannot say that you are already being convicted.
And if you are acquitted, the government will pay you. Everything
will be paid to you during the period of your suspension while the
case is going on.

 Article 24, (4)

Fine is a penalty under the Penal Code. Also other corrective

measures are considered penalties under the Penal Code. But under
the Civil Service Act, the CSC can also impose a fine in administrative
cases involving those of the government service. And the head of
office, the superior office of the government authorized to hand down
penalties like fines, suspension, etc.

So, that is not a criminal fine. That is only an administrative fine.

You are not considered a convicted person by being found liable
under the Civil Service act.

 Article 24,(5)

Deprivation of rights which the law may establish in penal form.

Penalty could be deprivation of civil rights—the right to vote, etc.
Now, if you are not careful, you will think of other things. If you ask
somebody: Give an example of deprivation of rights under the penal
code? He might be tempted to say: Actually the example, the
penalty you can give there is the penalty of civil interdiction.

Civil interdiction is a measure of prevention or safety which is not a

penalty. You are wrong. Civil interdiction is a penalty under the RPC.
You look at the next article , Article 25. You look at the accessory
penalties.

ARTICLE 25. Penalties which may be imposed.—The penalties

which may be imposed, according to this Code, and their
different classes, are those included in the following:
XXX
ACCESSORY PENALTIES
Perpetual or temporary disqualification
Perpetual or temporary special disqualification
Suspension from public office, the right to vote and be
voted for, the profession or calling
CIVIL INTERDICTION
Indemnification
Forfeiture or confiscation of instruments and proceeds of
the offense
Payment of costs.

Civil interdiction is included. Civil interdiction is not a civil law

penalty. It is a criminal penalty. You will not be under civil
interdiction unless you are found guilty of a crime.

Q: What is meant by Art.24(5)?

A: Deprivation of rights and separation, which the civil law may
establish in penal form? It means that in a civil case you are deprived
of a right by the court, where the right deprived is similar to that of
someone who is under civil interdiction. Similar to civil interdiction,
but not civil interdiction.

So, civil interdiction is not a civil law issue because of the word
“civil” is there. Civil interdiction is criminal penalty.

EXAMPLE: Under Art. 34 of the RPC, one of the effects of civil

interdiction (if you are found guilty, you will be placed under civil
interdiction) is you are deprived of your parental authority over your
children. Now, suppose it is a civil case where a father or a mother
maltreats or abuses his or her own child. So, a case is filed in court
against the parent and the court says: For maltreating or abusing
your own child the court will deprive you of your parental authority
and transfer it to the grandfather of the child.

The loss of parental authority is similar to being sentenced to a

civil interdiction. You were not sentenced to civil interdiction, but
sentenced to that penalty in the civil case. It is not considered as a
criminal penalty but a civil penalty analogous to civil interdiction.
That is what a par.5 of Art.24 means. It does not refer to the penalty
of civil interdiction but to a penalty imposed by the court in a civil
case which is analogous to civil interdiction.

Chapter Two
CLASSIFICATION OF PENALTIES

ARTICLE 25. Penalties which may be imposed. - The penalties

which may be imposed according to this Code, and their different
classes, are those included in the following:
 SCALE

PRINCIPAL PENALTIES
Capital Punishment:
Death

Afflictive Penalties:
Reclusion perpetua
Reclusion temporal
Perpetual or temporary absolute disqualification
Perpetual or temporary special disqualification
Prision mayor

Correction penalties:
Prision correctional
Arresto mayor
Suspension
Destierro

Light penalties:
Arresto menor
Public censure

Penalties common to the three preceding classes:

Fine; and
Bond to keep the peace

ACCESSORY PENALTIES

Perpetual or temporary disqualification

Perpetual or temporary special disqualification
 Suspension from public office, the right to vote and be
voted for, the profession or
calling
Civil interdiction
Indemnification
Forfeiture or confiscation of instruments and proceeds of
the offense
Payment of costs.

All the penalties known under the Penal Code are found in Art.
25. Art. 25 classifies penalties into two main classes:
1. the Principal penalties; and
2. the Accessory penalties.

Q: Define principal penalty or define accessory penalty.

A: Do not say that the principal penalty is for the principal by direct
participation, that accessory penalty is the penalty for the accessory
and I wonder what happened to the accomplice penalty. The words
“accessory” here and “principal” have nothing to do with persons
criminally liable. It has nothing to do with principals by direct
participation or accessories under Art. 19 of the RPC, the definition of
the principal penalty is:

A principal penalty is the penalty imposed by the court expressly

in a judgment of conviction. An accessory penalty is a penalty which
is deemed imposed in the principal even if not mentioned in the
decision. Another definition is accessory penalty is a penalty which is
deemed included in the imposition of the principal penalties.

The accessory follows the principal. I will say: “You are hereby
sentenced to 14 years of reclusion temporal.” What type of penalty is
this? Principal. “You are hereby sentenced to death.” The death
penalty is the principal.
Q: The court said: “You are hereby sentenced to 20 years of reclusion
temporal (only and never mentioned anything). During the 20 years,
am I entitled to vote? Am I entitled to hold public office? Can I
exercise parental authority over my children?
A: I cannot. Why? Because if you are sentenced to 20 years of
reclusion temporal, you are also suffering from suspension,
disqualification, and civil interdiction. And you cannot say: “No, the
court never said that. The court should have said: You are hereby
sentenced to 20 years of reclusion temporal plus civil interdiction, etc.
there is no mention. There is no need because it is deemed imposed.
No need to mention it. It is deemed included.

The definition of accessory is deemed imposed even if not

mentioned.

Q: What penalties are principal and at the same time accessory?

A: 1. Suspension;
2. Perpetual or temporary absolute disqualification; and
3. Perpetual or temporary special disqualification

Q: How can a penalty be a principal and at the same time accessory?

How can it be expressly imposed and at the same time deemed
imposed?
A: What it means to say is, for some crimes, disqualification or
suspension is the principal penalty because that is the penalty
prescribed by the law. But for other crimes it is not the principal
penalty but only accessory. So, it depends on the crime.

Q: Are there other disqualifications of penalties under the Penal Code

aside from principal and accessory?
A: You can give other classifications, although not found in the law
expressly. Another classification is whether indivisible or divisible.

Q: What do you mean by indivisible? By divisible?

A: A penalty is indivisible if it has no fixed duration. A divisible penalty
is penalty which has a fixed duration and is divisible into 3 parts
known as minimum period, medium period and maximum period.

A perfect example of an indivisible penalty is the death penalty

(capital punishment). You are hereby sentenced to death. The court
will not say: You are hereby sentenced to death for 10 years. So, that
is a good example. Perpetual disqualification is considered indivisible.

Now, divisible, practically the majority – arresto menor -- 1 day to

30 days. So not less than 1, not more than 30. Divisible into 3 parts:
1 to 10 days; 11 to 20 days; 21 to 30 days. So, that is another
classification, indivisible and divisible.

Another classification based on the nature of the penalty is… you

know penalties have many classes. There is deprivation of rights,
there is fine or payment of costs, there is imprisonment. So, penalty
does not necessarily mean that you will go to jail. The penalty of
fine, there is no imprisonment here. But you can also forfeit your life
like death. So, penalties could be classified into many parts.

Classification of penalties according to subject matter:

 corporal (death);
 deprivation of freedom (reclusion perpetua and temporal,
prision mayor and correccional, arresto mayor and menor);
 restriction of freedom (destierro);
 deprivation of rights (perpetual or temporary disqualification,
suspension, civil interdiction);
  pecuniary (fine, bond to keep the peace)

Classification of penalties according to gravity:

 capital;
 afflictive;
 correctional; and
 light
Q: What are the afflictive penalties?
A: You go to Art. 25, the afflictive penalties:

 Reclusion perpetua
 Reclusion temporal
 Perpetual or temporary absolute disqualification
 Perpetual or temporary special disqualification
 Prision mayor

Q: What is a less grave felony under Art. 9?

A: One which carries correctional penalties.

Less grave felonies are those which the law punishes with
penalties which in their maximum period are correctional, in
accordance with the above-mentioned article (Art. 25).

Q: What are correctional penalties?

A: Prision correccional, arresto mayor, suspension, destierro.

So, if that’s the penalty, it is correctional.

Q: Light?
A: Arresto menor and public censure.

Q: What is a fine? Where does it fall?

A: It means that fine could be afflictive; it could be correctional; it
could be light. So, it is common.

ARTICLE 26. Fine. – When afflictive, correctional, or light penalty. – A

fine, whether imposed as single or as an alternative penalty,
shall be considered an afflictive penalty, if it exceeds 6,000
pesos; or a correctional penalty, if it does not exceed 6,000
pesos but is not less than 200 pesos; and a light penalty if it
be less than 200 pesos.

That is how you classify fine. You look at the law, what kind of
penalty is that? Fine of P20,000 – afflictive; if it is ranging from P200
– P6,000 it is considered correctional penalty which is less than P200.
Fine P50 – it must be a light penalty.

Q: What is a light felony? Go back to Art. 9, what is the definition of

a light felony?
A: Light felonies are those infractions of law for the commission of
which a penalty of arresto menor or a fine not exceeding 200 pesos
or both, is provided.

Fine not exceeding P200 pesos. So, if the fine is exactly P200,
light. But in Art. 26, if a fine is exactly P200, it is correctional.

Q: How do we reconcile this?

A: There is no problem if the fine is P1999 pesos or lower. It is light
under Art. 9, it is light under Art. 26. But if you add one peso, there
comes the problem, because it is light under Art. 9, but it is no longer
light under Art. 26.

Q: Is there a conflict between the two articles, or there is none? If

there is a conflict, reconcilable conflict, which of the two will we
follow?
A: Art. 9 is a classification of felonies. Art. 26 is a classification of
penalties. How can there be a conflict? There is no conflict because
the two articles talk of different things.

PROBLEM: Suppose after trial, the court sentenced him of a

maximum fine of P200. Is the penalty light or not? In this case, it is
not a light penalty but correctional.

Q: But is the felony light?

A: Yes, the felony is light although the penalty is correctional. So, you
know which is applicable depending upon the issue asked.

Q: Is there a legal significance of the difference?

A: I will now show the significance of the difference. A is accused of
slight physical injuries which carries the penalty of arresto menor or a
fine not exceeding P200. Under the law on prescription of crime,
what is the prescriptive period for the crime? Under the law, Art. 90,
what is the prescriptive period for the light felony? Art. 90, last
paragraph.

Light offenses prescribe in two months.

PROBLEM: The court upon conviction, sentenced him to pay a fine of

P50 with subsidiary imprisonment in case of insolvency. Here he does
not want to go to jail, he also does not want to pay the fine. He
wants to evade the penalty. QUESTION: What is the prescriptive
period for him to evade penalty? ANSWER: If the fine is P199, so the
penalty is light. Art. 92, light penalties prescribe in 1 year. So, you
have to hide for 1 year.
 Suppose after trial, the court sentenced him to pay not P199 but
P200. The court, add P1 for maximum, with subsidiary imprisonment
in case of insolvency. He does not want to pay the fine; he does not
also want to serve the subsidiary imprisonment.

Q: Is the prescriptive period for the crime only 1 year?

A: No. Why? Because the penalty is no longer light. What is the
penalty? Correctional. Under Art. 92, correctional penalties prescribe
in 10 years (with the exception of the penalty of arresto mayor, which
prescribes in 5 years). There is a big difference. Correctional
penalties prescribe in 10 years. That is the effect of that P1. You can
see the effect in the prescriptive period.

Chapter Three
DURATION AND EFFECT OF PENALTIES

Section One. – Duration of Penalties

ARTICLE 27. Reclusion perpetua – The penalty of reclusion

perpetua shall be from twenty years and one day to forty
years.
Reclusion temporal – the penalty of reclusion temporal
shall be from twelve years and one day to twenty years.
Prision mayor and temporary disqualification – The
duration of the penalties of prision mayor and temporary
disqualification shall be from six years and one day to twelve
years, except when the penalty of disqualification is imposed
as an accessory penalty, in which case, its duration shall be
that of principal penalty.
 Arresto mayor – The duration of the penalty of arresto
mayor shall be from one month and one day to six months.
Arresto menor – The duration of the penalty arresto
menor shall be from one day to thirty days.
Bond to keep the peace – The bond to keep the peace shall
be required to cover such period of time as the court may
determine.

The first important amendments introduced by the Heinous

Crimes Law, RA 7659, is he amendment of the first paragraph of Art.
27 which radicalized the penalty of reclusion perpetua. The law says:
The penalty of reclusion perpetua shall be from 20 years and one day
to 40 years.

This is now the new law. Before the amendment, if the person is
sentenced to reclusion perpetua, he shall be pardoned after 30 years
unless the President does not consider him worthy of pardon.
Therefore, there is really no duration. The President may or may not
pardon him after 30 years. But now, the law says: “20 years and 1
day to 40 years”. Meaning, continuation na ng reclusion temporal
because reclusion temporal is 12 years and 1 day to 20 years. And
therefore because of the amendment, the question is asked:

Q: What kind of penalty is reclusion perpetua? Is it divisible or an

indivisible penalty?
A: There is no question what it is prior to the amendment. Prior to
amendment, the rule on reclusion perpetua was that it was an
indivisible penalty. It had no fixed duration. What the law provided
was that you shall be pardoned after 30 years unless the President
does not consider you worthy of pardon. So you may be pardoned
after 30 years, 31, 35, etc, --because there is no duration.

But now, with that 20 years and 1 day, is it now a divisible

penalty with a fixed duration of 20 years and 1 day but not more than
40 years?

PEOPLE vs. LUCAS

232 SCRA 537

The amendment of RA 7659 has converted the penalty of

reclusion perpetua into a divisible penalty with a fixed minimum
and fixed maximum – 20 years and 1 day to 40 years.
Therefore, it is a divisible penalty divisible into 3 parts – minimum
period, medium and Maximum – 20 years and 1 day to 40 years.

However, there was a Motion for Reconsideration filed before the First
Division. If you claim now that because of the amendment reclusion
perpetua is converted into a division penalty, then what happens to
this article? Many got confused with it. But they decided to resolve
the issue en blanc. So, the SC had to review the original ruling in the
First Division and Arrived at a certain decision decided after 8 months
on January 5, 1995. (People vs. Lucas, 240 SCRA 66). The
ponente was still Justice Davide Jr.

Do not confuse the Lucas decision found in 232 SCRA with the
Lucas decision found in 240 SCRA. The one in 232 SCRA was the
original decision. The one in the 240 SCRA was the resolution of the
Motion for Reconsideration where the SC changed its stand. In the
second one, the SC ruled that despite the fact that as stated now in
the law, that reclusion perpetua is from 20 years and 1 day to 40
years – however, the amendment has not made it a divisible penalty,
it is still an indivisible penalty.

Reclusion perpetua, despite the amendments, remains to be an

INDIVISIBLE penalty.
 Because the SC connected it with Art. 63 (Rules for the
application of indivisible penalties) of the RPC, Art. 76 (Legal period of
duration of divisible penalties). Art. 41 (Reclusion perpetua and
reclusion temporal), and Art. 61 (Rules on graduating penalties). The
SC noted that all these articles are related which were not touched by
the amendments. Therefore, if you will say the amendment of Art. 27
had converted reclusion perpetua into a divisible penalty, it will cause
confusion and render nugatory the articles of the Penal Code. To
avoid that, the SC said it is still an indivisible penalty.

So with that, because of the case of Lucas, the original decision,

the SC sentenced the accused to a specific term of 34 years, 6
months, which obviously was wrong! The SC admitted. When you
sentence a person with perpetua, the judge says: “You are hereby
sentenced to reclusion perpetua”. Do not say any number of years,
months or days. It means to say you may be pardoned after 20 years
and 1 day or after 20 years and 2 days. Meaning, you wait for your
pardon. If no pardon is given, after 40 years you are a free man. Do
not state any specific number of years or months.

Take note that it is a common error by all courts throughout the

country in equating the penalty of reclusion perpetua with the penalty
of life imprisonment.

Q: Distinguish reclusion perpetua from life imprisonment?

A:

RECLUSION PERPETUA LIFE IMPRISONMENT

Imprisonment ranging from 20 Whereas, life imprisonment has no
years and 1 day to 40 years definite duration. You cannot
within which the President may know if you may be pardoned after
pardon me. 20 or 25 years. It is really for life.
carries accessory penalties under does not carry any accessory
the Penal Code penalty.
involves heinous crimes The penalty for crimes not under
penalized under the the RPC
RPC. but under special laws.

The perfect example of that life imprisonment is that of illegal

recruitment under the Labor Code. You look at the Labor Code – the
penalty is life imprisonment. It is not reclusion perpetua. The SC has
been very emphatic on the difference. There are many things that
are mentioned in the new cases.

The Dangerous Drugs Act, although a special law, borrowed the

penalty of reclusion perpetua from the Revised Penal Code.

PEOPLE vs. DEJELLOS

205 SCRA 546

The trial court imposed the penalty of reclusion perpetua or

life imprisonment. “You are hereby sentenced to reclusion
perpetua OR life imprisonment. Evidently, he considered the
latter as the English translation of the former. That is not the
case. The two are different. Perpetua is not the same as life
imprisonment. Every judge should take note of this distinction.
And the SC speaks. “Henceforth, no trial judge should mislead
one for the other.

PEOPLE vs. SAMILLANO

The Court is cognizant of the practice of the lower courts

equating the penalty of Reclusion perpetua with life
imprisonment. Such an erroneous practice must be curtailed. It
is an oft-repeated rule that a judgment for conviction of a felony
the court must specify the appropriate name of the penalty
inasmuch as under the specific felony in the RPC, the principal
penalty for a felony has its own specific duration and
corresponding accessory penalties. The proper penalty which
should have been imposed is reclusion perpetua. There is no
penalty of life imprisonment in the scheme of penalties under the
RPC.

PEOPLE vs. ADRIANO

266 scra 131

The Court takes this opportunity to catch the attention of the

trial judges in the use of the proper term in imposing penalties.
The term “reclusion perpetua” is not synonymous with life
imprisonment, which is a penalty imposed by special laws. This
Court has, through Administrative Circular No. 68-92,
reminded judges to strictly follow the correct application of the
penalties of reclusion perpetua and life imprisonment for offenses
punishable under the Penal Code and special laws, respectively.
Future lapses on the part of the trial judges on this matter will
merit proper administrative sanctions.

PEOPLE vs. LUCERO

Facts: Here the judge said a different term. He sentenced

somebody in an illegal recruitment case, “You are hereby
sentenced to imprisonment for life”. The penalty under the law is
life imprisonment. He said “imprisonment for life”.

Held: The penalty meted out as imprisonment for life – the trial
court has no business putting as penalty what it seems its
equivalent of the mandated penalty. Imprisonment for life is not
 the same as life imprisonment. For one thing, the proper penalty
is life imprisonment. And certainly, the imprisonment is that he
will stay in prison all the rest of his natural life. The proper
penalty is life imprisonment.

These judges don’t know their law. They do not understand that the
penalty of life imprisonment means a different thing.

ARTICLE 29. Period of preventive imprisonment deducted from term

of imprisonment. – Offenders or accused who have undergone
preventive imprisonment shall be credited in the service of
their sentence consisting of deprivation of liberty, with the
full time during which they have undergone preventive
imprisonment, if the detention prisoner agrees voluntarily in
writing to abide by the same disciplinary rules imposed upon
convicted prisoners, except in the following cases:
1.When they are recidivists, or have been convicted
previously twice or more times of any crime; and
2.When upon being summoned for the execution of their
sentence they have failed to surrender voluntarily.
If the detention prisoner does not agree to abide by the
same disciplinary rules imposed upon
convicted prisoners, he shall be credited in the service of his
sentence with four-fifths of the time during which he has
undergone preventive imprisonment.
Whenever an accused has undergone preventive
imprisonment for a period equal to or more
than the possible maximum imprisonment of the offense
charged to which he may be sentenced and his case is not
yet terminated, he shall be released immediately without
prejudice to the continuation of the trial thereof or the
proceeding on appeal, if the same is under review. In case
the maximum penalty to which accused may be sentenced is
destierro, he shall be released after thirty (30) days of
preventive imprisonment.

Q: Define preventive imprisonment?

A: Preventive suspension is the imprisonment being undergone by a
person who has been accused of a crime but not yet found guilty. He
has to be in jail because he is facing a criminal case, there was a
warrant for his arrest. Why is he in jail? Because of 2 possible
reasons: Either the offense is non-bailable or it may be bailable but
he cannot put up the required bail bond. So he has to be there while
the case is on going. What do you call that prisoner? A detention
prisoner, as distinguished from those convicted prisoners by final
judgment.

If, for example, they are detention prisoners, they have

undergone imprisonment already, and later on they are convicted by
a certain prison term. The period of preventive imprisonment that he
has undergone will already be computed or 4/5, depending on
whether the prisoner was bound by same rules for convicted
prisoners. So credited although there are some instances where
there is no credit at all.

There is no problem if the prisoner will be convicted. At least, the

service of sentence is counted. Sometimes there are even instances
when upon conviction you have already served the sentence because
the sentence imposed by the court is equal or even lower. So by the
time he was convicted, he has served already. That is possible.

But what is painful is if you have undergone preventive

imprisonment and after a while you are acquitted. All the while, you
are innocent. And the question is what will happen to that? What is
the recourse of the prisoner? Before, the answer there was, “Sorry,
charge it to experience”. But now, we have an answer to that
because there is a new law, RA 7309, An Act Creating a Board of
Claims under the Department of Justice for Victims of Unjust
Imprisonment or Detention, Victims of Violent Crime and other
purposes.

So, for example, you are imprisoned. You’re acquitted. It turns

out that you never have committed any crime. You are completely
innocent. You file a claim with the Department of Justice because
they will give something in return. For victims of unjust imprisonment
or detention the compensation shall be based on the number of
months of imprisonment or detention and a fraction thereof shall be
considered as one month. But in no case shall such compensation
exceed P1,000.00 per month. That is the maximum. So, if you are
imprisoned for 10 months, at least the government will say, “O, here’s
your P10,000. That is the maximum”.

BASBACIO vs. OFFICE OF THE SECRETARY

238 SCRA 5

Facts: The accused was found guilty. He was undergoing

imprisonment. Then, he appealed. On appeal, his conviction was
reversed. He was acquitted on the ground of reasonable doubt.
Upon his release, he filed for compensation. The DOJ said; “You
are not unjustly accused, convicted and imprisoned”. He said;
“when the court acquitted me, automatically it means that I was
unjustly accused, convicted and imprisoned”. So, based on this
argument, every person who is acquitted will automatically be
paid.

Held: Sec. 3-A of the law requires that the claimant was unjustly
accused, convicted and imprisoned. The fact that the previous
 convection is reversed, and the accused is acquitted is not in
itself a proof that the previous conviction is unjust. Not every
person who is acquitted automatically proves that the conviction
is unjust.

To say that the accused has been unjustly convicted has to

do with the matter of his conviction rather than his innocence. It
is not an issue whether you are innocent. No, that is not the
issue. The issue here is: How were you convicted? Was the judge
unfair to you? Were your rights violated? That’s what unjust
meant. If an accused be on appeal acquitted because he did not
commit the crime but does not necessarily mean that he is
entitled to compensation for having been a victim of unjust
conviction.

If the conviction is due to an error in the appreciation of

evidence, the conviction while erroneous is not unjust. That is
why it is not correct to say that under the law the liability of
compensation depends entirely on the innocence of the accused.

How do you say that you are unjustly convicted? Meaning, the
conviction is unjust. It is tantamount to say that the judge committed
a crime of rendering an unjust judgment under the penal code, which
is one of the hardest crimes to prove. The judgment could be wrong,
but not necessarily unjust. How do you prove that the judge
knowingly rendered an unjust judgment?

In this case, the SC interpreted the scope of the State’s liability

under RA 7309 which provides compensation for persons who are
unjustly accused, convicted and imprisoned but on appeal, acquitted
from liabilities.
 Section Two. --Effects of the penalties according to their
respective nature.

ARTICLE 30. Effects of the penalties of perpetual or temporary

absolute disqualification. – The penalties of perpetual or
temporary absolute disqualification for public office shall
produce the following effects:

1.The deprivation of the public offices and employments

which the offender may have held, even if conferred by
popular election.
2.The deprivation of the right to vote in any election for
any popular elective office or to be elected to such office.
3.The disqualification for the offices or public
employments and for the exercise of any of the rights
mentioned.

In case of temporary disqualification, such disqualification

as is comprised in paragraphs 2 and 3 of this Article shall
last during the term of the sentence.

4. The loss of all rights to retirement pay or other pension

for any office formerly held.

ARTICLE 31. Effects of the penalties of perpetual or temporary

special disqualification. – The penalties of perpetual or
temporary special disqualification for public office,
profession, or calling shall produce the following effects:
1.The deprivation of the office, employment, profession or
calling affected.
 2.The disqualification for holding similar offices or
employments either perpetually or during the term of
the sentence, according to the extent of such
disqualification.

ARTICLE 32. Effects of the penalties of perpetual or temporary

special disqualification for the exercise of the right of suffrage. – The
perpetual or temporary special disqualification for the
exercise of the right of suffrage shall deprive the offender
perpetually or during the term of the sentence, according to
the nature of said penalty, of the right to vote in any popular
election for any public office or to be elected to such office.
Moreover, the offender shall not be permitted to hold any
public office during the period of his disqualification.

ARTICLE 33. Effects of the penalties of suspension from any public

office, profession, or calling, or the right of suffrage. – The
suspension from public office, profession, or calling, and the
exercise of the right of suffrage shall disqualify the offender
from holding such office or exercising such profession or
calling or right of suffrage during the term of the sentence.

The person suspended from holding public office shall not

hold another having similar functions during the period of
his suspension.

ARTICLE 34. Civil Interdiction. – Civil interdiction shall deprive

the offender during the time of his sentence of the rights of
parental authority, or guardianship, either as to the person
or property of any ward, of marital authority, of the right to
manage his property, and of the right to dispose os such
property by any act or any conveyance inter vivos.
ARTICLE 35. Effects of bond to keep the peace. – It shall be the
duty of any person sentenced to give bond to keep the
peace, to present two sufficient sureties who shall
undertake that such person will not commit the offense
sought to be prevented, and that in case such offence be
committed they will pay the amount determined by the court
in its judgment, or otherwise to deposit such amount in the
office of the clerk of court to guarantee said undertaking.

The court shall determine, according to its discretion, the

period of duration of the bond.

Should the person sentenced fail to give bond as required

he shall be detained for a period which shall in no case
exceed six months, if he shall have been prosecuted for a
grave or less grave felony, and shall not exceed thirty days,
of for a light felony.

Articles 30-35 of the RPC tell us the effects of various types of

penalties particularly those where you are deprived of your rights.

Q: What are the penalties which can deprive rights?

A: 1) Perpetual or temporary absolute disqualification;
2) Perpetual or temporary absolute disqualification;
3) Suspension;
4) Civil interdiction. There is a restriction on your capacity to act
under the civil law.

Q: What are the effects of civil interdiction?

A: Article 34. That’s why civil interdiction is not a civil law issue. It
is a criminal law issue. It is a penalty under the Penal Code although
accessory. When a person is sentenced to a certain principal penalty,
practically, he is under civil interdiction. What are the effects? Or
state the effects of civil interdiction. How can you answer that if you
do not know Article 34.

For example, a father loses parental authority over his children,

although the mother is already gone. If he is a guardian over anybody
or over person or of property, the guardianship is automatically
removed. He cannot manage the community of property, conjugal or
absolute. So, the wife, for example, has the sole power of
administration. He cannot even manage his own property. Somebody
must manage it. And he cannot convey any property inter vivos. Inter
vivos means to take effect during your lifetime. So, you cannot sell
your property. The sale is defective. You cannot donate. You cannot
enter into a contract because you cannot convey your property inter
vivos.

Suppose, a convict during his civil interdiction prepared a last will

and testament where he said: After my death, this property goes to
A, that property goes to B. Is there a valid will and a valid disposition
considering the fact that he is under civil interdiction? Will the civil
interdiction invalidate the disposition? No. Because the disposition is
not inter vivos but mortis causa. So any convict under civil interdiction
validly execute a last will and testament? Yes, because that is not
covered by Article 34.

ARTICLE 36. Pardon; its effects. – A pardon shall not work the
restoration of the right to hold public office, or the right of
suffrage, unless such rights be expressly restored by the
terms of the pardon.

Q: How do you distinguish Article 36 from Article 23 which reads:

“Effects of pardon by the offended party. – A pardon by the offended
party does not extinguish criminal action except as provided in Article
344 of this Code; but civil liability with regard to the interest of the
injured party is extinguished by his express waiver.”
A: Article 23 talks of pardon by the offended party, or pardon by the
victim; whereas, Article 36 talks of pardon by the President. What
extinguishes criminal liability is Article 36, pardon by the President in
relation to Article 89 on the modes of extinguishing criminal liability.
Although Article 36 is very clear, pardon by the President does not
extinguish civil aspect.

So, the basic distinction is: Pardon by the offended party

extinguishes the CIVIL liability but NOT the criminal liability, while the
pardon by the President extinguishes the CRIMINAL but not the civil
liability.

PROBLEM: Suppose, a person is sentenced to prison, let’s say, he is

sentenced to 20 years imprisonment, which automatically carries with
it certain accessory penalties like suspension, disqualification to vote
or be voted for, civil interdiction – it is included. Now, suppose after 5
years in jail, the President pardons him and he is now released. So
the criminal liability is extinguished. From 20 years, after 5 years,
pardoned.

Q: What happens now to civil interdiction, the disqualification? Are

those penalties are deemed removed by the pardon? Does the pardon
of the principal carry with it pardon of the accessory penalties?
A: If we stick to the general rule, the accessory follows the principal,
pardon of the principal automatically carries with it the pardon of
accessory penalties. But not in criminal law because the law says: “A
pardon shall not work the restoration of the right to hold public office,
the right of suffrage unless such rights be expressly restored by the
pardon.”
Therefore, if the pardon by the President is in general terms, the
principal penalty is pardoned but the accessory penalties remain. So
you cannot run for public office; you cannot vote, you cannot manage
your property because you are still under civil interdiction until 20
years shall have lapsed. But if the pardon by the President is clear
and express that the intention is to remove also the accessory
penalties then the pardon of the principal carries with it the
accessory.

Q: Normally, how should the pardon be worded?

A: The pardon should be worded like this. “You are hereby pardoned
and restored to your full civil and legal rights.” So with that pardon, it
is meant that the principal and the accessory penalties are pardoned.
But if it is worded: “You are hereby pardoned.” The accessory
penalties should remain. That is the rule on Article 36.

Q: What are the pecuniary liabilities of an accused under the law?

What are the civil liabilities payable in terms of money?
A: There are 4….
1. Reparation} civil in nature
2. Indemnification } civil in nature
3. Fine } payable to the government
4. Cost } payable to the government

Q: What happens if a convict is sentenced to make reparation to the

offended party offended by him, to pay the fine and to pay the costs.
And the convict does not have the money or assets to satisfy all. His
assets are just sufficient to make one or two. What is the order of
payment?
A: The order of payment is reparation, first. If there is still money
left, the balance for indemnification. The third priority is fine. And, the
last is of course the cost. Order: reparation; indemnification; fine and
costs.
 So, this is one instance where the government will insist that it
be paid first. This time the government decides to be generous. They
are giving priority to the civil liability rather than to the pecuniary
penalties.

ARTICLE 39. Subsidiary penalty. – If the convict has no property

with which to meet the fine mentioned in paragraph 3 of the
next preceding article, he shall be subject to a subsidiary
personal liability at the rate of one day for each eight pesos,
subject to the following rules:

1.If the principal penalty imposed be prision correccional

or arresto and fine, he shall remain under the
confinement until his fine referred to in the preceding
paragraph is satisfied; but his subsidiary imprisonment
shall not exceed one-third of the term of the sentence,
and in no case shall it continue for more than one year,
and no fraction or part of a day shall be counted against
the prisoner.
2.When the principal penalty imposed be only a fine, the
subsidiary imprisonment shall not exceed six months, if
the culprit shall have been prosecuted for a grave or less
grave felony, and shall not exceed fifteen days, if for
light felony.
3.When the principal penalty imposed is higher than
prission correccional no subsidiary imprisonment shall be
imposed upon the culprit.
4.If the principal penalty imposed is not to be executed by
confinement in a penal institution, but such penalty is
fixed duration, the convict, during the period of time
established in the preceding rules, shall continue to
 suffer the same deprivations as those which the principal
penalty consists.
5. The subsidiary personal liability which the convict may
have suffered by reason of his insolvency shall not
relieve him from the fine in case his financial
circumstances should improve.

 Only applies to people who are insolvent.

Subsidiary penalty applies where a person is sentenced to pay a
fine and he cannot pay the fine.

Q: What will happen?

A: The law says: If you cannot pay the fine, you will instead
undergo what is known as subsidiary penalty in this case, subsidiary
imprisonment. You will go to jail without the fine.

Q: For how many days?

A: The ratio is one day for every P8.00. So if your fine P80.00, the
substitute is 10 days in jail. That is the subsidiary penalty.

Q: What happens if the convict cannot pay the reparation,

indemnification and the cost? Is there subsidiary penalty?
A: The answer is NO. Article 39 is very specific. There is no
subsidiary penalty for non-payment of the fine. There is no mention
of reparation, indemnification or costs.

For example, the fine is P20.00. So, P8.00 = one day. Another
P8.00 = one day. It is already two = P16.00. What about the balance
of P4.00? So, 2 ½ days of subsidiary imprisonment? No, only 2. The
fraction of a day is not counted. That is very clear in paragraph 1,
the last clause – no fraction or part of a day shall be counted against
the prisoner.
 Suppose the convict is sentenced to pay a fine, can pay the fine
but says: I would rather go to jail than pay the fine.

Q: Can he do that?
A: If you look at the law. The law says : “If a convict has no
property with which to make the fine.” Has no property – therefore, if
there is property, Article 39 does not apply because the government
can compel you to pay by garnishing your bank account or by levying
your property. He will be forced to pay.

Q: So, what is the implication?

A: The implication is Art. 39 applies only to insolvent people.
Someone who is so poor or indigent.

Q: Is this not a violation of the constitutional provision that “No

person shall be imprisoned for non-payment of debt?”
A: No, it is not. According to the SC in the case of United States vs.
Cara, -- what is meant by the constitution is contractual debt. No
person shall be imprisoned for non-payment of debt arising from
contract, like a loan. But a pecuniary of fine is not arising from
contract. It is an obligation arising from law or from an act or
omission punishable by law. It is not covered by the constitutional
prohibition.

That is how you compute it. For every P8.00, one day, but
subject to the following rules.

1. If the principal penalty imposed be prison correccional or

arresto and fine, he shall remain under the confinement until
his fine reffred to in the preceding paragraph is satisfied; but
his subsidiary imprisonment shall not exceed one-third of the
term of the sentence, and in no case shall it continue for more
than one year, and no fraction or part of a day shall be
 counted against the prisoner.

If it is prison correctional or arresto and fine – imprisonment plus

fine. Prision correccional or arresto mayor plus fine. The computation
is very simple. “You are hereby sentenced to one year prision
correccional, and to a fine of P80.00 with subsidiary imprisonment in
case of insolvency. Your principal penalty is 1 year and fine of
P80.00. If you cannot pay the fine, 1 day is equal to P8.00. So,
1year + 10 days. After one year, you cannot be released. You still
have to stay in jail for 10 days. The 10 days is what you called
subsidiary imprisonment.

We will go to an illustration as far as that one. Remember, we should

apply, when the penalty is like this; prision correccional + fine; or
arresto mayor + fine.

PROBLEM: Suppose a person is sentenced to 6 months or arresto

mayor and to pay a fine of P800.00 with subsidiary imprisonment in
case of insolvency. Suppose, the convict cannot pay the fine of
P800.00, how long will the subsidiary imprisonment last?

Under paragraph 1, 100 days ---around 3 months and 10 days.

The principal penalty is 6 months. What is 1/3 of that? 1/3 is 2
months. That is 60 days. According to paragraph 1, “ in no case shall
the subsidiary penalty exceed 1/3 of the principal penalty”. The
principal penalty is 6 months. 1/3 of that is 60 days. This is already
100 days – automatically reduced to 60 days.

That is the first limitation. In no case shall the subsidiary penalty

exceed 1/3 of the principal penalty.

PROBLEM: The accused is sentenced to 6 years of prision

correccional and pay a fine of 3,200.00 that is his penalty. He cannot
pay the fine. QUESTION: How long will the subsidiary penalty?
ANSWER: Let’s count first. P8.00 = 1 day. That’s 400 days. Let’s
find out. What is 1/3 of the principal penalty? 1/3 is 2 years. Does
this exceed 2 years? No. Therefore, it can be. It does not exceed.
However, in no case should it last longer than 1 year. So it will be
automatically reduced to one year. That is the maximum. That is the
second limitation: in no case shall the penalty exceed 1/3 of the
principal penalty, and in no case shall it go beyond 1/3 of the entire
penalty.

2. When the principal penalty imposed be only a fine, the

subsidiary imprisonment shall not exceed six months, if the
culprit shall have been prosecuted for a grave or less grave
felony, and shall not exceed fifteen days, if for light.

Paragraph 2 applies when the penalty imposed by the court is

only a FINE.

So, there is no imprisonment unlike in par. 1 where the principal

penalty is imprisonment. Here we have fine only. The same rule: if
you cannot pay the fine, P8.00 – 1 day. But the maximum subsidiary
imprisonment is only 6 months if you are prosecuted for grave or less
grave felony.

So, even if the fine is P100, 000.00 “You are hereby sentenced to
pay a fine of P100, 000.00”, you cannot pay, even though how much.
It is always 6 months.

Or if you are only prosecuted for a light felony, the maximum is

only 15 days. You are hereby found guilty, pay a fine of P200.00.
There is no more imprisonment, only the fine. You cannot pay
P200.00. 200/8 = 25 days. You subtract 10. It must go down to only
15 days. Because if the penalty is only fine, then you are prosecuted
for a light felony, in no case should the subsidiary penalty exceed 15
days.

Do not confuse paragraph 1 with paragraph 2. In paragraph 2,

the penalty imposed by the court is only fine. In paragraph 1, the
penalty imposed by the court is prision correccional, or arresto + fine.

3. When the principal penalty imposed be only a fine, the

subsidiary imprisonment shall not exceed six months, if the
culprit shall have been prosecuted for a grave or less grave
felony, and shall not exceed fifteen days, if for light felony.

There is no subsidiary penalty if the principal is higher than

prision correccional.

BAR QUESTION: After he was found guilty and sentenced by the

court to 6 years and 1 day and to pay a fine of P80.00. How long is
the subsidiary penalty? 10 days. And 10 days does not exceed 1/3 of
the principal penalty. Wrong. That is not par. 1. That is par. 3. If the
penalty is 6 years and 1 day, that’s already higher than prision
correccional. That is already prision mayor.

ANSWER: There is no more subsidiary penalty. There is no

subsidiary penalty if the principal penalty is higher than prision
correccional. So prision mayor, reclusion temporal, perpetua, death.
There is no more subsidiary penalty for non-payment of the fine.

That is Rule # 3. There is no more subsidiary penalty if the

principal penalty is higher than prison correctional.

4. If the principal penalty imposed is not to be executed by

confinement in a penal institution, but such penalty is of fixed
duration, the convict during the period of time established in the
preceding rules, shall continue to suffer the same deprivation as
those of which the principal penalty consists.

When the principal penalty is not to be executed by confinement.

Meaning, the principal penalty does not consist of imprisonment, but
of a fixed duration, the subsidiary penalty should be of the same
nature as the principal penalty.

So meaning, it is a divisible penalty. The sentence is not

imprisonment. But it is a divisible penalty.

EXAMPLE.: Destierro. It has the same duration as prision

correccional. You cannot be imprisoned but you are exiled. It is
divisible because it has a fixed duration. So, it is the penalty. You are
hereby sentenced to 4 years of destierro and to pay a fine of P80.00.
Suppose you do not pay the fine of P80.00.

Q: What will happen to you? You have to undergo subsidiary

penalty: 1 day for every P8.00. So, ten days of subsidiary, destierro
also.
A: You do not say “subsidiary imprisonment” because the principal
penalty is not imprisonment. If the principal penalty is destierro, the
subsidiary penalty should also be destierro.

Another example: You are sentenced to a penalty of suspension.

Suspension is under Art. 25. There is also 6 months to 6 years.
Divisible, but no imprisonment. So, four years of suspension; fine of
P80.00. If you cannot pay the fine of P80.00, you have to undergo 10
days of subsidiary suspension.

The subsidiary penalty should be of the same nature as the

principal penalty. Do not always say “subsidiary imprisonment.” But
you follow the rule in paragraph 4 – In no case can the subsidiary
destierro exceeds 1/3 of the principal penalty.

Q: Suppose the principal penalty is not to be executed in

confinement, but it has no fixed duration. Will paragraph 4 apply?
A: Of course, not.

Q: Give an example of a penalty not to be executed by confinement

but it has no fixed duration.
A: Public censure. It is the only example you can think of. It is only
a light penalty where the judge will give you a severe censure. It will
be a blot on your record.

For example: public censure + fine of P20.00. You cannot pay.

So, you cannot say: two days of subsidiary penalty of 2 days of
public censure. You will keep on returning to the judge to be
sermonized at.

5. The subsidiary personal liability which the convict may have

suffered by reason of his insolvency shall not relieve him from
the fine in case his financial circumstances should improve.

Suppose, I am asked to pay a fine of so much. I’m insolvent, as

poor as a rat. So, I undergo subsidiary penalty – fine of P4,000.00. I
have nothing to pay. I’m imprisoned. Then I’m released after serving
my sentence plus the subsidiary imprisonment. Afterwards, I win in
the lotto. So, I have much money now. The government will say:
“All right, pay your fine.” You say: “No more. I have already paid it
through my subsidiary imprisonment! What paid? You pay again!
QUESTION: Why? ANSWER: Because service of the subsidiary penalty
will not relieve you from the payment of the fine, if your financial
condition will improve in the future.

The government has only 10 years to collect the fine. Only 10

years. It is an obligation arising from law and the prescriptive period
is 10 years. Although, the law is silent. If your financial condition
improves after 10 years, no more. But in the first 10 years, you can
be compelled to pay and you cannot use the subsidiary imprisonment
as a reason for not paying.

Q: Is the subsidiary imprisonment an accessory penalty? Is it an

accessory penalty?
A: If you look at Art. 25 of the Penal Code, it enumerates all the
possible penalties. There is no mention of subsidiary penalty.
CONCLUSION: It is not an accessory penalty.

Q: If it is not an accessory penalty, what is the implication?

A: It is not deemed imposed with the principal penalty. Meaning, it
must be expressly mentioned in the decision. And therefore, what
happens if you are ordered to pay a fine and you cannot pay the fine,
but there is nothing in the decision which mentions it, Article 39 says
that you cannot undergo subsidiary penalty, because it is not an
accessory penalty.

Q: How should the decision be worded?

A: You are hereby sentenced to pay a fine of P100,000.00 with
subsidiary imprisonment in case of insolvency.

Q: Under the law, in what instances will there be no subsidiary

penalty? When is subsidiary penalty not be served? In what
instances will there be no subsidiary penalty for an accused person?
A:
 There is no subsidiary penalty for non-payment of fine. In
the same vein, there is no subsidiary penalty for non-
payment of reparation, indemnification and costs.
 There is no subsidiary penalty if the principal
penalty is higher than prison correccional.
  There is no subsidiary penalty if the principal penalty is not
to be executed by confinement if it has no fixed duration,
like public censure.
 There is no subsidiary penalty if the court did not mention it
expressly in the judgment of conviction, because the rule is
that it must be mentioned, otherwise, the convict cannot be
compelled to serve the subsidiary penalty.

Q: How do you define accessory penalty?

A: It is penalty deemed imposed with the principal penalty. So, the
penalty is deemed imposed with the principal even if the judge did
not mention it.

ARTICLE 73, RPC. Presumption in regard to the imposition of

accessory penalty. Whenever the courts shall impose a
penalty which, by provision of law, carried with it other
penalties, according to the provisions of Articles 40, 41, 42,
43, 44, 45 of this Code, it must be understood that the
accessory penalties are also imposed upon the convict.

So, whenever a principal penalty is imposed, the accessory

penalty is deemed imposed even if not mentioned in the judgment of
conviction.

Q: But how will I know what are the accessory penalties? Suppose,
I am sentenced to 12 years of prision mayor. I know there are
accessory penalties. But what are they? What are accessory
penalties? Suppose, I am sentenced to 15 years reclusion temporal,
what are the accessory penalties? Suppose, I am sentenced to 6
months of prision correccional. What are those deemed imposed?
How do I look for the accessory penalties?
A: Arts. 40 to 44. These provisions will tell you that if this is the
principal penalty, these are the accessory penalties attached to it.
 Section Three. --- Penalties in which other accessory
penalties are inherent.

ARTICLE 40. Death, Its accessory penalties. --- The death

penalty, when it is not executed by reason of commutation
or pardon shall carry with it that of perpetual absolute
disqualification and that of civil interdiction during thirty
(30) years following the date sentence, unless such
accessory penalties have been expressly remitted in the
pardon.

ARTICLE 41. Reclusion perpetua and reclusion temporal, Their

accessory penalties. --- The penalties of reclusion perpetua
and reclusion temporal shall carry with them that of civil
interdiction for life or during the period of the sentence as
the case may be, and that of perpetual absolute
disqualification which the offender shall suffer even though
pardoned as to the principal penalty, unless the same shall
have been expressly remitted in the pardon.

ARTICLE 42. Prison mayor, Its accessory penalties. --- The

penalty of prison mayor, shall carry with it that of temporary
absolute disqualification and that of perpetual special
disqualification from the right of suffrage which the offender
shall suffer although pardoned as to the principal penalty,
unless the same shall have been expressly remitted in the
pardon.

ARTICLE 43. Prison correccional, Its accessory penalties. --- The

penalty of prison correccional shall carry with it that of
suspension from public office, from the right to follow a
profession or calling, and that of perpetual special
disqualification from the right of suffrage, if the duration of
said imprisonment shall exceed eighteen (18) months. The
offender shall suffer the disqualification provided in the
article although pardoned as to the principal penalty, unless
the same shall have been expressly remitted in the pardon.

ARTICLE 44. Arresto, Its accessory penalties. --- The penalty of

arresto shall carry with it that of suspension of the right to
hold office and the right of suffrage during the term of the
sentence.

Q: What is the most famous accessory penalty?

A: Civil interdiction.

Q: What are the principal penalties which carry with them the
accessory penalty of civil interdiction? In other words, civil
interdiction is the accessory penalty to what principal penalties?
A: You can answer that only when you go to Articles 40-44. So, the
principal penalties which carry with them the accessory penalty of civil
interdiction are:

 death
 reclusion perpetua
 reclusion temporal

Q: Does the death penalty carry with it civil interdiction?

A: Yes, the law is very clear. So, you are sentenced to die. And
then it was commuted -- when the SC decides on lowering it; or if
the President decides to commute it to reclusion perpetua; or what
happened in 1987 when the New Constitution took effect doing away
with the death penalty -- what happened to these people who are
sentenced to death? There is a constitutional commutation. So,
automatically, they will be under civil interdiction.

PROBLEM: Suppose, you are sentenced to death, and you are

scheduled to die between now and next month, there is no
commutation. Neither the President nor the SC has reduced the
penalty. So, you are still going to be executed. QUESTION: Is there
civil interdiction?
ANSWER: Technically, NONE. Unless it will be commuted.
Technically, you are not under civil interdiction. So, technically, you
can donate your property, you can manage it, you can exercise
parental authority. There is no civil interdiction. I doubt how will you
do it because you are already inside the jail. But under the law, you
have no accessory penalty.

When the President says: “ You are hereby sentenced to reclusion

perpetua” from that moment, you are under civil interdiction.

Q: For how long?

A: The law says, for the next 10 years.

Q: Suppose, you are sentenced to reclusion temporal. How long is

the civil interdiction?
A: Under Art. 41, it is of the same duration as the principal penalty.
So, when it says 20 years of reclusion temporal, civil interdiction will
also be 20 years.

Q: Suppose you are sentenced to perpetua. You are not sentenced

to death. How long will the civil interdiction last?
A: Under Article 41, it says there, that it will last for the rest of your
life. Forever! Civil interdiction for life. Or, during the period of the
sentence refers to temporal or perpetua; civil interdiction for life.
 Under Article 40, if you are sentenced to death, and it was
commuted to perpetua, the civil interdiction is only good for 30 years.
But if you are sentenced to reclusion perpetua, the civil interdiction is
for the rest of your life. There must be something wrong with the
law.
CONCLUSION: It is better to be sentenced to death commuted to
perpetua because the civil interdiction is only for 30 years, but if
sentenced to perpetua, civil interdiction is for the rest of your life.
This is an awkward provision in the Revised Penal Code.

ARTICLE 45. Confiscation and forfeiture of the proceeds or

instruments of the crime. --- Every penalty imposed for the
commission of a felony shall carry with it the forfeiture of
the proceeds of the crime and the instruments or tools with
which it was committed.
Such proceeds and instruments or tools shall be
confiscated and forfeited in favor of the Government, unless
they be property of a third person not liable for the offense,
but those articles which are not subject of lawful commerce
shall be destroyed.
When you are found guilty, the instrument or tools used in the
commission of the crime will be confiscated or forfeited in favor of the
State. This is also applied in special laws like illegal possession of
firearms or drug pushing. The shabu will not be returned to the
pusher. In a homicide or murder case, the weapon recovered and
used as evidence, the gun, knife, bolo, will be confiscated. In illegal
gambling, the cards, dice, chips, they are all confiscated by the order
of the court. But, of course, you cannot apply that to certain crimes.
Like, for example, in rape, you cannot confiscate the instrument used
in the commission of the crime.
 Chapter Four

APPLICATION OF PENALTIES

Section One – Rules for the application of penalties to the

persons criminally liable and for the graduation of the same.

ARTICLE 46. Penalty to be imposed upon principals in general – The

penalty prescribed by law for the commission of a felony
shall be imposed upon the principals in the commission of
such felony.
Whenever the law prescribes a penalty for a felony in
general terms, it shall be understood as applicable to the
consummated felony.

ARTICLE 47. In what cases the death penalty shall not be imposed;
Automatic Review of Death Penalty Cases. – The death penalty
shall be imposed in all cases in which it must be imposed
under existing laws, except when the guilty person is below
eighteen (18) years of age at the time of the commission of
the crime or is more that seventy years of age or when upon
appeal or automatic review of the case by the Supreme
Court, the required majority vote is not obtained for the
imposition of the death penalty, in which cases the penalty
shall be reclusion perpetua.
In all cases where the penalty is imposed by the trial
court, the records shall be forwarded to the Supreme Court
for automatic review and judgment by the court en banc,
within twenty (20) days but not earlier than fifteen (15)
days after promulgation of the judgment or notice of denial
of any motion for new trial or reconsideration. The
transcript shall also be forwarded within ten (10) days after
the filing thereof by the stenographic reporter.
 Now, Article 47 was amended by the Heinous Crimes Law. In
what instances will the death penalty be NOT imposed? There are
three (3) instances here. Take note that the law says: The death
penalty shall be imposed in all cases in which it must be imposed
under existing laws. The personal belief of the judge is irrelevant.
He must follow the law.

The following are the instances when death penalty will not be
imposed:

1. When the guilty person is below 18 years of age at the

time of the commission of the crime ( there is an
automatic lowering of the penalty by 1 degree);
2. When the convict is more than 70 years of age;
3. When upon appeal or automatic review of the case by the
Supreme Court, the required majority vote is not obtained
for the imposition of the death penalty.

Q: When is the constitutional proscription against the imposition of

the death penalty dated? Give the legal basis of your answer.
A: The Heinous Crime Law took effect after 15 days following its
publication in at least 2 newspapers of general circulation. It was
published on December 16, 1994. So, with that the effectivity is
December 31, 1994.

Q: When is the death penalty commuted under the same Code?

A: This… Article 47.

ARTICLE 48. Penalty for complex crime. – When a single act

constitutes two or more grave or less grave felonies, or
when an offense is a necessary means of committing the
other, the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period.

First of all, we will deal with the concept of plurality of crimes. It

means to say that the person performed a series or criminal acts –
one after the other. You commit 2 or more crimes. One after the
other.

There are supposed to be two types of plurality of crimes. The

1 case is material or real plurality, as distinguished from formal or
st

ideal plurality of crimes.

1. Materiality or plurality means that the person performs 2 or

more criminal acts after the other and he is liable for every
criminal act that he commits because every crime is motivated by
a separate criminal intent from the other.

A perfect example is when someone runs amok. He started

shooting people, even those he doesn’t know. He killed so many. He
killed the persons one after the other. If he killed 30 people, he will
be guilty of 30 counts of homicide. The criminal intent to kill victim
#1 is different from the criminal intent to kill victim #2. There are 30
criminal acts. There should also be 30 separate informations.
Although from the viewpoint of criminal procedure, in order to
expedite the proceedings, they can be consolidated. If he is found
guilty, there will 30 convictions and 30 different penalties.

2. Formal or real plurality means that a person commits 2 or

more criminal acts, there will be 2 or more victims or offended
parties, but in the eyes of the law, only one crime was
committed.
Q: When will that happen?
A: They are:
1. When you commit a complex crime, as defined in Article 48;
2. When the offender commits a special complex or composite
crime; or
3. When the accused is found to have committed a continuous
crime or delito continuado.
Q: What is a complex crime?
A: There is a complex crime when a single act constitutes 2 or more
grave or less grave felonies, or when the offense is a necessary
means of committing the other.

So, there are 2 types of complex crimes:

1. When a single act constitutes 2 or more grave or less

grave felonies, which is also called compound crime or
delito compuesto;
2. When an offense is committed as a necessary means to
commit the other, which is called complex crime proper or
delito complejo.

Compound crime or delito compuesto

A person throws a hand grenade to the ground and in so doing

he killed 10 people and almost killing 5 bystanders. Are there 10
crimes of multiple murder with multiple frustrated murder? NO, there
is only one complex crime of multiple murder with multiple frustrated
murder. There is only one act of throwing the hand grenade,
although as a result of that act, several grave or less grave felonies
result.

EXAMPLE: When you aim your gun towards other persons. You fired
it. The bullet killed 2 people. There is only one act. Did you commit
2 crimes of homicides? NO. You commit the crime of double homicide.

Another example. Aberratio ictus. The accused, with intent to kill A

and aiming his gun towards A fired it but because of poor aim, he did
not hit A but instead hit and killed B.

Q: Is the accused liable for the death of B who was not even
intended the victim?
A: Yes, because of aberration ictus.

Q: If you are a fiscal, with what crime will you prosecute the
offender?
A: Complex crime of homicide with attempted murder. It is a complex
crime because the mere fact of firing at A is a felony, although
attempted. On the other hand, he committed homicide because he
killed B. The crime is complex under Article 48 because the crime of
homicide and attempted murder came from a single act, one is grave
and the other is less grave.

Now, take note that under the law, in order for the complex
crime to exist, a single act must constitute grave or less grave felonies
or 2 less grave felonies or 2 grave felonies. So, under Article 48, two
grave felonies can be complexed with each other. Two less grave
felonies can be complexed with each other and grave and less grave
can be complexed with each other.

Q: How about light felonies?

A: There is no mention. Therefore, a light felony can be complexed
with a grave or less grave felony. A light felony cannot be complexed
with another light felony. There is no such thing as a complex crime
of multiple slight physical injuries. Light felonies are not covered
under Article 48.
Q: What happens if a single act produces a grave or less grave and a
light felony?
A: There are two possibilities:

1. The light felony will be absorbed by the grave or less grave.

For example, a policeman was engaged in the discharge of his

duties. I approached him and hit him in the face with my fist. It
caused him slight physical injuries. Under Article 48, the crime is
direct assault. But what happens to the physical injuries that he
sustained when I hit him? It is absorbed by the element of attacking
or employing force. You cannot say that the crime is direct assault
with slight physical injuries.

2. There are as many light felonies as there are victims. They are
treated as different crimes. You cannot complex them. They
are to be prosecuted severally.

For example, I throw a stone at A, it hit him; but the same stone
hit B. You cannot say that the crime of slight physical injury
committed against A absorbed the injury of B. He cannot be
prosecuted for double slight physical injuries because Article 48 does
not apply to light felonies. Conclusion: There are two separate
felonies of light physical injuries.

PEOPLE V. BUAN
22 SCRA 183

Facts: A driver while driving his vehicle recklessly bumped

another vehicle causing the death of A, serious injury to B and
slight physical injury to C. So, a single act of bumping produced
the death of A, serious injury to B and slight physical injury to C.
The fiscal, applying Article 48, filed two informations. He filed
one information for homicide and serious physical injuries
through reckless imprudence against the accused. However,
earlier he files one information for slight physical injuries. He file
an information under the old Civil Code for slight physical injuries
through reckless imprudence, insofar as the light felony is
concerned.

The accused, upon arraignment, pleaded guilty and was

sentenced to pay a fine. In the meantime, the preliminary
investigation of the case continued with respect to the other two.
After that, the fiscal filed a second information in the RTC for
homicide and serious physical injuries through reckless
imprudence.

The accused moved to quash the second information,

pleading double jeopardy. But, according to the prosecution,
there is no double jeopardy because that crime is not the same
as this crime. The crime is slight physical injuries committed
against A and B. These crimes cannot be complexed.

Held: There is double jeopardy. He is being charged for the

same offense. There should be only one information for
homicide, serious and slight physical injuries. That should only
be one. So, you cannot separate the three.

The error of the prosecution is in believing that when, for

example, with one negligent act, you hit 2 people – killing one
and causing slight physical injuries to another, the impression is
that there are 2 crimes. Homicide and slight physical injuries.
But actually, there is only one crime. That is the crime of
committing an imprudent act. The crime is reckless imprudent.
 How about the homicide? How about the physical injuries?
Those are only effects of the imprudent act which is
determinative of the penalty and the civil liability.

Article 48 applies when a single act results to two or more

grave or less grave felonies. But here, you cannot consider the
homicide, the injury, as separate. Article 48 does not apply to
culpable felonies.

But, there is only a single act which produces one felony. Why?
Homicide is a felony. Serious or less serious physical injuries is a
felony. The felony is not the homicide or physical injuries. It is the
reckless imprudence. When you commit an imprudent act, the felony
is the imprudent act. The imprudent and reckless imprudent is the
felony. Homicide, serious or slight physical injuries, is only to
determine what is the penalty. The felony is not the homicide or the
physical injuries. The felony is the imprudent act because according
to Article 3, a felony is an act or omission punishable by law. The
homicide and the physical injury will only determine the penalty. The
error, said the SC, is because of the title given by fiscals to the
information – Homicide through Reckless Imprudence. It creates the
impression that the homicide is the crime. But actually, that is not the
crime but only the effect of the felony.

VERANO VS. CA
115 SCRA 82

This reiterates the ruling in the Buan case. What is the felony?
It is the imprudent act.

LONTOK VS. GORGONIO

89 SCRA 632
 Facts: The felony is the homicide, the physical injuries. The
imprudent act is only the manner of committing the felony
because, according to Article 3, a felony is committed either by
dolo or culpa. The culpa is not the felony, but only the manner.

If you follow this case then, if the felony is the injury, you cannot
complex. There must be two, otherwise, there is double
jeopardy, because one crime is different from the other.

REODICA VS. CA
292 SCRA 887

A reiteration of the Lontok Case.

Complex crime proper or delito complejo

There are two acts. It is not a single act. You commit the
felonies one after the other. But the first felony is not the ultimate
object. It is only the stepping stone to commit another offense. You
commit this not because that is your intention. It is only the first step
to commit another. One is the means to commit the other.

ILLUSTRATION:

delito compuesto
----- Compund Crimes
Complex Crimes (Art. 48)
delito complejo

Formal or
Ideal ----- Special Complex Crime
Crimes (Composite Crime)
 ----- Continuous Crime
delito continuado

Q: What are the good examples of these?

A:
 Estafa through Falcification of Commercial Documents
I will falsify the check by counterfeiting the
signature of the drawer and encash the check. So, the
falcification was the crime committed as a necessary means to
defraud the bank – estafa.

 Forcible Abduction with Rape

When the offender, with lewd design abducted a woman and
drove her somewhere and through force and intimidation, had
carnal knowledge with her. The forcible abduction preceded the
rape. The SC said that the crime is forcible abduction with rape.

 Malversation through Falsification of Public Document

 Kidnapping with Murder

You kidnap somebody and demand ransom. When there is
no ransom paid, you kill the hostage. It is very common.

Q: What is the crime committed?

A: The crime committed is the crime of Kidnapping with Murder. The
kidnapping was used as means to effect the killing.

But this example is doubtful because of the amendment of Article

267. Because of this amendment, it is doubtful whether the crime is
called kidnapping with murder under Article 48, or is it called Special
Complex Crime of Kidnapping with Murder, or the crime of Kidnapping
Qualified with Murder.

But take note, one offense is committed as a necessary means to

commit the other. The law does not say one offense is committed as
an indispensable means to commit another. So, the first offense is
necessary to commit the second but the first is not indispensable to
commit the second. When you say “indispensable”, it means that
without it, the second will not be committed.

Q: What happens if the first offense is indispensable to commit the

second? Is there a complex crime?
A: There is none. The second crime is the crime because the
second crime committed is the real crime.

Q: How about the first crime?

A: If it is indispensable, then it is only an element of the second
crime. The first offense will be the element of the second; it is
absorbed. Without it, you cannot commit the second.

A good example of this is the so-called Absorption Doctrine or

Doctrine of Absorption in the crime of rebellion.

PEOPLE vs. HERNANDEZ

Issue: When rebellion is committed and in the course of

rebellion, the rebels killed people, they injured people, they
burned and destroyed property, can they be guilty of the complex
crime of Rebellion with murder or physical injuries with homicide?

Held: NO. The common crime is absorbed because you cannot

convict a person of rebellion without killing. When you commit
rebellion, necessarily people will die. So, the killing and the
 destruction is not only accessory but indispensable. They are
absorbed in the felony of Rebellion. That is why there is no such
thing as complex crime of Rebellion with Homicide or Murder
because it does not fall under Article 48.

The law also does not say that one offense is a direct means to
commit the second. So, it is not indispensable; not to conceal, not a
direct means—necessary but not direct.

Q: What do you mean by that?

A: In the case of People vs. Abidosa, where the accused decided to
kill the victim. What he did was to forcibly enter the house of the
victim. And once inside, he killed the victim.

Q: Is the crime murder? Or trespass to dwelling? Because he had

to enter the house first by forcing himself in and once inside, he killed
the person.
A: Actually, trespass to dwelling was not the primary intent. The
primary intent was to kill. The trespass was only incidental. It was the
direct means effected to kill the victim. So, the crime there is murder
aggravated by unlawful entry. The forcible entry is not trespass to
dwelling, but only the aggravating circumstance.

Q: What is the penalty for the complex crime?

A: The penalty of the complex crime is to be based on the most
serious crime, the same to be imposed in its maximum period. There
should be only one penalty because if there was only one crime, there
should only one penalty.

For example, a person commits the complex crime of homicide

and attempted homicide. Of course, the penalty for the homicide is
higher than the attempted homicide. QUESTION: What is the
penalty for homicide? ANSWER: The penalty is reclusion temporal,
but it should be imposed in its maximum period.

Q: How about the penalty for attempted homicide?

A: No more.

Q: How about estafa through falsification of public document?

A: Actually, it depends. There are instances when the penalty for
estafa is higher than falsification, depending on the amount involved
in the estafa. But there are also instances where the penalty for
falsification is higher.

So, it is a matter of looking at the two penalties. If the penalty

for the crime of estafa is higher, then it will be the one to be imposed
in its maximum period. On the other hand, when the penalty for the
falsification is higher, then it should be the one to be applied in its
maximum.

Q: Is Article 48 beneficial to the accused?

A: Yes. It is intended to benefit the accused. In the first place,
instead that he should be charged 3 times, there is only one crime
charged. Instead of putting a bond 3 times, there will only be one.
The penalty is still for his advantage.
EXAMPLE: A single act produces death of 3 people—multiple
homicide. Well, there should only be one crime. The same provision,
the higher the offense, they are just the same but three homicides.
The penalty for homicide is reclusion temporal. We will maximize it:
20 years – one penalty only.

Assuming, there is no Article 48. You killed three people, there

will naturally be reclusion temporals. And even if they will give you
the minimum of 12 years and 1 day, it will still turn out to be higher
than the penalty in the maximum.
 Also, Article 48 applies only to felonies. You cannot complex the
felony with the crime punishable by a special law. So, there is no such
thing as a complex crime, under the crime in the RPC and a crime
under a special law.
Special Complex Crimes

The second type of ideal plurality is the so-called special complex

crime. So, there are two types of complex crime, the ordinary and the
special complex crime.

Ordinary complex crime is governed by Article 48. When two or

more crimes are complexed under Article 48, that is what is called the
ordinary complex crime. Special complex crime is a crime under the
RPC declared as complex without applying the Article 48.

EXAMPLE: The special complex crime of Robbery with Homicide

under Article 294 of the RPC. When, by reason or on the occasion of
robbery, the crime of homicide shall have been committed. I robbed
somebody, after taking his money, I killed him. If you apply Article 48,
there seems to be something wrong. You cannot say that there is a
single act. It is very clear that there are two acts. Taking his property
and killing him are 2 acts. You cannot even say that one is necessary
to commit the other.

Q: Can you kill without robbing?

A: Yes, you can kill without robbing. And you can rob without
killing. But just the same, you cannot do anything because Article
294 says so. Robbery with Homicide is a special complex crime.

Another example of special complex crime is Article 335: Rape

with Homicide. You raped a girl and after raping her, you killed her.
That is rape with homicide -- a special complex crime.
Continuous Crimes

The third type of formal or ideal plurality is the concept of

continuous crime or the so-called DELITO CONTINUADO. It is
supposed to be a crime which consists of a series of acts but all
coming or emanating from one criminal resolution. There is only one
criminal resolution, and it is followed by a series of acts.

PEOPLE vs. DE LEON

Facts: The suspect stole two roosters. So, there are two acts of
taking. But it turned out that there are also two owners.

Issue: How many crimes of theft?

Held: There is only one crime of theft. One crime of theft

involving two roosters because there is a single intent to steal.
He does not divide his mind into stealing from the two owners.
He even does not know that there are two owners of the cocks.

EXAMPLE: I am the class treasurer. Then, we call a party and each

of us contributed P100.00 totaling P5, 000. Then, I will run with the
money. QUESTION: How many crimes of estafa did I commit?
ANSWER: There is only one crime. There is only one intent to
defraud. I do not divide my mind 50 times.

People vs. Mallare

168 SCRA 422

Facts: Consuelo Mallare offered to mortgage to Remedio

Capaoan two lots allegedly owned by Leonora Balderas for the
sum of P3,000. According to Mallare, these two lots were owned
by Balderas and that Mallare is authorized to mortgage. Capaoan
has only P1,500. So, the latter referred Mallare to his mother-in-
law, Julia Saclolo, to put up the remaining P1,500. So, two
mortgage contracts were made – one was in favor of Capaoan
and the other was in favor of Saclolo. It turned out that the
person who signed the contract was not the real Balderas. Two
cases of falsification of public document were filed against
Mallare. In one case, the victim was Capaoan, while the other
was Saclolo. Mallare pleaded guilty to one charge. Later, he
moved to quash the second charge pleading double jeopardy.

Issue: How many offense are there?

Held: There is double jeopardy. A comparison of the two cases

will tell us that they refer to a series of acts amounting to what is
known as a continuing offense. A single crime consisting of a
series of acts but all arising from a criminal resolution. It is a
continuous unlawful acts or series of acts set by a single impulse.
Although there are series of acts, there is only one crime
committed. The crime of Mallare, although a series of acts, was
set on both by a single intent or impulse to defraud Capaoan of
the total of P3,000.

Actually, the original victim was Capaoan. There is only one

deceit that is committed by Mallare on the two victims. Because
by mere betrayal of faith, the second victim, Saclolo had been
dragged into the swindle by reason of Capaoan having only
P1,500. at the time. That there were two victims, however, will
not convert the crime into two separate offenses as the
determining factor is the unity or the multiplicity of the criminal
intent of the transactions. So, that is the basis.

Santiago vs. Garchitorena

 228 SCRA 214

Facts: Miriam Defensor-Santiago was charged criminally for the

violation of the Anti-Graft and Corrupt Practices Acts, allegedly by
favoring aliens to benefit the Alien Legalization Program.
However, the prosecution sought to change the charges by filing
32 amended information since 32 aliens were benefited. When
the case reached the Supreme Court, it directed the prosecution
to consolidate the 32 informations into one information, charging
only one crime. The court said that the concept of delito
continuado, although a product of the Spanish Penal Code, has
been applied to crimes penalized under a special law.

Issue: Is delito continuado applicable to special laws?

Held: YES. Under Article 10 of the Penal Code, the code is

supplementary to special laws, unless the latter provide the
contrary. Therefore, although that principle developed from the
old Penal Code, it may be applied in a supplementary capacity to
crimes punished by special laws. Delito continuado is also
recognized in American jurisprudence. The question of whether a
series of criminal acts over a period of time raises a single
offense or separate offenses has also troubled American courts,
as shown by several theories. The American court, following the
Single Larceny Doctrine, looks at the different criminal acts as
one continuing act involving the same transaction or as done in
the same occasion. An American court held that a contrary rule
will violate the conditional guaranty against putting a man in
jeopardy twice of the same offense.

Another court observed that the doctrine of a single larceny

rules that since a separate charge could be filed for each act, the
accused may be sentenced for the penalty for the rest of his life.
 The Supreme Court said that the 32 amended informations aver
that the offenses were committed on the same period of time that is,
on or about October 17, 1988. The strong probability even exists that
the approval of the application for the legalization of the stay of the
32 aliens was done by a single stroke of the pen as when the
approval was embodied in the same document. One document,
covering the 32 aliens, carried only one signature.

However, for example, I am the cashier of a corporation. Today, I

ran away with the money. One week from now, I will spend again the
money. And after one week, nothing is left. That is not continuado.
The intent to defraud today is different from the intent to defraud
next week. What results is a real plurality. There are as many crimes
as there are as many left.

Q: Are delito continuado and complex crime the same?

A: No. They cannot be the same. Delito continuado is not governed
by Article 48. In complex crime, there is a single act which produces
two or more grave or less grave felonies. In delito continuado, the
offender performs a series of acts. One offense is not necessary to
commit the other. So, you do not say that we will maximize the
penalty. Article 48 does not apply. They have the same concept in the
eyes of the law, albeit there is complex crime and a special complex
crime. Delito contiuado is not governed by Article 48.

Q: Differentiate delito continuado from a continuing crime?

A: There is no difference, it is the same. Delito continuado is in
Spanish. It means a series of acts emanating from one criminal
resolution. However, there is another continuing crime under Criminal
Procedure. That “when the ingredients of the crime took place in two
or more places – and the crime may be filed in the place where the
crime was committed, or where any one of its essential ingredients
took place.”

For example, kidnapping. You are kidnapped in Davao and then

brought to Cotabato. QUESTION: Where should the case be filed?
ANSWER: Either of the two places. That is also called continuing
crime. The place where the crime started, or where it continued.

The issue there is where the case is to be prosecuted. The issue

in delito continuado is how many crimes are committed. So, it is a
different kind of continuing crime. That is why in order to avoid the
confusion, in Criminal Procedure the term is rather called
TRANSITORY CRIME, where the elements occur in two or more
different places. And in order to confuse it with Criminal Procedure,
the issue here is there is only one criminal impulse resulting in two or
more acts.

So, to properly answer the preceding question: Initially, you

should say that they are the same. One is in Spanish, and the other is
in English. However, you should, if what is meant by continuing crime
is a transitory crime under the rule in Criminal Procedure, then this is
the difference. In delito continuado, the issue is to determine how
many crimes are committed, and whether there are two or more
penalties; whereas in transitory crime, the issue here is to determine
in what court should the person be prosecuted. Because continuing
crime could mean a crime committed where the essential ingredients
took place in more than one place; or as delito continuado.

ARTICLE 49. Penalty to be imposed upon the principals when the

crime committed is different from that intended. – In cases in
which the felony committed is different from that which the
offender intended to commit, the following rules shall be
observed:
1.If the penalty prescribed for the felony committed be
higher than that corresponding to the offense which
the accused intended to commit, the penalty
corresponding to the latter shall be imposed in its
maximum period.
2.If the penalty prescribed for the felony committed be
lowered than that corresponding to the one which the
accused intended to commit, the penalty for the
former shall be imposed in its maximum period.
3.The rule established by the next preceding paragraph
shall not be applicable if the acts committed by the
guilty person shall also constitute an attempt or
frustration of another crime, if the law prescribes a
higher penalty for either of the latter offenses, in
which case the penalty provided for the attempted or
the frustrated crime shall be imposed in its maximum
period.

Q: What is the penalty for the felony committed if it is different from

the felony intended?
A: According to Article 49, if the penalty for felony committed is
higher than the felony intended, then the penalty should be based on
the felony intended, but it has to be in its maximum period. On the
other hand, if the penalty for the felony committed turns out to be
lower than the penalty for the felony intended, then the penalty
should be based on the felony committed, the same to be imposed in
its maximum period.

However, since the law speaks of felony committed and felony

intended, then obviously it refers to Article 4 (1), because that is the
only provision in the Revised Penal Code which uses those phrases
“felony committed” and “felony intended”. Under Article 4(1), a
person incurs criminal liability if he commits a felony although the
wrongful act done is different from that which he intended. In other
words, the question refers to that provision. And there are three
situations contemplated here:

• praeter intentionem -- result exceeded the intention

• aberration ictus – mistake of blow
• error in personae – mistake of identity

Applying Article 49 to these three situations:

Praeter intentionem

The accused intended only to commit a crime of slight physical

injuries punishable by arresto menor, but the victim died. So, the
felony committed is homicide punishable by reclusion temporal.

Q: For what crime should he be prosecuted? If we apply Article 49,

he should be prosecuted for homicide because the penalty is higher.
But once he is found guilty, the penalty should be arresto menor, only
to be imposed in its maximum period. This is a crazy answer. Why will
a person be sentenced to homicide and penalized for slight physical
injuries? So, it will arrive at an absurd conclusion by applying Article
49.
A: The correct answer is: he should be prosecuted for homicide
and, if found guilty, we should impose the penalty for homicide, which
is reclusion temporal. However, we will give him the mitigating
circumstance that he did not intended to commit so grave a wrong as
that committed.
 Article 49 does NOT apply to praeter intentionem, otherwise, an
absurdity will result.

Aberration ictus

The accused, with intent to kill A, fired his gun towards A but
because of his poor aim, he did not hit A, but instead killed B.
QUESTION: Is he liable for killing B, although the latter is not the
intended victim? ANSWER. Yes.

Q: What is the proper penalty?

A: Obviously, that is a complex crime because a single act produced
2 felonies consummated homicide and attempted homicide. Since, it’s
a complex crime under Article 48, the correct penalty is NOT based on
the lower offense. It should be based on the higher offense, to be
imposed in its maximum period. You do not base the penalty on the
attempted homicide but on the consummated homicide which should
be maximized.

This is the exact opposite of Article 49, where the impossible

penalty is based on the lower penalty, which should be maximized.
Under Article 48, it should be based on the higher penalty to be
maximized.

Q: Which will prevail between the two?

A: Obviously, Article 48 will prevail because it is a complex crime.

Article 49 does NOT apply to aberratio ictus because it will conflict

with Article 48.
Error in Personae

The accused, with intent to murder A, waits for him in the dark.
The felony intended – murder of A. So, he approached the intended
victim from behind without giving the latter a chance to defend
himself and stabbed him to death. But it turned out it is not A, but a
stranger B.

Q: Is he liable for the death of B?

A: Yes, the crime he committed is murder. So, the intended felony is
murder of A, but the actual felony committed is murder of B.

Now, we say the penalty for the crime intended is higher. Both
are murder. Whether it’s a murder of A or a murder of B, it is still
murder. You do not say the penalty for this murder is higher than the
penalty for that murder. So, there is no effect. You cannot say that
the murder of A carries a higher penalty than the murder of B, they
are still the same.

Article 49 does NOT apply to error in personae

Q: Where will you use Article 49?

A: I intend to kill my father. So, I shot my father but when I looked
closely, it turned out that it is not my father but someone who looks
like my father. So, the crime intended is parricide. The crime
committed is homicide.

Q: What is the penalty for parricide, the crime intended?

A: Reclusion temporal.

Q: What crime did I commit?

A: I am liable for the crime of homicide because I killed a stranger.
But the penalty of reclusion temporal should be maximized.

That illustrates Article 49, paragraph 2. If the penalty prescribed

for the felony committed be lower than the corresponding to the one
which the accused intended to commit, the penalty for the former
shall be imposed in its maximum period.

Suppose, we reverse the previous problem. I attacked a stranger

and killed him. But when I looked at him, it was not a stranger but
my father. So, the felony intended is homicide, but the felony
committed is parricide. QUESTION: For what crime will I be
prosecuted? ANSWER: For parricide because I killed my father. But I
did not really intend to kill him but I intended to kill somebody. So, if
you are found guilty of parricide, the court will not impose reclusion
perpetua to death, but only reclusion temporal in its maximum
period because Article 49, paragraph 1 says: If the penalty
prescribed for the felony committed be higher than that
corresponding to the offense which the accused intended to commit,
the penalty corresponding to the latter shall be imposed in its
maximum period.

ARTICLE 50. Penalty to be imposed upon principals of a

frustrated crime. ---The penalty next lower in degree than
that prescribed by law for the consummated felony shall be
imposed upon the principal in a frustrated felony.
ARTICLE 51. Penalty to be imposed upon principals of
attempted crimes.--- A penalty lower by two degrees than
that prescribed by law for the consummated shall be
imposed upon the principals in an attempt to commit felony.

ARTICLE 52. Penalty to be imposed upon accomplices in

consummated crime. --- The penalty next lower in degree
than that prescribed by law for the consummated shall be
imposed upon the accomplices in the commission of a
consummated felony.

ARTICLE 53. Penalty to be imposed upon accessories to the

commission of a consummated felony. --- The penalty lower
by two degrees than that prescribed by law for the
consummated felony shall be imposed upon the accessories
to the commission of a consummated felony.

ARTICLE 54. Penalty imposed upon accomplices in a

frustrated crime. --- The penalty next lower in degree than
prescribed by law for the frustrated felony shall be imposed
upon the accomplices in the commission of a frustrated
felony.

ARTICLE 55. Penalty to be imposed upon accessories of a

frustrated crime.--- The penalty lower by two degrees than
that prescribed by law for the frustrated felony shall be
imposed upon the accessories to the commission of a
frustrated felony.

ARTICLE 56. Penalty to be imposed upon accomplices in an

attempted crime.--- The penalty next lower in degree than
that prescribed by law for an attempt to commit a felony
shall be imposed upon the accomplices in an attempt to
commit the felony.

ARTICLE 57. Penalty to be imposed upon accessories of an

attempted crime.--- The penalty lower by two degrees than
that prescribed by law for the attempted felony shall be
imposed upon the accessories to the attempt to commit a
felony.

ARTICLE 71. Graduated scales. --- In the case in which the

law prescribed a penalty lower or higher by one or more
degrees than another given penalty, the rules prescribed in
Article 61 shall be observed in graduating such penalty.
The lower or higher penalty shall be taken from the
graduated scale in which is comprised the given penalty.
The courts, in applying such lower or higher penalty,
shall observe the following graduated scales.

SCALE NO. 1

1.Death
2.Reclusion perpetua
3.Reclusion temporal
4.Prision mayor
5.Prision correccional
6.Arresto mayor
7.Destierro
8.Arrersto menor
9.Public censure
10. Fine

SCALE No. 2
 1.Perpetual absolute disqualification
2.Temporal absolute disqualification
3.Suspension from public office, the right to vote and be
voted for, the right to follow a professional calling
4.Public censure
5.Fine

ARTICLE 60. Exception to the rules established in Articles 50-57. ---

The provisions contained in Articles 50-57, inclusive, of this
Code shall not be applicable to cases in which the law
expressly prescribes the penalty provided for a frustrated or
attempted felony, or to be imposed upon accomplices or
accessories.

Q: What is the penalty for the crime of homicide?

A: According to Article 249, the penalty for homicide is reclusion
temporal.

Q: Reclusion temporal is the penalty for homicide against whom, the

principal, the accomplice or the accessory?
A: According to Article 46, when the Penal Code prescribes a
penalty, it is understood as referring to the penalty for the principal.

Q: What kind of homicide -- consummated, frustrated or attempted?

A: Again, under Article 46, it is understood that the penalty prescribed
by the law is the one applicable to the consummated. So, reclusion
temporal is the penalty for the principal if the homicide
consummated.

CONSUMMATED FRUSTRATED ATTEMPTED

Princi 0 1 2
pal
Acco 1 2 3
mplic
e
Acces 2 3 4
sories

Q: What is the penalty for the accomplice and the accessories in a

consummated homicide? What is the penalty for the principal,
accomplice and accessory in a frustrated homicide?
A: That is where Articles 50 to 57 will come in the above graph is a
summary of the entire Articles 50 to 57. Your starting point is zero
(Article 46)

Q: If reclusion temporal is the penalty for the principal in a

consummated homicide, what is the penalty for the principal if the
homicide is frustrated?
A: It is supposed to be 1 degree lower from the principal in a
consummated homicide.

Q: What is 1 degree lower from reclusion temporal?

A: Article 71 will now apply. One degree lower is the penalty of prision
mayor. That is also the penalty for the accomplice in a consummated
homicide.

Q: Suppose, the homicide is only attempted, what is the penalty for

the principal?
A: Two degrees lower than the principal in the consummated
homicide. So, the penalty should be within the range of prision
correccional. The same answer for the penalty for the accomplice in
a frustrated homicide, and penalty for the accessory in a
consummated homicide. So, all three are 2 degrees lower.

Q: What is the penalty for an accomplice in an attempted homicide?

A: It should be 3 degrees lower from the principal in a consummated
homicide or arresto mayor. The same thing for the accessory in a
frustrated homicide.

Q: What is the penalty for the accessory in an attempted homicide?

A: Four degrees lower from the principal in a consummated homicide.
So, that is within the range of destierro.

This is, therefore, the manner of determining the penalty for

attempted, frustrated felony and accomplices and accessory.

But Article 60 says the penalty for the accomplice or for the
accessory, or the frustrated or attempted felony ( under Articles 50-57)
should not apply where the Penal Code provides a separate exception.
Because there are instances when the penalty for the accomplice and
the penalty for the principal is the same.

ARTICLE 268, RPC. Slight Illegal Detention -- The penalty of

reclusion temporal shall be imposed upon any private
individual who shall commit the crimes described in Article
267 without the attendance of any of the circumstances
enumerated therein. The same penalty shall be incurred by
anyone who shall furnish the place for the perpetration of
the crime x x x.

SITUATION: If I detain somebody, I am the principal. But if I use

your house and you allowed it, you are an accomplice. Under article
268, the penalty for you and the penalty for are the same. It should
not be one degree lower for you. So, this is an exception. There is no
distinction between an accomplice and a principal. The principal and
accomplice fall under the same liability. That is the application of
Article 60.
ARTICLE 346, RPC. Liability of ascendants, guardians,
teachers, or other persons entrusted with the custody of the
offended party. -- The ascendants, guardians, curators,
teachers and any person who, by abuse of authority or
confidential relationship, shall cooperate as accomplice in
the perpetration of the crime embraced in Chapters Second,
Third, and Fourth of this Title, shall be punished as principals
x x x.

The crime here is against chastity, which may either be rape, acts
of lasciviousness, seduction corruption of minors, and abduction.

PROBLEM. A woman is raped. The accomplices of the rapist are

parents or guardians. According to Article 346, the penalty for the
rapist and the penalty for the accomplices are the same.

ARTICLE 121, RPC. Flight to enemy's country -- The penalty

of arresto mayor shall be inflicted upon any person who
owing allegiance to the Government, attempts to flee or go
to an enemy country when prohibited by competent
authority.

PROBLEM. So, if you go to the enemy country when you are not
supposed to go there because there is war, when you come back, you
can be prosecuted.

QUESTION. Suppose, you are attempting yet (meaning you have

not yet left), but you were already caught, what is the penalty?
ANSWER. Still the same, as if you have already gone there because
the mere attempt to flee is the same as consummated. So, this is
another example when the penalty for the attempt or the
consummation is the same.
ARTICLE 76. Legal period of duration of divisible penalties. -
The legal period of duration of divisible penalties shall be
considered as divided into three parts, forming three
periods, the minimum, the medium, and the maximum in the
manner shown in the following table:

TABLE SHOWING THE DURATION OF DIVISIBLE PENALTIES AND THE

TIME INCLUDED IN EACH OF THEIR PERIODS

PENALTIE ENTIRE MINIMUM MEDIUM MAXIMUM

S DURATION
Reclusion From 12 From 12 From 14 From 17
temporal years and 1 years and 1 years, 8 years, 4
day to 20 day to 14 months and months and
years years and 8 1 day to 17 1 day to 20
months years and 4 years
months
Prison From 6 From 6 years From 8 From 10
mayor, years and 1 and 1 day to years and 1 years and 1
absolute day to 12 8 years day to 10 day to 12
disqualificati years years years
on and
special
temporary
disqualificati
on
Prison From 6 From 6 From 2 From 4
correccional months and months and years 4 years, 2
suspension 1 day to 6 1 day to 2 months and months and
and years years and 4 1 day to 4 1 day to 6
destierro months years and 2 years
months
Arresto From 1 From 1 to 2 From 2 From 4
mayor month and months months and months and
1 day to 6 1 day to 4 1 day to 6
months months months
Arresto From 1 to From 1 to 10 From 11 to From 21 to
menor 30 days days 20 days 30 days

COMPUTATIONS:

 Reclusion temporal - duration is 12 years, 1 day to 20 years

But reclusion temporal has three periods - minimum, medium,

maximum. To know the duration, you have to know Article 76.

Reclusion Temporal - 12y 1d to 20y

minimum : 12y, 1d to 14y 8m
medium : 12y, 8m 1d to 17 y 4 m
maximum : 17y, 4m 1d to 20y

formula:

a)Determine the duration of the entire felony

maximum : 20y
minimum : 12y, disregard the 1d
subtract : 20y - 12y=8y. This is the duration of the
entire penalty.

b)Since there are three parts, divide 8y by 3. It is difficult to divide,

so first, convert some years to months. Hence, 8y - 2y=6y 24m
 (2y).

Then divide 6y, 24m by 3 = 2y, 8m

 Duration of each period = 2y, 8m of reclusion temporal

c) Start with 12y and add 1d (but in the computation, do not add
1d), then add 2y and 8m.

Therefore: 12y 1d
+ 2y 8m
14y & 8m

 So, the minimum period is 12y, 1d to 14y, 8m.

d) 14y 8m
+ 2y 8m
16y & 16m or 17y, 4m

 So, the medium necessarily starts at 14y, 8m 1d to 17y, 4m.

e) 17y 4m
+ 2y 8m
19y, 12m or 20y

 So, the maximum starts at 17y, 4m 1d to 20y.

 Prision Mayor ---- duration is 6 years, 1 day to 12 years

minimum : 6y 1d to 8y
medium : 8y 1d to 10y
maximum : 10y 1d to 12y
If we follow the formula, the computation shall be:

a) 12y-6y = 6y

b) 6y = 2y (duration of each period)

3y

c) Thus: 6y, 1d to 8y (minimum)

8y, 1d to 1oy (medium)
10y, 1d to 12y (maximum)

 Prision Correccional -- duration is 6 months, 1day to 6years

minimum : 6m1d to 2y 4m
medium : 2y 4m 1d to 4y2m
maximum : 4y 2m 1d to 6y

a) 6y - 6m (but you cannot subtract without converting first the

6y into months)

6y = 5y 12m
6m
5y 6m (duration of entire penalty of prision
correcccional)

b) Convert 5y, 6m in such a manner as to make it divisible by 3

5y 6m = 3y, 30m
3y 30m = 1y, 10m
3 (duration of each period)

c) Compute:
 6m
+ 1y, 10m
1y, 16m or 2y 4m
+1y 10m
3y 14m or 4y 2m
+ 1y 10m
4y, 24m or 6y

Thus:
minimum : 6m 1d to 2y 4m
medium : 2y 4m 1d to 4y 2m
maximum : 4y 2m 1d to 6y

 Arresto mayor -- duration is 1 month, 1day to 6months

minimum : 1m to 2m
medium : 2m 1d to 4m
maximum : 4m 1d to 6m

formula: 6m - 1m = 5m or 3m 60d

So, 3m 60d = 1m 20d (duration per period of arresto mayor)

3

Compute:
1m
+ 1m, 20d
2m, 20d minimum : 1m 1d to 2m 20d
+ 1m 20d
3m, 40d or 4m 10d medium : 2m 21d to 4m 10d
+ 1m 20d
5m 30d maximum : 4m 1d to 6m

Therefore, if we apply the formula, it will not jibe with what is

provided under Article 76.

Q: What is the correct answer?

A: Follow the law. The solution derived from the formula is
mathematically correct but legally wrong. Whereas, in Article 76, it is
legally correct although mathematically wrong.

In Article 70, you can read there the scales. What is important is
Scale 1. In the scale of penalties, how are the penalties arranged
starting from these down the last penalty? Alright, we have said
earlier that penalties are either divisible or indivisible; one with a fixed
duration and one without fix duration.

Now, for penalties which are divisible ( penalty which consists of

three periods, known as minimum, medium and maximum ), you have
at least to know the duration of each period. Article 76 is our guide
because it tells us the duration of each period of the penalty. But that
will entail really of memorizing the table down to the last month and
day, and you cannot commit any error there because an error of one
day will give an error on your answer.

Now, you might as well remember the mathematical formula to

arrive at the same answer even without reading Article 76. Actually,
the basic knowledge of mathematics for the minimum period will
answer even without memorizing Article 76.

For example, the duration of reclusion temporal: 12 years and 1

day to 20 years. Now, the formula is to subtract the minimum from
the maximum disregarding the 1 day difference: 20 years - 12 years
= 8 years.

That is the entire duration of the penalty of reclusion temporal.

Next is to determine the duration of its period. Since there are three
periods, then we have to divide 8 years into three parts. Now, of
course, dividing 8 years into three parts would be rather difficult. The
best thing to do is to convert the years into months. So, that will be
quite easier. So, let's reduce this 6 years because it is easier to divide
6 years by 3. Now, let's convert the 2 years into months: 24 months.
6 years and 24 months, that is already divisible by 3.

So, that will now be our answer: 2 years and 8 months. That
would be the duration of each period of reclusion temporal. So, let's
start with the minimum. Of course, you already know the minimum of
12 years and 1 day. Then you add the 1 day: but in our formula, we
disregard it. It is now: 12 years + 2 years and 8 months = 14 years
and 4 months.

The medium period starts from 14 years, 8 months and one day
+ 2 years and 8 months = 16 years, 16 months and 1 day. So, we
have transpose 12 months there to make that 17 years. You subtract
12 months. It becomes 4 months. It shall be 17 years and 4 months.

Now, the maximum starts from 17 years, 4 months and 1 day,

then you add again the same 2 years and 8 months: 17 years, 4
months and 1 day + 2 years and 8 months = 19 years, 12 months, or
exactly 20 years.

Now, you find out if your answer corresponds to the duration of

the penalty. Minimum of the minimum is 12 years and 1 day. The
maximum of the maximum is 20 years. That is supposed to be the
duration of the entire penalty. If you look at the table in Article 76,
the answer is the same.

The only penalty where our formula will not work is the penalty
of arresto mayor. It will not tally. Let's try to demonstrate. Well, of
course, arresto mayor has a duration of 1 month and 1 day to 6
months. If you will look at Article 76, the official partitioning of
arresto mayor, it says there the minimum starts from 1 month and 1
day to 2 months, the medium is 2 months and 1 day to 4 months and
the maximum is 4 months and 1 day to 6months. We will apply our
formula and try to find out whether our answer will be the same.

6 months maximum - 1 month minimum = 5 months. So, arresto

mayor has a duration of 5 months divided by 3. To make it easier, we
will reduce this to 3 months and the 2 months to days. So, 60 days, 3
months and 60 days divided by 3 = 1 month and 20 days. That is
supposed to be the duration. So, we will start.

The starting point is 1 month and 1 day.1 month + 1 month and

20 days = 2 months and 20 days. The medium is supposed to start
from 2 months and 21 days + 1 month and 20 days = 3 months and
40 days. Transpose 30 days equals 4 months. 40 days - 30 days = 10
days. The medium is supposed to end at 4 months and 10 days. The
maximum is supposed to commence from 4 months and 11 days + 1
month and 20 days = 5 months and 30 days or exactly 6 months.

Now, you compare that with what Article 76 says. They do not
tally. This is what Article 76 says. This is what the formula says. Now,
conclusion: the formula in the Penal Code is mathematically wrong, or
inaccurate. But at any rate, that is the answer.

ARTICLE 61. Rules for graduating penalties -- For the purpose of

graduating the penalties which, according to the provisions
of Articles 50 to 57, inclusive, of this Code, are to be
imposed upon persons guilty as principles of any frustrated
or attempted felony, or as accomplices or accessories, the
following rules shall be observed:
1. When the penalty prescribed for the felony is single
and indivisible, the penalty next lower in degrees shall
be that immediately following that indivisible penalty
in the respective graduated scale prescribed in Article
71 of this Code.
2. When the penalty prescribed for the crime is
composed of two indivisible penalties, or of one or
more divisible penalties to be impose to their full
extent, the penalty next lower in degree shall be that
immediately following the lesser of the penalties
prescribed in the respective graduated scale.
3. When the penalty prescribed for the crime is
composed of one or two indivisible penalties and the
maximum period of another divisible penalty, the
penalty next lower in degree shall be composed of the
medium and minimum periods of the proper divisible
penalty and the maximum periods of the proper
divisible penalty and the maximum period of that
immediately following in said respective graduated
scale.
4. When the penalty prescribed for the crime is
composed of several periods, corresponding to
different divisible penalties, the penalty next lower in
degree shall be composed of the period immediately
following the minimum prescribed and of the two next
following, which shall be taken from the penalty
prescribed, if possible: otherwise from the penalty
immediately following in the above mentioned
respective graduated scale.
5. When the law prescribes a penalty for a crime in some
manner not especially provided for in the four
preceding rules, the courts, proceeding by analogy,
shall impose corresponding penalties upon those
 guilty as principals of the frustrated felony or of
attempt to commit the same, and upon accomplices
and accessories.

Sometimes it is easy because you just follow Article 71. What

follows temporal? Prision Mayor. What follows Prision Mayor? Prision
Correccional. But sometimes, it might be difficult to determine the
graduation if the penalty is something different. So, Article 61 is the
continuation of Articles 50-57.

1. When the penalty prescribed for the felony is single and indivisible,
the penalty next lower in degree shall be that immediately
following that indivisible penalty in the respective graduated scale
prescribed in Article 71 for this Code.

Suppose, the penalty for the crime is death, which is mandatory.

Single, it is indivisible. One degree lower is perpetua, another degree
lower is temporal. The same thing with reclusion perpetua. This is
just easy.

2. When the penalty prescribed for the crime is compound of two

indivisible penalties, or of one or more divisible penalties to be
impose to their full extent, the penalty next lower in degree shall
be that immediately following the lesser of the penalties prescribed
in the respective graduated scale.

There is only one example: Reclusion perpetua to death. In the

light of People vs. Roxas, perpetua is still indivisible penalty. That is
the penalty for murder. That is the penalty for homicide, parricide.
That is the penalty for robbery with homicide.

Now, supposed I am only an accomplice where the penalty is 1

degree lower. What is one degree lower? According to Article 61(2),
the penalty which follows the lesser of the two. Now, which is the
lesser of the two? Perpetua. What follows perpetua? Reclusion
temporal. So, the penalty for an accomplice is reclusion temporal.

Q. What is the penalty for the accessories?

A. What follows reclusion temporal? Prison mayor. That's Rule #2, or
when the penalty is composed of one or more divisible penalties. The
penalty is composed of 2 divisibles, for example; when the penalty of
the crime is prision mayor to reclusion temporal. It is the entire range
of 6 years and 1 day to 20 years. That's the entire duration. Two
divisibles combined.

Now, what is the penalty for the accomplice? One degree lower.
What is one degree lower? The penalty which follows the lesser of
the two. Prision Mayor. So, the penalty which follows prision mayor is
one degree lower. So, it's prision correccional followed by arresto
mayor.

3. When the penalty prescribed for the crime is composed of one or

two indivisible penalties and the maximum period of another divisible
penalty, the penalty next lower in degree shall be composed of the
medium and maximum periods of the proper divisible penalty and
the maximum period of the proper divisible penalty and the
maximum period of that immediately following in said respective
graduated scale.

There is only one example that you can give there -- reclusion
temporal maximum to death, because death is indivisible. Reclusion
perpetua is indivisible followed by reclusion temporal maximum,
which is supposed to be divisible.

So, that is the rule. The trouble is you cannot use it because
under the Penal Code, there is only one crime which carries that
penalty -- murder. But the trouble is the Heinous Crime Law changed
the penalty of murder to reclusion perpetua to death. So, there is no
crime in the Penal Code now which carries this kind of penalty.

4. When the penalty provided for the crime is composed of

several periods, corresponding to different divisible penalties, the
penalty next lower in degree shall be composed of the period
immediately following the minimum prescribed and of the two next
following, which shall be taken from the penalty prescribed, if
possible; otherwise from the penalty immediately following in the
above mentioned respective graduated scale.

Reclusion temporal, how many periods? Three: maximum,

medium, minimum. What follows? Prision Mayor, maximum, medium,
minimum. When the penalty prescribed of a crime is composed of
several periods, corresponding to different divisible penalties, for
example, the penalty for a crime is prision mayor maximum to
reclusion temporal medium. How many periods? Three. The problem
is that 2/3 belongs to reclusion temporal, while 1/3 belongs to prision
mayor. So, two parts belong to reclusion temporal, 1 part belongs to
prision mayor.

What is one degree lower than that? The law says the penalty
lower in degree shall be composed of the period immediately
following the minimum prescribed and of the two next following.
What follows prision mayor? Prison correccional. What follows now is
the minimum period which follows the maximum. So, medium plus
the next two. That is the penalty for the accomplice. Follow the same
pattern for the penalty for an accessory.

5. When the law prescribes a penalty for a crime in same manner not
especially provided for in the four preceding rules, the courts,
proceeding by analogy, shall impose corresponding penalties upon
 those guilty as principals of the frustrated felony or of attempt to
commit the same, and upon accomplices and accessories.

When the penalty for a crime is not among those mentioned in

#'s 1 to 4, example the penalty for the crime is reclusion temporal
medium to maximum, that is the range of 14 years, 8 months and 1
day to 20 years, and there are only two periods. What is one degree
lower? By analogy, that of 1 degree lower is prision mayor maximum
to reclusion temporal minimum. What is two degrees lower? Prision
mayor minimum to prision medium. What is 3 degrees lower? Prision
correccional medium to prision correccional maximum. So, by analogy,
that is how you graduate penalties according to Article 61.

ILLUSTRATION: Suppose, the penalty prescribed of a crime is

reclusion temporal maximum and there are many crimes in the Penal
Code with that kind of penalty. You apply only one, reclusion temporal
maximum. So, the penalty is presently ranging from 17 years, 4
months and 1 day to 20 years.

What is the degree lower? By analogy, reclusion temporal

medium is already 1 degree lower. Not only period, it is 1 degree
lower by itself. Reclusion temporal minimum is considered degree
lower. So, two degrees already, by analogy.

And, of course, what do you call that penalty? Reclusion temporal

maximum. That is divisible penalty because it has fixed duration. And
being divisible, it has its own minimum, medium, maximum, for the
purpose of mitigating and aggravating circumstances.

ACTICLE 62. Effect of the attendance of mitigating or aggravating

circumstances and of habitual delinquency. -- Mitigating or
aggravating circumstances and habitual delinquency shall be
taken into account for the purpose of diminishing or
increasing the penalty in conformity with the following rules:

1. Aggravating circumstances which in themselves

constitute a crime specially punishable by law or which
are included by the law in defining a crime and
prescribing the penalty therefore shall not be taken into
account for the purpose of increasing the penalty.
2. The same rule shall not be taken into account for any
aggravating circumstance inherent in the crime to such a
degree that it must of necessity accompany the
commission thereof.
3. Aggravating or mitigating circumstances which arise
from the moral attributes of the offender, or from his
private relations with the offended party, or from any
other personal cause, shall not only serve to aggravate
or mitigate the liability of the principals, accomplices and
accessories as to whom such circumstances are
attendant.
4. The circumstances which consist in the material
execution of the act, or in the means employed to
accomplish it, shall serve to aggravate or mitigate the
liability of those persons only who had knowledge of
them at the tome of the execution of the act or their
cooperation therein.
5. Habitual delinquency shall have the following effects:
(a) Upon a third conviction the culprit shall be
sentenced to the penalty provided by the law for the
last crime of which he be found guilty and to the
additional penalty of prision correccional in its
medium and maximum periods;
(b) Upon a forth conviction, the culprit shall be
 sentenced to the penalty provided for the last crime
of which he be found guilty and to the additional
penalty of prision mayor in its minimum and medium
periods; and
(c) Upon a fifth or additional conviction, the culprit
shall be sentenced to the penalty provided for the
last crime of which he be found guilty and to the
additional penalty of prision mayor in its maximum
period to reclusion temporal in its minimum period.
Notwithstanding the provisions of this article, the
total of the two penalties to be imposed upon the offender,
in conformity herewith, shall in no case exceed 30 years.
For the purpose of this article, a person shall be deemed
to be habitual delinquent, is within a period of ten years
from the date of his release or last conviction of the crimes
of serious or less serious physical injuries, robo, hurto, estafa
or falsification, he is found guilty of any of said crimes a third
time or oftener.

Aggravating circumstances have the effect of increasing the

penalty. They have to be taken into account the purpose of increasing
the penalty. However, Article 62 says in the following cases, the
aggravating circumstances are not taken into account anymore.
Meaning, the aggravating circumstances will not affect the penalty
anymore and there are three, based on this Article:

o When the aggravating circumstance constitutes the crime itself;

EXAMPLE: Arson. What constitutes the crime of arson? When you

destroy another person's property by fire. Now, under Article 14, one
of the aggravating circumstance is when the crime is committed by
means of fire. So, the use of fire under Article 14 will no longer be
considered as aggravating in arson because it is the use of fire which
is the very crime of arson itself.

o When it is included in the definition of the crime;

EXAMPLE: The crime of robbery committed in the house, under

Article 299. That is with the use of force upon things. When you enter
the house to rob it, the fact that the crime is committed in the
dwelling of the offended party is no longer aggravating because
dwelling. Or the crime committed in the house, is already included in
the definition of the crime. In the crime of qualified theft, that the
crime is committed with abuse of confidence by the offender is no
longer aggravating because abuse of confidence is already an element
of the crime of qualified theft.

o When it is inherent in the crime.

Q. When is a circumstances inherent in a crime?

A. When it must necessarily accompany the commission of the crime.

Q. What are those?

A. Examples are evident premeditation is not aggravating in robbery
because, when the robbers commit the crime, they have really
planned it. So, it is already inherent. So, also in treason.

3. Aggravating or mitigating circumstances which arise from the

moral attributes of the offender, or from his private relation with
the offended party, or from any other personal cause, shall only
serve to aggravate or mitigate the liability of the principals,
accomplices and accessories as to whom such circumstances are
attendant.

EXAMPLE: A and B commit the crime together. A acted with

evident premeditation. B did not. Under the rules on evident
premeditation, it only affects A and not B. Or, A and B commit a crime
together. B acted with passion or obfuscation. A did not. B will be the
only one credited with the mitigating circumstances, not A. Or, those
which arise from the public relations of the parties. A conspired with B
to rob the father of A. So, A conspired with a stranger to rob his own
father. Now, relationship is a mitigating circumstance to A, but it will
not favor B because B is not related to the victim.

Or those which are personal to the offender. For example: I will

conspire with a 17-year-old minor to commit a crime. Minority will
favor him but will not favor me because I am not a minor. Or, I will
conspire with A to commit a crime. I am a recidivist. He is a first
offender. Recidivism will affect me but does not affect him.

So, when it comes to these circumstances, they will only affect

the person concerned. Does this not violate the rule on conspiracy,
that the act of one is the act of all? It does not. When the law says it
in conspiracy, it simply means that we are all liable, but the law does
not say that in conspiracy, your mitigating is also my mitigating, or my
aggravating is also your aggravating.

4. The circumstance which consist in the material execution of the, or

in the means employed to accomplish it, shall serve to aggravate
or mitigate the liability of those persons only who had knowledge
of them at the time of the execution of the act or their cooperation
therein.

Q. How about circumstances which refer to the manner which the

crime is committed or the ways and means employed to commit the
crime?
A. It will affect the person who employed the ways and means, and
the accused who have knowledge of it.
 EXAMPLE: I will hire a killer to murder X, paying the former
P100,000. I will leave to him the manner of killing X. He used
treachery to kill the victim. Now, will treachery affect me because I
am the one who ordered him to kill, but I have no idea of how he will
di ot. Now, under Rule #4, treachery will affect the killer, but it will
not affect me because I have no knowledge.

But supposed, I will say You kill that guy but tell me exactly how
you will do it. I will have to approve your method. So, I have the
knowledge of the manner the crime is to be committed. Under #4,
this affects my liability. Even it did not employ treachery, I will still be
affected because I have the knowledge as to the ways and means
employed.

Q: How #3 differentiated from #4?

A: In paragraph 3, the circumstance affects only the person
concerned regardless of the fact whether he has knowledge or not.
But, if the circumstance affects the ways and menas employed, the
knowledge, although he did not employ that manner, will sufficiently
affect him.

HABITUAL DELINQUENCY

This is the third instance of criminal repetition. The first two

were recidivism and reiteracion or individuality. A person is a habitual
delinquent if within a period of ten years from the date of his release
or last conviction of the crime of serious or less serious physical
injuries, robo, hurto, estafa, or falsification, he is found guilty of any
of said crimes a third time oftener.

Elements
1) there must be a third conviction;
 2) the crime committed by the offender for the 3 rd, 4th, or 5th
times should be among those mentioned in Article 62 , like
serious physical injuries, less serious physical injuries,
theft, robbery, estafa and falsification;
3) there must be a time gap of not more than ten years
between convictions

Q: When will you compute? What is the starting point in computing

the period?
A: The law says either from the date of final conviction or last
release, because if you count it only from the last conviction, it will
be more than ten years, but it still within ten years from release.

Q: What is the cut-off point of the period? Is it the conviction or is it

the commission of the offense for the 2nd time?

For example, it is now my 3rd time to commit theft or robbery or

estafa or falsification or serious physical injuries. It is my 3 rd time
within 10 years, so today is exactly the 10 th year, but definitely, I will
be found guilty not today. It will take time. So, if you will look at the
date when I will be convicted, it will definitely be beyond 10 years.

QUESTION: Is habitual delinquency applicable?

ANSWER: No, because the cut-off point is not the date of the
commission of the offense for the 3 rd or 4th time, but the date of the
conviction for the offense. It is evident that the law says he is found
guilty of any of the said offense a 3 rd time. So, it is the cut-off period,
the date of the conviction, and not the date of the commission of the
offense.

Suppose, I am found guilty of robbery as a principal -- 1 st

offense. On the 2nd offense, as an accomplice, and the 3 rd offense of
robbery, as an accessory. So, definitely, the crimes I committed are
all mentioned there. But for the three times that I have been found
guilty of these crimes, I was in different capacities. Now, I am
convicted for the 3rd time as an accessory.

QUESTION: Am I habitual delinquent?

ANSWER: Yes, because what is important is that I am found guilty
to these crimes without regard to the manner of participation,
whether principal, accomplice or accessory.

Suppose, I was found guilty for the 1 st time of consummated

robbery; then 2nd time frustrated theft; 3rd time attempted estafa.

QUESTION: Am I habitual delinquent?

ANSWER: Yes, because the law does not care about the stages of
the execution. What matters is the crime, irregardless of whether it is
attempted, frustrated or consummated.

Now, under paragraph 5 or Article 62, where the culprit who is a

habitual delinquent commits less serious physical injuries, he will be
penalized for such crime. But this time, the court will have to impose
upon him an additional penalty. He shall be sentenced to an
additional penalty, ranging from prision correccional medium to
maximum, and upon his 4th conviction, prision mayor minimum to
medium.

You commit the same crime and you are convicted for the 5 th or
6th time. For every commission, the penalty should now range from
prision mayor maximum to reclusion temporal minimum, a possible
10 years and 8 months. So, you will notice that the additional penalty
given is higher by 1,000 or 2,000 times than the principal penalty.

Q: Is habitual delinquency a crime in itself?

A: No, even if it carries a penalty. It is a sort of extraordinary
aggravating circumstance which, if present in the commission of the
felony, will call for the imposition of an additional penalty which is
separate and distinct of the principal penalty for the present crime
committed.

Q: Can a person be a habitual delinquent and at the same time a

recidivist?
A: Yes. For example, my first conviction is robbery; the 2 nd conviction
is theft. Actually, upon the second conviction, I am already a
recidivist. My 3rd conviction is estafa. You will notice that the three
offenses are all covered by Article 62. So, I am a habitual delinquent,
but I am also a recidivist because all crimes are embraced in the
same title of the Penal Code. They are all crimes against property.
So, I am both a recidivist and, at the same time, a habitual
delinquent.

Q: How will that affect the penalty?

A: Simple, since you are a recidivist, the penalty for present crime
will have to be imposed in the maximum period. And because I am
also a habitual delinquent, I will receive additional bonus penalty
under Article 62. So, there is no conflict between the 2 sets of
offenses. But the person can definitely also be a habitual delinquent
without being a recidivist, if no 2 crimes out of the 3 are embraced in
the same title of the Penal Code.

For example, 1st conviction is serious physical injuries; 2 nd

conviction is estafa; 3rd conviction is falsification. You will notice that
not one of the three is embraced under the same title in the Penal
Code. Physical injuries is against persons. Estafa is against property.
Falsification is against public interest. So, I am not a recidivist, but
definitely I am a habitual delinquent.

Q: Distinguish habitual delinquency from recidivism.

A:
RECIDIVISM
Recidivism is broader. Any two
offenses, all that is necessary is
for the two offenses committed
before and now are embraced in
the same title of the Penal Code.
The second conviction is
sufficient to make a person a
recidivist.
There is no time limitation
between the prior conviction and
the present conviction. It could
be twenty years ago.
This simply maximize the
principal penalty for the new
crime.
HABITUAL DELINQUENCY
But to be a habitual delinquent,
the crimes are more specific.
These are all limited to those
mentioned in Article 62.
There must al least be a third
conviction.
The time gap between the
previous conviction and present
should not be more than 10 years.
This cause for the imposition of a
separate and distinct additional
penalty.

PEOPLE vs KAPINITAN

Issue: May the court admit evidence to prove habitual

delinquency if the same was not alleged in the information, and
the evidence is previously objected to by the defense?

Held: In a previous ruling, that of People vs Partinada, the Court

ruled that if recidivism is not alleged in the information, and it
was vigorously objected to by the defense, the prosecution
should not be allowed to prove it because it must be alleged in
the information.

Recidivism and habitual delinquency are almost the same. They

belong to the same family. There is no reason why the ruling in
Partinada will not apply. Hence, the trial court was correct in
excluding the prosecutions, evidence with respect to the aggravating
circumstance of recidivism and habitual delinquency, because these
were not alleged in the information and the presentation was
objected to vigorously by the defense counsel.

While it is true that to prove recidivism. It is necessary to prove

the charge in the information and to attach thereto certified copies of
the sentences rendered against the accused such aggravating
circumstances may still be given credit thereto by the trial court if the
accused does not object to the presentation of evidence.

It is written that this pronouncement applies specifically to

recidivism. But we do not see any reason why this cannot be applied
by analogy to habitual delinquency, which is also a form of plurality
of crimes.

ARTICLE 63. Rules for the application of indivisible penalties -- In

all cases in which the law prescribes a single indivisible
penalty, it shall be applied by the courts regardless of any
mitigating or aggravating circumstances that may have
attended the commission of deed.
In all cases in which the law prescribes a penalty
composed of two indivisible penalties, the following rules
shall be observed in the application thereof:
1. When the commission of the deed there is present
only one aggravating circumstance, the greater
penalty shall be applied.
2. When there are neither mitigating nor aggravating
circumstances and there is no aggravating
 circumstance, the lesser penalty shall be applied.
3. When the commission of the act is attended by some
mitigating circumstances and there is no aggravating
circumstance, the lesser penalty shall be applied.
4. When both mitigating and aggravating circumstances
attended the commission of the act, the court shall
reasonably allow them to offset one another in
consideration of their number and importance, for the
purpose of applying the penalty in accordance with
the preceding rules, according to the result of such
compensation.

Q: What happens if a person is sentenced of a heinous crime, which

carries a penalty of death only? So, the penalty is single and
indivisible; only one penalty. There are many crimes now heinous
which prescribe the penalty of only death, mandatory.
A: It should be imposed by the court regardless of any mitigating or
aggravating circumstances. So, there is no more effect of mitigating.

Any ordinary mitigating circumstance can no longer lower it, even

if you plea guilty. Even if you surrender, the court will still impose the
death penalty. Of course, you cannot also increase it because it is the
highest. The same situation applies if the penalty of the crime is
perpetua because it is still considered as indivisible. It shall be
imposed by the court regardless of any mitigating or aggravating
circumstance.

Q: What happens if the crime carries reclusion perpetua to death?

What is now the effect of mitigating or aggravating?
A: It depends. If there is an aggravating circumstance, you impose
the higher penalty, like death. If there is a mitigating circumstance,
and no aggravating circumstance, you impose the lower of the two --
perpetua. If there are two mitigating and no aggravating, you still
impose perpetua.

So, in other words, either the higher or the lower, upstairs or

downstairs. But it shall not go lower. The only way of lowering this to
the penalty much lower in degree is by privilege mitigating
circumstance. Ordinary mitigating has no more effect.

This is the reason cited by the SC in the second lucas decision,

because in the original decision, the SC ruled that perpetua is already
a divisible penalty. But upon reconsideration by the SC en banc, it
ruled despite RA 7659, which says that perpetua has a duration of 20
years and 1 day to 40 years, it remains an indivisible penalty. Then
the SC cited, as one of its reasons, Article 63, when the penalty for
the crime is composed of two indivisible and there is only one
example, perpetua to death. Now, if you will say that perpetua is
divisible, then Article 63 becomes obsolete.

ARTICLE 64. Rules for the application of penalties which

contain three periods. -- In cases in which the penalties
prescribed by the law contain three periods, whether it be a
single divisible penalty or composed of three different
penalties, each one of which forms a period in accordance
with the provisions of Article 76 and 77, the court shall
observe for the application of the penalty the following
rules, according to whether there are or are not mitigating
or aggravating circumstances:

1.When there are neither aggravating nor mitigating

circumstances, they shall impose the penalty
prescribed by law in its medium period.
2.When only a mitigating circumstance is present in the
 commission of the act, they shall impose the penalty in
its minimum period.
3.When both mitigating and aggravating circumstance id
present in the commission of the act, they shall impose
the penalty in its maximum period.
4.When both mitigating and aggravating circumstances
are present, the court shall reasonably offset those of
one class against the other according to their relative
weight.
5.When there are two or more mitigating circumstances
and no aggravating circumstances are present, the
court shall impose the penalty next lower to that
prescribed by law, in the period that it may deem
applicable, according to the number and nature of
such circumstances.
6.Whatever may be the number and nature of the
aggravating circumstances, the courts shall not
impose a greater penalty than that prescribed by law,
in its maximum period.
7.Within the limits of each period, the court shall
determine the extent of the penalty according to the
number and nature of the aggravating and mitigating
circumstances and the greater and lesser extent of the
evil produced by the crime.

EXAMPLE: The crime is punishable by prision mayor minimum,

medium, maximum period. Alright, no mitigating, no aggravating.
According to Article 63, the penalty should be somewhere within the
medium period. That would be ranging from 8 years and 1 day to 10
years. If there is a mitigating, the penalty should be fixed somewhere
in the minimum period. On the other hand, if there is an aggravating,
it should be fixed within the maximum period of prision mayor.
 Just like that. It all depends on any mitigating or aggravating.
Now, if you know them, try to offset them with each other. And after
offsetting, try to find out if there is a balance in favor of either
mitigating or aggravating. If there is no balance, then you apply Rule
#1. It should be within the medium.

5. When there are two or more mitigating circumstances and no

aggravating circumstances are present, the court shall impose
the penalty next lower to the prescribed by law, in the period
that it may deem applicable, according to the number and
nature of such circumstances.

For example, Vhenigna Vangkbiyud was convicted of

homicide. The rial court appreciated the following modifying
circumstance:
 the aggravating circumstance of nocturnity
 the mitigating circumstance of passion and
obfuscation
 the mitigating circumstance of no intent to
commit so grave a wrong
 illiteracy
 voluntary surrender

The imposable penalty for homicide is reclusion temporal, the

range of which is 12 years and 1 day to 20 years. Taking into account
the attendant mitigating and aggravating circumstances, and applying
the Indeterminate Sentence Law, determine the proper penalty to be
imposed upon the accused.

You can fix the maximum. There is 1 aggravating. But the

mitigating are many-- 4. What is the penalty? If we apply paragraph
4. 1 mitigating offset the aggravating. So, there is a balance. And
there is still 3 mitigating left. The penalty should be lowered by one
degree because, according to paragraph 5, when there are two or
more mitigating circumstance, the court shall impose the penalty next
lower that that prescribed by law. But this will not apply because the
law says two or more mitigating and no aggravating is present. So,
when there is one aggravating, paragraph 5 will not apply.

In other words, the correct penalty there is paragraph 2 -- the

penalty should be in the minimum period. The condition laid down in
paragraph 5 for the lowering of the penalty by 1 degree if there are 2
or more mitigating circumstances without any aggravating is not
present. The law is very clear.

So, for example, when the crime, punishable by reclusion

temporal, was committed, there was voluntary surrender, passions or
obfuscation, no aggravating circumstance is present, paragraph 5
should be applied. The penalty should be lowered to prision mayor, 1
degree lower. However, since the problem states that there is an
aggravating circumstance of nocturnity, paragraph 5 can no longer
apply. In other words, the penalty should still remain within the range
of reclusion temporal.

Now, suppose it is the other way around. There are 2 or more

aggravating without any mitigating. Should the penalty be increased
by 1 degree? No, because of paragraph 5. No matter how many
aggravating circumstances are present, you cannot increase the
penalty by 1 degree higher. The complete definition of aggravating
circumstance is, if present in the commission of the crime, will call for
the imposition of the maximum penalty without exceeding the penalty
prescribed by the law.

Q: What happens of the penalty should be within the medium period

of prision mayor -- 6 years and 1 day to 10 years.
A: Now, according to paragraph 6, the court should sentence the
accused to a specific penalty stating the exact number of years,
months and days within that range. Therefore, I can sentence him to
6 years and 1 day. That us the least. I can sentence him to 10 years,
or any combination within. So, practically there are 700 possibilities.

The SC has once said that the court should be careful in fixing
penalties because any error may have varied consequences, like in a
case, where the prison term imposed upon the accused has been
increased erroneously, to unduly prolong the confinement of the
accused even for just one day is unjust in every sense of the word.

Take note that in divisible penalty, there should be a maximum,

medium and minimum for the purpose of applying Article 64.

Q: Can we apply Article 64 to the crime of drug pushing?

A: Now, technically the provisions of Article 64 does not apply to
special laws except when that special law adopts the nomenclature of
the penalties in the Penal Code. When the special law starts to use
perpetua temporal, then the provisions of the RPC will now apply. On
the other hand, when the special law says: the penalty is 1 year and
10 months, obviously, this will not apply.

In other words, there is no perpetua or prision mayor or 1 degree

lower in special laws. Because the rule on aggravating or mitigating is
only peculiar to crimes under the Penal Code, with their own distinct
names for penalties. When the special law adopts the penalties in the
Penal Code, the provisions of the RPC.

That is very clear in the case of People vs.Simon because before

the Heinous Crime Law, the penalty for drug pushing was life
improsonment to death, but ubder the Heinous Crime Law, the
penalty is reclusion perpetua to death. So, it adopted now the rules in
the Penal Code, and there is a distinction between reclusion perpetua
and life imprisonment. That is why, the provisions of the RPC on the
penalties will now apply to the Dangerous Drugs Act.

Q: How about in illegal possession of firearms?

The simple illegal possession under PD 1866, the penalty is reclusion
temporal in its maximum period to reclusion perpetua. Now, can we
apply Article 64 there? What is the maximum, medium, minimum
period?
A: The only solution there is this: perpetua is indivisible. That should
be the maximum penalty; the maximum period!

Now, reclusion temporal maximum is actually a divisible penalty.

It has a range of 17 years, 4 months and 1 day to 20 years. The
medium and the minimum must necessarily come from that penalty.
How do you do it? By splitting the upper part and the lower part.

20 years minus 17 years and 4 months. We will have to make this

19 years and 12 months minus 17 years and 4 months. The difference
is two years and 8 months. Divide it into two: 1 year and 4 months.
Therefore, the minimum years should range from 17 years, 4 months
and 1 day to 18 years and 8 months.

And then to continue, it is 18 years, 8 moths and one day to 20

years. That is the medium. The lower part is the minimum; the upper
half is the medium. Perpetua, which you cannot split is the maximum.
That is the solution.

PEOPLE vs. MISAL

244 SCRA 166

The formula adopted by the Supreme Court to apply Article 64 is:

The penalty for the single illegal possession of firearms is reclusion
temporal maximum to reclusion perpetua. The maximum period
perpetua; the medium is the upper half of reclusion temporal
maximum. The minimum is the lower part of the reclusion temporal
maximum.

ARTICLE 69. Penalty to be imposed when the crime committed is not

wholly excusable. -- A penalty lower by one or two degrees
than that prescribed by law shall be imposed if the deed is
not wholly excusable by reason of the lack of some of the
conditions required to justify the same or to exempt from
criminal liability in the several cases mentioned in Article 11
and 12, provided that the majority of such conditions be
present. The courts shall impose the penalty in the period
which may be deemed proper, in view of the number and
nature of the conditions of exemption present or lacking.

When you commit a crime and there is an incomplete justifying

or incomplete exempting circumstance, the penalty should be lowered
by 1 or 2 degrees.

Q: So, what is Article 69?

A: It is a privilege mitigating circumstance where the penalty is
lowered by at least one degree. But this is just a repetition of Article
13, paragraph 1. Under Article 13 on mitigating circumstance, the first
mitigating circumstance is incomplete justifying, incomplete
exempting, and it is also a mitigating circumstance with one
difference. In Article 13, incomplete justifying/exempting is only an
additional circumstance, whereas in Article 69, it is a privileged
mitigating circumstance.

A perfect example is self-defense, where not all requisites to

justify the act is present. So, incomplete self-defense. You are
charged with homicide. Your claim is self-defense. You were able to
prove some requisite, but there is lacking -- less than three. Applying
Article 69, the penalty for you, you should be convicted for homicide
but the penalty should be lowered by 1 or 2 degrees. Assuming only 1
degree, so from reclusion temporal, you will be penalized to prision
mayor.

If we apply Article 13 to you, the penalty should be within the

range of reclusion temporal minimum, and such incomplete self-
defense can be offsetted by an aggravating circumstance. If we apply
Article 69, your penalty will go down to prision mayor, or even as far
down to prision correctional, and incapable of offsetting by an
aggravating.

Q: Which will prevail: Article 69 or Article 13 (1)?

A: No one will prevail: Sometimes, Article 69 applies; sometimes
Article 13 (1) applies

Q: When will Article 13(1) apply, or when will Article 69 apply? When
will incomplete justifying or incomplete exempting be treated as
privileged mitigating, when will it be treated as ordinary mitigating?
A: The clue is in Article 69. We apply Article 69 when the majority of
the requisites are present. Majority. So, in self-defense, two out of
three. So, incomplete self-defense becomes a privileged mitigating
circumstance.

But suppose, it is one out of the three as only unlawful

aggression was proven, but the means used was unreasonable, plus
the fact that the accused gave provocation, then, we shall treat it as
an ordinary mitigating circumstance, where we will apply only the
minimum period. That is how we reconcile Article 69 with Article
13(1).
ARTICLE 68. Penalty to be imposed upon a person under eighteen
years of age.-- When the offender is a minor under eighteen
years and his case is one coming under the provisions of the
paragraph next to the last of Article 80 of this Code, the
following rules shall be odserved:
1. Upon a person under fifteen but over nine years of
age, who is not exempted from liability by reason of
the court having declared that he acted with
discernment, a discretionary penalty shall be imposed,
but always lower by two degrees at least than that
prescribed by law for the crime which he committed.
2.Upon a person over fifteen and under eighteen years
of age the penalty next lower that that prescribed by
law shall be imposed, but always in the proper period.

This is the law on suspended sentence on youthful offenders.

Under Article 189 of PD 603, a person is over 9 but below 18 -- so, it
covers a minor over 9 up to 15 who acted with discernment, or a
minor from 16 up to 17. It is classified as youthful offender. What is
the effect of that?

ARTICLE 189, PD 603. Youthful offender, defined. -- A youthful

offender is a child, minor or youth, including one who is emancipated
in accordance with law, who is over nine years but under eighteen
years of age at the of the commission of the offense.
A child of nine years of age or under at the time of the
commission of the offense shall be exempted from criminal liability
and shall b committed to the car of his or her father or mother, or
nearest relative or family friend in the discretion of the court and
subject to its supervision. The same shall be done for the child over
nine years and under fifteen years of age at the time of the
commission of the offense, unless he acted with discernment, in
which case shall be proceeded against in accordance with Article 192.
The provisions of Article 80 of the Revised Penal Code are
hereby repeated by the provisions of this chapter.

ARTICLE 192, PD 603. Suspension of Sentence and Commitment

of Youth Offender -- If after hearing the evidence in the proper
proceedings, the court should find that the youthful offender has
committed the acts charged against him the court shall determine
the imposable penalty, including any civil liability chargeable against
him. However, instead of pronouncing judgment of conviction, the
court shall suspend all further proceedings and shall commit such
minor to the custody and care of the Department of Social Welfare or
to any training institution operated by the government, or to duly
licensed agencies or any other responsible person, until he shall have
reached twenty one years of age or, for a shorter period as the court
may deem proper, after considering the reports and
recommendations of the Department of Social welfare or the agency
or responsible individual under whose care he has been committed.
The youthful offender shall be subject to visitation and
supervision by a representative of the Department of Social Welfare
or any duly licensed agency or such other officer as the Court may
designate subject to such conditions as it may prescribe.

Under the new Family Courts Act, there is no need for the guilty
minor to petition for a suspension of the sentence. The court, upon
proper evidence of his age, will automatically refer him to the
rehabilitation center for minors operated by the DSWD, or any other
NGO's, like in the Don Bosco Boy's Home in beautiful Cebu.

Q: How long will be the duration of the confinement with the DSWD?
A: Until he will have reached the age of 21 or sooner. It depends on
the reformation of the minor.
Q: Are there minors who are disqualified from this privilege?
A: Yes. If a minor below 18 years has already enjoyed this benefit
before. He cannot enjoy the same during his minority. He can only
enjoy it once; When the crime is punishable by death or life
imprisonment, or in the RPC -- reclusion perpetua;

Q: What happens if he is still inside?

A: Actually, it depends on how he will behave, on what will be the
final report of the DSWD.

For example, during his stay there, it turned out that he is a

reformed minor. He committed a crime but he is not really criminally
inclined. So, the report is favorable Corrigible. The court will order his
final discharge. What happens to the suspended sentence? Forget it!

ARTICLE 196, PD 603. Dismissal of the case – If it is shown to the

satisfaction of the court that the youthful offender whose sentence
has been suspended, he has behaved properly and has shown his
capability to be a useful member of the community, even before
reaching the age of majority, upon recommendation of the DSWD, it
shall dismiss the case and order his final discharge.

Of course, the recommendation of the DSWD is inadequate or

not conclusive. The court will be the one to discharge. It does not
follow simply that the recommendation is like this, and the court will
follow.

PEOPLE vs. GALIT

230 SCRA 486

Recommendation alone is not sufficient to warrant the release of

a youthful offender. In reviewing the DSWD’s recommendation, the
trial judge must not base his final judgment on mere conclusions, but
out of concrete material and relevant facts to confer that the youthful
offender has indeed reformed. Whether he is reedy to re-enter into
society as productive and law-abiding person. The youthful offender
must not be tried anew for the same act for which he was charged.
This is not a trial for the same act or crime for which he is found
guilty.

The inquiry is not a criminal prosecution but rather limited to the

defendant’s proper education during his confinement in the
rehabilitation center, including his commitment and the moral and
social fitness to re-join the community.

Q: What happens if it is the other way around? If the

recommendation is adverse and, according to the DSWD, from the
very first day he entered into the rehabilitation center, the center
became the hive of criminals because he corrupted all the other
minors there. No matter how the Department tried its best to
discipline him, He cannot be disciplined. Meaning, the minor is
incorrigible.
A: If the report is unfavorable, the court will relieve the suspension of
the sentence and will re-impose the penalty. This time, when he will
go out of the courtroom, he will be put in jail.

ARTICLE 197, PD 603. Return of the youthful offender to court –

Whenever the youthful offender has been found incorrigible or has
willfully failed to comply with the conditions of his rehabilitation
program, or should his continued stay in the training institution be
inadvisable, he shall be returned to the committing court for the
pronouncement of the judgment.
When the youthful offender has reached the age of 21 while in
commitment, the court shall determine whether to dismiss the case in
accordance with the next preceding article or to pronounce the
judgment of conviction. In the latter case, the convicted offender
may apply for probation under PD 968.
In any case covered by this article, the youthful offender shall be
credited in the service of his sentence with the full time spent in
actual commitment and detention under the provision of this chapter.

Q: Can a minor avail of the suspension of sentence under another

law?
A: Yes, he can avail under PD 968 – Probation Law. However, It is
doubtful whether he can qualify under the law. Probation Law is for
the suspension of sentence for actual offenders only. That is the
counterpart of PD 603.

However, the law says that the period of time spent in the
rehabilitation center is credited already. Actually, if you analyze it, it
is not a penalty.

ARTICLE 24, RPC. Measures of prevention or safety, which are not,

considered penalties. – The following shall not be considered as
penalties:
xxx

2. The commitment of the minor to any of the institutions

mentioned in Article 80 and for the purposes certified therein.

Q: What are the measures of suspension of penalties?

A: One of them is the commitment of the minor. It is not supposed
to be a penalty, but still it is considered to be equivalent to a
preventive imprisonment. 100% credited. Same effect as Article 29.

ARTICLE 29, RPC. Period of preventive imprisonment deducted from

the term of imprisonment – Offenders or accused who have
undergone preventive imprisonment shall be credited in the service of
their sentence consisting of deprivation of liberty with the full time
during which they have undergone preventive imprisonment if the
detention prisoner agrees voluntarily in writing to abide by the same
disciplinary rules imposed upon convicted prisoners, except x x x

Suppose, a minor 16 years old when he committed the crime of

homicide and he applied for suspended sentence. After 4 years the
report was unfavorable. So, the court will now say Alright you are
incorrigible. We will relieve the suspension and I sentence you to
reclusion temporal. That is the penalty for homicide. But the minor
will say: “Your honor, that is not correct. It should be two degrees
lower because of Article 68(1). It should only be prision correccional.”

ARTICLE 68, RPC. Penalty to be imposed upon a person under 18

years of age. – x x x
1. Upon a person below fifteen but over nine years of age, who is
not exempted from liability by reason of the court having
declared that he acted with discernment, a discretionary
penalty shall be imposed, but always lower by two degrees at
least than that prescribed by law for the crime which he
committed.
xxx

Suppose, the judge will say I will not give you two degrees lower
because you are incorrigible. QUESTION: Is the judge correct?
ANSWER: The judge is wrong. The fact that the minor is incorrigible
is not a ground to deny him of the benefit of Article 68. Being
incorrigible is only a ground to nullify the suspension of the sentence.

We should separate article 69 of the RPC from PD 603. We are

talking here only on whether the suspended sentence will remain
suspended or not. We are not talking here of what is the appropriate
penalty. You cannot deny the fact that he was 16 years at the time
he committed the crime. Under Article 68, he is entitled to two
degrees lower.

If he is incorrigible in the rehabilitation center, it is not a ground

to deny him of the benefit of Article 68.

Suppose, the minor is found guilty of a light felony. The sentence

is only 30 maximum. Is he entitled to suspension of sentence? Yes,
because PD 603 does not state that only those charged with grave
felony are entitled. That is one of the differences between PD 603
and the old Article 80 on suspended sentence.

So, a minor may avail the privileges of suspended sentence

whether the felony is grave, less grave, or light. If it turned out that
he is incorrigible, and the penalty has to be re-imposed, then his
minority will be treated as ordinary mitigating.

Q: A minor committed a malum prohibitum crime punishable by a

special law. IS PD 603 applicable? Or this is only under the crime
charged under RPC?
A: It is applicable to any crime whether under a special law or the
Revised Penal Code.

Suppose, a minor was 13 years old when he committed the

felony – homicide. He remained at large for 5 years. HE was
apprehended at the age of 18 years old. He was convicted when he
was 21 years old. QUESTION: Is he entitled to suspension of
sentence? ANSWER: The youth is not entitled. What will he do in
the boys town? He is already old. Suppose, he was convicted when
he was 25 or 30, will he be included with the young? There is
something wrong there. But how do you reconcile this with Article
189, which states that he must be a minor at the time of the
commission of the offense?
 PEOPLE vs. CRISTOBAL
94 SCRA 244

In order to avail the benefit of PD 603, a minor must be below 18

years at the time he committed the crime, at the time he tried, at the
time he was convicted, and at the time he applied for suspended
sentence. It is absurd when an adult will be mixed with minors.
Instead, if he wanted to apply for suspended sentence, he can avail it
in another law, PD 968, but not PD 603

Now, suppose, he committed the crime at age 14 and was convicted

at 21 years old, and he applied for the mitigating circumstance to
lower the penalty by 2 degrees. The court denied it, claiming that he
is no longer a minor and sentenced him to reclusion temporal. This
time, the judge is wrong because the reckoning point of the
mitigating circumstance is not your age now, but your age at the time
you committed the crime. You cannot be deprived of that benefit
because you cannot deny the fact that you are a minor at the time
you committed the crime. So, do not confuse this with PD 603.

Q: Is it possible for a person to be sentenced one after the other

simultaneously for several penalties?
A: It is possible
Suppose, you have many cases. You have three cases here in
Davao City in the RTC. Every branch you have a case. And you also
have cases in Tagum City. You have many convictions with different
penalties. All your convictions are now final. How will you serve your
penalties? According to Article, are these penalties capable of being
served simultaneously?
ARTICLE 69. Penalty to be imposed when the crime
committed is not wholly excusable. – A penalty lower by one
or two degrees than that prescribed by law shall be imposed
if the deed is not wholly excusable by reason of the lack of
some of the conditions required to justify the same or to
exempt from criminal liability in the several cases mentioned
in articles 11 and 12, provided that the majority of such
conditions be present. The courts shall impose the penalty
in the period which may be deemed proper, in view of the
number and nature of the conditions of exemption present
or lacking.

 When do you apply Article 13? When do you apply Article 69?

Article 70. Successive service of sentence – When the

culprit has to serve two or more penalties, he shall serve
them simultaneously if the nature of the penalties will so
permit otherwise, the following rules shall be observed:
In the imposition of the penalties, the order of their
respective severity shall be followed so that they may be
executed successively or as nearly as may be possible,
should a pardon have been granted, as to the penalty or
penalties first imposed, or should they have been served
out.
For the purpose of applying the provisions of the next
preceding paragraph the respective severity of the penalties
shall be determined in accordance with the following scale:
1.Death,
2.Reclusion Perpetua,
3.Reclusion Temporal,
4.Prision Mayor,
 5.Prision Correccional,
6.Arresto Mayor,
7.Aresto Menor,
8.Destierro,
9.Perpetual absolute disqualification,
10. Temporal absolute disqualification
11. Suspension from public office, the right to vote
and be voted for, the right to follow a profession or
calling, and
12. Public censure.
Notwithstanding the provisions of the rule next
preceding, the maximum duration of the
convict's sentence shall not be more than three-fold the
length of time corresponding to the most severe of the
penalties imposed upon him. No other penalty to which he
may be liable shall be inflicted after the sum total of those
imposed equals the same maximum period.
Such maximum period shall in no case exceed
forty years. In applying the provisions of this rule the
duration of perpetual penalties (pena perpetua) shall be
computed at thirty years.

If allowed, they should be served simultaneously. If not possible,

or their nature will not allow it, then serve them successively.
Meaning, one after the other.

Q: What penalties can be served simultaneously?

A: Those which are possible to be served simultaneously. For
example, in one crime, I was sentenced to 6 years of prision
correccional. In other crimes, I was sentenced to 15 years of
temporary disqualification, or 20 years of absolute disqualification.
There is no imprisonment in disqualification, but your right has been
suspended. Is it possible for me to serve them simultaneously? Yes.
 But there are penalties which you cannot serve simultaneously
because their nature will not allow it. For example, for one penalty,
you are sentenced to 2 years of prision correccional. For another
penalty, you are sentenced for 2 years of destierro. How can you be
outside the jail and at the same time within the jail? So, it is not
allowed.

Or, if all of them are of the same nature, all imprisonment.

Alright… for this crime 6 years of prision correccional, this one 4
years, another one 1 year, then 6 months of arresto mayor, 40 days of
arresto menor. They are all the same however, you cannot say that
tomorrow, I will serve the prision correccional, the other day I served
arresto menor, etc… you cannot do that.

Meaning, after you are in jail for one day, you are only for one
day for one penalty. So, these are the instances where the penalties
would not be served simultaneously. So, what will happen? You serve
them successively, one after the other.

Q: How will I serve them?

A: You serve them in the order of severity.

Severity

For example, "Miss Vhenigna Vangkhiyud, you are sentenced to

death. Another crime, you are sentenced to 20 years of reclusion
temporal. Still another crime, you are sentenced to 5 days of arresto
menor. QUESTION: Which should be served first? ANSWER: You first
serve the death penalty.

Q: Now, what happens to the reclusion temporal, to the arresto

menor?
A: Never mind, you are already dead! It is not the other way around.
You start from the most severe going down. So, that is the order of
service.

However, this is subject to the three-fold rule. According to the

rule, the maximum stay in jail for a person should not exceed the
most severe multiplied by 3.

For example, for one offense, you are sentenced to 1 year of

prision correccional. Another offense, 6 months of arresto mayor;
another offense, 6 months. And then for another offense, you are
sentenced to 8 months. Another crime 8 months, another crime 5
months, and still another crime 5 months.

Now, if we are to let him serve the sentence one after the other,
what is the total? Four years and two months. So, that is your
penalty if you will serve them one by one. But if you will look at the
nost serious, you multiply that by 3, so shorter by 1 year and 2
months. Under the three-fold rule, after serving three years, you
should be released.

Q: What happens to the 1 year and 2 months?

A: It is as if served already. This is for the benefit of the convict.
Therefore, the three-fold rule does not apply when the application of
the rule will not benefit the convict.

For example, a penalty of one year for a crime, another crime is

6 months, another crime is 2 months, 3 months and 1 month. Adding
these all up totals two years. So, if you will apply the three-fold rule,
six years. If served one after the other, only two years. So, instead
of shortening, you are prolonging. That is an instance of
misapplication of the three-fold rule.
 Now, suppose a person was found guilty of five counts of murder.
He was sentenced to 25 years of reclusion perpetua for every murder.
The total is 125 years. So, if we will apply the three-fold rule, it
would be shorter than 50 years. Now, suppose he will survive. Will
he be released, applying the three-fold rule? No, because of the
second to the last paragraph states, such maximum period shall in no
case exceed 40 years. Meaning, after 40 years, he should be
released. What happens to the remaining years? Never mind it.

Under the RPC, there is no such thing as imprisonment for life.

Because this article is automatic. Even if I will sentence you for 100
times of reclusion perpetua, after 40 years you should be released
because of this provision. So, technically, under the RPC, there is no
such thing as perpetual imprisonment, except the perpetual
disqualification, which, according to Article 41, will be for the rest of
your life.

ARTICLE 41, RPC. Reclusion perpetua and reclusion temporal, their

accessory penalties. - The penalties of reclusion perpetua and
reclusion temporal shall carry with them that of civil
interdiction for life or during the period of the sentence as
the case may be, and that of perpetual absolute
disqualification which the offender shall suffer even though
pardoned as to the principal penalty, unless the same shall
have been expressly remitted in pardon.

That is why every country has its own system of penalties. Our
system is different from other Asian countries. There are 3 systems of
penalties which are recognized. One system is called “ MATERIAL
ACCUMULATION SYSTEM”. .Meaning, if you commit 2 or more
crimes and you are sentenced to 2 or more penalties, you have to
serve all of them, even if it goes beyond the rest of your life. Literally,
you will die in jail of old age. If you will not die after serving them all,
you will be released. If you will die earlier, it’s o.k. But that is
practically saying there is no hope for you.

Another system is called “JUDICIAL ACCUMULATION SYSTEM”.

When you reach a certain point, you should be released already.

The third system is the “ABSORPTION SYSTEM”. You only serve

the highest penalty. The minor penalties are deemed absorbed by the
service of the highest penalty.

Q: Which of the 3 is recognized by the RPC?

A: All of the 3 are recognized

• The accumulation system is evident in the first part of Article 70.

That when the nature of penalties will not allow a continuous
service, he should serve them in the order of severity. He should
serve them simultaneously under the material accumulation
system.
• The judicial accumulation system is manifested in the 2 nd part of
Article 70 -- the “three – fold rule”. That the maximum system
should not exceed the most severe multiplied by 3 and in no
case should a person be confined for more than 40 years.
• The “absorption system” is manifested in article 48 – the penalty
for the complex crimes. The penalty for the complex crimes is
based on the higher offense to be imposed in the maximum
period.

Q: What happens to the penalty for the lower offense?

A: No more. It is absorbed. You only serve the highest penalty for
the complex crime. So the 3 systems are all recognized in the Revised
Penal Code.

ARTICLE 48, RPC. Penalty for complex crimes – When a single act
constitutes two or more grave or less grave felonies, or when an
offense is a necessary means for committing the other, the penalty
for the most serious crime shall be imposed , the same to be applied
to its maximum period.
Let us compare the order of penalty with the graduation of penalty:

ARTICLE 71, RPC. Graduated Scales – In the case in which

the law prescribed a penalty lower or higher by one or more
degrees than another given penalty, the rules prescribed in
Article 61 shall be observed in graduating such penalty.
The lower or higher penalty shall be taken from the
graduated scale in which is comprised the given penalty. The
courts, in applying such lower or higher penalty, shall
observe the following graduated scales:

SCALE NO. 1

1.DEATH
2.RECLUSION PERPETUA
3.RECLUSION TEMPORAL
4.PRISION MAYOR
5.PRISION CORRECCIONAL
6.ARRESTO MAYOR
7.DESTIERRO
8.ARRESTO MENOR
9.PUBLIC CENSURE
10. FINE

SCALE NO. 2

1.PERPETUAL ABSOLUTE DISQUALIFICATION

2.TEMPORAL ABSOLUTE DISQUALIFICATION
 3.SUSPENSION FROM PUBLIC OFFICE, THE RIGHT TO
VOTE
AND BR VOTED FOR, THE RIGHT TO FOLLOW A
PROFESSION
OR CALLING
4.PUBLIC CENSURE
5.FINE

In Article 70, the sequence of penalties from arresto mayor down

is arresto menor and destierro. If you will look at article 71, there are
differences. It’s in the reverse.

Q: What penalty follows arresto mayor?

A: The correct answer is: under Article 70, it is arresto menor
followed by destierro; whereas in Article 71, it is destierro followed by
arresto menor.

Q: Is there a conflict between these two articles?

A: There is no conflict because these 2 articles are talking of 2
different topics.

In Article 71, the issue is graduation of penalties; whereas in

Article 70, the issue is successive service of sentence.

EXAMPLE: A, B, and C are charged criminally. A as principal, B as

accomplice, and C as accessory. Suppose, all of them are found guilty.
The penalty for A is arresto mayor. What is the penalty for B as an
accomplice and C as an accessory?

What article do we have to apply there? Article 70? Or Article

70? So, the issue in the above problem is not that whether you are
sentenced to two or more penalties, but the issue is what is one
degree or two degrees. So, the article to apply there is Article 71,
because the issue is graduation – what is one degree or two degrees
lower. So, based on that, the answer is: B as an accomplice should
be sentenced to the penalty of destierro, whereas C, as an accessory,
should be sentenced to arresto menor.

If you will apply Article 70, it is reversed. It is now the

accomplice who will be sentenced to arresto menor and the accessory
will be for destierro. So, since that is the problem, the issue there
again is the graduation of penalty and not the successive sentence.

Next, A is charged criminally for three separate offenses, and he

was found guilty in all of the crimes. For one crime, the court
sentenced him for 6 months or arresto mayor. For the second crime,
the court sentenced him for 6 years of destierro, and for the third
crime, he was sentenced to 5 days of arresto menor. QUESTION: How
will A serve these penalties? That is not graduation, but that is the
succession of sentences. ANSWER: So, he has to serve first the
penalty of 6 months of arresto mayor. After that, he has to serve 5
days of arresto menor. After that, he will now serve the penalty of
destierro .

So, we will not apply Article 71 because what is asked is service

of sentence. So, the answer depends on what the question is.

Q: Now, why is that in Article 71, destierro is higher than arresto

menor ?
A: It is because destierro is a correctional penalty, while
arresto menor is a light penalty. Obviously, a correctional
penalty ranks higher than a light penalty. Very simple.

Q: Why is it that in Article 70, it is the reverse? Arresto

Menor, which is a light penalty comes first before destierro
which is correctional penalty. Why?
A: Destierro is a correctional penalty and does not involve the
imprisonment, but only banishment. Our common sense will tell
us that the penalty which consists in the deprivation
of freedom is more severe than a penalty which is not
confinement.

Article. 72. Preference in the payment of the civil liabilities.

– The civil liabilities of a person found guilty of two or more
offenses shall be satisfied by following the chronological
order of the dates of the final judgments rendered against
him, beginning with the first in order of time.

Section three – Provision common in the last two preceding

sections

Article 73. Presumption in regard to the imposition of

accessory penalties. – Whenever the courts shall impose a
penalty which, by provision of law, carries with it other
penalties, according to the provisions of Articles 40, 41, 42,
43, 44 and 45 of this Code, it must be understood that the
accessory penalties are also imposed upon the convict.
Article 74. Penalty higher than reclusion perpetua in certain
cases. – In cases in which the law prescribes a penalty
higher than another given penalty, without specifically
designating the name of the former, if such higher penalty
should be that of death, the same penalty and the accessory
penalties of Article 40, shall be considered as the higher
penalty.

PEOPLE VS. QUENALES

297 SCRA 667
ARTICLE 66. Imposition of fines - - In imposing fines, the courts
may fix any amount within the limits established by the
law; in fixing the amount in each case attention shall be
given, no only to the mitigating and aggravating
circumstances, but more particularly to the wealth or means
of the culprit.

Q: Are fines divisible into periods? Minimum, medium or maximum?

A: No, fines are not divisible into periods.

Q: Can they be graduated into degrees? 1 degree lower, one

degree higher? How do they graduate fines by degrees?
A: It is found in Article 75.

ARTICLE 75, RPC: Increasing or reducing the penalty of fine

by one or more degrees — Whenever it may be necessary to
increase or reduce the penalty of fine by one or more
degrees, it shall be increased or reduced, respectively, for
each degree, by one- fourth of the maximum amount
prescribed by law, without however, changing the minimum
The same rules shall be observed with regard of fines
that do not consist of a fixed amount , but are made
proportional
ARTICLE 76. Legal period of duration of divisible penalties. -
The legal period of duration of divisible penalties shall be
considered as divided into three parts, forming three
periods, the minimum, the medium, and the maximum in the
manner shown in the following table:
TABLE SHOWING THE DURATION OF DIVISIBLE PENALTIES AND THE
TIME INCLUDED IN EACH OF THEIR PERIODS

PENALTIE ENTIRE MINIMUM MEDIUM MAXIMU

S DURATION M
Reclusion From 12 From 12 From 14 From 17
temporal years and 1 years and 1 years, 8 years, 4
day to 20 day to 14 months and months and
years years and 8 1 day to 17 1 day to 20
months years and 4 years
months
Prison From 6 From 6 years From 8 From 10
mayor, years and 1 and 1 day to years and 1 years and 1
absolute day to 12 8 years day to 10 day to 12
disqualificati years years years
on and
special
temporary
disqualificati
on
Prison From 6 From 6 From 2 From 4
correccional months and months and 1 years 4 years, 2
suspension 1 day to 6 day to 2 months and months and
and years years and 4 1 day to 4 1 day to 6
destierro months years and 2 years
months
Arresto From 1 From 1 to 2 From 2 From 4
mayor month and 1 months months and months and
day to 6 1 day to 4 1 day to 6
months months months
Arresto From 1 to 30 From 1 to 10 From 11 to From 21 to
menor days days 20 days 30 days

 Discussion on page 96… I think…

ARTICLE 77. When the penalty is a complex one composed of three

distinct penalties – In cases in which the law prescribes a
penalty composed of three distinct penalties, each one shall
form a period, the lightest of them shall be the minimum the
next the medium and the most severe the maximum period.
Whenever the penalty prescribed does not have one of
the forms specially provided for in this Code, the periods
shall be distributed ,applying by analogy the prescribed
rules.

Q: What is a complex penalty?

A: A complex penalty is a penalty prescribed by law for a
complex crime which is based on the higher offense to be
imposed on its maximum period. This definition sounds
correct, but it is wrong. A complex penalty has nothing to do
with complex crime. According to article 77, a complex
penalty is a penalty composed is a penalty composed of three
distinct penalties each one shall form a period.

The best example is the penalty for the crime of treason

committed by a resident alien, under Article 114, last paragraph.
Treason may be committed by a Filipino citizen or a resident alien.

Q: Suppose, a person who committed treason is an alien, but

residing in the Philippines. Under Article 114, last paragraph,
what is the penalty for that crime?
A: The penalty for a resident alien who commits treason is
reclusion temporal to death. So, there are 3, but in one
penalty. In effect there are 3 penalties.

Q: Is that divisible?
A: Yes, under Article 77, that is a divisible penalty.

Q: What is the maximum period? The minimum?

A: According to Article 77, the lightest of them shall be the
minimum. The next, the medium, and the most severe is the
maximum. With that, you can apply the effect of mitigating
or aggravating circumstances under Article 64. If there is no
mitigating, the penalty should be reclusion perpetua. If there
is aggravating, the alien will be sentenced to death. And if
there is mitigating and no aggravating, the penalty should be
in the range of reclusion temporal.

Q: What do you mean by degree, and what do you mean by a

period? What do you mean by a degree under the law on
penalty and what do you mean by a period? When is a period
considered a degree and when is a degree considered a
period?
A: A degree is a given penalty. It is the penalty prescribed by
law for the offense. Like for example, reclusion temporal.
That is one degree. Prision mayor, that is another degree.
Prision correccional, another degree.

Q: What is a period?
A:A period is 1/3 portion of the divisible penalty. For
example, reclusion temporal, there are 3
parts:

• reclusion temporal maximum

 • reclusion temporal medium
• reclusion temporal minimum

So, reclusion temporal is a degree; reclusion temporal

maximum is a period. Reclusion temporal medium is another period.

Q: When is a period treated a degree? And when is a degree

treated as a period? For example, a crime punishable by
reclusion temporal in its maximum period .
A: For that crime, reclusion temporal maximum is not a period,
but a degree. That is why, in determining what is one degree
lower under Article 61, the medium is one degree lower. That
is not a degree. That is why, it will have its own period. This
is when a period becomes a degree.

Q: When is degree treated as a period?

A: Death is normally is one degree. Reclusion temporal is still
another degree. But in situations enumerated in Article 77,
the three of them together as one, and each part is a period.

CHAPTER FIVE

EXECUTION AND SERVICE OF PENALTIES

Section One – General Provisions

ARTICLE 78. When and how a penalty is to be executed – No

penalty shall be executed except by virtue of a final
judgment.

A penalty shall not be executed in any other form than that

prescribed by law, nor with any other circumstances or incidents than
those expressly authorized thereby. In addition to the provisions of
the law, the special regulations prescribed for the government of the
institutions in which the penalties are to be suffered shall be observed
with regard to the character of the work to be performed, the time of
its performance, and other incidents therewith, the relations of the
convicts among themselves and other persons, the relief which they
may receive and their diet.

The regulations shall make provisions for the separation of the

sexes in different institutions, or at least into different departments
and also for the correction and the reform of the convicts.

ARTICLE 79 Suspension of the execution and service of the

penalties in case of insanity.— When a convict shall become
insane or an imbecile after final sentence has been
pronounced, the execution of the said sentence shall be
suspended only with regard to the personal penalty, the
provisions of the second paragraph of circumstance no. 1 of
article 12 being observed in the corresponding cases.
If at any time the convict shall recover his reason, his
sentence shall be executed, unless the penalty shall have
prescribed in accordance with the provisions of this Code.
The respective provisions of this Section shall be observed
if the insanity or imbecility occurs while the convict is
serving the sentence.

We have to wait that the judgment will become final. In case of

an appeal, you cannot force the accused to serve his sentence.

Q: When will the execution of the penalty be suspended?

What is the ground for suspending a penalty?
A: According to Article 79, in the course of serving the
penalty or the portion of the penalty, the accused becomes
insane. We do not penalize in a penal institution the person
who becomes insane. He should be brought to the mental
hospital for the recovery of his insanity. And once
he recovers, he has to continue serving penalty.

Q: State the legal effects of insanity of the accused.

A: The answer should be based on the questions: When it will
take effect? When did he become insane? When he is insane
at the time he commits a crime, he is exempt.

Suppose, he was normal, but when he is charged in court, he

becomes insane. Meaning, he became insane after the information
was filed. He is no longer exempted.

Q: But can we proceed for the trial of this guy?

A: Definitely, we cannot.

Q: So, what is the effect?

A: Under Criminal Procedure, in Rule 116, that is a ground for
the suspension of an arraignment of the accused on the
ground of insanity.

Q: Now what happens if the accused was sane, but after he

was arraigned, he become insane?
A: That is a ground to suspend the trial until he recovers
because otherwise, it will violate his
right to defend himself, to present his evidence. And he is
not competent to testify. So, his rights will be violated if we
will continue the trial.
Q: Suppose, he became insane when he was already sentenced?
What is the effect?
A: Article 79. It is a ground to suspend the execution or service of
the penalty.

ARTICLE 81. When and how the death penalty is to be executed —

The death sentence shall be executed with preference to any
other penalty and shall consist in putting the person under
sentence to death by electrocution. The death sentence
shall be executed under the authority of the Director of
Prisons , endeavoring so far as possible to mitigate his
sufferings of the person under sentence during the
electrocution as well as during the proceedings prior to the
execution .
If the person under sentence so desires, he shall be
anaesthetized at the moment of electrocution.

This article is already amended, like the manner of execution --

from electrocution to lethal injection. But some of the parts are still
true. The death sentence should be carried out not later than 1 year
after the judgment has become final. Within 1 year, it should be
carried out. Unless he will be pardoned by the President or commute
his sentence. So, there will be no prolonged delay.

The law says the death sentence shall be executed with

preference to any other. This jibes well with Article 70. In executing
2 or more penalties, you start at the most severe, going down to the
less severe. And therefore, if a person is sentenced to death for one
crime, and 5 days for arresto menor, you do not start with arresto
menor going to death.

PEOPLE VS JOSE
FACTS: Four boys, one of them a Bosconian, were charged with
the rape of Maggie de la Riva. Each of them was charged four
times. That is the law on multiple rape. You are not only liable
for raping the victim, but also to the other rape where you helped
your co-accused. So, all of them were found guilty by the trial
court. All of them were meted the penalty of death penalty.

The trial court said that legally speaking, each of them should be
sentenced to death 4 times because they have been found guilty
of rape for four counts. One rape is one death penalty. So, each
of them should be sentenced to death four times, but since they
have only one life to give, the court cannot sentence them four
times. So, the court is saying that despite the fact that they
deserved to be sentenced for four times, the court sentenced
them to death only once.

HELD: The Court on appeal, affirmed the decision and sentenced

them to death four times. The other three death penalties are
not useless. It has the effect when the President pardons a
convict. Thus, the convict is not really spared from death even if
pardoned because there are still three death penalties to be
observed. The president has to pardon the convict to be spared
from the death penalty.

This provision about sentencing a person for two or more death

penalties, if he deserves it, is a check on the pardoning power of
the President. Now, who is this kind of president who will risk his
neck and political popularity four times to you? He will not risk
his reputation before the Filipino people by pardoning the
convict. He might risk it only once.

To say that the four penalties could not be carried out because it
is impossible to carry out for 4 times is also wrong. It can be carried
out four times because under Article 70, when a person is sentenced
to two or more penalties, he will serve them SIMULTANEOUSLY,
unless it is not possible. When you are sentenced to four death
penalties, and you are lethally injected, that is a simultaneous service
of the four penalties.

ARTICLE 83. Suspension of the execution of the death sentence —

The death sentence shall not be inflicted upon a woman
within the 3 years next following the date of the sentence or
while she is pregnant, nor upon any person over 70 years of
age. In this last case, the death sentence shall be commuted
to the penalty of reclusion perpetua with the accessory
penalties provided in Article 40.
In all cases where the death sentence has become final,
the records of the case shall be forwarded immediately by
the Supreme Court to the Office of the President for
possible exercise of the pardoning power.

Q: When should the death penalty be suspended?

A: There are 3 instances:
- if the woman is pregnant - let us not kill the fetus. It is the
mother who is guilty, not the child.
- a woman within 1 year after delivery - Let us allow her to
nurse the child. After 1 year, after she delivered the baby, let
us kill her with impunity.
- When the convict is over 70 years old.

ARTICLE 47, RPC. In what cases the death penalty shall not
be imposed – The death penalty shall be imposed in all cases
in which it must be imposed under existing laws, except
when the guilty person is below 18 at the time of the
commission of the crime, or is more than 70 years of age or
when upon appeal or automatic review of the case by the
Supreme Court, the required majority vote is not obtained for
the imposition of the death penalty, in which case the
penalty shall be reclusion perpetua.

Q: Now, how do you compare Article 47 from Article 83?

A: In Article 47, when the accused is over 70 years of age, he
should not be sentenced to death. There should be an
automatic commutation to reclusion perpetua. In Article 83,
when the accused is over 70 years of age, the death penalty
should be suspended. So there will only be suspension of
sentence.

Q: Now which is which? Will it be a permanent reprieve from

a death penalty under Article 47, or will there be a
suspension? Is there a conflict between Article 47 and
Article 83?
A: It could be both, reprieve or suspension.

Suppose, you were 69 years old when you were convicted by the
lower court. You appealed but it was affirmed. You are safe when
the judgment becomes final. Under Article 47, it should be commuted
to reclusion perpetua . But the President has to commute it, it is not
automatic. While we are waiting for his official act, the execution will
be suspended. That is how to reconcile Article 47 and Article 83.

Q: When a minor, who is below 18 years of age, his minority

could either be mitigating or Privileged mitigating. How about
70 years old. Is it ordinary mitigating or privileged
mitigating?
A: Under Article 13, over 70 is only ordinary mitigating. It is
not considered as privileged Except only when a person over
70 years of age will be sentenced to death and because of
Article 47, it will be commuted to reclusion perpetua.

So, in that sense, it will have the effect of the privilege. But
that’s the only instance. If he is sentenced to reclusion perpetua, it
will not be commuted. Old age could never be a privileged
mitigating, except when the imposable penalty is death. Because
under Article 47, it has to be commuted automatically to one degree
lower.

ARTICLE 87. Destierro -- Any person sentenced to destierro

shall not be permitted to enter the place or places
designated in the sentence, nor with in the radius therein
specified , which shall not be more than 250 and not less
than 25 kilometers from the place designated.

Q: How do you classify destierro?

A: Actually, it is a correctional penalty which has the same
duration as prision correccional. It is not less than 6 months
and 1 day to 6 years. The court will tell you that you are not
allowed on that particular place, within that particular period
( 6 months and 1 day to 6 years).

Q: What is that radius?

A: The court will specify that you are not allowed to enter
the radius of not more than 250 kilometers or the minimum,
not less than 25 kilometers.

ARTICLE 88. Arresto menor – The penalty of arresto menor

shall be served in the municipal jail, or in the house of the
defendant himself under the surveillance of an officer of the
law, when the court so provides in its decision, taking into
consideration the health of the offender and other reasons
which may seem satisfactory to it.

Q: Now, where will you serve it?

A: They do not bring you to the Davao Penal Colony for one
day. It could be served in the city jail, or in the municipal jail,
or even in the residence of the accused, under the
surveillance of the police officer. But the judge will have to
provide for a valid reason.

INDETERMINATE SENTENCE LAW

ACT 4103

SECTION 1. Hereafter, in imposing a prison sentence for an

offense punished by the Revised
Penal Code, or its amendments, the court shall sentence the
accused to an indeterminate
sentence the maximum period of which shall be that which,
in view of the attending
circumstances, could be properly imposed under the rules of
the said Code, and the minimum
which shall be within the range of the penalty next lower to
that prescribed by the Code for the
offense; and if the offense is punished by another law, the
court shall sentence the accused to
an indeterminate sentence, the maximum term of which
shall not exceed the maximum term
fixed by said law and the minimum shall not be less than the
minimum term prescribed by the
same.
 Section 1 states that the application of the Indeterminate
Sentence Law is mandatory. Because the law says, hereafter,
imposing prison sentence for the offense punished by the Penal Code,
the court SHALL sentence x x x What the law says is if a person is
found guilty of a crime, a sentence should cover a certain range.
There should be a maximum and a minimum.

Q: What happens with the medium period?

A: There is no such thing as a medium sentence because the
word maximum here does not carry the same meaning as
maximum period in divisible penalties.
Q: What is the procedure?
A: First, the court should determine the maximum. This is done by
applying the RPC.
Q: What is the consideration?
A: There are so many. You take into consideration what is the
penalty for the crime, whether it is frustrated or attempted. So, you
have to apply graduation of penalties – one degree, two degrees.
Whether the accused is a principal, accomplice or accessory to the
crime.

Second, are there privileged mitigating circumstances? The

application of Articles 68 and 69. And then, the application of ordinary
mitigating … in Article 64. You have to exhaust first all the known
provisions of the RPC in finding the maximum sentence.

And then, after you have determined the maximum, the next
step is to determine the minimum sentence. You do not look for the
minimum and then go to the maximum. You have to look first for the
maximum before you look for the minimum.

Example: A is accused of Homicide, as principal. He was found guilty.

There was no mitigating circumstance in his favor. There was also no
aggravating. Now, impose the proper penalty under the RPC and
Indeterminate Sentence Law.

So we, will find out in the case of Homicide, the penalty is

reclusion temporal, with its 3 periods:

Minimum : 12y, 1d to 14y8m

Medium : 14y,8m,1d to 17y4m
Maximum : 17y,4m, 1d to 20y

So, we will determine. Homicide is punishable by reclusion

temporal and, in the problem, there is no mitigating nor aggravating.
Applying the RPC, the penalty should be within the medium. As judge,
you now have to impose the exact numbers—the years, the months,
and the days. And you have many choices. You can give him 14
years, 8 months and 1day. That is the best. But you can impose upon
him 17 years and 4 months. That is the worst. Or, any combination in
between.

So, for example, the court says, I will sentence you to 14 years, 8
months and 1 day because I’m very liberal. That will now be the
maximum sentence. The next step will be finding the minimum.

The law says that the minimum should be within the range of the
penalty next lower in degree. So, what is the penalty next lower in
degree to reclusion temporal? It is prision mayor. And what is the
range of prision mayor? It is 6 years and 1 day to 12 years.

Now, the law says that you must now impose the minimum
within the range of 6 years and one day. So, it would be 6 years and
2 days, etc… up to 12 years. Now, we will say that the court will give
him the best thing. I will give you now 6 years and 1 day of prision
mayor to 14 years, 8 months and 1 day or reclusion temporal.

Q: Since there is no mitigating, there is no aggravating, should we not

divide prision mayor also into 3 parts – minimum, medium,
maximum? Meaning, if the maximum is within the range of reclusion
temporal medium, the minimum should also be within the range of
prision mayor medium?
A: NO.

In other words, Article 64 is only for the maximum. Here, the

discretion of the judge is wider – the range of the entire penalty
without regard to any period. So, the best thing that you can get is
the indeterminate sentence ranging from 6 years and 1 day of
reclusion temporal as maximum. Or, the worst thing – 12 years of
prision mayor as minimum to 17 years and 4 months of reclusion
temporal as maximum. That will now be the penalty.

Q: Suppose, A was found guilty of homicide with one mitigating

circumstance. What will be the penalty?
A: Applying Article 64, if there is a mitigating circumstance, the
penalty should be within the minimum period. The best thing is 12
years and 1 day as maximum.

Q: What is the minimum?

A: The same answer. That will be 6 years and 1 day of prision mayor
as minimum.

Or, if there is an aggravating circumstance, apply Article 74 to the

maximum of reclusion temporal. It will now become 17 years, 4
months and 1 day to 2 years and the minimum is the same – 6 years
and 1 day.

EXAMPLE: A is sentenced to 6 years and 1 day of prision mayor as

minimum to 17 years and 4 months of reclusion temporal as
maximum. You are now serving.

QUESTION: What happens after 6 years and 1 day? Can you demand
a release?
ANSWER: Of course, not. You cannot demand such because that is
not really your sentence. Your sentence is 17 years and 4 months.
There is only a minimum under the Indeterminate Sentence Law.
The real penalty is 17 years and 4 months.

Q: So, what is 6 years and 1 day for?

A: When you reach 6 years and 1 day, the minimum, you are now
qualified for parole. If you go to the Board of Pardon and Parole, you
will be considered. You will be released through parole. But you
have to comply with certain conditions. At least, you can enjoy with
the society. If you violate the conditions, you will be arrested to finish
your sentence.

Remember, that you will not be automatically paroled. You are

only a candidate for parole. But whether you’re paroled or not will
depend also on your stay within 6 years and 1 day. If, for example,
during the 6 years and 1 day, your record is very bad, you cannot be
paroled. It will depend now on how you behave.

Now, suppose 6 years and 1 day have passed. It is now the 7 th

year and no parole yet I favor for you until the 17 th year. There, you
will be released because you have reached your maximum. That is
the meaning of the Indeterminate Sentence Law.

Q: What is the purpose for this?

A: According to the SC in the case of People vs. Docusin, the purpose
of Indeterminate Sentence Law is to uplift and redeem the value of all
human material and to prevent unnecessary and excessive
deprivation of personal liberty and economic usefulness. That is the
exact language of the SC.

To simplify this, the individual, even during his sentence can be

useful to society. When paroled, he is not anymore in jail, but can
mix with the community, look for a job, and feed his family. And also
for this reason, the government is benefited. It would lessen the
inmates in the jails, thereby lessening mouths to feed and
decongesting prisons.

Now, under the Indeterminate Sentence Law, do not start from

the minimum period going up to maximum period because the
maximum might still so down, or go up.

Q: How do you determine the maximum?

A: By applying all the applicable provisions of the Revised Penal Code.
PROBLEM: X is accused of a complex crime of homicide with less
serious physical injuries. Take note that homicide is punishable by
reclusion temporal. Less serious physical injuries is punishable by
arresto mayor. However, it is established during trial that he was only
17 years old at the time he committed the crime. And after its
commission, he voluntarily surrendered to the authorities, plus the
fact that he entered a plea of guilty upon arraignment. QUESTION:
Based on these facts, impose the proper penalty under the RPC and
under the Indeterminate Sentence Law.

Q: What is the rule?

A: First, look for the maximum… He is accused of a complex crime of
homicide with less serious physical injuries, with the penalty
prescribed by law for each. So, what will be our starting penalty?
Prision mayor or Reclusion Temporal? Lower the penalty by one
degree because of Article 68(2). So, it goes down to Prision Mayor.
Then impose the proper penalty under the RPC and the Indeterminate
Sentence Law.

PROBLEM: Vhenigna Vangkhiyud was convicted of homicide. The trial

court appreciated the following modifying circumstances. The
aggravating circumstance of nocturnity and the mitigating
circumstance of passion and obfuscation, no intent to commit so
grave a wrong as that committed, illiteracy and voluntary surrender.
The imposable penalty for homicide is reclusion temporal, the range
of which is 12 years and 1 day to 20 years.

QUESTION: Taking into account the attendant aggravating and

mitigating circumstances and applying the Indeterminate Sentence
Law, determine the proper penalty to be imposed on the accused.
ANSWER: Determine the maximum by applying all the known
provisions of the RPC on penalties. Well, the problem says there is
one aggravating. But there are 4 mitigating circumstances offsetting
the aggravating circumstances of nocturnity. With one aggravating
and four mitigating, there is a balance of 3 mitigating in favor of the
offender.

Applying Article 64(5), since there are 4 mitigating, I will fix the
penalty 1 degree lower – prision mayor – because Article 64(5) says if
there are two mitigating without any aggravating x x x Even if you
still have a balance of three, you only apply the provision that it
should be within the minimum period.

Therefore, the maximum penalty should be within the range of

reclusion temporal. It is not necessary for you to give the precise
number of years. It is enough if you’ll just say within the range of
reclusion temporal minimum.

And now, under the Indeterminate Sentence Law, the proper

penalty should be within the range of prision mayor, the penalty next
lower in degree anywhere within the range of the entire penalty. You
do not have to say how many years.

But suppose there is no aggravating circumstance and there are

four mitigating circumstances. Therefore, applying Article 64, the
penalty should be lower by one degree. Meaning the maximum
should be within the range of prision mayor, and the minimum should
be within the range of prision correccional. There is a danger if you
start determining the penalty from the minimum going up. You
should start from the maximum going down. That is the correct
application of the Indeterminate Sentence Law.

Q: Is the Indeterminate Sentence Law applicable to crimes punished

under special laws?
A: Yes, because according to Section 1, x x x if the offense is
punished by another law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed
the maximum term fixed by said law and the minimum shall not be
less than the minimum term prescribed by the same. As a matter of
fact, it is easier to apply the Indeterminate Sentence Law to crimes
punished by special laws.

Q: Give an example of a penalty found in special laws.

A: For example: Anyone who is found guilty of violation of this Act
shall, upon conviction, be punished by imprisonment ranging from 1
year to 5 years.

That is not prision correccional. One year to five years. That’s it.
There is no more degrees lower or higher. Under the Indeterminate
Sentence Law, it will sentence you to the maximum, the maximum
would be anywhere within that range, and the minimum should also
be within that range. So, I can say one year as minimum to five
years as maximum. Or, one year as minimum to four years as
maximum. Anywhere between one to five, for as long as it does not
go down to less that one, or exceed five. For penalties under special
laws, there is no such thing as periods, no such thing as one degree
lower. This is easier. Just fix it anywhere within the prescribed
penalty.

In other words, the court will just impose the straight penalty,
only the maximum without any minimum. So, obviously, the convict
has no chance of being paroled or commutation. These are out of
the question.

SECTION 2. This Act shall not apply to persons convicted of

offenses punished with death penalty or life imprisonment;
to those convicted of treason, conspiracy or proposal to
commit treason; to those convicted of misprision of treason,
rebellion, sedition or espionage; to those convicted of piracy;
to those who are habitual delinquents; to those who shall
have escaped from confinement or evaded sentence; to
those who having been granted conditional pardon by the
Chief Executive shall have violated the terms thereof; to
those whose maximum term of imprisonment does not
exceed one year, not to those already sentenced by final
judgment at the time of approval of this Act, except as
provided in Section 5 hereof.

There is no such thing as reclusion perpetua as minimum and

death as the maximum. Or if the person is sentenced to life
imprisonment, the sentence will be within that period.

Suppose, the penalty is reclusion perpetua. Obviously, life

imprisonment is not the same as reclusion perpetua. However, by
practice, the Supreme Court, for the purpose of the Indeterminate
Sentence Law, has considered life imprisonment and reclusion
perpetua as analogous because, when a person is sentenced to
reclusion perpetua, the court will just simply say: You are hereby
sentenced to reclusion perpetua without any minimum. They will just
impose it without a minimum penalty.

For example, a person commits a crime punished by reclusion

perpetua to death. The crime is a heinous crime. But since, for
example, he is entitled to a privileged mitigating circumstance, the
penalty will be lowered. It will go down to reclusion temporal.
QUESTION: Is he entitled to the benefit of the Indeterminate
Sentence Law? That the range must be within the period of prison
mayor and reclusion temporal?

PEOPLE vs. ROQUE

The Supreme Court applied the Indeterminate Sentence Law

despite the fact that the accused committed a capital offense.
Because since the penalty will be lowered by one degree, the
imposable penalty is reclusion temporal. Since the penalty is now
reclusion temporal, the Indeterminate Sentence Law is applicable
because the imposable penalty is not death, reclusion perpetua
or life imprisonment.

PEOPLE vs. CONMAN

Facts: A person is accused of murder punishable by death,

reclusion perpetua, but because of privileged mitigating
circumstances, the penalty went down to reclusion temporal. So
the imposable penalty is at most 20 years.
 Held: The Supreme Court did not apply the Indeterminate
Sentence Law because this is covered by the exception. The
crime was punishable by death.

Q: What is the difference between the two cases?

A: In the Roque case, the SC considered the penalty to be imposed,
not the penalty prescribed for the crime. Even if the crime is
punishable with the death penalty or perpetua, if however, the actual
penalty is not death or perpetua, the Indeterminate Sentence Law will
apply.

But in the case of Conman, because the law says persons

convicted of offenses punishable with the death penalty, or life
imprisonment. Even if the penalty imposed is not death or life
imprisonment, since the crime is punishable by death or life
imprisonment, you are now entitled to the Indeterminate Sentence
Law.

Q: Which of the two is correct?

A: There are many other cases which came after that, which upheld
the older ruling. Even if the crime is punished by death or life
imprisonment, if the imposable penalty, after the mitigating
circumstances are applied, will not be perpetua to death, the SC will
give him the benefit.

The other exceptions are based on the following. The benefit of

the law does not apply to certain crimes. If you are accused of these
crimes, even if the penalty is very low, like prison correctional, still
you are not entitled to a minimum sentence.

• To those convicted of treason, conspiracy of proposal to

commit treason;
• To those convicted of misprision of treason, rebellion,
 sedition or espionage;
• To those convicted or piracy;
• To those who are habitual delinquents;
• To those who shall have escaped from confinement or
evaded sentence;
• To those who having been granted conditional pardon by the
Chief Executive shall have violated the terms thereof;
• To those who maximum term of imprisonment does not
exceed one year;
• Not to those already sentenced by final judgment at the time
of approval of this Act, except as provided in Section 5
hereof.

So, definitely, if you are charged with arresto menor, there is no

indeterminate sentence there. That is straight. Even in arresto
mayor, it’s the same. In the first place, there is no Board of Pardon
and Parole in the city jail. It is only the national penitentiary.

Q: How about prision correccional (6 months and 1 day to 6 years)?

A: If the penalty is six months and 1 day to 1 year, the Indeterminate
Sentence Law will not apply. It is when you exceed one year that the
law will apply.

Another exception not found in the law is when the principal

penalty to be imposed is suspension or destierro. Because 1 degree
lower than destierro is arresto menor. It is absurd to say that the
minimum penalty is 1 month of arresto menor and the maximum is 5
years of destierro. Destierro does not involve imprisonment.

PROBATION LAW OF 1976

PD 968, as amended
Q: How do you describe probation?
A: Probation is simply the law on suspended sentence for adult
offenders. This is the counterpart of PD 603, which is the law on
suspended sentence for youthful offenders. In the same manner, we
can call PD 603 as the probation law for youthful offenders.

It is awkward that only minors are entitled to suspended

sentence. Because we cannot deny the fact that not everybody is a
natural-born criminal. When we commit a mistake only once, it is too
harsh that you have no choice but to go to jail. So, in the same
manner that a minor proves to reform, the suspended sentence will
be forgotten. That should also be applied to adults. We call him the
probationer. In the same pattern that the child will apply for
suspended sentence with the court, the convict adult must also apply
for probation.

With the minor, the court will refer him to the DSWD. With the
adult, the case will be referred to the Probation Administration. So,
there is a city probation officer, provincial probation officer for case
study and recommendation. If the recommendation is favorable and
there is nothing in law which disqualifies you, the court will suspend
your sentence, subject to certain conditions. If you break the
conditions, then you serve your sentence. If you do not break the
conditions during the period of probation, then you pass. Forget
about your sentence. You are a free man. That is what the Probation
Law is all about.

SECTION 4: Grant of Probation. -- Subject to the provisions of

the Decree, the trial court may, after it shall have convicted
and sentenced a defendant, and upon application by said
defendant within the period of perfecting an appeal, suspend
the execution of the sentence and place the defendant on
probation for such period and upon such terms and
conditions as it may deem best; Provided, that no
application for probation shall be entertained or granted of
the defendant has perfected the appeal from the judgment
or conviction.
Provision may be granted whether the sentence imposes
a term of imprisonment or a fine only. An application for
probation shall be filed with the trial court. The filing of the
application shall be deemed a waiver of the right to appeal.
An order granting or denying probation shall not be
appealable.

Actually, the Probation Law applies not only to people who are
sentenced to imprisonment, but including those who have been
sentenced to pay fine with subsidiary imprisonment in case of
insolvency. They are also covered by that.

Now, one important point about Section 4 is that when you are
convicted in a court, you have two options:

• Appeal, or
• Apply for probation.

And you must apply for probation within the period to appeal. You
cannot apply for probation after 15 days. You choose between the
two.

Q: Can I appeal and later on, when I am found guilty and the
judgment become final, apply for probation?
A: Under the law, you cannot have your cake and eat too. When you
file a petition for probation, you are automatically waiving your right
to appeal. You are accepting the correctness of the decision. If you
appeal, than you stake your future in that appeal. In the event that
your conviction is affirmed, then you cannot say that you will now
apply for probation. Now, you go to jail. Probation and appeal
cannot go together.

Yusi vs. Morales

121 SCRA 653

Facts: The accused was convicted. What the lawyer did was,
within 15 days, he applied for probation. Four or five days after
the date of the application, the accused changed his mind. So,
through his lawyer he sought to withdraw his application.
Instead, he would file a notice of appeal.

The court a quo said that he could not do that anymore

because under Section 4, from the moment he filed an
application for probation, he is waiving his right to appeal.

Held: The trial court is wrong. Probation and appeal are both
for the benefit of the accused. He can change his mind. The
important thing is that he is not availing of both, and provided he
does one of the two within 15 days. The choice is not
irrevocable so long as it is done within 15 days.

SECTION 9. Disqualified Offenders. – The benefits of this

Decree shall not extend to those:
A.) sentenced to serve a maximum of imprisonment of
more than 6 years;
B.) convicted by subversian, or any crime against the
national security or the public order;
C.) who have previously been convicted by final
 judgment of an offense punished by imprisonment of
not less than one month and one day and/or a fine of
not less than P200;
D.) who have been once on probation under the
provisions of this Decree; and,
E.) who are already serving sentence at the time the
substantive provisions of this Decree became
applicable pursuant to Section 33 hereof.

Q: Who are disqualified offenders:

A: They are people who are not qualified. Even if they will apply, the
application will be automatically denied. But there are also people
who are not disqualified under Section 9, but the court may still deny
the probation because of Section 8.

SECTION 8. Criteria for Placing an Offender on Probation – In

determining whether an offender may be placed on
probation, the court shall consider all information relative to
the character, antecedents, environment, mental and
physical condition of the offender, and available institutional
and community resources. Probation shall be denied if the
court finds that:
A.) the offender is in need of correctional
treatment that can be provided effectively by his
commitment to an institution;
B.) there is an undue risk that during the period
of probation the offender will commit another crime;
or,
C.) probation will depreciate the seriousness of
the offense committed.
 Under Section 8, there are still other grounds for the court to
consider. But these are discretionary or based on the sound
judgment of the court. We are more interested in Section 9 because
really, the law disqualifies.
Six years and 1 day is already disqualified. So, those who are
sentenced to prison mayor up are disqualified. Obviously, based on
the law on jurisdiction now, no crime triable by the RTC is
probationable.

PROBLEM: In case of violation of Section 8 of RA 6425 ( Dangerous

Drugs Act), accused Vhenigna Vangkhiyud was given the benefit of
the mitigating circumstance of voluntary plea of guilty and drunkness,
not habitual. She was sentenced to suffer the penalty of 6 years and
4 days and to pay the fine of P60,000.00 with the accessory penalty
provided by law plus costs of probation. QUESTION: If you were the
judge, what action will you take on the probation? ANSWER: If I
were the judge, I will deny the application because the problem says
that despite the 2 mitigating circumstances, she was sentenced to
suffer the penalty of 6 years and 4 days. According to Section 9 (a),
the benefits of the Probation Law shall not extend to those sentenced
to serve the maximum term of imprisonment of more that 6 years
and 4 days. She is disqualified.

Francisco vs. CA
240 SCRA 24

Facts: The accused was convicted for a crime for which she was
sentenced to a maximum penalty of 10 years, she seasonably
appealed her conviction. While affirming the judgment of
conviction, the appellate court reduced the penalty to a
maximum of 4 years and 4 months. Taking into consideration
certain qualifying circumstances, the accused now applies for
probation.
 Issue: Will her application be favorably acted upon?

Held: She is not entitled to probation. The language of the law

is that when you appeal, you cannot apply for probation. She
has already appealed.

Should an appeal bar an accused from applying for

probation, if the appeal is reduced the penalty within the
probational limit…while the proposition is equitable to allow the
accused to apply for probation, we are not yet prepared to accept
this interpretation under existing laws and jurisprudence.

It is simply contrary to the clear express mandate of Section

4 of the Probation Law, as amended, which states that no
application for probation shall be entertained if the defendant has
perfected an appeal from the judgment of conviction. That is
what the law says. And when the law does not distinguish, the
court should not distinguish. Where the law does not make an
exception, neither shall the courts. That is the literal approach.

EXAMPLE: You are charged 5 times for the same crime committed on
different occasions. That usually happens when you commit a crime
against the individual several times and the maximum penalty,
assuming, for each crime, is 2 years. So there are 5 informations.
So, there is a joint trial – all 5 cases are consolidated. After trial, the
accused is found guilty beyond reasonable doubt on all 5 charges.
Therefore, the court sentenced the accused to 2 years imprisonment
for every crime. Total maximum is 10 years. Now, he applies for
probation.

Q: Is he entitled?
A: The accused is entitled. You look at the individual crimes, not the
totality. The sum of the multiple terms imposed against an applicant
should not be determined of his eligibility or his disqualification from
probation. The multiple prison terms are distinct from each other, and
if none of the terms exceeds the limit set out in the Probation Law,
that is, not more than 6 years, then he is entitled to probation.

What is important is that the penalty for each crime does not
exceed 6 years, unless he is specifically disqualified by other laws.
The number of offenses is immaterial. As long as all the penalties
imposed taken separately are within the probationable period… for
Section 4 uses the term “maximum” not “total”. The law does not
intend to sum up the penalties imposed, but to take each penalty
separately and distinctly.

Q: When a crime is punishable by 6 years and 1 day, that is an

afflictive penalty. The crime is already grave. But 6 years down, the
crime is less grave. Why did the law make the years the cut-off?
A: The purpose of the law is to exclude grave felonies. It is nit the
intention of the law to exclude less grave. Therefore, if you commit 2
or more less grave felonies, you do not say five less grave equals
grave. No. There is no such thing. Even if you are convicted 100 times
of that offense, the penalty is still for less grave. You do not consider
the total.

One thing to remember is that when you are under probation,

you will be under the supervision of a probation officer. There are
conditions to be imposed under Section 10.

Now, if you pass the period of probation, no problem. You will be

disbarred. If you will not pass or if you violated the conditions, you
will be arrested, then summary hearing to determine or to prove that
there was violations. And then the probation is lifted. You will not
serve imprisonment.
 Suppose you pass. The court, according to Section 16, will now
order your final discharge and the final discharge of the prabationer
shall operate to restore to him all civil rights lost or suspended, as a
result of his conviction, and to fully discharge his liability for any fine
imposed as to the offense for which the probation was granted.

Meaning, of you are sentenced to pay a fine with subsidiary

imprisonment and you apples for probation, the probation will erase
the payment of the fine forever. Try to compare that with the
subsidiary penalty under Article 39, which provides that the service of
the subsidiary imprisonment will not relieve you from paying the fine
in the future if you become solvent. In probation, payment of the fine
is discharged.

Q: What happens to the civil liability? Will probation extinguish the

civil liability?
A: No, the civil liability is distinct and separate from the criminal.
Section 16 only discharges the accused from payment of the fine.
There is no mention of civil liability. It will still have to be paid to the
offended party.

Q: How do you distinguish parole from probation?

A:
PAROLE
Under the Indeterminate Law
You have to serve first your
sentence. You must reach the
minimum before getting a
parole.
The Board of Pardon and Parole
of the Bureau of Prisons grants
PROBATION
Under the Probation Law
You do not have to serve anything.
The sentence is suspended from
the very start.
The trial court which convicted the
accused grants the probation.
the parole.
The parole system is The system of prabation is
administered by the Bureau of administered by the Probation
Prisons. Administration.

These are different concepts, although they are considered as

modes of partially extinguishing the criminal liability even though it is
not mentioned here.