CRIMINAL LAW

REVIEWER
VOLUME I
JUDGE MARLO BERMEJO CAMPANILLA
Presiding t'udge
Metropolitan Tria l Court, Branch 83
¹r t h C a l oocan City
AUTHOR:
The Revised Penal Code, Book One, 2007 Edition; Special Penal Laws, Volumes
One to Four; A Handbook on Penalties, 2015 Edition; Dangerous Drugs Law
with Annotation, 2017 Edition; Penal System under the Revised Penal Code
as amended by RA No. 10951, 2018 Edition; BP Blg. 22 and Estafa through
Issuance of Bouncing Check, 2018 Edition; Special Penal Laws 2019 Edition and
Politics, Governance and Philippine Constitution.
REVIEWER, LECTURER, and PROFESSOR (past and present):
Villasis Law Center; Legal Edge Review Center, University of Cebu Law Cenit:er,
Academicus Law Center, Magnificus Jurist Review, CPRS Bar Review Cenit;er;
Power House Review Center; IBP, National Office; Chan Robles Professicrnal
Review Inc.; Internet Bar Reviewer on Criminal Law; Suprema Legis Reviews;
Isecure-Philjust Law & B a r R eview Center; Lex Review Center; Sed I.ex
Provider, Inc., and Center for Global Best Practices, UP Law Center.
University of Santo Tomas; University of Asia and the Pacific; University of
Cebu — School of Law; De la Salle University; Arellano University; University
of Negros — Recoletos; Manuel L. Quezon University; Lyceum University;
S an Sebas'tian College-Recoletos; University o f t h e E a st ; U n i versity of
Manila; Philippine Christian University; New Era University; Bulacan State
University; University of San Carlos; Saint Louis University; University of
the Cordilleras; Xavier Univer~ityO. Qteneo de Cagayan; UST, Legazpi C'ity;
University of Northern PhiliIIrpifie @4niversity of Nueva Caceres; Ateneo De
Naga City University; Jose Rizal Memorial State University; University of
San Jose-Recoletos, Cebu City; University of Iloilo, Iloilo City; University of
Bohol; University of Mindanao; Mindanao State University; Western Mindanao
State University; Northeastern College, Santiago City, Isabela; Tarlac State
University; Notre Dame University; DVOREF; Cagayan State University; B'icol
College, Daraga, Albay; St. Mary's University, Bayombong, Nueva Vizcaya;
Pamantasan ng Lungsod ng Maynila; University of Visayas; University of the
Philippines.

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 Philippine Copyright 2019, 2020
by

TO
MY FAMILY

N o portion of ' t h i s b oo k m a y b e c o p ie d o r (Sarah Nelivie, Tristan Mhar, and Sean Marco)

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 FOREWORD
Laws are never petrified. They are dynamic and they do change
from time to time in accordance with the needs of the society. This
state of fiux is compounded by the ever-moving interpretation of laws
by the Highest Tribunal and the constant amendment introduced by
our lawmakers to existing statutes.
Over the y ears, few a u t h or s d a red t o c r af t a c o m pendium
o n the subject m a t t ers concerning cr i m i nal l a w c o nsidering t h e
vast expanse it covers and th e complexity of it s n u ances. This is
quite unfortunate for cr i m i nal l a w i s t h e u l t i m at e pl atform tlhat
governments utilize to bring about peace, order, and security in the
land. The book Criminal Law Reviewer, Volume One by Judge Marlo
Bermejo Campanilla is a welcome respite to the meager material we
have on criminal law and jurisprudence.

Judge Marlo has come a long way from being a typical lawyer to
becoming a legal luminary in the field of criminal law. His expertise
earned him th e di stinction of becoming a member of t hat s.ugust
body tasked t o i n t r o duce amendments an d r e visions on cu r r ent
criminal laws and procedure by the Supreme Court. Hi s i n -depth
knowledge and understanding about criminal law and jurisprudence
puts him in the ranks of the UP Law Center Panel of Experts that
were assigned to give suggested answers to the Bar Examinations
of present and that ofthe previous years. His carefully contrived
lectures on criminal law enamored and gained him the respects of
bar reviewees nationwide.
Like a skillful arti st, Judge Marlo went through the labyrinth
of old doctrines and new principles, the difficult or doubtful questions
of law and the recently promulgated Supreme Court decisions with
an incisive analysis presented in a plain and simple manner which
makes his book easy to read, understand and retained in our already
cluttered memory.
Indeed, no law student, bar r eviewer, lawyer, prosecutor, or
even members of the Bench can do without it . I t i s a n i n v a luable
work of art.

ATTY. PEARLITO B. CAMPANILLA

2nd Flr. Overland. Bldg. 245 Banawe, QC
Tel. 4159492

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 ABOUT THE AUTHOR

Judge Marlo Campanilla is an accomplished author, lecturer,

and reviewer in criminal law and special penal laws. He is now one
of the most sought-after regular and pre-week Bar reviewer at the
University of the Philippines Law Center in Di l i m an, Quezon City,
University of Santo Tomas, and Arellano University. He is also a
regular r eviewer a t t h e V i l l a sis La w C e n t er, M a g ni6cus, Jur i st
Review, Legal Edge Review Center, and Academicus Review Center.
His authorship of twelve books in criminal law, special p enial
laws, and the Constitution stands as a testament to his dedication
in the st udy of t h e l a w a n d h i s d evotion t o g iv e bar r e v iewees,
practitioners, and students of law an insightful reading companion.
His simple and enlightened discourse on complicated criminal
l aw provisions, principles, and cases earned hi m p r a i ses for i t s
c larity, i n ci sive d i ssection, an d m a s t erful d i s p lay o f l o gi c a n d
common sense.
T he A u t ho r t a c k le s t h e l a w s , r u l i n gs , a n d p r i n c i ples i n
a ccordance with t h e 2 0 2 0 S u p r eme Cour t s y l l abus for t h e B a r
E xaminations on C r i m i na l L a w . Fo r t h i s , h e i n corporates in i t s
discussion the evolution of the leading legal principles in criminal
and specialpenal laws, as cited in actual cases from 1901 to 2019,
ten special penallaws recently included in the coverage of
the Bar Exam such as the Data Privacy Law and Safe Space
Act and all Bar Examination Questions dating from 1946 to 2019.
I n t h i s l a t est e d i t i on, J u dg e C a m panill a " r a i ses th e b a r "
of knowledge i n c r i m i na l l a w s b y h i s s i g n a t ur e a l l i m p o r t;ant
discussions, interpretations and comparative analyses. The book is
a surefire guide to understanding one of the most difficult subjects
in the Bar Examinations.

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 CONTENTS

REVISED PENAL CODE

BOOK ONE AND RELATED LAWS

I . FUNDA M E N T A L P R I N C I P L E S

DEFINITION OF CRIMINAL LAW

C ONSTR U C T ION OF PENAL LAWS .
1. P r oR e o
2. Sp a n i sh Text
' 3. Title and Body of Penal Provision
4. Te c h n i cal Meaning of a Word

APPLICATION OF THE REVISED PENAL CODE..... 3

Express Provision
4
Supplementary Application
1. Su f fi c i ency of the Law
2. D e fi c i ency of the Law
3. P r o h i b i t ion on Applying the Code
TWO PENAL SYSTEMS. 6
Spanish Penal System.. 8
American Penal System 9
Definitional Provision 11
Special Penal Rule for Crimes Involving
Dangerous Drugs. 12
Stages ofa Crime 13
Nature of Participation . 14

MALA IN SE AN D M AL A P R O H I B I T A . . ..................... 16
Classification of crime as malum in se or malum
prohibitum. 16
1. In t e n t i o nal felony
2. Off e n se under special law
Partakes the Character of Malum Prohibitum........ 20
CHARA C T E R ISTIC OF CRIMINAL LAW..... 20

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 GENERALITY 21 Prospective Effect of R.A. No. 10951. 40
Foreigner 21 Retroactive Effect of R.A. No. 10951 40
Military Offender. 21 Remedies to Avail the Lesser Penalty Under
Territoriality and Generality. 21 R.A. No. 10951 42
Exceptions to the Generality Principle ........... 22 Incremental Penalty 43
1. Pr i n c i p les of International Law Jurisdictional Effect of R.A. No. 10951 ................... 44
2. L a w s of Preferential Application Penalty for Fencing. 45
3. Ca s e L aw
C ONSTITUTIONAL LIMITATIONS ON POW E R
TERRITORIAL PRINCIPLE.. 24 OF CONGR ESS TO ENACT PENAL LAWS ..... 46
Criminal Effects . 24 Equal Protection Clause 46
Embassy 24 Due Process Clause 46
Territorial Waters ....... 25 Non-imposition of Cruel and Unusual Penalty
1. Fr e n c h Rule 25 or Excessive Fine 46
2. E n g l i s h Rule 25 Bill of Attainder 47
3. Co n v e n t ion of the Law of the Sea ... 26 Ex Post Facto Law 47
Spratly Islands and Regime of Islands ............ 26
200 miles exclusive economic zone. II. FELONIES
27
Foreign Country . 28 ELEM EN T OF AN INTENTIONAL FELONY ......
.............. 48
Extraterritoriality Principle 28 Criminal Act 48
1. Fl a g S t ate Rule Mode of Commission 49
2. For g e r y Criminal Intent ..................... . 49
3. Fun c t i o n -related Crime 1. S p e ci fic Criminal Int ent
4. N at i o n a l Security 2. Ge n e r a l Cr i m i nal Int ent
5. U ni v e r sal Crim e Consummation of Crime 50
Special Laws ....................................
. . . . . . . . . . . . . . . . . .

31 Offender 51
1. Tr a f fi c k ing in Persons Felony and Offense.. 52
2. Ter r o r i s m Voluntariness.. 52
3. Fi n a n cing of Terrorism General Element 53
PROSPKCTIVITY 1. Cu l p a
32 2 . D ol o
R KTROACT I V I T Y 32 Mistake of Fact. 58
Favorable Law and Non-habitual Delinquency..... 33 1. N e g ating Specific Element
1. D e c r i m i n a l ization 2. N eg a t i n g Dolo
2. Exp r e ss Provision Motive 61
Effects ofRepeal 35 1. M ot i v e and Criminal Int ent
1. A b s o l ut e Repeal 2. P r oof of Motive Is Required
2. P ar t i a l Repeal 3. P roof of Motive IsNot Required
3. A bs o l ut e Repeal and Partial Repeal 4. Pr e s e nce of Motive Indicates Criminal Intent
4. G e n e r al Repeal 5. L a c k of M ot ive Is Not Indicative of Innocence
Effects of Amendment................................, 39
. . . . . . . .

CLASSIFICATION OF FELONIES 63
AMEND A T OR Y E F F E C T O F R .A. NO. 10951 TO ELEMENTS OF CRIMINAL LIABILITY .... 65
THE REVISED PENAL CODE. 39 Intentional Felony. 65
Times 200/100 Formula 39 1. Su i c i d e

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 2. Pr a c t i c ing Medicine Without License Stages ofa Crime 95
3. Car n a p p i n g Attempted and Frustrated Stages. 95
Error In Personae 66 l. A ct s o f Execution
AberratioIctus. 66 2. N on - c ommission of the Crime
1. Th e 4 - 12-365 Rule 8. Ex t e r n a l Cause of the Non-commission
2. I n te n t t o Ki l l of the Crime
3. Co m p o und Crime and Aberratio Ictus Frustrated and Consummated Felony ... ........................ 99
Praeter Intentionem. 70 Belief. ll00
1. T h e4 - 12-365 Rule Arson. 101
2. A c t o f an Accessory l. A t te m p t ed Arson
3. Ph y s i cal Injuri es 2. F r u s t r a t ed Arson
4. U nj u s t V exation 3. Co n s u m m ated Arson
5. F e l o n y Producing Fear Stages of Rape li02
6. Co n c l u sive presumption of intent to kill 1. Co n s u m m ated Rape
Error In Personae and Aberratio Ictus ....................... 75 2. A c t s of Lasciviousness
Effects on the Penalty . 75 8. A t t e m p t ed Rape
Evident Premeditation .. 77 4. A t t e m p t ed Rape Through Sexual Assault
Treachery. 77 Stages ofTheft or robbery 104
Conspiracy and Article 4. 77 1. Co n s t r u ct ive Possession
Proximate Cause 78 2. A s p o r t a t i on
Efficient Intervening Cause. 78 8. A bi l i t y t o Freely Dispose the Property
Efficient cause 80 Stages of Theft and Estafa. 107
I MPOSSIBLE C R I M E . Direct Bribery and Stages of Corruption of
80
First requisite: Crimes Against Person or Property........ Public Officer. 1.07
81
S econd Requisite: Evil Intent . 1. Co r r u p t ion of Public Official
82
Third requisite: Factual and Legal Impossibility............ 2. D i r e c t B r i b ery
83
l. I mp o s s ible Light Crim e Stages of Coercion. 109
2. Im possible crime and Attempted or Formal Crime 110
Frustrated Felony 1. Ph y s i cal Inju ri es
8. Fr u s t r a ted impossible crime 2. A c t s of Lasciviousness
4. Co n s p i r acy 3. Co u p d' etat
5. I mp o s sibility to commit a non-elemental act 4. Cu l p a ble Felony
Fourth requisite: Not Constitutive of Another Crime..... 88 C ONSPIRACY AND PRO P O S A L
1. S e r i o u s Physical Injuries
Proposal as a crime
2. A c t s of Lasciviousness 1. D e c i s ion and proposal
3. D i s c h a rge of Firearm
2. P enalty forproposal to commit a crime
4. T r e s p ass to Dwelling
8. No c o n spiracy
5. A t t e m p t ed Robbery
Conspiracy as a Crime 112
6. Di s p e n sable Requisite
1. A gr e e m ent and decision
S TAGES OF EXECUTION . 91 2. Pe n a l t y for conspiracy to commit a crime
Criminal Intent 92 3. N on - c ommission of the crime agreed upon
Preparatory Act 92 Conspiracy as a Means of Incurring Collective Criminal
Attempt to Commit an Indeterminate Offense................ 98 Liability

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 1. A c t i n F u r t h e r ance of Conspiracy 2. Robbery
2. M as t e r m i n d Stages
Detaching from Conspiracy . 116 4. Accomplice and Accessories
1. B e f o r e the Commission of the Crime 5. Recidivism and Habitual Delinquency
2. Th e C o m m ission of the Crime Is in Progress
DELITO CONTINUADO . 131
3. A ft e r t h e Commission of the Crime
Complex Crime and Delito Continuado ........................... 1'32
Culpable felony and conspiracy. 117
S ingle Criminal Impulse or Intent ..... . . . . . 1'32
Imputability Doctrine. 118 1',33
Single Penal Provision
1. M al v e r sation
Single Larceny Rule 133
2. Ra p e T h r ough Sexual Intercourse 1,'33
Crimes Committed Against Several Victims ...................
3. V i o l a t ion of B.P. Blg. 22
1. Cr i m i n a l I m p u lse to Satisfy Lust
4. V i o l e nce Against Women
2. Cr i m i n a l I m p u lse to Deprive Liberty
5. Co r r u p t i on
3. Cr i m i n a l I m p u lse to Steal or Rob
6. Pl u n d e r
4. Cr i m i n a l I m p u lse to Kill
Exceptions to the Imputability Principle ......................... 120 5. Cr i m i n a l I m p u lse to Defraud
1. Pa r r i c i d e
6. Cr i m i n a l I m p u lse to Defame
2. Qualified Theft
Crimes Committed Against a Single Victim .................... 139
Adoption of Criminal Intention . 120 1'. Criminal Impulse to Satisfy Lust
Commission of Other Crime 121 2. Cr i m i n a l I m p u lse to Inflict Violence
1. K i l l i n g of a Third Person
3. Cr i m i n a l I m p u lse to Have Sex with Paramour
2. Co m m i t t i n g Homicide or Rape in the Course
Foreknowledge Principle 140
of Robbery by Band
Delito Continuado Offense Under Special Law ............... 141
3. Co m m i t t i n g Homicide or Rape in the Course 142
Continuing Crime and Delito Continuado .......................
of Robbery
Multiple Conspiracies 123 SPECIAL COMP LEX CRIME . 143
MULTIPLE OFFENSES. 124 ORIGINAL DESIGN 144
1. Cr i m e s Committed 1. O r i g inal Design Is to Kill
2. Pe r i o d of Time 2. Or i g i n a l Design Is to Rob
3. Nu m b e r of Crimes Committed 3. Or i g i n a l Design Is to Rape
4. Eff e cts in Relation to the Penalty Rape with Homicide. 1.46
Recidivism. 125 1. R a p i n g a Dying Victim
Reiteracion. 126 2. H om i c i d e
1. P r e v i o u sly Punished 3. B y R e a son or on the Occasion of Rape
2. Pr e v i ous Crime and Present Crime 4. Su i c i d e
3. Re c i d i v ism and Reiteracion Robbery with Homicide 148
Quasi-recidivism. 127 1. Re s u l t i n g Death
1. Pr e v i ous Crime and Present Crime 2. Ti m e of K i l l i n g
2. A ft e r F i n a l ity of Decision 3. V i c t i m of Homicide
8. B e f ore Serving Sentence 4. H o m i cide
4. Wh i l e Serving Sentence 5. O th e r C r i m e s
5. Re c i d i v ism and Quasi-recidivism DIRECT CONN E C T ION . 153
Habitual Delinquency . 129 Direct Connection Between Robbery and Homicide.... 153
1. Se r i o us and Less Serious Physical Injuries 1. Co n c epcion case

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 2. J ar a n i l l a case
2. A b d u c t ion with L ewd Design
8. Quemeggen case 8. I n t e n t t o Deprive Liberty
QualifiedCarnapping. 156 184
Aggravating or Qualifying Circumstance ................
Attempted Robbery with Homicide 157 Incidental to the Commission of Principal Crime ... 185
Arson and Homicide 158 Offenses Under Special Laws and Doctrine
1. I n t e n t t o Ki l l of Absorption. 1.86
2. I n t e n t t o Bur n Identical Crimes . 186
3. I n t e n t t o Conceal 1. V ar i a n ce Rule and Double Jeopardy
Kidnapping with Homicide 160 2. Spl i t t i n g the Special Complex Crime
Consummated Components ............... 162 or Complex Crime
8. Su b s t i t ution of Information
C OM P L E X CRIM E . 164
SPECIAL COMP LEX CRIME, COMPLEX CRIME
COM P O U N D CR IME .. 164 189
AND DOCTRINE OF ABSORPTION .....
.....................
Multiple Murders 165 Kidnapping and Other Crimes ........................................ 189
Direct Assault with Homicide or Physical Injuries ... 165 Robbery and Other Crimes ....................... 190
Single Act of Pressing the Trigger 166 1. Separate Crimes ofRobbery and
Complex Crime of Robbery by Means of Violence Attempted Rape
and Intimidation and Robbery by Using 2. Ph y s i cal Injur ies as a Necessary Means to
Force upon Things 166 Commit Attempted Robbery
1. Wi t h o u t U s ing Force upon Things 8. Ph y s i cal Inju r ies as an Indispensable Means
2. Ro b b ery with H omicide of Taking the Property
Modifying circumstance . 168 Rape and Other Crimes 191
Several Killings 169 1. S T D I n f e ction
1. Si n g l e Cri m i nal Im pulse 2. I n fl i c t i on of Injuries as an Indispensable
2. Si n g l e Cri m i nal Purpose Means to Sexually Penetrate the Victim
3. Si m u l t a n eous Acts of Raping and Choking
C OM P LEX CRIME PROP E R . 171 4. I n j u r i e s on the Genital Organ
Seduction Through Usurpation of Function ....... 172 5. J u m p i n g from the Building
Falsification, Malversation, Estafa, and Theft ... 172 6. In j u r i e s Inflicted After the Consummation
1. Co m p l ex crime of Rape
2. Se p a r ate crimes
FELONY AND OFFENSE UNDER SPECIAL LAW......
.... 194
3. Co m m on element doctrine
I. Pr o s e cution for Both Felony and Offense................ 194
SPECIAL COMPLEX CRIME AND COM P L EX CRIME .. 175 1. V i o l a t ion of B.P. Blg. 22 and Estafa
D O C T R IN E OF AB S O R P T I O N 176 2. I l l e g a l Recruitment, Trafficking in Person
Element of a Crim e . . . ... .................................................. and Estafa
177
Treason and Other Crimes ............................... 8. V i o l a t ion of R.A. No. 8019 and Felonies
. .
178
Rebellion and Other Crimes . 4. T or t u r e , Mal treatment, and Physical Injuries
. ....... .. . . ... .
. . . 178
Coup d' etat and Other Crimes. 5. C y b ercrime
...... . . , . ... . 179
6. M o n ey Laundering
. . . . . . . . . . .

Sedition and Other Crimes . ........ . . . . .....

. . . . . 180
Robbery and Kidnapping 7. I l l e g a l Fishing
..... . . . . . 18 0
Abduction and Multi ple Rapes ........................
. 18 1 II, Pr o s ecution for Felony or Offense............................ 197
1. P r i n c i pal Objective Is to Rape 1. P r o s ecution for Sexual Abuse or Rape
2. Ph y s i cal Inju r ies and Child Abuse

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 i
8. P o s s ession of Explosive or a Felony O BEDIENCE TO A LAWFUL ORD E R . 219
Order Issued by a Superior Officer. 21.9
4. T er r o r i sm and Its Predicate Crimes
Lawful Order 219
5. Pl u n d e r and Malversation
Lawful Means 221
6. Pi r a c y U n der P.D. No. 582,or Piracy Under RPC
7. V i o l a t i on of R.A. No. 6713, or felony or offense E XEM PT ING CIRCUM S T A N C E 221
III. P r o secution for Felony Alone Imbecility 222
200 Insanity 223
IV. P r o secution for an Offense Under Special 1. Te s t s of insanity
Law Alone 201 2. Ti m e of insanity
1. H i g h w a y Robbery/Brigandage Accident 226
2. Car n a p p ing and Cattle Rustling Lawful act . 226
8. Fe n c i n g Without culpa . 227
4. Ob s t r u c t ion of Justice Irresistible Force and Uncontrollable Fear...................... 227
Lawful and Insuperable Cause 229
III. CIRCUMSTANCES AFFECTING Exempting Circumstance of Minority .............................. 280
CRIMINAL LIABILITY R.A. No. 9844 280
Child in Conflict with the Law 280
JUSTIFYING CIRCUM S T A N CE .. 205 A ge of Criminal Ir responsibility . 230
SELF-DEFENSE, DEFENSE OF RELATIVE, AND
Determination of Age 281
DEFENSE OF STRANGER. 205 Exemption from Criminal Liability 232
Kinds of Aggression. 206 1. B u r d e n of Proof
1. A gg r e ssion Must Be Unlawful
2. Di s c e r n ment
2. A gg r e ssion Must Be Non-mutual
Treatment of Child Below Age of Responsibility............. 235
3. Ce a s ed Aggression
Specific Exempting Circumstance of Minority ................ 235
4. D e f e n se of Property
1. St a t u s Offenses
5. M i s t a k e of Fact
2. Pr o s t i t u t i on, Mendicancy and Sniffing Rugby
Reasonable and Necessary Means. 213 Criminal Exemption of Trafficked Victim........................
Lack of Sufficient Provocation 214
MITIGATING CIRCUMSTANCES 288
BATTERED W O M A N SYN D R O M E . 214 Incomplete Justification or Exemption ..... 238
1. Cu m u l a t ive Abuse
Minority 289
2. Ph y s i cal Har m
Seniority . 240
8. Ph y s i cal and Psychological or
Praeter Intentionem. 242
Emotional Distress
Threat 244
AVOIDANCE OF GREATER EVIL OR IN JURY.... 216 Provocation . 244
1. Th r e a t t o Commit Suicide Vindication. 245
2. L a w f u l Act Is Not an Evil Passion 245
3. E ut h a n a sia 1. So u r c e of Mitigation
4. Abo r t ion 2. I n t e r v a l of Time
5. Sa v i n g Hi s Own Lif e Voluntary Surrender 249
PERFORMANCE OF DUTY Voluntary Confession 250
217 1. Pl e a t o a Lesser Offense
EXERCISE OF RIGHT 219 2. Co n f e ssion on Appeal

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 Physical Defect 252 SPECIAL AGGRAV A T ING CIRCUM S T A N C E S......
.......... 2'70
Analogous or Similar M i t i gating Circumstances ...... 252 Complex Crime 2'70
Extreme Poverty. 253 O rganized/Syndicated Crime Group .... ............................ 2'7l
Error in Personae Is Not a Mitigating Circumstance 253 Taking Advantage of Public Position ............................... 2'72
Analogous to Minority or Seniority 254 Uninhabited Place (Despoblado) 2'73
Analogous to Vindication 254 1. T o F a c i l i t ate the Commission of the Crime
Analogous to Passion. 254 2. T o A f f or d Im puni t y
Analogous to Voluntary Surrender 254 Band (Cuadrilla) .
Analogous to Voluntary Confession . 255 l. A r me d
Analogous to Mental Illness ....................................... 255 2. Fo u r A r m e d Men
No Analogous Aggravating and Alternative 3. Pr i n c i pal by Direct Participation
Circumstance 256 QUALIFYING AGGRA V A T ING CIRCUM S T A N C ES ...., 2',75
A GGRA V A T ING CIRCUM S T A N C E S 257 Aid of Armed Men 2,"76
O RDINARY AGGR A V A T ING CIRCUM S T A N C ES .....
... Aid of Persons Who Insure or Afford Impunity ............. 277
257 Dxsguxse 277
Contempt of or Insult to Public Authorities ................. 257 Calamity or Misfortune 2,"78
Place of Commission.............................................. 258
. . . . . .

Using Artifice Involving Great Waste and Ruin............ 2,"?8

1. C h urch, mosque and Malacanang Palace
Great Waste and Ruin. 2,"79
2. Pr e s i d ent 2'79
By Means of Fire
3. Pl a c es where public authorities are
By Means of Explosives. 280
engaged in discharge oftheir duties Treachery 280
4. P e r s on in authorities
1. Cr i m e s Against Person
Disregard of Rank 259 2. R e q u i s i t es
1. I n t e n t t o In sult
3. Co n t i n u ous and Non-Continuous Attacks
2. D i r e c t Assault 4. Tr e a c h ery and Nightt i m e
3. Co n t e mpt of Public Authority, Disregard Employment of Means to Weaken the Defense ............. 283
of Rank, and Place of Commission Abuse of Superior Strength 283
Disregard of Sex 261 Consideration of Price, Reward or Promise ...........,....... 284
Disregard of Age 262 Evident Premeditation. 285
Disregard of Dwelling 263 1 . E vi d e n t
1. Sa n c t i t y of Privacy 2. O b j e c t of Premeditation
2. Dw e l l i n g 3. Co n s p i r acy and Evident Premeditation
3. L i v i n g i n the Same Dwelling 4. I nh e r en t Circumstance
4. Pr o v o cation Ignominy 288
Nighttime 267 Cruelty 290
1. Ni g h t t i m e per se 1. I n te n t t o Prolong the Physical Suffering
2. D ar k n e ss and Silent of the Night 2. N u m b e r of Wound
Craft or Fraud 268 3. Cr u e l t y and Ignominy
1. T o F a c i l i t ate the Commission of Crime 4. Cr u e l t y and Treachery
2. To A f f or d I m punit y Abuse of Confidence and Obvious Ungratefulness....... 291
Aid of Minor . 269 U nlawful Entr y . 292
Motor Vehicle 269 Breaking Door or Window. 293
1. D we l l i n g

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 2. E nt r y
3. Tr e s p assing 2. Su r p r i sed in the Act of Sexual Intercourse
Use of Loose Firearms Under R.A. No. 10591 ........... 294 3. I n t h e Act or Im mediately Thereafter
1. A b s o r p t i on 4. Pr o m o t ion of Prostitution or Consent to Infidelity
2. Sp e c ial Aggravating Circumstance 5. E ff e c t
8. Qualifying Circumstance 6. Dea t h U n der Exceptional Circumstance
4. Ex tr a o r d i nary Circumstance Is Not a Crime
Use of Explosives. Instigation and Entrapment . 817
297
P.D. No. 1866 as Amended by R.A. No. 9516............. l. Ent ra p ment
297
U nder the Influence of Dangerous Drugs .................. 2. Instigation
297
Comprehensive Dangerous Drugs Act of 2002 .......... 297
R.A. No. 9165 IV. PERSONS CRIMINALLY LIABLE
297
Torture AND DEG REE OF PARTICIPATION
298
Using Information or Communication Technology ... 2,98 KINDS OF CONSPIRACY 820
R.A. No. 10175. 298 Express Conspiracy 820
ALTERNATIVE CIRCUMSTANCES . Implied Conspiracy 820
299
Relationship. 1. Si m u l t a neous Attacks
299
1. Re l a t i o nship by Affinity 2. No n - a r ming
2. Co m m o n -Law Relationship COM M U N ITY OF DESIGN . 821
3. A d o p t i v e Relationship Conspirators and Accomplice. 821
4. Cr i m e A g ainst Person Concurrence After the Conspirators Decided to
5. Cr i m e A g ainst Property Commit a Crime 822
6. Cr i m e A g ainst Chastity . Concurrence While the Crime Is in Progress ........ 822
7. Ot h e r C oncept of Relationship Non-concurrence 824
Intoxication. 302
Lack of Instruction and Education. PRINCIPAL BY DIRECT PARTICIPATION .... 825
303 Chief Actor. 825
APPRECIATION OF CIRCUM S T A N C ES ... 304 Conspirator 826
Inherent Circumstance 304 l. A ct i v e Participation
Personal Circumstance 305 2. M or a l A s sistance
Non-personal Circumstance 805 3. M or a l A scendency
ABSOLUTORY CAUSE 807 P RINCIPAL BY INDUCEM E N T 827
Relationship in Theft, Malicious Mischief, Directly Forcing Another 827
and Swindling 807 Directly Inducing Another 827
1. P e r s o nal Circumstance 1. Co n s i d eration
2. Sp o u s e 2. W o r d o f Command
8. St e p - r elationship
PRINCIPAL BY INDISPENSABLE COO P E R A T ION .....
. 830
4. I n - l a w s Relationship
Conspiracy 830
5. B r o t h e r and Sister
Community of Design. 831
6. Th e f t , M a l i cious Mischief, and Swindling
Death or Physical Injuries Under Exceptional ACCOMPLICE 831
Circumstance Conspiracy . 881
310
1. L eg i t i m at e Spouse Community of Design. 882
1. I n C a s e of Doubt

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 2. Lack of Knowledge Light Felonies Committed by Accessory ............. 357
Community of Design and Participation Exempting Circumstance of Relationship in
4. Extent of Participation Favor of an Accessory. 357
5. Time of Participation Preventing Testimony or Report 359
ACCESSORY. Delaying Criminal Prosecution . 359
. . . . . . . .

338 Using False Evidence.

Commission of Crime by Principal. 360
338 Obstruction of Prosecution for Consideration.....
Independent Responsibility Principle ....................... 360
339 Threatening a Witness.
Knowledge of the Commission of the Crime ............. 360
340 False Information.
Neither a Principal nor an Accomplice ..................... 361
340
Subsequent Participation 340
1. Wi t h C o nspiracy V. PENALTIES
2. Wi t h o u t Conspiracy G ENERAL PRINCIPLES ON PENALTIES ....
................... 362
Nature of Participation 341 P rospectivity and Retroactivity . 362
1. Pro f iting Measures of Prevention or Safety. 362
2. Pr e v e n t ing the Discovery of the Crime Prohibition of the Imposition of Death Penalty............... 363
3. A ss i s t ing the Principal to Escape
R.A. No. 9346. 368
FENCIN G U N D E R P .D . NO . 1612 Purpose of Penalties ...................................... 363
343
Robbery or Theft. 344 Classification of Penalties. 363
Knew or Should Have Known 846 1. Cl a s s i fication of Penalties in General
Presumption of Fencing. 348 2. Cl a s si fication of Fine
Fencing of the Second Form. 350 3. Cl a s sification of Felony
1. B u y i n g Pr operties from Unlicensed Dealer 4. Gr a d u a t ed Scales of Penalty
or Supplier 5. Sc a l e of Penalties According to Their Severity
2. Se l l i n g Properties to the General Public Purpose of Classification of Felony and Penalty ............. 368
3. Wi t h o u t C l earance
D URATION AND EFFECTS OF PENALTIES.....
.............. 369
Accessory and Fencer '. . . . . . .

351 Reclusion Perpetua.

. . . . . . . . . . . . . . .

1. N at u r e of the Crime 369

Duration of Other Penalties 371
2. Su b j ect of Crime
Computation of Penalties. 372
3. Cr i m i n a l A ct
P reventive Imprisonment . 372
4. Pr e s u m p t i on . . . . . .

5. Pe n alty 1. Cr e d i t of Preventive Imprisonment

2. Cr e d i t for Reclusion Perpetua
6. Cr i m i n a l Exemption
3. C redit forDestierro
O BS T R U C T I O N O F JU S T I C E . 352 4. Cr e d i t for Drug Rehabilitation
P.D. No. 1829. 5. I m me d i ate Release
352
Suppression of Evidence 353 Time Allowance 374
1. Ob j e c t of Destruction or Concealment 1. Go o d Conduct Time Allowance (GCTA)
2. In t e n t i o n 2. T ime Allowance forStudy, Teaching, and
3. Nei t h e r Pr i n cipal nor Accomplice Mentoring (TASTM)
Assisting Criminal to Escape 355 Special Time Allowance for Loyalty (STAL)
1. S u s p i cion Retroactivityof R.A. No. 10592
2. E s c a p ee Premature release
3. Cr i m e C ommi tted by Escapee Heinous crime

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 EFFECTS OF THE PENALTIES ACCORD ING INDETERM IN ATE SENTE NCE AND PAROLE LAW ..... 408
TO THEIR RESPECTIVE NATURE ............... 378 Coverage of the Indeterminate Sentence Law................. 409
Disqualification 378 Penalty for Felony 411
1. P l e b i s cite
1. Re c l u sion Temporal
2. Cl a s si fication of Disqualification
2. Pr i s i o n M ayor
Suspension 380
3. Pr i s i o n Correccional
Civil Interdiction 380
4. A r r e s t o Mayor
Bond 380
5. Co m p l ex Penalty
Effect of Pardon 381
Penalty for Offense Under Special Law ........................... 419
Costs.. 382
First Rule 420
Order of Payment. 382
Forfeiture and Confiscation. Second Rule 421
382
Straight or Indeterminate Penalty 422
A PP L IC A T ION OF PE N A L T I E S . 383 Mandatory Application 423
1. D e g r e e and Period Condition of Parole. 424
2. P r e s c r ibed Penalty in Period and Proper
Imposable Period SERVICE OF SENTENCES. 424
3. M ax i m u m P enalty and Mini mum Penalty Simultaneous Service of Multiple Penalties .............. 425
4. C o m p ound Penalty and Complex Penalty Successive Service of Multiple Penalties .................., 425
5. I n d i v i s i ble Penalty and Divisible Penalty Scale of Penalties in Accordanc w i t h I t s Severity ... 425
Three-fold Rule 426
GRADU A T ION OF PENALTY 390 l. 40- y e ar L i m i t a t ion Rule
Rules for Graduating Penalties 391 2. M ax i m u m P enalty
Graduating Death Penalty by One Degree Lower..... 394 3. P e n a l t i es Imposed in Different Cases
Graduating Reclusion Perpetua by One 4. T h r e e -Fold Rule in Connection with
Degree Higher. 395 Service of Sentences
IMPOSITION OF INDIVISIBLE PENALTIES ..... 395 SUBSIDIARY IMPRISONMENT 428
Single Indivisible Penalty. 396 1. Fi n e O n l y
Two Indivisible Penalties.............................
. . . . . . 396 2. Fi n e an d I m p r isonment
1. A gg r a v a t ing Circumstance 3. Fi n e w i t h Subsidiary Imprisonment
2. Sp e c ial M i t i gating Circumstance 4. Su b s i d i ary Destierro
3. E l i g i b i l it y for Parole 5. M an d a t ory Payment of Fine
IMPOSITION OF DIVISIBLE PENALTIES....................... 399 COM M U N ITY SERVICE. 431
Graduation of Penalty. 399
Proper Imposable Period. EXECUTION AND SERVICE. 432
399
1. A pp l i c a tion for Divisible Penalty PROBATION (P.D. No. 968) 432
2. Sp e c ial M i t i gating Circumstance Definition of Probation 433
3. Sp e c ial Aggravating Circumstances Probation, Parole, and Pardon 433
4. C o m plex Crime Purpose of Probation 483
5. Sp e c ial Rule for Imprudence or Negligence Grant of Probation. 434
Fixing the Penalty 407 Suspension of service of senten"e 434
1. De t e r m i n ate Penalty l. A cc e ssory Penalty
2. I n d e t e r m i n ate Penalty 2. Civ i l L i a b i l i t y

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 Mutually Exclusive Remedies . 43 2. N ov a t i on Prior to Its Consummation
1. Wai v i n g Ri ght to Appeal Modes of Preventing Criminal Liability................
2. Wai v i n g Right to Apply for Probation
Proper Court....................... 43 PROBATION 458
Period to Apply for Probation 43 D EATH OF T H E A C C U S E D . 458
1. M od i fi ed Decision 0
9
8
5 Death After Finality of Judgment................................. 458
2. Ch i l d i n Conflict with the Law Death Before Finality of Judgment. 458
3. M ot i o n for Reconsideration Death Pending Appeal . 459
Criteria of Placing an Offender on Probation ......... 43 1. Ci v i l L i a b i l ity Ar'ising from Crime
Disqualification to Probation. 44 2. Ci v i l L i a b i l ity Ar i sing from Other Source
1. N o n - p r obationable Penalty 3. Ci v i l L i a b i l ity I nvolving Violation
2. N at i o n al Security of B.P. Blg. 22
3. Pr e v i ous Conviction 4. Ci v i l A c t ion in General and Civil Action
4. D rug Trafficking orPushing in B.P. Blg. 22
Period of Probation. 44 4 PRESCRIPTION OF CRIMES. 460
Arrest of the Probationer 44
Period of Prescription. 461
Termination of Probation.. 44
1. E xp i r a t i on of the Period Computation of Prescription of Offens s ..................... 462
Commencement of the Running of Period ................... 468
2. Pe c u n i ary Li abilit i es
1. O ff e n ded Party and Person in Authority
JUVENILE JUSTICE AND WELFARE ACT and Its Agents
(R.A. No. 9844) AND CHILD AND YOUTH 2. Co n s t r u ct ive Notice Rule
WELFARE CODE (P.D. No. 608, AS AMENDED)..... 446 3. Co n t i n u i n g Crim e
Definition of Child in Confiict with the Law.................... 446 Interruption of the Running of Period .........................
Entitlements of Child in Conflict with the Law .............. 446 1. L a c k of Ju r i sdiction
E xemption from Criminal Liabili t y . 446 2. P r e s c r i ption of a Lesser Ofzense
Privileged Mitigating Circumstance 447 3. A b s e nce from the Philippir.es
Diversion and Intervention Program ............................... 447
Suspension of Sentence 448 PRESCRIPTION OF VIOLATION OF SPECIAL LAWS
1. Pr o m u l g ation of Judgment ACT NO. 8826. 467
2. A pp l i c a t ion, Not Required Period of Prescription. 467
3. Re a c h ing the Age of Majority Commencement of the Running of the Period ................. 468
4. N o D i s q u alification 1. D i s c overy and Judicial Institu ti on
Probation 450 2. Bl a m e l ess Ignorance Doctrine
Agricultural Camp or Other Training Facilities ...,......... 451 3. Cr i m e s by Marcos' Cronies
Full Credit of Preventive Imprisonment.......................... 451 4. Non - fi l i n g of SALN
5. V i o l ation of B.P. Blg. 22
V I. M O D I F I C A T I O N A N D E X T I N C T I O N Interruption of the Running of Period .............................
OF CRIMINAL LIABILITY 1. Pa n a g u i ton Principle
Subsequent-circumstance principle 2. J a d ewell Principle
452
Desistance 453 3. Rul e s on Interruption of Prescription
Re-election 453 PRESCRIPTION OF PENALTIES. 474
Novation . 454 Period of Prescription. 474
1. Co n t r a c t ual Relationship Computation of the Prescription of Penalties .. .
474

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 PRE S C R I P T I O N S OF CR IM E AN D P E N A L T Y ....
Commencement .
475
I
475
Interruption . 476
P ARDON BY O F F E N D E D P A R T Y 476
Private Pardon as a Bar to Criminal Prosecution..... 476
Pardon in the Form of Marriage. 477
Forgiveness in Marital Rape 478 REVISED PENAL CODE
Immutability of Final Judgment ................................ 478
1. V o i dj u d gment BOOK ONE
2. Su b s t a n t ial justice
AND RELATED LAWS
PARDON BY TH E C H I E F E X E C U T I V E . . .... 480
Limitations to the Pardoning Power 481
Not a Mode of Extinguishing the Crime ... t I. FUNDAMENTAL PRINCIPLES
482
Reinstatement and Backwages 482
AMNESTY 483 DEFINITION OF CRIMINAL LAW
Mode of Extinguishing the Crime 483
Conditions to Avail of Amnesty Criminal l a w i s a b r a n c h o f m u n i c ipal l a w w h i c h d e fines
484
crimes, treats of their n a t u re, and provides for their pu nishment.
l. Exp r e s s Condition
2. I n h e r en t Condition (1 958, 1965, and 1967 Bar Exams)
3. B u r d e n of Proof In the Philippines, there exist no crimes such as those known
4. D et e r m i n a t ion of Amnesty Entitlement :n the United States and England as common law crimes. (U.S, v.
5. Re v o c ation of the amnesty Taylor, G.R. No. L-9726, December 8, 1914) Our country ad heres
6. N on - d elegation of power to the principle of "nullum cr i m en., nulla poena sine lege," that is,
7. A m n e s t y and Pardon —.'here is no crime where there is no law pun shing it. The maxim of
EXTINCTION OF CIVIL LIABILITY 492
nullum crimen, nulla poena sine lege is an indispensable corollary
to
CIVIL LIABILITY ARISING FROM CRIME ..................... a regime of liberty enshrined in our Constitution. It is of the essence
493
Civil Liability in Case of Justification or Exemption ..... that while anti-social acts should be penalized, there must be a cliear
. 495
l. I n sa n i t y , I mbecility, and Minority definition of the punishable offense as well as the penalty that may
2. Co m p e l led Offender be imposed. (People v. Cabural, G.R. No. J-84105, February 4, 1988;
3. J u s t i fi ed Act 1988 and 2011 Bar Exams)
S ubsidiary Liability . 498 There are two theories in criminal law. to wit: classical theory
1. I n n k e e per's Subsidiary Responsibility and positivist theory. (1968 and 1996 Bar Exams)
2. E mp l o y er's Subsidiary Responsibility
Coverage of Civil Liabilit y Classical Theory — Un d er t he c lassical theory on which iour
501
1. Re s t i t u t i o n penal code is mainly based, the basis of criminal liability is hum,an
2. Re p a r a t i on free will. Man is essentially a moral creature with an absolute free
3. I n d e m n i fi cation will to choose between good and evil. When he commits a feloni tous
or criminal act, the act is presumed to have been done voluntarily,
i.e., with freedom, intelligence, and. intent. Man, therefore, should. be
adjudged or held accountable for wrongful acts so long as free will
appears unimpaired.(People v.Estrada, G.R. No. 180487, June 19,
2000)

J9JC9B0M
 CRIMINAL LAW REVIEWER
VOLUME I
Positivist Theory — The positivist theory states that the basis
for criminal l i a bil it y i s t h e su m t o ta l of t h e social and economic
phenomena t o w h i c h t h e o f f ense i s e x p r essed. The p u r p ose of
penalties is to secure justice. The penalties imposed must not only
be retributive but must a lso be reformative, to give the convict an
opportunity to live a new life and rejoin society as a productive and
civic-spirited member of th e community. (Joya v. Ja il W a r d en of
Batangas, G.R Nos. 159418-19, December 10, 2008; 1996 Bar Exam)
The Revised Penal Code is based on th e classical school of
thought. (People v. Hon. Sandiganbayan, G.R Nos. 115489-41, July
16, 1997) However, there are some aspects of the Code which are
based on positivist theory. (1996'Bar Exam)
CONSTRUCTION OF PENAL LAWS
It is a basic rule in statutory construction of criminal laws that
in case ofdoubt, it should be resolved in favor of the accused.
1. Pr o R e o — In d u h io pro reomeans "when in doubt, for
the accused." Intimately related to the in duhio pro reo principle is
the Rule of Lenity. The rule applies when the court is faced with two
possible interpretations of a penal statute — one that is prejudicial
to the accused and another that is favorable to him. The rule calls
f or the adoption of an i n t er pretation which is more lenient to t h e
accused. (Intestate Estate of Gonzales v. People, G.R. No. 181409,
February 11, 2010)
2. S pa n i s h T e x t — Th e R e vised Penal Code is patterned
after the Spanish Penal Code. The Revised Penal Code was written
in Spanish when it was submitted to the Legislature for approval.
The English text of the Revised Penal Code is just a tr anslation of
the Spanish text. What was approved by the Philippine Legislature
is the Spanish text of the Revised Penal Code. Thus, in interpreting
the provisions of the Revised Penal Code, the Spanish text of the said
Code is controlling as this was the text approved by the Legislature.
(People v. Ma n g u labnan, G .R. N o. L - 8 9 19, September 28. 1 9 56;.
People v. Escote, Jr., G.R. No. 140756, April 4, 2008) Furthermore,
S panish jurisprudence may also aid th e court i n i n t e r preting t h e
provisions of the Revised Penal Code. (People v. Nocum, G.R. No.
L-482, February 25, 1947)
3. T it l e a n d B o d y o f P e n a l P r o v i s ion — T h e t i t l e s
to the A r t i cles of th e R evised Penal Code were not i n t e nded by
the Legislature t o b e u s e d a s a n y t h in g m or e t h a n c a t chwords
J9JC9B0M
I. FUNDAMENTAL PRINCIPLES
conveniently suggesting in a general way the subject matter of each
article. Being nothing more than a convenient index to the contents
of the articles of the Code, they cannot in any event have the effect
of modifying the v-ords of the text. (People v. Yabut, G.R. No. 89085,
September 27, 1988)
4. T ec h n i c a l M e a n i n g o f a W or d — I f w or d s h a v e
a technical m e anin g u n d e r t h e l a w a n d /o r j u r i s p r udence, t h e
legislature is deemed to have adopted the technical concept of such
words in crafting a particular statute.
The words " p ersonal p r operty" h av e a t e c h nical definiti on
under the old Spanish Civil Code, and that is, anything susceptible
o f appropriation an d n o t c l a ssified a s r ea l p r o perty. S i nce t h e
P hilippine L e g i slatur e u s e d t h e te r m " personal p r o perty" i n
defining theft under the Revised Penal Code, these words should be
interpreted within th e context of the old Civil Code. Thus, taking
intangible property such as electricity or telephone service, which is
a personal property within the contemplation of the old Civil Code,
is theft under the Revised Penal Code. (Laurel v. Abrogar, G.R. No.
155076, January 18, 2009)
In defining plunder under R.A. No. 7080, Congress uses the
word "malversation" as a predicate crime. Malversation has a
technical meaning un der A r t i cle 217 of th e R evised Penal Code.
H ence, malversation as a p r e d icate crim e of p l u n der sh ould b e
interpreted within th e context of Ar t i cle 217 of the Revised Penal
Code. (Gloria Ma " apagal Ar r o yo v. People, G.R. No. 220598, Ju,ly
19, 2016)
The Constitution uses rebellion as a basis of declaring martial
l aw. Rebellion has a t echnical meaning un der A r t i cle 134 of t h e
Revised Penal C ode. T h us, th e w o r d " r e bellion" fo r p u r p ose of
declaration of martial law must be interpreted within the context of
Article 134 of the Revised Penal Code. (Lagman v. Medialdea, G.R
No. 281658, July 4, 2017)
APPLICATION OF THE REVISED PENAL CODE
As a general rule, offenses punishable under special laws are
not subject to the provisions of Book One of the Revised Penal Code
(Article 10), because they are designed to regulate felonies defined
in Book Two of the Code. However, there are two exceptions. The
provisions of the Code shall apply to offenses under special laws (1)
if the latter expressly say so; or (2) in a supplementary manner.
 CRIMINAL LAW REVIEWER
VOLUME I
Express Provision
O ffenses punishable under special l aw s ar e s u bject t o t h e
provisions of Book On e of th e R evised Penal Code if t h e f o r m er
expressly say so such as in the following provisions:
1. S e c t i on 98 of R.A. No. 9165 on crimes involving dangerous
drug committed by a minor;
2. Se c t i on 52 of R.A. No.,9372 on terrorism;
3. Se c t i on 21 of R.A. No. 10168 on financing of terrorism;
4. Se c t i on 47 of R.A. No. 9262 on violence against women;
5. Se c t i on 27 of R.A. No. 9775 on child pornography;
6. Se c t i on 22 of R.A, No. 9745 on torture; and
7. Se c t i on 2 of R.A. No. 7080 on plunder.
S upplem e n t a r y A p p l i c a t i o n
The provisions of the Revised Penal Code shall be supplemen-
t ary to offenses punishable under special l aws u n l ess the l a t t er
should specially provide the contrary. There are two requisites to
supplementarily apply the provisions of the Code to offenses under
special laws, to wit: (1) the special law is deficient on the rule needed
to resolve a particular issue; (2) the special law does not specifically
prohibit the application of the provisions of the Code.
l. S u f f ic i e n c y o f t h e L a w — U n d e r A r t i c l e 9 1 o f t l e
Revised Penal Code, the running of period of prescription shall be
interrupted by the filing of the complaint or information or when tl'.e
offender is absent from the Philippines. However, under Section 2 of
Act No. 3326, which governs prescription of offense under special law,
the running of prescription shall be interrupted when proceedings
for its investigation and punishment are instituted. Section 2 has no
rule on interruption of prescription when the offender is absent from
the Philippines.
Since Act No. 3326 sufficiently provides a rule on interruption
of the running of prescription, there is no need to seek supplemental
rule from the Revised Penal Code. In sum, Section 2 of Act No. 3326
shall be applied to interrupt th e r u n n ing of prescription of offense
punishable under special law, and t h us, Ar t i cle 91 of the Revised
Penal Code need not be used to supplement it . H ence, absence of
an offender from the Philippines shall not interrupt the running of
J9JC9B0M
I. FUNDAMENTAL PRINCIPLES
prescription of offense punishable under special law since Act No.
3326 does not sayso. (Romualdez v'.Marcelo, G.R. ¹s. 165510-88,
July 28, 2006)
2. De f i c i e n cy of t he L a w — Th e p e nalty for v io lation of
B.P. Blg. 22 is imprisonment and fine. However, this law is deficient
as to the rule on conversion of fine i nt o subsidiary i m p r isonment
in case of non-payment thereof due to insolvency. Hence, there is
a need to seek supplemental r ul e f ro m t h e R evised Penal Code.
Thus, Article 39 of the Code on conversion of fine into subsidiary
imprisonment can be used to supplement B.P. Blg. 22 in case the
convict failed t o pa y fi n e i m p osed thereunder due t o i n solvency.
(Diongzon v. CA, G.R. No. 114828, December 28, 1999; Yu v. People,
G.R. No. 134172, September 20, 2004; A dministrative Circular ¹ .
18-2001)
The provision on subsidiary imprisonment was also applied to
violation of motor vehicle law. (People v. Moreno, G.R. ¹. L - 4 1 0 86,
October 10, 1984)
In the following cases, the provisions of the Revised Penal Code
were applied to offenses punishable under special laws:
1. A r ti c l e 2 o f t h e C ode on terr i t oriality wa s applied
to violence against w omen (AAA v . BB B , G . R. N o. 21 2448,
January 11, 20 18) and t h a t o n e x t r a t e rri t o riality t o p i r a c y
under P.D. No. 532 (People v. Tulin, G.R. No. 111709, August
80, 2001);
2. rticle
T h e p r o vision on conspiracy as a crime under A
8 of the Code and the rule on conspiracy as a mode of incurring
criminal liability were applied to violation of B.P. Blg. 22
(Ladonga v. Pe ople, G.R. N o. 14 1 066, Fe bruary 17 , 2 0 05),
violence against w omen (G o-Tan v. Ta n , G . R. N o. 16 8 852,
September 80, 2008) and violation of R.A. No. 3019 (IIenry iGo
v. The Fifth Div ision, Sandiganbayan, G.R. ¹. 172 6 0 2,April
13, 2007);
3. T h e p r o v i sion on justifying circumstance of exereIse
of right (to suspend payment) under Article 11 of the Code was
applied to violation of B.P. Blg. 22 (Sycip v. CA and P eople,
G.R. No. 125059, March 17, 2000);
4. T h e p r o vision on retroactivity under Article 22 of the
Code was applied to violation of election law (People v. Par el,
G.R. ¹ . L -18260, January 27, 1923);
 CRIMINAL LAW REVIEWER
VOLUME I
5. Th e p r o v i sion on confiscation of instrument of t h e
crime (under A r t i cle 45 of th e Code) was applied to offense
punishable under special law (U.S. v. Bruhez, G.R. No. L-9268,
October 80, 1914); and
6. Th e p r o v i sion on t h r ee-fold rul e u n der A r t i cl e 70
of the Code was applied t o m u l t i pl e p enalties i m posed for
committing c r i m e s i n v o l vin g d a n gerous d r u gs. (P eople v.
Cheung, G.R. Nos. 90440-42, October 18, 1992)
3. P r oh i b i t i o n on A p p l y in g th e C ode — Un d er Section
98 of R.A. No. 9165, the provisions of the Revised Penal Code shall
not apply to the provisions of this Act, except in the case of minor
o ffenders. Hence, if a convict, who i s not a c h il d i n c onflict w i t h
the law, failed to pay the penalty of fine imposed for possession of
dangerous drug paraphernalia by reason of insolvency, the rule on
subsidiary imprisonment under Ar t i cle 39 of the Code shall not be
given a supplementary application.
TWO PENAL SYSTEMS
T he Revised Penal C ode wa s e n acted i n 1 9 3 2 d u r i n g t h e
American regime by th e Ph i l i ppines Legislature, whose members
were still u n der in fl uence of the Spanish system. Because of this
situation, our old legislators adopted to two penal systems, to wit:
the Spanish penal system and the American penal system.
T he Revised Penal C ode, w h ich i s p a t t e r ned f ro m t h e o l d
Spanish Penal Code, contains the Spanish penal system. In fact, the
official text of the Revised Penal Code is written in Spanish. On the
other hand, special laws contain the American penal system.
The Spanish penal system is based on the proportionate penal
system of the classical theory, under which the gravity of the penalty
must be in proportion to the gravity of the criminality in the mind of
the offender. Thus, the Spanish penal system designs a mechanism
to measure the degree of the cr i m i nal m i n d o f t h e offender, and
prescribes penalty on the basis of such degree. For example, if the
killing was made out of passion, the criminal mind of the offender is
lesser compared to one, who killed a person for the sake of killin g.
With a lesser criminal mind, he deserves a lesser penalty; hence, the
penalty for homicide shall be applied in its minimum period.
The American penal system provides a fi
xed penalty or a pen-
alty with minimum li mit and maximum limit such as imprisonment
J9JC9B0M
I. FUNDAMENTAL PRINCIPLES
for one year, or for one to five years. (People v. Simon, G.R. No. 98028,
July 29, 1994) Under the American penal system, life imprisonment
is the equivalent of the Spanish penalty of reclusion perpetua.
The essence of codification of criminal laws is to place all crimes
classified as mala in se under one Code. Intentional felony under
the Revised Penal Code is malum in se because Article 3 the reof
provides that t hi s crime must be committed by means of dolo. In
sum, dolo, which is th e general element of an i n t e ntional felo!ny,
makes this crime malum in se.
Since the essence of penalizing malum in se is the wrongful or
evil character of the act, the Spanish penal system, which measures
the degree of evilness, is suitable to govern this crime. On the other
hand, the Spanish penal system is not su it able to govern malum
prohibitum since the evilness of the offender is not material to this
crime. Because of this situation, the Philippines Legislature made
mala in se punishable as intentional felonies under Spanish penal
system of the Revised Penal Code while mala prohibita as offenses
p unishable under American penal system of special laws. That i s
the reason why the Indeterminate Sentence Law has two rules, the
f irst of which governs Spanish penalty u n der th e Code while th e
second American penalty under special laws.
However, the successors of the Phi l i ppines Legislature such
as Congress of the Philippines have deviated from th e old design
on the two penal systems and in th e pr ocesses, introduces a very
complicated rules on imposition of penalties.
Under the old design, mala in se must be made punishable un !der
the Revised Penal Code, while mala pr ohib7ta under special laws.
However, at present, there are now several mala in se punishable
under special laws e.g., carnapping under R.A. No. 10883.
Under the ol d design, mala in s e m u st be g overned by t h e
Spanish penal system under th e Revised Penal Code while mala
prohibita by the American penal system under special laws. How-
ever, at~repent, there,are„speciaQaws whick y u n ish mala in se and
yet they adopt the American penal system. For example, carnapping
is malum in se, and yet, R.A. No. 10883 prescribes American penalty
for this crime e.g., penalty of not less than 20 years and 1 day but not
more than 30 years. Conversely, there are special laws which punish
mala prohibita,, and yet, they adopt the Spanish penal system. For
example, illegal possession of loose firearm is m a lum pr o hibitum
 CRIMINAL LAW REVIEWER
VOLUME I
a nd yet, R.A. No. 10591 prescribes Spanish penalty for t hi s crim e
e.g., prision mayor its medium period.
Interestingly, there are special laws which have adopted both
the Spanish penal system and American penal system. For example,
R.A. No. 9208 prescribes a fixed penalty for t r afficking in p erson,
while it adopts Spanish penal system for use of trafficked person.
R.A. No. 9165 adopts the American penal system for crimes involving
dangerous drugs; but if the offender is a minor, the Spanish penal
system of the Revised Penal Code will apply.
Congress should revisit the penal systems since the complexi-
ties of the penal rules affect the proper imposition of penalties. Law
m akers should consider a r e v ersion to th e ol d r u l e, an d t ha t i s ,
Spanish penal system for mala in se and American penal system for
mala prohibita.
Spanish Penal System
The Revised Penal Code is not generally applicable to m a l a
prohibita or crimes punishable under special laws. (I 967 Bar Exam)
However, when a s pecial la w a d opts th e t echnical nomenclature
of the penalties (e.g., prision m ayor) in R e v ised Penal Code, the
legislative intention is to adopt the provisions under this Code on
imposition of penalty. (People v. Simon, G.R. No. 98028, July 2 9 ,
1994) If th e special law b o r r ows th e p enalties from th e R evised
Penal Code, the court tak ing into consideration the Spanish penal
system under the Code shall:
1. A p p l y t h e p e nalty i n i t s m i n i m u m p e r iod i f m i t i g at i n g
circumstance of confession is present in i l l egal possession of loose
firearm (Jacaban v. People, G.R. No. 184855, March 28, 2015); or
2. A p p l y t h e p enalty i n i t s m e dium period if t h ere are no
modifying circumstances that a t t ended the commission of sexual
abuse (Malto v. People, G.R. No. 164788, September 21, 2007), fencing
(Cahulugan v. People, G.R. No. 225695, March 21, 2018) or violence
against woman (Melgar u. People, G.R. ¹. 228 4 7 7,February 14 ,
2018); or
3. A pp l y t h e penalty in its maximum period if the accused is
a quasi-recidivist, who committed a malum prohibitum crime while
serving his sentence (People u. Salazar, G.R. ¹. 980 6 0 , Ja n u ary
27, 1997); or if special aggravating circumstance of organized/
syndicated crime group attended the commission of the crime (People
v. Esparas, G.R. ¹. 12 0084,July 10, 1998); or
J9JC9B0M
I. FUNDAMENTAL PRINCIPLES
4. G r aduate the penalty by one degree ifthe accused is a
minor, when he committed a ma l u m p r o h ib it um cr i me (Peopl'e v.
Montalaba, G.R. No. 186227, July 20, 2011; People v. Musa, G.R.
No. 199785, October 24, 2012); or
5. Gr a d u at e the penalty by considering the stages (attempt-
ed, frustrated, and consummated) and nature of participation of the
accused (accessory, accomplice and principal).
Republic Act No. 10591, which punishes illegal possession of
loose firearm, has adopted the technical nomenclature of the penal'ties
in the Revised Penal Code (e.g., the penalty for illegal possession. of
small arm is prision mayor in its medium period). Hence, Article 64
of the Revised Penal Code shall apply in i m position of the penalty
for illegal possession of loose firearm. (Jacaban v. People, G.R. No.
184855, March 28, 2015) For example, if the accused confessed toi the
crime of possession ofsmall arm, the prescribed penalty of prision
mayor in its medium period shall be applied in its minimum period
in accordance with Ar ti cle 64 of the Code because of the mitigating
circumstance of voluntary confession.
The provisions on imposition of penalties under the Reviised
Penal Code are applicable to the crime of plunder. R.A. No. 7080 has
adopted the technical nomenclature of the penalty in t h e Revised
Penal Code (e.g., the penalty for p l u n der is re clusion perpetua to
death). Moreover, Section 2 ofR.A. No. 7080 expressly states that
the degree of participation and the attendance of mitigating and
extenuating circumstances, as provided by the Revised Penal Code,
s hall be considered by the court. Thus, one who profited from th e
proceeds ofplunder can be held liable as an accessory, provided that
he is aware that the principal committed plunder.
American Penal System
If the special law has not adopted the technical nomenclature
of penalties in the Revised Penal Code, the legislative intention is
not to adopt the provisions of this Code on imposition of penalties.
(People v. Simon, supra) If the special law prescribes a fixed penalty
or a penalty with a maximum limit and minimum limit, it is in effect
adopting the American penal system.
Moreover, the Spanish penal system is designed to regutate
Spanish penalty, an d no t A m e r i can penalty. Th e Spanish penal
provisions such application of penalty in its proper imposable period
 10 CRIMINAL LAW REVIEWER
VOLUME I
and graduation of penalties are not su it able to govern Am erican
penalty.
For example, t h e a c cused confessed t o an offense w h er e
the special law p r escribes the penalty of not m ore t han 10 years
of imprisonment bu t n o t l e s s t h a n 5 y e ar s ( A m erican penalty).
Under Article 63 of the Revised Penal Code, if there is a mitigating
circumstance such as confession, the penalty shall be applied in it s
minimum period. However, confession cannot be appreciated since
the penalty prescribed by law, which is not borrowed from the Code,
has no minimum period. (1986 Bar Exam)
Mitigating circumstance of old age can only be appreciated if
the accused is over 70 years old at t he t i me of the commission of
the crime under R.A. No. 8019 and not at the time of promulgation
of judgment. (People v. Re yes, G.R. Nos. 17 7 105-06, August 1 2 ,
2010) Moreover, the mitigating circumstance of seniority cannot be
appreciated in crime punishable by R.A. No. 8019 since this law did
not adopt the technical nomenclature of the penalties in the Revised
Penal Code (e.g., penalty for corruption is not less than 6 years and
1 month but not more than 15 years); hence, this penalty cannot be
applied in its minimum period since it is not a divisible penalty.
The s p ecial a g g r avatin g c i r c u m stance o f sy n dicated o r
organized crime group under Article 62 of RPC cannot be appreciated
in carnapping if the same is not alleged in the information. (People
v. Mallari, G.R. No. 17 9041, April 1 , 2 0 13) However, even if t h i s
circumstance is alleged in the information and proven by evidence,
the same shall not be appreciated in carnapping since R.A. No. 10888,
the new carnapping law, did not adopt the technical nomenclature
of the penalty in the Revised Penal Code (e.g., the penalty for simple
carnapping is not less than 20 years and 1 day but not more than 30
years). Since the penalty is not borrowed from the Code, it cannot
be applied i n i t s m a x i mu m p e r iod b y t a k i n g i n t o c onsideration
syndicated ororganized crime group.
Section 8(e) of R.A. No. 3019 punishes the act of causing
damage to any party t h r ough manifest partiality and evident bad
faith i n t h e e x ercise of official f u n ction by a p u b lic officer. T h i s
c rime is pu ni shable wit h i m p r i sonment of no t l ess than 6 y e a r s
and 1 month but not m ore than 15 years. A public off icer falsified
public documents m a k in g t h e g o ods b eing i m p orted t o a p p ear
that they are toys where in f act t hey ar e cassette recorders. The
intention of the public officer is to reduce the tax liability of a certain
J9JC9B0M
I. FUNDAMENTAL PRINCIPLES
company. However, the government discovered this falsity, and as a
consequence, the company paid the correct amount of tax. He cani iot
be convicted of violation of Section 8(e) of R.A. No. 8019 for an attempt
to cause damage to the government through evident bad faith. Tliis
crime has no attempted stage. Under Article 51 of the Revised Penal
C ode, the penalty for a t t empted crime shall be graduated to t w o
d egrees lower. However, since the penalty u n der t h i s la w i s n o t
borrowed from th e R e vised PeiIal C ode, it c a n not be r e d uced to
two degrees lower. Thus, the accused is liable for attempted estafa
through falsification of documents. (Pecho v. Sandiganbayan, G,R.
No. 111399, November 14, 1994; 2000 Bar Exam)
A boarded a plane at the airport bound for Davao City. While
the plane was still on the tarmac, its door is still open and waiting
for the last passenger to board, A ordered the pilot P at g u n point
to take th e p l ane t o S i n gapore. When P r e f u sed, A s hot h im t o
death. Since fight, which is an element of hijacking of a Philippine
airplane, isnot yet present because its door is still open, A is not
liable for hijacking with murder. Neither is A liable for attempted
hijacking. The penalty for hijacking with murder under R.A. No.
6285 is im p r isonment of 1 5 y e ars t o d eath. U n der A r t i cl e 51. of
the Revised Penal Code, the penalty for at t empted crime shall be
reduced to two degrees lower. However, since the penalty u rider
this law is not borrowed from the Revised Penal Code, it cannot be
reduced to two degrees lower. Thus, A can only be held liable for
murder and frustrated coercion. (1978 Bar Exam)
Definitional Pr o vision
I f the special law h a s no t b o r r owed th e p enalties from t h e
Revised Penal Code, the penal provisions of the l a t ter cannolt be
applied in a s u ppletory manner to th e f ormer. But if t h i s s pecial
iaw uses a term found in th e Revised Penal Code, the definitionai
p r'oviiiion o t%e latter can be aitdtlied b~,way ot,sudtpletory to th e
former.
R.A. No. 9165 has not adopted the technical nomenclatuie of
penalties in the Revised Penal Code (except when the offender is a
minor). But Section 26 of R.A. No. 9165 punishes attempted sale
of dangerous drug w it h t h e p e nalty p r escribed for consummated
sale of dangerous drug. Hence, Article 6 of the Code on the meaning
of attempted felony can be applied in a supplementary manner to
attempted sale of dangerous drug. (People v. Chowdury, G.R. Nos.
129577-80, February 15, 2000)
 12 CRIMINAL LAW REVIEWER
VOLUME I
Special Penal Rule for Cr i mes Involving Dangerous Drugs
Applying the Si m on pr i n c iple, if t h e p e n a lty p r e scribed
i e by
s pecial law i s b o rr owed from th e R evised Penal Code, the penal
provisions ofthe Code are applicable. If the penalty prescribed by
special law is not borrowed from the Revised Penal Code, the penal
provisions ofthe Code are not applicable.
H owever, the Si mori pr i nciple is not a pplicable if th e cr i m e
committed involved dangerous drugs because R.A. No. 9165 has a
special rule on the application of the provisions of the Revised Penal
Code.
Under Section 98 of R.A. No. 9165, notwithstanding any law,
rule or r egulation t o t h e contr ary, th e p r ovisions of th e R evised
Penal Code shall not apply to the provisions of this Act, except in the
case of minor offenders. Where the offender is a minor, the penalty
for acts punishable by life imprisonment to death provided herein
shall bereclusion perpetua to death.
If the accused is an adult, the provisions of the Revised Penal
Code shall not a pp1y to a crime involving dangerous drugs because
o f Section 98 o f R . A . N o . 9 1 6 5 s ays so. H e nce, th e m i t i g at i n g
circumstance of confession shall not be considered.
If the accused is a minor at the time of the commission of the
crime, t he provisions of the R evised Penal Code shall apply to a
crime involving dangerous drugs because of Section 98 of R.A. No.
9165. Hence , privileged mitigating circumstance of minority and the
mitigating circumstance of confession shall be considered.
R epublic A c t N o . 9 1 6 5 h a s not a d o pted t h e t e c h n i cal
nomenclature of t h e p e n a l t ies of t h e R e v i sed Penal C o de. F or
example, the penalty forpossession of dangerous drugs invol '
'nvo ving
sshabu
abu of less than 5 grams is imprisonment of 12 years and 1 day
to 20 years. This is American penalty. If the accused is a minor, the
penal system of the Revised Penal Code shall apply because Section
98 of R.A. No. 9165 says so. To apply th e penal provisions of the
Code, the American penalty for R.A. No. 9165 must be converted
into a Spanish penalty.
! special law is not borrowed from the Revised Penal Code, such rules
For example, the penalty for sale ofdangerous drugs
(2014
Bar Exam) or importation of dangerous drugs
(2018 Bar Exam) is
life imprisonment to death. If th e accused is a minor, this penalty
shall be converted into re c lusion perpetua t o d e ath. T a k i ng i n t o
consideration the privileged mitigating circumstance of minority,
!
J9JC9B0M
I PUNDAMENTAL PRINCIPLES
reclusion perpetua to death shall be reduced to reclusion temporal.
(People v. Mo ntalaba, G.R. No. 18 6227, Ju ly 2 0, 20 11; People v.
Musa, G.R. No. 199785, October 24, 2012)
Possession of dangerous drugs involving shabu of less than 5
grams is punishable by an im pr isonment of 12 years and 1 day to
20 years. If the accused is a minor, this penalty shall be converted
into reclusion temporal. Ta k i ng i n to c onsideration the p r i v i l eged
mitigating circumstance of m i n ority, re clusion temporal s h a ll b e
reduced to prision mayor.
However, even though Section 98 of R.A. No. 9165 mandates
the application of the provisions of the Revised Penal Code in a case
where the offender is a minor, if th e penalty for a crime involving
dangerous drugs cannot be converted into a Spanish penalty, the
penal provisions of the Revised Penal Code shall not apply.
For example, the penalty for use of dangerous drugs commi!t;ted
by a first-time offender is rehabilitation. Even if th e offender :is a
m inor, th e p r i v i l eged m i t i gating c i r cumstance of m i n or it y s h a l l
not be considered because this penalty ofrehabilitation cannot be
converted into Spanish penalty, and thus, it cannot be reduced one
degree lower. (2018 Bar Exam)
The penalty for possession of dangerous drugs involving shabu
of 5 grams isimprisonment of 20 years and 1 day to life imprison-
ment. The penalty for possession of drug paraphernalia is 6 months
and 1 day to 4years. Even if the offender is a minor, the privileged
mitigating circumstance of minority shall not be considered because
these penalties cannot be converted into Spanish penalty, and thus,
they cannot be reduced by one degree lower.
Stages of a Crime
Applying the Si m on pr i n c iple, if t h e p e n a lty p r e scribed by
s pecial law i s b o r r owed from th e R evised Penal Code, the r u l es
o n graduation o f p e n alt y i n c o n n ection w i t h s t a ges of a c r i m e
(consummated, frustrated, and attempted crime) under Ar t icl'es 6
and 50 to57 of the Code are applicable. Ifthe penalty prescribed by
are not applicable. However, the special laws may provide special
rules onstages of a crime.
S ection 2 6 o f R . A . N o . 9 1 6 5 p u n i shes a t t empted s al e o r
t rafficking o f d a n g erous d r ug s w i t h t h e p e n a lt y s am e a s t h a t
prescribed if the crime is consummated. The rules on graduation
 14 CRIMINAL LAW REVIEWER
VOLUME I
of penalty in connection with stages of a crime under Articles 50 to
57 of the Code shall not apply whether the offender is an adult or
minor since R.A. No. 9165 provides a specific penalty for this crime
which merely reaches the attempted stage. However, Article 6 of the
Code on the definition of attempted crime shall apply in interpreting
Section 26 of R.A. No. 9165 on attempted trafficking of dangerous
drugs. (People v. Tumvlah, G.R. ¹. 20 6 0 5 4, JuLy25, 2016)
Under Section 5 of R.A. No. 9262, attempt to inflict physical
haarm constitutes violence against women. The rules on graduation
in connection with stages under Articles 50 to 57 of the Code shall
n ot apply since R.A. No. 9262 provides a specific penalty for t h i s
crime.
Sections 6 and 8 of R.A. No. 7610 and Section 4-A of R.A. No.
9208 as amended by R.A. No.10364, respectively, provide a specific
definition of attempted child prostitution, attempted child trafficking
and attempted trafficking in person, and prescribe specific penalty
for them; hence, Articles 6 and 50 to 57 of the Code shall not apply
to these attempted crimes.
Section 5 of R.A. No. 10168 expressly made an attempt to
c ommit fi n ancing of t e r r orism an d p u n i shable by a p e n alty t w o
degrees lower than that prescribed for consummated crime.
N atur e of P a r t i c i p a t i o n
A pp Iying
' under Article 19 of the Revised Penal Code in the crime of torture.
th e S i mon p r i n ciple, i f t h e p e n alty p r escribed by
special law is borrowed from the Revised Penal Code, the rules on
graduation of penalty in connection with the nature of participation
of offender (principal,accomplice, and accessory) under Articles 17
to 19 and 50 to57 are applicable. If the penalty prescribed by special
law is not borrowed from the Revised Penal Code, such rules are not
applicable. However, the special laws may provide special rules on
nature of participation of the offender.
Section 6 of R.A. No. 8042 punishes principal, accomplices and
accessory to illegal recruitment w it h t h e same penalty. The rul es
on graduation of penalty in connection with nature of participation
under Articles 50 to 57 of the Code shall not apply since R.A. No. 8042
provides a specific penalty for this crime regardless of the nature of
the participation ofthe offenders. However, Articles 17 to 19 of the
Code on the defi
efinition of principal, accomplice and accessory shall
apply to understand the concept of offenders under R.A. No. 8042.
(People v. Chowdury, G.R. ¹s . 1 2 9 5 7 7-80,February 15, 2000)
J9JC9B0M
15
I. FUNDAMENTAL PRINCIPLES
In defining accomplice in and accessory to the crime of terrori,sm,
Sections 5 and 6 of R.A. No. 9372 have adopted Articles 18 and 19 of
the Revised Penal Code. However, R.A. No. 9372 provides a specific
penalty for t e r r o rism commit ted b y a n a c complice or a ccessory.
Hence, the rules on graduation of penalty in connection with nature
of participation under Arti cles 50 to 57 of the Code shall not apply
to terrorism.
H owever, R .A . N o . 1 0 1 6 8 o n fin a n c in g o f t e r r o r i s m or
conspiracy to commit financing of terrorism has adopted the concept
of accomplice and accessory and therules on graduation. (Section,s6
and 7of R.A. ¹ . 1 0168)
Section 13 ofR.A. No. 9745 has adopted the concept ofprincipal
under Article 17 of the Revised Penal Code in the crime of torture.
However, the p a r t i cipation of a n a c complice as described under
Article 18 the Code will make him/her liable as a principal under R.A.
No. 9745. The immediate commanding officer of the unit concei ned
of the AFP or the i m mediate senior public official of the PNP and
other law enforcement agencies under th e p r i n ciple of command
and responsibility for failure to take preventive or curative mea.sure
for or to investigate torture are being punished as principal under
R.A. No. 9745. In sum, R.A. No. 9745 has expanded the concept of
principal.
Section 13ofR.A. No. 9745 has adopted the concept of accessory
However, R.A. No. 9745 does not prescribe a specific penalty for
t orture committed by an accessory. Hence, the penalty for toi t u r e
committed by an ac cessory s hall be t wo d egrees lower than t h a t
prescribed for this crime applying Ar t i cle 53 of the Revised Penal
Code. Under Section 22 of R.A. No. 9745, the provisions of the Revised
Penal Code insofar as they are 'applicable shall be suppletory to this
Act.
Section 4 of P.D. No. 532 provides a specialconcept of.the
participation o f a c c omplices i n pi r a c y a n d h i g h w a y r o b b ery/
brigandage involving those who aided or abetted pirates, highway
robbers,and brigands, and states that accomplices shall be puniished
in accordance with Revised. Penal Code. Hence, the penalty fox this
crime committed by an accomplice shall be one degree lower than
the prescribed penalty applying Article 52 of the Code.
S ection 14 of R A N o 8 0 4 9 a s a m ended by R A N o 1 1 0 5 3
provides a special concept of the participation of an accomplice in
hazing involving school authorities. Since R.A. No. 8049 has adopted
 16 CRIMINAL LAW REVIEWER
VOLUME I
the technical nomenclature of the penalty of the Revised Penal Code,
the penalty for hazing by school authorities as an accomplice shall
be one degree lower than the prescribed penalty for hazing applying
Article 52 of the Code.
MALA IN SE AND MALA PRQHIBITA
M ala
l in se and mala prohibita are distinguished as follows:
1. M al a in se are inherently wrong or imm oral, while
mala prohibtta are not inherently wrong; they are only wrong
because they are prohibited'by law;
2. I n m a l a in se, good faith or lack of criminal intent is
a defense, while. in mala'prohib'ita'; good faith is not a defense
(1965 Bar Exam);
3. M a l a in se are punishable. under the Revised Penal
Code and special laws where the acts punishable therein are
wrong in nature.
M ala p r o h i b i ta are p u n i shable u nder ~s eci a l , l a w s .
However, technical malversation is mala prohibita, and yet, it
is punishable under the Revised.Penal'Code~
4. M od i f y i n g c i r c u m stances c an b e a p p r eciated i n
mala in s e u n l ess the s pecial laws t h at p u n i sh t h em h a v e
not adopted" the technical nomenclature of the penalty of the
R evised Penal Code. Modificatory circumstances will n o t ; b e
appreciated in m a l a pr o h ib tta „ u n l e ss t he s pecial laws t h a t
punish them ha v e adopted"the technical nomenclature of the
penalties of the Revised Penal Code. (1964, 1970, 1988, 1997,
1999, 2001, 2008, 2005 201 7, and 2019 Bar Exams)
F or example, R.A. No . 1 0883 prescribes imprisonment
from 20 years and 1 day to 30 years forsimple carnapping,
which classified as mala in se . H e nce, confession cannot be
appreciated. R.A. No. 10591 prescribes prision mayor i n i t s
medium period for possession of loose firearm, which is classified
as mala prohibita. Hence, confession can be appreciated.
Classification of crime as malum in se or malum prohibitum
To classify a crime as malum in se or malum prohibitum, the
nature thereof and the law that punishes it must be considered.
J9JC9B0M
I. FUNDAMENTAL PRINCIPLES 17
1. I nt e n t i o n a l f e l o n y — I n t e n t i o n al f e l o ny u n d er t h e
Revised Penal Code is committed by means of dolo. Since dolo or
~m e t a l ;intengis an element of intentional felonies, they are mala
in se. However, there is an exception; technical malversation is an
intentional felony, and yet, the Supreme Court declared it as mal'um
prohibitum.
In Ysidoro v. People, G.R. No. 1 92330, November 14, 2012,
the mayor, who applied 10 boxes offood appropriated for feeding
program to the beneficiaries of shelter assistance program, is liable
for technical malversation. M ayor's act, no m a t ter ho w n oble or
miniscule the amount diverted, constitutes the crime of technical
m alversation. C r i m i na l i n t e n t i s not a n e l e m ent o f t e c h n ical
malversation. The law punishes the act of diverting public property
earmarked by law or ordinance for a particular publicpurpose to
another public purpose. The offense is malum prohibitum, meaning
that the pr ohibited act i s not i n h erently i m m oral bu t b ecomes a
criminal offense because positive law forbids its commission based
on considerations of public policy, order, and convenience. It is the
commission of an act as defined by the law and not the character or
violated. Hence, malice or criminal int ent is completely irrelevant.
'Dura.: lex,.'sed;lee. (2015 and 2019 Bar Exams)
T he wri ter o f t h i s b ook r e spectfully s u b m it s t h a t t hermae
is
a need to r e examine t his Ys i d oro pr i n c iple classifying technical
malversation as malum prohibitum since it contradicts Article 3 of
the Revised Penal Code, which declares dolo as an element of all
intentional felonies making them mala in se. However, for purpose of
the bar exam, Ysidoro principle must be followed. It is a controlling
principle since the Supreme Court says so.
2. O ff e n s e un der special law — If t he offense punishable
u nder special law i s n o t i n h e rently w r on g i n n a t u re, i t s h al l b e
classified as malum prohibitum. The following offenses under special
laws are mala prohibita for not being inherently evil in character:
a. V i o l a t i on of BP Blg. 22 (Amada v.People, G.R. No,
177488, September 24, 2012);
b. Ille
galrecruitment (People v.Sison, G.R. No. 187160,
August 9, 2017);
c. C r i m es involving dangerous drugs
(Pang v. People,
G.R. No. 1 76229, October 19, 2011); and
d. Po s s ession of loose firearms(People v. Peralta, iG.R.
¹. 2 21991,August 80, 2017).
 18 CRIMINAL LAW REVIEWER
VOLUME I
If the offense punishable under special law is inherently evil,
there are two views on the standard in classifying a crime as malum
in se or malum prohibitum.
First view — The first view is that if the offense is punishable
under special law, it will be treated as malum prohibitum.
F encing is a c o ncept substantially s i m i la r t o t h a t o f t h e f t
or robbery committed by an accessory. Same as theft orrobbery
committed by an accessory, fencing is wrong in character. However,
since fencing is punishable under special law, the Supreme Court in
Cahulugan v. People, G.R. No. 225695, March 21, 2018 declares it
as malum prohibitum.
Hazing where the victim died or was raped is for obvious reason
evil in nature. However, the congressional deliberation shows that
the legislators considered hazing as m a lu m p r o h i bi tum. Because
o f the legislative tr eatment of h a zing as m a lu m p r o h i bi tum, t h e
Supreme Court in Vil l a real v. People, G.R. No. 151258, February 1,
2012 declared it as malum prohibitum.
Second view — T h e s e cond view is t h a t e v en t h o ugh t h e
offense is punishable under special law, if the same is inherently
evil it will be treated as malum i' s e .
An election offense (e.g., dagdag-bawas) is malum in se for
being immoral per se although it is p u n i s hable under special law.
(Garcia v. Court of Appeals, G.R. ¹. 15 7 1 71,March 14, 2006)
As a rule, crimes under R.A. No. 9165 such as possession of
dangerous drugs are mala pr ohibita since they are not inherently
wrong. However, planting of evidence is punishable under R.A. No.
9 165 and y, e t S e c t ion 29 t h ereof requires malice as an el ement
of this crime. Since malice is an element of this crime, it shall be
classified as malum in se.
In Napoles v. Sandiganbayan, G.R. No. 224162, November 7,
2017, it was ruled: The legislative declaration in R.A. N . 7659 th
e crime of plunder under R.A. No. 7080 is a heinous offense implies
that it is a malum in se. For when the acts punished are inherently
immoral or in herently wr ong, they are mala in se and it d oes not
matter that such acts are punished in a special law, especially since
in the case of plunder the predicate crimes'are mainly mala in s e.
n deed, it w o ul d b e a b surd t o t r ea t p r osecutions for p l u n der a s
t hough they are mere prosecutions for violations f t h B
i ns o e oun ci n g
ec aw ( B . P . B lg . 22) or of a n o r d i n ance against jaywalking,
J9JC9B0M
I. FUNDAMENTAL PRINCIPLES 19
without regard to the inherent wr ongness of the acts. (Estrada v.
Sandiganbayan, G.R. No. 148965, February 26, 2002)
In Dungo v. People, G.R. No. 209464, July 1, 2015, it was ruled:
A common misconception is that all mala in se crimes are found
in the Revised Penal Code, while al l m a l a pr o h i b ita cr i m es are
provided by special penal laws. In reality, however, there mar be
mala in se crimes under special laws, such as plunder under R.A.
No. 7080. Similarly, there may be mala prohibita crimes defined in
the Revised Penal Code, such as technical malversation. The begetter
approach to di stinguish between mala in se a nd m a l a pr o h ib ita
crimes is the determination of the inherent immorality or vileness
of the penalized act. If th e pu nishable act or omission is im moral
in itself, then it is a crime malum in se; on the contrary, if it is not
immoral in it self, but th ere is a statute prohibiting its commission
by reasons of public policy, then it is malum prohibitum.
In People v. Udang, G.R. No. 210161, January 10, 2018; People
v. Caballo, G.R. No. 198732, June 10, 2013; People v. Caoili, G.R.
No. 196342, August 8, 2017; and Malto v. People, G.R. No. 164733,
September 21, 2007, the Supreme Court considered sexual abuse
under Section 5 of R.A. No. 7610 as malum prohibitum simply because
it is punishable under special law. In sum, the first view was applied
in this case. However, Patulot v. People, G.R. No. 235071, January 7,
2019 and People v. Mabunot, G.R. No. 204659, September 19, 2016,
the Supreme Court considered child abuse under Section 10 of R.A.
No. 7610 as malum in se. Accordingly, when the acts complained of
are inherently immoral, they are deemed mala in se, even if they are
punished by a special law. Physical abuse of a child under R.A. No.
7610 is inherently wrong; hence, criminal intent on the part of the
offender must be clearly established with the other elements of the
crime. In sum, the second view was applied.
The writer of this book humbly submits that the second view
i s the correct view. The fi rs t v i e w i s n o t i n a c cordance with t h e
definition of mala in se, that is, crimes which are inherently wrong.
Moreover, the significance of the classification of a cr ime as
malum in se or m a l um p r o h i b it um is t he a cceptance or rejection
of the defense of good faith or lack of evil intent. The law penallizes
malum in se because it is inherently evil. If the accused in a case
involving malum in se committed the subject act in g ood faith or
without evil intention, the condition of evilness, which is the reason
why the law penalizes it, does not exist. Hence, he will be acquitted.
 20 CRIMINAL LAW REVIEWER
VOLUME I
On the o t her h a n d , i f t h e a c cused i n a c a s e i n v olving m a l u m
prohibitum committed the subject act in good faith or wi t h out evil
intention, he will still be convicted. Lack of evilness is not material
in the prosecution for malum prohibitum because the law penalizes
the same not on the basis of the evil character of the act but due to
commission of a prohibited act. If th e f i rst v iew w il l b e observed,
then the acceptance or the rejection of th e defense of lack cf evil
intention will absurdly depend on the source of the law, and not on
the evil or non-evil nature of the crime.
Lastly, the P h i l i p pines Legislature adopted a d esign u n der
which all crimes classified as mala in se would be punished under
the Revised Penal Code wh il e cr i mes t r eated as ma la p r o h ib it a
under special laws. The first view is based on this old design, which
is not being observed by the successors of Philippines Legislature
since they are now several mala in se punishable under special laws.
However, for purpose of the bar exam, if th e crime is sexual
abuse under Section 5 of R.A. No. 7610, fencing, or hazing, the first
view must be followed because the Supreme Court says so. On the
other hand, if the crime is child abuse under Section 10 of R.A. No.
7610
1, pl uunder,
d carnapping, piracy or highway robbery/brigandage
under P.D. No. 532, trafficking in person or terrorism, second view
must be observed.
P artakes the Char a cter of M a lu m P r o h i b i t u m
h
s there an act that can be classified as malum in se and malum
prohibitum at the same time? (1997 Bar Exam
) Yes. Settled in the
rule that violation of R.A. No. 3019 partakes of the nature of malum
prohibitum. (L u c iano v. Es t r e lla, G . R. N o . L - 8 1 622, Au gust 8 1 ,
1970) However, the offense under Section 8(e) of R.A. No. 8019 may
be committed either by dolo, as when the accused acted with evident
bad faith or m anifest partiality, or by culpa, as when the accused
committed gross inexcusable negligence. (Plameras v. People, G.R.
No. 187268, September 4, 2018) Since malice, evident bad faith or
manifest partiality is an element of violation of Section 8(e) of R.A.
No. 8019, this crime also partakes the character of malum in se.
CHARA C T E RISTIC OF CRIMINAL LAW
Th e re are t h r e e ch ara'cteristics of c r i m i na l l a w ( 1 9 5 3
an d
19 88 Bar Exams) o r cardinal features of principles of criminal l a w
(1978 Bar Exam), to w i t: ( 1) generality, (2) territoriality, and ( 3 )
~ro~secti~vi . T hese principles have something to do with the scope
J9JC9B0M
I. FUNDAMENTAL PRINCIPLES 21
of application of criminal law. Criminal law shall be applied to any
person residing or sojourning in the Philippines territory (generality)
w ho committed a c r i m e w i t h n i " 'th e t e r r i t or y o f t P hi l i p p i n e s
.(terr'
ito'ria~ity on or "after tTie 'effecCiv'ity'thereof rospectivi
GENERALITY
Under Article 14 of the Civil Code, penal laws shall be obligatory
upon all who live or sojourn in the Philippine territory. This is the
generality principle.
Foreigner
The foreign characteristic of an offender does not exclude him
from operation of penal laws. (People v. Galacgac, C.A., 54 O.G. 1027)
The argument of accused that h e di d no t i n cu r c r i m i nal l i abilit y
because both he and th e v i ctim w er e I n donesians is not t enable.
(2015 Bar Exam) An alien is not immune from criminal prosecution
for violation of the Tr ademark Law committed in th e Phil ippines.
T rademark L a w i s o b l i g atory t o a f o r e i gner, wh o i s l i v i n g o r
sojourning in the Philippines. (2011 Bar Exam) The Revised Penal
Code is obligatory to a Malaysian citizen, who killed an Australian
citizen in the Philippines territory. (2019 Bar Exam)
Mihtary Offender
Penal laws are obligatory to.military men residing or sojourn-
i ng in the Philippines. The courts have jurisdiction to try m i l i t a r y
offenders charged with violation of the penal laws. (U.S. v. Smith,
G.R. No. 14057, January 22, 1919) Its jurisdiction is unaffected by
the military or other special character of the accused. (U.S. v. Suieet,
G.R. No. 448, September 20, 1901; 1948 Bar Exam) Ho wever, ser-
vice-connected crimes shall be tried by court-martial as mandated
by R.A. No. 7055. (Navales v. Abaya, G.R. No. 162818, October 25,
2004)
T erritor i a l ity and Gener a l i t y
The concept of generality is di fferent from t err i t oriality. The
applicability of t e r r i t oriality p r i n ciple or generality p r i n ciple will
depend on th e i s sue r aised by th e a ccused in i n v oking cr i m i nal
immunity. If th e accused invokes immunity because of the unique
characteristic of his person (e.g., he is a foreigner, military, hermit,
primitive, a m b a ssador, l e g i slator , p r e s i dent), t h e ap p l i c able
 22 CRIMINAL LAW REVIEWER
VOLUME I
principle is generality. If the accused invokes immunity due to the
unique characteristic of the place where the crime wa was commi'tt. ed
e. . tehe pl aaccee of commission is a foreign vessel, embassy, or high
(e.g.,
s eas, etc.), the applicable principle is territoriality.
E xceptions to the Generality P r i n c i p l e
Under Ar t i cle 14 of th e C i vi l C ode, the generality p r i n ciple
i s subject t o p r i n c i ples of p u b li c i n t e r n ational l a w a n d t r e a t y
stipulation. However, law of preferential application and case law
are alsorecognized exceptions to the principle of generalitv.
1. P r i n c i p l e s o f I n t e r n a t i o na l L a w — P e n a l l a w s a r e
not obligatory to persons entitled to criminal i m m u n ity because of
the principles of international law. Under the old rule, a consul was
not exempt from cri m i nal p r osecution for vi olation of th e l aws of
the country where he resided. (Schneckenburger v. M cran, G.R. ¹.
44896,July 81, 1986) Under the present rule, consular officers are
immune from criminal prosecution of acts performed in the exercise
of function. (1967 Convention on Consular Relation) Immunity does
not cover slander (Liang v. People, G.R. No. 125865. J
) or reckless imprudence resulting in homicide (1 975 Bar Exam)
for not being function-related.
A Chinese diplomat, who ki lled another Chinese diplomat in
Cebu, is immune from criminal prosecution. (The Vienna Convention
on Diplomatic Relations ) Unlike consular officers, diplomatic agents
are vested with blanket diplomatic immunity from civil and criminal
suits. (Minucher v. Hon. CA, G.R. No. 142896; f
ebruary 11, 2008)
Unlike Ministers, Presidents, Ambassadors, and Chiefs of Mission,
a Commercial Attache is not a di plomatic agent. Hence, he is not
exempt from the generality r ul e of criminal law. (2011 Bar Exam)
F rench di plomat s t a t i oned i n t h e P h i l i p p i nes i s i m m u n e f r o m
c riminal prosecution for reckless imprudence resulting ' h
prosecution for mul t i ple frustrated and attempted murders.
(2016
Bar Exam)
2. Laws of Preferent ial Appl ication — Art i c le 849 of the
Revised Penal Code on bigamy is not obligatory to Muslims married
in accordance with the Muslim laws because of P.D. No. 1088 (The
C ode of Muslim Personal Laws). Under P.D. No. 1088, penal a w s
under Muslim l a w w h e re t he r e q uire ments set t h e rein a re m e t .
( arbella-Bobis v. Bobis, G.R. No. 188509, July 81, 2000) P.D. No.
J9JC9B0M
I. FUNDAMENTAL PRINCIPLES
1088 is alaw of preferential application. However, if the marriage
is not sol m n i zed i n a c cordance with M u s li m L a w , t h e a ccused
cannot claim cri m in a e x emp ion r o m i a i i y or i a y „ e
asis o is e as a us im ecause o e generality
principle. (Abubakar v. Area, G.R. No. L-14916, December 29, 19'62)
P.D. No. 1088 is not applicable since the marriage was not made in
accordance with th e M u slim l aw. (No llora, Jr. v. People, G.R. ¹
191425, September 7, 2011)
8. C a s e Law —Penal laws are not obligatoryto the President
b ecause of p r e sidential i m m u n it y r e cognized by c ase l aw . T h e
President of the Philippines is entitled to immunity from suit subject
to the following conditions: (1) the immunitygxas-been, asserted; (2)
during the period of hi s i n cumbency and,t enure; and (8) th e act
constitu'tiiig the ciime is coin'iiiitted in the~erformance of his duties.
Presidential immunity will assure the exercise of presidential duties
and functions free from any h i n d r ance or distraction, considering
that the Chief Executive is a job that demands undivided attention.
(Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001)
During th e p eriod of hi s i n cumbency and t enure, President
Aquino cannot be charged wit h r e ckless imprudence resulting in
multiple homicides in connection wit h t h e M a m asapano incident
where 44 SA F m e m bers w ere k i l led because of hi s p r esidential
immunity. H i s d e cisions concerning t h e h a n d l in g o f t h e p o l i ce
operation leading to the tragic event are official acts. However, after
the tenure of the President h e can be cr' e
' vocable. But, in Na c ino v.
presidential imm unity is not an
ce o t e m u sma n , G . R. Nos. 284789-91, October 16, 2019,
the Supreme Court f ound n o p r obable cause to charge President
Aquino for reckless imprudence resulting in m u l t i ple homicides in
connection with the Mamasapano incident. It was held that Aquino
participated in the planning of Oplan Exodus to arrest Marwan and
'd .
'
Usman by approving the suggested alternative date of execution and
ordering the increase in the number of troops and coordination with
the AFP. However, these acts barely qualify A quino as an active
player in the entire scheme of the operations, more so point to any
criminal negligence on his part.
It is submitted that a Vice President could not invoke immunity
from criminal p r osecution for pl u nder an d corruption under R.A.
No. 8019 on t h e f o l l owing r e asons: (1) p l u n der an d c o r r u ption
are not his official conducts as a Vice President; (2) the job of' the
Vice President, unlike the head of the executive department, does
not demand undivided attention; (8) and the implementation. of
 24 CRIMINAL LAW REVIEWER
VOLUME I
principal penalty of imprisonment for plunder and corruptior is not
inconsistent w it h t h e c onstitutional p r ovision on n o n -reiroval of
impeachable officer except through impeachment proceedin~ since
e can function as Vice President while serving sentence in prison.
However, accessory penalty o f d i s q u alification, which i n v olved
removal from office, is not i m p l ementable since the enforcement
thereof will offend Section 2 of Article XI of the Constitution, which
mandates that the Vice President may be removed from office only
through an impeachment proceeding. The provisions of the Pwvised
Penal Code shall be enforced within the Philippine territory.!'.4rticle
2 of the Revised Penal Code)
TERRITORIAL PRINCIPLE
The provisions of th e Revised Penal Code shall be enforced
within the Philippine territory (Article 2) of the Revised Penal Code.
Criminal Effects
For purposes of venue under the Rules of Criminal Procedure
and territoriality principle under the Revised Penal Code, the place
of commission of the cri m i nal act, and th e pl ace of occurrence of
e 'eRect, of'such'act,' whicIi "is'aii"elemerit of the c'rime, sh Il b
considered.' If one pulled the 'tri'g'ge'r" ofTii's gun in Quezon C ty and
hit the victim i n M a n il a wh o died as a consequence, Quezon City
a nd Manila, w h ich ar e th e p l aces of commission of th e cr i m i n al
act and the occurrence of the cr i m i nal effect a r e p r oper
If the p sychological v i o l ence c onsisting o f m a r i t a l i n fi d e l i t y
punishable under R.A. No. 9262 is committed in a foreign land but
the psychological effect occurred in th e P hi l i p pines since th 'f
an t e c h i l d ren of the offender, who suffered mental anguish, are
residing in the Philippines, our court can assume jurisdiction. i'see:
AAA v. BBB, G.R. ¹. 212 4 4 8, Ja n uary 1 1, 2018):;However. if the
c ommission of th e c r i m i nal ac t c onsummates the cr im e an d t h e
effect thereof is not an element of the crime, the place of occurrence
o f the effect shall n o t b e c o n sidered for p u r p ose of v e nue a n d
territoriality rule. Bigamy committed in a foreign land is be ond the
'urisdiction of o court a ou g
e o en e s ous e is residin in
t e i i ines since the psyc o ogica ef ecto i gamy o e r i s n o t
an element thereof.
Embassy
T he ground occupied by the US embassy in Roxas Blvd. Ermi t a ,
anila is the territory of the Philippines and not of the United States
J9JC9B0M
I. FUNDAMENTAL PRINCIPLES 25
of America. A person who committed a crime within the premises of
an embassy s al l b e r o s e cute ines
ecause o e c e of t er r i t o r i a li t . (R eagan v. Commission on
Internal Revenue, G.R. ¹ . L - 2 6 8 79, December 27, 1969; Answers to
2009 Bar Examination Questions by UP Law Complex) According to
CA Justice Coquia, the modern tendency among writers is toward
rejecting the fiction of extraterritoriality of diplomatic premises. In
the case of Kent, the B r i t i sh c ourts held t h at a c r i me c ommitted
in a foreign embassy is a crime committed in the U n i ted Ki ngdom
and the offender, if not protected by diplomatic immunity, is liable
to prosecution i n t h e B r i t i s h c ourts. (I n t ernational L a w , S ecoiid
Edition, by Jeorge R. Coquia and M i r i a m D efensor Santiago, pp.
548-549)
However, jurisdiction of the Phi lippines over the embassy is
limited or restr'icted::by "the principles of inviolability of diplomatic
premises~"which is a generally accepted principle of International
Law. A warrant of arrest cannot be served inside the US embassy
without waiver from US government of its right under the principle
of inviolability.
T erritor ial Wat e r s
Territorial waters refer to all waters seaward to a line +
T hese waters are locate e w e e n
the national or archipelagic waters and the territ orial lands of the
Philippines, and th e h i g h s ea. Terr i t orial w a t ers do not i n c lude
national waters, which are within the baseline drawn in accordance
with the archipelago doctrine.
T here ar e t h r e e f u n d amental r u l e s i n I n t e r n a t ional L a w
regarding crimes committed aboard a foreign merchant vessel (not
military vessel), if the same is within t he 1 2-mile territorial water
of the Philippines (not internal or archipelagic water or high seas),
to wit:
1. F r e n ch R ule — Un d er the F rench rule (Flag State
Principle), crimes committed a b oard a f o r e ign m e r chant v e ssel
within th e t e r r i t orial w a ter of t h e P h i l i p pines are subject to ithe
jurisdiction of th e fl a g s t at e u n l ess their commission affects the
peace and security of our country.
2. E n g l ish Rule —Under the English rule (Coastal State
Principle), crimes committed aboard a foreign merchant vessel
 26 CRIMINAL LAW REVIEWER
VOLUME I
within th e t e r r i t or ial w a ter of th e P h i l i ppines (coastal State) are
subject to the jurisdiction of the Philippines unless their commission
d oes not affect th e peace and security of ou r c ountry, or h a s n o
pernicious effect therein.
8. Con v e n t i on of the L aw of th e S ea — The flag state of
foreign merchant vessel passing through the terr i t orial sea of the
Philippines (coastal state) has jur i sdiction over crimes committed
therein. H owever, th e P h i l i p p in es c an exercise ju r i sdiction t o
arrest any person or to conduct any investigation in connection with
a ny crime committed on board the ship du r ing it s passage in th e
following cases: (1) if the consequences of the crime extend to th e
Philippines; (2) if the crime is of a kind to disturb the peace of the
Philippines or the good order of the territorial sea thereof; (3) if the
assistance of the local authorities has been requested by the master
of the ship or by a diplomatic agent or consular officer of the flag
State; or(4) if such measures are necessary for the suppression. of
illicit traffic in narcotic drugs or psychotropic substances. (Section 2,
Article 27 of the Convention of the Law of the Sea)
Under the old rule, the controlling principle was the English
rule. (People v. Cheng, G.A v No. 1-18924, October 19, 1922) But since
t he Philippines is a signatory to the Convention of the Law of th e
,Sea, it must be considered in determining ju r i sdiction over crime
committed aboard a foreign ship wit hin th e territorial water of the
Philippines.
Murder is committed on board a f o r eign m erchant vessel
ew moments after it l eft th e port of M a n il a (2015 Bar Exam); or
docketed in the' port of Manila (2019 Bar Exam); or in the breakwater
of Manila Bay (2011 Bar Exam). Since the vessel is located within
the territorial w a t ers of t h e P h i l i p pines, and m u r der committ ed
by the offender disturbs the peace of the Philippines, he could be
prosecuted in the Philippines in accordance with the Convention of
the Law of the Sea.
Spratly Islands and Regime of Is lands
Spratly Islands are chain of islands in the South China Sea, the
ownership of which is being disputed by the Philippines, Taiwan,
Malaysia, Vietnam, Br u n ei, and C h i na. Th e People's Republic of
China considers the entire Spratly I s l ands as part of C h i na, and
c laims tha t i t h a s h i s t o rical n a val p r esence therein. T h us, t h e
Philippines had no jurisdiction over a crime committed by a Filipino
in the disputed Spratly Islands. (2011 Bar Exam)
J9JC9B0M
I. FUNDAMENTAL PRINCIPLES 27
However h i l i p pi n e s has jurisdiction over crime committed
in an Islan s w h i ch are the western part of Spratly Islands.
Kalayaan I s l a nd s b e came r e s n u l l i u s (nobody's property)
when Japan, which had brieflyoccupied them during World War
II, renounced their sovereignty over the island through the Treaty
of Peace. Tomas Cloma, who actually di s covered the uninhabited
islands, ceded his right in favor of the Philippines. The Philippin.es
asserted ownership over Kalayaan Islands by establishing therein
the M u n i cipality o f K a l a y aan i n 1 9 7 8 . T h e n a t i onal a n d l o c al
elections are even regularly held there.
The court has 'urisdiction over a crime committed in Kalayaan
Islands or - rou h S h o a r eg i m e s o f i s l a n ds, because th e
Baseline Law (R.A. No. 9522 declares that the Philippines exercises
sovereignty and jurisdiction over it.
200 miles exclusive economic zone
The Philippines has no soverei nty over the 200 miles exclusive
e conomic zone. Under th e conven son of th e l a w o f t h e s ea, t h e
resources i n t h e . This sovereign r i gh t i s n o t e q u i valent, to
sovereign y. n d e r t h e convention, foreign States have the freedom
of navigation and overflight over th e exclusive economic zone of
the Philippines. Freedom of n avigation an d overflight cannot be
exercised ina place where a State has sovereignty such as its 12-mile
territorial water. Under the convention, the Philippines has~hmit d
jurisdiction over crimes committed wi t hi n t h e exclusive economic
z one such as those involving fiscal c u stom i m m i at i o n h e a l t h ,
and safet a n d th coa un r n.
a e a s absolute jurisdiction over crimes committed in a territory
over which it has sovereignty subject only to a few exceptions under
international laws. The recognition of f r eedom of navigation and
overflight and the limited jurisdiction over crimes committed in the
exclusive economic zone militate against the concept of sovereignty.
If a Chinese fishing vessel deliberately bump a Filipino vessel
in the West Philippines Sea covered by the exclusive economic zone
of the Philippines, and as a consequence, several Filipino fishermen
died, the Philippines's jurisdiction over the crimes of murder cannot
be based on the theory that t h e P h i l i ppines has sovereignty over
the zone. Other pr inciples must be used to justify it s j u r i sdiction
over murders committed within th e zone such as flag state rule or
passive personality principle.
 28 CRIMINAL LAW REVIEWER
VOLUME I
Under Section 3 of R.A. No. 8550 (Fisheries Code), the provision
of this Code shall be enforced in the Philippine Waters including the
2 00 miles exclusive economic zone. Hence, illegal fishing within th e
zone is within the jurisdiction of the Philippines.
F oreign Countr y
Under th e Pr i n c i ple of T e r r i t o r i a l it y, t h e P h i l i p p i nes h a s
j urisdiction o ve r c r i m e s committed i n s id e i t s t e r r i t or y e x cept
as provided in the treaties and laws of preferential application.
(Article 2 of the Revised Penal Code) Thus, the court has jurisdiction
t e Phi i e u t i t h a s n o u r i s d i ction over i a m i n v o v i n g
s u sequent marri a e ontra t d ' n H o n K o n g ( 1 984 B a r
xam),
ingapore (1994 Bar Exam) or New York ( 2008 Bar E xam). But a
lawyer can be disbarred from contracting a bigamous marriage in a'
foreign country. (Perez v. Catindig, A.C. No. 581 6, March 10, 2015)
X and Ycannot be prosecuted for use of dangerous drugs under
Section 15 of R.A. No. 9165 committed in Amsterdam because of the
principle of territoriality. (2018 Bar Exam)
E xtrater r i t o r i a l ity P r i n c i p l e
Article 2 of the Revised Penal Code provides two principles, to
uit: Territoriality Pri nciple and Extra territoriality Principle. Both
principles are subject to treaties and laws of preferential application.
|"1 95~ar E x a m )
Under the pr i n c i ple of e x t r a territoriality, th e p r o v isions of
theQevised Penal Code shall be enforced outside the Philippine
territory as provided in Ar t i cle 2, pars. 1 to 5 of the Revised Penal
Code. (1948, 1958, 1959, 1964, 1970, 1973, and 1982 Bar E x a ms)
In sum, the Philippines has jurisdiction over crimes mentioned in
any of these five paragraphs even if they are committed outside its
territory.
1. F la g S t a t e R u l e — Un d e r t he flag state rule, the court
has jurisdiction over the hijacking of PAL airplane in an American
territory since it is registered in the Philippines. (1971 Bar Exam)
The United State of America has also jurisdiction over such crime
since it was committed within its terr it ory. In sum, the Philippines
and United States of America have concurrent jurisdiction over this
hijacking.
J9JC9B0M
I. FUNDAMENTAL PRINCIPLES
The Philippines has no jurisdiction over a murder committed
i n a vessel registered in Panama while on high seas although it i s
owned by a Filipino. In this case, Panama for being the fiag State
has jurisdiction over this murder. The flag State is the State where
the vessel is registered and not th e S t ate of w h ich th e owner tof
the vessel is a citizen or national. (see: US v. Fowler, G.R. No. 496,
December 31, 1902; 2000 and 2012 Bar Exams)
2. Fo r ge r y — Un d er the protective principle, criminal laws
shall be en forced outside t he j u r i s d iction of P h i l i p p ines against
persons who should forge or counterfeit Philippine coin or currency
note (money) or obligations and securities (e.g., Treasury bill) or who
should int r oduce (import) f orged currency note or securities and
obligations into the Philippines. (Article 2, pars. 2 and 3)
X a resident of Hong Kong, who counterfeits Philippine money
in Hong Kong, can be prosecuted in the Philippines. Even though the
crime is committed outside the territory of the Philippines, X cannot
invoke th e t e r r i t o r i alit y p r i n c i ple. U n der t h e e x t r a t err it oriality
principle, the provisions of the Revised Penal Code shall be enforced
outside the jurisdiction of the Philippines against those who should
forge or counterfeit Philippine currency note. This is an exception
to the territoriality p r i n ciple. (1950 Bar E xa m) E v en though X i s
not residing or s ojourning i n t h e P h i l i p p ines, he cannot i n v oke
t he generality pr i nciple. Under the protective principle, State~ ~
urisdiction over acts committed abroad b na t i o n a ls or foreigners,
( Outline Reviewer i n P o l i t i cal L a w b y J u s t ice An tonio E d u a r d o
Nachura) This is an exception to the generality principle. (2012 Bar
Exam)
Forgery of U S d o l la r c o m m i t ted in s i de th e t e r r i t ory of t h e
Philippines c an be p r o secuted in t h e P h i l i p p ines because of the
principle of t er r i t oriality. ( 2 011 Bar E x a m) Forgery of US dollar
comm
ittedoutsidetheterritoryofthePhilippines cannotbe prosecuted
in the Philippines because the principle of extraterritoriality is only
applicableto forgery of Philippine peso. (1950 Bar Exam)
3. F
'
— e ated Crime — Fu n ction-related crimes
are tho s om m i t t e d b y p u b li c officer u n d e r t h e R e vised Penial
Code and under specia crimin a a w s uch as Anti-graft and Corrupt
Practices Law and Plunder Law. The functions contemplated by this
rule include those which should be performed under the law by t]he
public officers in the foreign service of the Philippine government
in a foreign country. Thus, the following can be prosecuted in th e
 30 CRIMINAL LAW REVIEWER
VOLUME I
P hilippines: (1) falsification of public document by a consul of th e
P hilippines stationed in a f o r eign country i n c onnection wit h h i s
f unction of issuing visa allowing a f or eign applicant t o enter t h e
Philippine soil is within the jurisdiction of the Philippines (1962 Bar
Exam); and (2) plunder committed at his place of assignment abroad
by a Philippine public officer. (2011 Bar Exam)
Under extraterritoriality r u l e, the court h as jur i s diction over
direct bribery and falsification of document committed by a public
officer in a Philippine consular premise stationed in America but not
corruption of public officer, and falsification of document committed
by private individual as principal by i n ducement. (1962 and 1986
Bar Exams)
4. N a t i o n a l Secur ity —Under the protective principle, the
provisions on crimes against national security, such as treason and
espionage, shall apply even outside the jurisdiction of the Philippines.
Rebellion is not a crime against national security; hence, the Code
cannot be given extraterritorial application for rebellion committed
outside the territory of the Philippines. (2011 Bar.Exam)
5. U ni v e r s al Cr ime —Under the universality principle, the
court has jurisdiction over piracy committed on high seas for being
a universal crime; but it ha s no u r i s diction over murder ualified
b y the circumstance of taking advantage of t e c a l a mi t b r o u g h t
e as. e -mi e territorial w ater of
aa 198 6 B ar Exam), Taiwan (2008 Bar Exam), or Dutch (People
v. Lol-Lo and S ar a w, G .R. No. L- 1 7958, February 27, 1922) may
be considered as high sea; hence, piracy committed therein can be
prosecuted in the Philippines because of the universality principle.
There are only thr ee'crimes against the laws of nation under
the Revised Penal Code, to wit: piracy, qualified piracy, and mutiny.
Pirates are in law hostes humani generis. Piracy is a crime not against
any particular state but against all m a n k i nd. It ma y be punished
in the competent tr i bunal of any country w h ere the offender
er ma
b e found or into which he may be carried. Jurisdiction over pirac
u nlike all ot her cr i mes has no t er r i t orial l i m i ts. As i t i s a c r i m e
against all, so it may be punished by all. ¹r do ' e~it matter that the
crime was'committed within the territorial waters o
f a foreign state.
(People v. Lol-Lo and Saraw, ibid.)
The underlying re a sons b ehind t he e x t r a te rrito riality r u l e s
are as follows: (1)under the flag state'rule, a vessel registered
in the Ph i l ippines is considered an extension of th e P h i l i p pines.
J9JC9B0M
I. FUNDAMENTAL PRINCIPLES 31
(2) the protective int erest pr i n ciple involving forgery and cringes
against national security seeks to protect the financial stability and
existence of the State; (3) the extraterritoriality principle involving
function-related crime committed by a public officer is designedj to
implement the constitutional mandate on public accountability; and
(4) the universality pr inciple involving piracy and mutiny protects
v essels while travelling on high seas, which is important in w or l d
trade and commerce. (1982 Bar Exam)
Special Law s
The territoriality pr inciple and extraterritoriality pr inciple in
Article 2 of the Revised Penal Code are applicable even if the crime
is punishable under special laws. Thus, Ar t i cle 2 on t er r i t oriality
i s applicable t o v i o l ence against w o ma n u n d e r R . A . N o . 9 2 6 2
(AAA v. BBB, G.R. No. 212448, January 11, 2018) while that on
extraterritoriality applies to piracy under P.D. No. 532 (People v.
Tulin, G.R. No. 11 1709, August 80, 2001), or plunder under R.A.
No. 7080. (2011 Bar E x a m ) H o w e ver, A r t i c le 2 o f t h e C o d e i s
not applicable to t r a f ficking i n p e r sons, terrorism, conspiracy to
commit terrorism, financing of terrorism, and conspiracy to corn!mit
f inancing of t e r r orism b ecause the l aw s t h a t p u n ish t h e m h a v e
specific provisions for extraterritorial rul e.
1. T r af f i c k in g i n P e r s on s — Th e S t a t e s h a ll e x e rcise
jurisdiction over t r afficking i n p e r son even i f c o mmi tted outside
the following conditions: (1) The t r afficking i n p e r sons has been
commenced i n t h e P h i l i p p i nes an d o t h e r e l e m ents h av e b e en
committed in another country; (2) The suspect or accused: (a) IIs a
Filipino citizen; or (b) is a permanent resident of the Philippines; or
(c) has committed the act against a citizen of the Philippines; (3) A
foreign government has not prosecuted or is prosecuting a person
f or trafficking in p erson except when t h ere is an a p proval of t h e
may Secretary of Justice. (Section 26-A of R.A. No. 9208 as amended R.A.
' acy
No. 10864)
2. Ter r or i s m — T h e p r o v i s ions of t h e T e r r o r i sm L a w
or Human Security L a w s h al l a p pl y t o i n d i v i dual p ersons who,
although physically outside the territorial lim its of the Philippines:
( 1) Conspire or plot to commit terrorism inside the territorial limit s
of the Philippines; (2) Commit any of the crimes involving terrorism
on board a Philippine ship or Philippine airship; (3) Commit;any
1 of the crimes involving terrorism w i t hi n an y e m bassy, consulate,
 CRIMINAL LAW REVIEWER
VOLUME I
or diplomatic premises belonging to or occupied by the Philippine
government in a n o f ficial capacity; (4) Commit an y of th e cr i m es
i nvolving t e r r o r i sm a gainst P h i l i p p i ne citizens o r p e r s ons of
P hilippine descent, w h er e t h ei r c i t i z enship o r e t h n i cit y w a s a
factor in the commission of the crime; (5) Commit any of the crimes
involving t e r r orism d i r ectly a g ainst t h e P h i l i p pine government.
(Section 58 of R.A. No. 9872)
3. F i na n c i n g of ter r o r ism —Section 19 of R.A. No. 10168
on financing of t e r r orism p r o vides a r u l e s on e x t r a t errit oriality
which are the same as those under Section 58 of R.A. No. 9472 on
terrorism. However, Section 19 of R.A. No. 10168 provides two more
rules on extraterritoriality if financing of terrorism or conspiracy to
commit financing of .terrorism is perpetrated outside the territory
o f the Philippines by a F i l i p in o n a t ional or a n a l i en, wh o i s n o t
extradited despiteof the request to extradition.
PROSPECTIVITY
Under t h e p r o s pectivit y p r i n c i p l e, c riminal l a w merely
punishes crimes committed on or after its effectivity. Under Article
21 of the Revised Penal Code, no felony shall be punishable by any
penalty not prescribed by law prior to its commission.
The prospective character of cri m i nal l aws presupposes that
they are prejudicial to the accused. If a criminal law is favorable to
the accused, it must be given a retroactive effect. (People v. Derilo,
G.R. No. 117818, April 18, 1997) Criminalization is prejudicial to the
accused. The law on criminalization should be given a prospective
e ffect. Hence, prosecuting a person for a crime committed~ r i o
mr to
the passage of the law punishing it is not allowed. (2014 Bar Exam)
R .A. No. 7080 was passed by Congress as a r eaction to t h e
amassing of the wealth of th e people allegedly by Ma rcos and his
cronies. However, Marcos and his cronies were not prosecuted for
t he crime of plunder under R.A. No. 7080. At th e t i m e t ha t t h e y
allegedly amassed their wealth, there is no crime of plunder. Nullum
crimen nulla poena sine lege. Thus, plunder committed on or after
the effectivity of R.A. No. 7080 is a crime but that perpetrated before
is not.
RETROACTIVITY
As a general rule, penal laws shall have prospective application,
lest they acquire the character of an ex post facto law.
(People v.
Ualeroso, G.R. No. 164815, February 22, 2008) However, there are
J9JC9B0M
I. FUNDAMENTAL PRINCIPLES
exceptions to the prospectivity rule. Laws shall be given retroactive
effect: (1) if the law is favorable to the accused, who is not a habitiial
d elinquent; (2) if th e la w d ecriminaliz s a n a ct ; or (3) i f t h e l a w
expressly providesretroactivity.
Favorable Law and Non-habitual Delinquency
Penal laws shall have retroactive effect insofar as they favor the
person guilty of a felony, who is not a habitual delinquent. (Article
22 of the Revisedu Penal Code; 1959 and 1978 Bar Exams) In sum,
t'
there are two,.req uimsites to apply thelaw retroactively in accordance
with Article 22, to wit: (1) the law is favoratlevto.the, accused; and (2)
the accused is not a habitual delinquent.
T he retroactive effect rul e benefits a convict al though he i s
already serving his sentence. (1947 Bar Exam)
Reclusion perpetua, wh ich h as d u r a tion of 40 y e a rs (Ar t i cle
27 of R e v ised P ena l C o d e), o r 3 0 ye a r s i f t h e ac c u s ed h a d
undergone preventive im p r isonment (A r t icle 29 of R evised Penal
Code as.amended by R .A. No . 1 0 592:, i s a l i g h t er p e nalty t h a n
l ife imprisonment, w h ich h a s n o d u r a t i on. H ence, a l aw , w h i ch
prescribes reclusion perpetua in s tead of l i f e i m p r i s onment fo r a
crime punishable under it , i s f avorable to th e accused; and thus,
it shall be given a retroactive effect. ''People v. Morilla, G.R. , ¹ .
189888, February 5, 2014)
R.A. No. 9346 prohibits the imposition of death penalty, pre-
scribes reclusion perpetua in lieu of death penalty or life imprison-
ment if the special law does-not use the nomenclature of the pen-
alties under th e Revised Penal Code, and declares that a p erson
sentenced to recLusion perpetua as a prescribed or reduced penalty
is ineligible for parole. This law has a retroactive effect. Penal laws
which are favorable to accused are given retroactive effect. (People
v. TaLaro, G.R. No. 175781, March 20, 2012)
But even if the law is favorable to the accused, itgh M b e given
%~ ~ e'rebec+ (1) jf hejs a habitual d elinquent;
or (2) if the law
ex
~ ressly provides pros@ectivity. (1959Bar Exam) For example, the
In~etermmate Sentence Law rs favorable to the accused. However,
it shall be given a prospective effect because the law says so. Section
2 of the Islaw provides that this Act shall not apply to those already
sentenced by final judgment at the time of approval of this Act.
1. D e c r i m i n a l i z a t i on - Decriminalization c a n be
made by repeal or by a m endment. R.A. No. 10655 decriminaliizes

CRIMINAL LAW REVIEWER
VOLUME I
premature mar r i age for b eing di scriminatory an d a n t i quated by
repeating Article 351 of the Code, which punished it. R.A. No. 10158
decriminalizes vagrancy since vagrants as victims of povertv should
be protected rather than punished. The old version of Article 202 of
the Revised Penal Code, punished prostitution and vagrancy. R.A.
No. 10158 amended this provision by deleting portion thereof on
vagrancy.
R.A. Nos. 10158 and 10655 shallbe given a retroactive effect.
ls a pr evious law an d d ecriminalizes the act
punished by the latter, the er ons
charged with the decriminalized act. (People v. Sindiong, G.R. No.
L-335, e r u a r y 12, 1947 ence, criminal cases for decriminalized
act should be dismissed without r e c o ndition.(2011 Bar Exam) I n
sum, the case will b e r s m r sse radar e s s of w h e ther or n ot t h e
accused is a habitual delinquent. Ar t i cle 22 of th e Revised Penal
eomfIe'wTi~ic disallows retroactive application ofthe law in favor of
a habitual delinquent is not applicable. The applicable prir ciple is
nullum crimen nulla poena sine lege. Since the intention of the new
law is to decriminalize an act punishable by the repealed law, the
accused should be acquitted orreleased if already convicted, even
though he is a habitual delinquent.
2. E x pr e s s P r o v i sion — C o n g ress in p assing a l aw c a n
insert a p r o v i sion o n r e t r oactivity s u bject t o t h e c o n stit u tional
prohibition o n ex po s t f a c to la w . I f t h e l a w e x p r e ssly,pr o v i des
retroactivity, the court mus~ t ' ~ve etroactiye@ffect tttbfhis law even
if the accused is a habitual d elinquent.
Under Section 68 of R.A. No. 9344 (Juvenile Justice and Wel-
fare Law), a child in conflict with th e law, who has been convicted
and is serving sentence at the time of the effectivity of this Act, shall
benefit from the retroactive application of this Act. He shall be im-
mediately released if he is so qualified under this Act or other ap-
plicable law.
If a child in conflict, who is a habitual delinquent, committed a
crime prior to R.A. No. 9344, he is entitled to retroactive application
thereof.Section 68 of R.A. No. 9344 expressly provides retroactive
application of the privileges to a child in conflict with the law without
+~.
con On the other hand, Article 22 of the Revised Pena~ Code
provides retroactive application ofthe favorable law subject tothe
condition of non-habitual delinquency. Since Section 68 of R.A. No.
9344 is a specific provision while A r t i cle 22 of th e Revised Penal
J9JC9B0M
I. FUNDAMENTAL PRINCIPLES 35
Code is a general provision, the latter yields to the former. Generailia
specialibus non derogant. Hence, th r e t r o a ctive beneficial effect of
R.A. No. 9844 is unconditional.
R.A. No. 10158, th e l a w o n d e cr i m in alization of v agrancy,
provides as arule on retroactivity. Sections 2 and 8 of the said law
provide that allpending cases for vagrancy shall be dismissed and
all persons serving sentence for v a gr ancy shall b e i m m e diately
released upon effectivity of this Act.
Effects of Repeal
There are th r ee k i n ds of r e p eal of c r i m i n al l a w, to w i t : ( 1 )
absolute repeal, which i n c l udes repeal w i t h out r e enactment; (2)
partial repeal or repeal with reenactment; and (8) general repeal.
1. A bs o l u t e R e p eal — Re peal of a penal law deprives the
courts of ju r i sdiction to p u n ish p ersons charged with a v i o l ation
of the old penal law prior to its repeal. (People v. Sindiong, supra;
4rizala v. Court of Appeals, G.R. ¹. 43 6 3 3,September 14, 1990) In
People v. Tomayo, G.R. No. L-41428, March 19, 1985, the accused
had appealed from a j u d g ment convicting t hem of a v i o l ation, of
a municipal ordinance, and w h il e t h ei r a p peal was pending, the
ordinance was repealed such that tl e act complained of ceased tol be
a criminal act but became legal. The case shall be dismissed. (1973
Bar Exam)
. The intention of the new law in totally repealing the old law is
to decriminalize an act punishable under the latter. In sum, under
the present law, the subject act is not a cr ime anymore. Hence, a
person should not be punished for committ ing a n on-criminal act
applying the principle of nullum crimen nulta poena sine tege.
Moreover, the present law decriminalizing an act is favorable to the
accused; hence, it should be given a retroactive effect without pre-
condition. (2011 Bar Exam)
The retroactive effect of a d ecriminalizing law sh all b enefit
a person who is already convicted or serving sentence. In sum, he
s hall be relieved of the penalty i m posed upon him for committ i n g
a crime under th e old l aw, which has been decriminalized by th e
present law. (1967 Bar Exam)
Repeal without reenactment is an absolute repeal. In People'ev.
Sindiong, supra, the accused was charged with violation of Section
1458 of th e R evised Admi nistrative Code. Thereafter, Tax C ode
repealed the Revised Administrative Code but did not reenact the
 36 CRIMINAL LAW REVIEWER
' VOLUME I
provision penalizing the acts of which the accused is charged. This
is an absolute repeal. The accused should be acquitted. Where the
repealing law failed to wholly penalize the acts, which constituted
the crime under the repealed law, the repeal deprives the courts of
jurisdiction to punish persons charged with a violation of the latter.
Malicious p r osecution or ac usacion o d e n u n cia f a l s a w a s
punishable under Ar t i cle 326 of the Spanish Penal Code of 1887.
However, Ar t i cle 35 7 o f t h e R e v i sed Penal C ode ha s ex pressly
r epealed th e o l d S p a n ish P e na l C o d e w ithout r e e nacting t h e
provision on m a licious prosecution. The i n t ention of th e R evised
Penal Code is t o d e crim i nalize m a licious prosecution. H owever,
one, who maliciously prosecuted another, can be held liable for false
testimony or perjury.
S ubornation of p e r j ur y w a s p u n i shable u n der Section 4 o f
Act No. 1697. However, Article 357 of the Revised Penal Code has
expressly repealed Act No. 1697 without reenacting the provision or
subornation of perjury. The intention of the Revised Penal Code is
to decriminalize subornation of perjury. However, a suborner, whc
causes or procures another person to commit perjury, can be helc.
liable for perjury as principal by inducement. (People v. Pudol, G.R.
¹. 4 5 6 18,October 18, 1988)
2. P ar t i a l Re p e a l — Re p eal with r e enactment of a penal
provision of the old law does not deprive the courts of jurisdiction
t o punish persons charged wit h a v i o l a tion of th e ol d p enal l a w
prior to it s r epeal. Such repeal even without a saving clause will
not destroy criminal liability of the accused. (U.S. v. Cuna, G.R. No.
L-4504, December 15, 1908; 1978 Bar Exam) T he in t e ntion of the
new law, which contains provisions on repeal and reenactment, is
not to decriminalize an act punishable under the old law but merely
to provide new rule.
If the new law, which repealed an old law w it h r e enactment
o f its penal p r ovision, is f avorable to t h e a ccused, who i s no t a
habitual delinquent, it shall be given retroactive effect. Otherwise,
its application is prospective.
CC A >>
A w a s c h a r ged for t h e c r i m e o f r a p e u n der t h e o r i g i n al
version of Article 335 of the Revised Penal Code where the penalty
is reclusion temporal. Ho wever, during t he p endency of the case,
R.A. No. 8353 expressly repealed Article 335 of the Code ',Note:
This repealed provision is erroneously described as Article 336) but
reenacted the provision on rape by inserting Article 266-A and B in
J9JC9B0M
I. FUNDAMENTAL PRINCIPLES 37
the Code, which now punishes simple rape with reclusion perpetua.
The repeal of Article 335 does not deprive the courts of jurisdiction
to try and punish "A." for rape under this provision. It is no intention
of R.A. No. 8353 to decriminalize rape. However, R.A. No. 8353 shall
be given prospective effect since it is prejudicial to the accused. If
convicted, the penalty of reclusion temporal under Article 335 shall
be imposed upon the accused. (see: People v. Ugang, G.R. No. 144086,
May 7, 2002)
"A" was charged for the use of prohibited drugs under Section
8 of R.A. No. 6425, which is punishable by imprisonment. However,
during the pendency of the case, Section 100 of R.A. No. 9165 has
expresslyrepealed R.A. No. 6425 but reenacted the provision on use
of dangerous drugs under Section 15 thereof, where the penalty for
first time offender is only rehabilitation. The repeal of R.A. No. 6425
does not deprive the courts of jurisdiction to try and punish "A" for
the use of dangerous drugs. It is not the intention of R.A. No. 91I65
to decriminalize use of dangerous drugs. However, R.A. No. 91I65
shall begiven a retroactive effect since itis favorable to the accused.
If convicted, the penalty of rehabilitation under R.A. No. 9165 shall
be imposed upon the accused.
Section 45 ofR.A. No. 10591 has expressly repealed Sections
1 and 2 of P.D. No. 1866 on illegal possession of unlicensed fireari n.
However, the former has reenacted this crime by punishing illegal
possession of loose firearm under Section 28 thereof. R.A. No. 10591,
which prescribes a higher penalty for possession of loose firearm,
shall be given prospective effect since it is prejudicial to the accused.
(see: Jacaban v. People, G.R. No. 184855, March 28, 2015)
Section 22 of R.A. No. 10883 has expressly repealed R.A. No.
6539 on carnapping. However, the former has reenacted provision of
carnapping under Section 3 thereof. R.A. No. 10883, which prescribes
a higher penalty forcarnapping, shall be given prospective effect
since it is prejudicial to the accused.
3. Ab s o l u t e R e p eal an d P a r t i a l R e p eal — Th e effect of
a new law r epeal''ng an old law w i t h out r eenactment of it s penal
provision is decriminalization. This is an absolute repeal. On t;he
o ther hand, th e effect of th e new la w r e pealing an ol d la w w i t h
reenactment of its penal provision is amendatory. This is a partial
repeal.
The effects of absolute repeal to a crime punishable under the
old law committed prior to the effectivity of the repealing law are as
follows: (1) it will extinguish the criminal liability of the offender; I,'2)
 88 CRIMINAL LAW REVIEWER
VOLUME I
if there is already a pending case, it will cause the dismissal of such
case for lack of jurisdiction to try and punish the accused; ar d (3) if
the offender is already serving sentence, it will cause his release, or
the remission of the imposed penalty.
The effects of partial repeal to a crime punishable under the
old law committed priorto the effectivity of the repealing lav- are as
follows: (1) it will not extinguish the criminal liability of the offender;
(2) if there is already a pending case, the court's jurisdiction to try
and punish the accused will be retained; and (3) if the offender is
a lready serving sentence, the accused will c onti nue t o serve hi s
s entence; and (4) th e ne w l a w s h al l b e g i ven r e t r oactive if i t i s
favorable; otherwise, its application is prospective.
4. G e n e ral Repeal — A general repeal isa repeal of any
laws or its provisions, which are inconsistent with the new law. P.D.
No. 532 punishes piracy and highway robbery/brigandage. Under
Section 5 of P.D. No. 532, pertinent portions of the Revised Penal
Code and all laws insofar as they are inconsistent with t his Decree
are repealed or modified. This is a general repeal.
The effect of the general repeal will depend on the inter tion of
the new law.
P iracy as punishable'under th e R evised Penal Code "an b e
committed by any person excluding passenger and the comp ement
of the vessel. On the other hand, piracy under P.D. No. 532 can be
committed by any person including passenger and complement of
the vessel. The offender can be prosecuted either un der P.D. No.
532 or the Revised Penal Code since the intention of P.D. No. 532
is merely toexpand the concept of piracy by making the passenger
and crew an offender. (People v. Tulin, G.R. No. 111709, August 80,
2001)
Brigandage under the Revised Penal Code includes formation
o f band of, or a c t ual commission of r o bbery i n t h e h i g h way b y ,
brigands or highway-robbers. P.D. No. 532 increases the pen" lty for
highway robbery/brigandage involving actual commission of robbery
in the highway by b r i gands or h i ghway-robbers. The inten-.ion of
P.D. No. 532 is to amend Article 306 of the Revised Penal Code by
increasing its penalty. T h us, if t h er e i s a n a c t ual commission of
robbery in the highway by highway-robbers or brigands, they shall
be prosecuted under P.D. No. 532. (People v. Puno, G.R. No. 97471,
February 17, 1998)
J9JC9B0M
I. FUNDAMENTAL PRINCIPLES
Under Section 22 of R.A. No. 10883, which punishes carnap-
p ing, all l a w s i n c onsistent w i t h t h e p r o v i sions of t h i s A c t a r e
amended or repealed. The intention of R.A. No. 10883 is to make
carnapping an independent crime and provide penalties different
f rom those prescribed for qu alified t h eft or r o bbery. Thus, if t h e
offender took the motor vehicle without consent of the owner or by
means of violence or intimidation or by using force upon things, he
shall be prosecuted for carnapping. (People v. Bustinera, G.R. No.
148288, tune 8, 2004)
Effects of Amendment
Amendment of penal law shall be given a prospecti ve effec,'t.
But if th e amendatory law is favorable to the accused, who is not
a habitual delinquent, the same shall be given a retroactive effect,
AMENDATORY EFFECT OF R.A. NO. 10951 TO THE REVISED
PENAL CODE
In case of Li to C orpus v. People, G.R. No. 180016, April 2'9,
2014, the Supreme Court t u r n e d t h e s p otlight o n t h e p e rceived
injustice brought about by th e r a nge of penalties that th e courts
continue to impose on crimes committed today, based on the amount
of damage measured by thevalue of money 80 years ago.
As shown in th e explanatory note of Senate Bill No . 14 that
became R.A. No. 10951, the Corpuz case was used as a basis f' or
adjusting the penalty of fine and amount involved or the value of the
property or damage on which the penalty is based under the Revised
Penal Code.
Times 200/100 Formula
The minimum w age rate on January 1, 1932, the date of
effectivity of the Revised Penal Code, is P2.50. However, in 201.7,
the year when R.A. No. 10951 was enacted, the minimum wage rs,te
reached more than P500. In sum, the minimum wage in 2017 is 200-
fold higher th an in 1 9 3 2. Hence, R.A. No. 10951 has adjusted the
penalty of fine and the amount involved, and value of the property or
damage on which the penalty is based under the Code by~multi l y i n g
them~b 2 0 t t
For example, the penalty for alarm and scandal under Article
155 of the Revised Penal Code is arresto menor or fine not exceeding
P200. R.A. No. 10951 has adjusted this amount of fine to P40,000 by
multiplying P200 by 200.
 40 CRIMINAL LAW REVIEWER
VOLUME I
However, because of restorative justice (HB No . 5513), R.A.
N o. 10951 sometimes uses the t i mes 100 formula i n m a k i n g a n
adjustment. For e x ample, th e p enalty fo r s i m pl e sl ander u n d er
Article 358 of the Revised Penal Code is arresto menor or fine not
exceeding P200. R.A. No. 10951 has adjusted this amount of fine to
P20,000 by multiplying P200 by 100.
There are instances where R.A. No. 10951 has adjusted the
penalty without using the times 200/100 formula. For example, R.A.
No. 10951 has amended Article 217 of the Revised Penal Code by
prescribing the penalty of reclusion perpetua for malversation if the
amount is more than P8.8 million. The penalty for malversation was
adjusted without using the times 200/100 formula.
Prospective Effect of R.A. No. 10951
The penalty of fine for slight oral defamation was adjusted by
R.A. No. 10951 from P200 to P20,000. Since this increased amount
of fine is not favorable to the accused, R.A. No. 10951 must be given
a prospective effect. Under A r t i cle 21 of th e Revised Penal Code,
no felony shall b e p u n i shable by an y p e n alty no t p r escribed by
law prior to its commission. In Ra mos v. People, G.R. No. 226454,
November 20, 2017, the Supreme Court said that R.A. No. 10951 has
already increased the prescribed fineto P20,000 for simple slander.
However, such adjustment could not be made to apply in this case as
the crime was committed prior to the law's enactment. It is settled
that penal laws are given retroactive effect only if their application
shall be favorable to the accused, which is not the case here.
The highest penalty for malversation under Article 217 of the
Revised Penal Code was reclusion temporal in its maximum period
to reclusion perpetua. However, under this provision as amended by
R.A. No. 10951, the penalty for malversation involving the amount
of more than P8,800,000 is reclusion perpetua. Since the imposition
of the graver penalty of re clusion perpetua is not favorable to the
accused, the amendatory effect of R.A. No. 10951 must be prospective.
Retroactive Effect of R.A. No. 10951
Section 100 of R.A. No. 10951 provides "this Act shall h a v e
retroactive effect to the extent that it is f a v orable to the accused or
person serving sentence by final judgment." This provision does not
require non-habitual delinquency as a condition for the retroactive
application of the favorable parts of R.A. No. 10951. Thus, even if an
J9JC9B0M
I. FUNDAMENTAL PRINCIPLES 41
offender, who committed malversation prior to R.A. No. 10951, is a
habitual delinquent, this law shall be given a retroactive effect as far
as the penalty under it is favorable to the accused. Article 22 of the
Revised Penal Code on the requirement of non-habitual delinquency
for the retroactive application of a favorable law is not applicable.
Between Article 22 of the Code, which is a general provision, and
Section 100 of R.A. No. 10951, which i s a s pecific provision, the
latter shall prevail.
It should be noted that Section 100, R.A. No. 10951 adds that
this retroactivity applies not only to persons accused of crimes but
have yet to be meted their final sentence, but also to those already
"serving sentence by final ju d gment." (People v. Valencia, G .A. ¹ .
225735, January 10, 2018)
In Hernan v. Honorable Sandiganbayan, G.R. No. 217874,
December 5, 2017, accused was convicted of m a lversation under
A rticle 217 of t h e R e vised Penal C ode i nvolving th e a m ount o f
P11,300 and sentenced to suffer a p enalty of 11 years, 6 mo nths
and 21 days of prision mayor. T he judgment becomes final prioi to
the effectivity of R.A. No. 10951. Under Art i cle 217 of the Code as
amended by R.A. No. 10951, the penalty for malversation involviing
an amount of no t e xceeding P40,000 is only pr i s ion correccional
in its medium an d m a x i mum pe r io ds. According to t he S upreme
Court, the general rule is that a judgment that has acquired finality
becomes immutable and unalterable and may no longer be modified
in any respect even if the modification is meant to correct erroneous
conclusion of fact or law. This rule is applicable whether the final
judgment was rendered by the lower court or th e hi ghest court of
the land, however, when exceptional circumstances exist, such as
the passage of R.A. No. 10951 imposing penalties more lenient and
favorable to the accused, the Court shall not hesitate to direct the
reopening of a final and immutable judgment, the objective of which
is to correct not so much th e f i n dings of guilt bu t t h e a p plicable
penalties to be i m posed. Because of R.A. No . 10951, sentence of
t he accused must be m odified respecting th e settled r ul e on t h e
retroactive effectivity of f a vorable laws. (Section 100 of R A . Ã o .
10951) Thus, the Supreme Court reduced the penalty to 3 years, 6
months, and 20 days of prision correccional.
B ecause of R.A. No . 1 0 951, not o nl y m u s t s e ntence of t h e
accused be modified respecting the settled rule on the retroactive
effectivity of favorable laws, she may even apply for probation.
 42 CRIMINAL LAW REVIEWER
VOLUME I
Remedies to Avail the Lesser Penalty U n der R .A. No. 10951
In connection wit h t h e e a rl y r e l ease of p r i soners convicted
o f malversation, theft, estafa, and r obbery by u s ing f orce or t h e
a djustment o f p e n alt y i n a c c ordance wit h R . A . N o . 1 0 9 51, t h e
S upreme Court i n a p e t i t i o n fo r a d j u stment o f p e n alty fi l e d b y
Elbanbuea, G.R. No. 287721, July 8 1, 2 0 18 issued the f ollowing
procedural guidelines:
I. Sco p e . T hese guidelines shall govern th e p r ocedure for
actions seeking (1) th e m o d ification, based on t h e a m en dments
i ntroduced b y R . A . N o . 1 0 9 5 1, o f penalties i m p osed b y f i n a l
judgments; and (2) the immediate release of the petitioner-convict
on account of full service of the penalty/penalties, as modified.
II. W h o m a y file. The Public Attorney's Office, the concerned
inmate, or his/her counseVrepresentative, may file the petition.
III. W h e r e to file. The petition shall be filed with the Regional
T rial
' Court exercising territorial jurisdiction over the locality where
t he petitioner-convict i s c onfined. Th e case shall b e r a f fied a n d
referred to the branch to which it is assigned within t h ree (8) days
from the filing of the petition.
Note: In a petition for adjustment of penalty filed by Saganib,
G.R. No. 240847, August 14, 2018, the Supreme Court E n B a n c
r emanded the case for d etermination of p enalty u n der R .A . N o .
10951 to the Regional Trial Court that convicted the accused.
IV. Pleadings. (A) Pleadings allowed. — The only pleadings
allowed to be filed are the petition and the comment from the OSG.
No motions for e x t ension of t i m e , o r o t h e r d i l a t ory m o t i ons for
postponement, shall be allowed. The petition must contain a certified
true copy of the Decision sought to be modified and, where applicable,
the mittimus and/or a certification from the Bureau of Corrections
as to the length of the sentence already served by petitioner-convict.
(B) Verification. — The petition must be in wr i t in g and verified b y
the petitioner-convict himself.
V. Co m m en t by the OSG. Within ten (10) days from notice,
the OSG shall file its comment to the petition.
VI. E f f ect of failure to filecomment. Should the OSG fail to
file the comment within the period provided, the court, motu proprio,
or upon motion of the petitioner-convict, shall render judgment as
may be warranted.
J9JC9B0M
I. FUNDAMENTAL PRINCIPLES
V II. J u d gment o f t h e cou r t . To avoid a n y p r o l o n ged
imprisonment, the court shall promulgate judgment no[t] later than
ten (10)calendar days after the lapse of the period to file comment.
The judgment shall set f orth t h e f ollowing: (a) The penalty/
penalties imposable in accordance with R.A. No. 10951; (b) Where
p roper, th e l e n gt h o f t i m e t h e p e t i t i oner-convict h a s b een i n
confinement (and whether time allowance for good conduct should
b e allowed); and (c) Whether th e p et i t i oner-convict is enti t led t o
immediate release due to complete service of his sentence/s,as
modified in accordance with R.A. No. 10951.
The judgment of t h e c ourt s h al l b e i m m e diately executory,
without prejudice to the filing before the Supreme Court of a special
civil action under Rule 65 of the Revised Rules of Court where th ere
is showing of grave abuse of discretion amounting to lack or excess
of jurisdiction.
VIII. Applicability of the regular rules. The Rules of Court shall
apply to the special cases herein provided in a suppletory capacity
insofar as they are not inconsistent therewith.
Incremental Penalt y
R .A. No. 10951 has abolished the i n cremental penalty r u l e
for estafa th r ough issuance of bouncing check under A r t i cle 815
of the Revised Penal Code. However, R.A. No. 10951 has retained
incremental penalty rule for other forms of estafa under Article',815
and theft under Article 809 of the Revised Penal Code.
Under the old r ul e or A r t i cle 815 of the Revised Penal Code
as amended by P.D. No. 818, estafa through issuance of bouncing
check is punishable by reclusion temporal plus incremental penalty.
However, the combination of the principal penalty and incremental
penalty shall not, exceed 80 years. If the penalty exceeds 20 years,
it shall b e t e r med re clusion perpetua, e.g., 80 years of re clusion
perpetua. Estafa th r o ugh i s suance of bouncing check is b ails.'ble.
For purposes of determining the bailability of the crime, the court
shall consider re clusion temporal, wh i ch is t h e pr i n c ipal pe nalty
prescribed forthis estafa, and not 80 years of reclusion perpetua,
which is only imposable after combining the prin cipal penalty and
incremental penalty. (Cenzon v. Santos, G.R. No. 164887, June 27,
2006)
However, under Ar t i cle 815 of the Code as amended by R.A.
No. 10951, the penalty of estafa through issuance of bouncing check
 44 CRIMINAL LAW REVIEWER
VOLUME I
if theamount of the fraud exceeds P8,800,000 is reclusion perpetua.
This crime is non-bailable. The Cenzon case is not applicable since
rec usion perpetua is now prin cipal penalty p rescribed b R . A . N o .
ri e y . o.
51 or this estafa involving an amount exceeding P8,800,000.
Jurisdictional Effect of R.A. No. 10951
R.A. No. 10951 increases the value ofthe property malversed
or stolen, or t h e a m o un t o f f r a u d , o n w h i c h t h e p e n a l t ies f or
malversation, robbery by using force upon thing, theft and estafa
are based. As a consequence, the penalties for these crimes were
drastically reduced. Because of the r eduction of th e penalties for
certain crimes, the ju r i sdiction of th e courts is m odified. Certain
crimes, which were previously within the jurisdiction of the Regional
Trial Court, are now jurisdictionally cognizable by the inferior court.
For
or ex
example, under the original version of Arti I
8 08 d 3 5
o e ev i s e d Penal Code, the line that separates the jurisdiction
o the Regional Trial Court an d i n ferior court for t h eft an d
is f
, . Under R.A. No. 10951, that line was increased to P1.2
million for theft and P2.4 million for estafa. As a consequence, R.A.
No. 109511 ha s s u bstantially expanded the j u r i sdiction of i n f erior
courts over the crimes of theft and estafa. The Regional Trial Court
will only have jurisdiction for theft where the value of the property
e xceeds P1.2 million and estafa where the amount f f
o r a ud e x c e de s
The amendatory effectsof R.A. No. 10951 are either favorable
to the accused or prejudicialto the accused. If a
f R.
o. 1 i s avo r a b le, it shall be given a retroactive effect.(Section
00 of R.A. No. 10951) If it is prejudicial, the effect is prospective.
(Article 21 of the Revised Penal Code) However, the expansion of
t e ju r i sdiction of the i nferior court as an i n cidental effect of th e
reduction of penalties for certain cr i mes under R.A. No. 10951 is
n either favorable nor prejudicial to th e accused since their r i g h t s
under the C onstitution an d l a w s h al l b e a ccorded regardless of
whether the cases involving such crimes are within the jurisdiction
o t e Regional Trial Court or inferior court. Since the jurisdictional
mo i c a t ion i s n e i t her f a v orable nor p r e j u dicial t o t h e a c cused,
Section 100 of R.A. No. 10951 and Ar t i cles 21 and 22 of the Code
jurisdiction, the applicable rules are Section 101 of R.A. No. 10951
and jurisprudential rule on time of institution of criminal action.
J9JC9B0M
I FUNDAMENTAL PRINCIPLES 45
Section 101 of R.A. No . 10951 provides: "For casespending
before the courts upon the effectivity of this Act where trial has already
. started, the courts hearing such, cases shall not losejurisdiction ever
the same by virtue of this Act." Un der OCA C i r c ular N o. 1 9-2018
dated January 81, 2018, the term "tri al" in Section 101 of R.A. No.
10951 which in p ar t s t a t es, "where trial ha s a l r eady started, the
Courts having such cases shall not losejurisdiction over the same "is
deemed to include arraignment.
Thus, wh er e t h e a c cused ha s a l r e ady b e en arraigned as
of September 16, 2017 (date of effectivity of R .A. No. 10951), the
R egional Tr ial C o ur t s h al l n o t l ose j u r i sdiction even th ough t h e
penalty for the crime charged under R.A. No. 10951 is now 6 years of
imprisonment or less. On the other hand, where the accused has not
been arraigned as of September 16, 2017, the Regional Trial Court
shall lose jurisdiction if the penalty for the crime charged under lR.A.
No. 10951 is reduced to 6 years of imprisonment or less.
However, if the crime was committed prior to September. 16,
2017 but the information was filed after such date, Section 101 of
R.A. No. 10951 is not applicable since the case is not yet pending
upon the effectivity of this law. Hence, the jurisprudential rule that
the jurisdiction of the court to hear and decide a case is conferred by
the law in force at the time of the institu t ion of the action (People
v. Benipayo, G.R. ¹. 154 4 7 8,Apr il 24 , 2 009) applies. In s um, if
the penalty for the crime charged under R.A. No. 10951 is 6 years
of imprisonment or l ess at th e t i m e of th e i n stit u t ion of criminal
action, the inferior court shall have jurisdiction over the same.
Penalty for Fencin g . Ir . p',,'„'ng ~5I 'A 'JOJ;].i
R.A. No. 10951 has amended the Revised Penal Code by
prescribing lesser penalties for 'theft t h r o ugh t h e a d j u stment of
the values of the properties stolen on which the penalties for theft
is based taking into consideration the value of the money in 2017.
However, R.A. No. 10951 failed to adjust the penalties for fencing.
This development would t hen r e sult i n i n s t ances where a f ence,
which is theoretically a me re accessory to the crime of robbery or
theft, will b e p u n i shed more severely than t h e p r i n cipal of such
latter c r i m es. T hi s i n c ongruence i n p e n a l t ies t h erefore, i mpels
an adjustment of penalties. Pursuant to A r t i cle 5 of RPC, the SC
furnished a copy of the decision on fencing the President through
DOJ, the Senate President, and the House Speaker to alert them on
the excessive penalties for fencing. (Cahulugan v. People, G.R. No.
225695, March 21, 2018)
 46 CRIMINAL LAW REVIEWER I. FUNDAMENTAL PRINCIPLES 47
VOLUME I

It should be noted that R.A. No. 10951 has also failed to adjust
the penalty for impossible crime.
CONSTITUTIONAL LIMITATIONS ON POWER OF CONGRESS TO
ENACT PENAL LAWS
Th
he constitutional li m i t a t i ons on power of Congress to enact
penal laws are as follows: (1) Equal protection, (2) Due process, (3)
Non-imposition of cruel and unusual punishment or excessive fine,
(4) Bill of attainder, and (5) Ex post facto law. (1988 and 2018 Bar
Exams)
Equal Protection Clause
The equal protection clause simply means that the law m
t In 1993, C ongress passed R .A .
treat
reat equally persons or properties similarly situated with r espect
to the conferment of rights or imposition of obligations.
Due Process Clause
Due process simply means basic fairness and adequate justice.
It is an embodiment of the sporting idea of fair play. It requires that
the law, in depriving a person his life, liberty, or property must be
fair and reasonable and that a person, whose life, liberty, or property
is at stake of being deprived in a case, must be given the opportunity
to be heard and afforded allrights to which he is entitled.
Non-imposition of Cruel and Unusual Penalty or Excessive Fine
A criminal w h o c ommit s t h e m ost h e i nous crim e i s s t il l a
human being. Though he deserves to be punished for committing a
crime, the government in doing so should not put him in a degrading
and inhumane situation. The Code of Ealantiao, which punished an
offender by death through bite of ants or mutil ation of arms, would
not pass the constitutional standard on imposition of penalty.
imposed as excessive. Although an a ccused is convicted under a
special penal law, the Court is not precluded from giving the Revised
Penal Code suppletory application in light of Article 10 of the salne
Code. (Mendoza U. People, G.R. No. 188891, October 19, 2011)
Prohibition o n t h e I m p o s i t ion o f D e a t h P e n a lt y ( R „A.
No. 9346) — The Constitution does not abolish death penalty. The
imposition of death penalty is merely suspended. Upon the effectivity
of the Constitution, it is incumbent upon Congress to immediately
pass a law defining h einous crimes and i m p osing death penalty
if there is a compelling reason to do so. It i s not enough that Ithe
crime is heinous to legislate for the imposition of death penalty„ In
addition, death penalty can only be imposed for a compelling reason.
N o . 7 6 5 9 r e storing d e ath
penalty for heinous crimes such as qualified rape, murder, robbery
with homicide, etc. Leo Echegaray, who was convicted for raping his
daughter, was the first person executed by lethal injection under R.A.
No. 7659. His execution sparked a heated debate on the morality of
the imposition of death penalty. In 2 006, the penal aspect of R.A.
No. 7659 has been repealed by R.A. No. 9346, which prohibits the
imposition of death penalty.
Bill of Attain d er
Bill of a t t ai nder is a l e g islation that i nf ii c ts p unishment on
an individual without a judicial tr i al. In passing a bill of attainder,
l egislature i n e f fect exercises judicial power i n d i s r egard of t h e
doctrine ofseparation of power.
Ex Post Fa cto L aud — An ex post facto law is a l aw w h i c h
retroactively affects that right or condition of an accused who
committed a crime prior to its effectivity. (2015 Bar Exam)

Accused was convicted for violation of R.A. No. 8282 for

his failure to r e mi t SSS contributions of hi s employees and was
sentenced to suffer up to 20 years of reclusion temporal. The penalty
is excessive since he al r e ady pa id h i s d e l i n q uent c o ntri b ution.
Under Article 5 of the Revised Penal Code, the courts are bound to
apply the law as it is and to impose the proper penalt
y ,n o m a tt e r
ow ar s i t m a y be. The same provision, however, gives the Court
t he discretion t o r e commend t o t h e P r e sident a ctions i t d e e m s
appropriate but are beyond its power when it considers the penalty

J9JC9B0M

II. FELGNIES
Crimes are acts or omissions punishable by law. If the crimes
are punishable u n der t h e R e v ised Penal C ode, t hey ar e c a l l ed
felonies. If they are punishable under special laws, they are called
offenses. However, offenses are now being used to refer to crimes in
general. Crimes may be intentional or culpable. If it is intentionally
committed, it i s described as intentional crime. If i t i s committ ed
through recklessness or n e gligence, it i s c a l le d c u l pable , crime.
Intentional crime i s c l assified either sas ='mdltt =' " ' =":-"""-.""'a'" m" 't h "'
in 9 ?R' in"iS'e"Or 'atiu tin
prohib'itum. (1961 and 1978 Bar Exams)
Acts and omissions punishable by t h e R e vised Penal Code
are felonies or delitos. Felonies are committed
n ot on 1
y by m e a n s
of deceit or dolo but also by means of fault or culpa.
(Article 3 of the
Revised Penal Code) According to Luis B. Reyes, the word "deceit"
in Article 3 is not the proper translation of the word "dolo."Dolus is
equivalent to malice, which is intent to do an injury to another.
T here i s d e ceit ( m a l ice) w he n t h e a c t i s p e r f o r med w i t h
deliberate intent; and there is fault when the wrongful act results
r om imprudence, negligence, lack of f o r esight, or l a c k o f s k i l l .
(Article 3; 1969, 1978, and 201$ Bar Exams
) I f th e C ode u ses th e w or d " p u r p ose" i n d e fi n in g a f e l o ny, t h e
ELEMENT OF AN INTENTIONAL FELONY
Thhere are two elements of an intentional felony, to wit: criminal
act and criminal intent.
Criminal Act
ctus reus o r c r i m i n al a c t i s r e q u i r ed to b e c o m m i t t ed t o
Act
c onsummate a f e l o ny . T o i d e n t if y t h e c r i m i na l a c t , o n e m u s t
consi er the "verb" in the provision defining a felony. I A r t ' I 249
o e Re v i sed Penal Code, theverb u s ed in d efinin h
n i'c de
i n e n i n g omi c i e i s
"shall
s a kill."
i . Heen ce , t h e criminal act in homicide is killing. Killing the
victim consummates the crime.
J9JC9B0M
II. FELONIES 49
Mode of Commission
Criminal a c t , t h e c o m m i s sion o f w h i c h i s n ecessary t o
c onsummate the crime, should not be confused with th e cr i m i i ial
mode of commission. In A r t i cle 294 of th e Code, the criminal act
in robbery is th e t a k in g of p e rsonal pr operty w h il e th e m ode of
commission is v i olence or i n t i m i d ation. E m ployment of v i o lence
o r inti m i dation t o t a k e t h e p e r sonal p r operty i s n o t e n ough t o
consummate the crime. Without actual taking, the offender is only
liable for attempted robbery for employing violence or intimidation
to take property.
C riminal I n t e n t
To consummate the crime, the criminal act must be accompa-
nied with the required criminal intent since it is a basic rule that an
act is not criminai unless the mind of the actor is criminal. Crimutai
T " " " " " -' - ' ' "'
intent.
1. Sp e c i fic Cri m i nal I n t ent —The specific criminal intent
is found in Book Two of the Code. Specific intent is either express or
implied.
Express criminal intent is expressly stated in Book II. Ar ti cle
3 08 of th e Code expressly mentions "i nt ent t o g a in " i n d e fi n i n g
theft. Hence, intent to gain is the specific criminal i n t ent in t h eft .
specific criminal i n t ent i s t h e p u r pose for w h ich th e f elony must
be committed. Art i cle 134-A of th e Code employs the phrase "for
purpose of seizing or d i m i n i shing st at e power" i n d e f ining coup
d' etat. Hence, the specific criminal intent of coup d' etat is intent to
seize or diminish state power.
Implied criminal intent is not expressly stated but can be
inferred from the criminal act described in Book II. If Book II of the
Code does not expressly reveal the specific criminal intent, which is
required to commit a felony, the criminal act and the criminal intent
pertains tothe same act. Article 249 does not expressly state the
specific criminal intent for homicide. Since killing is the actus reus
in homicide, intent to kill shall be considered as its specific criminal
intent.
Specific criminal i n t ent i s c omposed sometimes of pr incipal
i ntent and secondary i n t ent. Th e p r i n cipal cr i m i nal i n t ent i s a n
 50 CRIMINAL LAW REVIEWER
VOLUME I
indispensable element of the crime itself while the secondary intent
is an important requisite of the circumstance that qualifies the crime.
In murder qualified by th e circumstance of cruelty, th e pr i ncipal
intent of the offender is to kill the victim while the secondary intent
for purpose of appreciating the qualifying circumstance of cruelty is
intent to prolong the physical suffering of the victim. In kidnapping
o r ransom, the pr incipal i n t ent of t h e offender is t o d eprive th e
victim o f h i s l i b e rt y w h i l e t h e s econdary i n t en t f o r p u r p ose of
imposing a higher penalty is to extort money from the victim or any
other persons such as his relatives.
2. G en e r a l C r i m i n a l I n t e n t — Do lo is the general intent
ound in Ar t i cle 4, Book I of th e Revised Penal Code which is an
is culpabl~eelony, there are only two elements, to wit: the criminal
act and culpa. (1948 Bar Exam)
In addition to the specific criminal i n t ent, the commission of
criminal act must.„be,accompanied„.mith~e~ i n t e n t . The "mens rea"
required to commit a felony is a combination of the evil intent and
specific criminal i n t ent. H ence, to be held liable for homicide, the
killing must be accompanied with evil intent to kill.
For example, killing a victim in th e exercise of self-
justified. Although the accused killed the victim with i nf eTt t'o kill,
defens
iveis
he is not criminally li able since he,committed the act without...evil
intent, A mere exercise of right to self-defense is not an evil act.
In US v. Ak Ch o n g, G .R. N o. L - 5 272, March 1 9, 1 910, the
accused was acquitted because of m i st ake of f act p r i n ciple even
though the evidence had shown that he attacked the deceased with
intent to kill (U n i ted States v. Apego, G.It. No. 7929 N
b 1by
1912. D'issenting opinion of J. Tr e n t ), wh i ch w as e stablished 8,
the statement of the accused "If you enter the room I wi ll k i l l yo u."
Article 249 of the Revised Penal Code (homicide) should be read in
relation to Article 3 (dolo). The accused was acquitted not because of
i ' spec'i" fic i"
the absence of intent to k'll
( " tn en- V'j'j 'b
u ~ 'y reas'on of lack of
general interit (do'I'o or' ma'li'c'e)':-" '" " ' """' '
C onsummation of Cr i m e
To consummate the crime, what is important is the commission
o the criminal act (by means of the required mode) with the general
and specific criminal intent. The commission of the intended act or
t e accomplishment of the criminal objective may not be necessary
J9JC9B0M
II. FELONIES 51
to consummate the crime. In theft, the criminal act is the taking of
personal property without consent of the owner while the criminal
i ntent i s t o g a in . T a k in g p e rsonal pr operty w i t h i n t en t t o g a i n
consummates the crime. Actual gain is not a requisite to complete
this crime. Thus, taking a check with i n t ent t o gain consummates
'n from the check bec use
the crime of theft. Failure to actuall
the check was not encashed due to stop-payment order does not
n e a e e co n s u eizing a person or purpos
o e m a n i n g r a n som consummates the cr im e of k i d n apping :for
ransom. Failure to actually receive ransom payment because of the
timely apprehension of the accused does not negate the consumrna-
tion of this crime. Public and armed uprising for purpose of removing
Marawi City from the allegiance to the central government and its
law (as shown by the r aising of a Hag) consummates the crime of
rebellion. Failure to actually remove the City from the allegiance to
the government and its laws because of military operation does iiot
negate the consummation of this crime.
Offender
There are crimes (e.g., plunder, violation of Section 8 of R.A.
No. 8019, or coup d' etat), which are committed by two kin ds of' an
offender, to wit: the principal offender and secondary offender.
Plunder, violation of Section 8 of R.A. No. 3019, or coup d' etat
can be committed by the principal offender alone even without the
participation of the secondary offender. On other hand, the secondary
offender cannot commit this crime alone without the participation of
the principaloffender.
In plunder, th e p r i n cipal offender is th e p u b lic officer, who
acquired, amassed or accumulated ill-gotten wealth in th e amoiint
of at least P50 million while the secondary offender is any person,
w hether a p u b l i c of ficer o r p r i v at e i n d i v i dual, w i t h w h o m ' t h e
principal officer connived, or who participates in the commission of
the offense contributing to the crime of plunder.
In violation of Section 8(e) of R.A. No. 3019, the princiipal
offender is a public officer, who causes undue injury t o any pa.rty
including t h e g o v e r n m en t o r gi v e s u n w a r r a n te d p r e f erence,
advantage or b e nefit t o a p r i v a t e i n d i v i dual t h r o ugh m a n i fest
partiality, evident bad faith or gross inexcusable negligence. While
the secondary offender under Section 4(b) is any person, whether
a public officer or p r i v at e i n d i vi dual, wh o i n d uces or causes the
principal offender to violate Section 8.
 52 CRIMINAL LAW REVIEWER
VOLUME I
In coup d' etat, the principal offenders are the military officers,
p olice officers, and p u b li c officers, wh o l a u nched a s w if t a t t a c k
against the government to seize or diminish state power while the
secondary offenders are civilians, who supported them.
O ffender i n c r i m i na l l a w i s e i t h e r g e neric or s p ecific. Th e
offender inestafa is generic as it can be committed by any person
while the offender in m a lversation is specific since it can only be
committed by an accountable public officer. However, if a crime is
committed by the specific person required by law, any other person
who conspired with him is also liable. For example, if malversation
is committed by a t r easurer, who is an accountable public
offi "er,
any other persons who conspired with him even though they are not
accountable public officers are also liable for malversation.
G ender crime is one where the gender of the offender or t h e
v ictim i s a n e l ement t h e reof. Rape i s a g e n der cr im e s i nce t h e
offender must be a man while the victim must e a w oman.Gender-
free c rime is one where the gender of the offender or the victim is
not an element thereof. Sexual assault is a en
- c ' e since
offender and the victims are any persons without regards to tl eir
gender.
Felony and Offense
The essential differences between a crime under special 1
e cia a w
anda f e lony are as follows: (1) In addition to the specific elements
an
of a felony, this crime must be committed by means of dolo, which
is its general element. In crimes under special law, dolo or mahce
is not an element unless it expressly says so such as planting of
evidence; and (2) The provisions in Book I of the Revised Penal Code
are applicable to felonies defined in Book II and not to crimes under
special laws. However, these provisions may apply to crimes
un der
sspecia
ecial a
1 w i n a supplemental character. (196'9 Bar Exam)
V olunt a r i n e s s
The word "voluntary"found in the Old Penal Code in defining
a felony was eliminated i n A r t i cl e 3 o f t h e R evised Penal Code.
However, d espite such el i m i n ation, voluntariness
r emains a n
element of a felony. (1952 Bar Exam)
Voluntariness, which requires freedom and intelligence, is an
essential element of crime. (People v. Opuran, G.R. Nos. 147674-75,
March 17, 2004;1969Bar Exam) Whether the crime is committed by
J9JC9B0M
II. FELONIES 53
means of doloor culpa (1952Bar Exam ), or classified as malum in, se
or malum prohibitum, freedom and intelligence are indispensalble.
Thus, a baby cannot be held liable for possession of dangerous drugs,
a malum prohibitum, because of lack in i n t e lligence. A kidnapped
victim, who was forced by the kidnappers to drive a car at 120 km/
hour, and as a consequence, hit another car, cannot be held liable
for recklessimprudence resulting in damage to property because of
lack offreedom.
I n a d d i t ion t o v o l u n t a r i ness, i n t e n tional f e l ony m u s t b e
committed with dolo (malice), culpable felony with culpa, and malum
prohibitum un d er special law w i th i n t e nt to p erpetrate the act; or
with specific intent (such as animus possidendi in illegal possession
of firearm).
General Element
Felonies are committed not only by means of deceit (dolo) but
also by means of fault (c ulpa). There is deceit (malice) 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. (Article 3 of the Revised Penal Code; 2015 Bar Exam)
1. Cu lp a — Im p r u d e nce indicates a d eficiency in a c tion.
Negligence indicates a deficiency of perception. If a person fails to
take the necessary precaution to avoid injury to person or damage
to property, theite i' s, imprudence. If a p e rson fails t o 'pay' p'rope'e
attention and to use due dilig'ence in foreseeing the injury or damage
impending to b e c aused, there i s n e gligenc'e. Negligence usu:ally
involves lack of foresight. Imprudence usually involves lack of skill.
(The Revised Penal Code by Luis Reyes)
There are two views on whether culpa is a crime or just a mode
of committing a crime.
First view — Under the first view, culpa is not a crime but just
a mode of committing a crime. (People v. Faller, G.R. No. L-45'964,
April 25, 1939; Angeles v. Jose, G.R. No. L-6494, November 24, 1,~954)
The first view is based on Article 3 of the Revised Penal Code, which
states that felony is committed by means of culpa.
Second vi ew — U n d e r t h e s econd view, culpa i s t he crime
itself. (Quizon v. Ho n. Justice of Peace, G.R N o. L - 6 641, July 28,
1955; People v. Buan, L-25366, March 29, 1968; People v. Cano, G.R.
No. 19660, May 24, 1966) The second view is based on Article 365 of
 54 CRIMINAL LAW REVIEWER
VOLUME I
the Revised Penal Code. The title of this provision i m p r u d ence or
negligence" justifies the view that culpa, imprudence or neglig nce is
the crime itself. The body of this provision punishes the "ommission
of a reckless, imprudent or negligent act which would have bee
f elony if it is committed with int ention. The body of Article g65 also
justifies the view that culpa, imprudence or negligence is the crime
itself.
a. D es i g n a t ion of the cr ime — X re c k l essly driving
his car, bumped A, kill ing him as a consequence. Wha.t is the
proper designation ofthe crime?
Under the fi rs t v i ew, cu lpa is a m o de of
committin
crime. The killing is the crime itself. Hence, the crime should
ga
be designated as homicide through reckless imprudence. Jnder
the second view, culpa or imp r u d ence is the crime itself. The
k illing of th e v i c ti m m e r ely d etermines the p rop r p e n a l t y .
Hence, the crime should be designated as reckless imprudence
resulting in homicide.
X, a public officer, instructed Y, his staff, to prepare his
Personal Data Sheet (PDS) by coping the entries in his previous
P DS. Several mistakes were made in th e pr eparatior o f t h e
PDS including th e assertion th e X h a s n o p ending cri min al
c ase. X signed the PDS wi t h out checking the veracity of t h e
e ntries therein. I t w a s f o un d t h a t X r e c k lessly r ather t h a n
intentionally made untruthful statement in a public document.
What is the proper designation of the crime?
Under the fi rs t v i ew, cu lpa is a m o de of
committin ga
c rime. The falsification is th e cr ime i t self. Hence, the "r i m e
should b e d e signated a s fa l s i f ication of publi c d o c ument
through reckless imprudence,
Under the second view, culpa or imprudence is the i
e crime
itse . T h e f a l sification merely determines the proper penalt .
itself.
na y.
Hence, the crime should be designated as reckless imprudence
resulting in falsif ication of public document.
The Supreme Court in Sevilla v. People, G.R. ¹. 1 9 4 8 90,
August 18, 2014 sided with the second view in the designation
of culpable falsification of public document.
b. Com p l e x c r i m e o r s i n gle cr im e — X, r e c klessly
driving his car, bumped 'another vehicle killing A and causing
slight physical injuries to B. X is liable for what the crime?
J9JC9B0M
II. FELONIES 55
Following th e fi rs t v i ew, cu l pa or r e c kless imprudence
is just a m o d e o f c o m m i t t in g a c r i m e , w h i l e t h e k i l l iing,
c ausing damage to p r operty an d i n fl i c t in g i n j u r ies ar e t h e
crimes themselves. Hence, X committed (I) homicide through
reckless imprudence, (2) damage to property through reckless
imprudence, and (3) slight physical injuries through reckless
imprudence. But since a single act of recklessness produces the
first two crimes, X is l i able for a complex crime of homicide
and damage to property through reckless imprudence. (Lontoc,
Jr. v. Gorgonio, L-37896, April 80, 1979; Reodica v. CA, G.R.
No. 125066, July 8, 1998; Gonzaga v. People, G.R. No. 195671,
January 21, 2015) But slight physical injuries through reckless
imprudence that resulted from the same recklessness shall be
treated as aseparate crime. Since
li ht felony, it cannot be ma om I x c r i.me.
eop e v. ur a , N o. L -2 68 8 8, February 14, 1927; 1988,
2011, and 2012 Bar Exams)
Following second view, since the commission of culpable,
imprudent or negligent act is th e crime itself, X is l i able for
a single crime of reckless imprudence resulting in h o micide,
d amage to property and slight physical injuries. Sin le cul abl e
felon is committed re ardless of its conse uences. e
c onsequen ea t , i n j u r i e s a n ama g e t o property s a on l y
be considered to impose the proper penalties. (Ivler v. Modesto-
San Pedro, G.R. No. 17 2716, November 17, 2010; Sevilla v .
People, supra; 1952, 1959, 1961, and 2018 Bar Exams)
c. D ou b l e j e o p a r d y — X , r eck l e s sly d r i v i ng h i s
car, bumped a n other v e h i cle k i l l i n g A a n d c a u s in g sliight
physical injuries to B. The O ffice of the Prosecutor filed tw o
Informations, one charging Xof complex crime of homicide and
damage to property th r ough reckless imprudence, and sl:ight
physical i n j u r ie s t h r o ugh r e c k less i m p r u dence. X p l e aded
guilty to slight physical injuries through reckless imprudence,
and thereafter, filed a motion to quash Information regarding
the complex crime of homicide and damage to property through
reckless imprudence on the ground of double jeopardy. Shall
the. court gr ant t h e m o t i on? (2014 Bar E x am o n R e m edial
Laws)
Under the first view that culpa is a mode of committing a
crime, X committed complex crime of homicide and damage to
property through reckless imprudence, and a separate criine of
slight physical injuries through reckless imprudence. Since X
 56 CRIMINAL LAW REVIEWER
VOLUME I
committed two crimes, his conviction f' or slight physical injuries
through reckless imprudence is not a b a r t o h i s c o nt i nued
p rosecution for c omplex cr im e o f h o m i cide an d d a m age t o
property through reckless imprudence. Hence, the court musr.
deny the motion to quash.
Under the second view that cu l pa or i m p r u d ence is the
crime itself, X committed single crime of reckless imprudence
resulting in homicide, damage to property and slight physical i
injuries. This single crime cannot be split into two for purpose
of double prosecution because ofthe rule on double jeopard jeopar y..
Since X committed a single crime, his conviction for reckless
i mprudence resulting i n s l i gh t p h y sical i n j u r ies is a b a r t c
hiis continued prosecution for r e ckless imprudence resulting
homicide and damage'to property. Hence, the court must grant
the motion to quash.
Confronted with t h e i s sue of double jeopardy, Supreme
Court in I v l e r v. Mo d esto-San P e d ro, G . R . N o . 1 t 2 7 1 6
November 17, 2010, followed the second view.
z crime. (1978, 1984, 1988, and 1996Bar Exams)
d. D u pl i c i t y o f o f f e n ses — X , r ecklessly d r i v i n g
his car, bumped another vehicle kill ing A and c ausing slight.
physical injuries to B. The Office of the Prosecutor filed a sin le
information c harging X o f r e c k less imprudence resulting i n
homicide, damage to property and slight physical injuries. X
filed a motion to quash on the ground of duplicity of offenses.
Shall the court grant the motion?
Under the first view that culpa is a mode of committing a
crime, X committed complex crime of homicide and damage to
property through reckless imprudence, and a separate crime of
slight physical injuries through reckless imprudence. Since X
committed two crimes, charging him under a single inforn ation
violates the rule on duplicity of offenses. Hence, the court must
grant the motion to quash.
Under the second view that cu l pa is t he c rime its elf, X
c ommitted single crime of r eckless imprudence resulting i n
h omicide, damage to p r operty an d s l i gh t p h y sical i n j u ri e .
ince X committed a single crime, charging him under a single
information does not violate the rule on duplicity of offenses.
Hence, the court must deny the motion to quash.
e. A ut h o r ' s v iew — Th e w r i t e r of t h is book humbly
submits that the second view is the correct view.
J9JC9B0M
II. FELONIES 57
A rticle 3 o n w h i c h t h e fi r s t v i e w i s b a sed cannot b e
reconciled with A r t i cle 365 which i s th e basis of th e second
view. Applying the rule on statutory construction, Article 365,
which is a specific provision, must prevail over Article 3, which
is a general provision.
Moreover, it is a basic rule that to identify the criminal
a ct, the " v erb" i n t h e s e n t ence defining a f e l ony m u s t b e
considered. Article 308 of the Revised Penal Code uses the verb
"shall take" in defining theft; hence, taking is the criminal act
in theft. Article 365 uses the words "shall commit any act (by
reckless imprudence or by simple impr udence or negligence)."
Hence, the commission of im p r udent, negligence or culpable
act is the criminal act in the crime of imprudence or negligertce
under Article 365.
2. D ol o — M a l i ce or dolo is an essential element f m a l u m
in se. Malice is not m a t e rial in m a l u m p r o hf st um a nd c ul pable
In intentional felony, the concurrence of freedom, intelligence
and intent makes up the "criminal min d" behind the "criminal act."
Thus, to constitute a cr i me, the act m u st, generally and i n mc>st
cases, be accompanied by a crim inal i n t ent. Actus non facit reum,
nisi mens sit rea. No cr' erst
e rfor min t h e c t cent. (People v. yeda, G.R.
une
Criminal intent or dolo is an element of usurpation of function
punishable under the Revised Penal Code for being a malum in se.
This crime i s heing punished because, it is~o n g p n vnatui re. In sum,
the law re concerned'on tVe penalization of an evil or malicious act.
Thus, lack of malice or criminal i n t ent of the offender is a deferlise
in the prosecution of malum in se. In Ruzol v. Sandiganbayan, G..R.
Nos. 186739-960, April 17, 2013, there is no showing that the mayor
possessed that "criminal mind" when he issued the subject perntits
to transport salvaged forest products and to regulate and monitor
these products in order to avert the occurrence of illegal logging in
t he area. He is not l i able for usurpation of function of the D E N R
because ofgood faith.
Criminal intent or dolo is not an element in illegal possession
of loose firearm punishable under a special law for being a malum
prohibitum. Th is crime is being punished not because it is w ro ng
i n nature but si mply because it is pr ohibited by l aw. In sum, t h e
 58 CRIMINAL LAW REVIEWER
VOLUME I
l aw is concerned on t h e enalization of th e a ct o f d efiance
and
not evilness in th e ac . Th us, lack of evilness, malice or criminal
i n en o e o ender is not a defense in the 'prosecution of malum.
prohibitum. (1 974 Bar E x a m) T h u s, good faith or b e l ief t h at t h e
security agency secured license topossess firearm is not a deferse
in illegal possession of loose firearm filed against a security guard.
(1972 Bar Exam)
a. P r e s u m p t i o n o f M a l i c e — Th e g e neral crimi na l
i ntent (malice) is p r esumed from t h e c r i m i nal a ct, an d t h e
absence of any general intent must be proven by the accused.
(1969 Bar Exam) In Ah C h o ng case, the accused was able to
rebut the presumption of general criminal intent or malice.
Generally, a specific intent is not presumed. Its exister ice,
as a matter of fact, must be proven by the State just as any ot e'er
essential element. This may be shown, however, by the nature
of the act, the circumstances under which it w a s committed,
the means employed and the motive of the accused. (Recuerdo
v. People, G.R. No. 16821 7,June 27, 2006) However, there are
other specific intents that are presumed. If a person died due to
violence, intent to kill is conclusively presumed. Intent to gain
is presumed from taking property without consent of owner.
Mistake of Fact
Mistake of fact may negate specific element of a crime, or dAo
or may be a source of mitigating circumstance.
1. N eg a t i n g Sp e c ific El e m e nt — T h e g ist of theft is t h e
i ntent to deprive another of hi s p ersonal property for g a in. T h i s
cannot be where the taker honestly believes the property is his o~n
or that of another, and that he has the right to take possession 't
ssession o:" it
- "
fo r himself or for another, for the protection of the latter. Howev r ,
the belief of the accused of his ownership over the property must be
honest and in good faith and not a m ere sham or pr etense. If tl e
claim is dishonest, a mere pretense, taking the property of anotl:er
w ill not p r o tect th e t a k e r . (Gaviola v. People, G.R. No. 168927,
January 27, 2 006) This belief of ownership as a defense in theft s
in accordance with the mistake of fact doctrine. (2012 and 2018 Bcr
Exams)
Five laborers were hired by Manuel Diong to harvest coconuts
from a plantation which he told them belonged to him. Unknown to
them, the ownership of the land was in dispute. The laborers are r
iot
J9JC9B0M
II. FELONIES 59
liable for theft because mistake of fact negates intent to gain, which
is an element of theft. (1988 Bar Exam)
2. N eg a t i n g D olo —Mistake of fact may negate dolo. It is a
complete defense provided that the following requisites are present::
(1) that the acts done would have been lawful had the facts been as
the accused believed them to be; (2) that the mistake of fact is not
due to negligence; (3) the mistake is not accompanied with criminal
intent of the offender. (1968 Bar Exam)
The Supreme Court in several cases had applied the "mistake of
fact" doctrine, which allowed the accused, who committed a crime ori
a mistaken belief, to enjoy the benefit of the justifying circumstance
of self-defense (US v. Ah Chong, G.R. No. L-5272, March 19, 1910),
defense of person and right (US v. Bautista, G.R. No. 10678, August
17, 1915), defense of honor (United States v. Apego, G.R. No. 7929,',
November 18, 1912), performance'of duty (People v. Mamasalaya,„
G.R. No. L-4911, February 10, 1958), the exempting circumstance
of obedience of an order of superior officer (People v. Be ronilla„
G.R. ¹ . L - 4 4 45, February 28, 1955); or death u n d er exceptional
circumstance. (The Revised Penal Code by Luis Reyes)
a. Se lf-Defense— In Ah Chong, the accused, who
believed that the victim was a robber and that his life was in
danger because of the commencement of unlawful aggression
against him, was acquitted due to mistake of fact doctrine in
relation to the rule on self-defense. The act would have been
justified had the existence of unlawful aggression been as the
accused believed it to be. The mistake is not due to negligence
since he tried to validate the identity of the victim. His intent is
not unlawful because he was just honestly exercising his right
to self-defense, (People v. Gervero, G.R. No. 206725, July l l ,
2018; 1977 and 1985 Bar Exams)
b . P e rformance o f D ut y - In Y ap y u c u
Sandiganbayan, G. R . N os . 12 0 7 4 4 -46, J u n e 25 , 2 0 12 .'..
police authorities, who m a nned a c heckpoint because of an
information that th ere were armed rebels on board a vehicle.,
have the duty t o v a l i d ate the i n f ormation, to i dentify t h em.,
and to make a bloodless arrest unless they were placed in real
mortal danger. If they shot the suspected vehicle, which did not
stop after having been flagged down, and killed the occupants
therein, who turned out to be unarmed civilians, they are liable
for multiple homicides. The mistake of fact principle is nowt
 60 CRIMINAL LAW REVIEWER
VOLUME I
a pplicable since there is negligence or bad faith on their part .
(People v. Gervero, G.R. No. 206725, July 11, 2018
) at him. "B" is not liable for malicious mischief because of the
In People v. Oanis and Ga l a n t a, G. R. No. 47722, July
27, 1943, the accused, who believed that th e sleeping vi "tim
is the notorious criminal t o b e a r r ested by t h em, were held
guilty of m u r der for s hooting hi m s i nce th e m i st ake of fact
principle in relation to performance of duty is not applicable.
The second element is not present since they did not ascertain
f irst his i d entity d espite th e opportunity t o d o so. The fi r s t
e lement is no t a l s o p r esent si nce th e k i l l i n g o f t h e v i c t i m
believed to be acriminal was not a necessary consequence of
the due performance of duty of the accused as police officers.
However, the accused are entitled to the privileged mitigating
c ircumstance of i n complete performance of d u t y . (People v.
Gervero, G.R. No. 206'725, July 11, 2018)
c. D e fense of Property — The accused mistakenly
killed a thief in the toilet, who turned out to be his girlfriend.
I n mi stake of f a ct, w h ich n e gates dolo, it i s a n i m p o r t a nt
requisite that the act done would have been lawful had the fact
been as the accused believed them to be. If there was really an
intruder inside the toilet, the invasion would be considered as
unlawful aggression against his property, which would allow
him to use reasonable means to r epel it i n a ccordance with
the self-help doctrine under Ar t i cle 429 of the Civil Code and
defense of property under Article 12 of the Revised Penal Code.
However, the means employed by him, firing shots through
the toilet door, is not reasonable; hence, he is only entitled to
privileged miti gating circumstance of i n complete defense of
property. (see: People v. Narvaez, G.R. ¹s . L- 8 8 4 66-6'7, April
2 0, 1988) In sum, th e act w o uld h ave been attended by t h e
privileged mitigating circumstance of incomplete justification
had the factsbeen as the accused believed them to be. (1958
and 2008 Bar Exams)
d. I r r e s i s t i bl e F o r c e — Mi st a k e o f f a c t p r i n c . pie
can also be applied in relation to circumstance of lack af
voluntariness such as irresistible force or uncontrollable
ear.
In sum, the accused will not be held criminally li able for t h e
result not intended when there is mistake of fact constituting
an involuntary act. (2012 Bar Exam) For example, "A" pcked
s omething at "B" an d t h r eatened to shoot him i f h e w i l l n o t
shoot the dog. Honestly believing that his life is in danger, "B'
J9JC9B0M
II. FELONIES
shot the dog not knowing that "A" was merely poking a stick
mistake of fact pr i n ciple. "B" would have been exempt from
criminal liability had the existence of irresistible force been as
the accused believed it to be.
e. D e a th U n de r - E x c e p t i o na l Cir c u m s t a n ce
— Death un d er e x ceptional c ir cumstance is s i m i l ar t o t h ! e
mitigating circumstance of passion considering that a person,
who ki l led h i s w i f e u n d e r e x ceptional c i r cumstance unde)~
Article 247, is acting in a justified burst of passion. (People v.
Gonzales, G.R. No.46810, October 81, 1989) In several cases,
the Supreme Court a p p reciated m i t i gating cir cumstance of
passion even if the act causing the obfuscation was not true o!r
established, as long as it was honestly and reasonably believed
b y the accused to be tr u e. (U.S. v. Ma l i n t al, G. R. No. 1381,
August 25, 1908; People v. Mu i t, G. R. No. L - 4 8875, October
21, 1982; People v. Tan, G.R. No. L-516, June 29, 1951) If the
p rinciple of "mistake of fact" had been applied to justify t h e
acts of the accused, to exempt him from liability or to mitigate
his liability, t h ere i s n o r e ason why i t s h o ul d not b e m ad',e
applicable to a case involving absolutory cause under Arti cle
247 in the light of the time-honored principle of 'pro reo."(201.1
Bar Exam)
Motive
In a criminal case, the prosecution must pr ove the elements
of a crime and the identity of th e person who committed it. Proof
o f motive w il l n o t e s t ablish t h e e l ements, bu t i t w i l l h e l p t h e
prosecution in showing that the accused committed the crime. The
identity of the culprit, which is an essential requisite to convict the
accused, is usually established through positive identification of the
witness. However, if there is doubt as to the identity of the culpri!t,
s howing motive of the accused for committing th e crime will h el p
establish his direct link to the commission thereof.
The lack or absence of motive for committing a crime does not
preclude conviction where there are reliable witnesses who fully and
satisfactorily identified the accused as the perpetrator of the felony.
(Kummer v. People, G.R. No. 174461, September 11, 2018)
1. M ot i v e a n d C r i m i n a l I n t e n t — Mo t i v e a nd c ri m i nal
intent are distinguished as follows: (1) Motive is the moving power
 62 CRIMINAL LAW REVIEWER
VOLUME I
which impels a person to do an act for a definite result; intent is the
purpose forusing a particular means to bring about a desired resu't.
(2) Motive is not an essential element of a crime; hence, it need not
there is d oubt as to the identit o f t c 't or when the evidence
is circumstanti a o r i n c onc usrve. Criminal i n t ent r e n ders~an ac
a fe ony. It i s e gen e r a e e m e nt of a ll i n t e ntional felony. (196'4,
1984, 1996', 1999, and 2004 Bar Exams)
2. Pr oo f of Moti ve Is Required — Proof of motive becomes
a crucial consideration in a criminal prosecution: (1) where there is
doubt as to the identity of th e culprit (P eople v. F errera, G.R. ¹.
L-66965, June18, 1987); (2)w here the evidence is circumstantial or
inconclusive, and there is some doubt on whether a crime has been
committed or whether the accused has committed it (People v. Asia,
G.R. No. 142581, October 15, 2002; Tr i n i d ad v. Pe ople, G.R. No.
192241, June 18, 2012); proof of motive and circumstantial evidence
on hand may establish the guilt of th e accused beyond any doubt
(People v. Obosa, G.R. No. 129688, April 2 , 2 0 0 2); (3) where the
act committed givesrise to variant crimes and there is the ne d co
determine the proper crime to be imputed to the offender (Suggested
answer by UP Law Center); (4) where it forms an essential element of
the offense such as in cases of libel or slander or malicious mischief.
(People v. Diva, G.R. ¹. L - 2 2 9 4 6, April29, 196'8; 1978, 1984, '999,
2011, and 2018 Bar Exams)
If the accused committed various crimes, the identification of
motive is important to determine the crime of which the accused can
be held liable. If a person burned a building and as a consequence
the owner thereof died, his motive will determine whether the crime
committed is murder or arson with resulting death.
3. P r o o f o f M o t iv e I s Not R e q u i red —Proof of motive is
not necessary in a criminal r o s ecution
a. W h e r e th e accused has been~osjttyej ~ d e n tj fied as
the assailant (People v. Ferrera, G.R. ¹. L - 66 9 6 5, tu r ne18,
1987); or
b. W h e r e th e ' p a r t i c ipation of t h e a c c used is s hown
(2011 Bar Exam);
c. W h e r e the crimi
nals>
did n~ot 've r i se to variant
crime~ S u ggested answer by UP Law Center);
d. Wh e r e the accused is har
c~ ed of aculpable crime, or
malum prohibitum. (1999 and 2006 Bar Exams
J9JC9B0M
II. FELONIES
4. P r e s e n c e o f M o t i v e I n d i c a te s C r i m i n a l I n t e n t -
tivejs indicgiwe of criminal intent. (1978 Bar Exam) In U.S. v.
Mo~ v~
~Go Foo Suy, G.R. No. 8217, September 6, 1913, the accused had be ien
conducting their business at a loss for nearly 18 months. There is a
strong motive to burn their properties to make an insurance claim.
The success of their crime of arson meant that t hey would receive
about twice the value of their stock of goods and thus convert a losing
investment into a profitable one. In this case, motive is indicative of
their criminal intent.
5. L a c k o f M o t i v e I s N o t I n d i c a t iv e o f I n n o c en ce -
LaCk Of mctrVeaenrct„nr ccOJ OgnnOCenCe. (1978 Bnr Zr n m) L aCk Of
motive for committ in g a c r i m i nal act d oes not n ecessarily mean
'
that there is none. Mo ' own because it is found in once's
conscience which is not accessible to human observation. o r e o ver,
a n extreme moral perversion may lead a ma n t o commit a c r i m e
without a real motive but just for the sake of committing it . (People
v. Paguntalan, G.R. No. 116272, March 27, 1995; People v. Taneo,
G.R. ¹ . L - 3 7 678, March81, 1983) Thus, lack of motive can result, in
conviction where the crime and the participation of the accused s.re
shown. (2011 Bar Exam)
CLASSIFICATION OF FELONIES
Under Article 9 of the Revised Penal Code as amended by R.A.
No. 10951; felonies areclassified into grave, less grave, and light
felonies. (2019 Bar Exam)
Grave felonies are those to which the law attaches the capital
punishment or p enalties which any of t h eir p e riods are afflictive
(e.g., reclusion perpetua, reclusion temporal, prision mayor or a fine
exceeding P1,200,000).
Less grave felonies are t h ose which th e l a w p u n i shes wIth
penalties which i n t h e i r m a x i mu m p e r iod ar e correctional (e.g.,
prision correccional, arresto mayor or a fine not less than P40,000
but not exceeding P1,200,000).
Light felonies are those infractions of law or the commission of
which the penalty of arresto merior or a fine not exceeding P40,000
or both is provided. (Article 9) However, under Article 26, a fine inot
less than P40,000 but not exceeding P1,200,000 shall be consideied
a correctional penalty.
 64 CRIMINAL LAW REVIE'PER
VOLUME I
Ideally, the penalty for a light felony should be a light penalty.
However, R.A. No. 10951 has retained the phrases "not exceeding"
in Article 9 and "not less than" in A r t i c le 26 despite the fact tha t
they provide a legally absurd situ ation wh ere li g ht f elony can be
punished by a correctional penalty.
In reckless imprudence resulting in damage to property where
the amount of the damage is P13,333, the highest penalty imposable
is a fine of P40,000. This is a light felony in accordance with Arti cle
9 because the fine is not exceeding P40,000. On the other hand, the
penalty is correctional in accordance with Article 26 because the fine
is not less than P40,000. A light p enalty of fine m ust be less than
P40,000.
In People v. Yu Ha i, G. R. No. L- 9598, August 15, 1956, the
'"Supreme Court was confronted with th e i ssue of prescription of a
light felony, which is punishable by a correctional penalty. According
to the Highest Tribunal, since the issue is prescription of crime (and
not penalty), Article 9 on classification of felonies shall apply.
Applying Yu Hai principle by analogy, if the issue is prescription
of penalty, Article 26 on classification of penalty shall apply.
U nder Arti cle 90, the prescriptive period of a l i ght f elony i s
two months. Under Article 9, a crime punishable by a fine of exactly
P40,000 is a l i g ht f e l o ny b ecause it i s " n o t e x c eeding P40,000."
Hence, the period of prescription for this crime is two months.
Under Article 92, the prescriptive period of correctional
penalty is 1 0 y e ars. U n der A r t i cle 26, a f i n e o f ' e xactly P4 0 ,000
shall be considered as correctional penalty because it i s " not le ss
than P40,000." Hence, the period of prescription of this penalty is
10 years.
A s a r u l e , l i gh t f e l ony i s p u n i s h able. H owever, t h er e a r e
exceptions. Attempted or fru str ated light f elony is not pu nishable
unless it is a crime against property or person. (Article 7of the Revised
Penal Code) Moreover, light felony committed by an accessory is not
punishable. (Article 16; 1948, 1957, 1965, 1967, 1988, 2012, and
2018 Bar Exams)
Theft is punishable by arresto menor or a fine of not exceeding
P20,000 if the value of the property stolen is not more than P500.
This is a light felony. One can be charged for attempted light felony
of theft. Theft is a crime against property, and thus, it is punishable
even though it is not consummated. (1977 Bar Exam)
J9JC9B0M
II. FELONIES 65
ELEMENTS OF CRIMINAL LIABILITY
The time-respected doctrine"he who is the cause of the cauose
is the cause of the evil caused" is the ra t ionale in A r t i c le 4 of t h e
Revised Penal Code which provides that "criminal liability shall
be incurred by a person committing a felony (delito) although the
wrongful act done be different from that which he intended." (People
v. Ulep, G.R. No. 1-86858, tune 20, 1988)
Intentional Felony
Article 4(1) of the Revised Penal Code is only applicable if the
accused committed an intentional felony.
1. Su i c i d e — Su i c ide is not an i n t e n t ional felony; hence,
a pregnant woman who att empted to commit suicide is not li able
for abortion by reason of the consequent death of her fetus. (1946,
1972, 1976, and 20 12 Bar E x a m s) But k i l l i n g o ne's girlfriend in
accordance with a suicide pact constitutes the crime of assistarice
to suicide under Arti cle 253 of the Revised Penal Code. This crime
is committed by a person who lends his assistance to another to'the
extent of doing the killing himself. (2008 Bar Exam)
2. P r a c t i c i n g M e d i c ine W i t h ou t L i c e nse — Pr a cticing
medicine without license is an offense punishable under special law
but it is not an i n t entional felony within th e meaning of Article 4.
Hence, a quack doctor, who killed his patient while treating him, is
only liable for rec o de .(Peoplev.
Carmen, G.R. o . 1 8 7268, March 26, 2001; 2007 Bar Exam)
3. C ar n a p p i n g — As a r u l e, Artic le 4 is only applicable if
the act committed by the accused constitutes an intentional felony
and not an offense under special law. However, there is an exception.
The concept of carnapping under Section 3 of R.A. No. 10883 is t;he
same as that of theft and robbery. (People v. Sia, G.R. No. 1874'57,
November 21, 2001) Al t h o ugh n ot p u n i s hable under t he R evised
P enal Code, it can be t r eated as an i n t entional felony wit hi n t h e
meaning of Ar t i cle 4. Thus, if a fter t a k in g the mo tor ve hicle, the
carnapper accidentally bumped and k i l led a bystander, the criirne
committed is simple carnapping and homicide since carnapping is
the proximate cause of the death of the victim. The accused shall
incur c r i m i na l l i a b i l it y f o r h o m i cide i n a d d i t ion t o c a r n apping
although his intention is merely to commit carnapping. (1998 and
2008 Bar Exams)
 66 CRIMINAL LAW REVIEWER
VOLUME I
Error In P e r sonae
Error i n p e r sonae me ans m i s t a ke of i d e n t i t y. I n e r r o r i n
personae, a p e rson is c r i m i n a l ly r e s ponsible for c o m m i t t i ng a n
i ntentional felony although the actual victim i s di fferent from t h e
intended victim due to mistake of identity. (1949, 1989, 1999, 2017
and 2019 Bar Exams) Aberratio ictus or error in personae carries the
same gravity as when the accused zeroes in on his intended victim.
(People v. Pinto, G.R. ¹. 89 5 1 9, November21, 1991) For example,
X waited in ambush for A to kill h im . He saw B a few meters away
and, believingB to be A, he fir ed upon and killed B whom he had
no intention of hurting. X shall incur criminal liability for kil l ing B
because of the error in personae principle. (1958 Bar Exam)
In mistake of fact, th e m i s t ake pertains t o t h e el ements of
justifyin ag, circumstance .,exempting c i r c u mstance or absolutory
cause such as the existence of unlawful aggression, while in
o
t from criminal liability because of the circumstance of accident under
v ictim. n , m i s t ake of fact, the accused committed the act wi t h out
WoMo; j.ence, he is not criminally liable, and because of such mistake,
the justifying circumstance, exempting circumstance or absolutory
c ause shall be considered in h i s f a v or. I n
o r in e r s o n a the
killing or injuring a victim although this victim is different from the
intended victim. (1958 Bar Exam)
Aberratio Ictu s
Aberratio ictus means mistake of blow. In ab e rratio ic tus, a
person is criminally responsible for committing an intentional felony
although the actual victim is different, from the intended victim due
to mistake of blow. (1949, 1955, 1989, 1998, 1999, 2015 and 2019
Bar Exams)
1. Th e 4- 1 2 -365Rule — First part of Article 4, Article 12 on
accident and Article365 provides a rule on proximate cause. Ifthe
proximate cause of the death of the victim is a felony, e.g., physical
injuries, threat or unjust vexation, the accused is liable for homicide
because of Article 4. If the proximate cause of the death of the victim
is an act not constituting a felony, Arti cle 4 is not applicable. The
application ofArticle 4 presupposes that the accused committed a
f elony.
1 In such a case, the accused is exempt from criminal liability
because of the circumstance of accident under Article 12. If the proxi-
m ate cause
of the death of the victim is a culpable act, Article 12 on
J9JC9B0M
II. FELONIES
accident is not applicable. Lack of culpa is an element of accident. In
such a case, the accused is liable for reckless imprudence resulting
in homicide under Article 365.
If the act, which caused injuries or death of a third person by
reason of mistake of blow, is not an intentional felony, Article 4 on
aberratio ictus shall not a pply. Committi ng an a ct in s e lf-defense
(1982 Bar Exam), or in t h e e xercise of right to d e fend possession
of property (People v. Bindoy, G.R. No. 84665, August 28, 198.l;
1981 Bar E x a m) or c a u s ing d eath or i n j u r i e s u n d er e xceptional
circumstance (People v. Ar a q u e l, G . R. ¹ . L - I 262 9 , D e c ember
9, 1959; 1977 Bar Exam), or k i l l i ng of h us band by a w i f e, who i s
suffering from b a t t ered w oman s y n drome, is no t a n i n t e n t i onal
felony. In committing such non-felonious act, the perpetrator is not
liable for the injuries or death of the th ir d person, who was hit by
reason of mistake of blow. Ar t i cle 4 is not applicable because the
perpetrator is not committ ing an i n t entional felony. He is exempt
Article 12. But if the perpetrator is reckless in committing the noin-
felonious act, he can be held liable for reckless imprudence resulting
in homicide or physical injuries under Article 365. (People v. Abarca,
G.R. No. 74488, September 14, 1987; 1988 and 1991 Bar Exams)
X prevented A from having a bloody encounter with his father.
B tried to remove the hands of X, who was holding A. X pulled the
hands of B causing her to fall over C, her baby. Preventing A from
having a bloody encounter wit h h i s f a t her and p u l l in g th e hands
of B a re not i n t e ntional felonies. X is j u st e xercising his r i g ht t o
defend his father. Hence, X is not criminally liable for the death of
the baby. Article 4 on aberratio ictus is not applicable. X is exempt
from criminal li ability due to accident under Ar t i cle 12. (People v.
Salina, CA O.G. 8186; 1994 Bar Exam)
X attacked A. While the assault was in progress, B grabbed the
weapon from X. As a consequence, C, a passerby, was accidentally
hit by the weapon. X is responsible for the injuries sustained by A
and C. The act of Xin attacking A is an intentional felony. Hence, X
.is responsible for the injuries sustained by C which are the direct,
natural, and logical consequence of the felony committed against
A. The act of B in grabbing the weapon from X is not an intentional
felony. It i s a j u s ti fied act du e t o t h e ci r cumstance of defense of
stranger. Hence, B is not responsible for the injuries sustained by C.
Article 4 on aberratio ictus shall not apply since B is not committing
an intentional felony. B is e xempt f r om c ri m i n al l i a b ility f or t b .e
 CRIMINAL LAW REVIEWER
VOLUME I
injuries of C due to the circumstance of accident under Ar t i cle 12
(1992 Bar Exam)
2. I nt e n t t o K i l l — In ab e r r a t io ic tus, there are at l e ast
two victims, the intended victim and the th ir d person who was hit
b y reason of mistake of blow. Even though there is intent to kill th e
target victim, the court should still m ake an assessment if there is
intent to kill th e t h ir d p erson, who was hit by r eason of aberratio
ictus.
If the third person died, intent to kill is conclusively presumed.
Hence, the crime committed against the third person, is homicide or
murder. (People v. Adriano, G.R. No. 205228, July 15, 2015; People
v. Umawid, G.R. No. 208719, tune 9, 2014)
If the third person merely suffered injuries, and there is intent
to kill, th e cr ime committed i s a t t empted or fr u s t r a ted homicide
or murder. Intent to kil l th e t h ir d person can be established if the
accused is aware of the possibility of hi t t in g others in th e process
of killing th e t a r get v i c t im . Such a w ar eness is a c i r c umstantial
evidence of in t ent t o k i l l t h e t h i r d p e r son. (see: People v. J u l i o
Guillen, G.R. ¹ . L - 1 4 7 7, J a n uary 18, 1 950; People v. F lora a r id
Flora, G.R. No. 125909, June 23, 2000; People v. Talampas, G.R. No.
180219, November 23, 2011)
I f the th ir d p erson merely suffered injur ies, and th ere is no
intent to kill, the crime committed against him i s m erely physical
injuries. The following circumstances negate intent to k i ll : (1) the
accused is not aware of the presence of the third person or there is
no showing of such awareness (2015 Bar Exam); (2) the victim was
hiding (People v. Violin, G.R. Nos. 114003-06, January 14, 1997
); or
(3) the accused did not kill the third person despite opportunity to do
so. (People v. Anquillano, G.R. No. 72318, April 30, 1987)
X with i n t ent t o k i l l s hot A , w h o su stained mortal w ounds.
B was hit by r e ason of aberratio ictus and died as a consequence.
C was also hit by r e ason of ab erratio ic tus and suffered injuries,
which healed after two weeks. The crime committed against A: s
frustrated homicide. X performed allacts necessary to execute h's
c riminal design to kil l A b y i n fi i c t ing mortal wounds on him. Th e
crime committed against B is consummated homicide. Since B died,
intent to kill is conclusively presumed. The crime committed against
C is less serious physical inju r i es. There is no showing that X i s
aware as to the presence of C when he shot A. Hence, intent to kill
was not established. Since the crimes were produced by a single ac-'
. ,
J9JC9B0M
II. FELONIES
Xis liable for a complex crime of homicide with frustrated homicid he
and less serious physical injuries. (1955 Bar Exam)
3. Com p o u n d Cr i m e a nd A be r r a t i o I c t u s — T h e
circumstance of aberratio ictus (mistake of blow) can neither exempt
the accused from c r i m i na l r e sponsibility (1993 Bar E x a m ) n o r
mitigate it (Ma t ic v. People, G.R. No. 180219, November 23, 2011).
However, the application of aberratio ictus may or may not produce
a complex crime.
I f the crimes committed against th e t a r get victim an d t h i r d
person, who was hit by reason ofaberratio ictus, were produced
by a single act,the accused is liable for a complex crime. (People'e
v. Talampas, supra; 2011 Bar Exam) Th u s, single act of throwing
a grenade killing one and i n j u r in g another constitutes a complex
crime of murder and attempted murder. The accused is entitled to
the benefit of Article 48 of the Revised Penal Code, which makes two
or more crimes as a single crime. (People v. J ulio Guillen, G.R. ¹.
L-1477, January 18, 1950)
However, the accused is liable for separate crimes despite the
application of the aberratio ictus rule, and not a complex crime in
the following cases:
a. I f t h e c r i m e c o mmi t ted against th e t h i r d p e r son,
who was hi t b y r e a son of ab e rratio i c t us, is m e rely a l i g h t
felony such as slight physical injur ies (People v. Violin, G.R.
Nos. 114003-06, January 14, 1997);
b. I f t h e c o mponents of a compound crime are alleged
in two d i f f erent i n f orm ations (People v. Um a w i d, G . R. 1Vio.
208719, tune 9, 2014);
c. I f t h e b u llet that killed that target victim is different
f rom the bullet t hat k i l l ed th e t h ir d p erson, who was hit b y
reason of ab erratio ic t us (People v. Fl ora, G.R. No. 12 590'9,
tune 23, 2000; People v. Adriano, G.R. No. 205228, July 1,5,
2015);
d. If th e c r i m e c ommi t ted against th e t h i r d p e r son,
who was hit by reason of aberratio ictus, is child abuse, which
is an offense punishable under special law (Patulot v. People,
G.R No. 235071, January 7, 2019); and
e. If t h e a c t a g a inst th e t a r get vi ctim w h ich hi t t h e
third person by reason of aberratio ictus constitutes a special
complex crime, e.g., robbery with homicide.
 70 CRIMINAL LAW REVIEWER
VOLUME I
X treacherously fired his Armalite rifie at A, and in the process,
B was hit by a stray bullet. As a consequence, A and B died. There is
a basic rule that the accused in firing an automatic rifle commits as
many acts as there are bullets fired from the gun. (People v. Desierto,
fC.A.J 4 5 O.G. 4542) If A was kil l ed by the 5th bullet whi le B was
killed by the 10th bullet, the kill i ngs of A and B were produced by
two different acts, and that is, the 5th act and the 10th act. Since
the killings were not produced by a single act, this is not a complex
crime of murders. X is liable for two counts of murders. It is a settled
rule that when various victims expire from separate shots, such acts
constitute separate and distinct crimes. (People v. Adriano, supra)
Accused consciously poured hot cooking oil from a casserole on
CCC, consequently injuring AAA (3 years old) and BBB (two months
old) burning their skins and faces. The intention of the accused is
merely to in flict i n j ur y o n C C C bu t b ecause of aberratio ic tus or
mistake of blow, AAA and BBB were also injured. Because of Article
4 of the Revised Penal Code, accused is l i a ble for t h e w r o n gful
acts done (child abuse against AAA and child abuse against BBB)
although it differs from the wrongful act intended (physical injuries
on CCC). (Patulot v. People, supra) T h is is n ot a c o m p lex crime
of child abuses and p h ysical i n j u r i es. Chil d a b uses are offenses
punishable under special law, which cannot be made components
of a complex crime. Article 48 of the Revised Penal Code speaks of
a single actconstituting two or more grave or less grave felonies.
An offense under special law is not within the contemplation of the
word "felonies" in Ar t i cle 48. Hence, accused is liable for physical
injuries and two counts of child abuse.
In the course of robbing a bank, one of the robbers with the use
of a rifie shot a responding police officer, but because of aberratio
ictus,a depositor was hit and died as a consequence. The robbers are
liable for a special complex crime of robbery with h o micide under
Article 294 of the Revised Penal Code and not a compound crime of
robbery with homicide under Article 48 of the Code. Article 294 is a
specific provision that will prevail over Article 48, which is a general
provision. (2018 Bar Exam)
Praeter In t e n t i onem
Praeter in t e n t i o nem means u n i n t e n t i onal. In pr ae t e r
i ntentionem, a person shall incur cri m i nal l i ability for committ i n g
an intentional felony although its w r ongful consequence is graver
than that intended. (1989, 1999, and 2019 Bar Exams)
J9JC9B0M
II. FELONIES
1. Th e 4 - 1 2 -365 Rule —The accused pointed his gun at the
deceased as a reasonable means to repel an un provoked unlawful
aggression committed by the latter. The act of pointing the gun iri
self-defense is justified. Article 4 in relation to the praeter intentionern
principle is not applicable since a justifi d act is not a felony withiri
the contemplation of this provision. Thus, the justified act of pointing
a gun, which accidentally fi red an d hi t t h e d eceased causing her
death, will not m ak e th e accused crim'nally l i able because of the
exempting circumstance of accident under Ar t i cle 12. In People v.
Tiongco, C.A. 63 O.G. 3610, the accusec., who accidentally fired his
gun while exercising his right of self-defense, was acquitted. (2014
'Bar Exam)
A, a landowner, surprised a youngster in t he a ct of s tealing
s ome fruits in h i s or chard. He t h r e atened to spank t hem i f t h e y
would not come down. Out of fear, all of them jumped from the tree..
As consequence thereof, they suffered serious physical injuries. A
i n o t cr i m i n ally liable. Threat to speal; is ~not a felon . A was j esuit
exercising his right of self-help under Arti cle 429 of the Civil Code;
threat to spank is a reasonable and necessary means to re el invasion
o~ ~ r o~ ty ; h e n c e, e is not responsi e fo r any direct, natural,
and logical consequence thereof. Article 4 on praeter intentionem is
not applicable. A is exempt from cr i m i nal l i ability because of the
circumstance of accident under Article 12. (1968 Bar Exam)
A landowner surprised a youngster in the act of stealing some
fruits in his orchard. To scare the intruder, he fired a shotgun aiming
at thefoliage of a cherry tree. The shot scattered and a pellet injured
the boy, who was standing under the tree. Accused is not liable for
physical injuries because he is merely exercising his right of self-
help. Hence, Article 4 on praeter inten:ionem is not applicable. He
is not exempt from criminal li ability. Ar t i cle 12 on accident is nclt
also applicable because there is culpa in this case. Accused failed
to adopt precautionary measure that wil l p r event any undesirablle
consequence from the act committed in the exercise of a right under
the self-help doctrine. He should have pointed the gun at a direction
substantially far from the victims. Thus, he 's liable for reckless
imprudence resulting in physical injuri s u n der Article 365. (Peopl'e
v. Nucum, G.A. No. L-482, February 25, 1947; 1965 Bar Exam)
2. Ac t o f an Accessory —After the victim was stabbed, the
accused assisted the chief actor in thr owing the dead body into thle
well not knowing that the victim is still alive. Thereafter, the victim
died due to drowning. Concealing the bcdy of the crime to prevent its
 72 CRIMINAL LAW REVIEWER
VOLUME I
d'iscovery is an intentional felony committed by an accessory. Since
deeath is the direct, natural, and logical consequence of such felonious
act of hiding th e body, the accused is responsible as principal in
the crime of homicide. He shall incur criminal liability for homicide
committed by a p r i n cipal al t h ough t hi s cr i m i nal p a r t icipation as
principal is different from his intended participation as an accessory.
(People v. Ortega, Jr., G.R. ¹. 11 6 7 3 6,July 24, 1997)
After th e v i c t im w a s s t a bbed, the m o t her of t h e m u r d e rer
assisted him in t h r owing the dead body into the well not knnowrng owin
t h at the vi ctim i s s t i l l a l i ve . T h ereafter, th e v i cti m d i e d du e t o
d rowning. It i s submitted t hat t h e act of an accessory committed
b y a person, wh o i s e x e mpt f r o m c r i m i na l l i a b i l i ty , c a nnot b e
considered as felony within th e contemplation of Ar t i cle 4. Hence,
the mother should not be held liable for murder as principal due to
the exempting circumstance of accident under Article 12.
3. Ph y si c a l I n j u r i e s — The accused punched his pregnant
wife. This is. physical'-injuries. If a s a c onsequence, she and her
u nborn baby d i ed, th e a ccused shall i n cu r c r i m i na l l i a b i l it y f o r
compound crime of parricide-with uni ntentionalwbortion (Peo l
a ufrania, G.R. No. L-50884, March 30, 1988) with the mitigatizrg
circumstance of pr a e ter i n t e ntionem (People v. R a b ao, G.R. N o .
46530, April 10, 1939), although this crime is different fron'. physical
injuries which he intended to commit. (1994 Bar Exam)
4. U nj u s t V e x a t ion — In People v. Pugay, G.R. No. 74324,
N ovember 17, 1988, the Supreme Court did not apply A rt i I 4 f
tthe
e R e v i s ed Penal Code for death resulting from the act of pouring
g asoline, which is p ar t o f t h ei r f u n m a k i ng, th e vi ctim b eing hi s
friend. In sum, the act of pouring gasoline was not t r eated as an
intentional felony. Hence, he is not liable for the direct, natural and
logical consequence thereof. The accused was convicted of reckless
imprudence resulting i n h o m i cide. But t h e C our t a p p lied A r t i cle
4 for death resulting from th e act of bur n ing the clothes. In sum,
t he act of burning th e clothes, which would h ur t t h e v i c ti m w a s
considered as physical inju r i es. Hence, he is li able for th e d i rect,
natural and logical consequence thereof. The accused shall in cur
criminal l i a b i l it y f o r h o m i c i de a lthough t h i s i s d i f f e r ent f r o m
physical injuries which he intended to commit.
Pouring gasoline over the victim as part of fun making would
vex or annoy the victim. But si nce the mind of the accused is not
criminal, such act is not unjust vexation. Hence, the Supreme Court
J9JC9B0M
II. FELONIES 7,'3
in the Pu gay case applied Art i c le 365 a nd n ot A r t i c le 4 b ecause
accused in pouring gasoline is not committing an intentional felony.
B ut if t h e act i s c o m mi t ted w it h m a l ice and not j u s t fo r a
friendly fun mak i ng, it w il l constitute unjust vexation. Malice can
be established by showing that the accused is angry at the victim or
motivated by revenge or spite. The accused is liable for the direct,
natural, and logical consequence of unjust vexation. Article 4 is now
applicable.
B ecause of jealousy, accused made plans to get even with th e
victim, his r i val i n c o ur t in g a l a dy, by scaring hi m of f somehow.
The accused placed a rubber snake which appeared to be real in
the backpack of th e vi ctim w i t h i n t e nt, to annoy or v ex. This act
constitutes unjust vexation. Since the vi c tim di e d a fter s uffering
heart attack when the backpack was opened, the accused is liable
for homicide which is th e d i r ect, natural anc. logical consequence
of unjust vexation. He shall i n cur cr i m i nal I : ability for h o micide,
although t hi s c r im e i s d i f f erent f r o m u n j u s t v e x ation w h ich h ie
intended to commit. (2001 Bar Exam)
A ngered by the i m p u t ation of t h eft m ade by th e v i ctim, t h e
accused tried toscare her by trying to make it,appear that he was
about to run her over but he applied the brakes. This act constitutes
unjust vexation. Since the vehicle skidded b cause the r oad w as
slippery and th e v i c ti m w a s hi t a n d d i e d a s a c onsequence, the
accused is li able for h o m icide, which i s t h e d i r ect, n at u r al, anted
l ogical consequence of u n j ust v e x ation. H e s h al l i n cu r c r i m i n al
liability for homicide, although this crime is different from unjust
vexation which he intended to commit. (2005 Bar Exam)
Out of spite and simply i n t ending to pu t G i n a t o sh ame for
breaking off with h im , Ritchie emptied a gallon of motor oil on thee
school's stairway where Gina usually passed. Gina, unaware of what
Ritchie did, used the slippery stairway and slipped hitting her hea,d
on the stairs. Since Gina died from bra:n hemorrhage, the accuse~d
is liable for h o m i cide, wh ich i s t h e c .irect, n a t u r al , an d l o gical
consequence of unjust v exation. H e sl all i n cu r c r i m i nal l i a bility
for homicide, although this crime is different from unjust vexation
which he intended to commit. (2013 Bar Exam)
5. F el o n y P r o d u c ing Fear — If a person in committing an
intentional felony creates in the m in d of the victim an i m m ediate
sense of danger which causes such person to try to escape, and in
so doing he injures himself, the person who creates such a state
 74 CRIMINAL LAW REVIEWER
VOLUME I
of mind is responsible for the resulting i n j u r i es. Such intent:onal
felony that creates asense of danger can be threat
(US v. Valdez,
G.R. No. 16486, March 22, 1921); murder (People v. Toling, G.R.
¹. L - 2 7 097, January 17, 1975); rape (People v. Castromero, G.R.
No. 118992, October 9, 1997); or robbery. (People v. Arpa, G.R N o .
L-26789, April 2 5 , 1 969) In s u m, he s hall i n c ur c ri m i n al l i a bility
f or the death of or i n j u r ies sustained by the vi ctim a l t h ough t h i s
consequent crime is different from threat, murder of another victim,
or rape which he intended to commit.
If the
h accused committed a crime and as a consequence another
crime is committed, these two crimes can be merged into a special
complex crime, or compound crime, or may be treated as separate
or as a single crime. If. in the course of robbery, the victim jumped
o ut of fear f ro m t h e b oat an d d i e d a s a c onsequence, the crim e
committed is a s p ecial complex crime of r o bbery w it h h o m i cide.
(People v. Arpa, supra; Bar Exam 2004) If after the consummation
of rape, the victim jumped out of fear from the building and suff r ed
serious physical injuries as a consequence, the crime committed is
a compound crime of r ape w it h s erious physical inj u r i es.
(People
v. Castromero, supra) If in t h e c ourse of committing m u r d ers, the
victims without knowledge of the accused jumped from the train and
as a consequence died,the accused may be held liable for separate
crimes of murders.(People v. Toling, supra; 1975, 1976, 1996, and
2001 Bar Exams) If the accused threatened to kill the victim, and b
v Effects on the Penalty
reason hereof, the latter jumped from the boat and died, the former
is liable for homicide. (US v. Valdez, supra; 1997 Bar Exam)
6. Con c l u s ive pr esumpt ion of i n t ent to k il l — Ac cused
merely kicked and punched th'e victim on the stomach, which shows
that their i n t ention is merely to mal t r eat, and not to end his life.
The concept of intent to kill as an element of homicide should not be
confused with that of lack of intent to kill, on the basis of which the
mitigating circumstance of praeter intentionem shall be appreciated.
Since the victim died as a consequence of a felonious act of violence
employed by the accused, intent to kill as an element of homicide is
c onclusively presumed. Even if there is no intent to kil l t h
is sti
is stillh omi c i d e because with respect to crimes of personal violence,
the penal law looks particularly t o th e m a t erial r esults following
t he unlawful act an d h o lds th e aggressor responsible for al l t h e
consequences thereof. H owever, t h e m i t i g a t in g c i r c umstance
of
praeter intentionem shall b e appreciated since there is no ' t
i n en t t o
i . The ru e on conclusive presumption of intent to k il l sh all not
J9JC9B0M
75
II. FELONIES
apply to appreciation of pr aeter intentionem.(see: Wacoy v. People,
G.R. No. 218792, June 22, 2015)
E rror In P e r sonae and Aber r a tio I c t u s
X treacherously shot and ki l led A, w ho was mistaken by the
:"ormer as his wife. B, who was hit by mistake of blow, suffered slight
physical injuries. Xis liable for murder for the killing of A because of
error in personae rule and slight physical injuries for the wounding
of B because of the ab erratio ic tus ru le. This is n ot a c o mpound
"rime because slight physical injuries being a light felony cannot be
' made a component thereof. But if B wa s hit in h is left eye caus!ing
blindness, the crime committed is a compound crime of murder with
serious physical injuries. (2015 Bar Exam)
In aberratio ic tus and er r or in p e r sonae, t he victim, w ho i s
killed or i n j u red by t h e a ccused, is di fferent f rom t h a t i n t e nded
victim. In ab e rratio i c t us, the u n i n t e nded victim w a s h it d u e t o
mistake of blow, while in error in personae, the unintended victim
was hit due to mistake of identity. In error in personae,there is only
one victim; while in ab erratio ictus, there are at least two victi!tns.
The imposition of penalty in error in personae is generally subject to
Article 49 of the Revised Penal Code, while aberratio ictus is subject
to Article 48. (1994 Bar Exam)
Under Article 49(1) and (2) of the Revised Penal Code, if the
penalty for the felony committed be higher or lower than t hat f or
the felony which the accused intended to commit, the penalty for
the former or l a t t er , w h i chever is le sser, shall be i m p osed in, its
maximum period. Article 49 applies only to error in personae.
X, with i n t ent t o k il l h i s u n cle, shot and ki l led his father by
reason of mi stake of i d entity . Th e cr im e committed i s p a r r i cide,
while the crime which X intended to commit is homicide. Although X
committed parricide, the penalty for this crime shall not be imposed.
Applying Article 49, the court shall impose the penalty for homicide,
which is the lesser crime, and apply the same in its maximum period.
X, with i n t ent t o k il l h i s f a th er, shot and ki l led his uncle by
reason of mistake of identity. The crime committed is homicide while
the crime which X intended to commit is parricide. Applying Article
49, the court shall impose the penalty for homicide, the lesser crime,
and apply the same in its maximum period.
 76 CRIMINAL LAW REVIEWER
II. FELONIES 77
VOLUME I

X, with i n t en t t o k i l l h i s b u s iness rival, t r eacherously shot

and killed his father by r eason of mi stake of identity. The crime
committed is parricide while the crime which X intended to commit
is murder. Article 49, which requires the application of penalty in its
maximum period, is not applicable because both crimes are punish d
nis e
by reclusion perpetua to death. Article 49 (1) and (2) 'l l
w i o nIy ap pIy
iif tthe
e p enalty for the intended crime is higher or lotver than that for
the committed crime. (1983 Bar Exams)
Article 49 a p p l ies onl y t o er r o r i n p e r s onae.I t i s n e i t h e r
applicable to aberratio ictus (People v. Guillen, supra) nor to praeter
intentionem. (Wacoy v. People, G.R. ¹. 21 3 7 92,June 22, 2015)
Error i n p e r sonae h as a m i t i g a t i ng e f f ect s in ce A r t i c le 4 9
requires the imposition of the penalty for th e crime committed or
t he crime intended w hhichever
' is lesser. It has also an aggravating
e ffect since the l esser penalty s h all b e a p p l ied i n i t s m a x i m u m
period. (196'9 Bar Exam) In s u m, t he p enalty u n d er Ar t i c le 49 in
case of error in personae is halfway between penalties for the crime
committed and that intended because while the lesser penalty shall
be imposed, the same shall be applied in its maximum period.
In ab e rratio i c t u s, A r t i c le 4 8 ,
m ay a p pl y w h e r e crimes
committed against the intended victim and t h ir d person, who v'as
it by reason of mi stake of blow, were produced by a s i n gle act.
Complex crime produced by aberratio ictus has a mitigating effect
since under Art i cle 48 tw o or m ore crimes will b e t r eated as one
crime. Ithas also an aggravating effect since the penalty for the
most serious component shall be applied in i t s m a x i mu m p eriod.
I n sum, th e p enalty u n der A r t i cl e 4 8 i n c a s e of complex cr i m e
produced by aberratio ictus is halfway between penalty for the most
s erious component thereof and the combined penalties of all of it s
components. Although the penalty for the most serious component of
the complex crime shall be imposed in its maximum period, Article
48 is beneficial to the accused since the penalty for the most serious
crime islesser compared to the combined penalties oftwo or more
component thereof.
Praeter in t e n t ionem m ay b e a p p r e ciated a s
c ircumstance of lack f intent
' m iti a t i n
ack of to commit so grave a wrong than that
committed under Article 18. (1969 Bar Exam)
Note: The rule under Ar t i cle 49(3) of the Revised Penal Co e
a ccordin t o J uust
s 'i c e RRegalado is obsolete since it covered a situation
'ing
g actual perpetrators who fired at th e i n t ended victim are liable for
involvin frustrated r egicide, which i s n o t a n y m or e p u n i shable
under the Code.
Evident Pr em e d it a t i on
In case of aberratio ictus and error in personae, the Supreme
Court did not a ppreciate evident premeditation since the accused
did not p r e meditate th e k i l l i n g o f t h e a c t ual v i c t im. (P eople v.
Trinidad, G.R. No. L-38930, June 28, 1988; People v. Mabug-at, G.R.
No. L-25459, August 10, 1926; 1972 Bar Exam) However, in praeter
intentionem, evident premeditation can be considered. They shall be
independently appreciated. (Revised Penal Code by Luis Reyes) If the
accused premeditated the assault of the victim, but not the kill i n g,
and implemented his criminal resolution by boxing him causing his
death, both evident premeditation and praeter intentionem shall be
appreciated.
Treachery
If the accused employed means to render the victim defenseless,
treachery shall be appreciated even if the ki l l ing is due to errors in
personae (People v. D el Castillo, Sr., G.R. No. L-32995, April 3 0 ,
1984) or aberratio ictus (People v. Mabug-at, G.R. ¹. 25 4 5 9,August
10, 1926; 1972 and 2000 Bar E xa ms) or wi th t h e c ircumstance of
praeter intentionem. (People v. Cagoco, G.R. No. 38511, October 6,
1933; 1999 Bar Exam)
In People v. Flora, G.R. No. 125909, June 23, 2000, the accused
was convicted of two separate counts of murder for the killing of the
intended victim, and the victim who was hit by a stray bullet. The
Supreme Court, due to the presence of the aggravating circumstance
of treachery, qualified both kill i ngs to murders. (People v. Adriano,
G.R. No. 205228, July 15, 2015; 1982 Bar Exam)
Conspiracy and Article 4
Conspirators ar e e q u all y l i a bl e f o r t h e k i l l i n g o f a n o t h er
person due to er r or i n p e r s onae (People v. P i n t o, J r . , G . R. ¹ .
39519, November 21, 1991); or despite the circumstance of praeter
intentionem. (1986' Bar E x a m) H o w e ver, t he r u l e i s d i f f e rent i n
aberratio ictus. Conspirators, who fired at the intended victim,, are
liable for the injuries inflicted upon a third person, who was hit by
reason of aberratio ictus. But a co-conspirator (lookout), who never
even fired a single shot, is not liable for the injuries inflicted upon
such third pe rson. The i nfliction of i n j u ry u p on t he t h i rd p e rson
i s outside the contemplation of th e conspirators. Hence, only th e
the injuries sustained by the third person. (PeopLev. Herbias, G.R.
¹s . 112716-17, December 16, 1996; People v. Flora, supra)

J9JC9B0M
 78 CRIMINAL LAW REVIEWER II. FEL'ONIES 79
VOLUME I

Proximate Cause
is either a distinct act or fact absolutely foreign from the felonious
Even if the victim is suffering from an internal ail act ofthe offender.
a ai men ,t, I'i v e r or
ear isease, ortuberculosis, if the blow delivered b th
e y e acc u s ed:: X and Y had a heated altercation and then exchanged blows.
(a) is e e ficientcause of death; or (b) has accelerated his death; or
X pulled out a k n i f e and stabbed Y in t h e abdomen. Y ran aw ay
(c) is t e pr oximate cause of death; then he is criminally li able for
but before he could reach his house, he was struck by lightning and
the death of the victim. (People v. Ulep, G.R No. L-36858, June 20
died. X should not be held liable for homicide since the lightning is
1988; 2003 Bar Exam)
an efficient intervening cause that broke the relation between the
P roximate cause ha s b een d e fined as "t h a t c a u s e, felonious act and death. However, Xis liable for physical injuries f'o r
w i c,
in na t u ra l a n d c o n t i n uous sequence,unbroken b g' the stab wound suffered by Y.(1979 Bar Exam)
intervenin
in ervening cause, produces the injury, and without which the result
If the victim died due to tetanus of which he was infected at
wou n o t h a v e occurred."(Belbis, Jr. v. People, G.R. No. 181052
the precise moment when the a ccused inflicted injuries upon hi.m
November 14, 2012)
or im mediately thereafter, the c ri me c ommitted is h o m icide. The
The victim suffered heart a t t ack becausee of ' infliction of injuries is the proximate cause of his death. (People v.
' j ' u o o thee ini nfl ' i ct i o n off
in'uries upon her, and a s a c o nsequence, sshe d' i e Cornel, G.R. No. L-204, May 16, 1947)
d . . Th e accu s e d
is
i s liable
i a e f o r t h e d e ath of th e v i ctim because the h ' I
e e p ys i c a i n j u r i e s If the v i cti m d i e d du e t o t e t a nus of w h ich h e w a s i n f ected
c ommitted
mi e b y h i m m i s t h e p r o x i m ate cause of her death. (People v.
several da ys af t er t h e a c c used inf li c ted i n j u r i es u p on h i m , t h e
Ulep, supra; 2003 Bar Exam)
crime committed is physical injur ies. The accused is not liable for
Althou g'
h t h ere w as no direct injury on the vital organs of the homicide because tetanus is an efficient i n t ervening cause. Thr.s,
victim, his wounds affected his kidneys, and caused multiple organ the proximate cause of the death of the victim is not the infliction of
failure and eventually his death. Th e accusedi s' I' i a
blble for homicide. injuries.
W h
Without the stab w ounds, the victim could not have been afflicted
In Vill acorta v. People, G.R. No. 186412, September 7, 2011,
with an infection which later on caused multiple organ failure that
t here had been an i n t e r val o f 2 2 d ay s b etween th e d at e of t h e
stabbing and th e d at e w hen v i c t im , wh o exhibited symptoms of
T he p roximate
ox' c ause rule ap p l ie s w hether t h e f e l on y i s severe tetanus infection, was rushed to hospital. Since the victim
i ntentionalor culpable. Howeverr, th e b as 'i s o f a p plying
I ' the proximate was infected of severe tetanus, he died the next day. The incubation
cause rule to intentional felony is Arti cle 4(1) of period of severe tetanus is less than 14 days. Hence, he could not have
ic e ( ) o the Revised Penal
o e. s ou be noted t ha t t h i s p r o v i sion m er el a l i e s t been infected at the time of the stabbing since that incident occuri. ed
intentional f elon y.
. The p h r a se although th e w r o ngful a ct d o n e
A'
22 days before the victim was rushed to the hospital. The infection
be different from that wh i ch he in t ended" i n A r t ' I of victim's stab wound by tetanus was an efficient intervening cause
cu pa e e o n y f r o m it s coverage. In culpable felon because such infection is absolutely foreign from the stabbing. The
e ony, thee off
o en d e r
ve on e a w r o n g f ul a ct d if ferent from t h at wh i ch h e accused was held liable for physical injuries. (Urbano v. IAC, G.R.
intended" since he did not intend to do wrong in the first place; the No. 72964, January 7, 1988; People v. Tadeo, G.R. Nos. 127660 and
concept of culpa is not in harmon y wi'th th at o cr i m i n a l i n t e ntion. 144011-12, September 1 7, 2002; 1996 Bar Exam)
f
On the other hand, the basis of a lying
o app ' the proximate cause rule to The delay in g i v in g m edical tr eatment ( 2 001 Bar E x a m)„o r
culpable felony is Article 365 thereof. failure to receive proper medical attendance (People v. Acuram, G.R.
No. 117954, April 27, 2000), or refusal to undergo treatment for his
Efficient Int e r v e n ing Cause ion
injuries (2011 Bar Exam) does not break at all the causa
The direct relation between intentional felony and death between the wrongful infliction o v ccused and the
ea may ea o e vi ct i m . t d oes not constitute efficient intervening cause
be broken by an effic'
ci en t i n t e r v ening cause or an active force which
ecause it is not a s o l ut ely foreign from th e in fliction of inju r i es.

J9JC9B0M
 CRIMINAL LAW REVIEWER
VOLUME I
The proximate cause of the death of the victim is still the infiiction
of injuries.
E fficient c a u s e
The offender is liable for the death of the victim if his felonious
act is the efficient cause of such death. Efficient cause is the working
cause; the cause that produces the death of the victim. (Black's Law
Dictionary) In People v. Rabao, G.R. No. L-46530, April 1 0, 1939,
the husband quarreled with his wife because he wanted to restrain
her from giving a bath to their child, who had a cold. In the course
of the quarrel, he punched her in th e abdomen. Thereafter, victim
died. It was found that spleen of the victim had been enlarged due
acute and chronic malaria and t hat he r d eath was caused by th e
rapture of the spleen as a consequence of the punching. Accused was
convicted of parricide. Note: It m ay be argued that t he p ro ximate
c ause of the death is the malaria virus infection since without it th e
spleen of the victim could not have easily rapture by a simple fistic
blow. However, even if the infection was the proximate cause, just
the same the offender would be held liable for the death of the victim
since the fistic blow is the ef icient
f cause" of her death.
IMPOSSIBLE CRIME
Impossible crime is an act which would have been an offense
against person or property, were it not for the inherent impossibility
of its accomplishment or on account of the employment of inadequate
or ineffectual means. (Article 4 of the Revised Penal Code; 1947, 1998,
and 2000 Bar Exams) The offender shall incur criminal liability for
committing an impossible crime because of his criminal tendency or
intention. (196'2 Bar Exam)
Impossible crime is not a real crime since the accused did not
commit the crime against person or property for it is impossible to
do so. The law punishes the accused not because of the commission
of the crime but on th e basis of his t endency to do so.
(2000 Bar
Exam)
O ffender shal l b e h e l d l i a b l e f o r i m p o ssible cr im e i f t h e
following requisites are present: (1) offender performed an act which
would have been an offense against person or property; (2) offender
p erformed an ac t w i t h e v i l i n t e nt ; (3 ) o f fender di d n o t c o m m i t
the offense because of the i m possibility of i t s a ccomplishment or
employment of inadequate or ineffectual means; and (4) offender in
J9JC9B0M
II. FELONIES
performing an act is not violating another provision of the law. (The
Revised Penal Code by Luis B. Reyes)
F irst requisite: Crimes Against Person or Pr op er t y
N ot all i m p ossible crimes p r escribed an d p u n i shed by t h e
Revised Penal Code are punishable. Only impossible crimes against
person andproperty are punishable. (1964 Bar Exam)
Gender is an element of crimes against chastity except acts of
lasciviousness. In seduction and consented acts of lasciviousness,
and abduction, the offender must be a man, while the victim must
be a woman. In adultery, the offenders must be a married woman
and a man (2016 Bar E x a m), wh i le in c oncubinage the offendeis
must be a married man and a woman. In corruption of minor aiid
white slavery, the victim must be a female prostitute. If the gender
element is not present in a crime against chastity, the accused is not
liable for impossible crime because the act which is impossible to be
committed does not constitute a crime against person or property.
If the accused abducted the victim with l ewd design and with
'intent to rape not knowing that th e victim is gay, who underwent
gender reassignment, he could not be held liable for complex crime
o f rape through forcible abduction since both components of t h i s
complex crime can only be committed against a woman. Nor is he
liable for impossible crime of forcible abduction since this is a crime
against chastity. In i m p ossible crime, the act, which is impossible
to be committed, must constitutecrime against person or property.
Neither is he liable for impossible crime of rape since act constitutes
another violation of the law. He is liable for illegal detention.
But if the accused abducted a gay, who underwent gender
r eassignment, had sexual intercourse with h im , and k i l led hi m : i n
the course of detention, the crime committed is special complex
crime of kidnapping with homicide. Having sexual intercourse with
a gay merely constitutes acts of lasciviousness, which is integrated
into the special complex crime of kidnapping with homicide. (2016
Bar Exam)
Adultery is committed by any marr ied woman who shall have
sexual intercourse with aman not her husband and by the man who
has carnal knowledge of her knowing her to be married. (Article 888
of the Revised Penal Code) However, one, who pretended to be a
woman in marrying the complainant, cannot commit adultery sirice
he is not a married woman. Neither is his sexual partner liable for
 CRIMINAL LAW REVIEWER
VOLUME I
adultery since this crime committed by the man presupposes that
w oman of whom he had carnal knowledge is also liable for ad l t
Th'is crime cannot unilaterally be committed by the man. There is no
impossible crime of adultery since this is a crime against chastity,
and not againstperson or property. (2015 Bar Exam)
Prior to R.A. No. 8353, rape is a crime against chastity. Th
y. u s,
i a person raped adead person believing that she was just sleepin
if eeping,
offender could not be held liable for impossible crime.
(The Revised
Penal Code by J u s tice Ramon Aq u i n o) H o w e ver, R.A. N o. 8 3 5 3
reclassifiesrape from crime against chastity to crime against person.
Hence, an offender for raping a dead person without knowing that
she was already dead may now be held liable for impossible crime.
The accused shall incur criminal liability for performing an act which
would have been rape were it not for the inherent impossibility of its
accomplishment.
Second R equisite: Evil In t e n t
Offender with intent to kill stabbed the victim not knowing
that he is al r e ady d e ad. Th is i s i m p o ssible crime. T he a ccused
shall incur criminal liability for performing an act which would
have been homicide were it n o t f o r t h e i n h erent i m p ossibility of
its accomplishment. He w il l b e p u n i shed because of his cri m i n al
tendency to kill a person. (1961 and 1976 Bar Exams)
Offender stabbed the victim knowing th at he is already dead.
This is not i m possible crime since it wa s committed wi t h out evil
intent t o k i l l , t h e s econd requisite of i m p ossible crime. Th e act
does not show criminal t endency, which is the basis of penalizing
impossible crime, because he is aware that he is not killing someone
at time of stabbing.
In impossible crime of homicide, the accused intended to kill
the victim, and perpetrated an act to kill him not knowing that it is
impossible to do so.
Accused delivered a child, who was stillborn. She instructed her
co-accused tobury her dead child. Her co-accused had deposited and
left the dead infant in a small pit containing a little water. Accused
are not liable for infanticide since the infant was already dead upon
its delivery. (US v. Aquino, G.R. No. 11653, August 19, 1916) Neither
are the accused liable for impossible crime of infanticide since they
are aware that the child was already dead when it was left in a pit
J9JC9B0M
II. FELONIES
containing water. In sum, they have no criminal intent to kill since
they are aware that they cannot kill a dead person.
One, who had sexual i n t ercourse with a d ead person, is not
liable for an impossible crime of rape if he is aware that the latter
is already dead. Necrophilia is not a felony punishable under the
Revised Penal Code.
Third requisite: Factual and Legal Impossibility
In th e U n i t e d S t a t es, c r i m i na l l a w s a r e s i l en t r e g ar ding
impossible crimes; hence, where the offense sought to be committed
is factually i m p o ssible o f a ccomplishment, t he o f fender s hall b e
liable for the attempted crime. On the other hand, where the offense
is legally impossible of accomplishment, the actor cannot be held
liable for any crime.
In the Philippines, the crime committed is an impossible crime if
the offense sought to be committed is factually or legally impossible.
(Intod v. Court of Appeals, G.R. No. 103119, October 21, 1992) For
example, if the victim is not in the room, it is factually impossible for
the accused in firing his gun at the room to hit him. Hence, shooting
at the room to kill the victim is an impossible crime because of the
factual im p ossibility of c ommitt i ng i t. O n t h e o t h er h a n d, if t l he
target victim is already dead, it is not factually im possible for the
accused in firing his gun to hit h im ; but it i s l egally impossible for
the accused to kill a person, who is already dead. Hence, shootin.g
at a dead person to kill him is an impossible crime because of legal
impossibility of committing it
Putting the hand inside an empty pocket with the intention
to steal a wallet th erein is an i m possible crime because of factual
impossibility of commit t in g it . (I n t od v. C ourt of A p peals, sup~a;
1947 and 1962 Bar Exams)
1. I m p o s s ibleLi g h t Cr i m e — Th e penalty for impossible
crime is arresto mayor or a fine from P200 to P500 (Article 59 of the
Revised Penal Code), while the penalty for light felony is arresto
menor or a fine not exceeding P200 or both. Art i c le 59 should not
b e made applicable to one who attempts to commit a l i g h t felony
of impossible materialization since the penalty for the impossible
crime is graver than that for the consummated light crime. It would
be unfair to pu nish a p erson, who failed to commit a l i ght f elony
since it is impossible to accomplish it, for a graver penalty than that
for a person who was able to commit it. (2012 Bar Exam)
 84 CRIMINAL LAW REVIEWER
VOLUME I
I t should be noted that R.A. No. 10951 failed to modify t h e
penalty of fine prescribed for impossible crime.
2. Im pos s i b le c r i m e a nd A t t e m p te d o r Fr u s t r a t e d
Felony — In i m p ossible crime and attempted or frustrated felony,
the offender did not complete the commission of the crime. But the
difference between the two lies on the external cause that prevents
the consummation of the crime.
I f th e e x t ernal c a use o f n o n -commission of t h e
c rime i s
the im possibility of a c complishing th e cr i me or th e em ployment
of ineffectual or i n a dequate means, t he o ffender is l i a b le for a n
impossible crime.
If the
h external cause of non-performance of all acts of execution
is some cause or accident other than his own spontaneous desistance,
the offender is liable for attempted felony. In attempted felony, it is
possible tocommit the crime, but the offender fails to perform all
acts of execution due to some cause or accident other than his own
spontaneous desistance.
If thhe external cause of non-production of the crime despite the
performance of all acts of execution is a cause independent o
f his
will, offender is liable for frustrated felony. In frustrated felony, it
is possible to commit the crime, and in fact, the offender has already
performed all acts of execution, but the crime was not produced due
to cause independent of his will.
The phrases "i n herent i m p o ssibility o f i t s a c c omplishment"
and "employment of i n e ffectual or i n a d e quate means" i n A r t i c l e
o f the Revised Penal Code cannot be considered as wit hin t h e
contemplation of the phrase "some cause or accident other than his
own spontaneous desistance"or "causes independent o
f the will of
t e perpetrator" in Art i c le 6. To rule otherwise will render useless
t e provision in Article 4 on impossible crime. (see: Intod v. Court of
Appeals, supra)
T he A merican p r i n ciple, w h ich m a k e s a p e r s o
I bl f
a empt e c r i m e i f t h e r e i s a f a c t ual i m p ossibility t o commit i t ,
cannot be applied in our country because it contradicts Article 4 of
the Code. (see: Intod v. Court of Appeals, supra)
The offender with intent to kill pulled the trigger of a gun with
a dud bullet (defective bullet) at t h e v i c t im . Th e act constitutes
impossible crime because of the impossibility of killing a person
J9JC9B0M
II. FELONIES 85
with a dud bullet or the employment of ineffectual means. (2014 Bar
Exam)
The offender with intent to kill pulled the trigger of a gun with
live bullets at the victim, and as a consequence, he sustained non-
mortal wounds. The offender failed to shoot further shot the victim
to inflict a mortal wound since he was arrested by a police officer.
This is not impossible crime since there is a possibility of killing the
victim wit h a gu n l o aded with l iv e bu llets. The crime committed
is attempted homicide, since he failed perform all actsnecessary
to execute his cri m inal design to k i l l h i m b e cause of hi s t i m ely
apprehension. His apprehension and not his spontaneous desistance
prevented him from inflicting a mortal wound on the victim.
The offender with intent to kill pulled the trigger of a gun with
live bullets at the victim, and as a consequence, he sustained mortal
wounds. However, the victim survived due to medical intervention.
This is not impossible crime since there is a possibility of killing the
victim. Infact, the offender already performed all acts necessary to
kill him by inflicting mortal wounds. With mortal wounds, the victim
was already dying. The cr im e committed i s f r u s t r ated homicide
since the victim survived due to medical intervention. This medical
intervention, which is not d ependent on th e w il l o f t h e offender,
prevented the completion of the crime.
Offender with i n t ent t o k i l l t h o u ght t hat t h e salt, which he
mixed with the coffee of the victim, is arsenic powder. Victim drank
the coffee. Murder was not committed due to th e employment of
ineffectual means. Offender is liable for impossible crime.
Offender with intent to kill mixed arsenic with the coffee of the
victim. Victim drank the coffee. The victim did not die by reason of
the inadequate quantity of the poison. Murder was not committed
due to the employment of inadequate means. Offender is liable for
impossible crime.
Offender wit h i n t en t t o k i l l m i x e d a r senic w it h t h e c offee
o f victim. Victim d r ank t h e coffee. The quantity of th e p oison is
adequate to kill the victim. But the victim did not die due to timely
medical intervention. Offender is liable for frustrated murder.
3. F r us t r a t e d i m p o ssible cr im e — I f t h e c r i m e is n o t
committed, the accused can be held liable either for frustrated felony
or for impossible crime; but he cannot be held liable for frustrated
impossible crime. Article 4 of the Revised Penal Code on impossible
crime and Article 6 on frustrated felony cannot be applied together
 86 CRIMINAL LAW REVIEWER
VOLUME I
since their concept are different and di stinct from each other. In
impossible crime, it is impossible to commit the crime, and thus, the
offender cannot perform all acts of execution. For failure to perform
a ll acts of execution, frustrated felony is not committed. On t h e
other hand, in frustrated felony,, it is possible to commit the crime;
in fact, the offender already performs all acts of execution. Since it is
possible to commit the crime, impossible crime is not committed. In
sum, impossible crime and frustrated felony are mutually exclusive.
(2012 Bar Exam)
If the victim is dead, there is no way for the offender to pe f
a acts
all act of execution (e.g., inflicting mortal wound). Whatever damage
caused to the dead body by stabbing perpetrated by th e accused
cannot be classified as mortal wound. Offender cannot perpetrate an
act to execute his criminal design to kill since the victim is al
d
ead. Hence, frustrated felony will be r u led out. Stabbing a dead
person with i n t ent t o k il l i s i m p ossible crime, and not f r u strated
homicide. On the other hand, if the victim is alive, and the offender
performs all acts of execution by inflicting mortal wounds on him,
i mpossible crime will be ruled out because it is possible to kill t h e
victim; in fact, he is already dying because of his mortal wo unds.
Hence, impossible crime cannot b e committed. I n f licting m o rt al
wounds on the victim, who did not die d'ue to medical intervention is
frustrated homicide, and not impossible crime.
4. Con s p i r ac y — St a b b ing a p e r s on w i t h o ut k n o w ledge
that he is already dead is impossible crime. (Intod v. CA, supra)
However, if the accused, who stabbed the dead body of the victim,
conspired with the one who previously hacked and killed the victim,
the former is liable for mu r der and not i m possible crime because
of the collective responsibility ru le. The liability of the accused for
murder is not based on his act of stabbing the dead body of the victim.
His liability is based on the act of his co-conspirator in hacking and
killing the victim, which by fiction of the law shall be treated as the
act of both of them. (People v. Callao, G.R. No. 228945, March 14,
2018)
5. I m p o s sibility t o c o m mi t a n o n - elemental act — I n
impossible crime, it is impossible for the accused to comm't th
If thee crime is already consummated and there is an impossibility to
commit an act, which is not an element thereof, the accused is not
liable for impossible crime.
a . I m po s s ibilit y t o o b t a i n r a n s o m p a y m e n t -
Receiving ransom payment is not an element of kidnapping for
J9JC9B0M
87
II. FELONIES
ransom. What is important is that the victim was kidnapped for
purpose of ransom. Hence, impossibility to obtain the ransom
payment, which is not an element of kidnapping for ransom,
will not render this crime impossible to be committed. In flact,
kidnapping for r a nsom consummates at the p recise moment
when the victim was abducted with intent to demand ransom
payment. The consummation of th e cr ime is not compatible
with the concept of impossible crime. Moreover, kidnapping is
a crime against liberty. In i m possible crime, the act which is
impossible to be committed must constitute a crime against
person or property. (see: People v. Tan, G.R. No. 95322, March
1, 1993; 2000 and 2014 Bar Exams)
b. I m p o s s ibilit y t o en c a s h a f or g e d t i c k e t -
Encashing a forged PCSO sweepstake ticket is not an element
of the crime of forgery. Hence, impossibility to encash the ticket,
which is not an element of forgery, because its falsity is very
obvious will not render this crime impossible to be committed.
In fact, forgery consummates at the precise moment when the
accused forged the ticket. The consummation of the crime is
not compatible with the concept of impossible crime. Moreover,
forgery is a crime against public interest. In impossible crime,
the act which is impossible to be committed must constitute a
crime against person or property. (see: People v. Balmores, G.R.
No. L-1896, February 16; 1950)
c . I m po s s ibility to en cash an un f u n ded check -
If the check is unfunded, stealing the cheek of the employer by
a n employee and presenting the same for payment with t h e
bank constitute i mpossible crime. The act of depositing th e
check is committed with evil intent. The mere act of unlawfully
t aking the check meant for M ega Inc., showed her intent t o
gain or be u n j u stly e n r iched. There is f actual i m possib:ility
to accomplish the crime of qualified theft since the check is
unfunded. (Jacinto v. People, G.R No. 162540, July 13, 2009;
2012 Bar Exam)
If the check is funded, stealing the check and failure to
present the same for payment with the bank will not make the
accused liable for impossible crime. Even if the accused failed
to encash the same due toexternal cause such as confiscation
of thecheck by police, burning of check or stop payment order,
he will be held li able for consummated theft. (see: Peop~/ev.
Seranilla, G. R. No. L - 5 4090, May 9, 1 9 88) In t h e f t, t ak!ing
o r acquiring possession of personal property w it h i n t ent t o
 88 CRIMINAL LAW REVIEWER
VOLUME I
g ain consummates th e c r i me. A ctual g ai n i s i r r e l evant a s
the important consideration is th e i n t ent t o g ain. (Peopl
ope v.
ustinera, G.R. No. 14 8288, Ju ne 8, 2 004
) Thus, failure t o
obtain actual gain, which is not an element of theft, will n ot
render this crime impossible to be committed.
The principle in Jacinto is not compatible with Seranilla, and
other cases because if the Seranilla p r i n c iple was applied to t h e
facts of the case in Jacinto, the crime committed is consummated
theft and not impossible crime. Actual gain by encashing the check
is not an element of theft. Hence, the impossibility of actual gain
because the check is not funded will not r ender the crime of theft
impossible to b e c ommitted. T h eft c onsummates at t h e p r e cise
moment when the accused took the unfunded check with intent to
g ain. The consummation of th e crime is not compatible with t h e
concept ofimpossible crime
For purpose of the bar examination, Jacinto principle must be
foll
o owed. Taking an unfunded check is impossible crime. However,
the application of the Jacinto principle must be confined to a case
where the failure t o gain i s b ased on th e u n f u nded condition of
the check. If the failure to gain is based on other reason such as
confiscation of the check, stop payment order, the check was burned
by fire, Seranilla principle must be applied. Taking a funded check
with intent to gain is consummated theft despite of the failure of the
offender to obtain actual gain.
F ourth requisite: Not Constitutive of Another Cr i m e
If th e accused performed an act constituting impossible crime
and another crime such as arson or serious physical injuries, he will
be prosecuted for the latter. To rule otherwise is to allow the accused
to escape thepenal consequence of a graver crime by being liable of
impossible crime where the penalty is only arresto mayor or a fine
from P200 to P500.
1. S e r i o u s P h y sical I n j u r i e s — Ac c used put s ubstance
too thee food
oo ooft h e v i c t i m w i t h i n t ent t o k il l hi m not k n owing th t
w ing a
the
he substance is not poison or arsenic but powdered milk (1998 Bar
Exam),equal (2004 Bar Exam), or non-toxic powder. (2009 and 2014
Bar Exams) This is impossible crime. Accused shall incur criminal
l iability fo r p e r f orming a n a c t w h i c h w o ul d h a v e been m u d
e en mur e r
y means of poison were it n ot f or t he e mployment of ineffectual
means. (People v. Balmores, G.R. No. L-1896, February 16; 1950)
J9JC9B0M
II. FELONIES 89
But if the victim, because of severe allergy to powdered milk or non-
toxic powder, was hospitalized for 10 days, the accused will be held
liable for less serious physical injuries. (1998, 2009, and 2014 Bar
Exam s)
If the accused administered abortive drugs upon his girlfriend
whom he believed to be pregnant, which turned out not to be true,
and the woman became ill for more than 30 days, the accused will
be liable for serious physical injuries and not impossible crime of
abortion. (Criminal Law Reviewer by Gregorio)
2. Ac t s of L a s c iviousness — Sexual assault is a gender-
free crime, while rape is committed by a m a n a g ainst a wo m an.
I f the gender element i n r a p e i s n o t p r e sent, th e c r im e i s n o t
impossible crime but acts of lasciviousness. Sexually assaulting a
victim with intent to have sexual intercourse with her not knowing
that the victim is a gay is not impossible crime of rape. Although it
is impossible to commit rape where the victim is a gay, the acts with
intent to have sexual intercourse committed against him constitute
acts of lasciviousness. (1 968 Bar Exam)
3. D i s c h a r g e o f F i r e a r m — A d i s c harged shotgun at B
from a distance of 300 yards; but because of the limited range of
the firepower of the shotgun, it would be impossible for A to kiZ~I.B.
A is liable for discharge of firearm and not for impossible crime of
homicide.
4. T r e s p a ss to Dwelling —Where the offender unlawfully
entered the house through the window and took a watch that turned
out to be his own, he is liable for trespass to dwelling and not for
impossible crime of robbery. (Criminal Law Conspectus by Justice
Florenz Regalado)
5. A t t e m p t e d R o b b ery — A c c used being aware that t h e
v ictim i s w e ar ing a n e x pensive watch t h r eatened hi m w i t h t h e
revolver. However, the victim left the watch at his home. According
to Court of Appeals Justice Luis B. Reyes, the crime committed is
attempted robbery, not impossible crime. There was intent to gain
on the part of A when he decided to take the watch of B at the point of
gun. The crime of robbery with inti midation is not produced because
of a cause or accident (that B f o rgot to carry the watch with h i m )
other than spontaneous desistance. (1947 and 1955 Bar Exams)
6. D is p e n sable R e q u i site — Ac c o rding to L u i s R e y es,
there arefour requisites to make one liable for impossible cri:ne,
 90 CRIMINAL LAW REVIEWER
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the fourth of which is that the "offender in performing an act is not
violating another provision of the law."
The fourth requisite of impossible crime is not found in Article
4 of the Revised Penal Code. There is nothing in this provision which
states that the offender can only be held liable for an i m possible
crime if the act is not a violation of another provision of the law. In
fact, in the case of Jacinto, supra and the case of Callao, supra, there
are only three requisites of impossible crime. That the "offender in
performing an act is not violating another provision o f the law "is not
mentioned in the case of Jacinto and the case of Callao as the fourth
requisite of impossible crime.
T he fourth requisite of impossi'ble crime in th e book of L u i s
Reyes has something to do with the spirit of Article 4. The intention
of the lawmakers is t o m ak e A r t i cle 4 a l a s t -resort provision in
the sense that if th e act committed by the accused constitutes an
impossible crime, and other cr ime, he w il l b e pr o secuted f or t h e
latter. The purpose of this fourth requisite is to prevent the accused
from escaping the penal consequence of a gr aver crime by bein
convicted of an impossible crime where the penalty is lesser. If the act
constitutes impossible crime and other crime with a lesser penalty
s uch as alarm and scandal or unjust vexation i t i s submitted th t
tthe ffourth requisite can be dispensed with, and thus, the accused
should be held liable for impossible crime.
F or example, accused th r ew a g r e n a de at t h e u n o c cupied
bedroom, where the victim is supposed to be sleeping, and as a
consequence, the house was burned. The act constitutes impossible
crime of murder, and the crime of arson. Taking into consideration
the fourth requisite of impossible crime, the accused should be held
liable for arson. Under P.D. No. 532, the penalty for arson involvin
vo vmg
burning of inhabited house is reclusion temporal to re clusion
perpetua. On the other hand, the penalty for impossible crime is only
arresto mayor. To convict the accused of impossible crime is to allow
him to escape the penal consequence of the grave crime of arson.
(2000 Bar Exam)
In Intod v. Court of Appeals, supra, the accused, intending to
kill a person, peppered the latter's bedroom with bullets, but since
the intended victim was not home at the time, no harm came to him.
Accused was convicted of' impossible crime. (1994, 2012, and 2018
Bar Exams)
Some authorities i n c r i m i na l l a w a r g ued t ha t t h e a c cused
should be held liable for alarm and scandal because of the fourth
J9JC9B0M
II. FELONIES
r equisite of i m possible crime. However, it i s s u b m i t ted t hat t h e
Supreme Court correctly convicted the accused of impossible crime.
The penalty for alarm and scandal is only arresto menor while the
penalty for i m possible crime is ar r e sto mayor. By c onvicting thee
accused ofimpossible crime, the accused did not escape the penal
consequence of a graver crime since the penalty for alarm and scandal
is lesser than that for impossible crime. In sum, if the act committed
by the accused constitutes an impossible crime and a lesser crime,
the fourth requisite of impossible crime can be dispensed with, and.
thus, the accused should be convicted of an impossible crime.
STAGES OF EXECUTION
A felony is a combination of criminal intent and criminal act. A
person, who entertains in his mind the commission of a crime, is not
yet criminally liable unless he externalizes his mind by committing
acts in implementation of his criminal resolution. Criminal intent
alone without criminal act is not punishable, unless the law expressly
provides a penalty for it. There is only one instance where the law
prescribes a penalty for having a criminal intention alone, and that
is, the provision on impossible crime. Article 59 of the Revised Penal
C ode prescribes penalty for i m p ossible crime on th e basis of th e
criminal tendency of the offender. In impossible crime, the accused
fails to perform the criminal act because the commission thereof is
impossible. However, he will be penalized because of his intent t o
commit a crime not knowing that it is impossible to do so.
From criminal resolution, the person with criminal intent msjy
perform actspreparatory to the actual commission of the crime suc.'h
as proposal or conspiracy to commit a crime, buying instrument to
be used in committing a crime, or going to the place where the crime
will be committed. The law does not generally penalize preparatory
acts because there isstill a possibility that a person, who performs
acts as a preparation to the commission of a crime, will back out
from his plan once he realizes the punitive consequence of a crime, or
heeds the dictateof his conscience. Preparatory acts, or acts prior to
the actual execution of a criminal resolution are not yet punishable,
unless the law expressly provides a penalty for it . H owever, there
are several instances where the law punishes preparatory acts such
as the penal provisions for conspiracy to commit rebellion and illegal
possession of picklocks.
From preparatory acts, the person, whose mind is cri minal,
may perform acts to execute or implement his criminal resolution.
Such acts are known as acts of execution. If h e performs acts to
 92 CRIMINAL LAW REVIEWER
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execute his criminal intent, but, fails to complete all acts required for
full execution thereof because of an external cause, the crime is at
the attempted stage.If he performs all acts necessary to execute or
implement his criminal design, but the crime was not produced due
to external cause,the stage of the crime is frustrated. If the crime
was produced, its stage is considered as consummated.
Criminal In t ent
In People v. Verdad, G.R. No. L-51797, May 16, 1983, in his
extrajudicial confession, the accused admitted that he had intended
t o abuse the victim. I n o pen court, he had also declared that h e
entered the victim's room to f r i ghten her an d t ak e advantage of
her. As the crime unfolded, however, the accused did not perform
any direct overt act commencing the execution of the crime of rape.
When the accused was already in side th e r oom, he covered the
victim's mouth with hi s hand to prevent her from shouting; then,
the accused hacked the victim after she was able to free herself from
his hold. The foregoing actuations of the accused do not disclose the
criminal objective originally intended. If it were the accused's intent
to rape the victim, there was no overt act showing it like kissing or
embracing her or throwing himself upon her. There was no external
act whatsoever executed in f u r t h e rance of his design to r a pe the
victim. Note: The accused was not found liable for attempted rape.
However, the accused was convicted of robbery with homicide since
h e took cash and valuables immediately after h e ha d k i l led t h e
victim.
Preparatory Act
In an attempted felony, the offender's preparatory act requires
another act to result in a felony. One perpetrating preparatory act is
not guilty of an attempt to commit a felony. (People v. Lizada, G.R.
Nos. 248468-7I, January 24, 2008; 2011 Bar Exam )
The intent of the person in committing preparatory act remains
equivocal or unclear. Hence, preparatory acts such as buying poison,
conspiring and going t o t h e p l ace where th e cr im e agreed upon
will be committed are not constitutive of attempted felony because
intent to kill is not clear. However, preparatory acts are punishable
if thelaw prescribes a penalty for its commission such as proposal
or conspiracy tocommit rebellion, or possession of picklock. If the
preparatory acts constitute a felony, committing it is a consummated
crime. (People v. Lizada, ibid.)
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II. FELONIES
If conspirators while on their way to the house of the complainarit
for the purpose of kill ing hi m w ere arrested by policemen on th.e
b asis of information of one who heard them planning to kill h i m ,
they are not criminally liable for conspiracy to commit murder since
the Revised Penal Code has not prescribed a penalty for it. Neither
are theyliable for murder at the attempted stage since going to tl' .ie
place where they intend to commit a c r im e are preparatory acts,
which are not punishable since the criminal intent to kill, which is
an element thereof, is not yet clear.
X, Y, and Z agreed among themselves to attack and kill A, a
police officer, but t hey left t h eir h omemade guns in t h eir v ehicle
before approaching him. Approaching A, a police officer, is not an
overt act of direct assault. This act can be considered as preparatory
to the commission of assault. It is not constitutive of attempted direct
assault because of the intent to defy the law and its representative,
which is an element thereof, is not yet clear. (2011 Bar Exam)
Edgardo induced his friend Vicente, in consideration of money,
to kidnap a girl he is courting so that he may succeed in raping h!er
and eventually making her accede to marry him. Vicente asked for
more money to which Edgardo failed to put up . A ngered because
Edgardo did not put up the money he required, he reported Edgardo
to the police. Edgardo is not liable for proposal to commit kidnapping
since the law has not provided a penalty for it. Proposal to commit
a crime is a pr eparatory act, which is not pu nishable even as an
attempted crime because the criminal i n t ent t o deprive victim of
her liberty is not yet clear prior to the actual commencement of the
commission of the crime. (1996' Bar Exam )
Attempt to Commit an Indeter m i n ate Offense
Accused was caught in the act of making an opening with an
iron bar on w all of a s t ore, which is used as a dwelling. He v.as
convicted. of attempted t r espass to d w elling an d n o t a t t e mpt;ed
robbery by using force upon thing. Making an opening on the store
is an overt act oftrespassing since it reveals the intention of t;. he
accused to enter t h erein against th e w il l o f i t s o w n er. However,
making such opening is not an overt act of robbery since it does riot
reveal a clear intention to take properties inside the store. The court
cannot determine or ascertain the crime that the accused intended
to commit inside the store. Making opening on the store are subject
to different int erpretations. It i s p ossible that th e accused would
commit robbery, physical inj u r ies or r a p e i n s ide t he s tore. It i s
 94 CRIMINAL LAW REVIEWER
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even possible the he just wanted to sleep inside the store. In sum,
the crime that he i n t ended to commit in side the store, if th ere is
any, is in determinable or unascertainable. An attempt to c ommit
an indeterminate crime cannot be punished as attempted robbery.
(People v. Lamahang, G.R. No. 48580, August 8, 1985; 1981 Bar
Exam)
If the accused destroyed the door and entered the dwelling
of the complainant, and was in side the dwelling when the police
authorities arrested him, th e c r im e committed i s no t a t t e mpted
robbery b e cause of t h e i n d e t e r m inate c rime p r i n c i pl e b u t
consummated trespass to dwelling. (1979 Bar E x am) B u t i f t h e
accused admitted his intention to steal, Lamahang principle is not
applicable. In Lamahang case, the crime that the accused intended
to commit in the store is indeterminate. In this case, the crime that
the accused intended to commit inside the dwelling is determinate
or ascertainable. He intended to commit robbery. Hence, the accused
is liable for attempted robbery by using force upon things. (People v.
Villegas, G.R. No. 84089, January 16, 1981)
A enters surreptitiously in the store of B in order to take away
with him some articles and hides himself behind a door, but due to
the watchfulness of B, he did not dare to come out of his hiding place
where he was discovered. The crime committed is attempted theft.
The Lamahang doctrine is not applicable since the intention of A
in this case is to commit theft. Hence, the crime that he intended
to commit i n s ide th e s t or e i s d e t er minate or a s certainable. I n
Lamahang case, the crime that the accused intended to commit in
the store is indeterminate. (1947 Bar Exam
) is not sufficient to kill him as a consequence.
In Cr uz v. Pe ople, G .R. N o. 1 6 6441, October 8, 2 0 1 4, t h e
petitioner climbed on to p of t h e n a ked v i ctim, an d wa s aa l rea
r ead.
y
t ouching her genitalia with his hands and mashing her breasts when
she freed herself from his clutches and effectively ended his designs
on her. Yet, inferring from such circumstances that rape, and no
other, was his intended felony would be highly unwarranted. This
was so, despite his lust for and lewd designs towards her being fully
manifest. Such circumstances remained equivocal or s usceptible
of double interpretation. (People v. La mahang, supra) V e rily, h is
felony would not exclusively be rape had he been allowed by her
to continue, and to have sexual congress with her, for some other
felony like simple seduction (if he should employ deceit to have her
yield to him) could also be the ultimate felony.
J9JC9B0M
II. FELONIES 95
Stages of a Crime
There are three stages offelony: attempted, frustrated, and
consummated.
A felony is at the attempted stage when the offender commences
the commission of a f e lony d i r ectly b y o v ert a cts, and does not
perform all th e acts of execution which should produce the felony
by reason of some cause or accident other than his own spontaneous
desistance.
A felony is at the frustrated stage when the offender performs
a ll th e a ct s o f e x ecution w h ich w o ul d p r o duce th e f elony a s a
consequence but which, nevertheless, do not produce it by reason of
causes independent ofthe willof the perpetrator.
A felony is at the consummated stage when all the elements
necessary for its execution and accomplishment are present. (Article
6of the Revised Penal Code; 1947, 1948, 1952, 1960, 1965, 1966, an,d
1967 Bar Exams)
Attempted and Fr u str ated Stages
Attempted felony and fr u strated felony are distinguished as
follows:
l. Act s of Execution —In attempted felony, the offender
performed directly an overt act, which is an act of execution, but it
is not enough to produce the felony as a consequence. In attempted
homicide, the accused performed act to execute his criminal design
to kill the victim by inflicting non-mortal wounds upon him, which
In frustrated felony, th e offender performed all t h e a cts of
execution that would produce the felony as a matter of consequence.
In frustrated homicide, the accused performed all acts necessary to
execute his criminal design to k il l t h e v i ctim by i n fl i cting mortal
wounds upon him, which is sufficient to kill hi m as a consequence.
I n frustrated felony, th ere i s n o n eed t o p e rform f u r t her act t o
implement his criminal intention.
T o determine w h e ther t h e f e l ony i s a t t h e a t t e m pted or
frustrated stage, the acts of e xecution of t h e f e lony, which t lhe
accused intended t o c ommit , m u s t b e i d e n t i fied. Ex ample: T h e
acts of execution that w o ul d p r oduce homicide as a consequence
are the infliction of mortal wounds upon the victim. If the wounds
inflicted upon th e v i ctim w i t h i n t en t t o k i l l a r e n o n-mortal, tlhe
 96 CRIMINAL LAW REVIEWER
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crime committed is attempted homicide. (Colinares v. People, G.R.
No. 182748,December 18, 2011; 1978Bar Exam) On the other hand,
if wounds are mortal, the crime committed is frustrated homicide.
(People v. Serrano, G.R. No. 175028, July 5, 2010; People v. Aquino,
G.R. No. 208485, April 11, 2018)
M edical Certificate o f t h e c omplainant a l o ne, a bsent t h e
testimony of the physician who diagnosed and treated him, or any
p hysician for t ha t m a t t er, i s i n s u f ficient proof of th e n at ure an d
extent of his injury. If character of the wound is doubtful, such doubt
should be resolved in favor of the accused. (People v. E tino, G.R. ¹.
206682, February 14, 2018) Hence, the accused shall be convicted of
attempted homicide instead of frustrated homicide.
Acts of execution in attempted or frustrated felony presuppose
t hat th e specific criminal i n t en t r e q uired t o commit i t m u s t b e
present. In sum, the external acts performed by the offender and
the intended felony must have a direct connection.
In homicide, whether frustrated or attempted, intent to kill is
an indispensable element. In attempted or frustrated homicide, the
accused is performing an act to execute his criminal design to kill
the victim. If there is no intent to kill, the crime committed is merely
physical injuries. (1971 Bar Exam)
2. N on - c o m m ission o f t h e C r i m e — In a n at t e m p t e d
felony, the offender fails to perform all the acts of execution; thus, his
external acts would "not produce" the felony as a consequence. On
the other hand, in a frustrated felony, the offender performs all the
acts of execution; thus, his external acts "would produce" the felony
as a consequence; but just the same, the crime is not produced.
3. E x t e r n a l Cause of the Non-commission of the Crime
— In attempted felony and frustrated felony, the offender failed to
accomplish his criminal objective by reason of external causes; if the
causes are not external, the accused will be absolved from criminal
liability.
In attempted homicide, the accused in order to kill the victim
infiicted non-mortal wound upon him but a policeman immediately
arrested him. His timely apprehension is the cause other than his
spontaneous desistance, which prevented him from performing all
acts of execution or from inflicting a mortal wound upon the victim.
In frustrated homicide, the accused in order to kill the ~ictim
inflicted mortal wound upon him but th e l atter did not die due to
timely medical intervention. The medical intervention is the cause
J9JC9B0M
97
II. FELONIES
independent of the exclusive will of th e accused, which prevented
the consummation of the crime.
In attempted felony, if the cause of the failure to perform all
acts of execution is the spontaneous desistance of the accused, that
is a defense.
In frustrated felony, if the failure to produce the crime despite
the performance of all acts of execution is not independent on the
will of the accused, that is a defense.
a. S p o ntaneous Desistance — In the attempted
stage,offender has not yet performed all the acts of execution.
H ence, t o b e a b s olved f r o m c r i m i n a l l i a b i l i ty , h e m u s t
spontaneously desist from performing all acts of execution.
In attempted homicide, the accused will be absolved from
criminal l i abilit y b y s p ontaneously desisting from i n f licting
mortal wound upon the victim. However, he is liable for t;he
crime that h e a l r eady completed such as p hysical i njuries,
threat or discharge of firearm.
The term spontaneous is not e q uivalent t o v o l u nt ary.
Even if the desistance is voluntary, the same could not exempt
the offender from liability for att empted felony if there is an
external constraint. The term "spontaneous" means proceeding
from n a t u ral f e elin g o r n a t i v e t e n dency w i t h out e x t errial
constraint; it i s s ynonymous with i m p u l sive, automatic, and
mechanical. (People v. Lizada, G.R. Nos. 148468-71, January
24, 2008, En Banc)
Accused had previously ra ped the victim several times
D uring th e subject incident, accused was wearing a p air o f
short pants but naked from waist up. He entered the bedroom
of victim, went on to p of h er , h eld her h a nds, removed lier
panty, mashed her breasts and touched her sex organ.
However, accused saw Rossel peeping through the door and
dismounted. Heberated Rossel for peeping and ordered hire to
go back to his room and to sleep. Accused then left the room. of
the victim. Held: Accused intended to have carnal knowledge
of victim. The overt acts of accused proven by the p rosecution
were not merely preparatory acts. By th e series of his overt
acts, accused had commenced the execution of r ape, which,
if not for h i s d e sistance, will r i pen i n t o t h e c r im e of r a p e.
Although accused voluntarily desisted from performing all lthe
acts of execution, however, his desistance was not spontaneous
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as he was impelled to do so only because of the sudden and
u nexpected arrival of R ossel. Hence, accused is guilt y o n ly
of attempted rape. (People v. Li z ada, G.R. Nos. 148468-7',
January 24, 2008)
b. C a u se Dependent onthe Exclusive Will — i f
the offender performed all th e acts of execution, he will n o t
be absolved from li ability fo r f r u s t r ated felony even thcugh
he spontaneously desisted from f u r t her d o ing cr i m i nal a c t .
Spontaneous desistance is a defense in attempted felony but
not in fr u strated felony. If th e cr ime reached the frustrated
stage, the offender must do something other than desisting to be
absolved from criminal liability. Since all the acts of executior i
sufficient to pr oduce the felony were already performed, he
must do something t o p r event t h e c ompletion t h ereof. The
failure to produce the crime as a defense in frustrated fe ony
must be exclusively dependent on his will.
In frustrated homicide, the accused will be absolved fror"
criminal liability by pr oviding medical treatment to save the
life of the victim who suffered mortal wounds. If the victim did
not die because of the exclusive will of the accused, the latter is
not liable for frustrated homicide. But he is still liable for th =
crime that he already committed, and that is, physical injuries.
(1 976 and 1985 Bar Exams)
Inflicting non-mortal wound upon the victim by shooting
him constitutes physical injuries if the accused did not further
shoot him to inflict mortal wounds. The crime is not attempted
homicide because failure to shoot him f u r t her shows lack of
intent t o k i l l . (P e ntecostes, Jr. v. Pe ople, G.R. No. 16 7 766,
April 7, 2010) Moreover, spontaneous desistance from further
shooting the victim t o in fl ict m o r tal w o unds is a d efense in
attempted homicide.
Inflicting mo r t al w o u n d u p o n t h e v i c t i m constitutes
frustrated homicide even if the accused spontaneously desisted
from further shooting him. The fact that the wounds are mortal
indicates intent to kill. Moreover, spontaneous desistance from
further shooting is not a defense in frustrated homicide. (People
v. Abella, G.R. No. 198400, October 7, 2018)
c. N ot Ab s o l u t or y Ca u s e — I f th e fel o n y i s
consummated, o ffender cannot u n d o w hat w a s d o ne. H e
would not be absolved from criminal liability even if he had
done something that wil l m i t i g ate the effects of his felonious
J9JC9B0M
II. FELONIES 99
act. For example, restitution of funds malversed immediatelly
and voluntarily made before the case was instituted is not an
absolutory cause. (Navarro v. Meneses III, CBD Ad m. C ase ¹.
818, January 80, 1998; 2011 Bar Exam)
A stole chicken u n d er t h e h o u se of B. R e a lizing t h a t
what he did was wrong A re t u r n ed the chicken to the sanie
place where he took it. Since the crime of theft was already
consummated, the return of the stolen property does not relieve
him of criminal responsibility. A had already performed all the
acts of execution, which produced the crime of theft before he
returned the chicken. (see: The Revised Penal Code b y Luis
Reyes; 1980 Bar Exam)
The fact that the accused abandoned the victim after six
days of captivity does not lessen his criminal culpability much
less exempt hi m f r o m c r i m i nal l i a bi l it y fo r t h e k i d n apping
and detention of th e vi ctim. (B aldogo, G.R. Nos. 128106-07,
January 24, 2008)
Frustrated and Consummated Felony
In frustrated felony an d c onsummated felony, th e accused
performs all the acts of execution that would produce the felony as
a consequence. If the felony is not produced due to external cause,
he is liable for frustrated felony. On the other hand, if the felony is
produced, he is liable for consummated felony.
There are felonies, which has no fr u strated stage, since the
performance of all the acts of execution immediately consummates
them.
In homicide,the offender performed all acts of execution
b y infl ictin g m o r ta l w o u nd s u p o n t h e v i c t i m . H o w ever, w h a t
consummates homicide is t h e d e ath o f t h e v i c t im . T h us, i f t ] he
mortally wounded victim did not di e due to medical intervention,
homicide is only at the frustrated stage.
On the other hand, in r a pe, the offender performed all acts
of execution by sexually penetrating the victim's vagina. But since
sexual penetration or th e t ouching of the la b ia of t he pudendum
consummates rape, t h er e ar e n o o c casions wh ere t h e o f f en<iller
performed all t h e a ct s of execution an d ye t t h e f e lony wa s n ot
p roduced as a c onsequence. In s um , t h er e i s n o s uch t h i n g a s
frustrated rape since the performance of all th e acts of execution
immediately consummates rape. (People v. Orita, G.R. No. 88724,
April 3, 1990; 2005 Bar Exam)
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Belief
Under the old rule, it is not required that the accused actually
commits all the acts of execution necessary to produce the death oi
his victim. It is sufficient that he believes that he has committea. all
the acts of execution to make him liable for frustrated felony. (People
v. Dagman, G.R. No. L-28188, August 20, 1925; People v. Borinaga,
G.R. No. 88468, December 18, 1930; People v. Dela Cruz, G.R. No.
L-39552, November 24, 1988; People v. Pio, G.R No. L-5848, April
80, 1954)
In Borinaga, accused was convicted of frustrated murder on
the basis of his belief that th e vi ctim was in flicted with a m o r t al
wound, when in t r u t h an d i n f act th e former merely stabbed the
back of the chair where the latter was seated.
However, according to Justice Florenz Regalado, the belief of
the accused as to whether he had already performed all the acts of
execution is immaterial. To be held liable for frustrated homicide or
murder, the accused must have performed all the acts of execution
which would p r oduce th e f elony a s a c o n sequence (and riot a s
a matter of belief). In Pe ople v. Pa d dayuman, G. R. No. 1 20844,
January 23,2002, People v.Maguikay, G.R. Nos. 108226-28, October
14, 1994, and People v. Bacalto, G.R. Nos. 116307-10, August 14,
1997, the Supreme Court did not consider the belief of the accused
in determining the stage of execution of the crime.
That th e v i c ti m s u s t ains m o r ta l w o u nd s i s a n i m p o r t a nt
element of frustrated homicide. (Miranda v. People, G.R. No. 284528,
January 28, 2019) Believing that the victim is already dying after
stabbing him twice on the chest, accused left. Despite the belief of
the accused that the wounds sustained by the victim is mortal, he
was convicted of attempted homicide, and not frustrated homicide
because his wounds are not mortal. (People v. Paddayuman, supra)
Under Article 6 of the Revised Penal Code, the offender must 'perform
all the acts of execution" to be held liable of frustrated felony. Belief
of theoffender that he already performs all acts of execution is not
mentioned in Article 6 as an element of frustrated felony.
The victim su r v ived th e a t t ack p erpetrated by t h e accused
because he pretended to be dead. Despite the belief of the accused
that the victim is dead, they will not be convicted of consummated
murder. They will be held liable for frustrated murder if the wounds
sustained by the vi ctim ar e m or tal (People v. Bacalto, supra); or
attempted murder if they are non-mortal. (People v. Maguikay,
J9JC9B0M
II. FELONIES
supra) Article 249 of the Revised Penal Code penalizes the act of
killing a person as homicide and not th e belief that one ki l l ed ,a.
person.
In the middle of the night, X entered the unlit room of A to rape
her. He undressed A, went on top of her and forced himself on her.
Believing that his penis already penetrated her vagina, X made a
pumping motion. X is not aware that his penis merely penetrated
a pillow, which A surreptitiously placed on top of her to cover her
vagina. Despite of his belief that he already sexually penetrated the
' victim, X will not be convicted of consummated rape. He will be held
liable for attempted rape. Article 266-A of the Revised Penal Cocle
penalizes actof raping the victim and not the belief the he already
raped the victim.
1. At t e m p t e dArson — When a person had poured gasoline
under the house of another and was about to strike the match to set
the house on fire when he was apprehended, he is guilty of attempted
arson. He committed an over act to execute his criminal design to
burn the house. However, he did not perform all acts of execution
since pouring gasoline and attempting to strike the match will not
burn the house as a matter of consequence. (People v. Go Eay, CA,
54 O.G. 2225; 2019 Bar Exam)
Carrying gasoline to the place where a house is to be burned is
not attempted arson. Such act is considered as preparatory to arson..
It is not punishable as attempted arson because the intent to burn
is notyet clear.
Accused manifested before his i n t ention t o b ur n t h e h o u se
of the victim to his friends. He then performed the act of pouring
gasoline around the walls of the house to execute his criminal design
to commit arson. This is not just a preparatory act because it already
revealed a clear intention to burn th e house. He even manifested
his intention prior to the commission of the crime. In this case, he
already commenced the commission of the crime of arson directly by
overt act. But he did not perform all the acts to execute his criminal
design to commit arson by setting the house on fire due to cause
other than hi s spontaneous desistance, and that is , h aving been
caught by the police. (2015 Bar Exam)
2. Fr u st r a t e d A r s on — In U S v . Ualdes, G.R. No. 14128,
D ecember 10, 1918, accused soaked a j ut e sack an d a r a g w i t h
kerosene oil, set them on fir e an d placed them beside an upriglll1t
 102 CRIMINAL LAW REVIEWER
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of the house. However, the fir e h a d b een pu t ou t o n t i m e . ™he
o ffense committed is not consummated arson because no part of
the building had been burned. He i s l i a ble for f r u str ated arscn.
The accused performed all the acts to execute his criminal design
to burn the house. The house would have been burned as a natter
of consequence because the fire without an intervening factor wou d
have spread to the house. But the house was not burned due to the
timely intervention of others, who put out th e fire on t i me. (1949
and 1967 Bar Exams )
Ualdes case is still a controlling principle since there is no case
where Supreme Court expressly abandoned it. I n f a ct, in Pe ople
v. Bon, G.R. No. 166401, October 30, 2006 (footnote no. 78), .ke
Supreme Court said that it recognized the filing of frustrated arscn
in the Valdes case.
However, to apply th e V a ldes principle, the circumstance o'
a case must be similar t o V a l des case. If th e house is cemented,
placing burning clothes besides it will not make the accused liab e
forfrustrated arson since he did not yet perform all acts necessary to .
execute his criminal design to burn the house. The house would not
have been burned as a matter of consequence because the fire would
not have spread to the house the same being cemented.
3. Con s u m m a ted Ar s on — S e t t i ng t he b u i l d ing on f ir e
c onstitutes consummated a r son i f p o r t i o n o f t h e b u i l d in g w a s
destroyed (People v. Gutierrez, G.R. ¹. 10 0 6 9 9,July 5, 1996
) or a
small portion of the house was burned. (1980 and 2000 Bar Exam')
In People v. He rnandez, G.R. No. 31770, December 5, 1 929, the
Supreme Court ruled that the crime is consummated arson and no ..
merely frustrated arson where the building was partially burned. cr
has been charred.
Setting the contents of a building on fire with intent to burn the
building consummates the crime of arson of building. (US v. Go F'oo
Suy, G.R. No. 821 7, September, 5, 1918) This can also be considered
as arson of personal properties under P.D. No. 1613.
Setting the contents of a b u i l d i ng o n f i re w i t h o ut i n t e nt t o
burn th e b u i l ding consummates th e c r im e of a r son of p e rsonall
properties.
Stages of Rape
1. Co n s u m m a ted Rape —Touching of either labia majcra
or labia minora of the victim's pudendum by an erect penis capab"e
J9JC9B0M
II. FELONIES 108
of penetration consummates the crime. (People v. Campuhan, G.R.
No. 129438, March 30, 2000; People v.Butiong, G.R. No. 168982,
October 19, 2011) If there is no touching of the labia, the crime: is
either attempted rape oracts of lasciviousness depending upon the
intention of the offender. If his intention is to have sexual intercourse
with the victim, the crime is attempted rape; otherwise, it is acts of
lasciviousness.
In People v. Nu y o h, G . R. N o. 1 9 5 424, June 1 5, 2 0 1 5, t h e
commission of rape can be established by circumstantial evidence
even if the victim, being the sole witness, was rendered unconscious
during its commission. Accused slapped victim and punched her Ijn
the stomach. She was rendered unconscious. When she regained
consciousness, she found blood in her panties, and felt pain in her
vagina. Accused was convicted ofrape.
2. Ac t s o f L a s civiousness —Kissing and undressing the
victim (People v. Sanico, G.R. No. 208469, August 18, 2014; 1959
Bar Exam) or t o u ching her v a g ina by o ffender's hand (People v.
Banzuela, G.R. No. 202060, December 11, 2018) or rubbing his penis
on the mons pubis of her pudendum (People v. Abanilla, G.R. Nos.
148678-75,October 17, 2008) is m erely acts of lasciviousness becau,se
intent to have sexual intercourse is not clearly shown.
3. At t e m p t e d Rape —To be held liable for attempted rape,
it must be shown that the erected penis is in the position to penetrate
(Cruz v. People, G.R. No. 166441, October 8, 2014) or the offencIer
actually commenced to force his penis into the victim's sexual organ.
(People v. Banzuela, supra; 1988 Bar Exam ) Touching her genitalia
with his hands and mashing her breasts are "susceptible of double
interpretation." These circumstances may show that the intention. of
the accused iseither to commit rape or simple seduction (or acts of
lasciviousness). Since intent to have sexual intercourse is not clear,
accused could not be held liable for att empted rape. Hence, he is
only liable for acts of lasciviousness. (Cruz v. People, supra; People
v. Lamahang, G.R. No. 43580, August 8, 1985)
For there to be a n a t t e mpted r ape, the accused must ha ve
commenced the act of penetrating his sexual organ to the vagin.a
of the victim bu t fo r s ome cause or accident other t han his o w n
s pontaneous desistance, the p enetration, h owever slight, i s n o t
completed. (People v. Bandril, G.R. No. 212205, July 6, 2015)
4. A t t e m p t e d R a p e T h r o u g h S e x u a l A s s a ul t — In
People v. Bonaagua, G.R. No. 188897, June 6, 2011, the S upreme
Court ruled that the touching of the labia of the victim's vagina by
 104 CRIMINAL LAW REVIEWER
VOLUME I
an instrument or object (such as tongue or finger) consummates the
crime of rape through sexual assault. (People v. Ricalde, G.R. No.
211002, January 21, 2015)
It seems that the principle in Bo naagua case is not in accor-
dance with the law. Under Article 266-A of the Revised Penal Code,
r ape through sexual assault is committed by inserting an i n stru -
ment or object into the genital orifice. In People v. Mendoza, G.R. No.
180501, December 24, 2008, the Supreme Court emphasized that
rape through sexual assaultrequires that the assault be specifically
done through insertion into the genital ori fice of the victim.
Hence, what consummates rape through sexual assault is the
t ouching by the object or i n st r ument of th e genital orifice of th e
victim's vagina, and not merely the labia of the pudendum. However,
for purpose of the bar examination, the Bonaagua principle should
be observed.
Stages of Theft or robbery
1. Co n s t r u c t ive Possession —Taking is deemed complete
f rom the m oment t h e o f fender gains possession over th e t h i n g .
(Peoplev.Busti nera, G .R. No. 148288, June 8,2004) However, actual
or manual p ossession of p r operty i s n o t r e q u i r ed. Constructive
possession of the property by the thief is enough. (Laurel v. Abrogar,
G.R. No. 155076, February 27, 2006)
A cargador riding on a truck hauling cases of milk belonging
to complainant threw out tw o cases as the truck passed a certain
street. The crime is consummated theft since the cargador acquired
c onstructive possession over the cases of milk w hen he threw t h e
same from the truck. Gaining constructive possession is considered
as taking, which consummates the crime of theft. (1955 Bar Exam)
The accused by means of violence or int i m i dation forced the
victim to place the money on the counter in front of them. However,
they failed to p ick u p t h e m o ney because the police authorities
arrived. Robbery is c onsummated. The m oney i s a l r eady u n der
the control an d d o minion of t h e a ccused. In s um , t h e y a l r eady
acquired constructive possession over the money. Hence, taking of
the property is already complete. (see: People v. Salvilla, G.R. ¹ .
86'1 6'8,April 26, 1990)
2. A s p o r t a t i o n — As p ortation, w hich m e an s c a r r yi n g
away, is an element of larceny, a common-law crime. Taking without
carrying away is n ot l a r c eny. However, the concept of larceny is
J9JC9B0M
II. FELONIES 1(i) 5
different from that of theft. (see: People v. Mercado, G.R. Nos. L-45471
and L-45472, June 15, 1988) Article 308 of the Revised Penal Code
has not adopted asportation as an element of theft. This provision in
defining theft uses the words "shall take," and not "shall take away"
or "shall carry away." Hence, taking without carrying away is theft.
Jurisprudence is settled that t o " t ake" under Revised Penal
Code on theft does not require asportation or carrying away. (Laurel
v. Abrogar, G.R No. 155076, January 18, 2009) Theft is immediately
consummated at th e p r ecise moment t ha t a p i c kpocket acquired
possession over the w a l l et. (Me dina v. Pe ople, G.R. No. 18 2648,
June 17, 2015) It is not an indispensable requisite of theft that tb.e
p ickpocket should carry away the wallet after he took it f r om i t s
owner. (People v. Mercado, supra) This rule is applicable to robbery.
Even though the stolen property was immediately recovered frotn
the robbers, the crime of robbery is consummated since they gained
possession over the property momentarily.(1954, 1967, 1992, and
2005 Bar Exams)
P.D. No. 532 in defining highway robbery/brigandage an.d
p iracy uses th e w o rds " t a k in g a w ay." H ence, asportation i s a n
element of these crimes.
3. A b i l ity to Freely Dispose the Property —In Disci',o
case, accused after taking the bulky goods in the compound failed
to bring them out therefrom. According to the Court of Appeals, the
stage of theft is only frustrated. It is not consummated because of
the inability of the accused to freely dispose the bulky goods. (1970
and 1998 Bar Exams) However, the Supreme Court in Valenzuei!a
v.People, G.R. No. 160188, June 21, 2007 expressly abandoned the
Dino case.
In Ualenzuela case, the cases of Tide detergent are taken by
t he accused inside SM, North. Theft i s consummated even if t h e
accused failedto bring out the stolen good.sfrom the parking area of
SM, which makes him unable to freely dispose it. Unlawful taking
is deemed complete from the moment the offender gains possession
of the thing, even if he has no opportunity to dispose of the same.
Inability to dispose the stolen property is not an element of theft.
Unlawful t a k ing i s th e element which pr oduces the felony in i.ts
consummated stage. Without u n l a wful t a k i ng, th e offense could
only be attempted theft, if at all. Thus, theft cannot have a frustrated
stage. (2012 Bar Exam)
Article 308 speaks of "taking" as an element of theft. Ability
to freely dispose the property is not an element of theft. Taking is
 106 CRIMINAL LAW REVIEWER
VOLUME I
deemed complete from the moment th e offender gains possessior
over the thing, even if he has no opportunity to dispose of the same.
(People v. Bustinera, G.R. ¹. 148 2 8 8,June 8, 2004) The crime of
t heft is consummated even though 'the offender has no ability t o
dispose the property aftertaken it for failure to bring it out frorr
a department store (1971, 1998, and 2000 Bar Exams), or dwelling
(2008 Bar Exam) or the parking area of SM. (People v. Valenzuela.
supra).
Accused was charged in th e i n f ormation of f r u strated theft.
H owever, evidence shows that accused took 14 cartons of w h i t e
b eauty creams from a d e p artment s t ore, but h e f a i led t o b r i n g
them out from the store. Applying the Va lenzuela principle, theft
i s already consummated even though he f a i led t o b r in g ou t t h e
properties from the store. Although the evidence shows that accused.
committed consummated theft, he could not be convicted of theft at
the consummated stage, since it is not alleged in the Information.
Neither could he be convicted of frustrated theft because according
to the Supreme Court in Va l e nzuela case theft has no frustrated
s tage. Applying th e v a r i ance rule, accused was convicted of t n c
lesser crime of attempted theft, which is necessarily included in thc
charge of frustrated theft. (Canceran v. People, G.R. No. 206442,
July 1, 2015)
Article 293 speaks of "taking" as an element of robbery by means
of violence or intimidation. Ability to freely dispose the property is
not an element of robbery; hence, bringing out the property from the
building, compound, or department store after taking it by means
of violence or intimidation is not necessary to consummate robbery.
In People v. Salvilla, G.R. No. 86163, April 26, 1990, accused took
the properties from victims by means of violence or inti m idation.
However, they failed to bring out th e pr operties from the lu mber
compound due to the arrival of the police authorities. It was ruled
that robbery i s consummated since ability t o f r e ely d i spose the
property is not an element thereof.
Article 293 speaks of "taking" as an element of robbery by
using force upon thing. Ability to freely dispose the property is not
an element of robbery by using force upon thing. Hence, bringing out
the stolen property from the building is not necessary to consummate
the crime of robbery by using force upon things. However, there is an
exception. In robbery by using force upon thing involving removal of
locked receptacle or furniture from the building to break it outside,
t he crime will b e consummated only upon actual r emoval of t h e
receptacle or furniture from the building.
J9JC9B0M
II. FELONIES 107
Stages of Theft and Estafa
In Un ited States v. Adiao, G.R. No. 13785, October 8, 1918,
a customs inspector took a leather belt from the baggage of a
passenger. He kept it in his office desk, where the other employees
found it af t erwards. The crime committed is consummated theft.
Taking or acquiring possession over the property with intent to gai.n
consummates the crime of theft.
In U.S. v. Dominguez, G.R. No. 17021, February 23, 1921, a
salesman with intent to misappropriate the proceeds of sale failed to
surrender the money to the cashier of the complainant. He delivered
them to the cashier only after the deceit had been discovered. The
crime committed i s f r u s t r ated estafa t h r ough m i sappropriation.
U nlike i n t h e f t , g a i n in g p o ssession of t h e p r o p erty w o ul d n o t
consummate the crime since damage is an i m p ortant element of
estafa. The crime is frustrated inasmuch as he performed all the acts
of execution which should produce the crime as a consequence, but
which, by reason of causes independent of his will, did not produce
it, no appreciable damage having been caused to the offended pai-ty
due to the timely discovery of the acts prosecuted. (1968 Bar Exa~m)
In the Dominguez case, the accused was just an employee of
the complainant, an d y et , h e w a s convicted of f r u strated estafa
through misappropriation. However, it i s now a s ettled rule th.at
possession ofemployee over the property of the employer is physical,
and thus, misappropriation thereof is considered as taking, which
constitutes the crime of consummated theft. (People v. Locson, G.R
No. L-85681, October 18, 1982; Matrido v. People, G.R. No. 179961,
July 18, 2009; Benabaye v. People, G.R. No. 208466, February 25,
2015; Chua-Burce v. Court of Appeals, G.R. ¹. 10 9 595,April,27,
2000; Balerta v. People, G.R. No. 2'05144, November 26; 2014)
Direct Bribery and Stages of Corruption of Public Officer
I n crimes, l ik e b e t t in g i n s p o rt s an d c o r r u ption o f p u b l i c
officers, which require the i nt ervention of tw o persons to commit
them, the same are consummated by agreement. The offer made; by
one of the parties to the other constitutes attempted felony, if the
offer is rejected. (The Revised Penal Code by Luis Reyes)
Bribery and corruption of public official are two different and
distinct felonies. Bribery is the crime committed by a public officer
who accepts the bribe; on the other hand, the person, who gives the
bribe, is liable for corruption of public official.
 108 CRIMINAL LAW REVIEWER
VOLUME I
1. Cor r u p t i o n of P u b lic Official — Co rruption of public
official is either a t t empted or consummated. If th e p u blic officer
accepted thebribe, the person who gives or offers the bribe is liable
for consummated corruption of public official. If th e public officer
rejectsor returns the bribe, the person who offers the bribe is liable
for attempted corruption of public official.
(Pozar v. Court of Appeals,
G.R. No. L-62489, October 28, 1984; 1948 and 2018 Bar Exams)
Corruption of public officer is a crime which is consummated
upon the performance of "acts of execution by two persons," to wit:
o fer of bribe by the offender and acceptance by a public official. Such
crime has no frustrated stage because if the public officer accepted
the bribe, the crime of corruption of public officer is consummated,
but if the public officer rejected the bribe, the crime is attempted.
(People v. Ng Pek, G.R No. L-1895, October 2, 1948; 1952, 2018 and
2019 Ba,r Exams)
2. D ir e c t B ribery
rib — Di rect bribery is always consummat-
ed. (Conspectus on Criminal Law by Justice Regalado)
a. A gr e e m en t — The criminal act in direct bribery is
agreeing to perform an act constituting a crime, in connection
with thee performance of these official duties, in consideration
of any offer,promise, giftor present.
W hether th e b r ib e m oney wa s o ffered by t h e p r i v a t e
i ndividual o r s o licited by t h e p u b li c officer, i f t h er e i s a n
a greement, the public officer is liable for consumm t d d '
t Ethical Standard for Public Officer)
ri ery, while the private individual is liable for corruption of
public officer. (People v. Scope, L-16, January 81, 1946) In this
case,the public officer agreed to perform the act.
b. Re j e c t e d O f fe r o f P r i v a t e I n d i v i d ua l — I f t h e
b ribe money was offered by th e p r i v ate i n dividual, but t h e
publicofficer rejected the offer,the former isliable for attempted
corruption of public official. (Pozar v. Court of Appeals, supra;
People v. Ng Pe@, supra) On the other hand, the public officer is
not liable.
Even if the public officerrejected the offer because of
suspicion that he is being entrapped, the public officer is still
not liable for direct bribery. (1988 Bar Exam
)
Public officer who immediately returns the bribe money
anded over to him i s not l i able for bribery since he did not
accept the bribe money. (2011 Bar Exam)
J9JC9B0M
II. FELONIES 109
c. Rej e c t e d Solicitation of Public Officer — I f the
p ublic officer solicited money from th e p r i v ate in dividual i n
consideration of doing an act constituting a crime in connection
with th e performance of his d u ty, bu t t h e l a t ter r e fused to
give money, the former is not l i able for consummated direct
bribery. Soliciting cannot be considered as within the context
of "agreeing," which i s t h e c r i m i nal act p u n i shed as direct
bribery. Neither is he liable for attempted direct bribery. This
crime has no attempted stage since there is no such thing as
attempt to agree by soliciting money.
A policeman t ol d t h e ov e r s p e eding d r i v er w h o m h e
arrested that he will release him without any case being filed
if he will give him P10.00. The driver refused, and instead filed
a case of attempted bribery against the policeman. The driver
did not fil e th e p r oper case. There is n o a t t empted bribery
because of the nature of th e cr ime. Soliciting a br ibe is not
punished under Article 210 of the Revised Penal Code which
refers to an agreement to perform or not to perform an act in
consideration of a gift or promise. Paragraph 3 of said Article
punishes the act of receiving a gift or accepting a promise if
given or promised to make the public officer refrain from doing
something which was his official duty to do. (Suggested Answer
of UP Law Center to 1977 Bar Exam) The crime committed, is
violation of Section 7 of R.A. No. 6713. (Code of Conduct a~md
Stages of Coercion
A boarded a plane at the airport bound for Davao City. While
the plane was still on the tarmac, its door is still open and waiting
for thelast passenger to board, A ordered the pilotP at gunpoint,,to
take the plane to Singapore. When P refused, A shot him to death.
The crime committed is frustrated coercion and murder. (1978 Bar
Exam)
T hree accused forcibly took their victim from his car but t h e
latter succeeded in f r eeing hi mself from t h ei r g r ip . T h ere being
neither actual detention or confinement nor clear intent to detain,
the accused should be held liable for consummated grave coercion
and not att empted ki dnaping or i l l egal detention. (see: People v.
Astorga, G.R. No. 110097, December 22, 1997; 1979 and 2011 Bar
Exams)
 110 CRIMINAL LAW REVIEWER
VOLUME I
Formal Crim e
F ormal crimes such as slander, perjury, false testimony, and
illegal possession of picklock are those which are consummated in
one instant or by performance of a single act of execution. They have
no attempted orfrustrated stage.
1. P h y s i ca l I n j u r i e s — Ac c o rding to J u s t i ce Regalado,
the crime of physical injuries is a formal crime since a single act
consummates it as m a t ter of l aw ; h ence, it ha s no a t t empted or
frustrated stage.(201 7 B ar Exam)
A ccused deliberately throws acid to the face of another wit h
intent t o b l in d h i m . I n o t h e r w o r ds, hi s i n t ention i s t o c o mmit
serious physical injuries. However, injuries caused in th e eyes of
victim were completely healed in 25 days. Accused is not liable for
consummated serious physical i n j u r ies because it di d n o t c a u se
blindness to the victim. Neither is he liable for frustrated serious
physical injuries since it i s a f o r mal cr ime. The crime committed
is less serious physical in j u r ies since th e same r equire medical
attendance for10 days or more. (1969 Bar Exam)
2. Ac t s of L a s civiousness —A ccused hugged the v i c ti m
and triedto touch her breast. In the process, her dress from the collar
to the waistline on the front part was tom. However, she was able to
get free and moved away. The accused d esisted from followino wingh e r .
Th e crime committed is not frustrated acts of lasciviousness. A t
I asciviousness are always consummated. (People v. Famularcano,
CA, 48 O.G. 1721) Hugging the victim with lewd design constitutes
consummated acts of lasciviousness. (196'4 Bar Exam)
3. Co u p d'etat — Coup d' etat i s a formal crime. It has
as no
frustrated (2005 Bar Exam) or attempted stage. Once the military
police or public officer made a swift attack against facilities need d
f or the exercise and continued possession of power for the purpose
of seizing or diminishing state power, the crime is consummated.
Actual seizure or diminution of state power is not necessary for the
consummation of the crime. But prior to a swift attack the plotters
of coup d' etat can be held liable for conspiracy to commit coup d' etat.
4. C ul p a b l e F e l ony — Wh e t her attempted or frustrated,
the offender had performed acts to execute his criminal design. The
only difference isthat in frustrated felony, the offender already
performs all acts of execution while in attempted, he did not perform
all actsnecessary to execute his criminal design.Performance of
acts to execute criminal design is not compatible with the concept
J9JC9B0M
II. FELONIES
of culpa. He nce, a p e rson cannot be c o nvicted of a t t e mpted or
frustrated homicide through imprudence. (1973 Bar Exam)
CONSPIRACY AND PROPOSAL
Conspiracy and proposal to commit felony are punishable only
in the cases in which the law specifically provides a penalty therefbr.
(Article 8 of the Revised Penal Code; 1958 Bar Exam)
Proposal as a crime
There are four requisites of proposal as a crime, to wit: (1) the a
person has decided to commit a crime; (2) such person proposes the
execution of such crime to some other person or persons; (3) there
must be a law pr escribing a penalty for pr oposal to commit such
crime; and (4) the persons to whom the proposal were made have riot
agreed and decided to commit such crime.
1. D e cision and proposal — There is proposal when the
person who has decided tocommit a felony proposes its executiori to
some other person or persons. (Article 8 of the Revised Penal Code;
1958 Bar Exam) If a person is not decided to commit rebellion, but
he proposes to other persons the commission of rebellion without his
participation, he is not liable for proposal to commit rebellion.
f 2. P e n alty for proposal to commit a crime — As a rule,
proposal to commit a crime is not yet punishable. The mind of lthe
proposer is criminal. However, unless and until he after proposing
t o commit a crime such as murder externalizes his criminal min d
by committing an overt act such as stabbing the victim, he will not
be punished. However, there are exceptions. If the law prescribes a
penalty for a mere proposal to commit a particular crime, then the
one who made such criminal proposal shall be punished.
The following proposals are punishable since there are penalties
prescribed by the Revised Penal Code, Book Two, for committ;ing
them: proposal to commit treason (Article 115); and proposal to
commit rebellion or coup d' etat (Article 186);
The following p r oposals ar e not pu n i s h able because there
are no penalties prescribed by law for committing them: proposal
to commit sedition (2011, 2012, and 2018 Bar Exams); proposal to
commit espionage (2011 Bar Exam); and proposal to commit highway
robbery. (2011Bar Exam)
 112 CRIMINAL LAW REVIEWER
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3. N o c o n s p i r acy — If t h e p ersons to whom the proposal
were made have agreed and decided tocommit the proposed crime,
then they together with the proposer are liable for conspiracy as a
crime.
A , who is decided to commit rebellion, proposed the execution
thereof to X, Y and Z. If X, Y, and Z rejected the proposal, A is liable
for proposal to commit rebellion. On the other hand, if X, Y, and Z
accepted the proposal and decided to commit rebellion, A, X, Y, and Z
are liable for conspiracy to commit rebellion. A is not anymore liable
for proposal tocommit rebellion since the same will be absorbed by
conspiracy to commit rebellion.
Conspiracy as a Crime
There are four requisites of conspiracy as a crime, to wit: (1)
there must be an agreement to commit a crime; (2) the parties to the
agreement must be decided to commit such crime; (3) there must be
a law prescribing a penalty for conspiring to commit such crime; and
(4) the crime agreed upon was not committed.
1. A gr e e m en t an d d e cision — A c onspiracy exists when
two or more persons come to an agreement concerning the commission
of a felony and decide to commit it. (Art icle 8 of the Revised Penal
Code; 1958, 1960, and 1965 Bar Exams) An agreement to commit
a crime is not conspiracy unless evidence shows that the accused
are alldecided to commit it. For example, after agreeing to commit
rebellion, accused recruited others to join them and collected guns to
be used in executing their plan. Circumstances show that they are
decided to commit rebellion.
2. P e n alty for conspiracy to commit a crime — As a
rule, conspiracy to commit a crime is not yet punishable. The minds
of the criminal conspirators are criminal. However, unless and until
the conspirators externalizes their criminal mind by committing an
overt act such as stabbing the victim, they w il l no t b e pu nished.
However, there are exceptions. If the law prescribes a penalty for a
mere conspiracy to commit a particular crime, then the conspirators
shall be punished.
The following conspiracies are pu n i s hable s ince t h e re a r e
penalties prescribed by the Revised Penal Code, Book Two, or special
laws for committing them.:
1. C o n s p i racy to commit treason(Article 115);
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II. FELONIES 113
2. Co n s p i r acy to commit rebellion or coupd' etat (Article
136);
8. Co n s p i r acy to commit sedition(Article 141);
4. Co n s p i r acy to commit arson(Section 7 of P.D. N'o.
1618);
5. Co n s p i racy to commitcrime involving trafficking of
dangerous drug (Section 26 of R.A. No. 9165);
6. Co n s p i r acy to commit t e r r orism (Section 4 o f R A ,
No. 9872);
7. Co n s p i racy t o c o m mi t t h e c r i m e o f f i n a n cing of
terrorism (Section 5 of R.A. ¹. 10 1 6 8);
8. Co n s p i r acy to commit child pornography(Section 4
of R.A. No. 9775); and
9. Co n s p i r acy to commit m o ney l aundering.(Section
4 of R.A. No. 9160, as amended by R.A. No. 10365; 1958 Bar
Exam)
The following conspiracies are not punishable because there are
no penalties prescribed by the law for committing them: conspiracy
to commit direct or i n d irect assault (2011 Bar E xam); conspiracy
to commit trafficking in person (2011 Bar Exam) and conspiracy to
assassinate the President (1950 Bar Exam).
E.O. No. 188 has repealed P.D. No. 1110-A, which punished an
attempt or conspiracy against the life of the President, on June 5,
1987.
3. Non-commission of the crime agreed upon
Conspiracy to commit rebellion is punishable under the law. But if
the conspirators committed rebellion, they are liable for rebellion.
They are not anymore liable for conspiracy to commit rebellion since
the same will be absorbed by rebellion. In this situation, conspiracy
as a crime is tr ansformed into conspiracy as a mode of incurring
collective criminal liability.
C onspiracy a s a M e a n s o f I n c u r r i n g C o l l e ctive C r i m i n a l
Liability
Conspiracy is either a crime or a mode of incurring criminal
liability. Conspiracy contemplated in Article 8 pertains to conspiracy
as a crime, and not conspiracy as a m ode of incurring collective
criminal liability.
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The purpose of the concept of conspiracy as a crime is to penalize
the conspirators; while the purpose of the concept of conspiracy
as a mode of incurring criminal l i ability i s t o apply the collective
responsibility rule for the commission of the crime agreed upon.
In conspiracy as a crime, conspirators are criminally liable for
agreeing and deciding to commit a crime. In conspiracy as a mode
of incurring criminal liability, conspirators are collectively liable for
the crime committed in accordance with their agreement provided
that they performed an act in furtherance of conspiracy to commit it.
The legaleffect once an express or implied conspiracy as a mode
of incurring criminal liability is proved, is that all of the conspirators
are liableas co-principals regardless of the extent and character of
their respective active participation in the commission of the crime
that they agreed to commit. They are also liable for other crimes
perpetrated in f u r t h erance of the conspiracy. In contemplation of
the law the act of one is the act of all. (People v. P eralta, G.R. ¹.
L-19069, October 29, 1968; 2008 Bar Exam)
A ccused are li able for t w o c ounts of r a p e o n a ccount of a
clear conspiracy between them, shown by t h eir obvious conce "ted
effortsto perpetrate, one after the other, the rapes. Each of them is '
responsible not only for the rape committed personally by him but
also for the rape committed by the other as well. (People v. Lascano,
G.R. ¹ . 19 2 1 80,March 21, 2012; 1970 Bar Exam)
C onspiracy does not constitute a c r i m e i f t h e l a w h a s n o t
specifically pr ovided a p e n alt y t h e r efor. H owever, even t h o ugh
conspiracy isnot a crime, if the conspirators committed the crime
agreed upon, conspiracy shall be considered as a means of incurring
collective criminal l i a b i l it y f o r t h e c r i m e c ommitted. (1958 B a r
Exam) For example, conspiracy to commit murder is not punishable.
The Book Two of the Revised Penal Code has not provided a penalty
for conspiring to commit murder. But if the conspirators committed
murder, they shall be punished for murder under Arti cle 248, and
conspiracy to commit mu r d er sh a ll b e c o nsidered as a m o de o f
incurring collective criminal liability. Because of conspiracy, the
one, who stabbed and killed the victim, the look-out and driver of
the get-way vehicle are collectively liable for murder.
On the other hand, if conspiracy to commit a crime is punishable,
but the conspirators committed the crime agreed upon, they shall
be held liable for the crime committed, and not for conspiracy to
commit it. In t hi s situation, conspiracy will be considered not as a
J9JC9B0M
II. FELONIES 115
crime but as a mode of incurring collective criminal liability. In sum,
if the crime agreed upon was committed, conspiracy as a crime will
be converted into conspiracy as mode of incurring collective criminal
liability. For example, conspiracy to commit rebellion is punishable.
Article136 of the Revised Penal Code prescribes a penalty for
conspiring to commit rebellion. But if the conspirators committed
rebellion, they shall be punished for rebellion under Article 134, and
not for conspiracy to commit rebellion under Article 136. However,
ccnspiracy shall not be considered as a crime but a m ere mode of
i ncurring collective criminal liability .
There are three requisites of conspiracy as a mode of incurru iag
collective responsibility, to wi t : ( 1 ) t h e re m u st b e c o nspiracy to
commit a cr i me; (2) the crime agreed upon has been committed;
and (3) the conspirators to apply the collective responsibility rule to
them must perform an act in furtherance of conspiracy e.g., stabbing
the victim or acting as a lookout. However, the third requisite can
be dispensed with if the conspirator is the mastermind of the crime.
1. A c t i n F ur t h e r a n c e o f C o n s p i r acy — T o m a k e a
conspirator collectively r esponsible with ot h e rs, i t m u s t a l s o b e
established that he performed an act in furtherance of conspiracy. A
conspirator who did not perform an act in furtherance of conspiracy
to kidnap the victim for ransom is not liable for conspiracy to commit
kidnapping for ransom since there is no Iaw prescribing a penalty
for it. Neither is he liable for kidnapping on the basis of collective
responsibility rule because he did not perform an act in furtherance
of' conspiracy. (People v. Supt. Berroya, G.R. No. 122487, December
12, 1997; 1986 and 2019 Bar Exams)
If a conspirator f a i led t o p e rform a n a c t i n f u r t h e r ance of
conspiracy because he was apprehended prior to the kil l ing of the
v ictim by his co-conspirator, the former is not liable for the killin g
since he did not perform an act in fur therance of conspiracy. (1998
Bar Exam)
2. Ma stermind — To be heldliable as conspirator based
o n the collective responsibility r u le, i t r r ust a lso be shown t h a t
the accused performed an overt act i n f u r t h erance of conspiracy
except in the case of the mastermind of a crime. (People v. Usra,
G.R. No. 128966, August 18, 1999; 1987 Bar Exam) One who plans
the commission of a crime is liable as con.spirator and principal by
inducement. (People v. Comiling, G.R. No. 140405, March 4, 2004,
En banc) Evidence proved that accused was the mastermind of the
 116 CRIMINAL LAW REVIEWER
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c riminal act or th e p r i n cipal by i n d ucement notwithstanding th e
fact that he was not at the crime scene. What is important is that
i nducement was the determining cause of the commission of th e
crime. The command or advice made by pr incipal by i n ducement
w as of such n a t ur e t h at , w i t h out i t , t h e c r im e w o uld no t h a v e
materialized. (People v. Janjalani, G .R. ¹ . 188 8 1 4, Ja n uary 10 ,
2011)
A commander of a vigilante group came to Ricky and showed
him a list of five policemen to be liquidated by them for graft and
corruption. He was further asked if any of them is innocent. Rick ic y
pointed to two of the policemen as honest. Later, the vigilante group
liquidated the th ree other policemen in th e l i st. Th e commander
of the vigilante group r'eported the liquidation to Ricky. (2008 Bar
Exam) C ircumstances show that R i c ky is t he m a s termind in t h e
killing of policemen. The executioners before the killing consulted
him; they did not k il l t h ose pointed by hi m as i nnocent and they
reported to him the completion of the task. Hence, Ricky is liable as
principal by inducement even though he did not perform an act in
furtherance of conspiracy.
Detaching from Conspiracy
To exempt himself from criminal liability, a conspi"ator must
have performed an overt act todissociate or detach himself from
the conspiracy to commit th e f elony and pr event th e comn'ission
thereof. (Quintos v. People, G.R. ¹. 20 5 2 98,September 10, 2014)
1. Be f o r e t h e Com m i s sion of t h e Cr i m e — I f a
conspirator dissuaded his co-conspirator from committing the crime
agreed upon (People v. Nunez, G.R Nos. 112429-30, July 28, 1997),
or made an effort to prevent the commission of the crime (People v.
Anticamaray, G.R. No. 17 8771, June 8, 2011), he is exempt from
criminal liability because he detached himself from the conspirac .
e conspiracy.
A induced B t o kill the victim for a valuable consideratio . B t
tried to stop the killing by calling the police authorities before the
A tri
actual execution of the crime. A is not l i able because he detached
himself from the conspiracy to commit murder. (1989 Bar Exam)
Before the actual commission of robbery with homicide by the
chief actor in the dwelling of the victim, his co-conspirator fled for
being scared when police car with sirens blaring passed by. The latter
is not liable for robbery wit h h o micide committed by th e former.
By fleeing, his co-conspirator detached or dissociated himself from
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II. FELONIES 117
conspiracy. Moreover, he did not perform any act in furtherance of
conspiracy. However, he is liable for trespass to dwelling. (2008 Bar
Exam)
If a conspirator, who supposed to act as a guard outside ithe
house, left the scene without kn owledge of the other conspirators
before the killer could enter the house to execute their plan to kill
the victim, he is not liable for the .'njuries sufferedby the victim. By
leaving the scene of the crime, he detached or dissociated himself
from conspiracy. Moreover, he did not perform any act in furtherance
of conspiracy. (1997 Bar Exam)
Before the actual abduction of the victim, a conspirator change
heart and left, he is not criminally liable for complex crime of forcible
abduction with rape. (2019 Bar Exam)
2 . T h e Co m m i s sion o f t h e C r i m e I s i n P r o g r e s s -
If a conspirator left t he s cene of the crime whi le i ts c ommission
is in progress and reported the incident to t he police authorities,
h e is not criminally l i able because he d.etached himself from t h e
conspiracy. (People v. Nunez, G.R. ¹s . 1 1 2 4 29-30, July 28, 1997)
But a conspirator left th e scene of the crime w hile commissionof
robbery with homicide is in progress without reporting the incident
to the police authorities, he is not exempt fr om criminal l ia bij.ity.
C onspiracy has already m aterialized; hence, there is n othing t o
repudiate. (People v. De los Reyes, G.R. ¹. 44 1 1 2,October 22, 1'992)
3. A ft e r th e Commission of the Crime —If the conspirator
reported the shooting incident a~ter it had already taken place, he
is criminally l i able. In l e gal contemplation, there was no l onger
a conspiracy to be r epudiated since it. had already materialized.
(People v. Bacbac, G.R. No. 149872, September 11, 2007)
Culpable felony and conspiracy
As a rule, the principle of conspiracy as a mode of committi.ng a
crime or for purposes of applying the collective responsibility rule is
only applicable to intentional felony. The concept of conspiracy, the
elements of which are agreement and decision to commit a crime,
are not consistent with culpable felony. Persons cannot definitely
agree and decide to commit a culpable crime. However, there is an
exception,that is,the doctrine of conspiracy of silence or inaction.
In Jaca v. People, G.R. No. 166967, January 2S, 2013, a pay-
master obtained cashadvances despite the fact that she has previous
u nliquidated cash a d v ances. Th e C i t y T r e a surer c ertified t h a t
 118 CRIMINAL LAW REVIEWER
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the cash advances are necessary and lawful. The City Accountant
certified that t h e expenditures are supported by documents and
previous cash advances are liquidated and accounted for. The City
Administrator approved the voucher and countersigned th c h e ck.
City Treasurer, City Accountant, and City administrator are liable
for violation of Section 3(e) of R.A. No. 3019 committed thr ough
gross inexcusable negligence. They are liable because of conspiracy
o f silence o r i n a c t i on . P u b l i c officers' o m issions t o q u e s tion
irregularities indicate a common understanding and con"urrence of
sentiments respecting the commission of the offense.
W ith due respect to th e Supreme Court, th e au t hor of t h i s
book humbly submits that t h e p r i n ciple of conspiracy should not
have applied to violation of Section 3(e) of R.A. No. 3019 committed
through gross inexcusable negligence. In Dr. Ynzon v. People, G.R.
No. 165805, July 30, 2014, it was held that "conspiracy is inconsistent
with the idea of a felony committed by means of culpa." However, for
purpose of the bar examination, Jaca principle must be followed.
I mputability Doctri n e
Under the doctrine of imputability, the act of an offender is
imputable to hi s co-conspirator a l t h ough t hey ar e n o-. similarly
situated in relation to the object of the crime.
1. M al v e r s a t ion —Only an accountable officer can commit
malversation. But if t h ere is conspiracy, the act of an accountable
officer in committing malversation is imputable to non-accountable
officers or private individual, although the latter were nct similarly
s ituated wit h t h e f o r mer i n r e l a t ion t o t h e o bject of t h e c r i m e
committed. (U.S. v. Ponte, G.R. No. L-5952, October 24, 1911; 1958,
1959, and 1971 Bar Exams)
2. Ra p e Through Sexual Intercourse —Only a man can
c ommit rape through sexual intercourse against a woir an . But i f
there is conspiracy, the act of a man in committing rape is imputable
to a woman although the latter was not similarly situated with th e
former in relation to the object of the crime committed. (People v.
Dela Torre, G.R. No. 121213, January 13, 2004; 2013 Bar Exam
) Fifth Division of the Sandiganbayan; Santillano v. People, G.R.
8. V i o l a t i on ofB.P. Blg.22 —B.P. Blg. 22 does no. expressly
proscribe the supplementary application of th e p r ovisions of t h e
Revised Penal Code including the rule on conspiracy. Hence, such
rule may be applied in asupplement manner. (Ladonga v.People,
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II. FELONIES 119
G.R. No. 141066; February 1 7, 2005) Thus, if there is conspiracy, the
act of issuing bouncing check by the drawer is imputable to the non-
issuer although the latter was not similarly situated with the fornier
in relation to the object of the crime committed. (2010 Bar E xam)
4. V io l e n ce Against Women —The principle of conspii acy
may be applied to R .A. No. 9262. Thus, the act of v i olence of a
man having marital r elationship with a w o man is imputable to a
person (mother-in-law of the victim), who has no marital, sexual or
dating relationship with the victim although both accused were not
similarly situated in relation to the object of the crime committed.
(Go-Tan v. Go, G.R. No. 168852, September 30, 2008)
5. Cor r u p t i on —Only a public officer can be held crimin.ally
liable for violation of R.A. No. 3019. However, if there is conspiracy,
the act of the public officer in violating R.A. No. 3019 is imputable
to the private individual although they are not similarly situated
in relation to the object of the crime. Moreover, Section 9 provides
penalty for public officer or private person for crime under Section
3. Hence, a private individual can be prosecuted for violation of R.A.
No. 3019. (Henry Go v. The Fifth Division, Sandiganbayan, G.R.
No. 1726'02, April 13, 2007) Even though the public officer died',, the
private individual, his alleged co-conspirator, can still be prosec:uted
for violation of R .A . No . 3 0 19. Death ex t i nguishes the criminal
liability but not the crime. Hence, if there is proof of the crime and
conspiracy between the private individual and public officer, who
subsequently died, the former can still be convicted of violation of
R.A. No. 3019.(People v. HenryGo, G.R. No. 1 6'8539, March 25, 2014)
However, if the public officer is acquitted, the private individual,
his alleged co-conspirator, must also be acquitted. (Marcos v.
Sandiganbayan, G.R. No. 126995, October 6, 1998)
M ayor, t r e asurer a n d p l a n n in g c o ordinator a p p roved t h e
overpayments in favor of a pr ivate individual for the constru iction
o f public market. The public officers caused undue injury t o t h e
g overnment thr ough manifest partiality an d evident bad faith i n
violation of Section 3(e) of R.A. No. 3019. The private individual,
who was overpaid, is also liable on the basis of conspiracy. (Go v.
Nos. 175045-46; March 3, 2010; Uyboco v. People, G.R. ¹. 21 . 1 703,
December 10, 2014)
6. P l u n der —While the primary offender in violation of
R.A. No. 3019 and plunder are public officers, private individuals
 120 CRIMINAL LAW REVIEWER
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m ay also be held l i a ble for t h e s ame i f t h e y ar e f ound t o h a v e
conspired with said officers in committing the same. This pro eed
rom the fundamental principle that in cases of conspiracy, the act of
one is the act of all. In this case, Janet Napoles engaged in the illegal
hemorrhaging of Senator Enrile's PDAF. Thus, they are rightfully
charged as a co-conspirator for corruption and plunder. (Napoles v.
Carpio-Morales, G.B. Nos. 218542-48, March 15, 2016)
Exceptions to the Imp u t a b il ity P r i n c i ple:
1. P ar r i c i d e — Ev e n t h o ugh the re is conspiracy, the act
of the wife in committing parricide is not imputable to a straag
. anger.
or example, a wife with the help of another killed her husband b y
means of poison. Since relationship is personal to the wife it can o I
bee appreciated against her in accordance with Article 62 of Revised
Penal Code. Hence, the wife is liable for parricide qualified bv the
circumstance of relationship and aggravated by the circumstance of
by means of poison, while the stranger is liable for murder qualified
by the circumstance of by means of poison. (People v. Bucsit, G.R.
¹. 1 7 8 65,March 15, 1922; 1950, 1957, 1965, and 1997 Bar Exams)
2. Qualified The ft — E ven though there is conspiracy, the
act of the employee in committing theft qualified by the circumstance
of abuse of confidence is not i m p u t able t o a n o n -employee. The
servant and neighbor of complainant conspired and committed the
crime of theft. The qualifying aggravating circumstance of abuse
of confidence can only be appreciated against the servant to whom
the complainant reposed confidence, but not t o hi s neighbor. The
circumstance of abuse of confidence is personal to the servant. The
crime committed by the servant is qualified theft while that of the
neighbor is simple theft. (People v. Puno, G.R. No. 97471, February
17, 1998; 1966 Bar Exam)
A doption of Crim i nal I n t e n t i on
Doctrine of imputability can also be applied to supply specific
criminal intent required to commit a crime.
In carnapping, intent to gain is an element thereof. But if there
is conspiracy, the act of a conspirator with intent to gain is imputable
to his co-conspirator, who has no intent to gain. Thus, all of them
are liable for carnapping. In Pe ople v. Panida, G. R. No. 127125,
July 6, 1999, accused took the t r i cycle of complainant. Al t hough
only accused Hora appears to have mortgaged the motorcycle,the
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II. FELONIES 121
intent to gain on the part of all the accused can be inferred from Ithe
unlawful taking of tricycle by them. Moreover, "intent to gain" as an
element of carnapping shall be considered as present even though
the accused intended that any one of them should benefit or gain
from the taking.
All those who conspire to commit robbery with h omicide, are
guilty as principals of such crime, although not all profited and gained
from the robbery. One who joins a criminal conspiracy adopts the
criminal designs of his co-conspirators and can no longer repudiate
the conspiracy once it has materialized. (People v. Labagala, G.R.
No. 221427, July 80, 2018)
In forcible abduction, lewd design at the time of the abduction
is an i n d ispensable element t h ereof. But i f t h e r e i s c onspiracy,
the participation of a conspirator with l ewd design at the time of
the abduction is imputable to his co-conspirator, who has no lewd
design. Thus, all of them are liable for forcible abduction. (2018 Bar
Exam) In People v. De Lara, G.R. No. 124703, June 27, 2000, at least
one of the abductors must entertain lewd design in order to convict
all of them of forcible abduction.
With a promise of reward, Robert asked Romy to bring him a
young girl that he (Robert) can have carnal knowledge with. Romy
agreed, seizedan eight-year old girland brought her to Robert. After
receiving his r eward, Romy l eft w h i l e R obert p r oceeded to have
carnal knowledge with the girl. They are liable for complex crime
of rape through forcible abduction because forcible abduction is a
necessary means to commit rape. Robert did not abduct the victim
but the act of abduction by Romy is imputable to him. Romy had
no lewd design on the victim at the time of abduction, but the lewd
design of Robert is imputable to him. Romy did not rape the victim,
but the act of rape by Robert is imputable to him. (2018 Bar Exam)
C ommission of Other Cr i m e
Conspirator may or may not beheld liable for crime not agi eed
upon committed by his co-conspirator.
1. K il l i n g o f a T h i r d P e r son — A c o n s pirator is l i a ble
for a crime, which they agreed to commit, and other crimes, which
could be foreseen and are the natural and logical consequences of
the conspiracy.
Conspirators agreed to kill the husband but not the wife in tIheir
house. They could have foreseen the violent resistance from the wife
 122 CRIMINAL LAW REVIEWER
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since they committed the crime in their house. Hence, the killing of
the wife by one conspirator because of her resistance would make
the other conspirators liable for her death although the conspiracy
m erely pertained to the ki l l ing of the husband. The killing of th e
wife was the natural and logical consequence of conspiracy to kill
the husband. (People v. Ventura, G.R. Nos. 148145-46, July 5, 2004)
But if the killing of a third person is unexpected or unforeseeable,
t he conspirators, who had n o f oreknowledge of such k i l l i ng, ar e
o nly liable for th e cr im e t hey agreed to commit an d no t fo r t h e
unforeseeable killing of th e t h i r d p e rson by t h eir co-conspirator.
(People v. Caballero, G.R. Nos. 149028-80, April 2, 2008)
If byreason of conspiracy, conspirators beat their employer at
the first floor of the building, but one of the conspirators chanced
upon a maid at th e second floor shouting for help and k i l led her,
the other conspirators, who did not foresee the killing of the maid,
are only liable for the killing of the employer. They are not liable for
the killing of the maid, which is substantially or radically different
from the crime they intended to commit. The killing of the maid is
not the natural and logical consequence of the conspiracy to beat the
employer. (1986 Bar Exam)
C onspirator k i l l e d a v i s i t o r o f t h e t a r g e t v i c ti m w i t h o u t
k nowledge of hi s c o-conspirators. Th e k i l l i n g o f s uch v i s i tor i s
neither foreseeable nor the natural and logical consequence of the
conspiracy to kill th e t a rget victim. Hence, conspirators, who had
not participated in the killing of the visitor, are not criminally liable.
(1997 Bar Exam)
2. Com m i t t i n g H o m i c id e o r R a p e i n t h e C o u r s e o f
Robbery by Band — Any member of a band who is present atthe
commission of a robbery by the band shall be punished as principal
of any of the assaults committed by the band, unless it be shown that
he attempted to prevent the same. (Article 296' of the Revised Penal
Code) The word "assaults" in A r t i c le 296 includes sexual assault
constituting rape. (People v. Hamiana, G.R. ¹s . L- 8 4 91-94, May 80,
1951) In such case, the members of the band are liable for robbery
with homicide, or rape with the ordinary aggravating circumstance
of band. (1977 Bar Exam) Ho wever, a member of the band is not
liable for robbery with homicide or rape if he is not present when
the victim was killed or raped. (People v. Canturia, G.R. ¹. 10 8 4 90,
June 22, 1995; 1996 and 2016 Bar Exams)
J9JC9B0M
II. FELONIES I c)3
3 . C om m i t t i n g H o m i c id e o r R a p e i n t h e C o u r s e o f
Robbery — Case law establishes that whenever homicide has been
committed by reason of or on the occasion of the robbery, all tho;. :e
who took part as principals in the robbery will also be held guilty
as principals of robbery with h omicide although they did not take
part in the homicide, unless it appears that they sought to prevent
the killing. (People v. Dela C ruz, G.R. No. 16 8178, December 24,
2008; People v. Castro, G.R. ¹. 18 7 0 7 8,March 14, 2012; People v.
Labagala, G.R. ¹ . 22 1 4 27,July 80, 2018; 1999 Bar Exam)
Once conspiracy is e stablished between several accused Iin
the commission of the crime of robbery, they would all be equally
liable for the rape committed by anyone of them on the occasion of
the robbery, unless anyone of them proves that he endeavored to
prevent the others from committing rape. (People v. Suyu, G.R. No.
170191, August 16; 2006; People v. Orosco, G.R. ¹. 20 9 2 27,March
25, 2015; People v. De Leon, G.R. No. 179948, June 26, 2009; People
v. De Jesus, G.R. ¹. 18 4 8 15, May 27,2004; People v. Ebet, G.R. Zi'o.
181 635, November 15, 2010; People v. Diu, G.R. No. 201449, April 3,
2018;People v.Madrelej os, G .R. No. 225328, March 21, 2018; 20'04
and 2012 Bar Exams)
In the course of robbery, X, one of the robbers, using a rifle shot
the responding policeman, but i t a ccidentally hi t a n other person,
who died as a consequence. Y and Z, co-robbers, did not attempt
, to prevent X i n s hooting the police officer. Hence, they are liable
for special complex crime of robbery with homicide although only X
shot the police officer, resulting to the accidental death of another
person. (2018 Bar Exam)
However, if t h ere i s n o evidence that th e accused is aware
of the commission of rape, he could not have prevented the rape.
Hence, the accused isonly liable for robbery and not robbery with
rape. (People v, Canturia, G.R. No. 108490, June 22, 1995)
Canturia pr i n c iple where lack of a w a reness is a d e fense is
applicable to kidnapping with rape (People v. Anticamaray, G.R. No.
178771, June 8, 2011; 2018 Bar Exam), kidnapping with homicide
(2006 Bar Exam), robbery with homicide (People v. Corbes, G.R.
No. 118470, March 26; 1997; 1960, 1996; and 2005 Bar Exams) and
robbery with arson. (2011 Bar Exam)
Multiple Conspiracies
There are tw o s t r u ctures of m u l t i pl e conspiracies, namely:
wheel or circle conspiracy and chain conspiracy.
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Under the wheel or circle conspiracy, there is a single person
or group (the "hub") dealing individually w it h t w o or m ore other
persons or groups (the "spokes"). An illustration of wheel conspiracy
wherein there is only one conspiracy involved was the conspiracy
alleged in the Information for plunder filed against former President
Estrada and his co-conspirators. Former President Estrada was the
hub while the spokes were all th e other accused individuals. The
rim that enclosed the spokes was the common goal in th e overall
conspiracy, i.e., t he amassing, accumulation and acquisition of ill-
gotten wealth. (GMA v. People, G.R. No. 220598, July 19, 2016)
Under the chain conspiracy, usually irrvolving the distribution
of narcotics or o t he r c o n tr aband, i n w h i c h t h e r e i s s u ccessive
c ommunication and cooperation i n m u c h t h e s ame way a s w i t h
legitimate b u s i n es s o p e r a t ions between m a n u f acture r an d
wholesaler, then w h olesaler and re t a iler, a nd t h e n r e t a i ler a n d
consumer.(Fernan, Jr.v. People, G.R. No. 145927, August 24, 2007;
2016 and 201 7 Bar Exams)
MULTIPLE OFFENSES
Recidivism, q u a s i -recidivism, reiteracion
a n d h ab i t u a l
delinquency are distinguished as follows (1951, 1955, 1968, 1986,
1998, and 2012 Bar Exams):
1. Cr im e s Commi t ted — In recidivism, the previous crime
and the present crime are embraced in the same Title of the Revised
Penal Code. In quasi-recidivism, the nature of the previous crime
and present crime is not material. In reiteracion, the penalty for the
previous crime is equal or greater than that for the present crime or
the penalty for the two previous crimes is lighter than that for th e
present crime. In h a bitual delinquency, the previous, subsequent
and present crimes must be serious or less serious physical injuries,
theft,robbery, estafa or falsification of document.
2. P er i o d o f T i m e — In q u a s i-recidivism and reiteracion,
what is important is the date of commission of the present crime. In
quasi-recidivism, the accused committed the present crime before
beginning to serve or wh i le serving his sentence for the previous
crime. In reiteracion, the accused committed the present crime after
serving his sentence for previous crime/s.
In recidivism, what i s i m p ort ant i s t h e da t e of trial of the
present crime in relation to date of conviction of his previous crime.
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II. FELONIES 125
In recidivism, the accused was being tried of the present crime when
he was convicted of the previous crime by final judgment.
In habitual d e linquency, what i s i m p o r t ant i s t h e da t e o f
conviction of the subsequent or present crime in relation to the date
of his last release or conviction. (People v. Morales, G.R. No. 42924,
March 12, 1985) In habitual delinquency, the accused was convicted
(found guilty) of the second crime within 10 years after conviction
or release of the first crime; then, he is convicted of the third cri me
within 10 years after conviction or release of the second crime; a!nd
so on and so forth.
3. N u m b e r o f C r i m e s C o m m i t ted — In r e c idivism and
quasi-recidivism, there must be at least two crimes. In reiteracion,
there must be at least two crimes; but if the penalty for the previous
crimes is lighter than that for the present crime, there must be at
least three crimes. In habitual delinquency, there must be at least
three crimes.
4. E f fe c t s in R e l a t i on to the P e n a l ty — Recidivism and
reiteracion are ordinary aggravating circumstances, the presence
o f any of w h i c h w i l l r e q u ir e t h e a p p l ication of t h e p e nalty f o r
the present crime in it s m a x i mum p eriod unless it i s offset by a
mitigating circumstance. Quasi-recidivism is a special aggravating
circumstance, the presence of which will require the application of
the penalty for the present crime' in its maximum period regardless
of the presence of a mitigating circumstance. Habitual delinquency is
an extraordinary or special aggravating circumstance, the presence
o f which will r e quire the i m position of penalty in a d dition to t h e
principal penalty for the present crime. This is not subject to the
offsetrule.
Recidivism
A recidivist is one who, at the time of his trial for one crime,
shall have been previously convicted by final judgment of another
crime embraced in the same title of this Code. (Article 14 of the
Revised Penal Code; 1965 Bar E x a m) The p hr ase "at the time of
his trial f or an o f fense" employed in d efining recidivism includes
everything that is done in the course of the trial, from arraignment
until after sentence is announced by the judge in open court. (People
v. Lagarto, G.R. No. 65888, May 6, 1991) However, recidivism can
still be appreciated even if beforehis trial for the present crime, he
was convicted by final j u dgment of his pr e vious crime. (People v.
 126 CRIMINAL LAW REVIEWER
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Bernal, G.R. No. 44988, October 31, 1986; People v. Colocar, G.R.
No. 40871, November 10, 1984)
Reiteracion
There is re iteracion when t he o ffender has been previously
p unished for a n o f f ense to w h ich t h e l a w a t t a ches an equal or
greater penalty orfor two or more crimes to which it attaches a
lighter penalty. (Article 14 of the Revised Penal Code)
1. P r e v i o u sl y P u n i s he d — T h e p h r as e "previously
punished" employed in defining reiteracion means that the accused
has served out the sentence for his previous crime.
2. P r e v i o u s Cr ime and Pr esent Crime —If there is only
one prior offense, it must be punishable by a penalty equal or greater
than that for the present crime. The penalty for the previous crime
of homicide, which has been served out, is reclusion temporal while
that for simple rape is reclusion perpetua. There is no reiteracion
because the penalty for the previous crime of homicide is lesser than
that for simple rape. (People v. Race, Jr., G.R. No. 93148, August 4,
1992)
If there is more than one prior crime, reiteracion is present
even if previous crimes are punishable by a penalty lesser than that
for present crime. Thus, there is re iteracion even if t he p enalties
for grave slander, qualified trespass to dwelling and robbery, which
have been served out, are lesser than that for the crime of murder.
(PeopLe v. Molo, G.R. No. L-44680, January 11, 1979)
In appreciating reiteracion, what is controlling is the penalty
prescribed by law forthe previous and present crimes and not the
penalty actuallyimposed by the court after trial.
3. R ec i d i v is m a n d R e i t e r a c ion — I f t h e cr i m e s a r e
embraced in the same Title such as homicide and maltreatment,
t he aggravating circumstance to b e a p p reciated against hi m i s
recidivism rather than re iteracion. There is no reiteracion because
that circumstance requires that the previous offenses should not be
embraced in the same Title of the Code. In reiteracion, the offender
commits a crime different from t hat for w h ich he was previously
convicted. (People v. Real, G.R. No. 98436, March 24, 1995
) serving sentence for t h ef t i s a q u a s i -recidivist. A l t h ough Court
Accused was previously convicted of adultery and served the
penalty for it, and was charged of physical injuries. He was found
guilty of homicide. His liability for homicide shall not be aggravated
J9JC9B0M
II. FELONIES 127
by recidivism or r eiteracion. He is not a recidivist because homicide
and adultery are not embraced in same Title of the Revised Penal
Code. Homicide is a crime against person while adultery is a critne
against chastity. Reiteracion is n ot p r e sent since the penalty for
the previous crime of adultery is lesser than that for homicide. The
crime of physical injuries shall not be considered in determining
recidivism and re iteracion since he was not yet convicted thereof.
(1989 Bar Exam)
Both recidivism and reiteration can be appreciated in murd'.er.
There is r e cidivism si nce th e a ccused was p r eviously convicted
of another mu r der, f r u strated m u r der, and l ess serious physical
injuries at the time of trial for murder. There is reiteracion since he
committed murder after serving out the penalties for grave slander,
qualified trespass to dwelling and robbery. (People v. Molo, G.R. ¹ .
L-44680, January 11, 1979)
Quasi-recidivism
Any person, who sh all c ommi t a f e l ony a f ter h a v in g been
c onvicted b y fi n a l j u d g m ent , b e f ore b e ginnin g t o s e r v e s u c h
sentence, or while serving the same, shall be considered as a quasi-
recidivist. (Article 160 of the Revised Penal Code; 1965 Bar Exam)
Quasi-recidivism is an extraordinary aggravating circumstance and
cannot be offset by a n o r d i n ary m i t i g ating circumstance (Peoole
v. Macariola, G.R. No. L - 4 0757, January 24, 1 988) of voluntary
surrender or confession. (1983 Bar Exam)
1 . P r e v i o u s C r i m e a nd P r es e n t Cr i m e — Quasi-
recidivism willbe appreciated regardless of whether the previous
crime, for which an accused is serving sentence at the time of the
commission of the crime charged, falls under the Revised Penal Code
or under special law. (People v. Aticia, G.R. No. L-88176, January.22,
1980; People v. Peralta, G.R No. L-15959, October 11, 1961) But lthe
present crime must be a felony punishable under the Revised Penal
Code or an offense punishable under special law, which adopts the
technical nomenclature of the penalties of the Revised Penal Co cle.
O ne who committed illegal possession of loose firearm whil e
of Appeals Justice Luis Reyes and Ju stice Regalado opined tlhat
the second crime must be a felony to appreciate quasi-recidivism
because Article 160 speaks of a "felony," the Supreme Court in People
 128 CRIMINAL LAW REVIEWER
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v. Salazar,G.R. No. 98060, January 27, 1997, appreciated quasi-
recidivism against the accused who committed a malum prohibitum
under R.A. No. 6425 (the old dangerous drugs law) because this law
adopts the technical nomenclature of the penalty under the Revised
Penal Code. Since R.A. No. 10591, which punishes illegal possession
of loose firearm, adopts the technical nomenclature of penalties of
the Revised Penal Code, Article 160 of the Code on quasi-recidivism
shall be applied in the imposition of penalty under R.A. No. 10591.
(2012 Bar Exam)
Section 98 of R.A. No. 9165, which has repealed R.A. No. 6425,
provides that Revised Penal Code shall not apply to the provisions
of this Act, except in the case of minor offenders. Thus, the Salazar
p rinciple i s o n l y a p p l i cable i f t h e o ffender, wh o v i o l ated t h e
dangerous drugs law, is a minor.
2. A ft e r F i n a l it y of Decision — Bernardo was enraged by
his conviction for ro bbery by Judge Samsonite despite insufficient
evidence. Pending his appeal, Bernardo escaped in order to get
even with Ju dge Samsonite. Bernardo killed the judge. Bernardo
committed the crime while the judgment of conviction is on appeal.
Thus, quasi-recidivism cannot be considered since he did not commit
the crime after having been convicted by final judgment. (2017 Bar
Exam)
3. B ef o r e S e r v i n g S e n t e nce — On e w h o c o mmitt ed a
crime outside ofprison before he begins to serve his sentence for
homicide is a quasi-recidivist. (1968 and 1988 Bar E xa ms) I f t h e
accused is placed on probation, the conviction shall become final but
. the service of sentence shall be suspended. One who committed a
crime while on probation is a quasi-recidivist because the crime was
committed before serving her sentence for the previous crime for
which she is placed under probation. (People v. Salazar, G.R. No.
98060, January 27, 1997)
The Salazar case applies to one who committed a crime while
under parole or conditional pardon. In parole or conditional pardon,
the service of unexpired portion of sentence is suspended. A parolee or
pardonee is a convict by final judgment. Commission of crime while
the service of unexpired sentence is suspended by reason of parole
or conditional pardon falls within th e contemplation of the Article
160 because the crime is deemed committed "before the service of
sentence." (see:People v. Balictar, G.R. ¹. L-29994, July 20, 1979;
1991 Bar Exam)
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II. FELONIES 129
If the pardon is absolute, the criminal liability is extinguished,
and thus, the penalty is considered as served out. One who committed
a crime after the grant of absolute pardon is not a quasi-recidI!vist.
But reiteracion may be appreciated.
4. W hi l e S e r v in g Sentence — Th e re is quasi-recidivism:
(1) where the convicted prisoner killed the victim i n side the New
Bilibid Prison (People v. Alvis, G.R. No. L-89049, June 24, 1988); or
(2) where the convicted prisoner escaped from a penal colony,and
then committed robbery with homicide. (People v. Retania, G.R. No.
L-84841, January 22, 1980)
Quasi-recidivism cannot be appreciated in the crime of evasion
of service of sentence because the former is inherent in the latter.
(Article 62 of the Revised Penal Code)
5. R e c i d i v is m a n d Q u a s i - r ecidivism — A c onv i c t e d
prisoner, who was serving his sentence in the National Penitentiary
for the crime of robbery, committed. murder. He is not a recidivist
with respect to the murder that he committed since this crime and
his previous crime of robbery are punishable under different titles.
However, he is a quasi-recidivist since he committed murder while
serving his sentence for robbery. (2018 Bar Exam) Ho wever, even
though his previous crime and present crime are punishable under
one title, if the convicted prisoner committed the latter while serving
his sentence forthe former, quasi-recidivism shall be appreciated
instead of recidivism. Quasi-recidivism can be considered regardless
of the nature of the crime for which the accused is serving sent!ence
and the crime committed while serving such sentence.
Habitual Delinquency
Habitual delinquent i s a p e rson who, wit hi n a p e r iod of 10
years from the date ofhis release or last conviction of the crimes
of serious or less serious physical injuries, robbery, theft, ests!fa or
falsification, is found guilty of any of the said crimes a third tisane or
oftener. (Article 62 of the Revised Penal Code; 1947 and 1966 Bar
Exams)
The law imposes an additional penalty based on the criminal
propensity of the accused apart fr om t h at p ro vided by law for the
last crime for which he is found guilty. Habitual delinquency i.s not,
however, a crime in itself; it is only a factor in determining the total
penalty. In fact, the provision on habitual delinquency is fou,:nd in
 130 CRIMINAL LAW REVIEWER
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Article 62 of the Revised Penal Code on application of penalties and
not in Book Two thereof which defines felonies. (ALmeda v. Villaluz,
G.R. No. L-81665, August 6, 1975; 1947 Bar Exam)
1 . S e r i o u s a n d L e s s S e r i o u s P h y s i ca l I n j u r i e s
According to J u stice Regalado, the t erm "s e rious or le ss serious
physical injuries" in Art i c le 62 should be understood to have been
used in the technical term. Th us, frustrated homicide (2014 Bar
Exam), homicide (1991 Bar E x a m), or s l i g ht p h y s ical inju r i es is
not within the contemplation of the words "serious or less serious
physical injuries" in Article 62.
Murder and grave threat are not habitual delinquency crimes.
Hence, the accused cannot be considered as habitual delinquent
although he was convicted of 3 counts murder and 5 counts of grave
threat. (2019 Bar Exam)
2. R ob b e r y —Robbery for purposes of habitual delinquency
may include robbery with homicide (1988 and 2001 Bar Exams
),
or r obbery with s erious physical injuries. In case of robbery with
serious physical inj u r ies, conviction t h ereof shall b e counted as
one for pu rpose of h abitual d e l inquency. Special complex crime
consisting of two felonies is technically one crime.
3. St a g e s — H ab i t u a l d e l i n q uency is a p p l i cable to t h e
crimes mentioned in the law r egardless of the stage of execution.
Offender, who commits a crime, whether attempted or frustrated,
subjectivelyreveals the same degree of depravity and perversity as
o ne who commits a consummated crime. To exclude him from th e
operation of rule on habitual delinquency would thwart its purposes
and expose society to a constant menace from such delinquent who,
when he resolves to commit a crime, certainly does not propose not
to go beyond an attempt or a frustration, but rather to consummate
it. (People v. Abuyen, G.R No. 30664, February 2, 1929)
4. Ac co m p l i ce and Accessories — Habitual delinquency
applies to accomplices and accessories of habitual delinquency
crimes. The participation of offenders in committing those crimes
repeatedly, w h ether as principals, a ccomplices or accessories,
reveals the persistence in them of th e i n clination to wr ongdoing
and of the perversity of character that had led them to commit th e
previous crimes. (The Revised Penal Code by Luis Reyes; People v.
San Juan, G.R. ¹ . L - 4 6 896, January 15, 1940
) Garchitorena, G.R. ¹ . 109 2 6 6,December 2, 1998) In s um, delito
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II. FELONIES
5. R ec i d i v ism an d H a b i t u a l D e l i n q u ency — O n e w h o
is convicted of robbery with homicide and was previously convicted
for theft three times is a recidivist and habitual delinquent at th e
same time. These habitual delinquency crimes are embraced in the
same Title of the Revised Penal Code on crimes against property.
Both circumstances of recidivism and habitual delinquency shall be
appreciated against him since the effects thereof are not inconsistent
with each other. The effect of recidivism is the application of the
penalty for theft in its maximum period; while the effect of habitual
delinquency is the imposition of a penalty in addition to the principal
penalty for t h e ft . ( 1 988 an d 20 0 1 Ba r E x a m s) H o w ever, w hi l e
recidivism will aggravate the principal penalty for theft, it cannot
aggravate the additional penalty for habitual delinquency because
recidivism is inherent in habitual delinquency. (People v. Tolen ~<ino,
G.R. No. 48740, August 5, 1942; PeopLe v. Manalo, G.R. ¹. L - 8 5 8 6,
May 25, 1956)
A convict ca n b e a h a b i t u a l d e l i n quent w i t h ou t b e in g a
recidivist. Not all habitual delinquency crimes are embraced in the
same Title of the Revised Penal Code such as theft, falsificatiori and
serious physical injuries. If the habitual delinquency crimes are not
embraced within the same Title, the convict is a habitual delinquent
but not a recidivist. (1965 and 1986 Bar Exams)
On the other hand, a convict can be a recidivist without being
a habitual delinquent. One who is convicted of theft, estafa, and
robbery is a recidivist because these crimes are embraced in the Title
of the Revised Penal Code on crimes against property. Howsoever,
he is not a habitual delinquent if the interval of time between his
last release or conviction and present conviction is more tha.n 10
years. One who is convicted of acts of lasciviousness, seduction and
abduction isa recidivist because these crimes are embraced in the
Title of the Revised Penal Code on crimes against chastity. Brit he
is not a habitual delinquent since they are not habitual delinquency
crimes. (2014 Bar Exam)
DELITO CONTINUADO
In order that continued crime or delito continuado may exist,
there should be:{1) plurality of acts performed separately during
a period of time; (2) unity of criminal i n t ent and purpose; arid (3)
unity of penal pr ovision in fr i nged upon or v i olated. (Santiago v.
 132 CRIMINAL LAW REVIEWER
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continuado is composed of several acts committed under a single
criminal impulse in violation of a single penal provision.
Complex Crime and Delito Continu ad o
I n delito continuado, there must be several acts committed
under a single criminal impulse. In compound crime, there must be
a single act constituting two or more crimes.
In delito continuado, several acts are committed in v io lation
of a singlepenal provision, e.g.,several acts of taking roosters in
violation of Article 308 of the Revised Penal Code. In complex crime,
the crimes may be committed in violation of a single penal provision
or two penal provisions, e.g., the complex crime of direct assault
with homicide violates Articles 148 and 249 of the Code while the
complex crime of double homicides violates only Article 249.
Th
he purpose of the principle of delito continuado is to consider
severalacts as a single crime. The purpose of Article 48 is to consider
several crimes as a single crime, which is called complex crime.
Single Criminal I m p u lse or I n t e n t
In People v. Mo r eno, (C.A.) 34 OG 1 7 6 7, t he a ccused sent
l etter t o c omplainant d emanding P 5,000 un der t h r eat o f d e a t h
and burning of houses. Complainant sent P1,000 to accused. After
two months, accused sent another letter demanding the balance of
P4,000 with the same threat. Complainant sent P2,000 to accused.
After four m onths, accused sent again another letter demand'
man ing
balance of P2,000. Complainant sent P1,000 to accused. After six
months, accused sent a n other l e t ter d e m anding th e b a l ance of
P1,000. Accused was arrested this time. It was held that several acts
of sending letters of demand for money with threats to kill and burn
the house of the complainant committed under a s i n gle criminal
impulse to extort P 5,000 in v i olation of a s i n gle penal provision
on threat (under Article 283 of the Revised Penal Code) constitute
delito continuado. Note: This is called delito continuado because the
sending of the second threating letter is just a continuation of the
first, and so on and so forth.
"A" sent letter to "B" demanding P5,000 under threat of death.
" sent P5,000 to "A." After two months, "A" sent another letter to
" demanding P4,000 under threat of death. "B" sent P4,000 to "A."
This is not delito continuado since the criminal im p ulse to extort
P5,000 is different from the criminal impulse to extort P4,000.
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II. FELONIES 133
Single Penal Provision
Accused, after uttering defamatory words against the offended
party, attacked and assaulted the latter, resulting in slight physical
injuries. This i s n ot de l i to c ontinuado s ince oral d e famation i s
punishable under A r t i cle 358 an d s l i ght p h y sical inj u r ies under
Article 266. In sum, there is no unity of penal provision violated,
which is a r equisite of a continued crime. Hence, he is liable for
slight physical injuries and oral defamation. (People v. Ramos, 59
O.G. 4052)
Single Larceny Rule
Under the "s ingle l a r ceny" do ctrine, t he t a k i n g o f s e v eral
things, whether belonging to the same or different owners, at tlhe
same time and place constitutes but one larceny or theft. (Santiago
v. Garchitorena, supra) Si n g le l a r c eny r u l e i s s p e cie of d e l i t o
conti nuado, which is specifically applicable to theft.
In People v. Tumlos, G.R. No. 46428, April 13, 1939, En Baric,
the theft of the 13 cows owned by six complainants involved 13 acts
of taking. However, the acts of taking took place at the same time
and at thesame place; consequently, accused performed but one act.
The intention was likewise one, that is, to take for the purpose of
appropriating or selling the 18 cows which he found grazing in the
same place.The fact that eight of said cows pertained to one owner
and five to another does not make him criminally liable for as many
crimes as there are owners, for the reason that in such case neither
the intention nor the criminal act is susceptible of division.
C rimes Committed Against Several Victim s
1. Cr im i n a l I m p u l s e t o S a t i sfy L u s t — T h e r e a re a s
many criminal impulses to satisfy lust as there are persons raped.
Hence, delito continuado principle shall not apply to rape committed
against several victims since the application of this rule presupposes
that there is a single criminal impulse that motivated the accused
in committing several acts in violation of a single penal provision.
Without applying the principle of delito continuado, the offender is
liablefor as many rapes as there are victims raped.
2. Cr im i n a l I m p u l se t o D e p r i v e L i b e rt y — Th e re a re
as many criminal impulses to deprive liberty as there are persons
whose liberty h av e b een d eprived of . H e nce, de lito c ontinuado
principle shall no t a p pl y t o i l l e gal d etention committed against
 134 CRIMINAL LAW REVIEWER
VOLUME I
several victims since the application of this rule presupposes that
there is a single criminal i m p ulse that m otivated the accused in
committing several acts i n v i o l ation of a s i n gle penal pr ovision.
Without applying the principle of delito continuado, the offender is
liable for as many kidnapping and serious illegal detention as there
are persons detained. (see: People v. Rimorin, G.R. No. 124809, May
16, 2000)
In People v. Pagalasan, G.R. Nos. 131926 and 138991, June
18, 2003, accused kidnapped two victims on the same occasion and
from the same place. However, they were animated by two sets of
separate criminal i n t ents and cri m i nal r esolutions in k i d n apping
a nd illegally d etaining t h e t w o v i c t i ms. Th e c r i m i nal i n t en t i n
kidnapping the first v i cti m for r a n som is di fferent from crim inal
intent in k i dnapping the second victim and detaining him for less
than three days. In their mind and conscience, they had committed
two separate felonies; hence, they ar e l i a ble for ki d n a pping for
ransom and slight illegal detention.
In kidnapping for ransom, the principal intent of the offender
is to deprive the victim of hi s l i b erty w h il e th e secondary intent
for purpose of imposing a higher penalty is to extort money from
the victim or any other persons such as his relatives. For purpose
of applying the delito continuado principle, one must consider the
number of criminal impulses to deprive liberty, and not the number
of criminal impulses to extort money.
If the accused kidnapped five victims to extort P2 million, he
is liable for five counts of ki dnapping for r ansom. Although there
is a single criminal impulse to extort P2 million, there are several
criminal impulses to deprive liberty as many as there are victims
kidnapped. (People v. Tadah, G.R. No. 186226, February 1, 2012)
If in the course of robbery, three victims were raped and two
more victims were killed, the accused is liable for a single count of
specialcomplex crime of robbery with homicides and rapes. (People
v. De Leon, G.R. No. 179948, June 26, 2009; 2016 Bar Exam
) If in
the course of detention, one victim w as r a ped and she and other
victim were killed by burning the building, the accused is liable for
two crimes, to wit: kidnaping with murder and rape, and kidnapping
with murder. (People v. Larranaga, G.R. Nos. 188874-75, February
8, 2004; 2016 Bar Exam)
3. Cr im i n a l I m p u l s e t o S t e a l or Ro b — I n t h ef t o r
r obbery, the number of cri m i nal i m p u lses will not d efend on t h e
J9JC9B0M
II. FELONIES 135
number of victims, who owned the properties taken by the accused. If
the properties owned by different persons were taken by the accused
on a single occasion, there is a single criminal impulse to take all of
them. Hence, this is delito continuado. If the properties owned:by
different persons were taken by the accused on different occasions,
there are several criminal impulses to take these properties (unless
the foreknowledge doctrine a p plies). H ence, t h ere i s n o d e l i t o
continuado.
Several acts of taking roosters on a single occasion under a
single criminal impulse to take all of them in vi olation of a single
penal provision (Article 808 of the Revised Penal Code) constitute
delito continuado. (People v. Jaranilla, G.R. No. L-28547, February
22, 1974; 1968, 1978 and 1976 Bar Exams)
Several acts of taking away by violence and intimidation the
money and valuables of the employees working in Energex gasoline
station committed under a single criminal intent or general plan to
commit robbery in the gasoline station in violation of a single penal
provision (Article 294 of Revised Penal Code) constitute a continued
crime of robbery. (People v. De Leon, G.R. No. 179948, June 26, 2009)
Several acts of taking away by means of violence or intimidation
properties from several houses in a compound committed under a
s ingle criminal i m pulse or general plan to commit robbery in t h e
compound in v i olation of a s i n gle penal provision (Article 294 of
Revised Penal Code) constitute a continued crime of robbery. (Peovle
v. Dela Cruz, G.R. No. L-1745, May 28, 1950; 1996 Bar Exam )
In People v. Enguero, G.R. Nos. L-8922-24, February 28, 1957,
the accused, who robbed one house, then proceeded to another hou.se
and committed second robbery, and then to another house where
the third robbery was committed, are held liable for three separate
crimes of robbery. I n t h i s c ase, the cr i mes were not committed
pursuant to a general plan or under a single criminal impulse. Th.eir
criminal impulse when they committed the first robbery is different
from the criminal impulses when they decided for the second time
and third time to commit two more robberies.
4. Cr im i n a l I m p u lse to Kill —There are as many criminal
impulses to kill as there are persons killed. Hence, deli to continuado
principle shall not apply to homicide or murder committed against
several victims since the application of this rule presupposes that
there is a single criminal i m p ulse that m ot ivated the accused in
committing several acts i n v i o l ation of a s i n gle penal pr ovision.
 136 CRIMINAL LAW REVIEWER
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Without applying the principle of delito continuado, the offender is
liable for as many homicides or murders as there are persons k'lied.
In delito continuado of robbery and theft, the criminal impulse
of the offender is to gain. Thus, even if there are several victims, from
whom the properties were taken, several acts of taking properties
shall be considered as a single crime under the principle of aelito
conti nuado. However, deli to continuado principle cannot be applied
in homicides or murders since the offender in committing several
acts of k i l l in g several p ersons is m o t iv ated by s everal cr i m i n al
impulses to kill as many as there are victims killed.
An offender with a single criminal impulse to gain would take
as many properties asthere are opportunities to steal regardless
of the number of victims, who owned them. A thief who took five
roosters belonging to different owners on the same occasion does not
manifest a greater degree of'perversity than another thief who took
one rooster. But a murderer who killed five persons on same occasion
manifested a greater degree of evil than another murderer who killed
one person. A thief would ordinarily t ake on the same occasion as
many propertiesas there are opportunities to steal regardless o:"the
number of owners affected. On the other hand, a murderer would
not just kill as many persons as there are opportunities to ki11 on a
single occasion unless his morality is extremely distorted. Life is too
precious. Deliberate ending of multiple lives should not be treated
as one crime since the more lives ended the higher manifestation
of degree of perversity is shown. The same rationale applies with
regard to rapes committed by one offender successively against five
victims on the same occasion. Such acts could not be lumped into one
continued crime.
In People v. Emit, CA-G.R. No. 184477, January 31, 1956, the
Court of Appeals ruled that, an accused, who ran amuck and killed
1 1 persons, was convicted of a single crime of m u r der u nder t h e
delito continuado principle because of an erroneous theory that the
killings were made under a single criminal impulse to kill. The Emit
principle is not a controlling principle. The Em it is o nly C ourt o f
A ppeals principle. However, in several cases, the Supreme Court
is not following the de lito continuado pri nciple involving sev ral
killings.
In People v. Toling, G.R. No. L-27097, January 17, 1975 and
People v. Salazar, G.R. No. L-11601, June 80, 1959, the Supreme
Court convicted the accused, who ran amuck, for as many crimes
as there are persons killed. (see also: People v. Doniego, G.R. No.
J9JC9B0M
II. FELONIES 1":!7
L-1 7321, November 29, 1963; People v. Feliciano, G.R. Nos. 127759-
.60, September 24, 2001)
5. Cr im i n a l I m p u l se to D e f r au d — Th e re a re as many
criminal impulses to defraud as there are persons defrauded. Hence,
delito continuado pr i n ciple s hall n o t a p p ly t o e s t a fa c ommitted
against severalvictims since the application of this rule presupposes
that there is a single criminal impulse that motivated the accused
in committing several acts in violation of a single penal provision.
Without applying the principle of delito continuado, the offender is
liablefor as many counts of estafa or syndicated estafa as there aire
victims defrauded.
In People v. Mangampo, G.R. No. L-8818, September 27, 1956,
the act of taking 18 cows owned by different persons at the same
time and in the same place, is a delito continuado. However, the acts
of defrauding several victims is not delito continuado. There were as
many crimes ofestafa as there are offended parties.
There is no unity of criminal intent or purpose because while
both offenses committed b y a c cused consisted of c onversion of
sums of money belonging to the offended party, they took place on
different dates and under different circumstances. Thus, each day
of conversion constitutes a single act with an independent existence
and criminal i n t ent o f i t s o w n . A l l t h e c onversions are not t !he
product of a consolidated or united criminal resolution, because eaich
conversion isa complete act by itself.Hence, this is not a continued
crime of estafa through misappropriation. (People v. Ledesma, G.R.
No. L-41522, September 29, 1976; 1976 Bar Exam)
The syndicated estafa charged in o ne case is different from
the syndicated estafa charged in the other cases. While these cases
arose out of th e same scheme, the fr audulent acts charged were
committed against different persons; hence, they do not constitute
continued crime of syndicated estafa. (People v. Balasa, G.R. No.
106357, September 3, 1998) This is not delito continuado since the
a ccused have criminal i n t e nts t o d e fraud a s m an y a s t h er e ar e
victims defrauded. (1976 and 2009 Bar Exams)
As a g e n eral r u l e , t h er e a r e a s m a n y c r i m i na l i m p u l ses
t o defraud a s t h er e a r e p e r sons defrauded. H owever, t h er e i s
an exception to the r u le. In Ma t t a ri v. People, G.R. No. L-58886,
D ecember 18, 1988,accused falsified mortgage contracts to decei.ve
complainant to pa rt P8 , 000. Since the la tter h ad o nly P 1 ,500 at
that time he convinced his mother-in-law to shell out an addition.al
 188 CRIMINAL LAW REVIEWER
VOLUME I
amount of P1,500. The accused was convicted of del;to continuado
of estafa since he committed two acts of receiving moneys from two
victims under a single criminal impulse to defraud the first v'ctim in
the amount of P8,000 in violation of a single penal provision. (Article
315 of the Revised Penal Code) The fact that the first victiin, who the
accused solelyintended to defraud, asked additional money from
his mother-in-law, will not split the criminal impulse of the accused
into two.
6. Cr i m i n a l I m p u l se t o D e f am e — Th e re a re as many
c riminal i m p u l ses t o d e f a m e as th er e a r e p e r sons d e f amed.
Hence, delito continuado principle shall not a pply to l i b el or ora l
defamation committed against several victims since the application
of this rule presupposes that there is a single criminal impulse that
motivated the accused in committing several acts in vi o lation of
a single penal provi'sion. Without applying the pr inciple of delito
conti nuado, the offender is liable for as many counts of libel or oral
defamation as there are victims defamed. In People v. Gil'., G.R. No.
L —20898, October 81, 1968, there are as many offenses (of libel or
oral defamation) as there were persons defamed.
A news article w a s ,published containing tw o d i f ferent a n d
distinct stories, one described the first complainant as engaging in
business prejudicial to the inhabitants of Cebu and the other described
the second complainant as a Berdugo of the employees. Accused was
convicted of two counts of libel. This is not delito continvado since
the accused was motivated by two criminal impulses to defame two
individuals. This is not a compound crime although there is a single
publication ofthe article because there are two acts of writing two
different defamatory storiesagainst two different individuals. (see:
People v. Del Rosario, G.R. No. L-2254, April 20, 1950)
The accused uttered in public "Mang-aagaw ng asawang may-
asawa! Tibihon! Putang ina mo! Walang Hiya! Patay-gutom!" These
several defamatory statements are addressed against a single
person. Regardless of th e n u m ber of d efamatory ut t e rances, the
accused can only be prosecuted for a single offense. (Gonzales v.
Arcilla, G.R. No. L —27923, November 18, 1991) This is actually delito
continuado s ince the accused committed several acts of u t t e ri n g
defamatory statements under a single criminal impulse to defame a
single individual in violation of a single penal provision. (Article 358
of the Revised Penal Code)
Accused uttered in public several defamatory statements ("You,
Merrera lawyers, are stealers, shameless, impolite') addressed to a
J9JC9B0M
II. FELONIES 189
single group of persons (Merrera family of lawyers). Accused was
convicted of a single crime of oral defamation. (People v. Aquino, iG.R.
Nos. L-8777 — 79, August 14, 1956) This is actually delito continuado
since the accused committed several acts of u t t er ing defamatory
statements under a single criminal i m pulse to defame a familly of
lawyers in violation of a single penal provision.
The Del Rosario p r i n ciple should not be c onfused with t h e
Aquino case. In the Del Rosario case, accused wrote two different
defamatory stories against tw o v i c t i ms, wh o d o not be long t o a
certain group or family. Hence, there are two crimes since the acts of
writing two defamatory stories were committed under two crir'iinal
impulses to defame. In the Aquino case, the accused uttered same
defamatory statements against a family of lawyers. Hence, there is
a single crime since the acts of uttering defamatory statements were
made to defame a certaingroup or family.
Crimes Committed A g a i n st a S in g le Vi c t i m
1. Cr im i n a l I m p u lse to Sati s fy Lu s t — Wh e re the;penis
of the accused was inserted into and withdrawn from victim's vagina
three times for purpose of changing position (People v. Aaron, G.R.
Nos. 136300-02, September 24, 2002) or two t i m es for purpose of
resting for 5 to 10 seconds (People v. Pinic, G.R. No. 186395, June 8,
2011), the several penetrations motivated by a single criminal intent
to satisfy his lust in violation of a single penal provision (Article 266-
A of Revised Penal Code) constitute a continued crime of rape. But
where the penis of the accused was inserted into and w i t h drawn
from victim's vagina three times for the purpose of resting for five
minutes, he satisfied his lust every time he would withdraw his penis
to rest.Since the three penetrations were motivated by separate
three criminal i m p ulses to satisfy his l u st, the de lito continuado
principle is not applicable, and hence, he is liable for three separate
crimes of rape. (People v. Lucena, G.R. No. 190632, February 26;
2014)
There is no delito continuado if the sexual abuses under R.A.
No. 7610 are committed on two different occasions simply because the
criminal impulse of the accused when he committed this crime on the
first occasion is different from that when the same was replicated on
a second occasion. In People v. Lavides, G.R. No. 129670, February
1, 2000, each incident of sexual intercourse and lascivious acct with
the same child exploited in prostitution or subjected to other sexual
abuse is a separate and distinct offense under Section 5(b) of R.A.
 140 CRIMINAL LAW REVIEWER
VOLUME I
No. 7610. The offense issimilar to rape or act of lasciviousness
under the Revised Penal Code in which each act of rape or lascivious
conduct committed against the same victim should be —.he subject of
separate Information.
2. Cr im i n a l I m p u lse to Infiict Violence —Single larceny
rule or de l i to c ontinuado pr i n ciple is n o t a p p l i cable to v i o lence
against women under R.A. No. 9262 or sexual abuse under R.A.
No. 7610 committed on two different occasions simply because the
criminal impulse of the accused when he committed this crime on the
first occasion is different from that when the same was
repli "ated on
a second occasion. In Di n a m l ing v. People, G.R. No. 199522, June
22, 2015, psychological violence committed by the husband against
his wife on two different occasions constitutes two counts of violence
against women under R.A. No. 9262. (2016 Bar Exam on Remedial
Law)
3. Cr im i n a l I m p u lse to H ave Sex wit h P a r a m our — I f
th e wife had sexual int ercourses with her p ar amour on d i f ferent
occasions, there is no delito continuado of adultery since the acts
were not committed under a single criminal impulse. Her criminal
impulse when she decided to have sex with a man other than her
husband is different from the criminal impulse when she decided for
the second time to replicate her crime.
T he accused pleaded guilty t o t h e a d u l t ery u n der th e fi r s t
complaint. However, the accused again committed adultery on a
different date not included in the first complaint. Second complaint
for adultery was filed. Accused filed a motion to quash the second
complaint on the ground of double jeopardy. Motion was den'ed. The
criminal impulse of the accused at the time they committed the first
adultery is different from t ha t w h e n t hey committed the second.
Since the two crimes of adultery were not committed under a single
criminal i m p ulse, the de lito continuado p r i nciple will n o t a p p l y .
Hence, the accused are liable for two counts of adultery.
(People v.
Zapata, G.R. No. L-8047, May 16, 1961)
Foreknowledge Principle
In Gamboa v. Court of Appeals, G.R. No. L-41054, November
28 19755,aaccused cannot be held to have entertained continuously
t he same criminal intent in making the first abstractior on 0 t b
72 for the subsequent abstractions on the following days and
months until December 30, 1972, for the simple reason that he has
J9JC9B0M
II. FELONIES
no foreknowledge of any deposit by any customer on any day or
occasion and which would pass on to his possession and control. At
most, his intent to misappropriate may arise only when he comes in
possession of the deposits on each business day but not in the future,
since petitionercompany operates only on a day-to-day transaction.
As a result, th ere could be as many acts of m i sappropriation as
there are times the private respondent abstracted and/or diverted
the deposits to his own personal use and benefit. (People v. Dichupa,
G.R. No. L-16948, October 28, 1961)
I f th e a c cused committed t h e fi r s t c r i m i n a l a c t w i t h o u t
foreknowledge that h e w i l l c o m mit t h e s econd, the acts are not
constitutive of a continued crime since the criminal acts could not
be said to have been committed under a single criminal in t e nt or
impulse.
The series of acts committed against the seven lot buyers was
not the product of a single criminal intent. The misrperesentation
or
deceit was employed against each lot buyer on different dates and
in separate places, hence they originated from separate criminal
intents and consequently resulted in separate felonies. Moreover,
after the commission of one estafa, the accused could not have had
the foreknowledge as to when or whether they could replicate the
same felony against another victim. (ILagan v. Hon. Court of AppeaLs,
G.R No. 110617, December 29, 1994)
X as punong barangay was angered when he discovered a tap
from the main line of the public water tank. On separate occasions,
X threatened to kill an d crack the skulls of t h ree suspects, .A, B,
and C. There is no continued crime of grave threat since the three
crimes were not committed under a single criminal impulse. X has
n o foreknowledge that he w il l c h ance upon the second and thir d
victims at t h e t i m e h e w a s committ in g th e fi r s t t h r e at. Several
threats can only be considered as continued crime if th e offender
threatened three individuals at the same place and at the same time.
(Paera v. People, G.R. No. 181626, May 80, 2011)
Delito Continuado Offense Under Special Law
A ccused issued t w o p o s t dated c h ecks i n t h e a mount o f
P200,000 foreach in payment of a car purchased for P400,000. He
is aware that the checks are unfunded. He is liable for two c.ounts
of violation of B.P. Blg. 22. The basis of delito continuado principle
is the singularity of the criminal intent or impulse. Hence, this rule
 142 CRIMINAL LAW REVIEWER 148
II. FELONIES
VOLUME I

does not apply in ma l u m p r o h ib itum be cause malice or criminal

intent is immaterial. Violation of B.P. Blg. 22 is malum prohibitum.
Without applying the delito continuado principle, he is liable for as
many counts of violation of BP Blg. 22 as there are bouncing checks
issued. (Lim v. People, G.R. No. 148281, October 26, 2001; 2009 Bar
Exam) However, the two acts of issuing bum checks under a single
criminal impulse to defraud the victim in th e amount of P40C,000
constitute delito continuado of estafa. In sum, with the application
of the delito continuado principle, he is liable for one count of estafa
through issuance of dishonored checks. (2019 Bar Exam)
C orruption under Section 8(e), R.A. No. 8019 partakes th e
nature of malum prohibitum. However, this crime must be comm'tted
with criminal intent since evident bad faith or manifest partiality is
an element thereof. Since criminal intent is material in this crime,
the doctrine of deli to conti nuado, which is based on singularity of the
criminal intention, is applicable. In Santiago v. Garchitorena, G.R.
No. 109266, December 2,1998, En Banc, the several acts committed
by the accused of favoring 82 aliens on the same period of time in
violation of the Anti-Graft Law w ere considered as constitutive of
one continued crime.
Continuing Crime and Deiito Continuado
Deli to conti nuado (c o ntinuous or continued c r i m e), and
continuing crime are distinguished as follows:
Trial Courts of Manila and Batangas shall have concurrent juri s-
diction to try the kidnappers. (1947 Bar Exam)
If the crime is continuing, the term of prescription commences
to run from the date the crime ended. (Arches v. Bellosillo, G.R. No.
L-1 779, June 29, 1948)
Rebellion is a continuing crime. Accordingly, a rebel may be
arrested at any time, with or without warrant, as he is deemed to be
in the act of committing the offense at any time of the day or night.
(Outline Revieiv in Political L aud by SC Justice Antonio Nachura;
Umil v. Ramos, G.R. No. 8156, October 8, 1991)
SPECIAL COMPLEX CRIME
Special complex crime or composite crime is composed of two
or more crimes for which the law fixes one specific penalty. It is also
called special indivisible crime. The term "i n d iv isible" means that
components of the special indivisible crime could not be divided and
treated as separate. (1968 Bar Exam)
The components of special complex crimes under the Revised
Penal Code, and special laws are as follows:
Rape Killing Physical Arsoii
injuries

1. Del i t o c ontinuadois a single crime produced by several Destructive Death results

acts performed separately during a period of time under a single arson (RPC)
criminal intent in v i olation of a single penal provision. and
(1947 and Arson (P.D.
2009 Bar Exams)
No. 1618)
Continuing crime is one which is consummated in one place Carnapping Driver, o w n er , o c cu-
ut by reason of the nature of the offense, the violation of the law is pant is killed or raped
deemed continuing.
Kidnapping Kidnapped victim dies SPI,
2. Th
hee purpose of the delito continuado principle is to treat or is killed or raped dehumanizing or
several acts committed under a single criminal impulse in viola-.ion torture
of a single penal provision as one crime.
Hijacking Rape Homicide/ SPI
The purpose of the principle of continuing crime is to determine murder
t e proper venue, validity of arrest and the commencement of the
running of prescription. (1994 and 2005 Bar Exams) Piracy Rape Homicide/ PI
under RPC murder
Kidnapping with homicide is a continuing crime. If the victim
was kidnapped in Manila and murdered in Batangas, the Regicnal

J9JC9B0M
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II. FELONIES 145
VOLUME I

Highway Rape Homicide/ PI, other crime 2. O r ig i n a l D e sign Is to Rob —If the original design is t>o
robbery/ murder
brigandage rob the victim (e.g., there is no motive to kill) and the accused killed
or Piracy him and took his property; or vice versa, the crime committed is
under P.D. special complex crime of robbery with homicide. (People v. Ladiana,
No. 532 G.R. 1Vo. 17466'0, May 80, 2011; 2008 Bar Exam)
Rape Homicide Insanity, In robbery with homicide, robbery is the central purpose and
permanent objective of the malefactor and the k i l l in g i s m erely incidental to
disability, the robbery. The intent to rob must precede the taking of human
mutilation I f b u t t h e k i l l in g may occur before, during or after the robbery.
Attempted Homicide (People v. Ladiana, G.R. No. 1746'60,May 80, 2011) Homicide e
rape is a component of robbery with h o micide if it i s committed: (a) to
Robbery facilitatethe robbery or the escape of the culprit;(b) to preserve
Rape Homicide SPI, unnecessary Arson the possession by theculprit of the loot; (c) to prevent discovery of
Violence,
the commission of the robbery; or (d) to eliminate witnesses to tlhe
mutilation
commission of the crime. (People v. Orosco, G.R. No. 209227, March
Attempted Homicide 25, 2015; People v. De Leon, G.R. No. 179948, tune 26, 2009; People
robbery
, v. De Jesus, G.R. No. 184815, May 27, 2004; People v. Ebet, G.R 1",t~o.
181685, November 15, 2010; People v. Di u, G.R. No. 201449, April 8,
ORIGINAL DESIGN 2018; People v. Madrelej os, G.R. No. 225328, March 21, 2018)
In special complex crime, the original design of the offender However, the law does not require that the sole motive of the
is to commit th e p r i n cipal component thereof and th ere must be malefactor is robbery. Even if the malefactor intends to kill and rob
a direct connection or int i m ate relationship between or among its another, or the intent to rob was tempered with a desire also to ta.ke
c omponents. For example, in special complex crime of r ape wi t h revenge it does not preclude his conviction for the special complex
homicide, the original design of the offender must be to commit rape crime of robbery with homicide. (People v. Daniela, G.R. No. 189230,
C

and there must be a d i r ect connection and i n t i m ate r elationship
between rape and homicide. (People v. Villaflores, G.R. No. 184926,
April 11, 2012)
Identification of t h e o r i g inal d esign of t h e a ccused is v ery
important to determine the crime committed.
I. Or i g i n a l Design Is to Kil l — If theoriginal design is
to kill the victim (e.g., there is motive to kil l ), and accused killed
him, and took his property as an afterthought, the crimes committed
are homicide or murder and theft (People v. Atanacio, No. L-11844,
November 29, 1960; People v. Ponci ano, G.R. No. 86458, Decemner 5,
1991; People v. Sanchez, G.R. No. 120655, October 14, 1998; People
v.Lamsing, G.R. No. 105816, September 2E, E995; 1947, 1976; 1984,
and 1989 Bar Exams); if after killi ng the victim, the accused as an
afterthought destroyed the vault and took the jewelries therein, the
crimes committed are homicide arid robbery by u sing force upon
things. (1988 Bar Exam)
April 24, 2008)
If the original design is to rob the victim, and the accused took
his property and then raped her; or vice versa, the crime committed
is robbery with rape. (People v. Canastre, G.R. No. L-2055, December
24, 1948; 1955 Bar Exam)
If the original design is to rob the victim and the accused took
her property, and then raped her, and killed her or killed a second
victim, the crime committed is special complex crime of robbery with
homicide and rape. (People v. Lascuna, G.R. No. 90626; August 18,
1998) Rape is not an aggravating circumstance but just a component
of this special complex cr i m e. ( People v. La r r a n aga, G .R. No s .
138874-75,February 8, 2004; People v.Montanir, G.R. ¹. 187584,
April 4, 2011; 1977, 1996, and 2018 Bar Exams)
3. Or ig i n a l D e sign Is to Rape — If t he original desigr~i, is
to rape the victim (e.g., rape or lascivious act is committed first), and
the accused raped her, and took her property as an afterthought,

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 146 CRIMINAL LAW REVIEWER
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the crime committed is r'ape and theft. (People v. D inola G . R. N .
L--54567; March 22, 1990; People v. Cruz, G.R. No. 101844, November
18, 1991); or rape and robbery. (People v. Flores, G.R. No. 71980,
March 18, 1991; 1997 Bar Exam)
If hthe original design is to r a pe the victim, and t he accused
entered her house with the use of picklock, raped her, and then killed
her and took her property as an afterthought, the crimes committed
by the accused are special complex crime of r ape wit h h o micide,
and separate crime of theft (People v. Tuangco, G.R. No. 130331,
November 22, 2000; People v. Maguad, G.R. ¹. 11 6 5 14, March13,
1998) because the taking of property has not direct connection with
the rape and homicide. However, illegal possession of picklock shall
be integrated into the special complex crime of rape with homicide.
(People v. De Leon, G.R. No. 1 79943, tune 26, 2009; 2009 Bar Exam)
E ven though th e or i ginal p lan i s t o r ob , r a pe, and k il l t h e
v ictim, if at th e t im e of the execution of the crime their i n t ent t o
rape overshadowed their intention to rob her, the crime committed
is not robbery with homicide and rape. They are liable for rape with
homicide and theft. At th e t i m e of execution, the accused did not
take any interest on victim's belongings notwithstanding her plea
rp eas
for the accused to take them in exchange for her life. They persisted
in satisfying their lust and even helped each other in their bestial
acts. If not for the accidental touching of victim's ring, the accused's
intent to rob would have been totally forgotten as the culprits had
dumped her body to h id e t h eir c r im e f rom i m m ediate discovery.
(People v. Flores, supra)
Rape with Homicide
R ape with homicide is a special complex crime under A r t i c l e
266-8 of the Revised Penal Code and not a complex crime under
Article 48. (1973 Bar Exam)
1. R a p i n g a D y i n g V i c t i m — S t a b b ing t he v i c tim a n d
raping her w h il e sh e wa s d y in g i s n o t a s p ecial complex crime
of rape with h omicide because the original design of the accused
i s to kill and not to r ape the victim. Accused is liable for mu d
an a ving sex shallnot be considered as a separate crime of rape
since the bestiality at the threshold of death of the victim shall be
regarded either as a form of ignominy causing disgrace or as a form
of cruelty which aggravated the murder because it was unnecessary
to the commission thereof. (People v. Laspardas, G.R. No. L-46146,
October 23, 1979)
J9JC9B0M
II. FELONIES 147
Hitting the victim t h r ice with a p i ece of wood and inserting
toothbrush into his anal orifice while he was dying is not special
complex crime of sexual assault with homicide because the original
design of the accused is to kill and not to sexually assault the victim.
Accused is liable for murder and the inserting toothbrush into the
anal orificeshall not be considered as a separate crime of rape
since the bestiality at the threshold of death of the victim shall be
regarded as aform of cruelty which aggravated the murder because
it was unnecessary to the commission thereof. (People v. Bernabe,
G.R. No. 185726, October 16, 2009)
2. H om i c i d e — In t h e s pecial complex crime of rape with
homicide, the term ho m i c i d e"is to be u n d erstood in i ts g e neric
sense and includes murder and slight physical injuries committed lby
reason or on occasion of the rape. Hence, even if the circumstances
of treachery, abuse of superior strength and evident premeditation
a re alleged in t h e i n f o rmation an d ar e d ul y e stablished by t h e
prosecution, the same would not qualify the kil l ing to murder and
the crime committed is st il l r a p e w it h h o micide. However, these
circumstances shallbe regarded as ordinary aggravating. (People v.
Laog, G.R. No. 1 78321, October 5, 2011)
3. B y Reason or on the Occasion of Rape — The phrase
"by reason of the rape" o bviously conveys the notion that the killing
is due to the rape, which is the crime which the offender originally
designed to commit. Th e vi ctim of t h e r ape is also the victim of
. the killing. The in divisibility of h omicide and rape (attempted or
consummated) is clear and admits of no doubt. On the other hand, the
, phrase "on the occasion of the rape, "as shown by Senate deliberations,
refers to a killing that occurs immediately before or after, or during
the commission itself of the attempted or consummated rape, where
the victim of th e h omicide may be a p erson other than th e r a pe
victim herself for as long as the killing is linked to the rape, became
evident. (People v. Vi l l a fiores, G.R. No. 18 4926, April 1 1 , 20 1 2;
People v. Laog, G.R. No. 178321, October 5, 2011)
A andB were walking along the rice paddies when X suddenly
assaulted them with a lead pipe. Xkilled A, and thereafter, raped B.
X is liable for special complex crime of rape with homicide. There is
no doubt that X killed A to prevent her from aiding B or calling for
help once she is able to run away and also to silence her completely
so she may not witness the rape of B, which is the original intent; of
X. (People v. Laog, supra)
 148 CRIMINAL LAW REVIEWER
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If the accused infected the victim with gonorrhea in the course
of rape and asa consequence, the latter died, the crime committed is
special complex crime of rape with homicide. (1947 Bar Exam) If the
victim did not die, the crime committed is qualified rape. Infection of
sexually transmissible disease is a qualifying circumstance. (Article
266-B of the Revised Penal Code)
4. S ui c i d e — Or d i n a ril y, homicide means killing another
person. In sum, the person responsible for the death of the victim
must be the offender. But i n t h e case of People v. Arpa, G.R. No.
L-26789, April 25, 1969, the victim hi mself, who jumped from the
boat, is responsible for his own death, and yet, the Supreme Court
convicted the accused of robbery w it h h o m i cide. In o t her wo r d s,
death caused by the victim herself is considered as homicide, which
is a component of robbery wit h h o m icide. Hence, it i s submitted
that suicide or death caused by the victim herself can be considered
as homicide as a component of special complex crime of rape with
h omicide. Moreover, the p r oximate cause of th e d ecision of t h e
victim to end her life is the rape c ommitted by the accused. Thus,
applying Article 4 of the Revised Penal Code, the accused is liable
for the death of the victim even though his intention is merely to
rape her. (2014 Bar Exam)
Robbery with Homicide
O nce homicide results by r e ason or o n t h e o ccasion of t h e
robbery, the felony committed is robbery with homicide.
1. R es u l t i n g D e a t h — A r ob b e r i n o r d e r t o s c a re t h e
occupants of a house, f1red one shot at the ceiling without any idea
that somebody was hiding therein. The victim hiding in the ceiling
was accidentally hit by the bullet and died as a result thereof. The
robber should be held liable for robbery with homicide despite the
fact that the killing was accidental.
Under the English version of Article 294 of the Revised Penal
Code, there is special complex crime of robbery with homicide when
homicide is committed by reason or on the occasion of the robbery.
However, Spanish text of the provision uses the phrase "resultare
homicidio." Thus, t here is s pecial complex crime of robbery wit h
homicide when homicide results by reason or on the occasion of the
robbery. In robbery with homicide, it is immaterial that the death
would supervene by m er e a ccident pr o vided th a t t h e h o m i c ide
resulted by r eason or on t h e occasion of th e r o bbery. (People v.
J9JC9B0M
II. FELONIES 149
Mangulabnan, G.R. No. L-8919, September 28, 1956; 1988 and 1999
Bar Exams)
In the course ofrobbery, one of the robbers using a rifle shot
the responding policeman, but i t a ccidentally hi t a n other person,
who died as a consequence. They are liable forspecial complex
crime of robbery wit h h o micide. This crime is committed even if
the killing is accidental as long as death resulted by reason or on
occasion of robbery. Moreover, applying the aberratio ictus princI.pie,
the accused is liable for the death of the victim, who was hit by the
bullet due to mistake of blow. (2018 Bar Exam)
After committing robbery by means of violence and intirmida-
tion, the robbers rushed into the car, and one of them pulled the car
out of the curb, hitting and killing a pedestrian. The crime commit-
ted is special complex crime of robbery with homicide even though
the death of the victim is accidental. (2007 and 2009 Bar Exams)
A robber in the course of robbery brought out his gun but he
accidentally pulled its trigger. The bullet went through the window,
hitting a neighbor that ki l led him. The crime committed is special
complex crime of robbery with homicide. (2018 Bar Exam)
2. Ti m e o f K i l l i ng —A conviction of robbery with homI!cide
r equires that th e r obbery is th e m ai n p u r pose and the k i l l in g i s
merely incidental to th e robbery. The intent t o rob must precede
the taking of human life, but the ki l l in g may occur before, during
or after the robbery. (People v. Hinlo, G.R. No. 212151, February 18,
2015; 1980 Bar Exam)
3. V ic t i m o f H o m i c ide — In r o b bery with homicide, it is
immaterial:
a. T h a t t h e victim of homicide in the course of robbery
is a third person (People v. Jugueta, G.R. No. 202124, April 5,
2016; 1980 Bar Exam) such as a bystander (People v. Barut,
G.R. No. L - 42666, M a rch 18 , 19 7 9; 20 09 Ba r E x a m) o r a
policeman (People v. Pelagio, G.R. No. L-161 77,May 24, 1967;
2009 Bar Exam); or
b. Th a t t h e v i c ti m o f h o micide is one of th e r obbers
(People v. De Leon, G.R. No. 17 9948, June 26; 2009; People
v. De Jesus, G.R. No. 184815, May 27, 2004; People v. Ebet,
G.R. No. 181685, November 15, 2010; People v. Diu, G.R. No.
201449, April 8, 2 0 1 8; People v. Ju gueta, G.R. No. 202124,
April 5, 2016; 196'2,1988, 1998, and 2009 Bar Exams); or
 150 CRIMINAL LAW REVIEWER
VOLUME I
c. Th a t t w o or more persons are killed in the course of
robbery. (People v. De Leon, supra; People v. De Jesus, supra;
People v. Ebet, supra; People v. Diu, supra; 1971 and 2016Bar
Exams) However, if t h e re a re t wo k i d n apped persons killed
in the course of detention, the accused is liable for two counts
of kidnapping with homicide (People v. Larranaga, G.R. Nos.
188874-75, February 8, 2004; 2016Bar Exam); or
d . T h a t t h e v i c ti m o f r o bbery was k i l led by a s t r a y
bullet, which came from a poIice officer (People v. Ombao, G.R.
No. L-80492, February 26, 1981; 1998 Bar Exam); or
e. T hat one ofthe robbers was killed by a police officer.
(1962 and 1998 Bar Exams)
4. Ho m i c i d e — The word ho m i c id e" is used in its generic
sense. Homicide, thus, includes murder, parricide, and infanticide.
It is only the result obtained, without reference or distinction as to
t he circumstances, causes or modes or persons intervening in t h e
commission of the crime, that has to be taken into consideration.
There is no such felony of robbery with homicide through reckless
imprudence or s i m pl e n e gligence. The constitutive el ements of
the crime, namely, robbery and homicide, must be consummated.
(People v. De Leon, supra; People v. De Jesus, supra; People v. Ebet,
supra; People v. Diu, supra; People v. Madrelej os, G.R. ¹. 22 5 8 28,
March 21, 2018)
Treachery shall b e a p p r eciated i n r o b b ery w i t h h o m i cide
although said crime is classified as a crime against property and a
single and indivisible crime. (People v. Baron, G.R. No. 188601, June
29, 2010; People v. Escote, G.R. No. 140756; April 4, 2 008; People
v. Ancheta, G.R. No. 148985, June 4, 2004) However, like abuse of
superior strength (People v. Bacero, G.R. No. 208527, J
uly 20, 201 6),
treachery isonly a generic aggravating circumstance and does not
qualify the ki l l ing to m u r der, which wil l b e used as a component
of h' special complex crime. There is no special complex crime of
o this
robbery with murder under the Revised Penal Code. (People v. Vi vas,
G.R. No. 100914, May 6; 1994; People v. Jugueta, G.R. No. 202124,
April 5, 20 16) In s um, the accused will be held liable for robbery
with homicide aggravated by the circumstance of treachery and not
robbery with murder qualified by the circumstance of treacher .
ery.
However, treacherously killing a kidnapped victim constitutes
special complex crime of k i dnapping with m urder. (People v.
Mercado, G.R. No. 116'289, November 29, 2000; People v. Ramos,
J9JC9B0M
II. FELONIEH 151
G.R. No.118570, October 12, 1998) Treachery can be considered as
a qualifying circumstance in kidnapping wiith murder. Thus, killing
the kidnapped victim by m eans of fire constitute special complex
crime of kidnapping with murder. (2016Bar Exam)
The difference between th e r ul c o n r o b bery w it h h o m i cide
and the rule on kidnapping with mu=der lies on the phraseology of
Articles294 and 267 of the Revised Per a Code. Article 294 uses the
sentence "the crime of homicide shall have been committed." In sum,
homicide is specifically mentioned in this provision as a component
of a special complex crime involving rcbbery. Hence, there is no
r obbery wit h m u r d er . O n t h e o t he r h a nd , A r t i cle 267 u ses th e
sentence 'When the victim is killed or dies." In sum, homicide is not
specifically mentioned in this provision. .as a component of a special
complex crime involving k i dnapping. Hence, there is k i d napping
with murder. By using the word 'Perilled,"the killing of victim may
constitute homicide or murder, which is a component of a composite
crime involving kidnapping.
Article 123 of Revised Penal Code on qualified piracy, P.D. No.
532 on piracy,highway robbery/brigandage, and R.A. No. 62'35 on
hijacking specifically mentioned "rave, homicide or m u r d er' a s a
component of special complex crimes involving these crimes. Hence,
treachery may be treated as a qualify'ng circumstance in qualified
piracy, highway robbery/brigandage with murder or hijacking with
murder.
5. Ot h e r Cr i m e s — I n r o b b e ry w i t h h o m i c i de, i t i s
immaterial that aside from the homicide, other crime such as rape,
intentional m u t i l a tion, or u s u r patiori of a u t h ority, i s c ommitted
by reason or on the occasion of the crime. In t hi s special complex
crime, all the felonies committed by reason of or on the occasi.on of
the robbery are integrated into one and 'ndivisible felony of ro'bbery
with homicide. (People v. De Leon, supra; People v. De Jesus, supra;
People v. Ebet, supra; People v. Diu, supra; People v. Jugueta„G.R.
No. 202124, April 5, 2016; People v. Madrelej os, G .R. ¹. 225828,
March 21, 2018)
Direct assault wit h a t t empted homicide (2009 Bar Exam) or
multiple rapes or acts of lasciviousness (2016 Bar Exam) or arson
involving the burning of bus (201 7 Bar Exam) or possession of loose
firearm (2018 Bar E x a m) committed by r e ason or on o ccasi.on of
robbery shall be integrated into the special complex crime of robbery
with homicide.
 152 CRIMINAL LAW REVIEWER
VOLUME I
T he designation o f t h e crime a s r o b bery w i t h h o m i c i de
and frustrated homicide is erroneous. The term " h omic de" as a
component of aspecial complex crime of robbery with homicide is
to be understood in its generic sense. It includes murder, frustrated
homicide, and slight physical injuries committed during the occasion
of the robbery which crimes are merged in the crime of robbery with
homicide. (People v. Carino, G.R. No. 78876; September 26; 1988)
Hence, the crime should be designated as special complex crime of
robbery with homicide.
Under the De Leon principle, acts of homicide, physical injuries
and other offenses committed by reason or on the occasion of robbery
are components of robbery with h omicide. This De Leon principle
can be applied by analogy to rape with h omicide (People v. Laog,
G.R. No. 178821, October 5, 2011) and kidnapping with h omicide.
In rape with homicide, illegal possession of picklock committed on
occasion orby reason of rape shall be integrated into special complex
crime of rape with homicide. (2009 Bar Exam) In k i d napping with
murder by means of fire, rape committed in the course of detention
shall be integrated into th e special complex crime of k i d napping
with murder.(People v.Larranaga„G.R. Nos. 138874-75, February
8, 2004; 2016 Bar Exam)
If the building is burned to conceal the crime of robbery with
homicide, destructivearson will be considered as a separate crime.
Under Article 820 of the Revised Penal Code, burning a building for
the purpose of concealing or destroying evidence of another violation
of law (e.g., robbery with homicide) is destructive arson. (2005 Bar
Exam) However, arson of dwelling under P.D. No. 582 committed
to conceal robbery wit h h o micide, or ar son under P.D. No. 1613
involving the burning of bus committed by reason or on occasion of
robbery shall be integrated into the special complex crime of robbery
with homicide. (2017 Bar Exam)
Other crime committed in the course of special complex crime
will not be treated as a separate crime unless it is not connected with
it. Hence, illegal possession of dangerous drugs cannot be considered
as a component of robbery wit h h o micide. Theft committed after
raping and killing the victim as an afterthought cannot be considered
as a component of rape with homicide. (People v. Tuangco, supra;
People v. Maguad, supra) Carnapping committed by reason or on
occasion ofrobbery with homicide shall be considered as a separate
crime. (People v. Dela Cruz, G.R. No. 174658, February 24, 2009;
People v. Napalit, G.R. Nos. 142919 and 148876, February 4, 2008;
201 7 Bar Exam)
J9JC9B0M
II. FELONIES 153
DIRECT CONNECTION
To be held liable for a special complex crime t h ere must be a
direct connection and intim ate relationship between or among the
components of a special complex crime.
Direct Connection Between Robbery and Homicide
Robbery w it h h o m i cide i s a s p ec::-al complex cr im e fIound
in Article 294 of the Revised Penal Code, which governs robbery
by means of violence or inti mic.ation. Hence, to be held liable for
r obbery wit h h o m i cide u n der A r t i cl e 2 94, i t i s i m p o r t ant t h a t
there is a direct connection between robbery by means of violence
or intimidation, and homicide. f b y r e ason or on occasion of theft
or robbery by using force upon things, homicide has resulted, this
is not a complex crime of robbery with homicide. Theft is found in
Article 808 of the Revised Penal Code, while robbery by using force
upon things is under Articles 299 and 802 of the Code. There is no
special complex crime of theft w it h h o micide or robbery by using
force upon things with homicide under these provisions.
If the accused killed a p erson from whom th e pr operty was
taken, or a person to maintain possession over the property recently
taken by him, or to escape after taking the property, such killing
shall constitute "violence or intim ida :ion in t a k ing the properties"
as an element of robbery under A r t i cle 294, and ho m i c ide"as a
component of special complex crim , h e n ce, he is liable for robbery
with homicide.
As a general rule, if th e original design of the accused. is to
c ommit r o bbery, an d i n t h e c o u r s e o f c o m m i t t in g t h i s c r i m e ,
somebody died, he is liable for special complex crime of robbery with
homicide. However, there are three cases where the robbers were
not held liable for special complex crime of robbery with homicide
although somebody died.
1. Con c e p c ion case — The accused snatched the victim' s
shoulder bag which was hanging on her left shoulder. The co-
conspirator of the accused, who was driving a motorcycle.,died
because he lost control of the motorcycle and crashed in front of a
taxi. Snatching without violence or int' midation is theft under Article
808 of the Revised Penal Code. Without vi olence or in t i m i dation
in taking the property, the accused cannot be convicted of special
complex crime of robbery with h o micide under Ar t i cle 809 iof the
Code. If by reason or on occasion o tl eft, homicide has resulted, he
 154 CRIMINAL LAW REVIEWER
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cannot be convicted of special complex crime of theft with homicide.
There exists no crime of t h eft w i t h h o m i cide under A r t i cle 808.
Moreover, since the accused as passenger in the motorcycle did not
perform or execute any act that caused the death of his companion,
he cannot be held liable for homicide. (People v. Concepcion, G.R.
¹. 20 0 9 22,t'uiy 18, 2012)
To apply the Concepcion case, it is important that the snatching
w as committed wi t hout v i olence or i n t i m i dation, and th e k i l l i n g
must be accidental.
T he accused snatched the vi ctim's shoulder bag wh ich w a s
hanging on her left shoulder. Police officer tried to arrest the accused.
The co-conspirator of the accused, who was driving motorcycle, ran
over the police officer, and as a consequence, he died. Concepcion case
is not applicable because the killing is not accidental. In this case, the
running over the police officer constitutes violence employed to take
the property, which is an element of robbery, and homicide. Since by
reason or on occasion ofrobbery, homicide resulted, the accused is
liable for a special complex crime of robbery with homicide.
2. J ar a n i l l a c a s e — In Peo p le v. Ja r a n i l l a, G . R . N o .
L-28547, February 22 , 1 9 74, accused took th e r o osters w i t h out
violence or inti mi dation from a cage beside a house, and boarded
on a truck. A person reported to the police authorities at the station
that he saw the three suspicious-looking men carrying roosters. The
policemen, with the reporting individual, went to the place where the
accused were seen, they and the truck were not there anymore. The
policemen followed the truck and intercepted it. One of the accused
fired his gun at one of the policemen and as a consequence, he died.
The trial court convicted the accused of robbery with homicide under
Article 294. However, the Supreme Court reversed the decision of
the trial court, and convicted them of theft and direct assault with
homicide. According to the Court, there is no evidence that in takin
he roosters from their coop, violence against or intimidation of
persons was employed. Hence, Article 294 on special complex crime
of robbery with homicide cannot be invoked.
To apply the Ja r a n il la p r i n c iple, it is i m p o rtant t h at at t h e
time of the killing, the robbery has been fully consummated.
If the
h accused hasjust taken the properties without violence or
intimidation, and still at the crime scene when the police authorities
arrived, it is submitted that k i l l in g a policeman to escape shall be
considered "violence or intimidation in taking the properties" as an
J9JC9B0M
II. FELONIES 155
element of robbery under Article 294 of the Code. Initial violence or
intimidation need not be present when the property was taken from
the victim. (Ablaza v. People, G.R. ¹. 21 7 7 22,September 26, 2i018)
Such killing also constitutes "homicide" which is a component of the
special complex. Hence, accused is liable for robbery with homicide..
Mr. R entered the house by breaking th e w i n dow and took
money and jewelries therein. The owner of the house shouted "stop
or I wil l shoot," and pointed the gun at h i m, a nd cocked it. Mr. R
killed the owner. Mr. R is liable for special complex crime of roblbery
with homicide since he killed the owner to maintain his possession
over the stolen properties. (2019 Bar Exam)
To apply th e Ja r a n i l la p r i n c iple, it i s i m p o r t a nt t h a t t h e
taking of the properties was not committed by means of violence or
intimidation.
The accused took the properties in the house of the victim by
means of violence and int i m i dation. They went out of th e house,
boarded on ataxi and rode on it.A jeep with a police officer blocked
the taxi. When the police officer approached accused, one of them
shot him, an d a s a c onsequence, he died. Accused are liable for
special complex crime of robbery with homicide. (People v. Pelagio,
G.R. ¹. L -161 77,May 24, 1967)
3. Quemeggen case — In Pe ople v. Quemeggen,G.R.
No. 178205, July 27, 2009, aftertaking the passengers' personal
belongings, accused alighted from th e j eepney. At t h a t m o irient,
robbery wa s c onsummated. Some o f t h e p a s sengers, however,
decided to r eport t h e i n c i dent t o t h e p r oper a u t h orities; hence,
they went to the nearest police station. There, they narrated what
happened. The police eventually decided to go back to th e p l ace
where the robbery took place. Then, they saw the suspects on board
a pedicab. Three suspects were caught and left u n d er the caie of
Suing, a police officer. It was then that Suing was killed. Clearly,
the killing was distinct from the robbery. There may be a connection
between the two crimes, but surely, there was "no direct connection."
To apply the Quemeggen case, it is important that at the time
of the killing, the robbery has been fully consummated.
In People v. Barut, G.R. No. L-42666, March 13, 1979, after
taking the properties in the house of the victim by means of violence
and intimidation, a fight between the robbers and the neighbois of
the robbery victim ensued. The killing of one member of the rescue
 156 CRIMINAL LAW REVIEWER
VOLUME I
p arty resulted from t hat fi g ht . H ence, it wa s connected with t h e
robbery. Although the k i l l in g of th e vi ctim was perpetrated after
the consummation of the robbery and after the robbers had left the
victim's house, the homicide is still i n t egrated with the robbery or
is regarded ashaving been committed "by reason or on the occasion"
thereof.
In Barut case, the fight between the robbers and the rescue
party resulting in th e death of the victim is just i nseparable part
of the event involving robbery. Hence, the connection between the
robbery and homicide is direct. On the other hand, in Qu emeggen
case, there isan appreciable interval of time between the robbery
and the p u r suit o f t h e r o bbers causing th e f a t ali ty . H e nce, the
connection between the robbery and homicide is not direct.
Where long after the robbery, one of the robbers realized that
they had left the door of the building open and the robbery would be
easily discovered, whereupon he returned to close that door but he
had to kill the janitor who also arrived at the scene, it was held that
the killing was a separate crime as it was only indirectly connected
with robbery. (DSCS, May 28, 1889; Criminal L a tv Conspectus by
Regalado)
Accused without u n l awful en tr y or f o rcible entry committed
t heft in side a b u i l d i ng. A f ter d r i v in g fo r a b out 1 k i l o m eter, h e
returned to the building because he left his wallet with his ID. He
was surprised to find a p erson holding his wallet. Accused killed
the victim. He is liable for separate crimes of theft and homicide.
The unlawful t a k ing w i t h out v i olence, intimidation or force upon
things constitutes theft. Even if there is a connection between theft
and homicide, he is not liable for a special complex crime because
there is no such crime of theft with homicide in the book of statutes.
(People v. Jaranilla, supra) Moreover, since the unlawful taking is
already completed when the killing was committed, the connection
between the two is not direct. (People v. Quemeggen, supra; 2015
Bar Exam)
Qualified Carnapping
There is qualified carnapping or carnapping in the aggravated
form when the owner, driver or occupant of the vehicle is killed or
raped in commission thereof. (Section 8 of R.A. ¹. 10 8 8 8) To prove
this special complex crime, it is important to show that the original
criminal design of the culprit i s t o commit carnapping. (People v.
Nocum, G.R. No. 179041, April 1, 2018)
J9JC9B0M
II. FELONIES 157
In People v. Calacroso, G.R. No. 126368, September 14, 2000,
accused boarded a tricycledriven by the victim to attend a dance
party. Because of a dispute regarding the fare rate, the victim was
fatally stabbed by one of the accused. After the victim was fatally
stabbed, they took the tricycle. Accused is not liable for carnappi.ng
with homicide. The taking away of the tricycle of the victim followed
the killing apparently as an afterthought of accused. In fact, their
original design was not to commit carnapping but to attend a dance
party. Hence, the crimes of carnapping and homicide are separate.
If the accused killed the vi ctim an d t ook hi s m otor vehicle,
and there is no showing of motive to kill, he is liable for qualified
carnapping. Without motive to kill, a rational inference can be made
that the original design of the accused is to carnap the vehicle, a.nd
the victim was killed to facilitate carnapping. (1998 Bar Exam)
Attempted Robbery with Homicide
Under Article 294, when by reason or on occasion of the robbery,
the crime of homicide shall have been committed, the "person guilty
of robbery"shall be punished for special complex crime of robbery
with homicide. If in t h e course of robbery, a policeman or a t h i r d
p erson accidentally k i l l e d t h e v i c t im , t h e c r im e committed i s a
special complex crime of robbery with homicide under Article 294. It
is immaterial that death was supervened by mere accident. What, is
important isthat death resulted by reason or on occasion of robbery
without r eference or distinction as t o th e circumstances, causes,
modes or p e r sons in t e rvening in t h e c o m m i ssion of t h e c r i m e .
(People v. Ombao, G.R. ¹. L - 8 0 4 92, February26, 1981; 1962, 1998,
and 2009 Bar Exams)
U nder A r t i cl e 2 97, w he n b y r e a son o r o n o c casion of a n
attempted robbery, homicide is committed, the "person guiltyofsuch
offenses"shall be punished for special complex crime of attempted
robbery wi th ' homicide. If in t h e c o u rse of a t t empted robbery,a
policeman or a third person accidentally killed the victim, the crime
committed is not special complex crime of attempted robbery w:Ith
homicide under Article 297. Said Article speaks of the same person
"being guilty of such offenses." In sum, to be held liable for attempted
robbery with homicide, it is important that the accused is guilty of
both attempted robbery and homicide. In this case, the accused is
only guilty of att empted robbery. Hence, he is not responsible:for
the death of the victim caused by another person. He is only liable
for attempted robbery. (People v. Manalili, G.R. ¹. 12 1 671, August
14, 1998)
 158 CRIMINAL LAW REVIEWER
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If in the course of attempted robbery, one of the conspirators
killed a vi ctim, th e cr ime committed i s special complex crime of
attempted robbery with homicide under Article 297. It is immaterial
who among the conspirators killed the victim. Because of conspiracy,
the act of one is the act of all. Hence, all conspirators are considered
as guilty of attempted robbery and homicide, from which the special
complex crime is formed. (People v. Bautista, G.R. No. L-23303, May
20, 1969; 1959 B ar Exam),
If a band committed at t empted robbery, and i n t h e c ourse
thereof, a member of the band killed a victim, the crime committed
is special complex crime of attempted robbery with homicide with
ordinary aggravatingcircumstance of band. Members of the band are
all responsible for the death of the victim even though only one killed
the victim unless the others tried to prevent it. (People v. Carunungan,
G.R. No. L-13283, September 30, 1960; 1988 Bar Exam)
Arson and Homicide
I n th e c l assification o f c r i m e s c ommitted b y b u r n i n g t h e
b uilding and ki l l ing of the victim, attention must be given to th e
intention of the author. Main objective of the offender determines
the kind of crime committed.
1. I nt e n t toKi ll — If the main objective is to kill a particular
person who may be in a building or edifice when fire is resorted to as
the means to accomplish such goal, the crime committed is murder
only. When the Code declares that ki l l ing committed by means of
fire is murder, it intends that fire should be purposely adopted as a
means to that end. There can be no murder without a design to take
life. Murder qualified by means of fire absorbs the crime of arson
since the latter is an inherent means to commit the former.
(People
v. Cedenio, G.R. No. 93486, tune 27, 1994; 1986 Bar Exam)
Since murder absorbs arson, accused cannot be held liable for
complex crime of murder with ar son, or arson with m u r der. (1963
and 1973 Bar Exams)
Single act of burning the building to kill two persons constitutes
compound crime of double mu r ders. (People v. Gaffud, G .R. No .
168060, September 19, 2008; People v. Mercado, G.R. No. 218702,
October 17, 2018; 2012 Bar Exam)
One who has deliberately set fire to a building is presumed to
have intended to burn the building. Further evidence is not required
to show his wrongful intent to bu rn. (People v. De Leon, G.R. No.
J9JC9B0M
Il. PELONIES 159
180762, March 4, 2009) Since intent to burn is presumed, intent to
kill to show that the crime is murder must be established beyond
reasonable doubt. Failure to show intent to kill, the accused shall be
convicted of arson with resulting death and not murder. (People v.
Baluntong, G.R. No. 182061, March 16, 2010)
2. I nt e n t t o B u r n — If t h e m a in objective is the burning
of the building, but death results by reason or on the occasion. of
arson, the accused is liablefor simple arson (People v. Cedenio,
supra) with r e sulting death. (People v. Abayon, G.R. No. 204891,
September 2016) In s uch a c ase, arson absorbs homicide (People
v. Cedenio, supra) since the latter is only a circumstance that will
upgrade the penalty for the former. Under Article 820 of the Revised
Penal Code and Section 5 of P.D. No. 1618, the penalty is highe!r if
arson is accompanied with resulting death. Thus, homicide shall be
treated as a mere element of arson with the qualifying circumstance
of resulting death. (1985, 2012, and 2019 Bar Exams)
!
i In People v. Villacorta, G.R. No. 172468, October 15, 2008 and
People v. Ju gueta, G.R. No. 202124, April 5 , 2 0 1 6, the Supreme
I Court described arson with the qualifying circumstance of resultii.ng
death as special complex crime of arson with h o micide. However,
I
People v. Dolendo, G.R. No. 228098, June 8, 2 019, the Supreme
Court said that the Court of Appeals correctly modified appellant's
conviction from arson with h o micide to simple arson conformalibly
with prevailing jurisprudence.
For purpose of th e bar e x amination, if t h e a ccused burned
burning the building without in t ent to k i ll , and as a consequerice,
death results, the crime should be designated as simple arson under
PD No. 1618 (Dolendo case) or destructive arson under the Revised
Penal Code with t h e q u a l ifying circumstance of resulting death
(Abayon case)
If the accused burned the building to claim insurance, and. as
a consequence a person died, the crime committed is arson wit h
the qualifying circumstance of resulting death. (1971 Bar Exam,) If
the accused burned the building to compel him to come down, and
as a consequence he died, the crime committed is arson wi t h ! t he
qualifying circumstance of resulting death. (1962 Bar Exam)
However, if the accused burned the house, and then shot!the
neighbor of the owner of the house, who was trying to put out !the
fire, outside the burning house, murder is not absorbed in ar son
since the death did not result by reason or on occasion of arson. In
 160 CRIMINAL LAW REVIEWER
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sum, the accused isliable for separate crimes of murder and arson.
(People v. Oliva, G.R. No. 122110, September 26, 2000) In sum, to
make an arsonist liable for arson with r esulting death tl e victim
must die due to the burning of the building and not by other reason
such as shooting.
There is no arson wit h q u a lifying circumstance of resulting
death or homicide, if a neighbor of the owner of house being burned,
who intervened, was shot an d k i l l e d b y t h e a ccused. (People v.
Oliva, supra) But t h e re is robbery with h o micide, if the neighbor
of the victim of robbery, who intervened, was shot and killed by the
accused. (People v. Barut, G.R. No. L-42666, March 13, 1979)
3. I nt e n t to Co nceal — If the objective is to kill, ar d in fact
the offender has already done so, and arson is resorted to as a means
to cover up the killing, the offender may be convicted of two separate
crimes of homicide or murder, and arson. (People v. Cedenio, supra;
1985 and 2011 Bar Exams) If the offender treacherously k lied the
v ictim, took his money as an a ft erthought, and t hen bu rned t h e
building to conceal the crime, he is l i a ble for separate crimes of
murder, theft and arson. (1995 Bar Exam ) If as a consequerce of
the burning of the building to conceal homicide or murder, another
victim is killed, the crimes committed are homicide or murder and
arson with r e sulting death. (People v. Cedenio, supra; 19 89 B a r
Exam)
Kidnapping with Homicide
In special complex crime of robbery with homicide, the original
design of the offender is to rob the victim. In special complex crime
o f rape with h o micide, the original design is t o r ape t h e : i c t i m .
But a special complex crime of k i dnapping with h omicide can be
committed whether the original design is to kidnap the victim or to
kill him. What is important is that the victim is killed in the course
of detention.
Old rule: ( 1) Where the accused kidnapped the victim for the
purpose of killing him, and he was in fact killed by his abductor, the
crime committed was the complex crime of kidnapping with murder
as the kidnapping of the victim was a necessary means of committing
the murder. (2) Where the victim was kidnapped not for the purpose
of killing him but was subsequently slain as an afterthougl t. two
separate crimes of kidnapping and murder were committed.
Present r u le: Ap p l y i ng t h e Me r c a do pr i n c iple, w here t h e
person kidnapped is killed in the course of the detention, regardless
o f whether th e k i l l i n g w a s p u r posely sought or w a s m e r ely a n
J9JC9B0M
II. FELONIES 161
afterthought, kidnapping, and murder or homicide can neither be
complexed nor betreated as separate crimes, but shall be punished
as a specialcomplex crime of:
1. K i d n apping with murder(People v. Mercado, G.R.
No. 116239, November 29, 2000); or
2. Ki d n a p p ing with homicide(People v. Montanir, G.R.
No. 187534, April 4, 2011); or
3. K i d n appingfor ransom with homicide (People!ev.
Dionaldo, G.R. No. 207949, July 23, 2014; People v. Elizalde,
G.R. No. 210434, December 5, 2016); or
4. K i d n a p p in g w i t h h o m i c ide a n d r a p e (P e op',~ev.
Larranaga, G.R. ¹s . 1 3 8 874-75,February 3, 2004); or
5. K i d n apping for ransom with murder.(People.'ev.
Ramos, G.R. No. 118570, October 12, 1998; 2005 Bar Exam)
However, kidnapping is a crime against liberty. Hence, where
there is no actual detention or intent to deprive liberty, the ca,se of
Mercado will not apply. The crime committed is not kidnapping with
homicide but murder. Demand for ransom will not convert the crime
into kidnapping.
In Mercado case, the victim was kidnapped for the purpose of
killing him. There is intent to deprive liberty since he was brought to
a safe house in Tanay before bringing him to Morong for execution.
The crime committed is kidnapping with homicide. (1978 and 2006
Bar Exams) In Pe ople v. Es tacio, Jr., G. R. No. 1 71655, July 2 2,
2009, the victim was kidnapped in Quezon City for the purpose of
killing him. There is no intent to deprive liberty since he was killed
at the precise moment that he was brought at the locus criminis in
Bulacan. The crime committed is mu r der since the deprivation of
liberty is just incidental. (1968 Bar Exam) Demand for ransom. will
not convert the crime into kidnapping.
In People v. Lora, G.R. No. L-49430, March 30, 1982, accused
gagged the mouth of the child with stockings, placed him in a box,
sealed it wit h m a sking tape, and placed the box in th e attic, The
child died of asphyxiation barely minutes after the box was sealed.
Demand for ransom was made. The crime committed is murder and
not kidnapping for ransom since there is no deprivation of liberty.
Demand for r a nsom w il l n o t c onvert th e c r im e i nt o k i d napping.
(2005 and 201 6 Bar Exams)
 [
162 CRIMINAL LAW REVIEWER
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If ki dnapping i s a n e c essary m e ans t o c o m mi t f r u s t r at ed
murder, special c omplex crime o f k i d n a pping w i t h f r u s t r a t ed
homicide is not committed. Under Article 267 of the Revised Penal
Code, homicide as a component of special complex crime mus-. be at
the consummated stage. In this situation, the crime committed is a
complex crime of kidnapping with fr u strated murder under Article
I complex crime. Hence, the following combination of crimes cannot
48 of the Revised Penal Code. (see: People v. Roxas, G.R. ¹. 1 7 2 6 04,
August 17, 2010)
i
Consummated Components
I n a s p ecial c omplex c rime, th e c o mponents t h e reof a r e
generally consummated crime. However, there are two e=ceptions,
to Wtt:
1. At te m p t ed rape with homicideunder Article 266-B of
ftlI
the Revised Penal Code; and
2. At te m p t ed rob'hery with homicideunder A "ticle 297
of the Code.
Article 297 of the Revised Penal Code also punishes special
complex crime of fr u strated robbery wit h h o micide. But
u sam
s ame as
theft
t e t, robbery has no frustrated stage. Robbery whether as a single
crime or acomponent of a special complex crime is either attempted
or consummated.
Iff the accused employed violence or inti mi dation to t ake th e
propertyfrom the victim thereof,and the latter died as a conseq- ence
tthe
e accused is liable for special complex crime of attempted robbery
with homicide, if h e f a i l ed t o a c q uire p o ssession over p r o perty
(Article 297; People v. Amba, G.R. No. 140898, September 20, 2001);
or special complex crime of ro bbery with h omicide, if he acquired
possession over property.(Article 294 ) In People v. Salvilla, G.R.
No. 86168, April 26 , 1 990, acquisition of physical or construe-.ive
possession over the properties from the victims by means of violence
or intimidation, consummates robbery even t h ough th e a ccused
failed to bring out the stolen properties from the lumber compound.
In People v. Barra, G.R. No. 198020, July 10, 2013, the cr me
o robbery remained unconsummated because the victim refused to
give his money to appellant and no personal property was shcwn
t o have been taken. It was for this reason that the victim was h t .
w ass o .
ccused was convicted of special complex crime of attempted robbery
with homicide.
J9JC9B0M
II. FELONIES 163
Attempted rape w it h h o m i cide and a t t empted robbery wit h
homicide a re t he o n ly s p e cial c omplex crimes w he re o ne of i t s
components is not consummated. In other combination of crimes
where one of them is not at the consummated stage is not a special
be considered as a special complex crime but they shall be treated as
separate crimes or complex crime:
1. R obbery and attempted homicide or frustrated
homicide (People v. Lagmay, G.R. No. 67978, October 29, 1992);
2. Ra p e and attempted homicide or frustrated homicide
(People v. Ho n r a, J r . , G . R. N o s. 18 6 012-16, September 26,
2000);
8. A t t e m p t ed robbery and frustrated homicide(People
v. Cagongon, 74 OG 59, ¹. 1 , Ja n u a ry 2, 1978);
4. Attempted robbery and serious physical injuries
(People v. Villanueva, CA-G.R. No. 2676, May 31, 1989);
5. R obbery and attempted rape (People v. Ca r iaga,
C.A., 54 O.G. 4807; 2009 Bar Exam);
6. K i d n a p p ing and frustrated murder(People v. Roxas,
G.R. No. 172604, August 17, 2010).
There exists no offense as special complex crime of robbery
with frustrated homicide. The word "homicide" as a componertt of
the special complex crime of robbery with homicide under Article
294(1) is meant in its generic sense, that is, any act that results in
death. Any other act producing a result short of death is embraced
by "homicide." However, if no death supervenes, the accused should
be held l i able for s i m pl e r obbery (P eople v. La g m ay, supra) o r
robbery by band (People v. Hamtig, G.R. No. L-27431, August 22,
1969) and separatecrime of frustrated or attempted homicide or
murder provided there was intent to ki ll. (People v. Repuela, G.R.
No. 85178, March 15, 1990) In s um, t h e re should have been two
separate informations: one for robbery and another for fru strated
(or attempted) homicide. (People v. Fortich, G.R. Nos. 80899-404,
November 18, 1997)
If th e pr o s ecution e r r o neously c h a rged t h e a c c used w i t h
special complex crime of rape with fr u str ated homicide in a single
information, the trial court can convict the accused of separate crimes
of rape and frustrated homicide. A single information containing two
crimes of rape and robbery is defective. However, the right to object
 164 CRIMINAL LAW REVIEWER
VOLUME I
to the defect of charging two crimes was deemed waived by accused.'s
failure to raise it in a motion to quash before arraignment. Herce,
convictionfor separate crimes of rape and frustrated h omicidemay
lie. (People v. Honra, Jr., G.R No s. 186012-16, September 26, 2000)
If the court er r o neously convicted the a ccused with s p ecial
complex crime of robbery with frustrated homicide, which is charged
i n a single information, the appellate court can only sustain t h e
conviction of the accused for simple robbery. (People v. Fortich, supra;
People v. Lagmay, supra) By erroneously convicting the accused for
specialcomplex crime of robbery with frustrated homicide ins-,ead
of separate crimes of robbery and frustrated homicide, the accused
is technically acquitted of frustrated homicide. Hence, the appellate
court cannot convict him of frustrated homicide because of the r >Ie
on double jeopardy. (see: People v. Cilot, G.R. No. 208410, Octoboer
19, 2016)
COM P LEX CRIME
There are two kinds of complex crimes. The first is known as
compound crime, or when a single act constitutes two or more grave
or less grave felonies. The second is known as complex crime proper,
or when an offense is a necessary means for committing the other.
(People v. Rebucan, G.R. No. 182551, July 27 , 2011; 1950, 1960,
196'8, 1965, 196'9, 1999, 2004, and 2019 Bar Exams)
The underlying philosophy of complex crimes, which follows
the pro reo principle, is intended to favor the accused by i
mposing
a single penalty irrespective of the crimes committed. The rationale
being, that the accused who commits two crimes with single criminal
impulse demonstrates l esser p erversity t h a n w h e n t h e e r i n es
are committed by different acts and several criminal resolutions.
(People v. Gaffud, Jr., G.R N o . 16'8050, September 19, 2008; 1969
Bar Exam)
There are two essences of Article 48 on complex crime. First,
it isdesigned to favor the accused by treating several crimes as one
crime. Second, it is also designed to punish the accused by requiring
the application of th e penalty for th e m ost serious componen. in
its maximum period (1950, 1959,and 1999 Bar Exams) because
technically, he committed two or more crimes.
COM P O U N D CRIME
Compound crime is composed of two or more grave or less grave
feloniesproduced by a single act.
J9JC9B0M
II. FELONIES 165
Multiple Murders
The single act of rolling the hand grenade on the Hoor of the
gymnasium, which resulted in the death of the victims, constituted
a compound crime of multiple murders. (People v. Mores, G.R. No.
189846, June 26, 2018) When the killing is perpetrated with treachery
and by means of explosives, the l a tter sh all b e considered as a
qualifying circumstance. Since the use of explosives is the principal
mode of attack,reason dictates that this attendant circumstance
should qualify the offense instead of treachery which will t hen be
considered merely as a generic aggravating circumstance. (People v.
Comadre, G.R. No. 158559, June 8, 2004; 1991 and 2008 Bar Exarns)
The single act of running over the victims with a van constitutes
compound crime of multiple murders. (People v. Punzalan, Jr., G,R.
No. 199892, December 10, 2012)
f
Direct Assault with Homicide or Physical Injuries
Compound crime is committed wh ere a si n gle act pr oduces
I direct assault and injuries upon the victim. Thus, the accused may
be held liable for the complex crime of:
a. D ir e c t assault with serious physical injuries or less
I serious physical injuries (Tacas v. People, G.R. No. L-374'06,
August 81, 1976 US v. Montiel, G.R. No. L-8852, November 11,
1907; 2001 Bar Exam); or
b. Di r e c t a s sault w i t h a t t e m pted m u r d er (People v.
Beltran, G.R. Nos. L-37168-69, September 13, 1985); or
c. Di r e c t a s sault w i t h h o m i cide or m u r d er. (P eople
v. Estonilo, Jr., G.R. No. 201565, October 18, 2014; People v.
Dural, G.R. No. 84921, June 8, 1998; People v. Rillorta, G,R.
No. 57415, December 15, 1 989; 1 958, 1991, a nd 1 9 95 B a r
Exams)
If a s i n gle act p r o duces direct assault an d s l i ght p h y sical
injuries, there is no complex crime. Since slight physical injuri es
is a light felony, it cannot be made component of a compound crime
because Article 48 speaks of "grave or lessgrave felony." In tuchis
situation, direct assault absorbs slight physical injuries. (2001 Bar
Exam) In People v. Acierto, G.R. No. 86595, November 28, 1982,
slight physical injuries suffered by a postmaster as a consequence of
an attack upon his person while discharging his duty are inherent
in th e c r im e o f a s sault u po n a n a g en t o f t h e a u t h ori ties w:ith
employment of force.
 166 CRIMINAL LAW REVIEWER
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Singie Act of Pressing the Trigger
Single act of pressing the tr i gger of a Thompson or arma ite
rifleis treated as several acts as many as there are bullets fired
from the gun. Because of special mechanism of t his fir e arm, —.he
s ingle act of pressing its t r i gger wil l c ause the continuous firi n g
of bullets. Thus, the accused is li able for as m any h o micides as
there are victims. (People v. Desierto, fCA j 45 O.G. 4542;People v.
Sanchez, G.R. No. 181116, August, 27, 1999; People v. Tabaco, G.R.
Nos. 100882-100885, March 19, 1997; People v. Vargas, Jr., G.R. No.
86'728, April 6, 1990; People v. Bermas, G.R ¹ s . 7 6 4 16and 94812,
July 6, 1999; 1999 Bar Exam)
The body of the Information charged the accused of compound
crime of murder and attempted murder since two victims were hit
by a single shot. The evidence shows that m u r der and attempted
m urder ar e separate cr imes since th e t w o v i c t im s w er e hi t b y
several shots. Under the Variance rule, if the crime alleged in the
information varies with the crime proven with evidence, the accused
shall be convicted of the crime alleged or proven, whichever is lesser
o ffense. Convicting th e accused of th e g r aver cr im e w i l l v i o l at e
his constitutional ri ght t o be i nformed of the nature of the crime
charged against him. Thus, accused shall be convicted of a complex
crime because it is a lesser offense compared to two crimes. (People
v. Bernardo, G.R. ¹. 19 8 7 89,June 8, 2018)
Complex Crime of Robbery by INeans of Violence and Intimidation
and Robbery by Using Force upon Things
In People v. Sebastian, G.R. No. L-2725, February 27, 1950,
the Supreme Court ruled that when the elements of both robbery by
means of violence and intimidation and robbery by using force upon
things are present, the accused shall be held liable for the former
since the controlling qualification is violence and intimidation.
However, the penalty for robbery in an inhabited house if the
robber is armed is as a rule graver than simple robbery. Hence, by
hurting the victim, the offender shall be penalized with a 1'ghter
penalty. In People v. Napolis, G.R. No. L-28865, February 28, 1972,
En Banc, the Supreme Court expressly abandoned the Sebastiwn
doctrine. It was held that imposing a much lighter penalty if violer ce
u pon person is u sed i n a d d i t ion t o f o r cible entry i n c o m m i t t i n g
robbery defieslogic and reason. When the elements of both robbery
by means of violence and intimidation and robbery by using force
J9JC9B0M
II. FELONIES 167
upon things are present, the crime is a complex one under Article
48 of the Revised Penal Code. Hence, the penalty for robbery in an
inhabited house shall be imposed in its maximum period. (1972 o nd
1978 Bar Exams)
In PeopLev. Disney, G.R. No. L-41836, February 18, 1983, En
Banc, and Fransdilla v. People, G.R. No. 197562, April 20, 2015, the
Supreme Court reaffirmed the Napolis doctrine.
1 . W i t h o u t U s i n g F o r c e u p o n T h i n g s — T o a p ply t h e
Napolis p r i n ciple, it i s i m p o r t a nt t h a t t h e r o b b ers entered t h e
d welling by u s in g f orce upon t h i ngs such a s u n l awful e n tr y o r
breaking the window. If the robbers entered the dwelling through
an open door or there is no showing how they entered the dwelling,
NapoLis principle will not apply since they did not commit robbery
by using force upon t h i ngs t hat can b e complexed with r o bbery
by means of violence or in t i m i d ation. In t h is s ituation, the crime
committed is simple robbery with the aggravating circumstance of
dwelling. In robbery with violence and intimidation against persons,
dwelling is aggravating since in this class of robbery, the crime m.ay
be committed without th e necessity of trespassing the sanctity of
the offended party's house. (People v. Tej ero, G.R. No. 128892, June
21, 1999; People v. Evangelio, G.R. ¹. 181 9 0 2,August 81, 2011)
This rule on appreciation of disregard of dwelling as an aggravating
circumstance is a p plicable to ro b bery w i th h o m i c ide. (People v.
Apduhan, Jr., G.R No . L-19491, August 80, 196'8; 1996, 2005, and
2014 Bar Exams)
Accused wearing fatigues barged into the residence of victim.
Once inside, they announced that they were policemen on an official
mission. Then they took the properties therein by force and killed
the victim. Robbery by force upon things is not committed because
there is no showing that accused barged into t he h ouse through
its window, or through the door after destroying the door thereof.
Neither did they pretend the exercise of authority to gain entry to the
dwelling. They were already inside the house when they announced
that they are policemen. Hence, the crime committed is robbery with
homicide with aggravating circumstances of disregard of dwelling
and craft. (1992 Bar Exam)
If the r o bbers entered a s t or e t h r ough a n o pen door, an d
then took properties therein, Napolis principle will not apply since
r obbery by u sing force upon t h i ngs is not committed. Neither i s
the Tejero or Apduhan pr i n ciple applicable since a store is net a
dwelling contemplated in A r t i cle 14. Hence, the crime committed
 168 CRIMINAL LAW REVIEWER
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is simple robbery without aggravating circumstance of disregard of
dwelling. (1986 Bar Exam)
2. R ob b e r y w it h H o m i cide —It is submitted that Napolis
doctrine is not applicable if homicide is committed by reason or on
occasion ofrobbery by means of violence or intimidation and robbery
by using force upon thing. In sum, if the elements of both robbery by
using force upon thing, and special complex crime of robbery with
homicide arepresent, the applicable rule is doctrine of absorption or
the De Leon doctrine and not the Napolis principle.
In People v. De Leon, G.R. No. 179943, June 26, 2009, in robbery
with homicide, "all the felonies" c ommitted by reason of or on the
o ccasion of the robbery by m eans of violence or in t i m i dation ar e
integrated into one and indivisible felony of robbery with homicide.
(People v. Ebet, G.R No. 1816'85,November 15, 2010; People v. Diu,
G.R. ¹ . 20 1 4 49,April 8, 2013) Hence, robbery by using force upon
things committed by r e ason of or on t h e o ccasion of the ro b bery
by means of violence or intimidation, shall form part of the special
complex crime of robbery with homicide.
Napolis case is not applicable because there is no such thing
as complex crime of robbery by using force upon things and special
complex crime of robbery with h o micide. A special complex crime
cannot be made a component ofa complex crime.
Modifyin g c i r c u m s t anc e — U su r p a t i o n o f a u t h or it y
is either a c r i m e o r a q u a l i f y in g c i r cumstance of si m ulation of
a uthority i n r o bbery by u sing force upon things. However, if t h e
accused committed usurpation of au thority t o e n ter th e dw elling
and then he committed robbery with homicide therein, usurpation of
authority shall be integrated into this special complex crime (People
v. De Leon, supra; People v. De Jesus, G.R. No. 134815, May 27 ,
2004; People v. Ebet, supra; People v. Diu, supra), and treated as an
ordinary aggravating circumstance of disguise (People v. Forneste,
G.R. No. L-82860, September 80, 1982) or craft. (People v. Borja, et
al., G.R. No. L-22947, July 12, 1979) Disregard of dwelling shall also
be considered. (People v. Apduhan, Jr., G.R. No. L-19491, August 80,
1968)
Possession of picklock is either a crime or a qualifying
c ircumstance in r o bbery b y u s in g f o rce upon t h i n gs. Bu t i f t h e
accused used picklock to enter a building, and then, he committed
r ape with h o micide th erein, th e p ossession of p i cklock shall b e
integrated into this special complex crime. (2009 Bar Exam)
J9JC9B0M
II. FELONIES 169
U nlawful e n t r y o r fo r c i bl y e n t r y i s ei t h e r a n or d i n a r y
aggravating circumstance or a qualifying circumstance in robbery
by using force upon things. In case where robbery with homicide is
committed in a dwelling after un l awful entry or forcible entry, the
crime committed is a special complex crime of robbery with homicide
with the ordinary aggravating circumstances of unlawful entry or
forcible entry (Peoplev. Baello, G.R. No. 101814, July 1, 1998) and
disregard of dwellings. (People v. Lamosa, G.R. Nos. 74291-98, May
23, 1989)
Mr. R entered the house by breaking th e w i n dow and t ook
money and jewelries therein. The owner of the house shouted "stop
or I wil l shoot," and pointed the gun at h i m, a nd cocked it. Mr. R
killed the owner. Mr. R is liable for special complex crime of robbery
with homicide since he killed the owner to maintain his possession
over the stolen properties. Robbery by using force upon thing shall be
integratedinto the special complex crime of robbery with homicide.
However, the aggravating circumstances of disregard of dwelling
and breaking the window shall be appreciated. (2019 Bar Exam)
Several Killings
Compound crime iscomposed of several crimes produced by a
single act. Thus, if there are several acts involved in killi ng several
victims, there is no compound crime. Article 48 requires a single
act producing several crimes. (People v. Toling, G.R. No. L-27097,
January 17, 1975;People v. Pineda, G.R. No. L-26222, July 21, 196'7)
When various victims expire from separate shots, such a.cts
constitute separate and distinct crimes. (People v. Tabaco, G.R. Nos.
100882-100885, March 19, 1997; 2012Bar Exam)
There are two exceptions to th e si ngle act r u le, to w i t : t h e
Lawas principle and Abella principle.
1. Si n g l e Cr i m i nal Im p u lse —In People v. Lawas, L-7618-
20, June 30, 1955, if several accused killed several victims pursuant
to a single criminal impulse to obey the order of their commander to
fire their guns at the victims, they shall be held liable for compound
crime of multiple murders.
Under Lawas case, several acts in killing several victims under
a single criminal impulse shall be considered as a single act. Herice,
it is a compound crime. However, the Lawas doctrine is more of' an
exception than a general rule. (People v. Remollino, G.R. No. L-14008,
September 80, 196'0) To apply Article 48 on compound crime, there
 170 CRIMINAL LAW REVIEWER
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must be singularity of criminal act; singularity of criminal impulse
is not written into the law. (People v. Pi neda, G.R. ¹. L - 2 6 222, July
21, 1967)
In Lawas case, the Supreme Court was merely forced to convict
the accused of a compound crime because of the i m possibility of
ascertaining the number of persons killed by each accused. (People
v. Nelmida, G.R. No. 184500, September 11, 2012) Hence, to apply
the single criminal impulse rule, the circumstance of a case must be
similar to that in La w as case. The Lawas principle should only be
applied in a case where: (1) it is impossible to ascertain the number
of deaths caused by each accused and (2) there is no conspiracy.
(People v. Hon. Pineda, G.R. No. L-26222, July 21, 1967)
When one fires his firearm in succession, killing and wounding
several persons, the different acts must be considered as distinct
crimes. The Law as is not applicable because there is only one accused,
who killed the victims. In sum, the circumstance of "impossibility of
ascertaining the number of persons killed by each accused" on which
the application of the Lawas is based is not obtaining in this case.
(People v. Remollino, G.R. No. L-14008, September 30, 1960)
The Lawas d octrine s hould n ot a l s o be a p plied if t h e re i s
conspiracy since th e n u m ber o f v i c t im s a ctually k i l l e d b y e a ch
conspirator is not anymore material. (People v. Elarcosa, G.R. No.
186539, June 29, 2010)
The Emit pr i n c iple should not be c onfused with t h e L a w a s
principle. In Emit, several acts of killing under the single criminal
impulse to kill were treated as delito continuado. In Lawas, several
acts of kill ing u n der a si n g le crimin al i m p u l se to obey the order
of their commander w e re t r e a ted as a s i n g le a ct c onstituting a
compound crime. As discussed above, Emit is already an abandoned
principle. On the other hand, Lawas is still controlling rule provided
there is no conspiracy and it is impossible to ascertain the number
of deaths caused by each accused.
2. S i n gle Criminal Purpose —In People v. Abella, G.H.
No. L-32205, August 31, 1979, if s everal p r i soners ki l led fellow
prisoners pursuant to a si n g le crimin aL purpose to take revenge,
they shall be held liable for compound crime of multiple murders.
In sum, under the Abella ru le, several acts in ki l l i ng several
victims under single criminal purpose shall be considered as a single
act. Hence, it is a compound crime. However, the Abella doctrine
J9JC9B0M
II. FELONIES 171
is more of an exception than a g eneral r u le. To apply A r t i cle 48
o n compound crime, t h ere m us t b e s i n gularit y o f c r i m i nal a c t ;
singularity of criminal purpose is not written into the law.
In Abella case, the Supreme Court convicted the accused ef a
compound crime because of the plight of th e pr isoners. Hence,, to
apply the single criminal purpose rule, the circumstance of a case
must be similar to that in Ab ella case. The Abella principle should
only be applied in a case where (1) there is conspiracy and (2) the
killings where perpetrated by prisoners against fellow prisoners.
To apply the Lawas principle, it is important that the re is no
conspiracy. However, to apply the Abella, there must be conspiracy
that animates several persons to commit c r i mes under a s i n gle
criminal purpose.
The "single purpose rule" was adopted in consideration of the
plight of the prisoners; hence, it is only applicable if the offenders
committed th e c r i mes i n p r i son a g ainst t h ei r f e l low p r i soners.
(People v. Pincalin, G.R. No. L-38755, January 22, 1981; People v.
Nel mida, supra)
T he killing of soldiers in th e M a m asapano incident will n o t
c onstitute compound cr im e o f m u l t i pl e m u r d ers. Since th ere i s
implied conspiracy as shown by the concerted actions in the kiH.ing
of the soldiers, the La was doctrine, which treats kill i n gs under a
single criminal i m p u lse as a compound crime, is not a p plicable.
Since the killings were not perpetrated by prisoners against fellow
prisoners, the AbeLla doctrine, which treats killings under a single
criminal purpose as a compound crime, is not applicable.
COM P LEX CRIME PROPER
Complex crime proper is composed of two or more crimes one or
some of which are necessary means to commit the other.
Indispensable m eans i s n o t w i t h i n t h e c o n t emplatiori of
the phrase "necessary means" in A r t i c le 48. A c ri m e, which is an
indispensable means to commit another crime, is an element of and
absorbed by the latter. (David v. People, G.R. No. 208320, August 19,
2015) Thus, one, who committed murder, which is an indispensable
means to commit treason, is not liable for complex crime of treason
through murder. The crime committed is only treason, while murder
is absorbed therein. (People v. Labra, G.R. No. L-886, August 10,
1948)
 172 CRIMINAL LAW REVIEWER
VOLUME I
Means to conceal a crime is not within the contemplation of the
phrase "necessary means to commit a crime" in Article 48. One, who
committed arson toconceal homicide, is liable for separate crimes
of homicide and arson and not a complex crime proper of homicide
through arson. (People v. Be r sabal, G . R. N o . 24 5 82 D e
b
11 , 1925) An accountable public officer, who falsified vouchers to
conceal the crime of malversation, is liable for two distinct crimes of
falsification of public document and malversation, and not a complex
crime proper of m a l v ersation t h r ough f a l sification of d ocument.
(People v. Sendaydiego, G.R. ¹s . L- 8 3 252-54, January 20, 1978
) misappropriate constitute a complex crime of malversation through
Seduction Through Usurpation of Function
In U.S. v. He rnandez, G.R. No. L-9405, December 24, 1914,
accused who seduced a 15-year old girl to live with him by procuring
t he performance of a fi ct i t i ous marr i age cerem o ' th th h I
o i s r i e n d , who pretended to be a Protestant minister, was held
liable for th e complex crime pr oper of si mple seduction th r ough
usurpation of official function. Usurping the function of a priest to
solemnize marriage is a necessary means to seduce a minor. (1985
Bar Exam)
Th
he case ofHernandez was decided prior tothe effectivity of
the Revised Penal Code. At that t i me, a religious official such as a
i shop is a person in authority wit hin the purview of th O l d P
I
o e. (U.S. v. Smith, G.R. Ão. 14057, January 22, 1919) However,
Article 152 of the Revised Penal Code does not include religious
minister as a person in authority. Hence, performing the function
o a r e l i gious mi ni ster i n s o l emnizing m a r r i age is not an y m o re
constitutive of usurpation of official function of a person in authority
under Article 177 of the Code.
It is submitted that the crime committed in Hernandez case is
now illegal marriage under Arti cle 350 of the Revised Penal Code
with the qualifying circumstance of fraud.
Falsification, Malversation, Estafa, and Theft
If falsification of document is a means to commit or to conceal
ma versation,estafa, or theft,the following rules shall be observed:
1. Complex
o crime — Wh e n t he o ffender commits falsifi-
cation of document as a n ecessary means to commit malversation,
estafa,or theft the cri
'me committed is a complex crime proper under
J9JC9B0M
II. FELONIES 173
Article 48 of the Revised Penal Code. (Tanenggee v. People, G.R. Ão.
179448, J'une 26, 2018; Intestate Estate of Gonzales v. People, G.R.
No. 181409, February II, 20 1 0; Arnbito v. People, G.R. No. 127827,
February 13, 2009; David v. People, G.R. ¹. 208 8 2 0,August 19,
2015; 1950, 1961, 1986, and 1998 Bar Exams)
If a public officer falsified a public document to defraud th e
government, his liability will depend on the nature of his position.
If the accused is an accountable officer, e.g., tax collector, falsifydng
the document and using it to fraudulently collect tax payment and
falsification of document. (People v. Bcrbas, G.R. No. 41265, July
27, 1934) If th e accused is not an a ccountable public officer, e.g.,
payroll officer, falsifying a document and u sing it t o de f raud t h e
government constitute complex crime of estafa by f alse pretense
through falsification of document. (Ilumin v. Sandiganbayan,!(3.R.
¹. 8 5 6 67,February 28, 1995)
If a bank officer falsified commercial documents to defraud the
bank, his liability w il l depend or th e nature of his position. If the
accused is apresident of the bank, and he made a fictitious loan by
falsifying loan application and. promissory note, and misappropriated
the proceeds thereof,he is liable for a complex crime of estaf'a by
misappropriation th r o ugh f a l s ification of c o m mercial d ocunients
since he has obligation to administer the bank fund in a fi duciary
capacity. (People v. Go, G.R. No. 191015, August 6, 2014; Soriano
v. People, G.R No. 162886, February I, 20 10) If the accused i;s an
officer of the bank o ther t h an th e pr esident, e.g., bank m anager,
and he made a fi cti ti ous loan by f al sifying promissory note, and
the check, he is liable for complex crime of estafa by means of, false
pretense through falsification of commercial documents. (Tanenggee
v. People, G.R. No. 179448, June 26, 2013)
If a b an k e m ployee stole blank cashier check, falsifieclI. the
authorized signatory of the check, and received money from the lbank
through deceit by presenting the falsified check for encashment, he
is liable for a complex crime of qualified theft through falsification of
commercial document. Deceit shall be considered as a continuation
a nd nat u ra l d e v elopment o f t h e t h e f t , which wa s p r e v iously
committed. (People v. Salonga, G.R. No. 181181, June 21, 2001)
2 . S ep a r a t e c ri m e s — Wh e n t h e of f e n d er c o D !mits
falsification of document as a means to conceal malversation (People
v. Sendaydiego, G.R. Nos. L-83252-54, January 20, 1978; People v.
 174 CRIMINAL LAW REVIEWER
VOLUME I
Villanueva, G.R.No. 89047, October 81, 1938, En Banc; 1958, 196'4,
and 1988Bar Exams); estafa (People v. Monteverde, G.R ¹. 13 9 6 '10,
August 12, 2002; People v. Benito, G.R. No. 86979, November 28,
1982; 1955 Bar E xam); or t h e ft, t he c rimes are separate. This is
not a complex crime proper since falsification of document is not a
necessary means to commit malversation, estafa, or theft.
3. Com m o n e l e m ent d o c t r in e — Un d er t he Doctrine of
Common Element, an element used to complete one crime cannot
be legallyre-used to complete the requisites of a subsequent crime.
(Regalado) The c o m mon element of estafa and falsi. fication of
private document is damage to the complainant. Thus, falsification
of private document and estafa cannot co-exist. The use of damage
as an element of falsification of private document precludes the re-
use thereofto complete the elements of estafa, and vice versa.
Tbhere is no complex crime of estafa thr ough falsification of
private document since a complex crime presupposes the existence
of two or more crimes as components thereof wh ile under commo
el
e ement doctrine there is only one crime, either estafa or falsification
of private document. (1955 and 1984 Bar Exams)
I f the falsification of a p r i v ate document (demand letter) i s
committed as a means to commit estafa,the proper crime to be
charged is f a l sification. (B a tulanon v. Pe ople, G.R. ¹ . 1 898 5 7 ,
September 15, 2006) The use of damage as an element of falsification
of private document precludes the re-use thereofto complete the
elements of estafa. (see: U.S. v. Chan Tiao, G.R. No. 12609, October
80, 1917; People v. Reyes, G.R. No. L-34516, November 10, 1981;
1957 and 2008 Bar Exams)
Where falsification of private document is only conimitted as
a means to conceal estafa, the crime is estafa only. Falsification of
private document is not committed because: (a) the use of damage
as an element of estafa precludes the reuse thereof to complete the
elements of falsification of p r i v ate document; (b) th e d a mage to
third person is not caused by the falsity in the document but by the
commission of estafa (see: People v. Beng, 40 O.G. 1918); and {c) the
estafa can be committed without the necessity of falsifying a private
document. (Batulanon v. People, supra; 1972Bar Exam
) the penalty is that corresponding to the most serious offense, 'to be
If fal sification
'fi of pr iv ate document was used as a. means to
commit estafa, the former was committed ahead of the latter; hence,
falsification of private document absorbs damage as an element of
J9JC9B0M
175
II. FELONIES
estafa. If falsification of private document was used as a means to
conceal estafa, the latter was comm tted ahead of the former; hence,
estafa absorbs damage as an element of falsifi cation of private
document.
The common element doctrine is not applicable to falsification
of public, official or commercial document as a means to commi.t or
to conceal estafa, malversation or theft. Damage is not an elemerit of
falsification of public, official or corr mercial document. Hence, there
is no element common to both crimes.
Common element doctrine is not applicable to falsification of
private document as a means to commit or to conceal malversa:tion
or theft. W h il e d a mage is a n e l ement of f a l sification of pr i v a te
d ocument, the same is not a n e l ement of m a l versation or t h eft .
Hence, there is no element common to both cr i mes. In Zo l eta v.
Sandiganbayan,G.R. No. 185224, July 29, 2015, the Supreme C ourt
did not apply the doctrine of "common element" and convicted, the
accused of complex crime of malversation thr ough falsification of
private document. In this case, the Governor caused the falsification
o f request for fi n ancial assistance, a pr ivate document, which i s
a necessary means t o c o m mi t m a l v ersation s i nce t hi s f a l sIfied
request was used tocause the release of public money to a fictitious
beneficiary.
In sum, th e common elemer.t doctrine is only applicable to
falsification of private document as a means to commit or to conceal
estafa.
SPECIAL COMPLEX CRIME AND COM P LEX CRIME
Special complex crime and complex crime are distinguished as
follows:
(1) I n a special complex crime, the composition of the offenses
is fixed by law; in a complex or compound crime, the combination of
the offenses is not specified but generalized, that is, grave arid/or
less grave, or one offense being the necessary means to commi:t the
other;
(2) . For a special complex crime, the penalty for the specified
combination of crimes is specific; f'o r a complex or compound crime,
imposed in the maximum period; and
(3) A l i ght felony that accompanies a special complex crime
is absorbed; a light f elony that accompanies the commission of a
 176 CRIMINAL LAW REVIEWER
VOLUME I
complex or c ompound cr im e m a y b e t h e s u b ject of a s e p arate
information. (People v. Villaflores, G.B. ¹. 18 4 9 26,Apr/,l 11, 2012;
People v. Salga, G.A. 1V o.288384, July 28, 2018; 2005 Bar Exam)
I n the course of having sexual intercourse through force t h e
v ictim died.
ie . Th i iss si n g l e ac t o f h a v in g sexual i n t ercourse, which
p roduced ra pe an d h omicide, constitutes a complex crime un der
Article 48 of the Revised Penal Code and a special complex crime
underr Articlei c e 266-B.
- . H o w e v er, the offender cannot be prosecuted
under both provisions. It is a settled rule on statutory construction
onflict between general provision and specific
provision, the latter shall prevail over the former. Article 266-B on
s pecial complex crime of rape with homicid
omici e is' a speci fic provision
h'1 Ar
while '
Article 48 on
on ccomplex crime is a general provision. Hence, the
rapist must be held liable for special complex crime of rape with
homicide under Article 266-B.
Special complex crime is composed of two or more crimes
where the law prescribes as single penalty. The essence of a special
complex crime is the singularity of t he penalty prescribed by law
although there is more than one crime committed. Compound crime
is composed oftwo or more grave or less grave felonies produced by
a sing e act. The essence of a compound crime is singularity of the
act although there is more than one crime produced.
Unlike a c orn pound cr i m e, s pecial complex c r im e ca n b e
committed even though its components are not produced by a single
act, e.g., robbery with rape is a special complex crime although they
are notproduced by a single act.
Unlike in a corn plexc r ime proper, specialcomplex crime can
be committed although its secondary component is not a necessary
means to commit its principal component, e.g., robbery with rape is
a specia complex crime although rape isnot
no a necessary means to
commit robbery.
DOCTRlNE OF ABSORPTION
U nder the classical theory, on which the Revised Pena Co e
'p y ase d , a man is essentially a moral cre t
a ure wi
u e y free will t o choose between good and evil. If d e th an
absolutel
a n ev i . espite of
s uch free will
i, hh e s t il l commits an evil act prohibited b I
will penalize him a s a me a s ure o f r e t r i b ution. A c r i m, i n
State will
should therefore be adjudged on th b ' f h'
andnnot
an o t oon
n t h e n u m ber of acts he committed in f u r t h erance of a
J9JC9B0M
II. FELONIES 177
, single criminal mind. Despite the plurality of his acts, if his criminal
intent is singular, retributive justice of "an eye for an eye, a too'th
for a tooth" is served by imposing upon him a single penal sanction.
Crimes under th e R evised Penal Code are ma la in se, tjhe
concept of which gives importance to criminal intent or mens rea,of
the offender. Thus, the number of criminal intent and not the number
of crimes committed generally determines the number of penalties
to be imposed for multiple crimes. Multiple crimes committed by the
same offender under a single criminal im pulse are treated as one
crime and punished with a single penalty. Thus, a single penalty is
being imposed for multiple crimes with single criminal intent, whj.ch
are merged to form a compound crime, complex crime proper, delito
continuado, or absorbing crime.
The "one penalty for one criminal min d" ru le is also based on
the "absorption system,"which is one of the three systems of penalty,
under which lesser penalties are absorbed by the greater penalties.
One of the r u les t hat r e quires imposition of single penalty
for multiple crimes is the doctrine of absorption, under which one
crime absorbs another if the latter is inherent in, an element of, or
a necessary consequence of the commission of the former. A crime
is considered inherent wh ere it s commission is an i n d i spensa.ble
means to commit another.
If two crimes are subject tothe doctrine of absorption, the
p rincipal crime w il l a b sorb th e secondary crime. Th e court c an
neither convict the accused for these two crimes because of the rule
on double jeopardy nor combine them to form a complex crime to
increase the penalty. (People v. Prieto, G.R. ¹. I; 8 9 9 , Jan uary29,
1948)
E lement of a Crim e
A person who by means of violence coerces a lady to have sexual
intercourse with him should not be held liable for physical injuries
and coercion in a ddition t o r a pe. Physical injur ies are necessary
consequence of the employment of violence, which is an element of
rape, while coercion is inherent t h erein. Hence, physical injuries
and coercion are absorbed in rape.
ha l
The essentialelements ofa given crime cannot be disintegrated
in different,
parts,each one to stand as a separate ground to convict
the accused of a different criminal offense. The elements constituting
 178 CRIMINAL LAW REVIEWER
VOLUME I
a given crime are i n t e gral a nd i n s eparable parts of a w h o l e. In
c ontemplation of law, they cannot be used for double or mu l t i pl e
purposes. They can only be used for the sole purpose of showing the
commission of the crime of which they form part. (P
l .L b
G .R. ¹ .o. L -886,
- 8 August 10, 1948) The nature of a crime, which
c ontains criminal components, does not endow it with th f t'
i e u n c i o n a1
a i ity of worm multiplication or amoeba reproduction.
Treason and Other Crimes
L evying wa r a g a i nst t h e g o v ernment i n a d h e r ence t o i t s
enemy is the first mode of committing tr eason. Killing soldiers of
the government is an inherent means to levy war. Adherence to the
enemy by giving aid and comfort is the second mode of committ'
c ommi i n g
trreason. Investigating guerillas and torturing them is giving aid and
comfort tothe Japanese imperial army. Since murders of soldiers
and guerillas are inherent means to commit tr eason, the former is
absorbed in the latter. (People v. Labra, supra)
Rebellion and Other Crimes
The wo rd " r e b ellion" e vo kes n ot o n l y a ch a l l e nge to t h e
constituted authorities, but also civil war on a bi
r, on a ig ger or esser
1 scale,
1,
with all th e evils that go with it . I t c onnotes necessarily, or even
generally, either p hysical inj u r ies, or m u r d er. Wh ere th e cr im es
of murders, robbery, and kidnapping are committed as a means
to or in f u r t h erance of th e r ebellion charged, they are absorbed
by, and form part and parcelof,the rebellion, and that therefore,
t e accused can be convicted only of the simple crime of rebellion.
They cannot be convicted of a co mplex crime proper of r e bellion
wit murders, robbery,and kidnapping. (People v.Hernandez, G.R.
Nos. L-6025-26, July 18, 1956; 1962 Bar Exam) Neither can they be
convicted of compound crime of rebellion with murder, e.g., single
act constituting rebellion and murders. Hernandez remains binding
d octrine operating t o p r o h ibi t t h e c o mplexing of r e bellion w i t h
any other offense committed on the occasion thereof, either as an
indispensable means to its commission, e.g., killing soldiers, or as an
unintended effect of rebellion, e.g., unintentional killing of civilians.
(Enrile v. Salazar, G.R. No. 92163, June 5, 1990)
If mur
murder, kidnapping and arson are committed in furtherance
of rebellion, th e y will be divested of th eir ch aracter as common
crimes and will assume the political complexion of rebellion. Hence,
accused cannot be prosecuted for m u r d er, k i dnapping and ar son
J9JC9B0M
II. FELONIES 179
separately or c omplexed wit h r e b ellion. Rebellion absorbs these
common crimes. (People v. Geronimo, G.R. No. L-8986, October 28,
1956)
If murder is committed for private purposes or if robbery or
kidnapping is committed for profit without any political motivation,
even though these common crimes are simultaneously committed
with rebellion, the doctrine of absorption will not apply. (People v.
Geronimo, supra; People v. Hernandez, supra; 2001 Bar Exam)
The penalty for rebellion is lesser compared to that for murder
and kidnapping for ransom. To avail of the lesser penalty of rebellion,
the accused must prove political motivation in th e commission of
murder or kidnapping for ransom. The burden of proof lies on the
accused. (People v. Ompad, Jr., G.R. ¹s . 9 8 7 80-81,June 10, 1994)
If the crime is politically motivated, the accused will be convicted of
rebellion. Otherwise, they will be convicted of murder or kidnapping
for ransom.
Membership in communist organization such as CPP-NPA or
secessionist group such as MILF would not by and of itself suffice to
establish political motive in committing murder (People v. Lovedioro,
G.R. ¹ . 11 2 2 85,November 29, 1995;1990Bar Exam) or kidnappIng
for ransom. (People v. Solongan, G.R. ¹. 13 7 1 82,April 24, 2008')
However, political m o t i v ation w a s e s t ablished w h e r e ; t;he
accused is a member of NPA and the victim is a military informant
(People v. Manglallan, G.R. No. L-88588, April 15, 1988) or where
the accused is a member of liquidation squad such as sparrow unit
of the NPA and the victim is a governor (People v. Avila, G.R. No.
84612, March 11, 1992; 1998 Bar Exam) or a police officer. (Peop/e v.
Dasig, G.R. No. 100281, April 28, 1998) In the absence of personal
motive to kill th e vi ctim, it can be assumed that th e g overnme
nt
officer killed is in the liquidation list.
However, even t h ough m u r der i s p o l i t ically m o t ivated, th e
court will not convict him of rebellion if the accused did not claim
political m otivation t o a v ai l o f t h e l e sser penalty fo r r e bellion.
(People v. Ompad, Jr., G.R. Nos. 98780-81, J'une 10, 1994)
C oup d' etat and Other Cr i m e s
Coup d' etat is a political crime because the purpose of coup
plotters is to seize or diminish State power. If murder, kidnapping
and arson are committed in furtherance of coup d' etat, they will
 180 CRIMINAL LAW REVIEWER
VOLUME I
b e divested of their character as common crimes and will assume
the political c omplexion o f c oup d' etat. He nce,
accused cannot
e prosecuted for murder, kidnapping and arson separately or
complexed wit h c oup d' etat. Coup d' etat absorbs these common
crimes. (Gonzales v, Abaya, G.R. No. 164007, August 8, 2006,
concurring opinion byJustice Callej o; 19 98 Bar Exam)
S edition and Other Cr i m e s
In People v. Hadji, G. R. No. L- 12686, October 24, 1963, En
Banc, there is neither law nor jurisprudence which will uphold the
accused's claim that acts of violence like murder and k i dnapping
are absorbed by sedition. The absorption principle in th e cases of
Hernandez and Geronimo cannot properly beinvoked as authority
for that legal proposition since those two cases involved the crime of
rebellion and not sedition. (1978 Bar Exam)
In People v. Ca b rera, G . R. N o. 1 7 5 5, M a r ch 4 , 1 9 2 2, t h e
a ccused were convicted for s e dition i n a d d i t ion t o m u r d e r a n d
serious physical injuries. The rule on double jeopardy is not violated
since these crimes are not identical. The gist of the information for
sedition is the public and tumultuous uprising of the constabulary
in order to attain by force and outside of legal methods the object of
infiicting an act of hate and revenge upon the persons of the police
orce of the city of Manila by firing at them in several places in the
city of Manila; the gist of the informations for murders and serious
p ysical inj u ries are t hat t h e C onstabulary, conspiring together,
illegally and criminally k i l led eight persons and gravely wounded
three others. The crimes of murd er a nd serious physical injurie s
were not necessarily included in the information for sedition; and
t e defendants could not have been convicted of these crimes under
the first information.
In People v. Umali, G.R. No. L-5803, November 29 1954
the accused were convicted of sedition, m u l t i ple m u r d er, arson,
frustrated murder, and physical injuries.
Persons who committed robbery with homicide and carnapping
in the course of sedition can be held liable separately for these three
crimes. (see: 201 7 Bar Exam)
Robbery and Kidnapping
If th e a c c used c o m m i t te d r o b bery, b u t th e r e after, t h e y
etained the victims to forestall their capture by the police the
J9JC9B0M
II FFLONIES 181
crime committed isrobbery only. Robbery absorbs kidnapping and
serious illegal detention. The detention was only incidental to the
main crime of robbery, and although in th e course thereof women
and children were also held, that threats to kill were made, the act
should not be considered as a separate offense. (People v. Astor, G.R.
Nos. L-71 765-66, April 29, 1987; 2013 Bar Exam)
If the accused committed robbery, but thereafter, they detained
the victims to demand additional money, and later on to forestall
their capture by the police, the crime committed is complex crime
of robbery through ki dnapping and serious illegal detention. The
detention was availed of as a means of insuring the consummation
of the robbery. The detention wa,s not merely a matter of restraint to
enable the malefactors to escape, but also to deliberate as a means
of extortion for an additional amount. Hence, the Astor principle is
not applicable. (People v. Salvilla, G.R. No. 86168, April 26, 1990)
If th e accused committed r obbery by b a nd, bu t t h e r eafter,
they took one of the victims and detained him for seven days in
another place for the purpose of demanding ransom, they are liable
for separate crimes ofrobbery by band and kidnapping for ransom.
(People v. Basao, G.R No. 189820, October 10, 2012; 1962 Bar Exam)
Abduction and Mu l t i ple Rapes
I f th e v i c ti m w a s a b d ucted an d r a pe d s everal t i m es„ t h e
following rules shall be observed:
1. P r in c i p a l Objective Is to Rape —If the main objective
of the accused is to rape the victim, the crime committed is rape.
Forcible abduction (People v. Me joraday, G.R. No. 10 2705, Ju l y
30, 1998; People v. Almanzor, G.R. No. 124916, July 11, 2002) or
illegal detention (People v. Nuguid, G.R N o . 14 8991, January 21,
2004), which is incidental to the commission of rape, is absorbed.
The doctrine of absorption rather than Ar t i cle 48 of Revised Penal
Code is applicable since forcible abduction or illegal detention:is an
indispensable means to commit rape.
AAA lived r ent-free in a h o use owned by accused. Accused
intercepted AAA at th e garage area and held a k n ife to her back
and draggedher to his room and raped her. Shortly after,police
authorities arrived; but accused refused to release her and detained
her for a period of time. Although the initial (forcible) abduction of
AAA may have been absorbed by the crime of rape, the continued
detention of AAA after the rape cannot be deemed absorbed in it.
 182 CRIMINAL LAW REVIEWER
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Likewise, since the detention continued after th e r ape had been
completed, it cannot be deemed a necessary means for the crim e
of rape. Hence, the accused isconvicted of rape and slight illegal
detention. (People v. Concepcion, G.R. ¹. 214 8 8 6',April 4, 2 0 18)
Note: The qualifying circumstance in serious illegal detention that
the person detained is a female is not alleged in the information.
If the accused committed robbery, and thereafter, detained the
victim to prevent the policefrom arresting them, robbery absorbs
serious illegal detention for being incidental. (People v. Astor, G.R.
No. L-71765-66, April 29, 1 987, Second Division) H owever, if t h e
a ccused committed r ape, and t h e reafter, detained th e v i cti m t o
prevent the police from arresting him, he is liable for two crimes, to
wit: rape and illegal detention. (People v. Concepcion, supra)
Astor case and Concepcion case cannot be reconciled. However,
or purpose of the bar e x amination, if t h e a ccused detained the
robbery victim forpurpose of preventing the police from arresting
him, Astor case must be followed. On the other hand, if the accused
detained the rape victim for purpose of preventing the police from
arresting him, Concepcion case must be followed.
2. A bd u c t i o n w it h L e w d D e sign — If f o rcible abduction
is anecessary means to commit rape, this is a complex crime proper
under Article 48 of the Revised Penal Code. However, i f mul t i p le
rapes were committed, forcibleabduction will be considered as a
necessary means to commit the fi rst r ape but not th e subsequent
rapes. Hence, with respect to the first r a pe, the crime committed
is complex crime proper of rape through forcible abduction, while
the subsequent rapes willbe treated as separate crimes. (People v.
Jose, G.R. No. L-28282, February 6, 1 971; People v. Garcia, G.R.
No. 141125, February 28, 2002, En Banc; People v. Amaro, G.R. 1Vo.
199100, July 18, 2014; 2000, 201 7; and 2019 Bar Exams)
As a r u le, forcible abduction i s a n i n d i spensable means to
commit rape; hence, the latter absorbs the former. However, if the
victim was brought in a house or motel or in a place with considerable
distance from the place where she was abducted, forcible abduction
will be considered as a necessary means to commit rape; hence, the
crime committed is a complex crime proper.
With a promise of reward, Robert asked Romy to bring him a
young girl that he (Robert) can have carnal knowledge with. Romy
agreed, seized an eight-year old gir l a n d b r ought her t o R obert.
After receiving his r e ward, Romy left w h i le R obert p roceeded to
J9JC9B0M
II. FELONIES 188
have carnal knowledge with th e gi rl . (2018 Bar E x am) Since the
victim is under 12 years of age, having sexual intercourse with laer
constitutes statutory r ape. Abducting a w oman w it h l ew d design
constitutes forcible abduction a l t h ough onl y R obert e n t ertained
such lewd design. In forcible abduction, it is enough that at l east
one ofthe offenders entertained lewd design in order to convict all of
them of forcible abduction. (People v. De Lara, G.R. No. 124708, June
27, 2000) However, since forcible abduction is a necessary mean, to
rape the victim,offenders are liable for a complex crime proper.
3. I nt e n t t o D e p r i v e L i b e rt y — If t h e a ccused abducted
the victim w i t h out clear m a nifestation of l ewd design, the crime
committed is kidnapping and serious illegal detention since it will
appear that theintention of the accused is to deprive the victim of
her liberty. If in the course of illegal detention, the victim was raped,
the crime committed is a special complex crime of kidnapping with
rape. This is the crime committed regardless of the number of rapes.
Multiple ra pes will be c onsidered as a component of th is s pecial
complex crime. (People v. Anticamaray, G.R. No. 178771, June 8,
2011; People v. Mirandilla, Jr., G.R. ¹. 18 6 41 7,July 27, 2011; 2018
Bar Exam) If in the course of illegal detention, the victim was raped
and then killed, the crime committed is a special complex crime of
kidnapping with h omicide. Rape will be considered as component
of this special complex crime. Hence, accused is liable of special
complex crime of k i d n apping wit h h o m i cide and r ape. (Peop/e v.
Larranaga, G.R. Nos. 188874-75, February 3, 2004)
V ictim r ejected her suitor b eing i n l ov e w it h a n other m a n .
Angered, the suitor with his friend abducted her and her sister. They
brought them in an abandoned warehouse where they forced them
to dance naked. Thereafter, they brought them to a hill where they
took turns raping them. After satisfying their lust, one of the victims
was pushed down to a ravine, resulting in her death, while the other
was never seen again. With respect to the first victim, the crime com-
mitted is a special complex crime of kidnapping with homicide and
rape. Settled is the rule that kidnapping with homicide is committed
if the victim is k i l led in th e course of the abduction regardless of
whether the killing was purposely sought (original design is to kill)
or was just an afterthought (original design is to rape). Rape willi be
treated as a component of this special complex crime. Hence, accused
are liable of special complex crime of kidnapping with homicide and
rape. With respect tothe second victim, the accused are liable for
kidnapping with rape. They are not liable for homicide since there is
 184 CRIMINAL LAW REVIEWER
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no evidence that the second victim died. (People v. Larranaga, supra;
2006 Bar Exam)
The difference between rape through forcible abduction and
kidnapping with rape lies on the criminal intention of the accused at
the precise moment of abduction. If the abduction is committed with
lewd design, the crime committed is complex crime proper of rape
through forcible abduction. Subsequent rapes will be considered as
separate crimes. On the other hand, if the abduction is committeil
without lewd design, the crime committed is special complex crime
of kidnapping with r a pe. Subsequent rapes will be considered as
components of thi s special complex crime. (People v. M i r a n d il l a ,
Jr., G.R No. 18 6417, July 27, 2 011) Even though the victim w a s
detained for one week and in the course thereof, she was raped, the
crime committed iscomplex crime proper of rape through forcible
abduction if the abduction is committed with lewd design. (People v.
Amaro, G.R. No. 199100, July 18, 2014; 2000 Bar Exam)
If the accused was molesting th e v i c ti m i m m e diat l
i ae y aft e r
a u c t i on, this circumstance is a proof that abduction is committed
abdu
with lewd design. (People v. Jose, supra) After eating the food given
by the accused,the victim became dizzy and thereafter, she passed
o ut. When she regained consciousness, she, noticed that she an d
the accused were naked inside a room. She was raped and detained
for six days. The crime committed is complex crime proper of rape
through forcible abduction. (People v. Amaro, supra
)
Aggravating or Qualifying Circumstance
One who enters an inhabited house by using picklock and takes
properties therein without consent of its owner should not be held
liable for illegal possession of picklock and trespass to dwelling in
addition to robbery in an inhabited house. Use of picklock to enter
into a dwelling is a constructive force upon things that will qualify
the taking into robbery in an inhabited house. Since use of picklock
and entry in dwelling are elements of robbery by using force upon
things, illegal possession of picklock and tr espass to dwelling are
absorbed in robbery.
Simulation of authority constitutes the crime of usurpation of
authority or function under Article 177 of the Revised Penal Code,
qualifying circumstance of simulating public authority in kidnapping
under Article 267, qualifying circumstance of pretending the exercise
of public authority in robbery by using force upon th'
i ngs i-n A r t i' cI e
299, an
and aggravating circumstance of disguise under Article 14.
J9JC9B0M
II. FELONIES 185
If theaccused pretended that he is a police officer to facilitate
t he commission of k i d n apping, si m ul ation o f a u t h or it y w i l l b e
considered as q u alifying c i r cumstance. Ki dnapping an d s e rious
illegal detention absorb usurpation of authority.
If the accused pretended that h e i s a p o l ice officer, and. by
reason thereof, he was able to enter the building and take property
therein, simulation of authority w ill be considered as a qualifying
circumstance. The crime committed is robbery by using force upon
things (People v. Ur b ano, G.R. Nos. 26804 and 26 805, March 5 ,
1927), and usurpation of function is absorbed therein.
If the accused pretended that he is a police officer to facilit,ate
in raping the victim, simulation of authority may be considered as
disguise, which is an or dinary aggravating circumstance in rape.
(People v. Forneste, G.R. No. L- 82860, September 80, 1942) Rape
aggravated by the circumstance of disguise absorbs usurpation of
authority.
When trespass to dwelling is a direct means to the commission
of a graver offense such as homicide or rape, the minor offense yields
to the principal one. Thus, homicide or rape and trespassing will not
be considered as a complex crime. The crime committed is homicide
or rape while trespassing is regarded only as an aggrava,ting
circumstance of disregard of dwelling. (People v. Abedosa, G.R No.
28600, March 21, 1928; 1968 and 1994 Bar Exams)
Incidental to the Commission of Principal Crime
Crime is absorbed if it is a mere incident in the commission of
another crime.
T he a c cused, w h o st r u c k t h e off e n de d p a r t i e s while
simultaneously threatening to k il l t h e m i f t h ey w ould. not return
him the jewelry they have lost, was held liable for slight physical
injuries. The threat was considered as part of the assault. (U.,S. v.
Sevilla, G.R. No. 457, February 18, 1902)
In People v. Yebra, G.R. No. L-14348, September 30, 1960, it was
held that defamatory statement (e.g., fooling the barrio) in a letter
containing threat to kill is not a separate crime. The defamation was
just a part of the crime of threat. The letter containing the libelous
remarks is more threatening than libelous; the intent to threaten is
the principal aim and object of the letter. The libelous remark.. are
merely preparatory remarks culminating in the final threat.
 186 CRIMINAL LAW REVIEWER
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Offenses Under Special Laws and Doctrine of Absorption
Doctrine of absorption is applicable to offense punishable under
special law. Thus, rebellion absorbs obstruction of justice under P.D.
No. 1829 (Enrile v. Amin, G.R. No. 93335, September 13, 1990) and
rebellion or coup d' etat absorbs illegal possession of loose firearm
(Section 29 of R A . N o . 10 591) or explosive. (People v. Rodriguez,
G.R. No. L-13981, April 25, 1960; 1990 and 1998 Bar Exams)
U nder Section 1 of P .D . No . 1866 as amended by R.A. N o .
8249, sedition would absorb illegal possession of unlicensed firearm.
However, under R.A. No. 10591, which has repealed Section 1 of
P.D. No. 1866, illegal possession of loose firearm will be considered
as qualifying c i r cumstance i n s e d i t ion. Th e p e n alty f o r i l l e gal
possession of loose firearm is higher than that for sedition. Hence,
the accused will be prosecuted for sedition, and the graver penalty
prescribed under R.A. No. 10591 shall be imposed. In sum, using
loose firearm s h al l b e c o nsidered as a q u a l i f y in g c i r cumstance
because it will change the penalty for sedition. Qualified sedition
absorbs illegalpossession of loose firearm.
However, the doctrine of absorption will not apply to:
1. Su i g e n e ris (e.g., coup d' etatcannot absorb mutiny
under the A r t i cles of War fo r b e ing sui ge neris; Baylosis v.
Chavez, G.R. No. 95236, October 3, 2991; Gonzales v. Abaya,
G.R. No. 164007, August 10, 2006);
2. Ca r n a p p in g ( e . g ., r obbery w i t h ho m i c i d e
or
kidnapping cannot absorb carnapping; People v. Muit, G.R. No.
181043, October 8, 2008; People v. Dela Cruz, G.R. No. 1 74658,
February 24, 2009; People v. Roxas, G.R. No. 172604, August
1 7, 2010; 2009 Bar Exam); and
3. To r t u r e (under Section 15, R.A. No. 9745, torture as
a crime shallnot absorb or shall not be absorbed by any other
crime or felony committed as a consequence, or as a means in
the conduct or commission thereof).
Identical Crim es
When an offense proven by evidence necessarily includes or
is necessarily included in th e offense charged in th e i nformation,
both crimes shall be considered as identical. Identical offenses are
required to apply the variance rule (Section4,Ru le120 oftheR evised
Rules of Criminal Procedure) and the rule on double jeopardy while
J9JC9B0M
II. FELONIES 187
non-identical offenses are needed to apply the rules on substitution
of information. (Section 14, Rule 110 of the Revised Rules of Criminal
Procedure)
1. V a r i a nce Rule and Double Jeopardy —If two crimes
are subjectto the doctrine of absorption, they are identical. Hence,
the variance ruleor rule on double jeopardy may apply.
Treason or rebellion absorbs murder because the latter is an
indispensable means to commit the former. In sum, since murder is
an indispensable means to commit treason or rebellion, the f ormer
shall be considered as a mere ingredient of the latter.
If the information alleged murder, but the evidence established
t he crime of r ebellion since the k i l l in g of t h e v i cti m i s m ade i n
furtherance of rebellion, the court can convict the accused of the
lesser crime of r e bellion because of the v a r ia nce rule. (People v.
Manglallan, G.R. No. L-38538, April 15, 1988;People v. Avila, G.R.
No. 84612, March 11, 1992) If the accused are convicted for rebenion
under the fi rs t i n f or mation, they cannot be convicted of m u r der
under the second information for ki l l ing the victim in f u r t h erance
of rebellion because of double jeopardy rule. (People v. Yuzon, G.R.
Nos. L-9462-63, July 11, 1957)
The information charged the accused of treason and alleged
that they adhered to the Japanese Empire, a government enemy,
and gave aid and comfort to it by treacherously killing the victims.
Treason was no t p r o ven because th e e v idence failed t o s a t i sfy
the two-witnesses rule. Accused was convicted for murder, which
i s necessarily in cluded in t h e c h a rge of t r eason, because of th e
variance rule. (People v. Cantos, G.R. No. L-2661, April 28, 1949)
If the accused is convicted for treason under the first information,
he cannot be convicted for m u r der u n der th e second informs.tion
i nvolving ki l l in g a g u erilla, which act constitutes giving aid an d
comfort to the Japanese enemy in adherence thereof, because of the
rule on double jeopardy. (People v. Labra, G.R. ¹. L- 8 8 6 ,August
20, 1948)
2. S pl i t t i n g t h e S p e c ial C o m p lex C r i m e o r C o m p l e x
Crime — If t wo crimes are components of a special complex crime
or complex crime, they are identical. Hence, the variance rule or rule
on doublejeopardy may apply. Murder is a component of the special
complex crime of robbery with homicide. If the information alleged
special complex crime of r o bbery w it h h o m i cide with tr e a chery,
b ut the evidence merely established th e t r eacherous killing bu t
 188 CRIMINAL LAW REVIEWER
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not the robbery, the court can convict the accused of the crime of
murder, which is necessarily included in the charge of robbery with
homicide, because of the variance rule. (People v. De Leon, G.R. No.
197546, March 23, 2015) If the court did not apply the variance rule
and acquitted the accused for robbery with h omicide, the accused
cannot be prosecuted for homicide, which is necessarily included in
the charge of robbery with homicide because of the rule on double
jeopardy.
H owever, the variance rule or d ouble jeopardy r ul e i s o n l y
applicable if the components of complex crime or special complex
crime are alleged in a si n g le i n f o rmation. If t h e c o mponents of
complex crime or special complex crime are alleged in two different
informations,the accused shall be convicted of separate crimes so
as not violate his right t o be informed of the nature of the crime
charged against him. In cases of splitting of special complex crime or
complex crime by alleging its components in two informations, the
accused cannot beconvicted of:
1. S p e c ial complex crime of robbery with homicide but
separate crimes of robbery and homicide (People v. Legaspi,
G.R. Nos. 921 67-68, July 14, 1995; 1998 Bar Exam); or
2. Qualified carnapping but separate crimes of simple
carnapping and homicide (People v. Paramil, G.R. ¹. 12 8 0 56;
March 31, 2000; People v. Peridas and Dela Cruz, G.R. Nos.
141162-63, July 11, 2002); or
3. Co m p o und crime of murder and frustrated murder
but separate crimes of murder and frustrated murder (People
v. Umawid, G.R. No. 208719, June 9, 2014); or
4. Sp e c ial complex crime of kidnapping with rape but
separate crimes of kidnapping and rape. (People v. Cilot, G.R.
No. 208410, October 19, 2016)
In People v. Cilot, G.R. No. 208410, October 19, 2016, despite
the splitting of kidnapping with rape by filing of two informations,
the trial court convicted the accused of a special complex crime. The
Supreme Court held that th e accused should have been convicted
for separate crimes ofkidnapping and rape. However, the ac"used
is technically considered as acquitted with respect to the charge of
rape since the trial court merged this crime of rape to kidnapping t
g 0
f orm a special complex crime. Hence, the accused is only liable for
kidnapping.
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II. FELONIES
Other view — In Pe o ple v. La og, G.R. No. 178321, October
5 , 2011, the accused was charged with r ape and homicide in t w o
different i n f o r m ations. Bu t t h e S u p r em e C o ur t c o n victed t llie
' accused of special complex crime of rape with homicide although tlhe
components thereof are alleged in two different informations.
3. Sub s t i t u t io n o f I nf o r m a t i o n — T h e ft a n d e s t a f a
through m i s appropriation a r e n o t i d e n t i c al . H e n ce, v a r i ance
r ule is not a p plicable. If t h e i n f ormation alleged estafa t h rough
misappropriation, but th e evidence established theft because the
possession of the accused for being an employee of the complains.nt
is merely physical, the court cannot apply the variance rule because
t heft proven by e v i dence does not n ecessarily i n clude or i s n o t
necessarily included in the charge of estafa. Hence, the court must
acquit the accused for the crime of estafa charged in the information.
(Chua-Burce v. CA, G.R. No. 109595, April 27, 2000)
However, since theft and estafa are not i d entical, the court
applying the rule on substitution can dismiss the case for estafa and
order the filing of new information for theft. (People v. Yusay, G,R.
No. L-26957, September 2, 1927) If the court dismissed the case for
estafa without an order for the substitution of the information, the
prosecution can simply file a new information for theft. Filing of new
information tocharge the accused the proper offense as directed by
the court oron the sole initiative of the prosecution isnot a violat'ion
of the rule on double jeopardy since estafa under the old information
and theft under the new information are not identical. (U.S. v. Vi tog,
G.R. No. L-12817, October 25, 191 7)
SPECIAL COMPLEX CRIME, COMPLEX CRIME AND DOCTRINE
OF ABSORPTION
'
I f th e o f f ender committed several c r i m es, th e c our t m i i s t
consider ifthey can be merged together to form a special complex
crime, or complex crime, or if t h e p r i n c ipal crime can absorb the
other crimes. If the provisions on special complex crime, Article 48
on complex crime and doctrine of absorption are not applicable, then
the court shall convict the accused of separate crimes.
Kidnapping and Other Crimes
If the accused abducted the victim to kill hi m and in fact the
victim is k i l l ed, the former i s l i a ble for special complex crime of
kidnapping with h o m icide. (People v. Me rcado, G.R. No. 116'239,
 190 CRIMINAL LAW REVIEWER
VOLUME I
November 29, 2000; People v. Elizalde, G.R. No. 210434, December
5 , 2016) If the accused kidnapped the victim to kill h in , and in th e
course of the detention, shot the victim, who survived despite of the
mortal wound that he sustained, the accused cannot be convicted
of a special complex crime of ki dnapping with f r u strated murder.
There exists no such crime under Arti cle 267 of the Revised Penal
Code. However, since kidnapping is a necessary means to commit
frustrated murder, theaccused is liable for a complex crime proper
of frustrated murder through kidnapping. (People v. Roxas, G.R. No.
172604, August 17, 2010)
Robbery and Other Crimes
1 . S e p a r a t e C r i m e s of R o bbery an d A t t e m p ted R a p e
— There is no special complex crime of robbery with attemp-.ed rape
under Article 294 of the Revised Penal Code. These crimes cannot be
merged together toform a complex crime of robbery with attempted
rape because robbery cannot be a necessary means to commit
attempted rape; neither can attempted rape be a necessary means
to commit robbery; and both crimes cannot be the result of a single
act. Hence,the accused should be held liable of separate crimes of
attempted rape and robbery.(People v. Cariaga, C.A., 54 O.G. 4307)
2. P hy s i ca l I n j u r i es as a Necessary Means to Commit
Attempted R o b b er y — T h e r e i s n o s p e cial c omplex m i me o f
attempted robbery with frustrated homicide or with serious physical
injuries under Article 297 of the Revised Penal Code. But if frustrated
homicide or serious physical injuries are necessary means to commit
attempted robbery, the accused can be convicted of a complex crime
proper of at t empted robbery w it h f r u s t r ated homicide (People v.
Cagongon, 74 OG 59, No. 1,January 2, 1978) or attempted robbery
with serious physical injuries. (People v. Villanueva, CA-G.R. No.
2676, May 31, 1939)
3. P hy s i ca l I n j u r i e s a s a n I n d i s p ensable M e a n s o f
Taking the P r o p erty — In U S v . De Los Santos, G.R. No. 2767,
August 30, 1906, the beating of on e of t h e p ersons obbed was
f or the purpose of compelling him t o show, as he did show to th e
robbers, the place where he kept'his money, something he refused
to do at first, and which the robbers would not have been able to
ascertain had they notresorted to this violence. It cannot therefore,
be maintained, that the violence exercised upon the person robbed
was absolutely necessary for the execution of the crime.
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II. FELONIES 191
Thus, the crime committed in the De Los Santos case is simple
robbery, which i s n o t a s p e cial complex cr i me. Simple r obbery
absorbs physical injuries since the latter is an inherent consequence
of violence, which is necessary for the commission of robbery.
In People v. Alvarado, Jr., G.R. No. L-29280, July 25, 1988, the
law does not authorizethe imposition of a separate penalty for the
injuries inflicted upon persons in the course of the robbery since the
physical injuries suffered by them are but the overt manifestations
of the violence employed and are inherent in th e crime of robbery
with violence against persons. For t hi s r eason, only one penalty
should be imposed upon the accused.
It should be noted that A r t i cle 294 has five paragraphs that
cover serious, less serious or slight physical injuries perpetrated. as
a means to commit robbery. Because of these comprehensive rules
on robbery with physical injures, there are no occasions where the
offender can be convicted of a complex crime of robbery with physical
injuriesunder Article 48 or separate crimes of robbery and physi.cal
injuries. In fact, physical injuries as a result of unnecessary violence
committed inthe course of robbery is still covered by Article 294.
Rape and Other Crimes
1. S TD I n f e c t ion — In Pe ople v. Acosta, G.R. No. 40908,
April 28, 1984, the accused raped the victim and infected her with
sexually tr ansmitted disease (STD). As a consequence, she died.
Accused was convicted of a compound crime of rape with homicide
under Article 48 of the Revised Penal Code. Under Article 385 of the
Code, there was no special complex crime of rape with homicide.
Acosta principle is not anymore controlling. Under Article 266-
B of the Revised Penal Code as amended by R.A. No. 8353, if the
victim died due to STD acquired in the course of rape, the offertder
is liable for special complex crime of rape with h o micide. If such
v ictim survived, the offender is li able for qualified rape with t h e
circumstance of STD infection.
2. I nfl i c t i o n of I n j u r i es as an I n d i spensable Means to
Sexually Penetr ate the V i ctim — If t he victim suffered injuries
as a consequence of the use of force to sexually penetrate the victim,
t he crime of rape absorbs physical injuries since the latter i s an
i nherent consequence of using force, which i s a n e l ement of t h e
former. In People v. Pabol, G.R. No. 187084, October 12, 2009, the
accused inflicted injuries on the victim, and as a r esult, she was
 192 CRIMINAL LAW REVIEWER
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rendered unconscious. Then, accused raped th e v i ct im . A ccused
was charged with complex crime of rape with less serious physical
injuries. The trial court found the accused guilty of simple rape only.
The accused was not convicted of complex crime of rape with less
serious physicalinjuries because according to the trial court that
when a rapist employs force the rape victim will invariably sustain
injuries. The Supreme Court sustained the conviction.
3. S im u l t a n e ous A ct s o f R a p i n g a n d C h o k i n g — I n
People v. Y'u, G.R. No. L-13780, January 28, 1961, the accused had to
choke and strangle the girl at the same time that he was satisfying
his lust on her. The acts, which were simultaneous, were considered
as a single act producing rape and homicide, and thus, constituted
of compound crime of rape with homicide under Article 48. Under
Article 335 of the Code, there was no special complex crime of rape
with homicide.
The principle enunciated in Yu case is not anymore controllir g.
Under Article 266-B of the Code as amended by R.A. No. 8353, if the
victim died due to choking, which is simultaneously committed with
rape, the offender is liable for special complex crime of rape with
homicide. However, the Yu principle can be applied, if the victim,
who was simultaneously raped and choked, merely suffered serious
or less serious physical injuries. In such a situation, the offender is
liable for a compound crime of rape with physical injuries.
4. I nj u r i e s on th e G e n i t a l O r g a n — Wh en i n t he
commission of the crime of rape, the victim sustained serious or less
serious physical injuries on her genital organ, offender is liable for a
complex crime of rape with physical injuries under Article 48 of the
Code. (People v. Api ado, G.R. ¹. 81 0 7 5,August 12, 1929) In US v.
Andaya, G.R. No. 11477, August 8, 1916, forcible sexual ir tercourse
resulting in less serious physical injuries on the genital parts of the
victim was considered as complex crime proper. However, CA Justice
Luis B. Reyes and Justice Florenz D. Regalado correctly maintain
that it is a compound crime for having been produced by a single act..
W hen in t h e c o m mission of t h e c r i m e o f r a pe, t h e v i c t i m
sustained slight physical injuries on her genital organ, offender is
only liable for rape. Since slight physical injuries is inherent in rape,
the latterabsorbs the former. (People v. Apiado, G.R. ¹. 8 10 7 5 ,
August 12, 1929) Moreover, slight physical injuries for being a light
felony cannot be m ade a c omponent of a c o mpound crime since
Article 48 speaks of single act constituting two or more grave or le:s
grave felonies.
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II. FELONIES
When in the commission of the crime of rape th e victim sus
tained physical injuries on her genital organ, and as a consequence,
the victim became insane, suffered permanent disability or mutil a-
tion, the offender is liable for qualified rape under Article 266-B.
5. J u m p i n g f r o m th e B u i l d ing — Of fender committed. a
single act of having sexual int ercourse that constituted rape and
produced in the mind of the victim a sense of danger, which caused
her to try to escape by jumping from the building, and as a result, s'he
suffered serious physical injuries. Accused is liable for a compound
crime of rape with serious physical injuries since both crimes were
produced by a single act of having sex with th e victim. (People v.
Castromero, G.R. No. 118992, October 9, 1997) But if such victim
died, the offender is liable for special complex crime of rape with
homicide.
6. I n j u r ies Inflicted After the Consummation of Rape
— In People v. Isla, G.R. No. 199875, November 21, 2012, with respect
to the stabbings, it appears that th e accused committed two acts.
The first was while he was ravishing AAA. The Court considers this
and the rape as one continuous act, the stabbing being necessary,
as far as he was concerned, forthe successful perpetration of the
crime. When the accused testified, he claimed that he had to use
the knife so he could have sexual intercourse with her. The second
stabbing took place after consummation of the rape act. According
to AAA, after her defilement, she noticed the knife bloodied and she
' tried to wrest it from him. In their struggle, she was stabbed under
her lower leftbreast but she was able to force the accused to di'op
the knife. This second stabbing is a separate and distinct offense
(frustrated homicide) as it was not a necessary means to commit the
rape. It was intended to do away with her life.
After raping the victim, the accused stabbed her. But despite
the mortal wounds sustained by the victim, she survived. (2009 dar
Exam) Accused is not liable for a special complex crime. There is no
special complex crime of rape with frustrated homicide. (People v.
Honra, Jr., G.R. Nos. 186012-16, September 26, 2000) Neither is he
liable for a complex crime. The stabbing is not a necessary means for
committing the rape, and the rape and frustrated homicide were not
produced by a single act. Hence, the accused is liable for two separate
crimes of rape and frustrated homicide. (People v. Dawandawan,
G.R. No. 87208, April 6, 1990)
 194 CRIMINAL LAW REVIEWER
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FELONY AND GFFENSE UNDER SPECIAL LAW
A single act constituting a felony and an offense punishable
under special law is not a compound crime since Article 48 of the
Revised Penal Code speaks of a single act constituting two or more
grave or less grave felonies. An offense punishable under special law
is not a felony within the contemplation of Article 48 on compound
crime.
If an offense punishable under special law is a necessary means
to commit a felony; or a felony is a necessary means to commit an
offense,the offender cannot be held liable for a complex crime proper
under Article 48 of the Revised Penal Code. In People v. Araneta,
G.R. No. 24622, January 28, 1926, the Supreme Court ruled that a
felony and offense punishable under special law must be regarded
as two separate and distinctcrimes.
If unlawful arrest is committed to plant incriminatory evidence,
the crime committed is complex crime of i n cri m inating i n nocent
person through unlawful arrest. (People v. Alagao, G.R. No. L-20721,
April 30, 1966; 2012 Bar Exam) If incriminatory evidence is planted
to justify an unlawful arrest, the crime committed is complex crime
of unlawful arrest through incriminating an i nnocent person. But
if the incriminatory evidence planted is dangerous drugs (1977 and
2011 Bar Exams), explosive or loose firearm
(1952 Bar Exam), the
accused is liable for planting of evidence under special law (Section
29 of R.A. No. 91 65, Section 38 of RA. ¹. 10 5 9 1,and Section 4-A of
P.D. ¹ . 18 6 '6 asamended by RA. ¹ . 951 6 ) and not incriminating
an innocent person. Unlawful ar res't and planting of evidence are
separate crimes. Complex crime is not committed since planting of
evidence, which is punishable under special law, cannot be made a
component of a complex crime.
An offense punishable under special law cannot be m ade a
component of a compound crime or a complex crime proper. If th
e
of fender committed a felony and an offense punishable under special
o crime s i nc e i l l e gal r e c r u i t m en t i s n o t a f el o n y w i t h i n t h e
law, he shall be prosecuted: (1) for both felony and offense; or (2) for
the felony or offense; or (3) for the felony alone; or (4) for the offense
alone.
I. P ros e c u t ion for Both Felony and Offense
Without violating the rule on double jeopardy, an offender can
be prosecuted for: (1) violation of B.P. Blg. 22 and estafa; (2) illegal
recruitment, estafa and trafficking in person; (3) violation of Section
J9JC9B0M
II. FELONIES 195
3 of R.A. No. 3019, malversation and other f elonies; (4) torture,
maltreatment of prisoner and physical injuries; and (5) cybercrime
and other felonies.
1. V i o l a t i o n o f B .P . B lg. 22 an d E s t afa — A s i n g le act
of issuing an u n f u n ded check t o d e fraud th e v i c ti m c onstitutes
estafa through issuance of bouncing check and violation of B.P. Blg.
22. (2019 Bar Exam) However, this is not a compound crime siiice
violation of B.P. Blg. 22 is not a felony within the contemplatiori of
Article 48 of the Revised Penal Code.
An offender can be prosecuted for violation of B.P. Blg. 22 and
estafa through issuance of bouncing check without violating the rule
on double jeopardy since these crimes are not identical. Violation of
B.P. Blg. 22 is malum prohibitum while estafa is malum in se. Deceit
and damage are elements of estafa but they are not ingredient;. of
violation of B.P. Blg. 22. Moreover, Section 5 of B.P. Blg. 22 provides
that prosecution under this law shall be wi thout prejudice to any
liability for vi olation of any pr ovision of the Revised Penal Code.
(2018 Bar Exam)
While the filing of the two sets of Information under B.P. Blg.
22 and under the Revised Penal Code on estafa may refer to identical
acts committed by accused, the prosecution thereof cannot be limited
to one offense since there is variance between the elements of these
two crimes. The rule on double jeopardy prohibits prosecution for
two offenses with identical elements and not two offenses involving
identical act. (Nierras v. Dacuycuy, G.R. ¹s . 5 9 5 68-76;January 11,
1990)
2. I l l e gal R ecruitment, T r afficking i n P e r son and
Estafa — A s i n g le a ct of r e c ruiti ng w i t h o ut l i c e nse to d efraud
the victim c onstitutes estafa t h r ough f a lse pr etense and i l l egal
recruitment under R.A. No. 8042. However, this is not a compound
contemplation of Article 48 of the Revised Penal Code.
An offender can be prosecuted for illegal recruitment and
estafa without v i olating th e r u l e on d ouble jeopardy since these
crimes are not identical. Illegal recruitment is ma l um prohibitum
where criminal intent is not necessary while estafa is malum in se
where criminal i n t ent i s r equired. (People v. Dela Cruz, G.R. No.
214500, tu ne 28, 201 7) Deceit and damage are elements of estafa
but they are not ingredients of illegal recruitment. Lack of license to
recruit i.s an element of illegal recruitment but it is not an ingredient
 196 CRIMINAL LAW REVIEWER
VOLUME I
of estafa. Moreover, under Section 6 of R.A. No. 8042 as amended by
R.A. No. 10022, the filing of a case for illegal recruitment shall be
without prejudice to the filing of cases for crimes punishable under
other existing laws. (2012 Bar Exam)
Applying Section 6 of R.A. No. 8042 on multiple filing of cases, an
illegal recruiter can be held liable for illegal recruitment, trafficking
in person (People v. Lalli, G.R. No. 195419, October 12, 2011; People
v. Solina, G.R. ¹. 19 6 7 84,January 18, 2016) and estafa.
3. V i o l a t i o n of R .A. No. 3019 and Felonies —Section 3
of R.A. No.. 3019 reads: In a d d i t i on to acts or omissions of public
Cj
officers already p enalized b y e x i sting la w , t h e f o l l o w ing s h a l l
constitute corrupt practices of any public off icer."Itisclear then that
one may be charged with violation of R.A. No. 3019 in addition to a
felony under the Revised Penal Code for the same act. (Ramiscal, Jr.
v. Sandiganbayan, G.R. Nos. 169727 — 28, August 18, 2006
) Thus, a
public officer in addition to violation of Section 3 of R.A. N . 3019
bee hel d l i able for direct bribery (2010 Bar Exam), indirect bribery
(2009 and 2014 Bar Exams) and malversation. (2009 Bar Exam)
4 . T or t u r e , M a l t r e a t m e nt , a n d P h y s i cal I n j u r i e s -
Under Section 15 of R.A. No. 9745, torture shall be treated as a
s eparate and i n dependent crim inal act w h ose penalties shall be
imposable without prejudice to any other criminal liability provided
f or by domestic and int ernational laws. Under Ar t i cle 235 of th e
R evised Penal Code, th e p e nalty f o r m a l t r e atment s h al l b e i n
addition to his liability for the physical injuries. Hence, a jail guard,
who tortured a prisoner under his custody as a form of disciplinary
punishment, can be held liable for torture, maltreatment of prisoner,
and physical injuries.
5. Cyb e r c r i m e — Un d e r S ection 7 of R . A. N o. 1 0175, a
prosecution under this Act shall be without prejudice to any liability
or violation of any provision of the Revised Penal Code or special
aws. However, despite of t h i s p r o vision, the S u p r eme Court i n
isini v.Secretary of Justice, G.R. No. 203335, February 11, 2014
said that the offender cannot be prosecuted for child pornography
u nder R.A. No. 9775 and cyber child pornogra h u n d
R.A. N .
1 0175, or
or ccyber
ber Ilibel
' under the Revised Penal Code in relation to
R.A. No. 10175 and libel u n der t h e . Revised Penal Code because
these crimes for being identical are subject to the r ul e on double
jeopardy.
6. M on e y L a u n d e r in g — U nd e r S e c tion 6 of R . A. N o .
9160, any person may be convicted of money laundering and
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II. FELONIES 197
unlawful activity mentioned in this law such as kidnapping or sale
of dangerous drugs.
7. Il l e g a l F i s hi ng —Un der Section 88 of R.A. No. 8550, if
the use of explosives, noxious or poisonous substance or electrofishing
' devices in fishing results in physical injuries or loss of human life,
the user shall be prosecuted for illegal fishing without prejudice to
the filing of separate criminal cases for homicide or physical injuries.
II. P r o s e c u t ion for Felony or Offense
So as not to violate the rule on double jeopardy, the offender
shall be prosecuted either for: (1) sexual abuse or rape; (2) physical
injuries or child abuse; (3) possession of explosive or murder; or (4)
terrorism or murder; (5) plunder or malversation; or (6) piracy under
the Revised Penal Code or piracy under P.D. No. 532.
1. P r o s e c u t ion for Sexual Abuse or R ape — Single act
of having sexual intercourse with a child by m eans of violence or
i ntimidation constituting r ape and sexual abuse under R.A. N o.
7610 is not a compound crime since sexual abuse is not a f elony
within the contemplation of Arti cle 48 of the Revised Penal Code.
(People v. Pangilinan, G.R. No. 188090, November 14, 2011)
The essence of rape und.er the Revised Penal Code and sexual
abuse under R.A. No. 7610 is having sexual i n t ercourse without
consent of the victim. Same as in statutory rape, the consent of the
child subject to sexual abuse obtained through coercion or influerice
is not recognized by law. Since they are the same in character, the
accused cannot be prosecuted for both crimes. In People v. Abay, G.R.
N o. 177752, February 24, 2009, the Supreme Court said that t h e
offender cannot be accused of both crimes for the same act because
his right against double jeopardy will be prejudiced.
The Abay pr i n c iple w as r e a ffirmed by t h e S u p r e me C ourt
in People v. Dah i l i g, G .R. No. 1 87083, June 1 3, 2011, People v.
Pangilinan, G.R. No. 183090, November 14, 2011; People v. Matias,
G.R. No. 186469, June 18, 2012; Alberto v. Hon. Court of Appeals,
G.R. No. 182130, June 19, 2013; and People v. Tubillo, G.R. No.
220718, June 21, 2017.
In People v. Udang, G.R. No. 210161, January 10, 2018, the
Supreme Court, T h i r d D i v i s ion e x pressly abandoned the A b a y
principle and rul ed t hat t he a ccused can be charged with s exual
abuse and rape without violating the rule on double jeopardy since
their elements are different and distinct from each other.
 198 CRIMINAL LAW REVIEWER
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However, it i s submitted that th e Supreme Court in U d a n g
case, which is merely sitting in division, cannot abandon the Abay
case and other cases, which reaffirmed the principle therein. Under
Section 4, Article VIII of the Constitution, no doctrine laid down by
the Supreme Court may be reversed except by the Court sitting En
Banc. At any rate, in a more recent cases of People v. Jaime, G.R.
No. 225332, July23, 2018 and People v.Laguerta, July 9, 2018, the
Supreme Court again reaffirmed theAbay principle.
Corollary to the Ab ay pri nciple is the ru le t hat t he a ccused,
who sexually abused a child, shall be prosecuted under R.A. No.
7610 and the Revised Penal Code, whichever prescribed a graver
penalty. (Dimakuta v. People, G.R. ¹. 206 5 1 8,October 20, 2015;
People v. Pusing, G.R. ¹. 20 8 0 09,July 11, 201 6)
2. P h y s i ca l I n j u r i e s and C h ild A b use —Un der Section
10(a) of R.A. No. 7610, child abuse pertains to acts of child abuse,
cruelty or exploitation or to be responsible for other conditions
prejudicial to t h e ch ild's development t ha t i s n o t co vered by t h e
Revised Penal Code. A felony penalized under the Revised Penal
Code is excluded from the coverage of R.A. No. 7610. (De Guzman
v. Perez, G.R. ¹. 15 6 0 1 3,July 25, 2006) The intention of the law
in using the phrase "not covered by the Revised Penal Code" is to
prosecute the offender either for child abuse or felony, e.g., physical
injuries and not for both crimes. Moreover, applying the principles
in the Pusing case and Dimakuta c ase by analogy, an offender who
maltreated a child, shall be prosecuted for the graver crime of child
abuse and not for both crimes of physical injuries and child abuse.
(2018 Bar Exam)
8. P o s s ession of Explosive or a Felony —In the crime of
possession of explosive, the qualifying circumstance of commission
o other crime is present: (1) when the crime involving explosive is a
necessary means for committing an offense under special law such
as violation ofgun ban or felony such as murder, robbery, or public
isturbance
b ; (2)
( ) whh e n t h e c r im e i n volving explosive is committed
in furtherance of other crime such as rebellion; (3) when the crime
involving explosive is committed as an incident to, or in connection
w ith other c r i me ' o r (( 4) ) w hen t h e c r i m e i n v olving explosive is
committed by reason or on occasion of other crime.
T here ar e t w o effects i f t h e q u a l i f y in g c i r c umstance
of
commission of o t he r c r i m e a t t e nded t h e c o m mission o f i l l e gal
possession of explosive, to wit: (1) a h i g her penalty is p r e scribed
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II. FELONIES 1'99
under Section 3-B of P.D. No. 1866 as amended by R.A. No. 951.6,
and that is, reclusion perpetua and additional penalty of fine; and (2)
the rule on jeopardy shall apply under Section 3-C thereof.
Under Section 3-C, conviction or acquittal of th e accused or
the dismissal of the case for possession of explosive with qualifying
circumstance of commission of other crime (e.g., murder) shall be a
bar to another prosecution of the same accused for such other crime
(murder), and vice versa. Since Section 3-C has adopted the rul e
on double jeopardy, the accused can only be prosecuted for illegal
possession of explosives qualified by the circumstance of commissj.on
of murder; or murder qualified by the circumstance of by means of
explosion. He cannot be held liable for both crimes.
4. T er r o r i s m a n d I t s P r e d i c at e C r i m e s — If m u r d .er,
rebellion orother predicate crime creates a condition of widespread
and extraordinary fear and panic among populace in order to
coerce the government to give in to an unlawful demand, the crime
committed is terrorism. (Section 3 of R.A. .Vo. 9872)
Under Section 49 of R.A. No. 9372, "onviction or acquitta] of
the accused or the di smissal of th e case for terrorism shall be a
bar to another prosecution for predicate crime which is necessarily
included in the charge of terrorism. Thus, a terrorist, who committed
murder as a predicate crime of terrorism, can be convicted of murder
or terrorism. He cannot be held liable for both terrorism and murder
because of the constitutional an d l e gislative r ul e against double
jeopardy.
5. P lu n d e r a nd M al v e r s a t i on — M a l v e rsation i s a
predicate crime of plunder. Hence, it is submitted that the plunderer
can only be prosecuted either for malversation or plunder. He carinot
be prosecuted for both malversation and plunder since the former is
necessarily included in the latter, and therefore, the rule on double
jeopardy shall apply.
6 . P ir a c y U n d e r P . D . N o . 58 2 o r P i r a c y U n d e r B P C
— If the acts constitute piracy under the Revised Penal Code and
piracy under P.D. No. 532, the accused can only be prosecuted for
either of them. (People v. Tulin, G.R. 1Vo. 111709, August 80, 2001)
A pirate cannot be held liable for both piracy under the Code and
piracy under P.D. No. 532 because of the rule on double jeopardy for
they are identical crimes.
7. V io l a t i o n o f R . A . No . 67 1 8 , o r f e l o n y o r o f f e n s e
— Under Section 11 of R.A. 6713 (Code of Conduct and Ethical
 200 CRIMINAL LAW REVIEWER
VOLUME I
Standard for Public Officials), if th e v i olation is pu nishable by a
heavier penalty under another law (e.g., Revised Penal Code or R.A.
No. 8019),the violator shall be prosecuted under the latter statute.
III . P r o s ecution for Felony Alone
Under Section 29, R.A. No. 10591, if the crime is committed
b y he
t h person without using the loose firearm, illegal possession of
1 oose firearm and the other crime shall be considered as a distinct
and separate offenses (e.g.,accused can be prosecuted for estafa
or possession ofdangerous drugs and possession of loose firearm).
Applying thi s pr ovision in r e v erse, if th e c r im e i s committed by
the person with th e use of the loose firearm, illegal possession of
loose firearm shall not be considered as a distinct ard separate
offense. In such a case, the accused shall be prosecuted for a felony
while possession of loose firearm shall be absorbed therein, or be
considered as a modifying circumstance. For example, the accused
shall be prosecuted for single crime of: (1) rebellion, which absorbs
possession ofloose firearm; or (2) homicide with specia" mitigating
circumstance of use of loose firearm where the penalty of reclusion
temporal for homicide shall be applied in its maximum period; or (3)
alarm and scandal with the qualifying circumstance of use of loose
firearm where the penalty under R.A. No. 10591 shall be imposed; or
(4) robbery with extraordinary circumstance of use of loose firearm
in case where the penalty for both crimes are equal; in such case,
the penalty for robbery and additional penalty under R.A. No. 10591
shall be imposed.
Iff loose firearm was used in committing robbery, the accused
can neither be prosecuted for a complex crime proper of robbery
through possession ofloose firearm (People v. A raneta, G.R. ¹ .
24622, January 28, 1926/ 1954 Bar Exam) nor separate crimes of
robbery and possession of loose firearm since under Ar t i cle 29 of
R.A. No.o. 10591,separate prosecution is only allowed if loose fi
rearm
was not used in committ ing other crimes. In this case, t' he accused
shall beprosecuted for robbery and use of loose fi
rearm shallbe
considered as a modifying circumstance. In People v. Gaborne, G.R.
No. 210710, July 27, 2016, it was held that in view of R.A. No. 10591,
separate prosecutions for murder and illegal possession are no
longer in order. Instead, illegal possession of firearm is merely to be
taken as an aggravating circumstance in the crime of murder. Where
murder was committed, the penalty for illegal possession of firearms
is no longer imposable since it becomes merely a special aggravatin
g'
J9JC9B0M
II. FELONIES 201
circumstance. The intent of Congress is to treat the offense of illegal
possession of firearm and the commission of murder with the use of
unlicensed firearm as a single offense. (2018 Bar Exam)
IV. P r o s ecution for an Offense Under Special Law Alone
There are occasions where th e i n t ention of th e special law
in punishing an o ffense is t o a m end or m o d ify th e p r ovision of
the Revised Penal Code on a particular felony. In such a case, the
o ffender must be pu nished under special law an d not u n der t h e
Revised Penal Code.
1. H i g h w a y R o b b e r y/ Br i gandage — T h e i n t e n t i on o f
P.D. No. 532 in punishing highway robbery/brigandage is to amend
Articles 806 and 307 of th e Revised Penal Code on the crime of
brigandage and aiding or abetting a band cf brigands by increasing
penalty therefor. (People v. Puno, G.R. No. 97471, February 17, 1993)
Under Section 5 of P.D. No. 582, pertinent provisions of the Revised
Penal Code insofar as they are inconsistent with t h i s D ecree are
hereby repealed or modified accordingly.
Thus, an offender, who committed brigandage involving actual
taking away of property or seizing person for extortion by means
of violence or int i m i dation or u s ing force upon th i ngs, should be
prosecuted for h i ghway r obbery/brigandage under P .D. No . 582;
an offender, who aided or abetted a band of bri g ands, should be
prosecuted for highway robbery/brigandage as an accomplice under
P.D. No. 582. (2012 Bar Exam)
A highway-robber or brigand cannot. be held liable for both
brigandage, and highway robbery/brigandage because ofthe rule of
double jeopardy forthey are identical crimes.
2. C a r n apping and Cattle Rustling — Ta king motor
vehicle or large cattle without consent of the owner or by means of
violence or inti midation or by u sing force upon things constitutes
qualified theft, or robbery under the Revised Penal Code. However,
R.A. No. 10883, which punishes carnapping, and P.D. No. 533, v hich
punishes cattle rustling, modified or amended the provisions of the
Code on qualified theft or robbery involving motor vehicle or large
cattle. Hence, an offender, who committed theft or robbery invoj:ving
motor vehicle orlarge cattle, should be prosecuted for carnapping
under R.A. No. 10888 or cattle rustling ur der P.D. No. 538.
 202 CRIMINAL LAW REVIEWER II. FELONIES 203
VOLUME I

In People v. Bustinera, G.R. No. 148238, June 8, 2004, appellant of justice as principal also with the penalty of prision mayor, since
was convicted of qualified theft u n der A r t i cle 310 of the P.evised this penalty is h i gher t han t ha t p r escribed under P.D. No. 182 .
Penal Code for the unl awful t a k in g of a m otor vehicle. However, The intention of P.D. No. 1829 in prescribing a fixed penalty or that
R.A. No. 6589 (now R.A. No. 10883) has modified Article 810 of the provided by other law, whichever is higher, is not to prosecute the
Code with r espect to certain m otor v ehicles. Thus, the u n l awfu offender for obstruction of justice and for other crime arising from t e
taking of motor vehicles is now covered by the anti-carnappirg lav same act such as destroying the body of the crime. To rule otherw:Ise
and not by the provisions on qualified theft or robbery. is to absurdly punish offender as the accessory to murder by prision
A carnapper cannot be held l i able for both t h eft or r obbery mayor and as principal in obstruction of justice by another pris iion
and carnapping because ofthe rule on double jeopardy for they are mayor.
identical crimes.
3. F en c i n g — Un d er Art i c le 19 of the Revised Penal Code.
one, who profited by the effects of the crime of theft or robbery, is
liable for this crime as an accessory. However, under P.D. No. 1612,
such person is liable for fencing as principal. The intention o:" P.D.
No. 1612 is to modify Ar t i cle 19 of the Code on accessory in theft
or robbery by punishing act of an accessory as fencing, imposing
a higher crime, treating it as ma l um p r o hibitum and p roviding a
r ule on presumption of fencing. Hence, an accessory in th e " r i m e
of theft orrobbery cannot be held liable for both theft or robbery
as accessory and fencing asprincipal because of the rule on double
jeopardy for they are identical crimes. The State may thus choose
to prosecute him either as an accessory in theft or r obbery under
the Revised Penal Code or as principal in f encing under P.D. No.
1612, although prosecuting hi m f o r f e ncing i s p r eferred. (Dizon-
Pamintuan v. People, G.R. No. 111426, July 11, 1994
)
4. O bs t r u c t io n o f J u s t ic e — T h e c r i m i n al a c t o r, w h o
threw the body of a murdered victim i nt o the river to destroy the
corpus delicti, is liable for murder qualified by the circumstance of
employment of means to afford impunity. The one who assisted him
in throwing the body is liable either as an accessory to murder for
destroying the body of the crime to prevent its discovery (People v.
Devaras, G.R. Nos.100988-89, December 16, 1998) or as prircipal
to obstruction of justice for destroying it to impair its availability as
evidence in a criminal proceeding.
The accused cannot be prosecuted for both a s a n a ccessory
to murder and as p ri n cipal to obstruction of justice. The penalty
prescribed for obstruction of justice under P.D. No. 1829 is prision
correccional in i ts m a ximum p eriod unless other law p rescribes a
higher penalty. Thus, the offender may be prosecuted for mu r d er
as an accessory with the penalty of prision mayor or for obstruction

J9JC9B0M

The circumstances affecting criminal liability are divided into
justifying c i r c umstances, exempting c i r c umstances,
mitigating
circumstances, aggravating circumstances and alternative circum-
stances. (1946, 1947, 1951, 1954, 1960, 1967, and 1969 Bar Exams)
Saving the lives of a thousand and one persons is not a defense
for killing a single human being. One who gives aid and comfort to
the enemy is liable for treason. The law did not expressly make the
circumstance of saving lives as a m i t i gating
(1974 Bar Exam) or
justi ying or exempting in the crime of treason. (People
eop e v.. U'
i c to r i a ,
o. L-869, March 18, 1947; People v. Alvero, G.R. No. L-820
o.
April 11, 1950)
The basic elements of a felony, whether culpable or intentional
is voluntariness, which r equires freedom and i n t elligence. How-
ever, in intentional felony, dolo or criminal intent is an additional
e ement, while in culpable felony, culpa, negligence, imprudence or
recklessness is an additional element.
T he circumstances that a f fect crim i nal 1' b '1't h
ia i i y a ve s o m e -
t hin
ing to
t odo
d owit h f r eedom, intelligence, dolo or cu lpa. Ir r e sistible
force and uncontrollable fear as exempting c i r cumst
ums ances are
a se o n a c k o f f r e edom. I n sanity an d m i n o r it y a s
' y as exempting
ums ances are based on lack of i n t elligence. Self'-defense and
performance of duty as justifying circumstances are based on lack of
o o. Accident as an exempting circumstance is b
d 1 k fd
an cu pa. ysi ca l i l l n ess as a mitigating circumstance is based on
a lesser de gree of freed edom. Seniority as a mitigating circumstance is
based on a lesserdegree of intelligence. Cruelty as an aggravating
c ircumstance is based on t h e h i g her d e gree of c r i m i nal i n t e n t .
Passion as a mitigating circumstance is b
asedon a 1e sser degree of
criminal intent.
S ince the circumstances that a f f ect cr i m i nal l i a b i l it y h a v e
something to do with freedom, intelligence, and dolo or culpa, which
204
J9JC9B0M
III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 205
are elements of a felony, they must be present at th e t ime of th e
commission of the crime. If the accused in the course of trial became
insane, insanity is not an exempting circumstance since the accused
i s not insane at th e t i m e of th e commission of th e crime. If t h e
accused in the course of trial reached the age of more than 70 years,
seniority is not a mitigating circumstance since the accused is not a
senior citizen when the crime was committed.
However, there are two mi t i gating circumstances that occur
after th e c onsummation o f t h e c r i m e, to w i t : ( I ) s u r r e n der o r
c ircumstance analogous th ereto, e.g., testifying i n f a v o r o f t h e
prosecution and (2) confession or circumstance analogous thereof,
e.g., restitution.
JUSTIFYING CIRCUMSTANCE
There are six justifying circumstances, to wit: (I) self-defense;
avoidance of
(2) defense of relative; (3) defense of stranger; (4)
greater evil or injury; (5) performance of duty; and (6) obedience to
an order made by superior officer.
SELF-DEFENSE, DEFENSE O F R E LATIVE, AND D E FENSE OF
STRANGER
T he law o n s e lf-defense embodied in a n y p e nal s y stem i n
t he civilized world fi nds ju stification in m a n's natural i n stinct t o
protect,repel, and save his person or rights from impending daiiger
or peril; it is based on that impulse of self-preservation born to man
and part of his nature as a human being. (Soplente v. People, iG.R.
No. 152715, July 29, 2005; 1950 Bar Exam)
When accused's defense is self-defense, he thereby admits being
the author of th e death of th e victim, that i t b ecomes incumbent
upon him to prove the justifying circumstance to the satisfaction of
the court. The rationale for the shifting of the burden of evidence
is that the accused, by his admission, is to be held criminally liable
unless he satisfactorily establishes the fact of self-defense. Bult the
burden to prove guilt beyond reasonable doubt is not thereby I:ifted
from the shoulders of the State, which carries it u n ti l t h e end of
the proceedings. In other words, only the onus prohandi shifts to
the accused, for self-defense is an affirmative allegation that must
be established with certainty by sufficient and satisfactory proof.
(People v. Roman, G.R. No. 198110, July 81, 2018; Nadyahan v.
People, G.R. No. 198184, 1V1arch 2, 2016)
 206 CRIMINAL LAW REVIEWER
VOLUME I
Anyone who acts in defense of his person or ri ghts does not
incur criminal l i ability p r ovided that th e f ollowing circumstances
c oncur: (1) u n l awful a g gression; (2) r easonable necessity of t h e
means employed to prevent or r epel it ; an d (8) lack of sufficient
provocation on the part o f t h e p erson defending himself. (Article
12[1 j of the Revised Penal Code; People v. Roxas, G.R. No. 218896,
February 10, 2016; 1947 and 1960 Bar Exams)
T o justify t h e c r i m e c ommitted b y a n a c cused against a n
unlawful aggressor in defense of his relative under Article 11(2), the
following elements must concur: (1) Unlawful aggression against a
relative; (2) Reasonable necessity of the means employed to prevent
or repel it; and (8) Lack of participation in relative's provocation.
T o justify t h e c r i m e c ommitted b y a n a c cused against a n
unlawful aggressor in defense of a stranger under Article 11(8), the
following elements must concur: (1) Unlawful aggression against a
stranger; (2) Reasonable necessity of the means employed to prevent
or repel it; and (8) The person defending (accused) be not induced by
revenge, resentment, or other evil motive.
The relatives ofthe accused for purpose of defense of relative
under Ar t i cle 11(2) are hi s s p ouse, ascendants, descendants, or
legitimate, natural or adopted brothers or sisters or of his relative
) s
by affinity in the same degrees, and those by consanguinity withi n
the fourth civil degree. If the victim of unl awful aggression is not
mentioned in A r t i cle 11(2), he is a s t r a nger. Thus, a r elative by
affinity within the fourth degree such as the first cousin of the wife
of the accused is a stranger. (2016 Bar Exam)
The third element of defense of relative is different from that
of defense of stranger. In defense of relative, where the relative
provoked the offended party in p erpetrating unlawful aggression,
the accused must not have a part t h erein. In defense of stranger,
th
t e accused must not be induced by revenge, resentment, or other
evil motive in defending the stranger from the unlawful aggression
by the victim.
Kinds of Aggression
Unlawful aggression is of tw o k i n ds: (a) actual or m a t erial
unlawful aggression; and (b) imminent unlawful aggression. Actual
or material u n l awful a g gression means an a t t ack w i t h p h y sical
force or with a weapon, an offensive act that positively determines
J9JC9B0M
207
III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY
t he intent o f t h e a g gressor t o c ause th e i n j u r y . (People v. Del
Castillo, G.R. ¹. 1 6 9 0 84,January 18, 2012; People v. Roman, G.R
¹. 1 9 8 1 10,July 81, 2018; People v. Malicdem, G.R. No. 184601,
November 12, 2012; 201 7 Bar Exam)
T he victim , w h o d r e w h i s g u n , and thereafter, strugg;led
for possession ofthe gun after the accused tried to grab it,is not
committing an unlawful aggression. Hence, the accused in inflict;.ing
serious physical injuries on the victim cannot properly make a plea
of self-defense.(1987 Bar Exam)
In People v. Fontanilla, G.R. No. 177748, January 25, 2012,
had the victim really attacked the accused, the latter would h.ave
sustained some injury f rom th e aggression. It r e m ains, however,
that no injury of any kind of gravity was found on the person of the
accused when he presented himself to the hospital. In contrast, the
physician who examined the cadaver of the victim testified that he
had been hit on the head more than once. The plea of self-defense
was thus belied, for the weapons used by accused and the location
and number of wounds he inflicted on the victim revealed his in~tent
to kill, not merely an effort to prevent or repel an attack from the
victim. The gravity of the wounds manifested the determined effort
of the accused to kill his victim, not just to defend himself.
The accused must establish the concurrence of three elements
of unlawful a ggression, namely: (a) th ere must b e a p h y sical or
material attack orassault; (b) the attack or assault must be actual
or at least imminent; and (c) the attack or assault must be unlawful.
(People v. Roman, G.R. No. 198110, July 81, 2018; People v. I'"ega,
G.R. No. 21 6018, March 27, 2019)
Imminent u n l a w fu l a g g r ession m eans a n a t t a c k t h a t i s
impending or at the point of happening; it must not consist in a mere
threatening attitude, nor must it be merely imaginary, but must be
offensive and positively strong. Imminent unlawful aggression must
not be a mere threatening attitude of the victim. (People v. Olarbe,
G.R. No. 227421, July 28, 2018)
Thrusting hand into the pocket as if for the purpose of drawing
a dagger or a pocket knife (U.S. v. Carrero, G.R. No. 1-8956 January
10, 1908) or pulling a k i t chen kn ife (People v. Escarlos, G .R, ¹.
148912, September 10, 2008) is not unlawful aggression; hence, the
killing of the victim is not justified. However, opening a knife and
making a motion as if to attack is an imminent unlawful aggression
(People v. Olarbe, G.R. No. 227421, July 28, 2018), which justified
the exerciseof self-defense.
 208 CRIMINAL LAW REVIEWER
VOLUME I
The act of pull ing "something" (People v. D e Leon G . R. N .
1 97546; March 28, 2015) or pressing his right hand to his hip where
a revolver was holstered (People v. Olarbe, G.R. ¹. 22 7 4 21,July 28,
2018) or pulling a gun but without manifestation of any aggressive
act (People v. Rubiso, G.R. No. 128871, March 18, 2008) is not an
unlawful aggression. Hence, killings of the victims are unjustified.
But aiming a revolver at another with intent to shoot is an imminent
unlawful aggression, wi t hi n t h e c o ntemplation of t h e j u s t i f ying
circumstance of self-defense. (People v. Olarbe, G.R. No. 227421,
July 23, 2018)
The act of the victim in drawing a gun from his waist cannot be
categorized as unlawful aggression. Such act did not put in real peril
the life or personal safety of the accused. However, if the drawing
of gun is accompanied with circumstance of intent to shot, the same
may be treated ofunlawful aggression.
In Nacnac v. People, G.R. ¹. 191 9 1 8, Ma r ch 21, 2012, the
victim here was a trained police officer. He was inebriated and had
disobeyed a lawful order in order to settlea score with someone
using a p o lice vehicle. A w a r n i n g s hot fi r e d b y a f e l l o w p o lice
officer, his superior, was left unheeded as he reached for his own
firearm and pointed it at accused. Accused was, therefore, justified
in defending himself f rom an inebriated and disobedient colleague.
Even if the victim did not point his firearm at accused, there would
still be a finding of unlawful aggression on the part of the victim.
A police officer is trained to shoot quickly and accuratel . A I'
o ficer cannot earn his badge unless he can prove to his t r a inors
that he can shoot out of the holster quickly and accurately. Given
this factual baackdrop,
k there isreasonable basis to presume that
the accused indeed felt his life was actually threatened. Facing an
armed police officer like himself, who at that t i me, was standing a
mere five meters from the accused, the latter knew that he has to be
quick on the draw. It is worth emphasizing that the victim, being a
policeman himself, is presumed to be quick in firi ng. Hence, it now
becomes reasonably certain that in t his specific case, it would have
been fatal for the accused to have waited for victim to point his gun
before the accused fires back.
Drawing a gun as a rule is not unlawful aggression. However,
if the police
o l i c eofficer
f fi is pointing a gun at cr i m i nal suspect, and the
atter drew the gun wi th t he speed that ind icates his intention to
shot the former, there is unlawful aggression.
J9JC9B0M
III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 209
Porthos shouted at A r a m is: Wag hang magtapang-tapangan
dyan, papatayin kita! Without saying anything more, Aramis drew
his gun from his waist and shot Porthos in the leg. Porthos' wound
was not l if e t h r e atening. There i s n e i t her a ctual no r i m m i n ent
unlawful aggression. The statement "papatayin kit a" does neither
constitute a n a t t ack w i t h p h y s ical fo rce or w i t h a w e a p o n, a n
offensive actthat positively determines the intent of the aggressor
to cause the injury nor an impending attack, which is offensive and
positively strong. (201 7 Bar Exam)
1. A gg r e s sion M ust B e U n l a w fu l — A re a s onableforce
made by a p o lice officer to a r r e st a s u s pect is n ot a n u n l a w f ul
aggression since the former is merely performing his duty. Hence,
killing the police officer while engaged in the performance of duty
of arresting the accused constitutes direct assault wit h h o micide.
' (People v. Gayrama, G.R. Nos. L-89270 and L-89271, October 80,
1984)
Mr. R entered the house by breaking the window and took
money and jewelries therein. Mrs. B, owner of the house, shouted
"stop or I w i l l s h oot," and pointed the gun at h i m , a nd cocked it.
Fearing for his l i fe, Mr . R w r est th e gun away from M rs. B, and
thereafter, killed her with the gun. Mr. R cannot invoke self-defense
because the aggression on the part of the Mrs. B is lawful for having
been made in the exercise ofright to defend her property from
unlawful invasion. (2019 Bar Exam)
However, un reasonable and u n n ecessary force made by the
police officer to arrest a suspect (such as immediately shooting the
unarmed person to be ar rested; 1989 Bar E x a m) is an u n l a w f ul
aggression.Hence, a stranger or relative may use reasonable counter
force against th e p olice officer to r epel th e u n l awful a ggression.
In this situation, the police officer is liable for physical injuries or
homicide with mi t i gating circumstance of incomplete performance
of duty (People v. Oanis and Galanta, G.R. No. 47722, July 27, 1948)
while therelative or stranger is not liable for direct assault because
of the justifying circumstances of defense of relative and defense of
stranger. (The Revised Penal Code by Chief Justice Ramon Aqui no;
Dumo, CA 40OG 5th Supp. 58)
Policeman hit a student with a truncheon to disperse students
for conducting rally without permit. The force used by the policerr" an
to disperse students is not reasonable; hence, it constitutes unlawful
aggression. The accused, who hit the forearm of the policeman width
a bottle to prevent him from further hurting the student, is not liable
 210 CRIMINAL LAW REVIEWER
VOLUMEI
for resistance because of the justifying circumstance of defense of
stranger. (1984 Bar Exam)
If a person caught his wife and paramour in the act of having
sexual intercourse, it would be natural and lawful for him to assault
his wife and her paramour in order to defend his h
. If h b d
killed
i e t h e p a r amour of his wife,he is not committing a felony since
he acted under absolutory cause under Ar t i cle 247. On the other
hand, if the paramour k i l l ed the husband to defend himself from
the assault of the latter, the former could not invoke self-defense.
The attack made by the husband under exceptional circumstance is
not a felony (People v. Araquel, G.R. No. L-126'29, December 9, 1959;
People v. Abarca, G.R. No. 74488, September 14, 1987); hence, it is
not an unlawful aggression within the contemplation of self-defense.
In US v. Merced, G.R. No. 14170, November 23, 1918, it was
h eld
e thata th ee par amo u r w el l k new t h at , by m aintaining unlawful
relation with a married woman, he was performing an unlawful and
criminal act and exposed himself to the vengeance of the offended
h usband. Thus t hhe paramours plea of self-defense was rejected.
(1981 Bar Exam)
2. A gg r e s sion Must Be N on-mut ual — Ev en though the
victim with a weapon assaulted the accused first, if the latter got
a weapon inside the house and confronted the former outside the ,
house, the plea of self-defense will be rejected. By confronting the
victim outside the house, the accused impliedly accepted a challenge
to a fight and exposed himself to the consequences of a fight. Thus,
accused could not successfully plead self-defense
since mutual
unlawful aggression could not be the basis thereof. (Rugas v. People,
G.R. ¹ . 14 7 7 89,January 14, 2004; People v. Dela Cruz, G.R. No.
128859, December 6; 2000; 1974 and 1978 Bar Exams)
Two women, who are exchanging highly offensive word
or s i n
thee presence of acrowd of people, are both liable for simple oral
e amation. O n e cannot i n v oke self-defense
a gainst t h e other
w ho uttered the more insulting expressions. T 'I f
o avai o c o m pI ete
se - e ense, the defensive libel must b e r easonably necessary to
neutralize the effects of the unlawful aggression against honor in the
form of libel. In sum, the libelous means employed by the accused
must e r e a sonably necessary to restore her ru i ned reputation or
onor and not j ust t o r e t aliate by r u i n in g also the reputation of
t e e f a m er. Retaliation or vindictiveness can hardly be a basis of
self-defense. (People v. Rayo, CA., 58 O.G. 86'l8; The Revised Penal
J9JC9B0M
III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 211
Code by CA Justice Luis Reyes) Since both are mutual slanderers,
neither of them can avail the benefit of justifying circumstance of
self-defense. In mutual slanderous aggression, both slanderers are
criminally liable for defaming each other. (Villanueva v. Chavez, 48
O.G. 1829; 2011 Bar Exam)
In mutual aggression, both aggressors are criminally l i able.
Neither of t h e m ca n i n v oke pa ri d e l i c to p r i n c iple. The r u le o n
pari delicto is a rule in civil case. This pari delicto principle is not
applicable to criminal case. (Evangelist v. People, G.R. ¹. 898 1 9 ,
October 12, 1998)
3. Ce a s e d A g gression — The unlawful aggression on ~the
part ofthe victim ceased when accused Rodolfo was able to get hold of
the bladed weapon. Although there was still some struggle involved
between the victim and accused, the latter, who was in possession of
the same weapon, already became the unlawful aggressor. (Belbis,
Jr. v. People, G.R. No. 181052, November 14, 2012)
Retaliation is not the same as self-defense. In retaliation, the
unlawful aggression that was begun by the inj ured party already
ceased when the accused attacked him, wh ile in self-defense, 'the
unlawful aggression still existed when the aggressor was injured by
the accused. Retaliation is not a defense (Belbis, Jr. v. People, ibid.)
but merely constitutes a m i t i g atin g ci r cumstance of v i n dication
of grave offense. On th e o t her h a nd , self-defense is a j u st ifying
circumstance.
a. D is a r m i n g t h e A g g r e ssor — A s a r ul e w h e n
t he accused disarmed the unlawful aggressor, killing him i s
not justified since aggression ceased to exist. The u n l awful
aggression ceased as soon as the danger on the life and limb
of the accused vanished when he wrested the weapon from the
deceased. (People v. Pagador, G.R. Nos. 140006-10, April 20 ,
2001; 1982 Bar Exam)
H owever, even i f t h e a ccused was able t o d i sarm t h e
aggressor, itcould not be said that the aggression ceased if
there was a possibilityas shown by his aggressive attitude
that the latter could regain possession of the weapon. (People
v. Raban-daban, G.R. No. L-2228, February 28, 1950) Plea of
self-defense isstill proper ifthe aggressor, despite having been
disarmed, still posed a threat to the life of the accused. (People
v. Samson, G.R. No. 214888, September 2, 2015)
 212 CRIMINAL LAW REVIEWER
VOLUME I
b. M it i g a t i n g C i r c u m s t ance — If t h e unlawful
aggression ceased,the accused is not entitled to complete or
incomplete self-defense. However, the ceased aggression can
be a source of mitigating circumstance of vindication of grave
offense. (David v. CA, G.R. Nos. 111168-69, June 17; 1998,'
Accused was sound asleep when she felt a man on top of
her. Believing that the man is her husband, the accused allowed
h im to have sexual i n t ercourse with h er . A f ter th e a ct, t h e
accused discovered that the man is not her husband. Furious,
she killed him. She is not entitled to justifying circumstance
of defense of honor since the unlawful aggression has already
ceased. However, the mitigating circumstance of vindication of
grave offense may be appreciated.(1998, 2000, and 2011 Bar
Exams)
Accused found the victim raping his daughter. The victim
ran away but the accused shot and killed him. Accused is not
entitled to self-defense since the aggression already ceased
when he killed the victim. But vindication shall be appreciated
in his favor. (People v. Babor, G.R. ¹. 10 6 8 7 5,September 24,
1996; 2002 Bar Exam)
4. De f e n s e of P r o p e r ty — In Pe ople v. Apolinar C A 38
O.G.
.G. 2870, defense of property is not of such importance as right
t o life, and d efense of p r operty ca n b e i n v oked as a j u s t i f yi n g
circumstance only when it is coupled with an attack on the owner or
lawful possessor thereof. (1977 Bar Exam)
However, in People v. Narvaez, G.R. Nos. L-33466-67, April 20,
1983, the invasion of property is treated as an unlawful aggression
although it was not coupled by an attack against the owner h e reof.
The owner or lawful possessor of property has the ri ght t o r esist
i nvasion of property in accordance with Article 429 of the Civil C& e ,
which provides "The owner or lawful possessor of a thing has the r!ght
to exclude any person from the enjoyment and disposal thereo
f. F' or
this purpose, he may use such force as may be reasonably necessary to
repel or prevent an actual or threatened unlaw
ful physical invas'-on
or usurpation of his property." However, since the means employed
to resist th e i n v ader ( k i l l i ngl i s n o t r e a sonable, the accused is
merely given the benefit of incomplete self-defense. Justice Florcnz
Regalado opined that the rule in Apolinar case may be deemed to
have been superseded by Narvaez case. (1988 and 1990 Bar Exams)
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 218
The Narvaez principle is applicable to justifying circumstance
o f performance of duty w h er e th e one wh o shot th e t h ief i s t h e
security guard of t h e c ompany (People v. Be ntres, (CAJ 49 O.G.
4919; 1996 Bar Exam); or to the justifying circumstance of defense
of stranger where the one who shot the thief is the neighbor of the
victim. (1 979 Bar Exam) If the means employed by the security guard
or the neighbor to repel unlawful aggression against the property
of the company or another person is not reasonable, the privileged
m itigating c i r cumstance of i n c omplete p erformance of d u t y o r
incomplete defense ofstranger's property shall be appreciated.
5. M i s t a k e o f F a c t — Th e f i r s t r e q u isite of d e fense of
relative or stranger is that t h ere must be unlawful aggression on
the part of the person killed or injured. However, even if there was
no unlawful aggression, the accused is entitled t o th e b enebit of
justifying circumstance of defense of relative or stranger as long as
he honestly believed that his relative or the stranger was a victim
of unlawful aggression and the threat to his life and limb was still
present. (U.S. v. Esmedia, G.R. No. 5749, October 21, 1910; Olbt nar
v. Court of Appeals, G.R. No. 76285, January 21, 1991; 2002 Bar
Exam) However, Esmedia case is not applicable if perceived unlawful
aggression againstthe relative has already ceased when the accused
assaulted the victim. (Pepito v. CA, G.R. No. 119942, J'uly 8, 1999)
Reasonable and Necessary Means
The means employed by a person claiming self-defense roust
be commensurate to the nature and the extent of the attack sought
to be averted,and must be rationally necessary to prevent or repel
an unlawful aggression. (Belbis, Jr. v. People, G.R. No. 181052,
November 14, 2012)
Under the doctrine of rational equivalence, plea of self-defense
would prosper if there is a rational equivalence between the ineans
of attack by the u n l awful aggressor and the means of defense by
the accused that w o ul d c h aracterize th e d efense as r eason. able.
The doctrine of rational equivalence presupposes the consideration
n ot only of t h e n a t ur e an d q u a l it y o f t h e w e apons used by t h e
defender and the assailant but also of the totality of circumstances
surrounding the defense vis-a-vis, the unlawful aggression. Clearly,
t his "continuous attack" by th e accused despite the fact that t h e
aggressor was already neutralized by the blow constitutes force
beyond what isreasonably required to repel the aggression — and
 214 CRIMINAL LAW REVIEWER
VOLUME I
is therefore unjustified. (Espinosa v. People, G.R. No. 181071, Mar:h,
15, 2010; People v. Olarbe, G.R. ¹. 22 7 4 21,July 28, 2018; 1980 Bar
Exam)
It is undoubtedly well-established in jurisprudence that a man
is not, as a rule, justified in taking the life of one who assaults him
with his fist only, with the use of a dangerous weapon. The person
assaulted must, in such case, either resist with the arms that nature
gave him or wit h ot her means of defense at his disposal, short of
t aking li fe. Bu t t h a t r u l e c ontemplates the si t u ation w h ere t h e
contestants are in the open and the person assaulted can exercise
the option of running away. It can have no binding force in the case
where the person assaulted has retreated to the wall, as the saying
goes, and uses in a defensive way the only weapon at his disposal.
One is not required, when hard-pressed, to draw fine distinctions as
to the extent of the injury which a reckless and infuriated assailart
might pr obably in fl ict u p o n h i m . (P eople v. Su m ic ad, G .R. N c .
L-85524, March 18, 1982; 1966 and 2011 Bar Exams)
Lack of Sufficient Provocation
To be entitled to self-defense, the accused must not have given
cause for the aggression by hi s u n j ust conduct or by i n c i t i ng o :
provoking the victim. (Ri mano v. People, G.R. ¹. 15 6 5 67,Novembe."
27, 2008) The term "sufficient" from the Spanish word "adequada"
m eans proportionate. The provocation should be proportionat t
th
t e act ofaggression and adequate to stir one to its commissior
(The Revised Penal Code by Sen. Ambrosio Padilla) Th is ru le is a
safeguard against criminal, who intends to misuse the benefit of seÃ
defense. For example, to implement his criminal design to kill wit h
impunity, accused would provoke first his intended victim to do an
aggressive act before killing him.
BATTERED WOMAN SYNDROME
B attered woman syndrome is a d efense notwithstanding the
absence of any of the elements for justifying circumstance
f 1:-
def
e ense under the Revised Penal Code such as unlawful aggression.
(Section 26 of R.A. No. 9262; 2010 and 2016 Bar Exams)
Under Section 3(c), ba ttered woman s yn d rome r e fers to a
s cientifically d e fi ne d p a t t e r n of psychological a n d b e h a vioral
symptoms found i n w o m e n l i v i n g i n b a t t e r in g r e l ationships as
a result of cu m u l ative abuse. Under Section 3(b), battery r e fers
to an act of inflicting physical harm up on the woman or her child
J9JC9B0M
III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY l?15
resulting to the ph ysical and psychological or emotional dis tress.
Under Section 3(a), the w oman m ust h av e a m a r i t al , sexual, or
dating relationship with the man.
From the provisions of Section 3(a), (b), and (c), the elements
of battered woman syndrome can be identified. These are: (I) that
the battering man, with whom the battered woman has a marit'.al,
sexual or dating relationship, inflicted physical harm upon her; (2)
that the infliction of physical harm must be cumulative; and (3) the
cumulative abuse results to physical and psychological or emotiorial
distress to the woman.
1. Cum u l a t i v e Abuse —Cumulative means resulting from
successive addition. Thus, single act of battery or p h y sical harm
resulting to th e p h ysical and psychological or emotional distress
is not sufficient to avail of the benefit of justifying circumstance of
battered women syndrome.
The battered woman syndrome i s ch aracterized by th e s o-
called "cycle of violence," which has three phases: (1) the tension-
building phase; (2) the acute battering incident; and (3) the tranquil,
loving (or, at least, non-violent) phase. In order to be classified as a
battered woman, the couple must go through the battering cycle at
least twice. Because of this cycle of violence, woman feared imminent
harm from her batterer and honestly believed in th e need to kill
him in order to save her life. (People v. Genosa, G.R. No. 185981,
January 15, 2004; 2010 and 2016 Bar Exams)
2. P h y s i c a l H a r m — A w oma n mu s t b e a vi ct i m o f
battery to make her relationship with the victim battering. Battery
under the law refers to an act of inflicting physical harm upon the
woman or her child resulting to the physical and psychologica'i or
emotional distress. There are two aspects in this definition, to; .oit:
(1) act of inflicting physical harm; and (2) the resulting physical
and psychological o r e m o tional d i s t ress. Since t he a b u se m u s t
be cumulative, there must be at l east two episodes involving the
infliction of physical harm. (2011 Bar Exam) If the first episode is
infliction of physical harm and the second episode is verbal abuse,
the accused cannot avail ba ttered woman syndrome as a defense.
(201 5 Bar Exam)
3. P hy s i c a l an d P s y chological or E m o t i onal D i stress
— As a r esult of a t l e ast tw o episodes involving the infliction of
physical harm, th e w o man s uffers physical and p s ychologicai or
emotional distress, she can now invoke the battered woman syndrome
 216 CRIMINAL LAW REVIEWER
VOLUME I
as a defense. (2010, 2011, 2014, 2015, and 2016' Bar Exams) The
essence of battered woman syndrome as a defense is that battered
woman, who suffers from physical and psychological or emotional
distress, is acting under an ir r e sistible impulse to defend herself
although at the time of commission of the crime the batterer has not
yet committed unlawful aggression. In Genosa, supra, it w as held
that the woman must have actually feared imminent harm from her
batterer and honestly believed in the need to kiLL him in order to save
her life. The woman can only entertain fear of imminent harm from
the victim after seeing a pattern of violence, which requires at least
two batteringepisodes.
AVOIDANCE OF GREATER EVIL OR INJURY
To justify f elonious act committed u n der j u s tifying circum-
stance of avoidance of greater evil or i n j ur y or st a te of necessity,
the following elements must concur: (1) that the evil sought to be
avoided actually exists; (2) that th e i nj ur y feared be greater than
that done toavoid it;and (3)that there be no other practical and less
harmful means of preventing it:
1. T hr e a t t o C o m m i t S u i c i d e — X, a b ea u t y q u e e n,
was raped by three black Americans. Out of extreme shame and
after three months, X went to Dr . Yes and asked for an abortion.
Dr. Yes steadfastlyrefused until X produced a bottle of iodine and
informed him that if he would not abort her baby, she would righ-.
t hen and there commit suicide. With hesitation but pit ying X, Dr .
Yes performed an abortion on X w h ich was successful. Dr. Yes is
not exempt from criminal l i ability. Suicide, which is sought to be
avoided, is not an evil greater than abortion. Moreover, the threat
to commit suicide is not imminent. In sum, evil sought to be avoidec.
does notexist.(1979 Bar Exam
) This evil is greater than killing two individuals because the instinct
2. La w f u l Ac t I s N o t a n E v i l — X a r m e d with a w eapon
attacked A. B pe rson drew his g un to d efend A. But t h e a ccused
prevented B from shooting X and grappled with him for possession
of the gun. A died. The accused cannot invoke state of necessity as a
defense. The act of B in defending A is lawful. This lawful act is not
an evil which can be sought to be avoided. (People v. PadernaL, G.IL.
No. L-30527, March 29, 1974; 2004 Bar Exam)
3. E u t h anasia — Euthanasia or mercy killing is conde
mne
a although the motive may be to spare a hopeless patient fromd
by law
prolonged suffering. (Bagaj o v. Marave, G.R. No. 1-33345 November
P
J9JC9B0M
217
III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY
20, 1978) The killing could not be justified as avoidance of a greater
e vil since ending the life of the patient is an evil greater than hi s
physical sufferings. (1990 Bar Exam) The accused, who shut off the
oxygen that was sustaining the patient r esulting in hi s death, is
liable for m u r der. Euth anasia is not a d efense. (1991, 2009, and
2011 Bar Exams) If the victim did not die, the accused is liable ~for
attempted murder. (People v. Umaguing, G.R. No. 1-52797, August
31, 1981)
Mercy killing is not the same as assistance to suicide punishable
u nder Ar t i cle 253 of t h e R e vised Penal Code. In m e rcy k i l l i n g ,
t he accused himself decided to kill th e p atient to spare him f r om
prolonged suffering.In assistance to suicide, the patient decided. to
c ommit suicide and the accused assisted him to commit it or l e n d
his assistance to hi m t o t h e e x t ent of d oing th e k i l l in g h i m self.
Euthanasia is not a defense; hence, the accused, who is responsi:ble
for mercy killing, may be held liable for murder or parricide. On the
other hand, assistance to suicide is a felony. (2011 Bar Exam)
4. A b o rtion — Av oidance of a greater evil may justify
abortion to save the life of the mother. The life of the mother may be
considered as more important than that of the fetus. CA Justice Luis
Reyes and Justice Florenz Regalado opined that abortion to save '1;he
life of the mother is justified under the state of necessity rule. (1999
Bar Exam)
5. Sa v i n g H i s Ow n L i f e — To save himself from crashing
into an unlighted truck abandoned on the road, accused swerved his
car to the right towards the graveled shoulder, killing two bystanders.
He is entitled to th e j u stifying circumstance of state of necessity
(Guevarra) The accused in saving his life is in effect avoiding evil.
of self-preservation dictatesthat the life of the actor is of greater
importance than that of another. There is no other practical and
less harmful means to save his life. The accused has no choice but to
swerve to the right to avoid crashing into a truck. (2011 Bar Exam)
PERFORMANCE OF DUTY
To appreciate the ju stifying circumstance of performance of
duty, the following requisites must concur: 1) the accused must have
acted in the performance of a duty or in the lawful exercise of a right
or office; and 2) the injury caused or the offense committed should
have been the necessary consequence of due performance of duty or
 218 CRIMINAL LAW REVIEWER
VOLUME I
lawful exercise of right or office. (People v. Oanis, G.R. No. 47722,
July 27, 1948)
No violence or unnecessary force shall be used in makin~ an
arrest and the person arrested shallnot be subject to any greater
restraint than what is necessary for his detention. (Section 2, Rule
118 of the Rules on Criminal Procedure)
Although an officer in m a k in g a l a w ful a r r est is ju stified in
using such force as is reasonably necessary to secure and detain the
offender, overcome his resistance, prevent his escape, recapture him
if he escapes, and protect himself from bodily harm, yet he is never
justified in using unnecessary force or in treating him with wanton
violence, or in resorting to,dangerous means when the arrest could
be effected otherwise. (People v. Gervero, G.R. No. 206725, July 11,
2018)
A police officer i n m a k i n g a l a w f u l a r r est o r c u stodian i n
preventing a prisoner from escaping should not fire at the person to
be arrested orprisoner unless there is an absolute necessity to do
so. They could only fire at the person to be arrested or prisoner in
self-defense. (People v. Felipe Delima, G.R. No. L-18660, December
22, 1922; 1949 and 1998 Bar Exams); or if it is absolutely necessary
to prevent his escape. (People v. Lagata, G.R. Nos. L-1940-42, March
24, 1949) If the police officer employed reasonably necessary means
to repelresistance of person to be arrested, the former may plead
two defenses, to wit: performance of duty and self-defense (Nacnac
v. People, G.R. No. 191918, March 21, 2012) or defense of stranger.
(Masipequina and Alampayan v. CA and People, G.R. No. L-51206,
August 25, 1989)
I f the custodian, who al r eady had r easons to fear t ha t t h e
prisoner would be able to elude him, fired his gun, he is not liable for
his death because of the justifying circumstance of performance of
duty. (Valcorza v. People, G.R. No. L-28129, October 81, 1969; 1998
Bar Exam)
H owever, if the prisoner who escaped was fired upon by t h e
guard and he was hit on the thigh at a distance of four meters, there
was no absolute necessity to fire again resulting in the death of the
prisoner as he could then easily be captured. (The Fundamentals
of Criminal La w Reviewer by Antonio Gregorio) In s uch case, the
custodian is only entitled to privileged mitigating circumstance of
incomplete performance of duty. (People v. Oanis, supra; 2000 Bar
Exam)
J9JC9B0M
III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 219
EXERCISE OF RIGHT
In Sycip, Jr. v. CA an d P eople, G.R. No. 125059, March 17,
2000, under P.D. No. 957, the buyer of a townhouse unit has the right
to suspend his amortization payments, should the developer fail to
develop or complete the project in accordance with duly-approved
plans and specifications. In the exercise of right to suspend payment
under the l aw, accused closed her checking account resulting in
the dishonor of the checks issued in payment of amortizations of
a townhouse. According to the Supreme Court, the exercise of ibis
right to suspend payments should not r e nder th e accused liable
under B.P. Blg. 22. The rule on justifying circumstance of exerc:ise
of right under the Revised Penal Code was supplementarily appli.ed
to B.P. Blg. 22.
OBEDIENCE TO A LAWFUL ORDER
Three requisites must concur before defense under Article 11(6)
can prosper: (1) order has been issued by a superior; (2) such order
must be for some lawful purpose; and (3) means used by subordinate
to carry out such order is lawful.
Order Issued by a Superior Officer
C ourt i s sued w a r r an t o f ar r e s t a g a i ns t a n a c c u sed. I n
implementing the w a r r ant, th e police officer may use reasonable
force necessary fo r i t s d u e e x e cution. Th e a c t o f g o v ernment
authorities in obedience to lawful order of a superior officer is also
justified under the circumstance of performance of duty.
J apanese imperial a r m y d u r i n g t h e o c cupation cannot b e
considered as s u p erior of ficer .withi n t h e c o ncept o f j u s t i fyi.ng
circumstance of obedience to an order. (People v. Manayao, G.R. No.
L-822, July 28, 1947)
Lawful Order
In People v. Barroga, G.R. No. 31563, January 16, 1930, En
Banc, the a ccused freely a d m i ts t h a t h e p r e p a red t he f a l s ified
documents with fu ll k n o wledge of their falsity; but he alleges t!hat
he did so from data furnished by his immediate chief, and only in
obedience to instructions from him. It was held that with respect; to
the alleged instructions given by his superior, accused is still liable
f or falsification, inasmuch as such i n st ructions were not l a w f ul .
In order t o e xempt f ro m g u i lt , obedience must be a c o mpliance
 220 CRIMINAL LAW REVIEWER
VOLUME I
with a l a w ful or der, and t ha t s u perior acted wit hi n t h e scope of
his authority. In sum, his duty to obey his superior should not be
opposed to his higher positive duty to obey the law prohibiting him
to commit a crime.
O rder to torture a cr i m i nal suspect is not l a wful, and t h u s,
obedience to such order is not a justifying circumstance. (People v.
Margen, G.R. No. L-26'81, March 30, 1950)
Exception: The accused must be aware of the illegality of the
order issued by superior.If the illegality of the order is not patent
and the accused honestly believed that th e or der was issued for
lawful purpose, act done in obedience of said order is justified under
the principle of "ignorantia facti excusat" in relation to Article 11(6).
(People v. Beronilla, G.R. No. L-4445, February 28, 1955)
In Ta buena v. Sa n diganbayan, G. R. No. 1 03507, February
17, 1997, former P r esident M a r cos in structed accused, General
M anager of th e M a n il a I n t e r n ational A i r p ort A u t h or it y ( M I A A ) ,
o ver the p h one t o p a y d i r e ctly t o t h e p r e sident's office and i n
cash what th e M I A A o w es th e Ph i l i ppine N a tional Construction
Corporation (PNCC), to which Tabuena replied, "Yes, sir, I will d o
it. "About a week later, Tabuena received Presidential Memorandum
reiterating in black and white such verbal instruction. In obedience
to President Marcos' verbal instruction and memorandum, accused
caused the release of P55 Million of MIAA funds in favor of PNCC.
The position of the prosecution was that there were no outstanding
obligations in f avor of P NC C at t h e t i m e of th e d i sbursement of
the P55 Mil l i on. On th e ot her h a nd, th e defense of accused was
that they acted in good faith. Accused claimed that he was merely
complying with the MA RCOS Memorandum which ordered him to
forward immediately to the Office of the President P55 Mil lion in
cash as partial payment of M I A A's obligations to PNCC, and that
he was of the belief that MIAA indeed had liabilities to PNCC. Held:
Marcos had a say i n m a t t er s i n volving i n t er-government agency
affairs and transactions, such as for instance, directing payment of
liability of one entity to another and the manner in which it should
be carried out. And as a recipient of such kind of a directive coming
from the highest official of the l a nd no less, good faith should be
read on accused's compliance, without hesitation nor any question,
w ith th e M A R COS M e morandum. A ccused therefore is e n t i t l ed
t o the justifying circumstance of obedience to l awful o r d er. T h e
subordinate-superior relationship between accused and Marcos is
J9JC9B0M
III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 221
c lear. And so too, is the lawfulness of the order contained in t h e
MARCOS Memorandum, as it has for its purpose partial paymen~t; of
the liability of one government agency (MIAA) to another (PNCC).
Lawful Mean s
A police officer should only u s e f orce, which i s r e asona'bly
necessary in apprehending an accused by virtue of warrant issued
by competent court.
E XEMPTING CIRCUMSTA N C E
There are two kinds of exempting circumstance, to wit: general
exempting circumstances and specific exempting circumstances.
G eneral exempting circumstance can be appreciated in a n y
crime even if it punishable under special law in favor of any offender,
whether p r i n cipal, accomplice or a c cessory. General exempting
circumstances are those listed in Article 12 of the Revised Penal Code
such insanity, imbecility, accident, irresistible force, uncontrollable
fear, and lawful and i n superable cause and Section 6 of R.A. No.
9344 on minority. (1950 and 1970 Bar Exams)
Specific exempting ca n b e a p p r eciated i n a s p e cific cr i i n e
or crime i n f a vor o f s pecific offender. The f ollowing ar e specifiic
exempting circumstances:
1. Relationship infavor of accessory by destroying or
concealing the bothy, mstrument or effects of the crime or by
helping the pr i ncipal t o escape under certain conditions; or
(Article 20) in theft, malicious mischief or swindling; (Art'',cle
332)
2. Exc e p t i onal c i r c u mstance i n f a v o r of one who
inflicted slight or less serious physical injuries upon his~ i~
or d~hter (Article247)
3. M i~ i n p r os t i t u t i on, sniffing rugby, mendicar cy,
or status offense, e.g., parental disobedience, curfew violation
or truancy; and(Sections 57 and 58 ofR.A. No. 9344)
4. B e i n g a t r a f f i cked victim i n p r o stitution, working
w ithout permit , r ebellion or a n y o t her c r im e committed i n
relation to tr afficking in p erson or in obedience to the order
made by the trafficker in relation thereto. (Section 17 of R.A.
¹. 9 208)
 222 CRIMINAL LAW REVIEWER
VOLUME I
T he s i m i l a r it y a n d di s t i n c tions b e t w een j u s t i f y in g a n d
exempting circumstances are as follows:
In both justifying and exempting circumstances,the accused
d oes not incur criminal liability .
Justifying circumstance pertains to the act complained of while
~e- e~3~ cir c u m st ance to ~ a~ o . I n s u m , under Article 11, the
act is justified while under Article 12, the act is not justified but the
a ctor is exempt from criminal liability .
When justifying circumstance is present, the act is justified;
h ence it i s n o n -felonious. The non-criminal ch aracter of t h e a c t
w ould make the actor exempt not only from criminal li ability bu t
also civil liability. A non-felonious act could not be a source of civil
obligation arising from crime. However, the actor or third persons,
who may have benefited from justified act of avoiding a greater evil,
shall be held civilly liable because of the rule on unjust enrichment.
When exempting circumstance is present, the act is unjustified
a nd criminal, although the actor is exempt from criminal liability .
The exemption of the actor does not extend to civil liability arising
f rom crime. Th e a ct , b eing c r i m i n al, could b e a s o u rce of c i v i l
obligation of the exempted actor. However, there is an exception. An
act committed with th e exempting circumstance of accident under
Article 12(4) could not be characterized as criminal because culpa
and dolo are absent. An act committed without culpa and dolo is not
a felony. Hence, an accidental act for being non-felonious could not
be a source of civil liability.
Imbecilit
y ' Bar Exam)
In exempting circumstance of minority under Section 6 of R.A.
N o. 9344 as amended by R.A. No. 10630, what is important is th e
chronological age of the accused. If the actual age of the child at the
time of the commission of the crime is 15 years old or under, he is
exempt from criminal liability. In People v. Roxas, 6.R. ¹. 2 0 C 793,
June 4, 2014, indetermining age for purposes of.exemption from
criminal liability, Section 6 clearly refers to the age as determined
by the anniversary of one's birth date, and not the mental age.
In exempting circumstance of imbecility, what i s i m p ortant
is the mental age of the accused. If the mental age of the accused
is two years, he is an i d i ot; if seven years old, he is an i m becile.
(People v. Butiong, G.R. No. 168982, October 19, 2011) An idiot or
imbecile is exempt from cr i m i nal l i a bili ty . On t h e ot her h and, if
J9JC9B0M
III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 2I!3
the mental age ofthe accused is 12 years old,he is feebleminded or
moron. (People v. Butiong, ibid.) A feebleminded accused is not an
imbecile; hence, he is not exempt from criminal liability by reason of
imbecility (Peoplev. Nunez, G.R. ¹s. 112429-80, July 28, 1997); but
mitigating circumstance of mental illness may be appreciated in his
favor. (People v. Formigones, G.R. ¹. L - 8 2 4 6, November29, 1950)
In People v. Roxas, supra, the chronological age of the accused
is 18 years old while his mental age is nine years old. Exempting
c ircumstance of m i n orit y c a nnot b e a p preciated since he i s n o t
a minor. Hi s actual age i s no t b elow 18 y ears. Neither can th.e
exempting circumstance of imbecility be appreciated. He is not an
imbecile since his mental age is not seven years.
I nsanit y
Acts penalized by law are always presumed to be voluntary,
and it is improper to conclude that a person acted unconsciously ~.'n
order to relieve him of liability, unless his insanity is conclusive.ly
proved. (People v. Pa m b id, G . R. N o . 12 4 4 58, Ma r ch 15 , 2 0 0 '!))
Insanity is an exception rather than a rule in the human conditioti.
The presumption, under Article 800 of the Civil Code, is that every
human is sane. Anyone who pleads the exempting circumstance of
insanity bears the burden of proving it w it h clear and convincing
evidence. It is in the nature of confession and avoidance. An accused
' invoking insanity admits to have committed the crime but claim.s
that he or she is not guilty because of insanity. (People v. Tibon, G.R.
No. 188320, tune 29, 2010; People v. Mirana, G.R. No. 219118, April
25, 2018; People v. Bacolot, G.R. No. 288193, October 10, 2018; 2011
A man wh ile sleeping dreamed that he was attacked by h ei.s
enemies with whom he had quarreled the day before.Suddenly, he
got up, took his bolo and killed his wife, wounded his father arid
several other persons. Finally, he stabbed himself but did not die.
Motives of the crime are not shown. Accused is exempt from criminal
liability. A state of somnambulism (sleepwalking) is embraced in a
plea of insanity since he is not conscious in committing the criminal
act. (People v. Taneo, G.R. No. 37678, March 31, 1988; 1956 Bar
Exam)
H owever, that the accused committed the crime while in t h e
state of somnambulism must be established by convincing evidence.
(People v. Odicta, G.R. No. 1 749,March 21, 1905; People v. Gimena,
G.R. No. 88877, February 6, 1931)
 224 CRIMINAL LAW REVIEWER
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1. Te st s of in s a n i ty — Th e r e a r e t w o t e s ts (P eople v .
Formigones, G.R. ¹. L -82 4 6 , No v ember 29, 19 50) to determine
whether th e m e n ta l c o n dition o f t h e a c cused i s e x empr.'ng or
mitigating, to wit: test of cognition and test of volition.
a. Test of Cognition —Under the test of cognition, the
mental condition of the accused is an exempting circumstance
of insanity if th ere was a complete deprivation of intelligence
in committing the cri m i nal a c t (People v. Bulagao, G.B. No.
184757, October 5, 2011; People v. Bacolot, G.R. No. 288198,
October 10, 2018); or mitigating circumstance of mental illness
if there was only a partial deprivation of intelligence. (People v.
Puno, G.R. No. L-88211, June 29, 1981)
M ere abnormality o f t h e m e n t a l f a c u l ties i s not an
exempting circumstance of insanity. (People v. Marzan, G.R.
No. 207897, September 24, 2018)
After satisfying his lust, accused threatened the victim.
This implies that accused knew what he was doing, that it was
wrong, and wanted to keep it a secret. It also indicated that the
crime was committed during one of his lucid intervals. Accused
is not exempt from l i ability for f a i l ur e to pass the cognition
test. (People v. Alipio, G.R. No. 185285, October 5, 2009)
The fact, that i m m e diately after t h e i n cident offender
thought of surrendering to the law-enforcement author::-ties, is
incontestable proof that he knew that what he had done was
wrong and that he was going to be punished for it. (People v.
Villa, Jr., G.R. ¹. 12 9 8 99,April 27, 2000)
Immediately after stabbing the victim, accused escaped
and went into hi ding. Contrary t o a fi n d ing of the existence
of insanity, these acts tend to establish that accused was well
aware of what h e h a d j u st , committed, and wa s capable of
distinguishing right from wrong. Otherwise, he would not have
attempted to escape and go into hiding. (People v. Belonk, G.R.
¹. 1 48695,May 27, 2004)
Admission of the accused that he killed the victim out of
anger and a desirefor revenge militates against the defense
of insanity. (People v. Antonio, G.R. No. 144266, November 27,
2002)
b. T e s t o f V o l i t ion — Un d er the test of volition, the
mental condition of the accused is a mitigating circumstance
J9JC9B0M
III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 225
of mental illness if there is deprivation of freedom. In sum, if a
sex maniac or homicidal maniac had merely passed the volition
test but not the cognition test, he wi I cnly be given the benefit
of mitigating circumstance o: illness. Diminution of freedom is
enough to mitigate the liabi ity of the offender suffering from
illness. (see: People v. Rafanan, Jr., G.R. No. 54185, November
21, 1991) Thus, kleptomania is a m i t ' g ating circumstance of
mental illness. (1950 Bar Exam)
In People v. Bonoan, G.R. No. 45130, February 17, 1987, a
schizophrenic accused, who acted under irresistible homicidal
i mpulse to k i ll , wa s acquitted. due tc i n sanity. I n s um , t h e
S upreme Court m e r el y c o nsiderec. the t es t o f v o l i t io n i n
declaring the accused as exempt from criminal liability. This is
not anymore, a good rule.
The basis of t h e e x emptin g c i r cumstance of i n s anity
is lack of intelligence and not lack of freedom. Thus, even if
the mental condition of th e accused had passed the voli!tion
t est (deprivation of f r eedom), the p lea of i n s anity w i l l n o t
prosper unless it also passed the cognition test (deprivation of
intelligence). The controlling rule is cognition test for purposes
of the exempting circumstance of insanity. (People v. Opuran,
G.R Nos. 147674-75, March 17, 2004)
Under the Cognition Test, the accused will be convicted
if he was not totallydeprived of reason and freedom of will.
(People v. Garchitorena, G.A. ¹. 1 7 5 605,August 28, 2009)
Only when there is a complete deprivation of intelligence at
the time of the commission of the crime should the exempting
circumstance of insanity b c c onsidered. (People v. Bu l agao,
G.R. No. 184757, October 5, 2011)
In several Supreme Court cases, the pleas of i nsanity
of accused who are suffering from schizophrenia or psychosis
were rejected because of fai:ure to pass the cognition test. In
absence of evidence that schizophrenic or psychotic accused
w as deprived completely of i n t e l ligence at t h e t i m e o f t h e
commission of the crime, it is presumed that he is sane when
he committed the crime. (People v. Medina, G.R. No. 118691,
February6;1998; People v.Pascual, G.R No. 95029, March 24,
1998; 1991 Bar Exam) In People v. Mcrzan, G.R. No. 207397,
S eptember 24, 2018, schizophrenia does not f all w i t hi n t h e
stringent st andard c ontemplated b y l a w a s a n e x e mp!ting
circumstance of insanity.
 226 CRIMINAL LAW REVIEWER
VOLUME I
However, schizophrenic or psychotic accused is entitled to
mitigating circumstance of mental illness if there is a partial
deprivation of intelligence or deprivation of freedom.
2. T im e o f i n s a n it y — Th e m e n t al c ondition of ac "used
at the very time of commission of the crime must be considered to
make it an exempting circumstance of insanity (People v. Haloc,
G.R. No. 227812, September 05, 2018; People v. Yam-id, G.R. No.
126116, June 21, 1999; Verdadero v. People, G.R. No. 21 6021, March
2, 2016); or mi t i gating circumstance of mental i l l n ess. (People v.
Arevalo, Jr., G.R. Nos. 150542-87, February 8, 2004, En Banc
) In
sum, the mental condition of the accused is neither an exerrpting
circumstance nor a m i t i g a t i ng c i r c umstance if t h e a c cused was
already treatedfor schizophrenic condition several years before the
commission of rape (People v. Arevalo, Jr., ibid.) or was diagnosed
of his psychotic condition more than a year after the commission of
murder. (People v. Opuran, G.R. Nos. 147674-75, March 17, 2004;
2010 Bar Exam)
I f the accused becomes insane after th e commission of t h e
crime, the criminal proceeding shall be suspended and he shall be
brought to mental hospital for mandatory treatment until he could
understand the proceeding. (2010 Bar Exam)
E vidence of i n s a nit y m u s t h a v e r e f erence t o t h e m e n t a l
condition of accused at the very t im e of commission of the c"ime.
However, it is permissible to receive evidence of his mental conc,ition
for areasonable period both before and after the time of the act in
question. Direct testimony is not r equired nor th e specific acts of
d erangement essential to establish insanity as a defense. (People v.
Haloc, G.R. No. 227812, September 5, 2018
)
Accident
The elements of this exempting circumstance are: (1) a person
is performing a lawful act; (2) with due care; (3) he causes an::njury
to another by mere accident; and (4) without any fault or intent'on of
causing it. (People v. Fallorina, G.R. No. 187847, March 4, 2004, En
Bane) In sum, in accident the act that caused injury must be lawful
and committed without dolo or culpa.
Lawful act
Accused borrowed a high-powered firearm and used it to hunt
w ild pigs. He shot a w i l d p i g , bu t t h e b u l let r ecoiled and k i l l ed
J9JC9B0M
III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 227
another person. He is l i able for reckless imprudence resulting in
homicide. Registered firearm i n t h e p o ssession of a n i n d i v i dual
other than th e l i censee is a loose firearm. (Section 8 of R.A. ¹ .
1 0591) Borrowing fi r e ar m f r o m a n o t her p e rson constitutes t h e
crime of possession of loose firearm. (Section 28) Hence, the accused
is not performing a lawful act, which is an element of accident as
an exempting c i r c umstance. F u r t h ermore, u s in g h i g h -powered
firearm in hu n t ing pigs is culpable. Moreover, using loose firearm
in committing a crime will be considered as a special aggravating
circumstance. (Section 29; 1989 Bar Exam )
Without culpa
The accused hunted and shot the chicken. But the bullet that, hit
the chicken recoiled and hit the deceased. Article 4 is not applicable
since hunting chicken is not a felony contemplated therein. Article
12 on accident applies since hunting checking is a lawful act, and
the same was committed without dolo and culpa. (US v. Ta nedo,
G.R. No. L-5418, February 12, 1910)
The accused tried to pacify two combatants in a fistfight and
fired shot at the ground. The bullet ricocheted and killed an innocent
bystander. Article 4 is not applicable since pacifying the two is not a
felony contemplated therein. Article 12 on accident is not applicable
since the accused committed the act with culpa. Article 365 applies.
Accused is liable for reckless imprudence resulting in homicide for
failure to take the precautions demanded by the circumstance that
the district was populated, and the likelihood that his bullet would
glance over the hard pavement of the Manila thoroughfare. (People
v. Nocum, G.R. ¹. L - 482, February 25, 1947)
The accused pointed his gun a t t h e v i c ti m a s a r e asonable
means to repel an unprovoked unlawful aggression committed. by
the latter. However, the gun accidentally fired, and killed the victim.
Article 4 is not applicable since his act of pointing the gun in self-
defense is justified. Article 12 on accident applies since firing a gun
in self-defense is a lawful act and the same was committed without
dolo or culpa. (People v. Tiongco, C.A. 68O.G. 8610;2014Bar Exam)
Irresistible Force and Uncontrollable Fear
The elements of th e ex empting circumstance of i r r esistible
forceare:(a) somebody used force compelling the accused to commit
crime; and (b) the force used must be irresistible.
 228 CRIMINAL LAW REVIEWER
VOLUMEI
The elements of the exempting circumstance of uncontrollable
fear are: (a) existence of an uncontrollable fear of an injury; (b) the
fear of an injury must be real and imminent; and (c) the fear of an
injury is greater than or at least equal to that committed.
Uncontrollable fear is not a m i t i g ating circumstance but an
exempting circumstance. (2018 Bar Exam )
A person who acts under the compulsion of an irresistible force,
like one who acts under the i m p ulse of an u ncontrollable fear of
equal or greater inju ry, is exempt from criminal l i ability because
he does not act with fr eedom. Actus me invito faetus non est mcus
actus (An act done by me against my will is not my act). The force
contemplated must be soformidable as to reduce the actor to a mere
i nstrument wh o a cts not o nl y w i t h out w i l l b u t a g a inst hi s w i l l .
The duress, force, fear, or intimidation must be present, imminent
and impending, and of such nature as to i n duce a well-grounded
apprehension of death or serious bodily harm i f t h e act be done.
A threat of fut ure i nj ury i s not enough. The compulsion must be
of such a character as to leave no opportunity t o th e accused for
escape orself-defense in equal combat. (Peop/e v. Dequina, G.R. No.
1 77570, January 19, 2011)
T he distinctions b etween t h e exempting c i r cumstances of
irresistibleforce and that of uncontrollable fear are as follows:
1. I n i r r e s i stible f orce a t h i r d p e r son u ses vio lence
or physical force t o compel the a ccused to commit a c r i m e ;
in uncontrollable fear ' a t h i r d p e r son employs in t im id ation
or threat in c ompelling the accused to commit a c ri m e . (The
Revised Penal Code by CA J'ustice Luis Reyes)
2. T h e i r r e s i stible f o r ce must have been made to
operate directly upon the person of the accused. On the other
hand, the uncontrollable fe'ar may be generated by threatened
act directed against third person such as the wife of the accused
who was k i d napped. (Crim in al L a w C o n spectus by J u s t ice
Florenz Regalado)
3. I n i r r e s i stible force the injury fe ared of may be of
a lesser degree than that damage caused by the accused. On
the other hand, in uncontrollable fear, the evil feared of must
be greater or atleast equal to the damage caused to avoid it.
(Criminal Law Conspectus by Justice Florenz Regalado; 1952
Bar Exam)
J9JC9B0M
I II. CIRCUMSTANCES AFFECTING CRIMINAL LIABILIT Y 229
A was taken to a farm by outlaw members B and C. B gave A
a bolo and told the latter that the chief outlaw wanted A to kill the
farmer who was sleeping inside the hut. A refused, but after B told
A "you have to comply with that order of the chief outlaw, otherwise
you will h a ve to come along wit h u s." A k i l l e d t he f a r m e r. A i s
criminally liable. The threat, which is made by B, will not produce
uncontrollable fear since there is no showing that B wa s p resent
when A killed the farmer. (People v. Moreno, G.R. No. L-64, October
28, 1946) For defense of uncontrollable fear to prosper, duress, force,
fear, or in t i m i dation must be pr esent, im m inent an d i m pending,
and of such nature as to in duce a well-grounded apprehension of
death or serious bodily harm if the act will not be done. The threat
of future injury made by B is not enough. (Manansala v. People, G.R.
No. 215424, December 9, 2015; 1959 Bar Exam)
X, who w a s e n gaged i n i l l e gal g a m bling, wa s c h arged of
corruption of public officer for bribing Y, a policeman. Xs defense
was fear of reprisal from the police in case of non-payment of bribe
money. He testified that w hen h e at t empted to stop giving bribe
money to Y, the police raided his establishment without warrant for
half a dozen times. Yalso threatened to plant incriminating evidence
on him. X was also manhandled by Yin front of his house obviously
to drive away his regular customers. His defense does not constitute
the exempting circumstance of uncontrollable fear. Th e basis of
this circumstance of uncontrollable fear i s t h e complete abserice
of freedom. To exempt the accused from criminal liability, it must
be shown that he resisted the threat and in spite of the resistance
he was still forced to act in accordance with his wishes. (People v.
Ramos, G.R. No. L-82265, May 16, 1988) In th is case, there is no
showing that accused resisted the harassment of the policeman by
reporting the m atter t o t h e p r oper authorities. Moreover, he can
simply stop from engaging an i l l egal gambling activity t o a v oid
harassment. (1979 Bar Exam)
Lawful and In superable Cause
O ne who f a il s t o p e r f or m a n a c t r e q u i red b y l a w , w h e n
prevented by some lawful o r i n s u perable cause, is exempt fr om
criminal liability.
A priest i s e x empt f r o m c r i m i nal l i a b il it y f o r t h e c r im e of
misprision o f t r e a son fo r f a i l u r e t o i n f or m t h e a u t h o r i t ies on
conspiracy against the government which he obtained by reason of
confession made to him by one of the conspirators. The law which
 230 CRIMINAL LAW REVIEWER
VOLUME I
e njoins Fili pino ci t izen t o m a k e s uch r e port d oes not a p pl y t o
priest, who, by virtue of his office, is prohibited from making such
disclosure because of the sacred rule on confidentiality of confession.
To rule otherwise is to violate the constitutional policy on separation
of State and church. In f a ct, th e r u les on evidence recognize the
confidential character of confession. The basis of exemption of the
priest is the circumstance of lawful or insuperable cause. (1994 and
2011 Bar Exams)
E xempting Circumstance of Min or i t y
R.A. No. 9344
C hild in C on fl i c t w i t h t h e L a w
Child in conflict with th e law r efers to a child who is alleged
as, accused of, or adjudged as, having committed an offense under
Philippine laws.
Age of Criminal I r r e sponsibility
A child 15 years of age or under at the time of the commission
of the offense shall be exempt from criminal liability. However, the
child shall be subjected to an intervention program.
A child above 15 years but below 18 years of age shall likewise
be exempt from criminal liability and be subjected to an intervention
program, unless he/she has acted with discernment, in which case,
such childshall be subjected to the appropriate proceedings.
The exemption from criminal liability herein established does
not include exemption from civil liability, which shall be enforced in
accordance with existing laws. (Section 6of R.A. No. 9844; 2012 Bar
Exam)
To exempt a minor, who is above 15 years old, from criminal
l iability, i t m u s t b e s h ow n t h a t h e c o m m i t ted th e c r i m i nal a c t
w ithout d i scernment. C h oosing a n i s o l ated an d d a r k p l a c e t o
perpetrate the crime and to prevent detection and boxing the victim
to weaken her defense are indicative of accused's mental capacity to
fully understand the consequences of his unlawful action. (People v.
Jacinto, G.R. No. 182289, March 16, 2011)
T he discernment i s h i s m e n tal c apacity t o u n d erstand t h e
difference between right and wrong, and such capacity may be known
and should be determined by taking into consideration all the facts
and circumstances afforded by the records in each case, the very
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 231
appearance, the very attitude, the very comportment and behavior
of said minor. (People v. Doquena, G.R. No. 46589, September 27,
1989; People v. Sisracon, G.R. No. 226494, February 14, 2018; 2012
and 2017 Bar Exams)
A child, who is already serving sentence, shall likewise benefit
f rom th e r e t r oactive application of R .A . N o . 9 3 44. H e s h al l b e
immediately released if he is so qualified under this Act or other
applicable law. (Section 68 of RA. N o. 9844; People v. Montica~i.'vo,
G.R. No. 198507, January 80, 2013)
Determination of Age
The child in conflict with the law shall enjoy the presumpI ion
of minority. He shall enjoy all the rights of a child in conflict with the
law until he is proven to be 18 years old or older.
A ny person contesting the age of the child in conflict with th e
law prior to the filing of the information in any appropriate court
may file a case in a summary proceeding for the determination of,age
before the Family Court which shall decide the case within 24 hours
from receipt ofthe appropriate pleadings of all interested parties.
I f a case has been filed against the child in conflict wit h t h e
law and is pending in the appropriate court, the person shall file a
motion to determine the age of the child in the same court where the
case is pending. Pending hearing on the said motion, proceedings on
the main case shall be suspended.
In all proceedings, law enforcement officers, prosecutors, judges
and other government officials concerned shall exert all efforts at
determining of the age of the child in conflict with the law. (Section
7 of R;A. No. 9844)
In a case, or in a m otion for determination of age of chilcj in
conflict with the law, the party contesting the age of the suspect or
accused has the burden to prove that the latter is not a child at the
time of commission of the crime. To overcome the presumptiori of
minority, the contesting party must prove beyond reasonable doubt
that the suspect oraccused is 18 years old or older. The age of a
child may be determined from the child's birth certificate, baptis i>nal
certificate or any other pertinent documents. In the absence of these
documents, age may be based on information from the child himself,
testimonies of other persons, the physical appearance of the child
and other relevant evidence. In case of doubt as to the age of the
child, it shall be resolved in his/her favor. (2011 Bar Exam)
 232 CRIMINAL LAW REVIEWER
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E xemption from Cr i m i nal L i a b i l i t y
Minority is either an exempting circumstance or a privileged
mitigating circumstance. If the age of the child at th e t im e of the
commission of the offense is 15 years of age or under, he is entitled to
exempting circumstance. (Section 6of R.A. No. 9844;1960Bar Exam)
With or w i t h out d i scernment, the accused of such age is exempt
from criminal liability. Lack of intelligence, which is the basis of
the exempting circumstance of minority, is conclusively presumed.
(1998 Bar Exam) Hence, the age of criminal irresponsibility or doli
incapax (criminal incapacity) in the Philippines is now 15 years of
age or under. (2017 Bar Exam) Thus, an accused, who was 18 years
of age at the time of commission of rape, is exempt from criminal
liability. (Ortega v. People, G.R. No. 151085, August 20, 2008) A
14-year old taekwondo champion, who bullied and physically hurt
his classmate in the school's comfort room, is exempt from criminal
liability, although he acted with discernment.
If the age of the child at the time of the commission of the offense
is above 15 years of age but b'elow 18, the criminal irresponsibility
o f the accused will d epend on w h e ther o r n o t h e d i scerned th e
consequence of his criminal act. If the child of such age acted without
discernment, he is entitled to exempting circumstance. (Section 6 of
RA. No. 9844; 2000 Bar Exam) On t he other hand, if the child of
such age acted with di s cernment, he is only entitled to privileged
mitigating circumstance, which will lower the penalty by one degree.
(Article 68 of the Revised Penal Code; 1969, 1984, 2000, 2006, and
2011 Bar Exams) The fact that the accused employed means to make
a surprise attack and he even hid the murder weapon in an empty
container is proof of discernment. (2015 Bar Exam)
l. Bu r d e n o f P r oof — I f t h e a ccused is claiming that his
age is15 years or below for purposes of the exempting circumstance
of minority, the burden to establish this age lies on the defense. In
Sierra v. People, G.R. No. 182941, July 8, 2009, it was ruled that the
defense not the prosecution has the burden of showing by evidence
that the accused was 15 years old or less when he committed the
rape charged.
However, if the defense was able to establish that the accused
was 13 years old in 1995, but there is doubt whether the crime of
rape is committed in 1 995 or 19 98, the doubt should be resolved
in favor of the accused. Hence, he should be considered as exempt
from criminal liability because of minority. (People v. Arpon, G.R.
J9JC9B0M
III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 233
No. 188568, December 14, 2011) The burden to establish the exact
date of the commission of the crime lies on the prosecution.
If the accused isclaiming that his age is above 15 years but
below 18 years and that he acted without discernment for purposes
of the exempting circumstance of minority, the burden to establish
that theaccused is 18 years old or above (Section 7 of R A. No. 9844),
or that the accused acted with discernment (Jose v.People, G.R. ¹.
162052, January 18, 2005) lies on the prosecution.
I f the accused is claiming that h e i s a ch il d i n c onflict wi t h
the law for purposes of the privileges under the laws such as the
exempting circumstance, the burden to establish that he is 18 years
of age or above at the time of the commission of the crime lies on the
one contesting his age. Under Section 7 of R.A. No. 9844, the child. in
conflict with the law shall enjoy the presumption of minority.
In Jose v. People, supra, lack of d iscernment in t h i s c ase is
disputably presumed. Hence, it is incumbent upon the prosecution
to prove otherwise. In other words, to cause the conviction of the
accused, the prosecution must prove that the accused is an adult or
that he acted with discernment.
2. D i s c e r n m en t — I f th e c h i l d c o m m its a c r i m e o n o r
before hi s 1 5t h b i r t h d ay, h e i s e x e mp t f r o m c r i m i na l l i a b:ility
without qualification. If the child commits a crime a day after his
15th birt h day, h e m ust n o t a c t w i t h d i s cernment t o b e exempt
from criminal l i a b il i ty . Th e d i scernment i s h i s m e n tal c apacity
to understand the difference between right an d w r ong, and such
c apacity may be known and should be determined by taking int o
c onsideration al l t h e f a c ts, an d c i r c umstances afforded by t h e
records in each case, the very appearance, the very att i t u de„ the
very comportment and behavior of said minor, not only before and
during the commission of the act, but also after and even during the
trial. (People v. Doquena, G.R. ¹. 46 5 8 9,September 27, 1989)
A child, who acted with evident premeditation, discerned'. the
consequence of his cr i m i nal a ct; bu t t h e f act t h a t a c h i l d a.cted
without evident premeditation will not mean that he did not discern
the consequence of his crime. In People v. Doquena, deceased slapped
the accused and boxed him on the mouth. Accused took possession of
the knife from his cousin and stabbed the victim while the latter was
playing volleyball. The trial court concluded that accused disce !rned
the consequence of his act taking into account the fact that wh en
the accused committed the crime in question, he was a 7th grade
 234 CRIMINAL LAVE REVIEWER
VOLUME I
pupil in the intermediate school, and as such pupil, he was one of
the brightest in said school and was a captain of a company of the
cadet corps thereof, and during the time he was studying thereir he
always obtained excellent marks. It was held that the accused acted
with discernment despite the fact that he was not given sufficient
time to coolly meditate on the consequence of his criminal act and
t hat he has no i n t ention t o commit, so grave a w r ong t han t h a t
committed. The concept of non-discernment is not equivalent to that
of lack of evident premeditation.
Conspiracy presupposes capacity of the parties to such
conspiracy to discern what i s r i gh t f r o m w ha t i s w r o ng. Without
discernment, a child cannot conspire with hi s co-accused. In sum,
the prosecution must prove that the child acted with discernment
when the crime was committed to make him liable as a conspirator.
(Jose v. People, G.R. No. 162052, January 18, 2005)
Discernment may be shown by th e m a nner of committing a
crime. In Pe ople v. Co r tezano, G.R. No. 1 2 3140, September 23,
2 003, the accused acted wit h d i scernment w hen t hey r a ped t h e
victim, their niece, thus: (a) they wetted the victim's vagina before
they raped her; (b) one of them acted as a lookout while the other
was raping the victim; (c) they threatened to kill th e victim if she
divulged to her parents what they did to her; (d) they forced Boyet to
rape the victim; (e) they laughed as Boyet was raping the victim; (f)
they ordered Leah Lou and Lionel to look at their sister naked after
the accused had raped her.
Discernment may be shown by th e extent of participation of
the accused in committing a crime. In People v. Capistrano, G.R. No.
L-4549, October 22, 1952, the accused with other Filipino members
of the Yoin an d s everal J a panese soldiers, all a r m ed, r a i ded a
house and took inmates to the Japanese garrison. The accused, a
minor, acted with discernment since he appeared as the leader or
commander of the raiding party. Thus, he was held liable for treason.
In People v. Alcabao, C.A., 44 O.G. 5006, the offended party
caught the accused shooting at the former's mango tree and reported
h im to his parents. Out of r evenge, the accused shot and hit t h e
offended party w i t h a s l i n 'gshot. Thereafter, th e a ccused stated
"Putang ina mo, mabuti ma ti k man mo." The remark "P u tang ina
mo" clearly manifested the perverted character of the accused. The
statement "M a b uti m a t i k m an m o " re f iected his s a tisfaction and
elation upon the accomplishment of hi s cri nnnal act. These facts
indicate discernment on the part of the minor.
J9JC9B0M
III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 235
In I.lave v. People, G.R. No. 116040, April 2 6, 2006, accused
had been an outstanding grade school student and even received
awards. While in Grade I, he was the best in his class in his acade.mic
subjects. He represented his class in a quiz bee contest. At the ag ie of
12, he finished a computer course. The Court held that the petitioner
acted with discernment in raping the victim.
Treatment of Child Below Age of Responsibility
If it has been determined that the child taken into custody is
15 years old or below, the authority which will have an initial contact
with the child has the duty to immediately release the child to the
custody of his/her parents or guardian, or in th e absence thereof,
the child's nearest relative. Said authority shall give notice to the
local social welfare an d d evelopment officer wh o w i l l d e t ermine
the appropriate programs in consultation with the child and to the
person having custody over the child. If th e parents, guardians or
nearest relatives cannot be located,'or if they refuse to take custody,
the child may be released to any of the following: a duly registered
non-governmental or r eligious organization; a barangay official or
a member of the Barangay Council for the Protection of Children
(BCPC); a local social welfare and development officer; or when and
where appropriate, the DSWD. If the child referred to herein has
been found by the Local Social Welfare and Development Office to be
abandoned, neglected or abused by his parents, or in the event that
the parents will not comply with the prevention program, the proper
petition for involuntary commitment shall be filed by the DSWD or
the Local Social Welfare and Development Office pursuant to .P.D.
No. 603, otherwise known as The Child and Youth Welfare Code.
(Section 20 of R.A. No. 9844)
S pecific Exempting Circumstance of Minor it y
1. St a t u s O f f e n ses — St a t us o f fenses refer to o f f enses
which discriminate only against a ch i ld, wh ile an adult does not
suffer any penalty for committing similar acts. (Section 8 of R.A.
No. 9844) In sum, a status offense is a crime one of the clem.ents
of which is that the offender is a child. These shall include curfew
violations, truancy, parental disobedience and the like. A child shall
not be punished for committing a status offense. (Section 57 of R.A.
No. 9844)
S ection 57-A o f R . A . N o . 9 8 4 4 , as amended by R . A., No.
10630, provides that local ordinances enacted concerning juvenile
status offenses, such as curfew violation, parental disobedience, or
 286 CRIMINAL LAW REVIEWER III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 237
VOLUME I

vandalism, shall be for the protection of children. No penalty shall

be imposed on children for said violations, and they shall instead be
r ought to their residenceor to anybarangayoffi ' 1 t t h b
a t o e r e l e a sed to th e c u stody of t h ei r p a r ents. A
r en s. p pror o ri
p r i at e
iinterve
n ervention programs shall be provided for in s h d'
uc or i n a n ces.. Thine
ci s al l a l s o be recorded as achild at risk and not as a child
confiict with the law.
a. Cur f e w — Se c t ion 5 7-A of R . A. N o. 9 844 do not
prohibit the enactment of regulations that curtail the conduct
of minors, when the similar conduct of adults is not considered
as an offense orpenalized (i.e., status offenses). Instead, what
t ey p r ohibit i s t h e i m p o sition o f p e n alties on m i n or s f or
violations of these regulations. Consequently, the enactment
o curfew ordinances on minors, without penalizing them for
violations thereof, is not violative of Section 57-A. (Samahang
g Mga P r ogresibong Kabataan v. Q u e zon C it y, G .R N o .
225442, August 8, 2017)
penalties. Section 57-A of R.A. No. 9844, as amended, evidently
prohibits. (S a m ahang N g M g a P r o g r esibong K a b ataan v .
Quezon City, supra)
For imposing th e sanctions of r e pri mand, fine, and/or
imprisonment on minors for curfew violations, the ordinance
is invalid. On the other hand, the impositions of community
service programs and admonition on the mi nors are allowed
as they d o n o t c o n stit ut e p e n alties. (S amahang Ng M g a
Progresibong Kabataan v.Quezon City, supra; 2019 Bar Exam
on Political Latv)
b. T r u a n c y — U n d e r P . D . N o . 7 9 8, a t r u a n t i s a
student, who stays out of school for a certain period without
permission from the school authorities and for no legitimate
reason. A truant may be confined in the rehabilitation center.
However, under Section 57 of R.A. No. 9844, a student cannot
be held liable for truancy for being a status offense.

The sanction o f admonition f o r c. P ar e n t a l D i s obedience — Un d er A ct N o . 4 002,

violation o of 57-A
cu r feofw c hildren gu i lt y o f d i s r espect or d i s obedience may b e h e l d
ordinance
or inance by minor is consistent with Sections 57 and
R.A. No. 9344 as it is m erely a formal way of giving warnings criminally l i able upon th e complaint o f p a r ents. (Bagajo v .
a nd expressing d i sapproval t o t h e Marave, G.R. No. L-88345, November 20, 1978) Under Section
minor's m i sdemeanor.
monition is generally defined as a "gentle or friendly reproof' 57 of R.A. No. 9844, a child cannot be held liable for parental
or "counsel or warning against fault or over ' h t . " D' d isobedience under Ac t N o . 4 00 2 b ecause this i s a s t a t u s
s ig . i sci p1'
l inary offense.
measures of community-based programs
d d
a n a m o n i t ion ar e
c learly not penalties — a s t h e y a r e
y are n o t p u n'ti t i v e i n n a t u r e 2. P r o s t i t u t i on , M e n d i c ancy a n d S n i f f ing R u g b y -
— and are generally less intrusive on the right
s an dco n du c t Under Section 58 of R.A. No. 9844, persons below 18 years of age
of thee minor.
o m inor.(Samahang Ng Mga Progresibong Kabataan v.
shall be exempt from prosecution for the crime of prostitution under
Quezon City, supra)
Article 202 of the Revised Penal Code, of mendicancy, and sniffing of
The sanction oof reprimand, fi nes or i m p r i sonment f or rugby, such prosecution being inconsistent with the United Nations
violation of curfew e w ordinance by m i nor i s i n consistent w i t h Convention on the Rights of the Child: Provided, That said persons
Sections 57 and 57-A of R.A. No. 9844. R d' shall undergo appropriate counseling and treatment program.
e ned a s "a severe or formal reproof." In other words
p'
reprimand n iis
s aa fo
forr m a l a n d p u b l ic p r o nouncement made t o Criminal Exemption of Tr afficked Victim
denounce the error or violation committed t
o sharp 1y criticize Trafficked persons shall be recognized as victims of the act or
a nd rebuke th e er r in g i n d i v i dual, an d t o s t er nly w ar n t h e
acts of trafficking and as such, shall not be penalized for unlawful
erring in dividual i n cluding th e p u b li c against r epeating or
c ommittin g' t h e s a m e, and thus, may unwit t i n gly subject the acts committed as adirect result of, or as an incident or in relation
to, being tr afficked based on th e a cts of t r af ficking enumerated
erring individual or violator to unwarranted
e censure or sharp in this Act or in obedience to the order made by the trafficker in
d iisa
sapproval
1" f r o m o t h e rs. R eprimand i s
n i s a p e n a1t y, , h
h e n ce, relation thereto. In t his regard, the consent of a tr afficked person
prohibited by Section 57-A of R.A. N . 9844
o. , as amended.
d Fines to the intended exploitation set forth in this Act shall be irrelevant.
and/or imprisonment, on the other hand, undeniably constitute
(Section 1 7 of R.A. No. 9208 as amended by RA. No. 10360)

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 238 CRIMINAL LAW REVIEWER
III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 239
VOLUME I

Victims of tr afficking for p ur p oses of prostitution as defire d

u nder Section 4 of t hi s Act ar e not covered by Ar t i cle 202 of th e
Revised Penal Code and as such, shall not be prosecuted, fired, or
otherwise penalized under the said law. (Section 1 7of R.A. ¹ . 9 2 0 8
as amended by RA. No. 10860)
MITIGATING CIRCUMSTANCES
T he pr e sence of ordinary mitigating circumstance requires the
adjustment of the divisible penalty by period, e.g., the penalty of
reclusion temporal prescribed by law for homicide shall be applied
in its minimum period. (Article 64 of the Revised Penal Code) If the
penalty consists of two indivisible penalties (reclusion perpe'ua to
eath), ordinary mi t i gating circumstance requires the application
o t e l esser penalty of reclusion perpetua. (Article 6'8) On the other
h and th e pr esence of '
'
'
f privileged mitigating circumstance
'
If a circumstance has only two requisites, such as performance of
duty, one out of two conditions is tantamount to majority. (People v.
Oanis and Galanta, G.R. ¹. 4 7 7 2 2,July 27, 1948)
In case of pr i v ileged mitigating circumstance of incomplete
justification or exemption, the penalty prescribed by law shall be
lowered by one or two degrees. (Article 69)
However, there are different r u les on incomplete exemption
regarding minority and accident.
In case of minority, the circumstance is either exempting or
privileged mitigating. There is no ordinary mitigating circumstance
of minority. (1 958 Bar Exam) In privileged mitigating cii'cumstance
of minority, the penalty shall be lowered by one degree. (Article 68)
re Note: The second paragraph of Article 68 on lowering the penalty by

requires
thee ad'
a justment of t h e d i v i sible or i n d i v isible penalt
n a y by degre two degrees isalready obsolete.
( r ic es a nd 6'9 ) , e .g., the p e nalty o f re c lusion temporal f o r
homicide shall be lowered to prision mayor. In accident, the act must be lawful and it m ust be committed
without dolo or culpa. If the act causing death is committed with dolo,
Ordinary mi t i gating circumstances can be offset by orcina=y
the crime committed is i n t entional felony of homicide or murder.
a ggravating c i r c u mstance. P r i v i l eged m i t i g a t in g c i r c u
circums~tan.e Penalty prescribed by Article 249 or 248 shall not be adjusted. If the
canno e offset by ordinary aggravating circumstanc .(Ab Ll
act causing death is committed with culpa, the penalty prescribed
cop e, .R . N o. L-64086, March 15, 1990) If privileged mitigating
circumstance and ordinary aggrava'ting circumstance attended the under Ar t i cle 865 on r e ckless imprudence resulting i n h o m i cide
c ommission of felony, th e f ormer shall b e t a ken i nt o account i n shall be imposed. If the act causing death is committed without dolo
graduating penalty and the latter in applying the, reduced penalty or culpa, but the same is unlawful, e.g., driving without license, the
in its maximum period. (PeopLe v. Lumandong, G.R N o . 18 2745, penalty under Article 67 shall be imposed.
hfarch 9, 2000, En Banc; 2018 Bar Exam)
Minority
Incomplete Justification or Ex em pt i on Under th e R e vised Penal C ode, m i n orit y i s a n e x e mpting
I fall
all off the
h requisites of a circumstance ment i onedi n A <' I circumstance (Article 12, pa r s. 2 an d 8) , p r i v i l e ged m i t i g ating
11 or 12 are ic e circumstance (Article 68, pa r s. 1 an d 2) o r o r d i n a ry m i t i g a ting
ar e prer e sent, justifying or exempting circumstance shall be
appreciated. circumstance. (ArticLe 18, par. 2)

If majority of the requisites of such circumstance are presen-.,
the privileged mitigating circumstance of incomplete justification or
exemption shall be appreciated. (Article 69)
If only minority of the requisites of such circumstance is present,
the ordinary mitigating circumstance of incomplete justification or
exemption shall be appreciated. (Article 18)
If a c'
circumstance has three requisites, such as self-defense,
two out of three conditions is majority. (1947 and 2018 Bar Exams)
H owever, Section 6 o f R . A . N o . 9 8 4 4 p r o vides a r u l e o n
exempting circumstance of minority, which is not consistent with
Article 12, pars. 2 and 8 on criminal exemption, Article 68, par. 1
on lowering the penalty by two degrees, and Article 13, par. 2 of the
Revised Penal Code on ordinary m i t i gating circumstance. Hence,
these provisionsare deemed repealed.(Section 16 ofR .A.N o.9844)
However, Section 6 of R.A. No. 9844 is not inconsistent with Article
68, par. 2 of the Code on lowering the penalty by one degree; hence,
the same is still a good rule.

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 240 CRIMINAL LAW REVIEWER
III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 241
VOLUME I

In sum, under the present laws, minority is either exempting

o r privileged mitigating circumstance. If the child in confiict wi t h
the law is 15 years ofage or below, or the child, who is above 15
y ears of age, acted without discernment m i n or ity i s
i y is an exempting ti
circumstance. (Section 6of R.A. ¹. 93 4 4 ) If the child, whc is above
1 y e ars of age, acted with d i scernment, minority i s a p r i v i l eged
mi igating circumstance of minority, which shall lower the penalty
mitigating circumstance of minority. However, analogous mitigating
circumstance of minority for purposes of
app 1ying th e penalty
1 in its
minimum period can be considered in favor of an accused, who is 18
years of age or over, if his mental condition affects his discernment
in committing the crime. (People v. Abad, G.R. ¹. L -4 3 0 ,J '
S eniori t y
There is a view that a p r i soner, who is over 70 years of age,
should be released through a pardon. This view has no constitutional
basis.
U nder t h e C o n s t i t u t i on, t h e P r e s ident h a s t h e absolute
authority to pardon or not the pa rdon an offender subject only to
three limitations, to wit: (1) pardon must be made after conviction
of the accused by final judgement; (2) impeachable offense cannot be
pardoned; and (3) election offense without favorable recommendation
of the Comelec cannot be pardoned.
These constitutional li mit ations are exclusive. In Risos-Vidal
v. Lim, G.R. No. 206666, January 21, 2015, the Supreme Court, En
Banc, said that the pardoning power is discretionary in the President
and may not be interfered with by Congress or the Court, except
only when it exceeds the limits provided for by the Constitution

Under R.A. No. 7432 as amended R.A. No. 9994, a senior citizen Under Article 160 of the Revised Penal Code, a quasi-recidivist
or elderly r efers to any resident citizen of th P h ' 1 shall be pardoned at the age of70 years provided that he is not a
old.
o . Thusu s, o n t h e 6 0t h b i r t h day of resident citizen, he becomes a habitual criminal and has already served out his original sentence,
s enior citizen under the law. However t h or completed itafter reaching said age. It shou'Id be noted that the
ver, e c o n cept of seniority in
criminal law i s d i f f erent f rom t h a t u n der R .A. No . 7 43.'. Under pardonable crime in A r t i cle 160 pertains to that committed while
Article 13(2) of the Revised Penal Code, the mitigating circumstance he was serving his sentence in prison as a convicted prisoner, and
o seniority is present if the accused is over 70 years o not to the crime covered by his original sentence committed by him
f age.
age. Thu
u s, o n
his 70th b'birthday, anoffender isnot yet a senior citizen; he becomes before he was detained as a convicted prisoner.
a senior citizen after his 70th birt hday. Howeve ' t
tb H owever, Article 160 of th e C ode is a n i n t e r ference to t h e
a seniority as a mitigating circumstance can only be consideredd
if the offender is over 70 years of age at the time of the commission absolute and discretionary pardoning power of the President, which
is a violation of the non-interference principle in the case of Risos-
o t e crime and not at the time of the promulgation of the decision.
vidal v. Lim, supra. According to former CA Justice Albert Mariano,
( eop e v. Reyes, G.R. ¹s . 17 7 105-06,August 12, 2010)
a respected writer ofcriminal law books, the second paragraph of
T here is a view that a person wh o i s Article 160 on pardon is unconstitutional.
over 70 yea r s of
f age, is
immune from criminal li ability. This vi
v iew h
a s n o ba sis urder th e Under the original version of Article 27 of the Revised Penal
law.
Code, person, who is sentenced to suffer reclusion perpetua, shall be
There is nothing in th e Revised Pe pardoned upon reaching the age of 70 years old. However, R.A. No.
e na1 Cod e o r i n a n y o t h er
] a.aws that
t h exempt a senior citizen from criminal liabilit . 7659 amended Article 27 and deleted the rule on pardon.
a i a i i y. ~ senior"

citizen
n is entitled to privileges under the law, custom and tradition.
But, committing a crime is not a privilege to h' h
is entit e . H owever, According to Justice Florenz Regalado, if the
accused is suffering from senility amounting to insanity at the time
of the commission of the he crime, he is exempt from criminal liability
due to the circ
i rcumstance of insanity and not seniorit . U n der Art ' 1
o e o e, s e n i ority is only a mitigating circumstance.
There is a view that the sentence of a convict, who is over 70
years of age, shall be suspended. This view has no basis under the
law.
Under Article 13(b) of the Revised Penal Code, the offender
is under 18 years ofage or over 70 years; in tne case of the minor,
he shall be proceeded against in accordance with the provisions
of Article 80 thereof. Article 80 of Code, which is now replaced by

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R.A. No. 9844 i s a p r o vision on suspension of sentence of minor

delin quen
uents.
s. In
n s u m , th e suspension of sentencerule is available In People v. Centeno, G.R. No. 88284, April 20, 1989, policeman
only to a child in conflict with the law. There is no held victim's arm when accused, chief' of police, administered the
ere is no ru 1
e on suspension
of sentence byreason of seniority. first karate blow on the nape of victim's neck that made the victim
fall forward on the backrest of a bench. This was followed by two
Th ere is a view that an accused who is more karate blows that crumpled hin t o the cement floor where he
over 70 yea r s of age,
f for
is entitled to post bail even though th e crime is n on-bailable
lay prostrate and motionless. The victim died as a result of internal
eing punishable by reclusion perpetua because of the case of Enrile. bleeding in the brain due to tr auma. It was held that the accused
This view has no j u r i sprudential basis. In Ju a n P o n ce Enrile v .
cannot argue that he had. not intended to commit so grave a wrong
andiganbayan, G .R. No. 218847, August 18, 2015 t h e S as the actual kill ing of victim as he knew, or should have known,
a owed Enrile to post bail for a non-bailable crime of plunder that the karate chops on the nape of the neck would have a lethal
punishable by reclusion perpetua because of his social and political effect upon the defenseless and drunken victim.
standing and his having immediately surrendered to the authorities
upon his being charged in court in dicate that the risk of his flight In People v. Flores, G.R. No. 1:6 524, january 18, 1996, the
or escape from t h is jur i sdiction is highly u n l i k e ly, and due to his accused kicked the stomach and chest of the victim, who was lying
currently f r a g il e s t at e o f h e a l th . I n s u m , t h e S u p r em e C ourt o n the pavement dead d r u nk . V i c ti m d i e d a t t h e h o spital. T h e
considered three circumstances in allowi n E '1 t mitigating circumstance of lack of intent to commit so grave a wrong
g nri e o p ost bbail, ' to as thatcommitted was appreciated in favor of accused forhe had no
wit: (1) his social and political standing; (2) voluntary surrender' ,

and (8) his fragile health. intent to kill when he attacked the victim. His intention was merely
to inflict injuries on the victim.
S ince under th e C onstitution, one can only p ost b ai l fo r a
crime punishable by reclusion perpetua i f t he e vidence of guilt i s Unlike in Fl o res case, the accused in Centeno case is chief of
police, who must have an extensive training in hand to hand fight;
not strong, it i s submitted that t o apply the En r i le principle, the
thus, it was declared that he ought to know the fatal effect of karate
circumstances of a case must be similar to those in the case of Enrile.
chops on a victim.
e act that an accused is over 70 year of age is not enou h to allow
g oa ow a. Th e I n j u r ed Victim Survived — If the victim intentionally
p a i or a c r i m e punishable byreclusion perpet
thee followin
o o w in g ci uaun 1
c i r cumstances concurred: extraordinary esocial ess
an d injured by the offender did not die, the presence or absence of intent
political standing, voluntary surrender and f'ragile health. to kill determines the crime committed. If the injuries are inflicted
with intent to kill, the crime committed is attempted or frustrated
Praeter Int ent ionem homicide or murder. If the injuries are inflicted without intent to kill,
the crime committed is physical injuries.
The mitigating circumstance that the offender had no intention
to commit so grave a wrong as that committed or praeter int
er in en t'ionem
b The I nured Victim D i ed — I f tJ e victim i n t entionally
ing when there is a notable disparity between the means injured by th e of fender d ied as a c o n sequence, intent to k i l l i s
e mployed by th e a ccused to commit a w r o n g an d t h e r conclusively presumed. Hence, the crime committed is consummated
an e r es u1t i' n g h omicide or murder. However, the concept of intent t o k il l a s an
crime committ
m itted. The intention of th e accused at the t im e of t h e
commission of the crime is manifest d f e lement o f h o m i cide o r m u r d e r s h o ul d n o t b e c o n f used w i t h
th that of lack of i n t ent t o k il l w h i ch may constitute the mi t i gating
mo e of attack employed and the inj ur y su stained by the victim.
(Peoplev.Maglian, G.R. No. 189834, March 30, 201 1) circumstance of praeter intentionem.

' 'ga t i n
' g c i r c u m stance ofpraeter intentionem cannot be i. I n te n t t o K i l l as an E l e m ent — As an el e ment of
T he miti
appreciated where the acts employed b homicide or murder, intent to kill is conclusively presumed if
e y a c c u se
d were reasonably the victim died as a consequence of a felonious act.
sufficient
su ci ent to
to produce
rod the death of the victim. (People v. Sales, G.R.
No. 177218, October 3, 2011) When death resulted, even if ther w a s no intent to kill ,
the crime is homicide, not just physical injuries, since with

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 244 CRIMINAL LAW REVIEWER
VOLUME I
r espect to cr i mes of p ersonal vi olence the penal la w l o ok s
particularly to the material results following the unlav;ful act
and holds the aggressor responsible for all th e consequences
thereof. He who is the cause of the cause is the cause of the evil
caused. (Seguritan v. People, G.R ¹ . 172 8 9 6,April 19, 2010)
i i. L a c k of I n te n t to K i l l
Con s t i t u tin g P r a e t er
Intentionem — Fo r p u r p oses o f appreciating th e mi t i g ating
circumstance of lack of intent to commit so grave a wrong than
that committed, intent to, kill is not conclusively presumed. If
the accused can show that there is no intent to kill on his part
or there is a notable disparity between the means employed
and the resulting crime, the mitigating circumstance of praeter
intentionem shall be appreciated.
A ccused kicked and p u n ched th e v i ct im , wh o d ie d a s
a consequence. Circumstance shows lack o f i n t en t t o k i l l .
However, accused is l i a bl e fo r h o m i cide because i n t ent t o
kill i s c onclusively presumed. Even if t h e re is n
n o i n et~n t t o
i , h e p e nal law holds the aggressor responsible for all th e
consequences of his unlawful acts. However, they are entitled
to the mitigating circumstance of praeter, intentionem. ( Vacoy
v. People, G.R. No. 213792, tune 22, 2015; 2011 Bar Exam)
Threat
T hreat ma y b e considered as mitigating circumstance if t h e
following conditions are present: (1) there must be a threat cn th e
part o the offended party; (2) the threat must be sufficient; and (3)
the threat must immediately precede the criminal
act commi 'tt ed b y
Threat made with a weapon, which is o ffensively and o s i t '
'l
stron g sshowing wrongful intent to inflict inju ry (such as opening a
ni e and making a motion as if to make an attack), is an unlawful
aggression. Thus, the offender threatened could be given th b e nefit
of the circumstance of complete or incomplete self-defense. Threat,
w ich is n o t o f f e nsively and p o s it ively s t r ong, i s n o t u n l a w f u l
a ggression. However, mi t i gating ci r cumstance of t h r eat m a y b e
appreciated.
Provocation
The provocation to be considered as mitigating circumstance
a: ( ) e re m us t b e p r o v ocation on t h e p a r-. of t h e
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 245
o ffended party; (2 ) t h e p r o vocation m ust b e s u f fi cient; an d ( 3 )
provocation must immediately precede the criminal act committed
by the offender.
W hen t h e l a w s p e ak s o f " p r o v ocation" a s a mi t i g a t i n g
circumstance or "lack of p r ovocation" as an essential element of
self-defense, it requires that the same be sufficient or proportionate
to the act committed and that i t b e adequate to arouse one to its
commission. It is not enough that the provocative act be unreasonable
or annoying. (Aquino citing People v. Dolfo, CA 46 O.G. 1621)
Provocation can only be appreciated in crime against person.
One cannot provoke another person to commit f o rcible abduction
(2018 Bar Exam) theft or estafa.
Vindication
To appreciate the m i t i gating circumstance of vindication of
grave offense, the following requisites must be present: (1) victim
committed grave offense; (2) the grave offense was committed against
the offender or h i s s p ouse, ascendants, descendants, legitimate,
illegitimate or adopted brothers or sisters, or his relatives by affinity
within the same degrees; and (3) the offender committed the crime
in proximate vindication of such grave offense.
If the grave offense is committed by a t h i r d p erson against
the adopted brother of the accused, vindication is not a mitigating
circumstance. To appreciate this circumstance, the victim hi mself
must commit t h e g r a v e o f fense. (People v. D a g a tan, G . R. ¹ .
L-10851, August 28, 1959; 2011 Bar Exam)
In People v. Benito, G.R. No. L-32042, February 13, 1975,
t he victim m ade remark i n t h e p r esence of the accused, that th e
"Civil Service Commission is a hangout of thieves." The accused felt
alluded to because he was then facing criminal and administrative
charges on se veral co unts i n v o lving h is h o n e sty a nd i n t e g rity.
The victim's remark even if actually utt ered in the presence of the
accused, cannot be considered a grave offense against the latter. The
remark itself was general in nature and not specifically directed to
the accused. (1988 Bar Exam)
Passion
T he following essential r e quirements m ust b e p r esent: ( I )
there was an act that was both unlawful and sufficient to produce
such condition (passion or obfuscation) of the mind; (2) such act was
 246 CRIMINAL LAW REVIEWER
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not far removed from the commission of the crime by a considerable
length of time, during which the perpetrator might have recovered his
normal equanimity (People v. Comillo, G.R. No. 186588, November
25, 2009); and (3) passion must arise from lawful sentiment of the
offender and not from spirit of lawlessness or revenge.
The accused, who raped his victim in extreme state of passion,
is not entitled to mi t i gating circumstance of passion because this
circumstance can only be appreciated if passion arose from lawful
sentiment of the offender and not from spirit of lawlessness. (People
v. Sanico, CA. 46 O.G. 98; 2011Bar Exam)
In People v. Lopez, G.R. No. 132168, October 10, 2000, passion
or obfuscation to be properly appreciated must arisefrom lawful
sentiments. The act of the' victim, of demanding that t h ey vacate
her land and tr ansfer elsewhere and discontinue their excavation
thereat was not unlawful and unjust as she was exercising her right
to her land. The exercise of a lawful right cannot be the proper source
of obfuscation that may be considered as a mitigating circumstance.
If passion arose from performance of duty to arrest
(U.S. v.
Taylor, G.R. No. 2809, April 19, 1906) or exercise of employer's right
to reprimand employee for doing indecent conducts (People v. Caliso,
G.R No. 87271, July 1, 1988), mitigating circumstance shall not be
appreciated since it is not based on a lawful sentiment.
Passion arising from jealousy is a mitigating circumstance. But
immoral passion arising from jealousy involving a mistress is not
mitigating circumstance. In U.S. v. Hicks, G.R. No. 4971, September
23, 1909, the accused wanted.to win back, the victim, his former
mistress, who was living with another man. But the victim refused.
Out of jealousy, accused killed the victim. Mi t igating circumstance
o passion is not considered since the causes for the loss of self-
control did not originate from legitimate feelings but it arose from
vicious, unworthy, and immoral passions.
In U.S. v. De La C r u z, G. R. No. 7094, March 29, 1912, the
a ccused, in t h e h e a t o f p a s sion, k i l le d t h e d e ceased, who h a d
theretofore been his concubine upon discove '
ring e ' fPi
h r in i a grante in
carnal communication wit h a m u t u a l a cquaintance. Passion was
appreciated. (2015 Bar Exam)
In the Hicks
Hic case, the passion arose from exercise of right to
en an i l l i cit relationship. Hence passion is n t
t' a ting since it
no mi ig
is not based on a lawful sentiment. In the De La Cruz case however
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 247
the passion was produced not by the exercise of right of the victim to
end the illicit relations but her act of infidelity. Even if not married,
the victim had the obligation of fidelity to the accused. As said by
the Supreme Court of Spain this was a "sufficient impulse" in the
ordinary and natural course of things to produce the passion and
obfuscation.
Four days after the victims attempted on the virtue of his wife,
accused killed them. The period of four days was sufficient enough a
time within which accused could have regained his composure and
self-control. Hence, passion should not be appreciated. (People v.
Rebucan, G.R. No. 182551, July 27, 2011)
The differences among provocation, passion, and vindication as
mitigating circumstances are as follows:
1. So u r c e o f M it i g a t io n — T he so u r c e o f m i t i g a ting
circumstance in provocation is the provocative act of the offended
party; invindication, grave offense committed by the offended party;
and in passion, the unlawful or unjust act by the offended party that
produced obfuscation or passion arising from a lawful sentiment.
Passion cannot be appreciated if the crime is committed in the
spirit of revenge since in this case the passion did not arise from a
lawful sentiment. (People v. Matbagon, G.R. No. 42165, November
12, 1984, En Banc) On the other hand, the essence of vindication is
taking revenge because of the grave offense committed by the victim.
Insulting statement (you get out because I might suffer high
blood) against the accused is not a basis to appreciate passion or
provocation asa mitigating circumstance. (People v. Lab-eo, G.R. No.
188488, January 16, 2002) However, insult made in the presence of
several persons may gravely offend the accused. Insulting remark
(I will m ake roast pig of you) against an old m an d u r i ng a f iesta
(U.S. v. Ampar, G.R. No. 12888, November 26, 191 7) or offending
statement (You stranger live at th e expense of your wife) against
a gate crasher d u r in g a c e l ebration (P eople v. R o sel, G.R. N o .
46095,October 10, 1988) is a grave offense against honor, which
w ill mi t i gate the cri m i nal l i ability of t h e accused if th e cr ime i s
committed in vindication thereof.
Elopement is a grave offense against family honor. Mitigating
circumstance of vindication and not passion or provocation can be
appreciated in f a vor of t h e accused. (People v. Dio kno, G.R. No.
L-45100, October 26, 1986)
 248 CRIMINAL LAW REVIEWER
VOLUME I
Bathing a child despite the fact t ha t h e wa s sick (People v.
Rabao, G.R. No. 46580, April 10 , 1 989); having amorous relation
with husband of t h e a ccused causing jealousy
(U.S. v. J a r r i l l a ,
.R. No. L-389, November 5, 1901; 2013 Bar Exam); and failure to
quit prostitution (People v. Guillermo, G.R. No. L-18792, February
28, 1964) are un 'ust
j acts or omissions producing passion arising
from lawful sentiments but t h ey ar e ne i t h er g r a ve offenses nor
provocative acts.
S arne act or incident such as challenge to a fi gh t o r c eased
aggression may be asource of vindication, provocation, and passion.
Ch allenge to a fight can be a source of provocation. (U.S. v.
Cortes, 86 No. 12564, September 6, 1917
) But calling the accused,
who is thepresident of a Labor Union, an ahusador and
him to a duel in the presence of several persons, gravely offended
challenging
im; e n ce, vindication of grave offense will mi t i gate his crirr i n al
ia ility. (P eople v. Ru i z, G . R. N o . L - 8 8 6 04, October 30, 19 7 9)
R epeatedly berating th e accused and challenging hi m t o a d u e l
are acts that produced sudden impulse of natural fury dictating to
the accused to commit th e crime. Hence, passion as a mi t i gating
circumstancemaybe appreciated. (People v. Valles, G.R. No. 110564,
January 28, 1997)
Self-defense , complete or incomplete, is not availing where the
u nlawful aggression has ceased at the time of the commission f t h
mission o
cr'ime. But the prior unlawful aggression can be considered e Voluntary Sur r e n d er
as:
( ) A gr av e o f f e nse, w hich i s a b a si s o f v i n d i cation
(1)
(David v. CA, G.R. Nos. 111168-69, June 17, 1998; PeopLe v.
Palabrica, G.R. No. 129285, May 7, 2001; People v. SambuIan,
et al., G.R. No. 112972, April 24, 1998; People v. Santos, G.R.
Nos. 99259-60, March 29, 1996);
( ) An un j u st a c t p r o d u cing p assion a r i sing f ro m a
(2)
lawful sentiment (People v. Adlawan, G.R. ¹. 18 1 889 J
o. anuary
80 2 002; People v. Castro, G.R. No. L-38989, October ,29, 1982;
People v. PO8 Feliciano, G.R. Nos. 127759-60, September 24,
2001; 2011 Bar Exam); or
(3) A s u f fi cient provocation.(People v. Maribung, G.R.
¹. L - 4 7 500, April 29, 1987)
If more than one mitigating circumstance arose from the same
a ct or in cident, t h e y shall bb e con s i d e red as only one m i t i gating
circumstance. F or e xample t h e
circumst ances of p r o vocation
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249
III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY
and vindication of a grave offense arising from one and the same
incident, i.e., the ceased aggression, shall be considered as only one
mitigating circumstance. (People v. Torpio, G.R. No. 188984, June
4, 2004) The circumstances of passion arising from wife's infidelity
and vindication of grave offense committed by her paramour shall
be treated as one mitigating circumstance. (2011 Bar Exam)
2. In t e r v a l of Time —In provocation, the provocation must
immediately precede the act, i.e., that there be no interval of time
between the provocation on the part of the victim and the commission
of the crime by the offender. (Pepito v. CA, et al., G.R No. 119942,
July 8, 1999) In passion, the commission of the crime need not be
immediately preceded by unlawful or unjust act that produced the
passion; what is important is that such act was not far removed from
the commission of the crime by a considerable length of time, during
which the perpetrator might recover his normal equanimity. (People
v. Aguinaldo, G.R. No. L-5846, January 80, 1958) In v i n d ication,
the vi n dication of t h e g r av e o f fense may b e p r o x imate, w h i ch
requires that interval of time between the grave offense done by the
victim and the commission of the crime by the offender must not
be sufficient for the accused to regain his composure or his moral
equanimity. (People v. Ventura, G.R. Nos. 148145-46, July 5, 2004;
People v. Benito, G.R. No. L-32042, February 18, 1975)
T o ap preciate t h e m i t i g a t in g c i r c u m stance o f v o l u n t a r y
surrender, the following requisites must be proven, namely: (1) the
offender has not actually been arrested; (2) the offender surrendered
himself to a person in authority; and (3) the surrender was voluntary.
A surrender t o b e v oluntary m u s t b e s pontaneous, showing th e
i ntent of t h e a c cused to s u b mi t h i m s elf u n conditionally t o t h e
authorities, either because he acknowledges his guilt, or he wishes
t o save them the tr ouble and expense necessarily incurred in h i s
search and capture. Voluntary surrender presupposes repentance.
(People v. Tabarnero, G.R. No. 1681 69,February 24, 2010; 1999 and
2019 Bar Exams)
The surrender made after 1 4 d ays fr om t h e d a te of k i l l i n g
cannot be considered voluntary since his act did not emanate from
a natural impulse to admit the kill ing or to save the police officers
the effort and expense that w ould be in curred in hi s search and
incarceration. (People v. Agacer, G.R. No. 17 7 751, December 14,
2011)
 250 CRIMINAL LAW REVIEWER
VOLUME I
The accused surrendered only a f te r h a v in g b een i n f ormed
o the charge of rape against hi m o r a bout tw o m onths from t h e
commission of the alleged crime. He even denied the said charge
upon his purported surrender. The' alleged surrender, therefore,
does not qualify as a mitigating circumstance. (People v. Salle, G.R
¹. 18 1 0 83,January 21, 2010)
Surrender is not voluntary where the accused went to Barangay
Chairman after the killing to seek protection against the retaliation
o the victims' relatives, not to admit his participation in the killing
o the victims. (People v. Del Castillo, G.R. No. 16'9084, January 18,
2012; 2012 Bar Exam)
The evidence shows t ha t t h e a c cused were a r r est d
h circumstance of voluntary confession. (People v. Mo ntinola, G.R.
thee police officers manning the checkpoint stopped the passenger
jeepney occupied by them. The fact that the accused did not resist
but went peacefully with the peace officers does not mean that they
surrendered voluntarily. (People v. Ca stillano, G.R. ¹ . 189 4 1 2 ,
April 2, 2008)
Going to the police station to make an inquiry is not a mitigating
circumstance of voluntary surrender since he did not submit himself
to authorities to acknowledge his guilt. (People v. Uerceles, G.R. No.
1806'50, September 10, 2002; 1992 Bar Exam)
Considerable interval of time between the commission of the
crime and surrender such as two years may indicate that accused
id not voluntarily s u r r ender. Fur t h ermore, the l ong i n t erval of
t ime would compel the government to use resources and time t o
locate him. Hence, mitigating circumstance of surrender shall not
be appreciated.(People v.Pagsanj an, G.R. No. 95125, May 12, 1998;
People v. Solis, G.R. No. 986'29, March 18, 1991; 1997 Bar Exam)
W here t h e arrest was inevitable,
surrender w ill n o t b e
appreciated for being i nvoluntary. In Pe ople v. Fl o res, G.R. Nos.
103801-02 0 ctober 19, 1994, accused did not surrender to the
po ice. It was the police authorities who came to the factory looking
for him. It was there that accused was pointed to them. Seeing that
t e police was already approaching him, accused did not offer any
resistance and peacefully went wit h t h em. With th e police closing
in, accused actually had no choice but to go with them. To be sure,
no surrender was made by the accused.
(1996Bar Exam)
Voluntary Confession
To appreciate voluntary confession as mitigating circumstance,
the following requisites must concur: (1) the accused spontaneously
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILIT Y 251
confessed his guilt; (2) the confession of guilt was made in open court;
(3) the confession was made before,a competent court trying the case;
and (4) the confession of guilt was made prior to the presentation
of evidence by the prosecution.(People v. Juan, G.R. No. 152289,
January 14, 2004; 1999 and 2019 Bar Exams)
A plea of guilty made after the prosecution had begun presenting
its evidence cannot be considered voluntary since it was made only
after the accused realized that th e evidence already presented by
the prosecution is enough to cause his conviction. It is not required
that the prosecution must h ave presented all it s evidences when
the plea of guilty was made to negate the appreciation of mitigating
Nos. 181856-57, July 9, 2001; 1992 and 1997 Bar Exams)
1. P l e at o a Lesser Offense —If the plea to a lesser offense
was allowed by the court pursuant to a plea-bargaining agreement,
confession shall be appreciated as mitigating circumstance. If th e
offer of plea to a Lesser offense was rejected by the public prosecution,
confession may or may not be appreciated depending upon the crime
charged and that proven.
If th e c r i m e c h arged i s m u r d er , bu t t h e c r i m e pr o v en i s
homicide, the plea t o a l e sser offense of homicide constitutes a
mitigating circumstance of voluntary confession because it is n ot
the fault of th e accused that th e p r osecution erroneously alleged
a qualifying circumstance in th e i n f ormation w i t h out supporting
evidence. (People v. Yturriaga, G.R No. L-2816, May 81, 195'0) This
is a mitigating circumstance because offer of plea pertains to th e
crime proven.
If the crime charged and proven is murder, the offer of plea
to a lesser offense of homicide does not constitute a mitigating
circumstance since the offer of plea does not pertain to t' he crime
proven. (People v. Dawaton, G.R No. 146'247, September 17, 2002)
2. Con f e s sion on A p p eal — Up o n a rr a ignment, accused
pleaded not guilty to slight physical injuries before the Metropolitan
Trial Court ( M T C). A f ter t r i a l , M T C c o nvicted th e accused. On
appeal to the Regional Trial Court, he made a confession of guilt. His
confession shall not be appreciated as mitigating circumstance. MTC
has original jurisdiction over slight physical injuries. Confession as
a mitigating circumstance must be made before the MTC. Moreover,
the confession to be mitigating must be made prior to presentation
of evidence by the prosecution at the MTC. (see: People v. Oandasan,
G.R. No. L-29582, September 28, 1968; 1957 Bar Exam)
 252 CRIMINAL LAW REVIEWER
VOLUME I
Physical Defect
U nder Ar t i cle 13 ( p ar . 8 ) o f R e vised Penal Code, that t h e
offender is d eaf an d d u m b , b l i nd , o r o t h e r wise suffering some
physical defect which thus restricts his means of action, defense,
or communication with his fellow beings, is an ordinary mitigating
circumstance.
The fact that accused suffers from a physical defect, a severed
r ight h an d ( o r a s e v ered l e g), does no t m e a n t h a t h e s h o u l d
automatically b e c r e dited w i t h t h e m i t i g a t in g c i r cumstance of
physicaldefect. In order for this condition to be appreciated, itm ust
be shown that such physical defect limited his means to act, defend
himself or communicate with his fellow beings to such an extent that
he did not have complete freedom of action, consequently resulting
in diminution of the element of voluntariness. (People v. Deopante,
G.R No. 102772, October 30, 1996)
According to Justice Florenz Regalado, if the accused is totally
blind or deaf and dumb, he does not have to prove that his means of
action, defense or communication are thereby restricted; but in th e
case of other physical defects, he must prove such restrictions. (2011
Bar Exam)
Analogous or Similar M i t i g a t ing Cir cumstances
T he circumstance to b e m i t i g a t in g m u s t b e i n t h e l i s t o f
circumstances in pars. 1 to 9 of Article 13 of the Revised Penal Code.
However, par. 10 ofArticle 13 authorizes the court to appreciate
circumstance, which is analogous or similar to those stated in pars.
1 to 9. If the circumstance is neither mentioned in pars. 1 to 9 nor
similar or a n alogous thereto, the same i s no t m i t i g ating. Thus,
the following cases were not considered as analogous mitigating
circumstances:
1. Th a t t h e thief is a family man (People v. Castro, G.R.
No. 81888, December 8, 1929);
2. Th a t t h e f a l sification of public document does not
cause irreparable damage to victim (P eople v. Pol, G.R. No.
45587, July 80, 1987);
3. T h a t t h e victim of murder is a bad person (People v.
Canj a, G.R. No. L-2800, May 80, 1950);
4. Co n d i t io n o f r u nn i n g a muck o r be c o m i n g a
j 'uramentado" by Muslim (People v. Salazar, G.R. No. L-11601,
June 80, 1959).
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I II. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 253
Extreme Poverty
The accused, who committed t h eft ou t o f e x t r eme poverty,
is en t i t le d t o mi t i g a t in g c i r c u m stance s i m i la r t o i n c o m plete
justification or state of necessity. Extreme poverty and necessity are
mitigating circumstances under Article 13(10) of the Revised Penal
Code in recognition of the pr i nciple that th e r i ght t o l if e is m ore
sacred than a mere property right. This rule is not to encourage or
even countenance theft, but merely to dull somewhat the keen and
pain-producing edges of the stark realities of life. (People v. Macbul,
G.R. No. 48976, October 11, 1948; 2011 Bar Exam )
To appreciate extreme poverty as a mi t i gating circumstance,
the economic condition of the accused must be worse than that of
a poor person. It cannot be considered in favor of a clerk, who is
receiving a salary. (People v. Tabanao, G.R. No. L-1 7288, September
29, 1962)
To appreciate extreme poverty as a mi t i gating circumstance,
the accused must be driven to commit crime by reason of poverty; and
not the other way around. If the accused was gainfully employed, but
impoverished himself and lost his gainful occupation by committing
crimes such as murder, he is not entitled to mitigating circumstance
of extreme poverty in the crime of robbery with homicide. (People v.
Pujinio, G.R. No. L-21 690, April 29, 1969)
E xtreme poverty as a m i t i g at ing circumstance can only b e
appreciated in c r i mes against p r operty such a s t h e ft . I t c a n n ot
be considered in the crime of murder (People v. Agustin, G.R. No.
L-18368, March 21, 1966) or sale of dangerous drugs committed by
a minor. (Gallardo v. Tabamo, Adm. Matter No. RTJ-92-881, June
22, 1994)
Error in Personae Is Not a M i t i g at ing Circumstance
There are three cases covered by Article 4par. 1, to w it:(1)
praeter intentionem; (2) error in personae; and (3) aberratio ictus.
However, with regards to the imposition of penalty, cases involving
praeter intentionem are governed by Article 13 in relation to Article
63 or 64 of the Revised Penal Code; cases involving error in personae
Article 49; and cases involving aberratio ictus Art i c le 48. Hence,
killing a person by reason of error in personae or aberratio ictus is
not a circumstance analogous to praeter intentionem (lack of intent
to commit so grave a wrong) since liability of accused is governed by
different provisions of the Revised Penal Code. In People v. Gona,
 254 CRIMINAL LAW REVIEWER
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G.R. No. 32066, March 15, 1930, mistake in killing one man instead
of another did not relieve him from criminal responsibility and could
not even be considered a mitigating circumstance.
Analogous to Minority or Seniorit y
In People v. Abad, G.R. No. L-430, July 30, 1947, accused was
20 years ofage at the time of the commission of the crime of treason.
His two brothers, on whom he i s dependent for support, were in
the service of the Japanese. In view of his immature age he did not
allow him to fully discern consequences for his acts. The mitigating
circumstance similar to minority was considered.
In People v. Reantillo and Ruiz, C.A., G.R. No. 301, July 27,
1938, the fact that the accused was over 60 years old and with failing
sight, is analogous to the mitigating circumstance of seniority.
Analogous to Vindication
The victim took away the carabao of the accused and held it for
ransom. The carabao died. Accused killed the victim. The mitigating
circumstance analogous to vindication was considered. (People v.
Monaga, G.R. No. L-39528, November 19, 1982)
Analogous to Passion
The following circumstances were considered as analogous to
passion in the killing of the victims:
1. O utrage feelingof debtor against his creditor (People
v. Ong, G.R. No. L-34497, January 30, 1975);
2. O u t r agefeeling of creditor against his debtor (The
Revised Penal Code by Lu is Reyes; Merenillo, C A ., 36 O. G .
2283);
3. O u trage feeling ofsoldier against a rebel (People v.
Quintos, G.R. No. 51107, June 4, 1990);
4. A p p eal toesprit de corps (The Revised Penal Code by
Luis Reyes).
Analogous to Voluntary Su r r e n d er
Restitution of fund (Navarro v. Meneses III, CBD Ad m. Case
No. 313, Ja nuary 3 0, 19 98, En B a n c; Perez v. People, G.R. No.
164763, February 12, 2008; 1999 Bar Exam ) or partial restitution
(Venezuela v. People, G.R N o . 20 5 6 93, February 1 4, 2 0 18) is a
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I II. CIRCUMSTANCES AFFECTING CRIMINAL LIABILIT Y 255
'mitigating circumstance analogous to voluntary surrender if it was
immediately and voluntarily m ade before the case was instituted.
This circumstance can be appreciated in malversation (Navarro v.
Meneses III, supra) or f a i l u re to r e nder an a ccounting. (People v.
Lumauig, G.R. No. 166680, July 7, 2014)
However, the following circumstances are not a n alogous to
voluntary surrender:
1. Su r r e n der t o t h e a u t h ority for r e bellion, which i s
different from crime (robbery with h omicide) for which he is
prosecuted (People v. Semanada, G.R. No. L-11361, May 26,
1958);
2. Y i e l d i n g to ar rest without th e slightest attempt at
resistance (People v. Rabuya, G.R. No. L-30518, November 7,
1979);
3. Su r r e n der of their weapons to the prison authorities
(People v. Verges, G.R. No. L-36882-84, July 24, 1981; 2011 Bar
Exam); and
4. Go i n g t o th e police station the following day of the
crime incident where he was easily apprehended. (People v.
Jabian, G.R. Nos. 139213-14, April 4, 2001)
Analogous to Voluntary Confession
Testifying for th e prosecution without pr evious discharge as
state witness is a mitigating circumstance analogous to voluntary
surrender. (People v. Navasca, et al., G.R. No. L-28107, March 15,
1977) But repentance (People v. Gravino, G.R N o . L - 3 1327, May
16, 1983) and confession to the crime as an accomplice although
he participated as principal (People v. Tabian, G.R. No. L-30917,
February 14, 1983) are not miti g ating circumstances analogous to
voluntary surrender.
Analogous to Mental Illness
Xis charged with (1) direct assault, and (2) reckless imprudence
resulting in serious physical injuries. X saw a doctor for treatment
of a recurring back problem. He was prescribed valium. Valium had
strange effects on X and that he completely lost control of himself.
A medical expert t e stified t ha t d r o w siness, fatigue, ataxia, an d
confusion are the normal side effects of valium. He added that hyper
excitability, though rare, was a possible side effect. The analogous
 256 CRIMINAL LAW REVIEWER
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circumstance of m e n ta l i l l n e ss s hall b e a p p r eciated i n d i r e ct
assault. However, t hi s c i r cumstance shall no t b e c o nsidered in
imposing penalty for the crime of reckless imprudence resulting in
serious physical injuries. In imposition of penalty for negligence or
imprudence, the court shall exercise sound discretion with regards
to the rules on application of penalty including the appreciation of
mitigating circumstance. (Article 865 of th e Revised Penal Code;
1979 Bar Exam)
No Analogous Aggravating and Alter n a t ive Cir cumstance
Article 13, par. 10 of the Revised Penal Code allows courts to
consider "any other circumstance ofa similar nature and analogous to
those" mentioned therein. However, neither Article 14 on aggravating
circumstances nor Article 15 on alternative circumstances contain
a provision similar to A r t i cle 13, par. 10. (People v. Sitchon, G.R.
No. 18486'2, February 27, 20 02) Thu s, t h e re is n o c i r c umstance
analogous to aggravating or alternative circumstances.
If death results by reason or on occasion of robbery, the crime
committed is robbery with homicide even though two or more persons
are killed or aside from homicide, rape is committed. (People v. Diu,
G.R. No. 201449, April 8, 2 0 18) The additional homicide or r a p e
shall not be considered as aggravating circumstance in robbery with
homicide or rape. The aggravating circumstances under Article 14
of the Revised Penal Code are exclusive, unlike in Ar ti cle 13 of the
same Code, which enumerates the mitigating circumstances, where
analogous circumstances may be considered, hence, the remedy lies
with the legislature. Consequently, unless and until a law is passed
providing that the additional rape/s or homicide/s may be considered
aggravating, the Court must cons:rue the penal law in favor of the
offender as no person may be brought wit hin it s terms if he is not
clearly made so by the statute. (People v. Sultan, G.R. No. 182470,
April 27, 2000; People v. Regala, G.R. No. 180508, April 5, 2000,En
Banc; People v. Gano, G.R. No. 134878, February 28, 2001, En Banc;
1970 and 1996 Bar Exams)
If homicide, rape, and physical i nj u r ies were committed by
reason or on occasion ofrobbery, the crime committed is special
complex crime of robbery wit h h o micide. (People v. Daniela, G.R.
No. 139280, April 24, 2008) Rape will be treated as a component of
robbery with homicide instead of aggravating circumstance.
(People
v. Larrannaga, G.R. ¹s . 18 8 8 7 4-75,February 8, 2 004; People v.
Montanir, G.R. No. 187534, April 4, 2011)
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 257
A GG R AVATING CIRCUMSTA N C E S
A ggravating c i r c u m stances a r e c l a s sified i n t o o r d i n a r y
aggravating c i r c u m stance, s p e cial a g g r avatin g c i r c u m stance,
qualifying circumstance and i n h erent a g gravating circumstance.
(1999 Bar Exam)
O RDINARY AGGRAVATING CIRCUMSTA N C E S
Ordinary a g g r avatin g c i r c u m stance u n l es s o f f set b y a
mitigating circumstance shall require th e application of divisible
penalty in its maximum period (Article 64 of the Revised Penal Code)
or the application of greater penalty of reclusion perpetua to death.
(Article 68)
M itigating a n d a g g r a v atin g c i r c u m stances s h al l n o t be
considered in the imposition of the penalty in the following cases: (1)
if the crime is imprudence or negligence (Article 865 of the Revised
Penal Code); (2) if the penalty is single and indivisible (Article 68);
and (3) if special law has not adopted the technical nomenclature of
the penalties of the Revised Penal Code. (People v. Simon, G.R. No.
98028, July 29, 1994; 1975 Bar Exam)
C onteinpt of or Insult to Public Author i t i es
Contempt of o r i n s ul t t o p u b li c a u t h orities i s a n o r d i n ary
aggravating circumstance.
The term public authority r efers to a person in authority. It
does not include an agent of person in authority. (People v. Tiongson,
G.R. Nos. L-85128-24, July 25, 1984)
Under Art i cle 152 of th e Revised Penal Code, teachers and
lawyers are persons in authority for purposes of applying the
provisions of Articles 148 and 151 on crimes of direct assault and
resistance. Hence, they are not persons in authority for pu rposes
of applying the provisions of: (1) Article 14 on contempt of public
authorities (People v. Tac-an, G.R. No. 76888, February 26; 1990);
(2) Article 91 on the running of prescription upon discovery of crime
b y person in a u t h ority; an d (3) A r t i cle 177 on usurpation of t h e
function of person in authority.
To appreciate it as aggravating circumstance, the crime must
be committed in contempt of or with in s ult to public authorities. In
sum, the crime must be committed against another person i n t he
presence of a person in a ut hority, who is engaged in the exercise

258 CRIMINAL LAW REVIEWER
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of public function. If the assault is committed against a person in
authority, who is engaged in th e performance of duty, th e crim e
committed i s d i r ect a ssault, w h ich a bsorbs th e c i r cumstance of
contempt of public authority.
Place of Commission
T here are p l aces which every i n d i v i dual i s d u t y b o un d t o
respect. These pl aces ar e t h e : ( 1 ) M a l a canang P a lace or a n y
place whenever the President was present; (2) place where public
authorities are engaged in the discharged of their du ty; (8) place
dedicated to r e ligious worship; and (4) d w elling of t h e o f fended
party. Committing crime in di sregard of any of these places is an
ordinary aggravating circumstance.
1. Ch u r c h , m o sque an d M a l a c a n ang P a l ace — I f t h e
crime was committed i n a p l a c e d edicated to r e l i gious worship
(church or mosque; but not cemetery), or palace of the Chief Executive
(Malacanang Palace), the place of commission is an a g gravating
c ircumstance. Discharge of religious or executive function or t h e
presence of priest in the church or the President in the palace is not
required toappreciate this circumstance.
2. P r e s i d en t — If t h e c rime is committed in the presence
of the priest, the circumstance is not aggravating. If th e crime is
committed in the presence of the President, the place of commission
is an aggravating circumstance. It is not required that the President
is discharging his official duties at that time.
8 . P l a c e s w h e r e p u b l i c a u t h o r i t ie s ar e e n g a ged i n
discharge of their d u t ies — Places where public authorities are
engaged inthe discharge of their duties are police station i n (Peo
eo ple v .
e Aninias, L-5591, March 28, 1955), courtroom, or provincial hall.
To appreciate place of commission as an aggravating circumstance,
it is important that the public authority (e.g. judge) is present and
discharging his official duties in that place (e.g. court room) at the
time of commission of the crime. (U.S. v. Punsalan, G.R. ¹. 1 4 81,
January 27, 1904) E v e n i f t h e c r i m e i s c o mmitted a gainst t h e
person in authority h i m self (e.g. direct assault against governor),
place of commission (e.g. provincial hall) can be appreciated as an
aggravating circumstance. (US v. Baluyot, G.B. ¹. 14476',
November
6; 1919)
4. Per s o n i n a u t h o r i t i es — If t h e c r i m e i s c o m mit te d
outside the court room, police station or city hall, place of commission
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 259
is not an aggravating circumstance. However, contempt of authority
and disregard ofrank may be considered.
a. Con t e m p t of authority —If the crime is committed
against a third person in the presence of a public authority, who
is engaged in the discharge of his official function, contempt of
authority is an aggravating circumstance.
If the crime is committed against a th i rd p e rson i n t h e
presence of p u b li c a u t h or i ties (other t h a n t h e P r e sident),
who are not engaged in th e di s charge of th eir fu n ction, t h e
circumstance of contempt o f a u t h o r it y i s n o t a g g r avating.
I n committin g m u l t i pl e m u r d ers i n P l a z a M i r a nd a i n t h e
presence of Senators by throwing grenades at the audience in a
political gathering, contempt of authority is not an aggravating
circumstance. (1971 Bar Exam)
b. D i s r e g ar d o f r a n k — If t h e c r i m e is c ommitted
against t h e p e r s o n i n a uthority h i m s e l f , aggravating
circumstance of disregard of rank can be appreciated. But if
less serious physical injuries is committed against the person in
authority himself, qualifying circumstance can be appreciated.
c. D i r e c t a ssault — If the crime is committed against
person in authority by reason or on occasion of his performance
of duty, the crime committed is di rect assault. Contempt of
authority, disregard of rank, qualifying circumstance in less
serious physical injuries shall not be appreciated since they are
inherent in direct assault. Note: Direct assault does not absorb
place of commission as an aggravating circumstance. (US v.
Baluyot, supra)
Disregard of Rank
There ar e f ou r o r d i n ar y a g gravating c i r cumstances under
Article 14(8) of th e R evised Penal Code, to iv i t: ( 1) d isregard of
rank, (2)disregard of age, (8) disregard of sex, and (4)disregard of
dwelling.
The circumstances of disregard of sex, age, or rank should be
considered as one. But th e circumstance of disregard of dwelling
s hould b e c o n sidered i n d ependently f r o m t h e circumstance of
disregard of age, sex, and rank since their concepts are not the same.
In the latter, the disrespect shown by the offender pertains to the
person of the offended due to her rank, age and sex. In the former, the
disrespect pertains to the dwelling of the offended party due to the
 260 CRIMINAL LAW REVIEWER
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sanctity of privacy which the law accords it. Hence, the court must
independently appreciate disregard of d w elling an d d i sregard of
rank (People v. Puno, G.R. ¹. L - 8 8 2 11, tune29, 1981); or disregard
of dwelling and disregard of age. (People v. De Taga, G.R. No. 81251,
August 6, 1929, and People v. Tawat, G.R. No. 62871, May 25, 1984)
1. I n t e n t t o I n s u l t — In People v. Talay, G.R. No. L-24952,
November 28, 1980, disregard of the rank of the barangay captain
s hall not b e a p preciated as an a g gravating circumstance in t h e
absence of proof of the specific fact or circumstance that the accused
disregarded the respect due to the offended party. It must be shown
that the accused deliberately intended to insult the rank of victim as
barangay captain.
2 . D i r e c t A s s a u l t — I f t h e a c c used k i l led a p e r son i n
authority while engaged in the performance of duty or by reason of
past performance of duty, the crime committed is direct assault with
murder or homicide. (People v. Hecto, G.R. No. L-52787, February 28,
1985; People v. Moreno, G.R. Nos. L-87801-05, October 28, 1978; U.S.
v. Garcia, G.R. No. 6820, October 16, 191 1) If accused killed a person
in authority, but he was not engaged in the performance of duty at
that time, and there is no showing that the crime was committed by
reason of past performance of duty, the crime committed is not direct
assault with homicide or murder. Accused is liable for homicide or
murder and the aggravating circumstance of disregard of rank ma y
be appreciated. (People v. Ablao, G.R. No. 69184, March 26, 1990)
In U.S. v. Cabiling, G.R. No. L-3070, February 11, 1907, the
accused killed his teacher by reason of the performance of his duty.
The accused was convicted of murder aggravated by disregard of
rank. However, C.A. No. 578 has amended Article 152 of the Revised
P enal Code in 1940 by m a k in g a t e acher a p erson in a u t h or' t .
H ence, if the accused killed his teacher by reason of the performance
of his professional duty, the crime committed is direct assault with
homicide or murder (Sarcepuedes y. People, G.R. No. L-8857, October
22, 195'1; People v. Renegado, G.R. No. L- 2 7081, May 81, 1 97 4
),
which will absorb the circumstance of disregard of rank. (2017 Bar
Exam)
3. Con t e m p t o f P u b li c A u t h o r i ty, D i sregard of R a n k ,
and Place of Comm i s s ion — In contempt of public authorities, the
offender committed a crime against another person indisregard of
the presence of the public authori ty while engaged in the performance
of duty. In sum, the victim is not the person in authority.
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 261
In disregard of rank, the crime must be committed against a
person of a higher rank such as a person in authority. The accused
disregarded the re spect due to r a n k o f th e pu b l ic a u t h o rity b y
committing a crime against him.
I n place of commission, the offender committed a c r im e i n
disregard of the respect due to the place where the public authority
was engaged in his official function. In t h ese three instances, the
offender showed disrespect to person in au thority, which justifies
the aggravation of his liability.
In contempt o f p u b li c a u t h orities, th e p erson i n a u t h orit y
was engaged in his official functions outside his office at the time
the crime was committed. In p l ace of commission, the person in
authority was engaged in his official functions inside his office at
the time the crime was committed. In disregard of rank, the public
authority is not engaged in the performance of duty; otherwise, the
crime committed is direct assault, which absorbs the aggravating
circumstance of disregard of rank.
In contempt of public authorities, the person in authority must
not be the victim. In place of commission, the victim may be a third
person or person in authority. In d i sregard of rank, the person in
authority, who is superior in rank to the offender, must be the victim.
Disregard of Sex
To appreciate the aggravating circumstance of disregard of
sex, it m ust b e shown t ha t t h e a ccused deliberately int ended to
offend or insult the sex of the victim, or showed manifest disrespect
to her womanhood. (People v. Puno, supra; People v. Reyes, G.R
No. 158119, April 18, 2004) In sum, the accused must commit some
specific insult o r d i s r espect to he r w o m anhood (People v. Ur s al
and Ursal, G.R. ¹ . L - 8 8 768, April 20,1988) such as removing her
blouse before killing her. (People v. Clementer, G.R. No. L-33490;
Note: the circumstance of ignominy may be appreciated instead of
disregard of sex.)
The aggravating circumstance of disregard of sex shall al so
be appreciated if the accused took advantage of the helplessness of
the woman. (People v. Enot, G.R. No. L- I 7 5 80, October 80, 1962)
However, anattack made by a man with a deadly weapon upon an
unarmed and defenseless woman constitutes the circumstance of
abuse of that superiority which his sex and the weapon used in the
act afforded him, and from which the woman was unable to defend
 262 CRIMINAL LAW REVIEWER
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herself. (People v. Ve ntura a nd V e n t u ras, G.R. N o s. 1 48145-46,
July 5, 2004; 1976 Bar Exam) In t h is situation, disregard of sex is
absorbed inabuse of superior strength.
Disregard of Age
To appreciate the aggravating circumstance of disregard of
age, the accused must deliberately intend to offend or insult the age
of the offended party. (People v. Onabia, G.R. No. 128288, April 20,
1999)
The aggravating circumstance of disregard of age shallalso
be appreciated ifthe accused took advantage of the helplessress
of a baby due to his tender age (People v. Enot, G.R. No. L-17580,
October 80, 1 962); or a s e p t uagenarian w o man du e t o he r o l d
age. (People v. Puno, G.R. No. L-88211, J'une 29, 1981) However,
treachery is a qualifying circumstance where the child, by reason
of tender years, could not significantly defend himself against the
assault of the accused. (People v. Talavera, G.R. No. 189967, July
19, 2001 and People v. Gonzales, G.R. No. 180507, July 28, 1999;
People v. Marzan, G.R ¹ . 189 2 9 4,February 21, 2011) Where the
accused took advantage of the weakness of her sex and age in order
to perpetrate the same without risk to his person, treachery absorbs
disregard ofsex and age. (People v.Mangsant, G.R. No. L-45704,
May 25, 1988; People v. Clementer, supra )
The fact that the victim is a child below seven years old is a
qualifying circumstance in rape. Relationship and minority are also
qualifying circumstances in rape. (Article 266-B of the Revised Penal
Code) If the victim of sexual assault is a child, the criminal act may
constitute rape or acts of lasciviousness under the Revised Penal
Code and sexual abuse under Section 5(b) of R.A. No. 7610 (Chi:d
Abuse Law). In such case, the accused shall be prosecuted for the
rape or acts of lasciviousness, or sexual abuse, whichever is graver.
(Dimakuta v. People, G.R. No. 206518, October 20, 2015)
Section 10(6) of R.A. No. 7610 provides that th e penalty for
qualified seduction, consented acts of l a sciviousness, corruption
o f minor, and white slavery shall be one degree higher than t h at
imposed by law when the victim is under 12 years of age. Hov-ever,
this qualifying circumstance of under 12 years of age cannot co-exist
with qualified seduction and consented acts of lasciviousness since
these crimes can only be committed against a child over 12 years of
age.
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 268
Under Section 10(6) of R.A. No. 7610, the penalty for homicide,
other intentional mu t i l ation, or serious physical injuries shall be
reclusion perpetua when t he v i c tim i s u n d er 1 2 y e ars of age. In
People v. Toledo, Sr., G.R. No. 139961, May 9, 2001, previous to its
amendment by R.A. No. 7610, the penalty for homicide under Article
249 of the Revised Penal Code, was reclusion temporal. As amended
by R.A. No. 7610, the penalty for homicide in cases where the victim
is a child below 12 years of age is reclusion perpetua.
The penalty for murder under Article 248 of the Revised Penal
Code, as amended by Section 10(6) ofR.A. No. 7610, is reclusion
perpetua. However, this provision has been amended by R.A. No.
7659 (Heinous Crime Law) by in creasing the penalty to re clusion
perpetua to death.
Robbery with homicide is essentially a felony against property.
The aggravating circumstance of disregard of th e vi ctim's age is
applied only to crimes against persons and honor. (People v. Reyes,
G.R. ¹ . 15 3 1 19,April 18, 2004)
Disregard of Dwelling
T o a p p r eciat e d w e l l i n g a s an or di n a r y a gg r a v ati n g
circumstance, the following requisites must be present: (1) offender
committed crime in the dwelling of the offended party; (2) offender
committed the crime in disregard of the respect which the dwelling
is entitled; and (3) the offended has not given provocation. (1976 Bar
Exam)
1. Sa n c t i t y o f P r i v a c y — In ag g r a vating c ircumstance
of disregard of dwelling, the accused transgressed the
s anctity of p r i v acy du e t o t h e d w e l l in g b y c o m mi t t in g a c r i m e
therein. (People v. Vi l l a r os, G .R. N o. 22 8 7 79, October 8, 2 0 1 8;
2008 Bar Exam) Thus, the victim must have a right of privacy in the
dwelling.
2. Dw el l i n g — Th e s tore, which is used as a house, where
the crime was committed cannot be considered as dwelling within
the meaning of Article 14(3) of the Revised Penal Code. (People v.
Magnaye, G.B. ¹ . L - 8510, May80, 1951) This building, although
being used for rest and comfort, is imbued with p u blic character,
and thus, the law does not accord it the sanctity of privacy.
H owever, a st ore, which i s u sed for r est an d comfort, i s a
dwelling within the meaning of Article 280 on trespass to dwelling
 264 CRIMINAL LAW REVIEWER
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(People v. Lamahang, G.R N o. 48580, August 8, 1985) and Article
299 on robbery in an i n h abited house. (People v. Tubog, G.R. No.
L-26284, November 17, 1926; People v. Alvarez, G.R. No. L-9626;
May 22, 1957)
For all i n t ents and pu r p oses, the h ouse owned by a n o ther
person constituted a dwelling of a victim, who used it for rest and
comfort. It is not necessary under the law that the victim owned the
place. Beshe a lessee, a boarder, a bed spacer, or a maid, the place is
her home, the sanctity of which the law seeks to protect and uphold.
Dwelling i s c o n sidered a n a g g r avating c i r cumstance p r i m ar il y
because ofthe sanctity of privacy the law accords to human abode.
(People v. Sapinoso, G.R. No. 122540, March 22, 2000)
A residential house is a dwelling. But the room rented by the
victim as bedspacer in the house is a separate dwelling. (Pecple v.
Daniel, G.R. No. L-40380, November 20, 1978; 2009 Bar Exam)
In People v.Balansi, G.R. No. 77284, July 19, 1990, one does
not lose his right of privacy in the dwelling where he is offend d '
tthe
e h o u s e of another because as his invited guest, he, the st anger,
is sheltered by the same roof and protected by the same intimacy
of life it affords. It may not be his house, but it is, even for a brief
moment, "home" to him. He is entitled to respect even for that short
moment. (People v. Basa, G.R. No. L-1212, May 18, 1949)
Disregard of dwelling shall b e a p preciated if d i r ect assault
with murder is committed against a judge in the house of his mistress
where he regularly slept every weekend as an invited guest. (2017
Bar Exam)
The Balansi principle will n ot a pply to a v i s itor who m erely
attended a birthday celebration. The house where the birthday was
celebrated is not his dwelling. (People v. Ramolete, G.R. No. L-28108,
March 27, 1974; 2011 Bar Exam)
Tbhe word dwelling includes every dependency of the house that
forms an integral part thereof such as the staircase of the house, its
terrace and enclosures under the house. (PeopLev. Rios, G.R No.
1826'82, tune 19, 2000) But dwelling shall not be appreciated where
the victim was only about to step on the first rung of the ladder of
the dwelling when he was attacked. (People v. S uspene, G.R N o .
L-9846, October 80, 1957)
F or the circumstance of dwelling to be considered, it i s n o t
necessary that the accused should have actually entered the dwelling
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILIT Y 265
of the victim to commit the offense; it is enough that the victim was
attacked inside his own house, although the assailant might have
devised means to perpetrate the assault from the outside. (People
v. Perreras, G.R. No. 1896'22, July 81, 2001; People v. Bagsit, G.R.
No. 148877, August 1 9, 2008) Although the t r i g german fired t h e
shot from outside the house, his victim was inside. Hence, disregard
of dwelling shall be considered. (People v. Tirso, G.R. No. 214757,
March 29, 2017; 1974 Bar Exam)
In robbery w it h v i o l ence and i n t i m i d ation against persons,
dwelling is aggravating because in this class of robbery, the crime
may be committed without the necessity of trespassing the sanctity
of the offended party's house. (PeopLev. BringcuLa, G.R. No. 226400,
January 24, 2018)
3. L iv i n g i n t h e S a m e D w e l l in g — If t h e o f fender and
v ictim w er e l i v in g i n t h e s a m e d w elling, th e f o r mer c ould n o t
have transgressed the sanctity of p r i vacy due to th e dwelling by
committing a crime therein. The right of privacy in the dwelling can
only be invoked against those who are not l i v ing th erein. (People
v. Nuguid, G.R. No. 148991, January 21, 2004; 2013 Bar E x am)
But abuse of confidence may be appreciated. (People v. Laspardas,
G.R. No. L-46146, October 28, 1979) However, two rooms in a house
separately rented by the offender and the victim are considered as
separate dwellings. Hence, disregard of dwelling shall be appreciated
where the crime is committed inside the room rented by the victim.
(US v. Co, G.R. No. 3418, March 8, 1907; People v. Santiago, G.P..
No. 147814, February 6, 2004)
In a d ultery, h u sband, u n f a i t hfu l w i f e a n d h e r p a r a m our
a re living in t h e s ame house, disregard of dwelling shall not b e
appreciated. (US v. Destrito, G.R. No. L-6984, August 19, 1912) The
wife and her paramour could not have transgressed the sanctity of
privacy due to the dwelling since they and the offended husband
were living therein. But abuse of confidence may be appreciated if
the unfaithful wife and her paramour took advantage of the trust
reposed onthem by the offended husband. (US v.Barbicho, G.R. No.
5109, tuly 81, 1909; 1981Bar Exam)
If the paramour is living in a different house, and adultery is
committed in the conjugal house of the unfaithful wife and offended
husband, disregard of dwelling shall be appreciated not only against
the paramour but the wife as well because both of them violated the
respect due to the conjugal home. (US v. Ib anez, G.R. No. 106'72,
October 26, 1915)
 266 CRIMINAL LAW REVIEWER
VOLUME I
4. Pr ov o c a t i on — Wh e n t h e l a w s p e aks of p r o vocation '
either as a m i t i gating circumstance, or lack of provocation as an
e ssential element o f s e lf-defense, the r eference is t o a n u n j u s t
or improper conduct of the provoking party capable of exeiti:g,
inciting, or irr i t at ing anyone; it is not enough that the provocative
act be unreasonable or annoying; the provocation must be sufficient
to excite one to commit th e wr ongful act and should immediately
precede the act. (Urbano v. People, G.R. No. 182750, January 20,
2009)
Provocation, the absence of which is an element of self-defense,
must be given by the accused exciting the victim to commit unlawful
aggression against him.
Provocation as a mitigating circumstance must be given by the
offended partyadequately exciting the accused to commit a crime; it
must have blurred the reason and self-control of the accused..
P rovocation, t h e a bsence of w h i c h i s a n element o f t h e
mitigating circumstance of dwelling, must be given by the offended
party exciting th e a ccused to commit c r im e i n side th e d w elling
and stripping the former of his right to privacy in his dwelling; the
victim must have lost his right to the respect and consideration due
him in his own house by reason of provocation on his part. (People v.
Atienza, G.R. No. L-89777, August 81, 1982)
Challenging the family of the accused while armed with deadly
weapons and chasing one of the accused constitute a provocation,
w hich is sufficient to strip the victim of his right to pr ivacv in hi s
dwelling, where the crime was committed. Hence, the aggravati":g
circumstance of di sregard of d w e l lin g s h all n o t b e a p p rec:ated.
M oreover, this provocation is also sufficient to blur the reason and
self-control of the accused. Hence, the mitigating circumstance of
provocation shall be appreciated. (Pepito v. CA, G.R. No. «1994>,
July 8, 1999)
The statement "H a l i%a rito pare makita mo a ng h i n a h anap
fP
mo is a p r ovocation, which is sufficient to strip th e victim of 1".is
right to privacy in hi s dwelling, where the crime was committed.
Hence, the aggravating circumstance of disregard of dwelling shall
not be appreciated. But this provocation is not sufficient to blur tl ie
reason and self-control of th e accused to commit a c r i me. Hence,
the mitigating circumstance of provocation shall not be appreciated.
(People v. Cordero, G.R. No. 97229, January 5, 1993)
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILIT Y 267
Nighttime
Under Article 10(15) of the Old Penal Code, that nocturnity,
band or despoblado shall be taken into consideration by the courts
according to the nature and incidents of the crime. Thus, nighttime,
band and uninhabited place which the accused employed to facilitate
the commission of the crime or to afford impunity shall be appreciated
as aggravating circumstance. However, Article 14(6) of the Revised
Penal Code has eliminated the phrase according to the nature and
incidents of the crime and instead considers nighttime, uninhabited
place and band as aggravating whenever such circumstances may
facilitate the commission of the offense. However, despite of this new
phraseology, jurisprudence still considers nighttime, uninhabited
place an d b a n d u s e d t o a f f o r d i m p u n it y a s a n ag g r a v ating
circumstance.
1. N ig h t t i m e p e r s e — I f th e cr i m e i s c o m m i t t ed i n
t he dwelling, thi s circumstance is aggravating. But i f t h e c r i m e
i s c ommitte d d u r i n g n i g h t t i me , t h i s c i r c u m stance w i l l n o t
automatically be considered as aggravating. (People v. Laguardia,
G.R. No. L-68243, February 27, 1987) To appreciate nighttime as
an aggravating circumstance, it m ust be shown that th e accused
intentionally chose the darkness of the night (or silent of the night)
to facilitate the commission of the crime (People v. P ardo, G.R. ¹.
L-562, November 19, 1947); or afford impunity (Peoplev. Cortes, G.R.
No. 187050, July 11, 2001); or deliberately took advantage thereof to
facilitate the commission of the crime. (People v. Morales, G.R. No.
L-44096, April 20, 1988; 2005 and 201 7Bar Exams)
Where th e n o t io n t o k i l l t h e v i c t i m w a s c o n ceived only
shortly before its commission, nighttime shall not be appreciated
as aggravating circumstance. (People v. Pardo, G.R. ¹. L- 5 6 2,
November 19, 1947; 1997, 2008, and 2018 Bar Exams)
If the accused decided to commit the crime at the precise
moment that he saw the victim in the middle of the night, nighttime
cannot be appreciated in acts of lasciviousness since the accused did
not deliberately choose nighttime to facilitate the commission of the
crime. (1982 Bar Exam)
2. D a rk n e s s an d S i l en t o f t h e N i g h t — As a g e n e ral
rule, nighttime i s an o r d inary aggravating circumstance because
the darkness of the night facilitated the commission of the crime
or insured i m p u ni ty . ( 1 994 Bar E x a m ) Th u s , n i g h t t i me c annot
aggravate the crime if it i s committed in a l i ghted place although
at the wee hours of the night. (People v. Clarino, G.R. No. 184684,
 268 CRIMINAL LAW REVIEWER
VOLUME I
July 81, 2001) The darkness of the night and not nighttime per se
is important i n a p p r eciating i t a s a n a g g r avating circumstance.
(People v. Banhaon, G.R. No. 181117, June 15, 2004)
B ut if t h e o f fender pu rposely selected the wee hour o f t h
n ight when n eighbors and occupants of th e h ouse including t h e
victim were sleeping to facilitate the commission of the crime or to
afford impunity, nighttime shall be appreciated even if the place of
commission is lighted. (People v. Demate, G.R. ¹. 18 2 8 10,January
20, 2004, En Banc)
While accused were already outside the victims' house at around
ll :00 p.m., they purposely waited until 2 :00 a.m. before breaking
into the residence so as not t o c all t h e a t t ention of th e v i ctims,
household members and/or their neighbors. Taking advantage of the
fact that the victim and household members were asleep, accused
e ntered the well-lighted bedroom and killed the victim. Nightti m e
should be appreciated since accused took advantage ofthe silence
of the night. (People v. Ventura and Ventura, G.R. Nos. 148145-46,
July 5,2004, Per Curiam; 1968, 1996, and 2009 Bar Exams)
C raft or Fr a u d
T he fine d i s t i nction b e tween f r au d a n d c r af t a s o r d i n a r y
aggravating c i r cumstances is u nnecessary a s t h es e t e r m s
are
variants of means employed to deceive the victim and if al l t h ese
are present in t h e s ame case, they shall b e a pplied as a s i n gle
aggravating circumstance (Justice Florenz Regalado). In fact, there
are cases where the Supreme Court t r e ated th e deception (such
as pretending to be a customer) of the accused that facilitated the
commission of the crime as the aggravating circumstance of fraud
or craft (People v. Empacis, G.R. No. 95756, May 14, 1998; People v.
Lor, G.R No. L-47440-42, September 12, 1984); orcraft and fraud.
(People v. Labuguen, G.R. No. 127849, August 9, 2000, En B a nc)
The aggravating circumstances of craft and fraud shall be treated
as one.
Craft may be absorbed intreachery ifit is deliberately adopted
as the means, method or form for the treacherous strategy. It may
co-exist independently from treachery only when both circumstances
are adopted fordifferent purposes in the commission of the crime.
(People v. Lab-eo, G.R. No. 138488, January 16, 2002)
1. To F a c i l i t at e the Commission of Crime —Where the
accused hid the knife under his jacket in order to make a treacherous
attack, craft is absorbed in treachery. (People v. Lab-eo, ibid.)
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269
III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY
2. To A ff or d I m p un i t y '— Wh e r e a c c used d i s guised
themselves as army men to afford impunity, and assaulted victim in
sudden and unexpected manner, craft is not absorbed in treachery.
They shall be appreciated independently. (People v. Rizal, G.R. ¹ s .
L-48487-89, February 26, 1981; 1955 Bar Exam )
Aid of Minor
There is aspecial aggravating circumstance of "exploitation of
children" if the accused makes use, takes advantage of, or profits from
the use of children, or abuses his authority over the child or takes
advantage of the vulnerabilities of the child with abuse of confidence
to induce, threaten or instigate the commission of the crime. (Section
20-C of R.A. No. 9344, as amended by RA. No. 10865) Exploitation
of children forthe commission of crimes is a special aggravating
circumstance, where the penalty shall be applied in it s maximum
period regardless ofthe presence of mitigating circumstances.
Under Article 14(20) of the Revised Penal Code on the ordinary
a ggravating circumstance of committing cr ime w it h t h e ai d o f a
minor, the age of the child must be under 15 years. But in the special
aggravating circumstance of exploitation. of child under R.A. No.
9344, the age of the minor must be under 18 years.
The concept of exploitation of children under R.A. No. 9344 is
comprehensive enough to cover the circumstance of with the aid of
minor under the Revised Penal Code.
Motor Vehicle
A ggravating c i r c u m stance s h al l b e ap p r e ci ated i f th e
motorcycle was purposely sought t o f a cilit ate th e commission of
the offense (People v. Sanchez, G.R. No. 181116, August, 27, 1999),
and to facilitatetheir escape after they accomplished their mission.
(People v. Salahuddin, G.R. No. 206291, January 18, 2016)
Motor vehiclewas appreciated as an aggravating circumstance
where the accused used the motor vehicle to pursue the jeep of the
victims, and then after overtaking the jeep, they fired their rifies at
the victims. (People v. Sanchez, supra)
The use of a motor vehicle is not an aggravating circumstance
where the primary purpose of the accused, a soldier, in riding on a
motorized tricycle was to return t o t h eir camp after shooting the
first victim and it was just incidental that on his way to the camp,
 270 CRIMINAL LAW REVIEWER
VOLUME I
he happened to see his second victim sitt ing by the window of his
house. (People v. Mil, G.R. Nos. L-28104-05, tuly 80, 1979) In sum,
the accused did not purposely seek motor vehicle tofacilitate the
commission of the offense.
In People v. Balagtas, CA-G.R. No. 10828-R, September 12,
1 955, while it i s t r u e t h a t a j e ep wa s used in c ar t ing away t h e
Vicks Vaporub, the crime of estafa was not committed by means of
motor vehicle. The accused used deceit and not the motor vehicle in
committing estafa.
SPECIAL AGGRAVATING CIRCUINSTANCES
The effects of ordinary aggravating circumstance and special
aggravating circumstance are the same. The presence of ordinary
or special aggravating circumstance will require the applioatior of
the prescribed penalty in its maximum period but the same cannot
increase the penalty to the next higher degree. However, while an
ordinary aggravating circumstance can be offset by a n o r d i na"y
a"
mitigating circumstance, a special aggravating circumstance is not
subject to the offset rule.
The following are special aggravating circumstances: taking
advantage of position;organized/syndicated crime group (Article
62 of the Revised Penal Code); quasi-recidivism (Article 160 o f: h e
Code); complex crime (Article 48 of the Code) use of loose firearm
(Section 29 of R.A. ¹. 1 0 5 9 1);under the influence of drugs (Section
25 of R.A. No. 9165; 2005 Bar E x am); and exploitation of min o " .
(Section 20-C of R.A. No. 9844, as amended by R.A. No. 10680)
Complex Crime
Complex crim e i s i n t h e na t u r e of a sp e c ial a g g ravating
circumstance (People v. De Leon, G.R. ¹. 179 9 4 8,tu n e 26, 2009
that effectively di rects th e i m p osition of t h e p r escribed penalty
)
for the most serious component i n i t s m a x i mu m p e r iod.
(Peop'e
v. Valdez, G.R. Nos. 216007-09, December 8, 2015) For example,
the penalty of re clusion temporal pr escribed for the m ost serious
component of th e complex crime of d i r ect assault w it h h o m icide
shall beapplied its maximum period regardless of the presence cf
mitigating circumstance such as confession. (2012 and 1 985 Bar
Exams)
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 271
Organized/Syndicated Crime Group
The specialcircumstance of organized/syndicated crime group
is not listed in Article 14; but it is found in Article 62, which provides:
The maximum penalty shall be imposed if the offense was committed
by any person who beLongs to an organizedlsyndicated crime group.
An organized lsyndicated crime group means a group of two or more
persons collaborating, confederating or mutually helping one another
for purposes ofgain in the commission of any crime.
Syndicate means association o f g a n gsters. Th e c oncept of
o rganized/syndicated cr im e g r ou p c o nt emplates th e Y a k us a i n
Japan, Mafia in th e U n i ted States of America, Hong Kong Triad,
Akyat Bahay Gang, Red Scorpion Gang, etc.
Organized/syndicated cr im e g r ou p p r e supposes conspiracy
among members of the syndicate to commit a cr ime for gain. But
conspiracy alone i s n o t e n ough t o e s t ablish t h e e x i stence of a
syndicate. In People v. Alberca, G.R. No. 117106, June 26, 1996, to
appreciate this circumstance, there must be a group of persons, at
least two in number, which is organized for the purpose of committing
crimes for gain. In t his case, accused and his companions planned
to rob the employer of th e vi ctim. Bu t t h er e i s n o evidence that
they were organized for the purpose of committing crimes for gain.
There was a conspiracy to commit robbery but not a syndicated or
organized crime group.
In PeopLev. Esparas, G.R. No. 120034, July 10, 1998, organized/
syndicated crime group was appreciated in importation of dangerous
drugs under R.A. No. 6425 on the basis of the findings of collaborative
efforts of the accused to import drugs. However, Section 98 of R.A.
No. 9165, which has repealed R.A. No. 6425, provides that Revised
Penal Code shall not apply to the provisions of this Act, except in
the case of minor offenders. Thus, the E sparas principle is only
applicable if the offender, who violated the dangerous drugs law, is
a minor.
Crime o f m u r d e r c o m m i t te d b y m e m b e r o f a sy n d i c ate
organized to extort pr otection money where the victim r efused to
give in is aggravated by the circumstance of organized/syndicated
crime group. (1987 and 2008 Bar Exams)
Under Article 14 of the Revised Penal Code, the liability of the
accused isaggravated if the crime is committed by a band, whenever
such circumstance may facilitate the commission of the offense. Thus,
what makes band aggravating is the direct participation of at least
 272 CRIMINAL LAW REVIEWER
VOLUME I
four armed malefactors in committing a crime. Under Article 62, the
liability of the accused is aggravated if the offense was committed
by any person who belongs toan organized/syndicated crime group.
In organized/syndicated crime group, the direct participation of the
members of the syndicate is not the essence of aggravation. What
i s important to appreciate this circumstance is membership in th e
syndicate.
Taking Advantage of Public Position
A ll aggravating c i r cumstances mentioned i n A r t i cl e 1 4 o f
t he Revised Penal Code are or dinary. Pr esence of any o f t h e se
circumstances can be offset by an ordinary mitigating circumstance.
H owever, t h er e i s a n exception. T h e c ircumstance of t a k i n g
a dvantage o f p o s i tion i s a special a g gr avating c i r c umstance,
which cannot be offset by a mi t i gating circumstance. Article 62 of
the Revised Penal Code, as amended by R.A. No. 7659, provides:
When in the commission ofthe cr''me, advantage was taken by the
offender of his public position, the penalty to be imposed shall be in
its maximum regardless of mitigating circumstances.
In US v. Torrida, G.R. No. 7452, September 18, 1912, accused,
a municipal councilman, used his influence, prestige and ascendancy
in inducing victims to pay him five pesos for each dead animal as
fine. Abuse of public position was appreciated.
In US v. Da cuycuy, G.R. No. L-8878, October 18, 1907, the
accused, a councilor, did not take advantage of his public position
to defraud their victims. The victims without inducement entrusted
their money to accused to buy cedula. Abuse of public position was
not appreciated.
Th e mere use of service firearm i s not enough to constitute
taking advantage of public position. The fact that accused made use
of service firearms which they were authorized to carry or possess by
reason of their positions, could not supply the required connection
between the office and the crime. The crime in question, for example,
c ould have been committed by the defendants in th e same or li k e
manner and in the same case if they had been private individuals
and fired with unlicensed weapons. (People v. Mandolado, G.R. 1Vo.
L-51304, June 28, 1983; People v. Joyno, G.R. ¹. 12 3 9 82,March 15,
1999, En Banc; People v. Villa, Jr., G.R. No. 129899, April 27, 2000;
People v. Villamor, G.R. Nos. 140407-08 and 141908-09, January
15, 2002, En Banc; and People v. Fallorina, G.R. No. 137347, March
4, 2004)
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILIT Y 273
Uninhabited Place (Despoblado)
Uninhabited place is an ordinary aggravating circumstance, or
a special aggravating circumstance in robbery by means of violence
or intimidation. (Article 295 of the Revised Penal Code)
To appreciate uninhabited place, it must be proven that there
were no i n h abited h ouses nearby. (People v. C o r puz, G .R. N o .
L-12718, February 24, 1960) But even when the house is inhabited,
if that is the only house in the said place and the victims are the only
inhabitants of the house, uninhabited place shall be appreciated.
(The Revised Penal Code by Luis Reyes; 1996 Bar Exam)
The uninhabited character of a place is determined not by the
distance of the nearest house to the scene of the crime but whether
or not there was reasonable possibility of the victim receiving
some help in the place where the crime was committed. (People v.
Desalisa, G.R No. L-1551 6, December 17, 1966; People v. Agoncillo,
G.R. No. 138983, May 23, 2001, En Banc; People v. Torres, G.R. No.
134766, January 16, 2004, En Banc) Thus, uninhabited place shall
be appreciatedifthe felony was perpetrated in the open sea where
no help could be expected by the victim from other persons and the
offenders could easily escape punishment. (People v. Nu l l a, G .R.
No. L-69346, August 31, 1987; 1963,and 2011 Bar Exams) On the
other hand, if the crime of acts of lasciviousness is committed near
the house of the offended party, the character of the place is not
uninhabited. (1982 Bar Exam)
1. T o F a ci l i t a t e t h e C o m m i s sion o f t h e Cr i m e -
Uninhabited place shall be a p p reciated when a ccused especially
sought it (Peoplev. Arpa, G.R. No. L-26789, April 25, 1969) or took
advantage thereof (US v. Vitug, G.R. No. L-5430, September 8, 1910;
1963 Bar Exam) to f acilitate the commission of the crime. Thus,
where the meeting of the accused and the victims in u n i nhabited
place was entirely unexpected and there is no evidence they had
formed the intention to kill prior to the meeting, uninhabited place
is not an aggravating circumstance.
2. T o A f f o r d I m p u n it y — Un i n h abited place shall also be
appreciated when accused especially sought it o r t ook advantage
thereof to insure impunity such as where the accused deliberately
selected an isolated place for killing and burying the victim to insure
themselves against detection and punishment. (People v. Ong, G.R.
No. L-37908, October 23, 1981)
 274 CRIMINAL LAW REVIEWER
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Band (Cuadrilla)
Band i s o r d i n ar y a g g r avatin g c i r c umstance or a s p e cial
aggravating circumstance in robbery by means of violence or
intimidation. (Article 295 of the Revised Penal Code)
There are three elements of band, to wit: (1) there must be at
least four malefactors,(2) at least four of them are armed (People
v. Solamillo, G.R. No. 128161, June 18, 2003, En Banc), and (3) at
least four of them took part or acted together in the commission of
crime as principals by direct participation. (People v. Lozano, G.R
Nos. 187870-71, September 29, 2008)
1. A r m e d — T he Co d e d o es n ot d e f ine o r r e q u i re a n y
p articular arms or w eapons. Any weapon which, by r eason of it s
intrinsic nature or the purpose for which it was used, is capable of
infiicting serious or fatal injuries upon the victim may be considered
as arms for purposes of the law on cuadrilla. (People v. Lozano, G.R.
¹s . 1 8 7870-71,September 29, 2008) Thus, clubs, revolvers, bolos or
stones are included under the term arms in the phrase "more than
3 armed malefactors."(People v. Manlolo, G.R. No. 40778, January
26; 1989; 19$4 and 1994 Bar Exams)
2. Po u r Armed Men — In defining band, thelaw uses the
phrase "more than three armed malefactors." In sum, to appreciate
band, there must be at least four armed men. N umber four is the
essence of the Spanish word "cuadrilla." "Four armed men" is also
important to determine if the element of tumultuousness is present
in the crime of sedition and tumultuous disturbance of public order.
Where the accused are five men, but only one of them is armed
with a carbine, there is no band. (1980 Bar Exam)
3. P r in c i p a l b y D i r e c t P a r t i c i p a t ion — Wh e re o ne of
the four armed men acted as principal by i n ducement, the crime
is not committed by a b a nd. (People v. Lozano, supra; 20 12 B a r
Exam)
If there is conspiracy to commit th e cr ime, the participation
of the offenders whether direct, indispensable or necessary is not
m aterial fo r p u r p oses of d etermining t h e e x i stence of b a nd . I f
there is conspiracy, the act of one is the act of all, and hence all
of them regardless of the extent and nature of their participation
are principals by direct participation. (People v. Tagana, G.R. No.
188027, March 4, 2004) Thus, acting as a lookout in pursuant to a
conspiracy tocommit robbery is a direct participation for purpose of
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILIT Y 275
appreciating band as an aggravating circumstance. (see: People v.
Damaso, G.R. No. L-80116, November 20, 1978)
QUALIFYING AGGRAVATING CIRCUMSTANCES
Q ualifying c i r cumstance t h a t c h a n ges t h e n a t u r e o f t h e
crime is an element thereof. For example, treachery is a qualifying
c ircumstance. The pr esence of t r eachery qualifies th e k i l l in g t o
murder. Treachery is included in the definition of murder. Treachery
is an element of murder. (2008 Bar Exam)
The differences between ordinary (o r g e neric) aggravating
circumstance and q u alifying ci r cumstance are a s f o llows (1947,
1984, and 1999 Bar Exams):
O rdinary a g g r avatin g c i r c u m stances h av e t h e e f f ec t o f
increasing the penalty for the crime to its maximum period, but it
cannot increase the same to the next hi gher degree. (People v. De
Leon, G.R. No. 179948, June 26, 2009; 1950 and 1999 Bar Exams)
Qualifying circumstances change the name and nature of the crime
and cause the imposition of a penalty graver than the crime being
qualified. (2011 Bar Exam)
For example, kil l in g a p e r son i s h o micide. The penalty f or
homicide is reclusion temporal. If ordinary aggravating circumstance
of craft is present, reclusion temporal shall be applied in its maximum
period. If the qualifying circumstance of treachery is present, it will
qualify the ki l l ing to m u r der in stead of homicide and change the
penalty to reclusion perpetua to death instead of reclusion temporal.
Ordinary aggravating circumstance can be offset by an ordinary
mitigating circumstance (People v. De Leon, G.R ¹. 179 9 4 8,June
26, 2009), while qualifying circumstance is not subject to the offset
rule. (People v. Abletes, G.R. No. L-83304, July 81, 1974)
It is now a r e q u irement t ha t t h e a g gravating or q u alifying
circumstances be expressly and specifically alleged in the complaint
or information. Otherwise, they cannot be considered by the tr i al
court in its judgment, even if they are subsequently proved during
trial. (Sombilon, J'r. v. People, G.R. ¹. 1 7 5 5 28, September 30,2009)
This procedural rule has a retroactive application because of pro reo.
(People v. Dadulla, G.R. No. 172821, February 9, 2011; 1947, 1957,
1968, 1982, 1991, and 2001 Bar Exams)
Moreover, there are new guidelines on how to allege aggravating
or qualifying circumstance in the Information. In cases where law
 276 CRIMINAL LAW REVIEWER
VOLUME I
uses a broad term to embrace various situations in which may exist,
such as but are not li m i ted to (I ) t r eachery; (2) abuse of superior
s trength; (3) evident p r emeditation; (4) c r uelty, a l l eging i n t h e
information the name of the modifying circumstance e.g., treachery
is not enough. The information must state the ultimate facts relative
to such circumstance e.g., alleging that the accused surreptitiously
stabbed the victim a t h i s b ack t o e n sure t hat h e c a nnot defend
himself. In case of failure to comply with th e r ule on allegation of
ultimate facts, the Information may be subject to a motion to quash
or a motion for a bill of particulars. Failure of the accused to avail any
of the said remedies constitutes a waiver of his right to question the
defective statement of the aggravating or qualifying circumstance
in the Information, and consequently, the same may be appreciated
against hi m i f p r o v e n d u r i n g t r i a l . A l t e r n a t ively, p r osecutors
may sufficiently aver the ult i m ate facts relative to a qualifying or
aggravating circumstance by referencing the pertinent portions of
the resolution finding probable cause against the accused, which
resolution should be attached to the Information. (People v. Solar,
G.R. No. 225595, August 6, 2019)
Aid of Armed M e n
Aid of armed men is an ordinary aggravating circumstance or a
qualifying circumstance in murder. (Article 248 of the Revised Penal
A id of a r m e d m e n r e q u i res: (I ) t h a t t h e a r m e d m e n a r e
accomplices who take part in m i nor capacity, directly or indirectly
(People v. Lozano, G.R. ¹s . 18 7 8 7 0-71, September29, 2008, En
Banc) and (2) that the accused availed himself of their aid or relied
upon them when the crime was committed. Thus, this circumstance
should not be appreciated were armed men acted in concert to ensure
the commission of the crime. (People v. Carino, G.R. No. 131117,
June 15, 2004)
In aid of armed men, the men act as accomplices only. They
must not be acting in the commission of the crime under the same
purpose asthe principal accused, otherwise, they are to be regarded
as co-principals or co-conspirators. (People v. Enoj a, G.R No. 204894,
March 10, 2014) In band, the armed members thereof, who are at
least four, must all be principals oy direct participation who acted
together in the execution of the acts constituting the crime. (People
v. Lozano, G.R. Nos. 187370-71, September 29, 2008
) In band, the
number of armed offenders is at least four. The term "aid of armed
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I II. CIRCUMSTANCES AFFECTING CRIMINAL LIABILIT Y 277
men" presupposes that the principal is seeking aid and that armed
men are giving material ai d as accomplices. The principal is not
required to be armed. (1955 Bar Exam)
Aid of Persons Who Insure or Afford Impunity
Aid of persons who insure or afford impunity i s an or dinary
aggravating circumstance or a qualifying circumstance in murder.
(Article 248 of the Revised Penal Code)
A treacherously killed X. B and C helped A in throwing the dead
body of X at the sea to prevent the discovery of the crime. A is liable
as principal to the crime of murder qualified by the circumstance of
treachery and aggravated by the circumstance of aid of persons who
insure or afford impunity. B and C are liable as accessories.
In the circumstance of aid of armed rren, offender purposely
sought or consciously relied upon the aid of armed men in committing
a crime. In the circumstance of aid of persons who insure or afford
impunity, of fender p u r p osely sought or c o n sciously re lied u p o n
persons to secure him against detection and punishment. In aid of
armed men, the men, whose aid the accused relied upon, must be
armed. In the circumstance of aid of persor.s u>ho insure or afford
impunity, the persons, whose aid the offender relied upon, are not
required to be armed.
Disguise
Disguise i s a n o r d i n ar y a g g r avating ci r c umstance i f t h e
accused employed the same to insure or afford impunity by hiding his
identity. If the accused used disguise for fear of being attacked, the
circumstance is not aggravating. (US v. Guy-sayco, G.R. No. 4912,
March 25, 1909) Moreover, if despite of the mask, the identity of the
offender was recognizable,disguise will net be appreciated. The fact
that identity of the offender is recognizable negates the existence of
intent to hide his identity to afford impunity. (People v. Pingol, G.R.
No. L-26981, May 28, 1970; People v. Reyes, G.R. No. 118649, March
9, 1998; 1962 Bar Exam) But the fact that the accused were masked
but the masks fell off does not prevent the appreciation of disguise
as an aggravating circumstance. What is important in d i sguise is
that there was a deliberate concealment of ider.tity by the accused.
(People v. Feliciano, Jr., G.R No. 196735, May 5, 2014)
If the accused covered his face with a h andkerchief when he
treacherously killed the victim, the crime committed is murder
qualified by treachery and aggravated by disguise. (People v. Piring,
 278 CRIMINAL LA3V REVIEWER
VOLUME I
G.R. No. 45058, October 19, 1936) If there is no treachery, disguise
m ay be treated as employment of means to afford impun i t ,
w ill quu a l i f y t h e k i l l i n g i n t o m u r d er. I n t h i s c ase, the qualifying
wi
circumstance of employment of. means to afford impunity absorbs
disguise.
A ccording to CA J u stice Luis Reyes, it seems that one wh o
covered his face with handkerchief before killing his victim is liable
for murder, because he employed means to insure or afford impunity.
Disguise is also an ordinary aggravating circumstance if th e
accused used the same to facilitate the commission of the crime.
Thus, if the accused pretended that he is a soldier (disguise) to gain
entrance to the house but not to hide his identity, so that he can rape
the victim therein, disguise shall aggravate his criminal liability for
rape. (People v. Forneste, G.R. Na. L-82860, September 80, 1982)
Calalnity or Misfortun e
That the crime be committed on the occasion of a confiagration
shipwreck, earthquake, epidemic, or other calamity or m i sfortune
is generic o r d i nar y a g g r avating c i r c umstance o r a q u a l i f y i n g
circumstance in murder. (Article 248 of the Revised Penal Code)
T o appreciate t h i s circumstance, th e o f f ender m ust t a k e
advantage of the condition brought about by a calamity or misfortune
to facilitate the commission of the crime or to insure impunit.
uni y.. (US
v. Rodriguez, G.R. No. 6344, March. 21, 1911, En Banc)
The development of engine trouble at sea (People v. Arrpa, G.R.
No.
o. L-26789, April 25, 1969), or mutiny or coup d' etat resulting to
one death is a misfortune (US v. Rodriguez, et al., G.R. No. 6'344,
March 21, 191 1), but it does not come within the context of the phrase
other calamity or mi sfortune as used in Ar t i c le 14 of the Revised
P enal Code, which refers to other conditions of distress similar to
conflagration, shipwreck, earthquake, epidemic, such as the chaotic
conditions resulting from wa r or th e li b eration of t he P hilippines
during the last World War (People v. Penj an, CA 44, O.G. 8849) or
fire, which engulfed several buildings. (People v. Lao Wan Sing, G.R.
¹. L - 1 6879, December17, 196'6)
Using Artifice Involving Great Waste and Ruin
That the crime be committed by m e ans of i n u n dation, fire,
poison, explosion, str anding o f a v e s sel o r i n t e n t i onal d ainage
ther et
t ereto, derailment of a locomotive, or by the use of any other
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 279
artifice involving great waste and ruin is an ordinary aggravating
h h circumstance or a qualifying circumstance in murder. (Article 248 of
the Revised Penal Code)
' Great Waste and Ruin
If the means employed to commit a crime or to kil l a p erson
as expressly mentioned in the law such as explosion or poison, it is
n ot required that t hi s circumstance caused great waste and ruin .
H owever, if th e m e ans employed to commit a c r i m e or t o k i l l a
person is not expressly mentioned in the law, it is required that the
circumstance caused great waste and ru"'n.
In People v. De la Rosa, G.R. No. L-33606, May 16, 1983, on
the occasion of a student demonstration, cffender threw a "pill box"
killing instantaneously a student and causing injuries to the others.
Justice Makasiar in hi s dissenting opinion stated, "To qualify the
crime as murder, the explosion must in,valve great waste and ruin.
Here, the pillbox did not cause great waste and ruin. It c aused the
7
death of only one man, and serious physica! injuries to three students.
Consequently, the same should n ot b e a ppreciated as qu a lifying
circumstance." However, majority cpinion considered that killing is
murder qualified by the circumstance of by means of explosion.
By Means of Fire
If the accused burned the building to kill an occupant therein
the crime committed is murder with the qualifying circumstance of
by means of fire. (People v. Cedenio, G.R. No. 98485, June 27, 1994)
The fire engulfed several buildings. The accused took advantage of
the situation by bur n ing his house to claim in surance. The crime
committed is arson with the aggravating circumstance of calamity
or misfortune. (People v. Lao Wan Sing, G.R. ¹. L- 1 6 8 79,December
17, 196'6)Arson absorbs the aggrav ating circumstance of by means
o" fire but not the circumstance of calamity caused by fire.
The accused, for the sole purpose of committing robbery, set
the house of the victim on fire, treacherously thrust a deadly weapon
at his side and took their money. Victim died. Accused was convicted
of robbery with homicide. The ordinary aggravating circumstance of
committing a crime by means of fire was appreciated. (US v. Bulfa,
G.R. ¹ . 84 6 8,August 20, 1918) If the victim did not die, the crime
committed is special complex crime of robbery with arson. (Article
294 of the Revised Penal Code)
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VOLUME I
By Means of Explosives
Under th e P .D . N o . 1 86 6 a s a m e nded b y R .A . N o . 8 2 9 4,
u se of explosive is special aggravating circumstance in a c r i m e ,
which results in th e death of a p erson. However, under P.D. No.
1866 as amended by R .A. No . 9 516, th e use of explosive is n ot
special aggravating circumstance anymore. However, by means of
explosion under the Revised Penal Code is an ordinary aggravating
circumstance or a qualifying circumstance in murder.
W hen th e k i l l i n g i s p e r p e t r ated w i t h t r e a chery a n d b y
means of explosives, the latter shall be considered as a qualifying
c ircumstance. Not only does jurisprudence support t hi s v iew b u t
also, since the use of explosives is th e p r i n cipal mode of at tack,
reason dictates that this attendant circumstance should qualify the
offense instead of treachery which will then be considered merely as
a generic aggravating circumstance. (People v. Comadre, G.R. No.
158559, tune 8, 2004; People v. Barde, G.R. No. 188094, September
22, 2010)
Treachery
T reachery i s an ordinary a g g r avating c i r cumstance or a
qualifying circumstance in murder. (Article 248 of the Revised Penal
C ode) There is t r eachery when th e offender commits any of t h e
crimes against the person, employing means, methods, or forms in
the execution thereof which tend directly and specially to ir sure its
execution, without r isk t o h i m self arising from the defense v;hich
the offended party might make. (Article 14; 2012 Bar Exam)
1. Cr i x nes A g a i nst Pe r s on — T r e a c hery c an o n l y b e
appreciated incrime against person. It cannot be appreciated in acts
of lasciviousness because it is a crime against chastity.
(1982 Bar
Exam) However, in People v. Escote, Jr., G.R. No. 140756, April 4,
2003, En Banc, the Supreme Court appreciated treachery in robbery
with homicide. Treachery is a generic aggravating circumst ance in
ro e r y w i t h h o m i cide although th e said cr ime i s classified as a
crime against property and a single and indivisible crim . I fi
e app ication oftreachery as a generic aggravating circumstance
in robbery with homicide, the law looks at the constituent crim
f On the other hand, if th e a t t ack i s not continuous, and the
omicide which is a crime against person and not at the constituent
crime of r obbery w h ich i s a c r i m e a g ainst p r operty. (P eople v.
Ancheta, J'une 4, 2004, G.R. No. 148935; People v. Baron, G,R. No.
185209, June 28, 2010)
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 281
2. R eq u i s i tes — To a p p reciate treachery, two conditions
must be present, namely, (a) the employment of means of execution
that gives the person attacked no opportunity to defend himself or
to retaliate,and (b) the means of execution were deliberately or
consciously adopted. (People v. Cuesta, G.R. No. 217880, November
28, 2015; 1968 and 1984 Bar Exams)
Treachery canalso be appreciated ifthe accused took advantage
of the defenseless condition of the victim.
Killing ofa child of tender age, defenseless and unprotected,
must always be classified as murder qualified by the circumstance of
treachery. (US v. Antonio, G.R. No. L-10562, August 8, 1915) Minor
children, who by reason of their t ender years, cannot be expected
to put a d efense. When an adult p erson illegally attacks a child,
treachery exists. (People v. Fallorina, G.R. No. 137347, March 4,
2004; 2012 Bar Exam)
T reachery shall a l so b e a p preciated where th e v i c ti m w a s
asleep at the time of the assault. (People v. Clari no, G.R. ¹. 1 8 4 6'84,
July 31, 2001; 1968 and 1997 Bar Exams)
Treachery may be appreciated even if the attack is frontal or
face-to-face where the same is su dden, unexpected, and wi t hout
warning to the victim. (People v. Lao-as, G.R. No. 126896; June 29,
2001; 2017Bar Exam)
3. Con t i n u ou s a n d N o n - C o n t i n u ous A t t a ck s — T h e
attack is continuous if there is neither break in the continuity of the
aggression nor intervention of any factor, which materially changes
the conditions of the aggression; there must be no appreciable time
intervening between th e fi r s t a t t ack an d t h e fi n a l f a t a l a t t a ck.
(People v. Quiban, G.R. Nos. L-57809-10, August 28, 1984; US v.
Elicanal, G.R. No. 11439, October 28, 1916)
If the attack is continuous and the fatal wound was inflicted
a t the fi na l s t age t h ereof, tr eachery t o b e a p preciated must b e
present at the beginning of the attack (Castillo v. Torrempo, G.R.
No. 189083, December 18, 2002) and not at the final stage thereof.
(People v. Canete, G.R. No. 19288, February 5, 1923)
fatal wound was inflicted at th e fi na l s t age thereof, treachery to
be appreciated must be present a. the fi nal s .age (US v. Baluyot,
G.R. No. 14476; November 6, 1919) and not at the beginning thereof.
(' Peoplev. Geneblazo, G.R. No. 188580, July 20, 2001)
 282 CRIMINAL LAW REVIEWER
VOLUME I
The accused and the victim fought each other. The victim while
in process of retreating fell in a canal, face upward. Accused mounted
him and succeeded in stabbing Z fatally. The attack is continuous.
Thus, treachery shall not be appreciated since it was not present at
the beginning of the attack. (1979 and 1980 Bar Exams)
In US v. Baluyot, supra, accused fired his pistol at the Governor
i nflicting non-fatal w ounds on h i m . T h e G overnor a t t empted t o
escape by enteringin a closet and closing its door. The accused tried
to open the door but he did not succeed. Judging from the position
of the head of the Governor, the accused fired his pistol thereat. The
bullet passed through the door and hit t h e head of the Governor.
As a consequence, he died. The in i t ial a t t ack i s not t r eacherous.
However, the final attack was characterized by treachery. Accused
was convicted of murder quaiified by treachery.
Thhe attack in Ba l u yot case is not continuous. Taking refuge
inside the closet breaks the continuity of the aggression dividing it
into two stages. Since treachery was present at the final stage of the
attack when the fatal shot was fired, the crime committed is murder
qualifiedby treachery.
In People v. Varona, Jr., G. R. No. 119417, October 9, 1996,
victim was seating aboard a tricycle behind the driver when accused
appeared from their left and, without ut t ering a word, hit victim' s
cheek with a du stpan. Startled by th e at tack, driver swerved the
tricycle to the right which caused it to fell on its side and it landed
near a canal. Victim t r i e d t o escape but was chased by accused.
Suddenly, brother of the accused appeared from the direction where
victim was going and hit the latter on the chest. The former handed
to the accused a bolo and they pursued victim. When they finally
outran him, victim k n elt down before accused and begged him t o
stop as he would not put up a fi ght. Accused remained deaf to his
pleas and he hacked him several times to death.
The assault is not continuous. The handing of bolo in the case
o Va rona was an i n t e rvening factor that m a t e rially changes the
condition of the attack. The first condition of the attack was not so
dangerous since the accused was merely using a dustpan to inflict
injuries on the victim. The second condition of 'the aggression was
very dangerous since the accused was already holding a d eadly
weapon and the position of the victim and the nature of the weapon
would not make him capable of making any substantial defense.
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 283
Since the attack is not continuous, treachery, which is present
at the final stage of the attack where the fatal wound was inflicted,
will be appreciated.
4. T r ea c h e r y an d N i g h t t im e — If t he accused purposely
sought nightt im e or t ook a d vantage thereof to m ak e th e a t t ack
unexpected so as to render the victim defenseless, treachery absorbs
nighttime. In such a situation, the two circumstances may well be
regarded as complementing each other and tobe considered as one
modifying circumstance. (People v. Ma g silang, G.R N o . L - 1 7 64,
December 9, 1948; People v. Gumarang, G.R. No. 46418, October 6,
1989; 1958 and 1991 Bar Exams) However, if the accused purposely
s ought ni gh t t im e t o a f f or d i m p u n i ty , a n d t i e d t h e v i c ti m a n d
then stabbed him twice with an icepick, treachery will not absorb
nighttime. Treachery is based on the defenseless position of victim
when he was killed, while nighttime was purposely sought by the
accused to afford i m m u n i ty. (P eople v. On g, G . R. N o. L - 8 7 908,
October 28, 1981)
Employment of Means to Weaken the Defense
Employment of means to weaken the defense is an ordinary
aggravating circumstance or a qualifying circumstance in murder.
(Article 248 of the Revised Penal Code)
Where the accused intoxicated the victim before strangulating
him to death, employment of m eans to w eaken defense shall be
a ppreciated. However, i f t h e s t at e o f i n t o xication of t h e v i c t i m
r enders him defenseless or makes it i m possible for him to put u p
any sort of resistance,treachery shall be appreciated. (People v.
Ducusi n, G.R. No. L-80724, August 8, 1921) In such case, treachery
a bsorbs circumstance of e m p l oying m e an s t o weaken defense.
(People v. Tunhawan, G.R. No. L-81470, October 27, 1988; 1955 and
1991 Bar Exams)
Abuse of Superior Strength
A buse o f s u p e r io r s t r e n gt h i s an or d i nar y a g g r avating
circumstance or a qualifying circumstance in murder. (Article 248 of
the Revised Penal Code)
A buse o f s u p e r io r s t r e n gt h i s pr e s en t w h e n ever t h e r e
is inequality o f f o r ces b etween t h e v i c ti m a n d t h e a g g r essor,
considering that a situation of superiority of strength is notoriously
advantageous forthe aggressor and is selected or taken advantage
 284 CRIMINAL LAW REVIEWER
VOLUME I
of by him in the commission of the crime. (People v. Garchitorena,
G.R. ¹ . 17 5 6 05,August 28, 2009)
Where two or more persons participated in the offense, it must
appear that the accused cooperated together in some way designed
to weaken the defense to appreciate abuse of superior str ength.
Thus, abuse of superior strength shall not b e appreciated where
o ne of the accused committed the crime as principal and th e t w o
as accomplices.In sum, to appreciate abuse of superior strength,
they must commit the crime in the character of principals. (People
v. Cortes, G.R. ¹. L- 3 8 6 14,November 4, 1980; People v. Lumiguis,
G.R No. L-20888, April 27, 196'7; 1978 Bar Exam)
The victim need not be completely defenseless in order for
the said aggravating circumstance to be appreciated.(People v.
Paling, G.R. No. 185890, March 16', 201 1) If the victim is completely
defenseless,treachery should be appreciated. (People v. Rebucan,
G.R. No. 182551, July 27, 2011) When the circumstance of abuse of
superior strength concurs with treachery, the former is absorbed by
the latter. (People v. Dadao, G.R. No. 201860, January 22, 2014) In
sum, what should qualify the killing to murder is treachery and not
abuse of superior strength. (People v. Loreto, G.R. Nos. 137411-18,
February 28, 2008; 1991 and 2012 Bar Exarns
)
In People v. Herida, G.R. No. 127158, March 5, 2001, where
witness whil e t h e a g g ression wa s a l r e ady i n p r o g r ess peeped
through the window and saw the three assailants ganging up on the
victim but he did not witness the beginning of the attack, treachery
was not appreciated. However, the number of aggressors constitutes
abuse of superior strength.
If th e o f f ender u sed hi s p h y s ical s t r ength t o overpower
the victim t o c o n summate t h e c r i m e o f r a p e , t h e a g gr avating
circumstance of abuse of superior strength shall not be appreciated.
Like the crime of p a r r i cide by a h u s band on hi s w i fe, abuse of
superior strength is inherent in r ape. It is generally accepted that
under normal circumstances a man who commits rape on a woman
is physically stronger than the latter. (People v. D e Leon, G.R. ¹.
128436, December 10, 1999, En Bane) This rule can be applied to
acts of lasciviousness. (1982 Bar E xam)
Consideration of Price, Reward or P r o m i se
Circumstance of price, reward or consideration is an ordinary
aggravating circumstance or a qualifying circumstance in murder.
(Article 248 of the Revised Penal Code)
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 285
Circumstance of price, reward o r c onsideration shall n ot b e
appreciated if there was no offer prior to the killing and the money
was given voluntarily by accused after the crime had been committed
as a sort of expression of his appreciation of their sympathy and aid.
(US v. Flores, G.R. No. 9008, September 17, 1914)
If the accused were already decided in the commission of the
crime, and the promised reward is just an additional inducement,
the aggravating circumstance of reward shall not be appreciated.
For aggravating circumstance of reward to be considered,reward
must be the primary consideration in the commission of a crime or
felony. (People v. Paredes, G.R. No. L-19149, August 16, 1968)
In qualifying c i r cumstance of p r i c e o r r e w a rd, t h e o f feror
becomes a pr i n cipal b y i n d u cement an d t h e a cceptor, pr i ncipal
b y di r ect p a r t i cipation. T h e e s t a blished r u l e i n t he S p a n i sh
jurisprudence is to th e effect t hat t h e a g gravating circumstance
of price,reward or promise thereof affects equally the offeror and
the acceptor. In f a ct, under certain conditions, this circumstance
may evince even greater moral depravity in the offeror than in th e
acceptor. (People v. Alincastre, G.R. No. L-29891, August 80, 1971;
People v. Canete, G.R No. L-87945, May 28, 1984; US v. Alim, G.R.
No. 18812,April 1, 1918)
Evident Pr emeditati on
Evident premeditation is an ordinary aggravating circumstance
or a qualifying circumstance in murder. (Article 248 of the Revised
Penal Code)
To warrant a finding of evident premeditation, the prosecution
must establish t h e c o n fluence o f t h e f o l l o win g r e q uisites: (a)
the time when th e offender determined to commit th e cr ime; (b)
a n act m a nifestly i n d icating t ha t t h e o f f ender has clung t o h i s
determination; and (c) a sufficient interval of time between the
determination and the execution of the crime to allow him to reflect
upon the consequences of his act. (People v. Sabangan, G.R. No.
191 722,December 11, 2018)
The essence of evident premeditation is that the execution of
the criminal act m ust be preceded by cool thought and reflection
upon the resolution to carry out the criminal intent during a space of'
time sufflcient to arrive at a calm judgment. (People v. Alinao, G.R.
No. 191256, September 18, 2018)
l. E v i d e n t — Pr e m e d it ation t o k i l l a p e r so n m u s t b e
evident. Even if the offender prior to the killing resolved to kill the
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victim, it i s p ossible that a fter reflecting on hi s sinister plan, he
d ecided not to pursue it but th ereafter he resolved anew to kill th e
victim, and after a short period of time he implemented his spur-
of-the-moment decision. Thus, it w o ul d not b e f ai r t o a p preciate
evident premeditation on a mere assumption that from the time he
resolved to kill up to the time of the kil l i ng, he was able to reflect
upon the consequences of his act and yet he did not r efrain fr om
implementing his resolution. The essence of the second requisite of
evident premeditation is to show that during the intervening period,
offender did not back out from his criminal plan but instead he clung
to it up to the time of its implementation.
L ater in t h e n i g ht , accused resolved to k il l t h e v i c t im . H e
rose from bed and took hold of a knife. He entered the apartment
of the victim through an unlocked window and killed him. Evident
premeditation is not present since the second and third requisites
thereof are not present. (1997 Bar Exam )
U nlike evident p r emeditation, t h er e i s n o r e q u irement f o r
conspiracy to exist that there be a sufficient period of time to elapse
to afford full o pportunity fo r m e d i t ation an d r e flection. In stead,
conspiracy ariseson the very moment the plotters agree, expressly
or impliedly, to commit th e subject felony. (People v. Carandang,
G.R ¹ . 175 9 2 6,July 6; 2011)
2. O bj e c t o f P r e m e d i t a t io n — T o appreciate evident
premeditation, i t i s i m po r t a n t t h e v ictim i s th e ob j e c t o f
premeditation. In sum, the victim killed must be the person who the
accused premeditated to kill. (People v. Trinidad, G.R. No. L-88980,
June 28, 1988)
Where th e accused premeditated t o k i l l a s p e cific p erson,
evident premeditation shall not be appreciated if there is no showing
that the victim killed is the said specific person. (People v. Belchez,
G.R. No. L-21196, March 28, 1968)
Where the accused premeditated to kill the thieves, who stole
his fishing boat, evident p r emeditation shall no t b e a p preciated
if there is no showing that the victim actually ki l led is one of the
thieves. (US v. Caranto, G.R. No. 1677, March 18, 1905; 1949 Bar
Exam)
Where the accused premeditated to k il l a n y d octor, evident
premeditation shall be appreciated if the victim actually killed is a
doctor. (People v. Patelan, G.R. ¹. 18 2 9 1 8,June 6, 2011)
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 287
Where the accused premeditated to kill th e fi rst tw o persons
that he would encounter at Cotabato, evident premeditation shall
be appreciated if the victims actually killed are the first two persons
that he actually encountered therein. (US v. M analinde, G.R. ¹.
5292, August 28, 1909)
W here the accused premeditated to k i l l a n y one found i n a
specific village or town, evident premeditation shall be appreciated
if the killing is made in the said. village or town. (U.S. v. Rodriguez,
G.R. No. 6844, March 21, 1911; U.S. v. Zalsos, G.R, Nos. 14468-6'9,
September 12, 1919)
Where th e a c cused p r emeditated t o k i l l a n y o ne, e v ident
premeditation shall be appreciated regardless of who is his actual
victim. (U.S. v. Binayoh, G.R. No. 11512, October 11, 1916)
In error in personae, there is only one victim. But the victim who
the accused premeditated to kill is different from the actual victim
due to mistake of identity. Hence, evident premeditation shall not
be appreciated since the victim isnot the object of premeditation.
(People v. Dueno, G.R. No. L-81102, May 5, 1979)
In aberratio ictus, there a re t wo v i c ti m s, to u i t : th e t a r g et
victim and the th ir d p erson, who was hit by r eason of mistake of
blow. Evident premeditation shall not be appreciated with respect
to the crime committed against the th ir d person who was hit du e
to mistake of blow because the accused merely premeditated the
killing of the target victim. In sum, the third person is not the object
of premeditation. (People v. Mabug-at, G.R. No. 25459, August
10, 1926; People v. Guil len, G.R. No. L - 1 477, January 18, 1 950)
However, it i s s u b m i t ted t ha t t h e e v ident p r emeditation can be
appreciated with respect to the crime committed against the target
victim because he isan object of premeditation.
In pr a e ter i n t e ntionem, th e re i s o n l y o n e v i c t i m . H e n c e,
evident premeditation shall be appreciated as along as the accused
premeditated to attack the victim, although the wrong committed
be graver than that in t ended. According to CA Justice Luis Reyes,
citing the case ofPeople v.Enriquez, No. 87408, October 10, 1988,
there is no incompatibility between evident premeditation and no
intention to commit so grave a wrong.
8. C o n spiracy and Evident Premeditation —
Conspiracy
and evident premeditation are distinguished as follows:
1. Co n s p i r acy is a crime or a mode of incurring criminal
l iability w h il e e vident p r emeditation i s an a g gravating
circumstance;
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2. U n l i k e i n evident premeditation, where a sufHcient
period of time must elapse to afford full opportunity for
meditation and reflectionfor the perpetrator to deliberate on
the consequences of his i n t ended deed, conspiracy arises at
the very instant the plotters agree, expressLy or impliedly, to
commit the felony and forthwith decide to commit it (People v.
Peralta, G.R. No. L-19069, October 29, 1968);
3 . T h e r e a r e a t l e a s t t w o p e r s on s i n conspiracy
who agreed and decided to commit a c r i m e ; w h il e evident
premeditation can be appreciated against a single offender
who committed the crime despite opportunity for meditation
and reflection; and
4. Pr o o f that the accused committed the crime pursuant
to express conspiracy gives rise to disputable presumption that
they meditated on their confederated plan and yet decided to
implement it. However, while express conspiracy presupposes
the existence of evident premeditation (People v. Regalario, G.R.
No. 101451, March 28, 1998),proof of im plied conspiracy would
not establish any of t h e el ements of evident pr emeditation.
(People v. Roj as, G.R. Nos. L-46960-62, January 8, 1987; 1972
Bar Exam)
4. I n h e r e n t C i r c u m s t a n c e — W h er e th e accused would
execute the p r econceived act, such a s r o bbery, t h eft o r e s t afa,
only after having thought out th e method by which he intends to
accomplish it , e v i dent p r emeditation i s i n h erent. (People v. Cu,
G.R. No. L-18418, April 22, 1977) In robbery with homicide, evident
premeditation is inherent where the accused premeditated only the
robbery, and homicide is a mere incident thereof (People v. Pagal,
G.R. No. L-82040, October 25, 19 77); but e v i dent p r e meditation
is not inherent, and thus, shall be appreciated where the accused
p remeditated not only r obbery but a lso the k i l l in g of th e v i ctim .
(People v. Garillo, G.R. No. L-80281, August 2, 1978;1958Bar Exam)
Evident p r e m editation i s i nh e r en t i n treason b e cause
adherence and the giving of aid and comfort to the enemy is a long-
continued process requiring persistent determination and planning
for the successful consummation of the traitor's purpose. (People v.
Racaza, G.R. No. L-365, January 21, 1949; 1958 Bar Exam)
Ignominy
Ignominy as an ordinary aggravating circumstance may only be
appreciated if
the accused deliberately perpetrated the ignominious
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 289
act to augment the moral suffering of the victim. (People v. Capalac,
G.R. No. L-88297, October 28, 1982) If the accused sexually assaulted
t he victim a f te r t r e acherously i n f licting m o r tal w o un d o n h i m ,
ignominy shall be appreciated in murder. (People v. Bernabe, G.R.
No. 185726, October 16, 2009) But if the accused sexually assaulted
the 11-year old victim to take revenge for his similar experience as
a child, ignominy shall not be appreciated in m u r der because his
principal intention is to take revenge and not to augment her moral
suffering. (People v. Diaz, G.R. No. 180210, December 8, 1999)
I f the offenders ordered th e v i cti m t o e x h i bit t o t h e m h e r
complete nakedness for 10 minutes before killing (or raping) her,
ignominy should be appreciated. (People v. Vi l l a nueva, G.R. ¹ .
L-9529, August 8 0, 1 958) On t h e o t h er h a n d, t he f a ct t h a t t h e
killing was committed in a public place and in the presence of many
persons did not necessarilytend to make the effects of the crime
more humiliating or pu t t h e o ffended party t o s h ame. (People v.
Acaya, G.R. ¹. L- 7 2 9 98, July29, 1988)
Raping the victim in the presence of her husband is ignominy
(People v. Soriano, G.R. No. L-32244, June 24, 1988), which is now a
qualifying circumstance in rape. (Article 266-B of the Revised Penal
Code) But killing the victim in the presence of his wife did not tend
to make the effects of the crime more humiliating. Hence, there was
no ignominy. (People v. Detuya, G.R. No. L- 89800, September 80,
1987)
Raping a victim w ould place her in a h u m i l i at ing condition.
Thus, ordinarily, ignominy is inherent and will not be appreciated
in rape. However, ignominy shall be appreciated if the humiliating
condition of the vi ctim wa s augmented because of the unnatural
way of r a p in g t h e v i c ti m s u c h a s d o g-style position (People v.
Saylan, G.R. No. L-86941, June 29, 1984), the distinctive condition
of the victim such as she was pregnant (People v. Lozano, G.R. ¹ .
125080, September 25, 1998); being pregnant is n ow a q ualifying
circumstance in rape), or the performance of an act not necessary to
commit rape, such as winding a cogon grass around his penis before
raping the victim. (PeopLev. Torrefiel, /CAJ 45 OG 8808)
Before, being raped in the presence of relative or being raped by
several men constitutes the aggravating circumstance of ignominy.
(People v. Cortezano, G.R. ¹. 12 8 1 4 0,September 28, 2003; People
v. Detuya, G.R N o . L - 3 9 300, September 80, 1987) Under Ar t i c le
266-B of the Revised Penal Code, as amended by R.A. No. 8353, the

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fact that rape is committed by two or more men, or in full view of
the spouse, parent, any of the children or other relatives within the
third civil degree of consanguinity is now a qualifying circumstance.
If sexual or physical violence is committed against a woman,
with whom the accused has a marital, dating or sexual relationship,
in the presence of her child, the penalty prescribed by R.A. No. 9262
shall be applied in its maximum period. This is a special aggravating
circumstance.
Cruelty
The crime is not a ggravated by cruelty si mply because the
victim sustained 10 stab wounds, three of which w ere fatal. For
cruelty to beconsidered as an aggravating circumstance, it must
be proven that in i n flicting several stab wounds on the victim, the
perpetrator intended to exacerbate the pain and suffering ofthe
victim. The number of wounds infiicted on the victim is not proof of
cruelty. (Simangan v. People, G.R. No. 157984, July 8, 2004; 2017
Bar Exam)
I. I nt e n t t o P r o l ong the P h y sical Suffering — Cr uelty
is perpetrated by the accused to prolong the physical suffering of the
victim. Cruelty, same as ignominy, shall not be appreciated where
accused continued hacking the victim when the latter was already
dead or at l e ast t o t ally u n conscious and could no l onger feel or
experience additional pain that would prolong his physical suffering.
(People v. Curaraton, G.R. No. 96765, July 5, 1998) Throwing the
dead body of a baby after killing him is not cruelty. (1 988 Bar Exam)
2. N um b e r of Wound —The nature and number of wounds
do not per se give rise to cruelty; the test is whether the accused
d eliberately an d s a d i stically a u g mented t h e v i c t i m ' s suffering;
c onsequently, there must b e p r oof t ha t t h e v i c ti m w a s m ade t o
agonize before he was k i l l ed. Th us, th e f act al one that o ffender
i nflicted 43 stab wounds on th e v i c ti m an d h i t h i s h ead w it h a
big stone to finish him off is not constitutive of cruelty. (People v.
Pascual, G.R. No. 12776'1,April 28, 2000; People v. Tonog, Jr., G.R.
No. 144497, June 29, 2004; 1985 Bar Exam )
3. Cr ue l t y an d I g n o m iny — If t he act is necessary to the
commission of the crime, there is no cruelty. However, ignominy
shall be appreciated even if the act of the offender, which augments
the moral suffering of the victim, is necessary to the commission
of the crime. Dog-style sexual intercourse is an act necessary to
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILIT Y 291
commit rape but i g n ominy shall b e appreciated since the victim
was placed in a humili ating condition. (People v. Saylan, G.R. No.
L-86941, J'une 29, 1984)
I gnominy i n v olves moral s u ffering, w h il e c r u elty r e f ers t o
physical suffering. (The Revised Penal Code by Luis Reyes) Even
i f the act is not necessary to the commission of the crime, if t h e
intention of the offender is to augment merely her moral suffering,
ignominy and not c r u elty m ust b e a p preciated. Thus, plastering
mud on the vagina of the victim r i gh t a f ter she was raped is not
necessary to the commission of rape. However, in plastering mud,
only the moral suffering of the victim w il l b e au gmented. Hence,
the circumstance of ignominy and not cruelty will be appreciated.
(People v. Fernandez, G.R. No. 62116, March 22, 1990)
Burning the face of the r ape victim w it h a l i g h ted cigarette
constitutes cruelty. (People v. Lucas, G.R. No. 80102, January 22,
1990; 1994 Bar Exam) Bu r n i ng t he pubic area of the rape victim
with a l i g h ted cigarette i s i g n ominy. (People v. Va l l a, G .R. N o .
111285, January 2 4, 2000) Inserting a l i g h t ed cigarette into t h e
genital orifice and anal orifice of the r ape victim constitutes two
counts of sexual assault in addition to rape. (People v. Crisostomo,
G.R. No. 196485, January 29, 2014)
4. Cr u e l t y a n d T r e a c h er y — T r ea c hery a n d c r u e l t y
s hould b e i n d ependently a p p r eciated s i nce t h ei r c o ncepts a r e
different. In treachery, the treacherous act of assaulting the victim
is necessary to the commission of the crime. In cruelty, the cruel
act of the accused is not necessary to the commission of the crime.
In treachery, the intention of the offender in making a treacherous
attack is to render the victim defenseless to insure the commission
of the crime. In cruelty, the intention of the offender in perpetrating
a cruel act is to prolong the physical suffering of the victim. (People
v. Develos, G.R No. 1886'6, January 81, 1966; People v. Lora, G.R.
No. L-49430, March 80, 1982)
Abuse of Confidence and Obvious Ungratefulness
Abuse of confidence is an ordinary aggravating circumstance
or a qualifying circumstance in t h eft. (Ar t icle 810 of the Revised
Penal Code)
A buse of c onfidence an d o b v i ous u n g r atefulness ar e t w o
d istinct concepts. Th e essence of abuse of c onfidence is t a k i n g
advantage of the confidence reposed by the victim on the offender to
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facilitate the commission of the crime. On the other hand, the basis
of the appreciation of obvious ungratefulness is the commission of
a crime instead of being grateful to th e generosities given by th e
victim to the offender. For example, the aggravating circumstance
of abuse ofconfidence cannot be appreciated ifthe accused came to
know the victim only about two weeks before the incident. (People v.
Zea, G.R. No. L-28109, June 29, 1984) But even though the accused
has just met th e vi ctim, th e aggravating circumstance of obvious
ungratefulness shall b e a p p reciated i f t h e l a t t e r w a s s u d denly
attacked while in the act of giving the former his bread and coffee
for breakfast. (People v. Bautista, G.R. No. L-88624, July 25, 1975)
Although a buse o f c onfidence an d o b vious u n g r atefulness
contemplate two different circumstances, there are occasions that
their concepts are intertwining. In such case, the abuse of confidence
and obvious ungratefulness shall be t r eated as one. In Pe ople v.
Verdad, G.R. No. 51707, May 16, 1983, accused, a houseboy who
enjoyed the trust and confidence of Tomas Ramos and his family,
was allowed to sleep in the sala and to stay alone in the house when
the whole family was away. He was also entrusted with the keys to
the house. The accused was treated like a member of the family and
was completely trusted. The circumstances of abuse of confidence
and obvious ungratefulness were appreciated as one.
U nlaw fu l E n t r y
Unlawful entry i s a n o r d i n ary a ggravating circumstance or
a qualifying circumstance in robbery by u sing force upon thi ngs.
(Articles 299 and 802 of the Revised Penal Code)
If the accused entered the house through a w i n d ow, which
is not intended f' or entrance, unlawful entry is aggravating in any
crime (such as homicide or m u r der) committed inside the house.
(1997 Bar Exam)
In People v. Sunga, G.R. No. 18054, March 18, 1922, accused
entered the inhabited house through a window and took properties
therein. Had unlawful entry been alleged in th e i n formation, the
crime would have been robbery by using force upon things. But as
unlawful entry was not alleged, the crime committed is merely theft
and unlawful entry is just an aggravating circumstance. However,
Sections 8 and 9 of the Revised Rules on Criminal Procedure, Rule
110, require that aggravating circumstance, qualifying or ordinary,
s hould be alleged in th e i n f ormation. Hence, if un l awful entry i s
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 293
not alleged in the information, it wil l n either qualify the taking to
robbery nor aggravate thepenalty for theft.
Breaking Door or Wi n d ow
That as a means to the commission of a crime, a wall, roof, floor,
door, or window be broken is an ordinary aggravating circumstance
or a qualifying circumstance in robbery by using force upon things.
(Articles 299 and 802 of the Revised Penal Code)
1. D w e l l i n g — D wel l i n g i s n o t an i n gr e d ient o f t h e
aggravating circumstance of unlawful entry and breaking of wall,
roof, floor, door, or window. Thus, unlawful entry in or breaking the
window of a building, not constituting a dwelling, shall be considered
as aggravating circumstance. Thus, dwelling and unlawful entry or
breaking of the w i n dow shall be i n dependently appreciated since
the former is not an element of the latter. (People v. Lamosa, G.R.
Nos. 74291-98, May 23, 1989) If the crime committed is robbery
in an inhabited house, unlawful entry or b r eaking the window is
a qualifying circumstance while dwelling is absorbed for being an
element ofrobbery.
2. E nt ry — I n u n l aw f u l en tr y a s an aggr a v a t i n g
circumstance or a qualifying circumstance in robbery by using force
upon things, it is required that the accused entered the building and
committed the crime therein.
Where accused reaches a purse with money through an open
window on the table, which he took while his body was outside the
building, the crime committed is theft. There is no unlawful entry as
an aggravating or qualifying circumstance.
In br eaking t h e w i n d o w a s a q u a l i f y in g c i r cumstance in
robbery by using force upon things, it is required that the accused
entered the building and took properties therein. In breaking the
window as an aggravating circumstance, it is not required that the
accused entered the building. What is important is that the accused
committed the crime by breaking the window.
Thus, where the accused broke the show-window of a store and
removed 40 watches therefrom, breaking the window as a qualifying
circumstance shall not be appreciated because he did not enter the
building to steal property therein. Hence, the crime was theft and
not robbery by using force upon things. (People v. Adorno, CA 40
O.G. 567; People v. Jaranilla, G.R.No. L-28547, February 22, 1974)
 294 CRIMINAL LAW REVIEWER
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However, according to CA Justice Luis B. Reyes, breaking the window
shall be appreciated as an or dinary aggravating circumstance in
theft where accused broke a window to enable himself to reach a
purse with money on the table, which he took while his body was
outside the building. (1964, 1971, and 1982 Bar Exams )
In disregard of dwelling as an aggravating circumstance, entry
i nto the dwelling is not r e quired. What i s i m p ortant i s t h a t t h e
victim was inside the dwelling when the crime was committed.
3. T r e s p a ssing — In t r e s p ass to d w e lling, d is regard of
dwelling, unlawful entry or breaking window shall not be appreciated
for being inherent. (US v. Barberan, G.R. No. 1-5790, December 16,
1910) Ifhomicide or rape and trespass to dwelling are committed, the
former shall absorb the latter; however, aggravating circumstance
of dwelling and/or unlawful or forcible entry shall be appreciated.
(see: People v. Abedosa, G.R. ¹. 2 8 6 0 0,March 21, 1928)
Use of Loose Firearms Under R. A. No. 10591
Before,illegal possession of unlicensed firearms is governed by
Sections 1 and 2 of P.D. No. 1866 as amended by R.A. No. 8294.
However, Section 45 of R.A. No. 10591 has expressly repealed
S ections 1 an d 2 o f P . D . N o . 1 8 66. R.A. No . 10591 is no w t h e
controlling law with respect to poss'ession of loose firearms.
Loose firearm i s a c oncept broader t han t h a t o f u n l i censed
firearms. Under Section 3(v) of R.A. No. 10591, loose firearm refers
to an unregistered firearm, an obliterated or altered firearm, firearm
which has been l ost o r s t o l en, i l l egally m a n ufactured fi r e arms, '
r egistered firearms in t h e possession of an i n dividual other t h a n
the licensee and those with revoked licenses in accordance with the
rules and regulations.
Under Section 29, R.A. No. 10591, if the crime is committed by
the person without using the loose firearm, illegal possession of loose
firearm and the other crime shall be considered as a distinct and
separate offenses.Applying this provision in reverse, if the crime
is committed by the person with the use of the loose firearm, illegal
possession of loose firearm shall not be considered as a distinct and
separate offense.
For example, theaccused can be prosecuted for illegal posses-
sion of dangerous drugs and illegal possession, of loose firearm. How-
ever, he cannot be prosecuted for homicide and unlawful possession
of loose firearm, which is used in killing the victim.
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 295
If the crime is committed by th e person with th e use of the
loose firearm, illegalpossession of loose firearm is not a separate
offense. (2004 Bar Exam) In s uch a case, the following rules must
be observed:
1. Ab s o r p t ion —When loose firearm is used in committing
rebellion or attempted coup d' etat, the accused shall be prosecuted
for rebellion or a t t e mpted coup d' etat, while p ossession of loose
firearm is absorbed. (Section 29, R.A. No. 10591; 1998 Bar Exam)
2. S p ecial Aggravating Circumstance — Wh e n loose
firearm is used in committing a cr ime with a g r aver penalty, the
accused shall be prosecuted for the graver crime, but the court shall
apply the penalty i n i t s m a x i mu m p e r iod. (Section 29, R.A. ¹ .
10591) Use of loose firearm is a special aggravating circumstance
(People v. Salibad, G.R. ¹. 21 0 6 1 6,November 25, 2015) similar to
quasi-recidivism because its presence will r equire the application
of the penalty in its maximum period regardless of the presence of
mitigating circumstance. (People v. Salahuddin, G.R. No. 206291,
January 18, 2016; 2009 Bar Exam)
F or example, i f a l o o s e f i r e ar m w a s u s e d i n c o m m i t t i n g
h omicide, the accused shall b e h eld l i a ble for h o micide and t h e
court shall apply reclusion temporal prescribed for homicide in its
maximum period. (2004, 2009, and 2010 Bar Exams) This special
aggravating circumstance can be appreciated even though the loose
firearm was not presented as evidence (People v. Salibad, supra)
as long as there is proof that accused used firearm in committing a
crime (slugs were recovered from the dead body of the victim) and
he has no license to possess a firearm. (People v. Salahuddin, supra)
The accused shall not be convicted of separate crimes of ho-
micide and possession of loose firearm, which is used in killing the
victim. Since using loose firearm is a special aggravating circum-
stance in homicide, the crime of possession of loose firearm will be
integrated into the crime of homicide.
A ccused used l o ose fi r e ar m i n c o m m i t t i n g r o b bery w i t h
h omicide. The accused shall not b e p r osecuted for r obbery wi t h
homicide and unlawful possession of loose firearm since under Section
28 of R.A. No. 10591, they cannot be considered as separate crimes.
Illegal possession of firearm for being a mere special aggravating
circumstance shall beintegrated into the special complex crime of
robbery with homicide. (2018 Bar Exam)
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3. Qualifying Circumstance — When loose firearm is used
in committing a crime with a l esser penalty, the accused shall be
prosecuted for the lesser crime but the court shall impose the penalty
prescribed forillegal possession of use of loose firearm. (Section 29,
R.A. ¹. 105 9 1) Use of loose firearm is a q ualifying circumstance
because itspresence will change the prescribed penalty.
For example,the penalty for alarm and scandal isarresto menor
while the penalty for possession of small arm loaded with bullets is
prision mayor in its maximum period. If a loose firearm is used in
committing alarm and scandal, the accused shall be prosecuted for
alarm and scandal with penalty of pr is ion mayor in i ts m aximum
period.
The accused shallnot be convicted of separate crimes of a arm
and scandal and possession of loose firearm, which is used in causing
public alarm. Since using loose firearm is a qualifying circumstance
in alarm and scandal, the crime of possession of loose firearm will be
integrated into the crime of alarm and scandal.
4. E x t r a o r d i n ar y C i rcumstance — When loose firearm
is used in committing a crime with a penalty, the maximum period
of which is equal to that for illegal possession of loose firearn . the
accused shall be prosecuted for the former with additional penalty
of prision mayor in its min im um period. Use of loose firearm is an
extraordinary circumstance similar to habitual delinquency because
its presence will require the imposition of additional penalty.
For example, the penalty prescribed for simple robbery is
prision correccional in its maximum period to prision mayor i n i t s
medium period.The penalty for possession of small arm isp
mayor in its m edium period. The maximum period of the penalty
rison
for robbery isequal to the penalty for possession of small arm. If
this loose firearm is used to commit robbery, the accused shall be
prosecuted for robbery with principal penalty of prision correccional
in its maximum period to prision mayor in i ts medium period and
additional penalty of prision mayor in i ts m i n i m um p eriod. (1954
and 2001 Bar Exams)
The accused shall not be convicted of separate crimes of
robbery and possession of loose firearm, which is used in robbing the
victim. Since using loose firearm is an extraordinary circumstance
in robbery, the crime of possession of loose firearm will be integrated
into the crime of robbery.
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 297
Use of Explosives
P.D. No. 1866 as Amended by R.A. No. 9516
Illegalpossession of explosives is governed by Sections 8 and 4
of P.D. No. 1866 as amended by R.A. No. 8294. But, R.A. No. 9516,
subsequently, modifies these provisions on explosives. Section 45 of
R.A. No. 10591, which has expressly repealed Sections 1 and 2 of
P.D. No. 1866 on unlicensed firearm, does not include the repeal
of Sections 3 and 4 of P.D. No. 1866 on explosives. Hence, P.D. No.
1866 as amended by R.A. No. 9516 is still th e controlling law on
explosives.
U nder P.D. No . 1 8 66, a s a m ended by R .A . N o . 8 2 94, t h e
use of explosives in committing crime, which results in t he death
of a person, isa special aggravating circumstance. (see: People v.
Comadre, G.R. ¹. 15 8 5 5 9,June 8, 2004) However, under P.D. No.
1866, as amended by R.A. No. 9516,use of explosive is no longer a
special aggravating circumstance. However, by means ofexplosion
is still an ordinary aggravating circumstance under Article 14 of the
Revised Penal Code or a qualifying circumstance in murder under
Article 248. But this circumstance is inherent in arson. (1972 Bar
Exam)
Under the InHuence of Dangerous Drugs
Comprehensive Dangerous Drugs Act of 2002
R.A. No. 9165
U nder Section 2 5 o f R . A . N o . 9 1 65, n o t w i t h standing t h e
provisions of any law to the contrary, a positive finding for the use of
dangerous drugs shall be a qualifying aggravating circumstance in
the commission of a crime by an offender, and the application of the
penalty provided for in the Revised Penal Code shall be applicable.
The law should have described the aggravating circumstance as
special rather than qualifying. This is not a qualifying circumstance
since the presence thereof will not require the imposition of a graver
p enalty. Hence, the only effect of this circumstance is that it w i l l
require the application of the penalty prescribed for the crime
committed in i t s m a x i mu m p e r iod r egardless of th e p r esence of
mitigating circumstance.
There is a view that a person under the influence of dangerous
drugs such as shabu, who killed another person, is liable for murder
since Section 25 of R.A. No. 9165 describes the circumstance of use of
dangerous drugs as qualifying. In sum, the qualifying circumstance
 298 CRIMINAL LAW REVIEWER
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of use of dangerous drugs according to this view is equivalent to those
listed in Arti cle 248 of the Revised Penal Code such as treachery.
However, it is submitted that t hi s view is not i n accordance with
the Constitution. R.A. No. 9165 was enacted prior to R.A. No. 9846,
which prohibits the i m position of death penalty. Hence, R.A. No.
9165 should be interpreted in the li ght of the situation where the
imposition of death penalty was not yet prohibited. Under Section
19 of Article III of the Constitution, the imposition of death penalty
is prohibited unless there is a compelling reason involving a heinous
crime as provided for by Congress. R.A. No. 7659, otherwise known
as the Heinous Crime Law, had listed murder as a heinous crime
where the penalty is re clusion perpetua to death. However, there
is no legislative intention in the passage of R.A. No. 7659 and R.A.
No. 9165 that makes killing a person by an offender, who is under
t he influence of dangerous drugs, as a heinous crime with the pr s -
cribed penalty of reclusion perpetua to death, which is equivalent to
murder.
Torture
I f th e o ffender committed a n a c t c o n stitut in g t o r t ur e a n d
murder or k i d n a pping, h e s h al l b e p r o secuted for t w o c r i m e s.
(Section 15 of R.A. No. 9745) However, since murder or kidnapping
i s attended by a c t c o nstitu t in g t o r t ur e o r c r u el , i n h u ma n a n d
degrading treatment, the penalty for murder or kidnapping shall be
applied in its maximum period. (Section 22)
Using Information or Comm u n i cation Technology
R.A. No. 10175
U se o f i n f o r m a tion a n d c o m m u n i cation t e c hnologies i n
c ommitting f elony o r o f f ense under s pecial la w i s a q u a l i f y in g
circumstance under Section 6 of R.A. No. 10175.
U nder Section 6 o f R .A . No . 1 0 175, the penalty for c r i n ies
punishable under special laws committed through and with the use
of information and communication technologies shall be one degree
higher than that provided the lav . However, this provision requires
t he application of the r u les on graduation of penalties under th e
Revised Penal Code. Hence, Section 6 finds application only if the
special law involved has adopted the technical nomenclature of the
penalties of Revised Penal Code.
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 299
ALTERNATIVE CIRCUMSTANCES
Alternative circumstances are those which must be taken into
consideration as aggravating or mitigating according to the nature
and effects of the crime and other conditions attending its commission.
Based on a strict interpretation, alternative circumstances are thus
not aggravating circumstances per se. (People v. Orilla, G.R. Nos.
148989-40, February 18, 2004, En Banc) Alternative circumstances
are relationship, intoxication and l ack o f i n s t r uction. (1961 Bar
Exam)
Relationship
I n v i n d i cation o f g r a v e offense, cr i m i na l e x e m ption of
accessories, alternative circumstance of relationship and defense
of relative, the concept of relationship is the same. It refers to (1)
spouse, (2) ascendants, (8) descendants, or (4) legitimate, natural
o r adopted brothers or s i sters or (5) r e l atives by affinit y i n t h e
same degree. However, in defense of relative, there is an additional
concept of r e l a t i onship. I t i n c l u d es relatives b y c o nsanguinity
within the fourth civil degree. Thus, an uncle is a relative within
' the concept of defense of stranger. (The Revised Penal Code by Luis
Reyes) However, relationship of uncle and niece is not an alternative
circumstance. (People v. Ulit, G.R. Nos. 181 799-801, February 28,
2004)
1. R el a t i o n ship by A f f i n i t y — A f f in i t y i s t h e r e l a t i on
existing by reason of marriage between the spouses, and between
one spouse and the blood relatives of the other spouse. Relative by
affinity wi t h in th e same degree means the ascendant, descendant,
brother or sister of the offender's spouse or the spouse of the
offender's ascendant, descendant or brother or sister. In People v.
Atop, G.R. Nos. 124808-05, February 1 0, 1998, it w as r u l ed that
relationship by af fi n it y r e f ers t o a r e l a t ion b y v i r t u e o f a l e g al
bond such as marriage; relatives by affinity wi t hin th e meaning of
Article 15 are those commonly referred to as in-laws, or stepfather,
stepmother, stepchild, and the like.
2. C o mmon-Law Relationship —Article 15 cannot be
stretched to i n clude persons attached by common-law r elations.
Here, there is no blood relationship or legal bond that links the
accused to his victim. (People v. Atop, ibid.) Ho wever, Article 882
on the exempting circumstance of relationship in t h eft, swindling
and malicious mischief includes common-law relationship. (People
 300 CRIMINAL LAW REVIEWER
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v. Constantino, No. 01897-CR, September 6, 1968, 60 O.G. 8608)
M oreover, common-law r e l ationship b etween th e m ot h r o f t h e
minor victim and the offender is a qualifying circumstance n rape.
(Article 266-A of the Revised Penal Code)
8. A do p t i v e R elat ionship —Under Section 17 of P..A. Uo.
8552, the adoptee shallbe considered the legitimate son.'daughter
of the adopters for all in tents and purposes. Thus, the adoptee and
adopter are considered relatives for c iv il a nd c r i m i n al p u r poses.
Hence, adoptiverelationship should be appreciated as an a ternative
circumstance.
T he relationship established by t h e a d option i s l i m.ited t o
the adopting parent, and does not extend to hi s ot her r e l atives,
except as expressly provided by law. (Teotico v. Del Val Ct c n , G .R.
No. L-18753, March 26, 19 65) Th us, alternative circuri stance of
relationship should not be considered if the offender is the father of
the victim's adoptive mother. However, Article 15 expressly includes
adopted brothers or sisters within the concept of relationship.
4. Cr i m e A g a i n s t P e r so n — In cr i m e ag a i nst pe r son,
relationship is a m i t i gating circumstance if it i s classified. as less
grave felony or l i ght f elony and th e v i ctim i s a r e l a t ive cf l ower
level. The concurrence of the light or less grave classification of the
felony and thelower position of the'victim isrequired to appreciate
relationship as a mitigating circumstance.
On the other hand, relationship is an aggravating circumstance:
(1) if it is classified as grave felony; or (2) if the victim is a relative
of higher or equal level than the offender. The concurrence of the
grave classification of felony and the equal or higher position of the
victim is not required to appreciate relationship as an aggravating
circumstance.
However, the alternative circumstance of relationship may be
considered as mitigating or aggravating not only according tothe
nature and effects of the crime but also in consideration of the other
conditions attending its commission. (1965 and 1968Bar Zxams)
Relationship is a qualifying circumstance in parricide (Article
246 of the Revised Penal Code), qualified serious physic I i n j u r i e s
(Article 263) and qualified less serious physical injuries. (A<ale 265)
5. Cr i m e A g a i nst Property — In crimes against property,
relationship is considered either as an exempting circumstance or
mitigating circumstance.
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 301
I t i s a n e x e m p t in g c i r c umstance i n t h e f t , s windling, or
malicious mischief under Ar t i cle 332 of th e Revised Penal Code.
It is a mitigating circumstance if the crime against property is not
covered by Article 332.
If offender maliciously destroyed the property of his brother-
in-law, and they were not living together, the former is not exempt
from criminal liability for malicious mischief. The offender must be
living with his brother-in-law to consider relationship as exempting
circumstance under Article 332. However, alternative circumstance
of relationship may b e t a ken i n t o consideration as a m i t i g ating
circumstance. Brother-in-law is considered as a relative by affinity
within the same degree under Article 15.
Theft, swindling, and malicious mischief mentioned in Article
332 are crimes against property. Thus, relationship should be taken
as mitigating circumstance in other crimes against property such as
arson, robbery, usurpation and fr audulent insolvency applying by
analogy Article 332. However, relationship in robbery with homicide
is an aggravating circumstance because of the homicide component
of this special complex crime. (People v. Curat chia, G.R. No. L-81 771,
May 16, 1980) Thisrule can also be applied to robbery with rape.
By a nalogy, re lationship in t r e s p assing, which i s a c r i m e
against security, is a mitigating circumstance. (US v. Ostrea, G.R.
No. 1114, March 81, 1908)
6. Cr i m e A g a i n s t C h a s t it y — Cri m e a g a i nst c h a stity
committed against a relative is so monstrous that no punishment,
which is in the power of any human tribunal to decree, could possibly
be a sufficient expiation of the offense. (People v. Porras, G.R. No.
38107, October 16, 1938) Rape was previously a crime against
chastity. However, although rape is now classified as a crime against
person, relationship should just the same be considered aggravating
circumstance. (People v. Fu n d a n o, G . R. N o . 12 4 7 87, Ju n e 2 6 ,
1998) However, the circumstances of ascendency and minority are
qualifying circumstances in rape. (Article 266-B of the Revised Penal
Code)
Accused driven by bestial desire, poked a gun on his daughter,
forciblyundressed her and tied her legs to the bed. He also burned
her face with a lighted cigarette. Like a madman, he laughed while
raping her. The rape is attended by the qualifying circumstance of
use of deadly weapon and aggravating circumstances of cruelty and
relationship. (People v. Lucas, G.R. No. 80102, January 22, 1990;
 302 CRIMINAL LAW REVIEWER
VOLUME I
1994 Bar Exam) I f h is d aughter is a m i n o r, what w i ll q u a lify t h e
crime of rape is the circumstance of relationship and minority.
7. Ot h e r C o n c ept of R e l a t i onship — Un d er S ection 31
of R.A. No. 7610, the penalty for child abuse shall be imposed in
its maximum period when the perpetrator is an ascendant, parent
g uardian, s t epparent o r collateral r e l a t i v e within t h e se c ond
degree of consanguinity or a ff in i t y. T h is is a s p ecial aggravating
circumstance.
T he circumstance of ascendency or r e l ationship w i t hi n t h e
second degree of consanguinity or affinity is a special aggravating
circumstance in ch il d p r ostitution an d sexual abuse. (Sections 5
and 81 of R.A. No. 7610; People v. Velasquez, G.R. Nos. 132685 and
148872-75, February 21, 2001; People v. Bacus, G.R. No. 208854,
August 26, 2015) This is not subject to the offset rule.
Under Section 16 of R.A. No. 9775, if the offender is a parent,
a scendant, guardian, stepparent or collateral r elative wi t hi n t h e
third d egree o f c onsanguinity o r a f f in i t y , t h e p e n a lty f o r c h i l d
p ornography shall b e a p plied i n i t s m a x i mu m p e r iod. Thi s i s a
specialaggravating circumstance.
Under Section 6 of R.A. No. 9208, when the trafficker is a spouse,
an ascendant, parent, sibling, or guardian, the crime committed is
qualified trafficking in person.
Under Section 2 of R.A. No. 3019, a member of the f
amily cf
public officers includes relative within the fourth civil degree, either
by consanguinity or affinity.
Intoxication
If the offender has committed a felony in a state of intoxication,
this circumstance may be mitigating or aggravating.
If accused claims intoxication as mitigating circumstance, he
must establish that his intoxication was not habitual or subsequent
to the plan to commit the crime and that he took such quantity of
alcoholic beverage, prior to the commission of the crime, as would
blur his reason. (People v. Fontillas, G.R. No. 184177, December 15,
2010; People v. Bermudo, G.R. ¹. 22 5 8 2 2,July 4, 2018; 1978 and
2000 Bar Exams)
Iff t h e p r o s ecution claims i n t o x ication as a g gravating
circumstance, it m us t e stablish t ha t t h e i n t oxication is h a bitual
or intentional (People v. Patelan, G.R. No. 182918, June 6, 2011)
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 303
and it fortifies accused's resolve in committ ing th e crime. (People
v. Novio, G.R. No. 189832, June 20, 2008) In the absence of truth
to the contrary, intoxication is presumed to be unintentional or not
habitual. (People v. Mat-an, G.R. No. 215720, February 21, 2018) To
aggravate theliability of the accused, itis not ne cessary that degree
of intoxication must have impaired the will p ower of the accused.
Impairment o f t h e w i l l p o w e r i s o n l y r e q u i red i n a p p r eciating
intoxication as a mitigating circumstance but not as an aggravating
c ircumstance. To a g gravate t h e p e n alty , w h a t i s i m p o r t an t i s
that the intoxication, which is habitual or i n t entional, must have
emboldened accused to commit the crime. (People v. G a, G.R. ¹.
49881, June 27, 1990)
The prosecution has the burden to show that i n t oxication is
an aggravating circumstance; while the accused has the burden to
establish that intoxication is a mitigating circumstance.
The circumstance of intoxication is n either aggravating nor
mitigating if th e p r osecution failed to prove that i t w a s h abitual
or intentional and the defense also failed to prove that, as a result
of intoxication, his will power had been impaired such that he did
not know what he was doing. (People v. Banez, G.R. ¹. 125 8 4 9,
January 20, 1999; People v. Mat-an, G.R. No. 215720, February 21,
2018; 2002 Bar Exam)
Lack of Instruction and Education
Not illiteracy alone but also lack of sufficient intelligence and
knowledge to fully realize the consequence of his crimin al a ct a r e
necessary to invoke the benefit of mitigating circumstance of lack of
instruction and education. (People v. Gorospe, G.R. Nos. 10644-45,
February 19, 1959)
E xtenuating ci r cumstances must b e p r o ven p ositively a n d
cannot be based on mere deduction or inference. Showing illiterate
condition of t h e a c cused i s n o t e n o ugh t o c o n sider m i t i g ating
c ircumstance of l ac k o f i n s t r u ction an d e d u cation; i t m u s t b e
established that illiteracy was coupled with such a low degree of
intelligence that the malefactor did not fully realize the consequences
of his criminal act. (People v. Agustin, G.R. No. L-18868, March 81,
1966; People v. Borj a, G.R. No. L-22947, July 12, 1979; 1988 Bar
Exam)
A person able t o s i g n h i s n a m e bu t o t h e r wise so densely
ignorant and of such low intelligence that he does not realize the full
 304 CRIMINAL LAW REVIEWER
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consequences of a criminal act, may still be entitled to this mitigating
circumstance. On the other hand, another unable to write because of
lack of educational facilities or opportunities, may yet be highly or
exceptionally intelligent and mentally alert that he easily and ever
realizes the full significance of his acts, in which case he may not
invoke this mitigating circumstance in his favor. (People v. Orbista,
G.R. No. L-6246, May 26, 1954; 1964 Bar Exam)
I f the i m m oral n a t ur e of t h e c r im e i s so i n h erent t ha t t h e
offender, despite his lack or low degree of education and instruction
in committing it , w o ul d h av e di scerned the consequences of hi s
wrong doings, m i t i gating c i r cumstance w il l n o t b e c o n sidered.
Thus, lack of instruction and education is not mitigating in theft or
robbery (People v. Ang, G.R. No. L-62833, October 8, 1985), murder
or homicide (People v. Laspardas,' G.R. No. L-46146, October 23,
1979), rape (People v. Nopia, G.R No. L-36297, April 26, 1982; 1983
Bar Exam), and t r e ason. (People v. La n sanas, G.R. No. L - 1 622,
December 2, 1948)
To aggravate theliability of the accused due to the alternative
circumstance of instruction and education, the following requisites
must be present: (1) the offender possessed a high degree of
instruction and education; and ('2) the offender took advantage. of
such high degree of education in committing the crime. The fact that
the accused was a lawyer was not considered aggravating in physical
injuries. (People v. Sulit, CA-G.R. No. 21102-R, September 29, 1959)
APPRECIATION OF CIRCUMSTANCES
In connection with appreciation of aggravating, mitigating or
alternative circumstance, modifying circumstance can be classified
into inherent, personal and non-personal.
Inherent Circumstance
Aggravating circumstances, which in th emselves constitute a
crime especially punishable by law or which are included by the law
in defining a crime and prescribing the penalty therefore or which
are inherent in the crime to such a degree that it must necessarily
accompany the commission thereof, shall not be taken into account
for the purpose of increasing the penalty. (Article 62 of the Revised
Penal Code) This is c a lled as i n h e rent c ir c umstance. (2012 Bar
Exam) By means of fire w i ll n ot a g g ravate the penalty for a rs on
since the former is inherent in the latter.
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 305
Personal Circumstance
If the circumstance is personal, it ca n o nl y b e a p preciated
against th e o f f ender t o w h o m s u c h c i r c umstance i s a t t endant.
Circumstance is personal when it arises from the moral attribute of
the offender, from his private relations with the offended party, or
from any other personal reason. (Article 62)
T he qu alifyin g c i r c umstance o f r e l a t i onship i n p a r r i c i d e
can only be appreciated against the wi fe, and not against his co-
conspirator, who is not the relative of the victim. (People v. Bucsit
G.R. No. 17865, March 15, 1922; 1950, 1957, 1965, and 1997 Bar
Exams)
The qualifying circumstance of abuse of confidence in theft can
only be appreciated against the servant to whom the complainant
reposed confidence, but not to his neighbor. (People v. P uno, G.R. ¹.
97471, February 17, 1993; 1966 Bar Exam)
Aggravating circumstance of recidivism can only be appreciated
against the recidivist. (1983 Bar Exam)
In Pe ople v. Ba u t i s ta, G . R. N o . 1 3 1 8 40, A p r il 2 7 , 2 0 0 0 ,
other accused was given the benefit of mi t i gating circumstance of
voluntary surrender. Accused Bautista, however, cannot similarly
be credited with having voluntarily surrendered. The record shows
that he was taken for questioning and later placed under arrest by
the police. Since the existence of a conspiracy does not prevent the
appreciation of a m i t i g ating circumstance exclusively in f avor of
the co-conspirator to whom such circumstance may relate, Bautista
cannot be credited with th e m i t i gating circumstance of voluntary
surrender.
Non-personal Circumstance
If the circumstance is non-personal, it can be appreciated not
only against the person to whom such circumstance is attendant
but also against those who had knowledge of the same at that time
of the execution of the act or their cooperation therein. Aggravating
circumstance is n o n -personal w he n i t c o n sists i n t h e m a t e r i al
e xecution of th e act or i n t h e m e ans employed to accomplish it .
(Article 62; 2012Bar Exam)
A and B conspired to kill X. A treacherously shot X. B was not
aware of the manner by which A was supposed to kill X. Because
 306 CRIMINAL LAW REVIEWER
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of conspiracy, A and B are liable for the death of X. A is liable for
murder qualified by the circumstance of treachery. B is l i a ble for
homicide. Treachery cannot be appreciated against B be cause he
was not aware that A would employ means to render X defenseless
at the time of the execution of the crime. (People v. Cabillan, G.R. No.
1818088, F b
February 6, 2002) The generic aggravating circumstance
of treachery shall be appreciated against all of the felons who had
knowledge of the manner of the killing of victims of homicide. (People
v. Escote, Jr., G.R. ¹. 14 0 7 56,ApriL 4, 2008)
A treacherously shot and k i l led X. B a s sisted A in t h r o w i n g
the dead body into the sea to destroy the corpus delicti. B was not
p resent when A k i l l ed X . X i s l i a ble for m u r der qu alified by t h e
circumstance of treachery. B is liable as an accessory to homicide.
Treachery will not be appreciated against B since he at the time of
his cooperation was not aware of the treacherous means employed
by A in accomplishing the crime.
The abductors took advantage of th e d ar kness of th e n i ght
in abducting th e v i ct im . H o w ever, ni ghtt im e a s a n a g gravating
circumstance c annot b e a p p r eciated a gainst t h e
accused, who
were guarding the victim. This is a circumstance which may well
b e included in the material execution of the ki dnapping or in t h e
m eans employed to accomplish it . T h e y w er e not t h e o nes w h o
actually kidnapped the victim. They are not bound or affected by
the aggravating circumstance of nighttime unless they knew th at
it would b e a v a iled of i n a c complishing th e o f fense. (People v.
Villanueva,G.R Nos. L-7472-7477, January 81, 1956)
A B , and C agreed and decided to kidnap the victim. Executing
t heir criminal design, they seized the victim and loaded him in a
taxi driven by X. They told X they will only teach the victim a lesson
in Christian humility. X drove them to a fishpond where the victim
was detained. A, B, and C demanded ransom from the relatives of
the victim. Later, A, and B k i l l e d t he v ic tim. A a nd B a r e l i a b le
for kidnapping for ransom with homicide. C is liable for kidnapping
with ransom. He is not l i a ble for th e death of th e vi ctim despite
of the conspiracy because he is not aw are th ereof. X i s l i a ble as
a n accomplice in the crime of slight i l l egal detention. Neither th e
qualifyingcircumstance of demand for ransom can be appreciated
against him nor is he liable for the death of the victim because he is
not aware thereof. (2006 Bar Exam)
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I II. CIRCUMSTANCES AFFECTING CRIMINA' LIABILIT Y 307
pggOLUTORY CAUSF-
Absolutory causes are those where the act committed is a crime
bu for r easons of public policy and sentiment th ere is no penalty
posed. (People v. Ta l isic, G.R. No. 97 961, September 5, 1 997)
The following are absolutory causes: (1) spontaneous desistance in
attempted felony; (2) relationship in crime committed by an accessory
and in t h e ft , m a l i cious m i schief an d s w i n dl ing; (3) exceptional
circumstance of having caught spouse in the act of infidelity in case
of death and serious physical injuries; (4) marriage in crime against
chastity and rape or forgiveness in marital rape, and (5) instigation.
The fact t h a t t h e o f f ended pa r ty a l s o c o mmitted a c r i m e
a gainst th e accused will n o t e x empt o r a b solve th e l a t ter f r o m
criminal liability for the crime committed against the former. The
concept of pari delicto is not found in the Revised Penal Code, but
only in Article 1411 of the Civil Code, which relates only to contracts
w ith i l l egal c onsideration. Cr i m i nal c ase d oes not i n v o lve a n y
illegalcontract which either of the contracting parties is seeking to
enforce. (Vera-Neri v. People, G.R. No. 96715, ¹v em b er 19, 1991)
In the prosecution of public crimes, the complainant is the State (or
People of the Philippines) while the private offended party is but a
complaining witness. Any criminal act perpetrated by the private
offended party on the occasion of the commission of the crime by the
accused is not the act or conduct of the State and can by no means
bind it under the doctrine of pari delicto. (Evangelista v. People, G.R.
No. 89819, October 12, 1998; 2018 Bar Exam)
Relationship in T h e f t, Ma l i c i ous M is chi e f, and S wi n d l i n g
No criminal, but on l y ci v i l li a b i l i t y, s h a ll r e s ult f r o m t h e
commission of the crime of theft, swindling or m alicious mischief
committed or caused mutually by the following persons: (1) Spouses,
ascendants and descendants, or r elatives by affinity i n t h e s ame
degree; (2) The widowed spouse with respect to the property which
belonged tothe deceased spouse before the same shall have passed
into the possession of another; and (3) Br others and sisters and
brothers-in-law and sisters-in-law, if living together. (Article 882)
The exemption by reason of the circumstance of relationship
pertains to cr i m i nal l i a b il i ty . H o wever, th e one, who committed
theft, swindling or malicious mischief against his relative, is civilly
liable. (2018 Bar Exam)
1. P e r s onal Circumstance — If the son of the victim and
a stranger committed qualified theft, th e f ormer i s exempt fr om
 308 CRIMINAL LAW REVIEWER
VOLUME I
criminal liability while the latter is not. Relationship is exempting
circumstance in th e c r im e of t h e ft . Th e exempting circumstance
of relationship arises from his private relations with t he o:"fended
party; hence, the same shall only exempt the person to whom such
circumstance is attendant. (Article 62) In s u m, t h is c ircumstance
shall not be appreciated in favor of a stranger. (1980 Bar Exam)
2. Sp ou s e — Un d er Artic le 832 of the Revised Penal Code,
the term "s pouse" embraces common law relation for p ur poses of
exemption from criminal l i ability i n cases of theft, swindling and
malicious mischief committed or caused mutually by spouses. The
law makes no distinction between a couple whose cohabitation is
sanctioned by a sacrament or legal tie and another who are h usband
and wife de facto. The basis of this ruling is the rule on co-ownership
over properties by common-law spouses. (People v. Constantino, No.
01897-CR, September 6, 1963, 60 O.G. 3603; 1980 and 201 0 Bar
Exams)
The view that the term "spouses" in Article 832 of the P~vised
Penal Code embraces common-law spouses should only be applied if
the property involved is governed by the rule on co-ownership under
the Family Code. Under Article 148 of the Family Code, properties
shall only b e o w ned i n c o m mon b y p a r t n er s u n der a d u l t erous
relationship if they are acquired through joint contributions.
8. St e p - r e l a t i onship —No criminal liability is incurred by
the stepfather who commits malicious mischief against his stepson;
by the stepmother who commits theft against her stepson; by the
stepfather who steals something from his stepson (1965 Bar Exam);
by the grandson who steals from his grandparent (2018 Bar Exam);
by the accused who swindles his sister-in-law living with h im; and
by the stepson who steals a r in g f rom hi s st epmother. (Intestate
Estate of Gonzales v. People, G.R. No. 181409, February 11, 2010)
A stepfather, who is an ascendant by affinity (Peoplev. Adame,
CA, 40 OG 12th Supp. 6 3), falls wit h in t h e c ontemplation of th e
phrase relatives by affinity in t h e same degree under Arti c le 882.
(Intestate Estate of Gonzales v. 'People, supra; 19 65 B a r E x a m )
Smashing the windshield of the car of his stepfather is malicious
mischief. Hence, the accused is exempt from criminal liability. (2011
Bar Exam)
4. I n - l a w s R elationship — Is the accused, who committed
estafa against his mother-in-law, entitled to exempting circumstance
of relationship despite his wife, the daughter of the victim, is already
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY
d ead? There ar e t w o v i ew s o n w h e t her t h e e x t i n guishment of
marriage by death of the spouse dissolves the relationship by affinity
for purposes of absolutory cause. The first holds that relationship by
affinity terminates with th e dissolutio~ of the marriage, while the
second maintains that relationship continues even after the death
of the deceased spouse. The principle of pro reo calls for the adoption
of the continuing affinity view because it is more favorable to the
accused. (Intestate Estate of Gonzales v. People, supra )
If a widow stole the property of her father-in-law, she is not
exempt from criminal liability under par. 3 of Article 882 if the said
property did not pr eviously belong to her husband. However, she
is exempt under par. 1 t h ereof because of the continuing affinity
principle. The father of her deceased husband is still the father-in-
law of the widow. Relationship is exempting circumstance in theft.
5. B r o t h e r a n d Si ster — Brothers and sisters and brothers-
i n-law an d s i sters-in-law ar e exempt f r o m c r i m i nal l i a b il it y f o r
swindling, theft and malicious mischief provided that they are living
together with the complainants. (Article 322) Accused, his wife and
sister-in-law live together. He killed the dog of his sister-in-law. He
is exempt from criminal liability for malicious mischief. (1989 Bar
Exam) However, he is liable for cruelty to animal.
6. T h e ft , M a licious Mischief, and Swindling — The
coverage of Article 882 is strictly li m ited to the felonies mentioned
therein. The plain, categorical and un mi stakable language of the
provision shows that it applies exclusively to the simple crimes of
theft, swindling and m a licious mischief. It d oes not apply where
any of the crimes mentioned under Ar t i cle 832 is complexed with
another crime, such as theft through falsification or estafa through
falsification. (Intestate Estate of Gonzales v. People, supra; 1957,
1981, 2012, 2013, and 2019 Bar Exams) Neither is it applicable to
robbery by means of violence and int i m i dation. (2000 Bar Exam)
However, the term "theft" includes qualified theft since it is used in
the generic sense. (1980 and 2010 Bar Exams)
Under the old rule, burning of suitcase ofhis stepson constitutes
arson of small v a lue, which i s p u n i shable as malicious mischief.
Hence, accused is exempt from criminal liability. (People v. Alvarez,
G.R. ¹ . 284 4 7 , September 13, 1928) However, burning personal
property (suitcase)regardless of its value is now considered as arson
under P.D. No. 1618. Hence, the accused is not exempt from criminal
liability since the crime committed is not malicious mischief. (2004
Bar Exam)
 310 CRIMINAL LAW REVIEWER
VOLUME I
A ccused prepared a d emand l etter f a lsely alleging that h i s
father had authorized him to collect the unpaid rentals. Complainant
paid the unpaid rentals to the accused who kept the payment. The
c rime committed i s f a l sification o f p r i v at e d ocument. E stafa i s
n ot committed because damage as an element of t hi s cr ime w a s
already used as an element of falsification of private document. In
sum, estafa is not committed because the element of damage is not
present. Relationship is not exempting since the crime committed is
not swindling.(1982 and 2008 Bar Exams)
Death or Physical Inj u r ies Under Exceptional Circumstance
A rticle247 of the Revised Penal Code provides a defense. Ifan
accused isprosecuted for parricide, murder or homicide, and he was
able to establish that the killing constitutes death under exceptional
circumstance, the court will sentence him to suffer destierro instead
of imposing the penalty for parricide, murder, or homicide.
To avail th e d e fense under A r t i cl e 2 47, th e a ccused must
establish the following:
1. Th a t a legally married person (or a parent) surprises
his spouse (or his daughter, under 18 years of age and living
with him), in t h e act of committ ing sexual i nt ercourse with
another person.
2. Th a t h e o r she ki lls any or both of them or infiicts
upon any or both of them any serious physical injury in the act
or immediately thereafter.
3. Th a t h e h as not promoted or facilitated the
prostitution of hi s w if e (or d aughter) or t h a t h e o r s he h a s
not consented to the infidelity of the other spouse. (People v.
Puedan, G.R. No. 189576, September 2, 2002
) A married woman and her paramour entered a room alone in a
By invoking the defense in Article 247, accused waives his right
to the constitutional presumption of innocence and bears the burden
of proving the abovementioned requisites. (People v. Puedan, ibid.)
This exceptional circumstance just like any circumstance which may
e ither absolve or exempt an accused from l i ability or m o dify h i s
penalty, must be proved by clear and convincing evidence. (People v.
Takbobo, G.R. No. 102984, June 80, 1998)
1. L eg i t i m a t e S p o u s e — To avail of the defense in
Article 247, th e m a r r i age between th e a ccused and hi s s p ouse
must be legal. (U.S. v. Uersola, G.R No. 10759, January 25, 1916)
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 311
However, offender, who caught her m i stress in th e act of h aving
sexual intercourse with another, shall be entitled to the mitigating
circumstance of passion if he killed the lover of his mistress. (U.S.
v. De La Cruz, G.R. ¹. 70 94,March 29, 1912; People v. Solanga,
G.R. No. 25888, September 9, 1926; U.S. v. Tubban, G.R. No. 9577,
February 10, 1915; 2015 Bar Exam)
2. Su r p r i s e d i n t he A c t of Sex u a l I n t e r c o u r se
Accused saw his wife was rising up with a man, who was standing
and buttoning his drawers. Completely obfuscated, accused killed
his wife. The circumstance indicates that sh e ha d j u s t fi n i shed
having sexual i n t ercourse wit h a n other m an . T h i s i s n o t d e ath
under exceptional circumstance since he did not catch his wife in the
very act of carnal intercourse, but after such act. (People v. Gonzales,
G.R. No. 46810, October 81, 1989; 1958, 1978, and 2011 Bar Exams)
A and B are husband and wife. B is having a love affair with
C. One evening, A returning home sees C jump from the bedroom of
their house. In the bedroom, A sees B lying in bed. A gets his bolo
and kills B. This is not death under exceptional circumstance since
A did not surprise his wife in the act of infidelity. (People v. Marquez,
G.R. No. 81268, July 81, 1929; 1959 and 1971 Bar Exams)
For a husband to be justified, it is not necessary that he sees
the carnal act being committed by hi s w ife wit h hi s own eyes. It
is enough that he surprises them under such circumstances as to
show reasonably that the carnal act -'s being committed. Thus, for
instance, if the offended husband, as in the case of Alano, had seen
the supposed adulterer on top of his wife, there would be sufficient
ground to justify him, although he had not seen the copulation with
his own eyes. (Concurring opinion of Moran in People v. Gonzales,
G.R. No. 4681 0, October 81, 1989; 1985 Bar Exam)
motel. Thereafter, they undressed themselves and performed actual
acts of lascivious character. The husband, who caught his wife and
her paramour in t h a t a ct, k i l led hi s w i fe. Applying the Gonzalez
principle, t hi s i s n o t p a r r i c ide u n der e x ceptional c i r cumstance
because the husband did not su r p rise his wife in t h e v ery act of
sexual intercourse with her paramour. Other view — According to
the dissenting opinion of Justice Laurel in the Gonzalez case, these
are death under exceptional circumstance. The offended husband
need not look on in the meantime 'and wait until the very physical act
of sexual intercourse takes place toreceive the benefit of provision
on death under exceptional circumstance.

312 CRIMINAL LAW REVIEWER
VOLUME I
A married woman and her paramour videoed themselves while
they are having sexual intercourse. After a month, the husband saw
the sex video of his wife with her paramour. Out of extreme jealousy,
the husband immediately k i l led hi s w i fe. Applying the Go nzalez
principle, t hi s i s n o t p a r r i c ide u n der e x ceptional c i r cumstance
since the husband did not surprise his wife in the very act of sexual
intercourse with her paramour. However, the commission of parricide
is attended by ordinary mitigating circumstance of passion.
a. H om o s e x ua l I n t e r c o urse — U n d e r A r t i c le 4 2 8
of the old Penal Code, death under exceptional circumstance
is committed if th e hu sband surprised his wife in th e act of
adultery (en adulterio a su muj er). Adultery under this Code
is committed by a "m a r r i ed w o man" who s hall h a ve sexual
intercourse with a "man" not her husband. The Revised Penal
Code extended the benefit ofthe original Article 428 of the
Penal Code to both husband and wife, and for this reason, the
phrase "in the act of adultery" was changed to "in the act of
committing sexual intercourse." (Opinion of Justice LaureL in
People v. Gonzales, G.R No. 46'810, October 31, 1989) Thus, the
phrase "in the act of committing sexual intercourse" in Ar'.icle
247 of the Revised Penal Code should be interpreted within
the Spanish context of adulterio, which excludes homosexual
intercourse between a w i f e an d a n other w o man ( 2 016' Bar
Exam), fingering, cunnilingus or sodomy.
M oreover, even R .A . N o . 8 8 5 8 , t h e A n t i - R ape L a w ,
recognizes the d i stinction b etween sexual i n t ercourse, and
fingering, cunnilingus or sodomy. Under t hi s l aw, fi ngering,
cunnilingus or sodomy of a victim by means of force constitute
sexual a ssault, a n d n o t r a p e . F i n g ering, cunnilingus or
sodomy is not also within th e contemplation of term "sexual
intercourse," which is an element of adultery, concubinage or
seduction. By the same token, fingering, cunnilingus, or sodomy
s hould be i n t er preted as o u t side th e context o f t h e w o r d s
"sexual intercourse" as an element of death under exceptional
circumstance.
A wife, who killed her husband after having surprised her
in the act of sodomizing a gay, is liable for parricide. This is not
death under exceptional circumstance since "sodomizing" is
not within the contemplation of the term "sexual intercourse"
in Article 247. However, passion may be appreciated as a
mitigating circumstance.
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III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY
Th ere
e i sisn o death under exceptional circumstance if the
accused caught his wife having homosexual intercourse wit
another woman. " Homosexual intercourse" is not w i t hi n t h e
contemplation of the term "sexual intercourse" in Article 247.
However, the crime of parricide is attended by the circumstance
of passion arising from a lawful sentiment, as a result of having
caught his wife in th e act of i n fidelity w it h a n other woman.
(see: People v. Belarmino, G.R. ¹. L- 4 4 29,April 18, 1952; 2015
Bar Exam)
b. M i s t a k e o f F a c t — X k i l l e d his wife in t he act of
having sex with a man. It turned out that the man was raping
his wife. Xshall not be punished. for parricide. The act of Xwou id
have produced death under exceptional circumstance had the
facts, "that the wife was voluntarily having sexual intercourse
with a man," been as the accused believed them to be. Because
of mistake of fact, X should be sentenced to suffer destierro as
prescribed for death under exceptional "ircumstance.
X was declared presumptively dead by the court. His wife
married another man. X su ddenly went home and surprised
his wife in the act of having sex with her new husband. X shall
not be punished for parricide. This is a case of death under
e xceptional c i r cumstance. I n d e t e r m i nin g w h e t her o r n o t
d th e c r i m i n al
e xceptional circumstance shall b e c onsidere ,
m ind of X should be considered. As far as th e m in d of X i s
concerned, he surprised his v, ife in the act of infidelity. Hence,
he is absolved from criminal li ability for parricide because it
was committed under exceptional circumstance.
Anal intercourse is not wi t hi n th e contemplation of the
words "sexual intercourse" in Article 247 of the Code. However,
if the wife honestly thought —.hat her husband and his woman
were having a dog-style sexual intercourse, although in reality
they are having an anal ir.te:course, killing her husband shall
f
constitute death u n der exceptional circumstance because o
the mistake of fact doctrine.
8. I n t h e Ac t or I m m e d i a t e l y T h e r e a f t e r — T h e d eath
caused must be the proximate result of the outrage overwhelming
the accused after chancing upon his spouse in the act of infidelity.
Simply put, the killing by the hu band. of his wife must concur with
her flagrant adultery. (People v. Wagas, G.R. No. 61704, March
8, 1989) There is no death under exceptional circumstance where

CRIMINAL LAW REVIEWER
VOLUME I
killing of th e w ife occurred t he d ay a f ter s he was caught in t h e
commission of th e a d ultery. (People v. La o ta, G.R. No. L - 2 2702,
October 9, 1924)
A ccused on r et u r n in g t o ' h i s h o u se, he f ound a m a n l y i n g
with his wife; that he drew his bolo. The man escaped through the
window. However, accused pursued him, overtook him, and ki l l ed
him. Article 247 prescribes destierro w hen the h usband kil ls t h e
offender "in th e act." I n t h i s case, the discovery, the escape, the
pursuit, and the killing were all parts of one continuous act. (U.S. v.
Vargas, G.R. No. 1058, May 7, 1908; 2001 Bar Exam)
In People v. Ab a rca, G. R. N o. 7 4 488, September 14, 1 987,
upon reaching home, the accused found his wife in the act of sexual
intercourse with the victim. When they noticed the accused, the wife
pushed her paramour who got his revolver. The accused who was
then peeping above the built-in cabinet in t h eir ro om jumped and
ran away. Immediately, thereafter, the accused went to look for a
firearm at Tacloban City. Thereafter, he went back to his house with
a firearm but he was not able to find his wife and victim. He proceeded
to the mahj ong session where he found the victim playing. Accused
fired at the victim three times with his rifle. The victim died. This
is death under exceptional circumstance although about one hour
h ad passed between the time of discovery of infidelity and ki l l i n g.
Article 247, in requiring that the accused "shall kill any of them or
both of them... immediately" after surprising his spouse in the act of
intercourse, does not say that he should commit the killing instantl
an y
t hereafter. It only requires that the death caused be the proximate
result of the outrage overwhelming the accused after chancing upon
his spouse in the act of infidelity. But the kil l ing should have been
actually motivated by the same blind impulse, and must not have
been influenced by external factors. The killing must be the direct
by-product of the accused's rage. (1988 Bar Exam)
4. P r o m o t i o n of P r o stitut ion or C o nsent to I n f i delity
— Promoting prostitution or consenting to infidelity (e.g., execution
of a notarized document allowing his wife to get a new partner as
her husband) will negate the benefit of death or physical injuries
under exceptional circumstance. (2018 Bar Exam)
5. E f f e c t —In case of slight physical injuries or less serious
physical injuries under exceptional circumstance the accused sh 11
b e exempt from punishment. (1970 B ar E xam ) In case of serious
physical injuries or death under exceptional circumstance, the
accused shall suffer the penalty of destierro. (Article 247)
J9JC9B0M
III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 315
F rustrated m u r de r o r f r u s t r a te d p a r r i cide i s w ithin t h e
contemplation of the words "serious physical injuries" in Article 247
of the Revised Penal Code. (2018 Bar Exam)
6. D ea t h U n d e r E x c e p t i onal C i r c u m stance Is No t a
Crime — Death under exceptional circumstance is a not crime but
a defense (People v. Puedan, G.R. No. 189576; September 2, 2002),
or an absolutory cause. (People v. Talisic, G.R. No. 97961, September
5, 1997) If the accused caught his wife in the act of having sexual
intercourse with another man, and as a consequence, he killed the
paramour of his wife, he shall be charged of homicide (or murder),
and not death under exceptional circumstance. Article 247 does not
define a crime but merely provides a privilege or benefit amounting
practically to an exemption from an adequate punishment. (People
[ v. Araquel, G.R. No. L-12629, December 9, 1959)
Under t h i s v i e w , de s t i erro p r e s cribed f o r de a t h u n d e r
exceptional circumstance is not a penalty but. a measure designed
to protect accused from acts of reprisal principally by r elatives of
the victim. (People v. Araquel, supra; People v. Coricor, G.R. No.
L-48768, December 4, 1947; 2005 Bar Exam)
For purposes of Arti cle 4 of t h e R evised Penal Code, death
1
under exceptional circumstance is no t a n i n t e n t i onal f elony. I n
l People v. Abarca, G.R. No. 74488, September 14, 1987, according
t
to the Supreme Court, A r t i cle 4 p r e supposes that th e act d one
amounts to a felony. If the act constitutes death under exceptional
circumstances, and not murder, the accused cannot be held liable
for the injuries sustained by third persons, who were hit by reason
of mistake of blow, on the basis of Article 4. Accused is not exempt
from criminal liability. Article 12 on accident is not applicable since
there is culpa in t h is case. Since the gambling house is a crowded
place, accused should have adopted precautionary measure that
t will prevent any undesirable consequence that may arise from the
i a cts constituting d eath u n der e xceptional circumstance that h e
committed. The warning that h e m ade is not enough. Hence, the
accused was convicted of reckless imprudence resulting in physical
injuries under Article 856.
For purposes of double jeopardy, death under exceptional
circumstance is not a crime. For example, accused, who is charged
of homicide under exceptional circumstance with the Metropolitan
Trial Court, pleaded guilty. He was charged again of homicide with
the Regional Trial Court. There is no double jeopardy. The first
 316 CRIMINAL LAW REVIEWER
VOLUME I
charge against hi m i s h o m i cice under exceptional circumstance.
For purposes of j u r i s diction, th e p e n alt y of re c l usion t emporal
for homicide shall be considered and not de stierro, w hich is j u s t
a protective measure, prescribed for death under exceptional
circumstance. Thus, the Regional Trial Court has jurisdiction over
homicide in the first charge. Since Metropolitan Trial Court has no
jurisdiction over homicide in the first charge, his conviction is null
and void. An invalid conviction cannot be used as a basis of invoking
double jeopardy.(People v.Araquel, supra)
Abarca case and Araquel case are still controlling principles
since there are no cases with the same issues in these cases (e.g.,
application of Ar t i cle 4 and double jeopardy) where the Supreme
Court expressly abandoned them.
For pur poses of s e l f-defense, att acking u n de r e x ceptional
circumstance is not an u n l awful aggression. For example, victim,
who caught his wife in the act of infidelity, attacked her paramour.
To defend himself, the paramour ki l led the victim. The paramour
could not invoke self-defense since the attack made by the husband
under exceptional circumstance is not an unlawful aggression. The
paramour well knew that by maintaining unlawful relations with a
married woman, he was performing an unl awful and criminal act
and exposed himself to the vengeance of the offended husband. (US
v. Merced, G.B. No. 14170, November 28, 1918; 1985 Bar Exam )
For purposes of civil liability arising from crime, death under
exceptional circumstance is not a cr i me. Hence, the accused, who
k illed th e v i c ti m u n d e r e x ceptional c i r cumstance, has n o c i v i l
liability ar i sing from cri me. In Pe ople v. Abarca, supra, t he t r i a l
court convicted the accused of murder and ordered him to indemnify
the heirs of the victim in the sum of P80,000. However, the Supreme
Court found t hat t h e k i l l in g constitutes death under exceptional
circumstance, and modified the decision by deleting the civil award.
(2005 and 2007 Bar Exams) Other view — In U. S. v. Vargas, G.R.
No. 1058, May 7, 1908, the Supreme Court sentenced the accused
to suffer destierro for d eath u n d er e xceptional circumstance and
ordered him topay the heirs of the deceased P1,000.
For purposes of conditional pardon, death under exceptional
circumstance isnot a crime. The President granted pardon to a
p erson convicted of homicide subject to the condition that he w i l l
not commit a cr i me. If h e committed parricide under exceptional
circumstance, he cannot be prosecuted for violation of conditions of
pardon under Article 159.
J9JC9B0M
III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 317
However, for purposes of Article 157 of the Revised Penal Code,
destierro for death under exceptional circumstance is cor sidered as
a penalty. Entering the prohibited place in violation of destierro is
evasion of service of sentence. (People v. Abilong, G.R. No. L-1960,
November 26, 1948; 1998 Bar Exam) If he committed a crime in the
prohibited area, he is not entitled to the benefits of the Indeterminate
Sentence Law. (2007 Bar Exam)
I nstigation and Ent r a p m e n t
T he differences between instigation and en tr apment ar e as
follows (1957, 1978, 1984, 1985, 1995, 1990, 2008, 2011, and 2015
Bar Exams):
1. I n s t i g a tion means luring th e accused into a crime
t hat he , o t h erwise, ha d n o i n t e n t ion t o c o m m it , i n o r d e r
t o prosecute him. I t d i f f er s f ro m e n t r a pment w h ich i s t h e
employment of ways and means in order to trap or capture a
criminal.
2 . I n i n s t i g a tion, th e c r i m i nal i n t en t t o c o m mi t a n
offense originates from the inducer and not from the accused
who had no intention to commit and would not have committed
it were it not for the prodding of the inducer. In entrapment,
the criminal intent or design originates from the accused and
t he law enforcers merely facilitate th e ap prehension of t h e
criminal by using ruses and schemes.
8. In instigation,the law enforcers act as active co-
principals.Instigation leads to the acquittal of the accused,
while entrapment does not ba r p r osecution and conviction.
(People v. Espiritu, G.B. No. 180919, January 9, 2018; People
v. Dansico, G.R. No. 178060, February 28, 2011)
l. E nt r a p m e n t — As a general rule, a buy-bust operation,
which is considered as a f or m o f e n t r a pment, i s a v a l i d m e ans
of arresting violators ofR.A. No. 9165. It is an effective way of
apprehending law offenders in the act of committing a crime. In a
buy-bust operation, the idea to commit a crime originates from the
offender, without anybody inducing or prodding him to commit the
offense. (People v. Bartolome, G.R. No. 191726, February 6, 2018;
1992 Bar Exam)
A, NBI agent, was approached by X regarding the latter's plan
to hol.dup a nearby bank.A agreed to lend his car as the getaway
 818 CRIMINAL LAW REVIEWER III. CIRCUMSTANCES AFFECTING CRIMINAL LIABILI I Y
VOLUME I

car; he also asked his driver, B, to drive the car for X. On the day the X, a PDEA agent, approached A and requested him to act as
crime was totake place, A tipped offthe local police. X was arrested poseur-buyer of shabu and tr ansact with B. A r e f used. But A w a s
a s he pointed a gun a t t h e b an k t e l ler d emanding cash. This i s prevailed upon to help when X explained that only he could help
entrapment. (1985 Bar Exam) capture B because he used to be his customer. During the buy-bust
operation, A bought shabu from B. X arrested both A and B.
A, a PDEA agent, gave B, a suspected pusher, a P100-bill and
asked him to buy some marijuana cigarettes. Desirous of pleasing A, A can r aise th e defense of in stigation t o f r ee h i mself fr om
B went inside the shopping mall, and after 15 minutes, B returned liabilityfor possession of dangerous drugs. Moreover, he can raise
with marijuana cigarettes. A arrested B. This is entrapment. (1995 the defense of lack of anim us possidendi. His in tention in b uying
Bar Exam) dangerous drugs is not to possess it in violation of the law but merely
to help the authorities in arresting the pusher. In People v. Ramos,
A police officer's act of soliciting drugs from the accused during
tr., G.R. No. 88301, October 28, 1991, the Supreme Court ruled that
a buy-bust operation, or w hat i s k n own as a " decoy solicitation,"
the fact that government witnesses made the purchase of marijuana
is not prohibited by law and does not render invalid the buy-bust
does not make them accomplices, for their only purpose is to secure
operations. The sale of contraband is a k in d of offense habitually
evidence to convict the violator.
c ommitted, and th e solicitation simply f u r n i shes evidence of th e
criminal's course of conduct. A "decoy solicitation" is not tantamount B cannot adopt the d efense of instigation since he was not
to inducement or in stigation. (People v. Bayani, G.R. No. 179150, lured by the police authorities in committing the crime of sale of
tune 17, 2008;People v.Sta. Maria, G.R. ¹. 171019, February 28, dangerous drug. Buy-bust operation is a form of entrapment. (2015
2007) Bar Exam)
T he mere fact that t h e a u thorities deceived the pusher int o
believing that the former were buyers of dangerous drug does not
exculpate the latter from liability for selling the prohibited drugs.
(People v. Marcos, G.R. No. 88325, May 8, 1990) Immediately selling
drug when propositioned by th e poseur buyer i s a c i r cumstance,
which establishes intent to sell on the part of the pusher. (People v.
Manolo, G.R. No. 107628, February 28, 1994)
The police officer in civilian clothes asked X where he can buy
shabu. X responded by asking the officer how much of the drug he
needed. When he told him, X left, returned after a few minutes with
the shabu, gave it to the officer, and took his money. This is decoy
solicitation. (2011 Bar Exam).
G overnment agents buy m e dicines from th e accused at h er
drug store and pay with marked paper money. The prices at which
she sells the medicines to the agents are higher than th e ceiling
prices. The agent apprehends her for violation of the Price Cortrol
Law. This is decoy solicitation. (1957 Bar Exam)

2 . I n st i g a t i o n — A , a p o l i ceman, posed as a b u yer a n d

persuaded B to sell marijuana worth P10.00 to him. B ag reed. He
delivered the goods and so was apprehend with the marked money.
This is instigation. (1 990 Bar Exam)

J9JC9B0M

The following are criminally l i a ble for gr ave and less grave
felonies: principals, accomplices, and a ccessories. The f o llcwing
are criminally liable for light felonies: principals and accomplices.
(Article 16 of the Revised Penal Code; 1947 Bar Exam ) Accessories
are not liable for light felonies.
KINDS OF CONSPIRACY
Conspiracy as a mode of incurring collective criminal liability is
either direct or implied. (People v. Pepino, G.R. No. 174471, Jar uary
12, 2016)
Express Conspiracy
C onspiracy p r o ven b y d i r e c t e v i d ence i s called ex press
c onspiracy. Bu t d i r ect p r oof o f c o n spiracy i s r a r el y f o u nd ; f o r
criminals do not write down their lawless plans and plots. (Angeles
v. CA, G.R. No. 101442, March 28, 2001)
Implied Conspiracy
Conspiracy may b e e stablished by c i r cumstantial evidence.
This is called implied conspiracy. Implied conspiracy may be proven
through the collective acts of the accused, before, during and after
the commission of a felony, all the accused aiming at the same object,
o ne performing one part an d another performing another for t h e
attainment of the same criminal objective. (People v. Agudez, G.R.
Nos. 188386'-87, May 20, 2004; 1998 and 2008 Bar Exams)
I. Si m u l t a n e ous Attacks —Simultaneity in attacking the
victim is indicative of implied conspiracy. (People v. Lindo, G.R. No.
184506,December 27, 2002; People, v. Mandagay, No. 20358, July
17, 1928; 1976 Bar Exam) However, there is no implied conspiracy
if the simultaneity of the attacks by several accused was just a reflex
response or spontaneous reaction: to a sudden discovery of cheating
320
J9JC9B0M
IV. PERSONS CRIMINALLY LIABLE AND 321
DEGREE OF PARTICIPATION
in a gambling by the victim (1968 Bar Exam), or to the shooting of
the companion of the accused by the victim (1992 Bar Exam), or to
commission of robbery by the victim. (1977 Bar Exam)
2. Non - a r m i ng — Ac cused had no guns and passively
witnessed the shooting during a p r e-wedding celebration without
i ntervening i n t h e k i l l i n g i n a n y w a y o r s h i e l d in g t h e k i l l e r .
However, they are friends of the killer and they went together with
the killer to the celebration; and that they left at the same time with
the killer after the shooting. There is no implied conspiracy. (1988
Bar Exam) The mere passive presence of a person at the scene of
the crime does not make him a co-conspirator. (People v. Sitvestre
and Atienza, G.R. No. L - 3 5748, December 14, 1 981) Conspiracy
transcends companionship. Relationship or association alone is not
a badge ofconspiracy. (People v. Comadre, G.R. No. 158559, June 8,
2004) Failure to get a weapon before the attack negates the presence
of implied conspiracy. If accused had really conspired with his co-
accused to kill the deceased, he should have provided himself with a
weapon. (People v. Vistido, G.R. No. L-81582, October 26', 1977)
COMMUNlTY OF DESlGN
Community of design means that the accomplice (or principal by
indispensable cooperation) knows of, and concurs with the criminal
design of the pr incipal by d i r ect participation. (People v. Matiao,
G.R. No. 178058, July 81, 2009) Knowledge and concurrence in the
criminal mind of the chief actor are the' elements of community of
design.
Conspirators and Accomplice
Conspirators an d a ccomplices are d i stinguished as f o llows
(2007 and 2018 Bar Exams):
Conspirators agreed and decided to commit the crime; in sum,
their collective responsibility i s based on conspiracy. Accomplices
a cquire knowledge and concur w i t h t h e c r i m i na l d e sign of t h e
conspirators after the latter reached a decision; in sum, their quasi-
collective responsibility is based on community of design.
Conspirators t o b e h e l d l i a b l e o n t h e b a si s o f c o l lective
responsibility must perform an act in furtherance of conspiracy such
as providing active participationor moral assistance or exerting
moral ascendency. Accomplices must supply material or moral aid
in an efficacious way.
 322 CRIMINAL LAW REVIEWER
VOLUME I
The nature and t i m e of p a r t i cipation of conspirators is n ot
important. The participation of the accomplices must be previous
or simultaneous to the commission of the crime but it m ust not be
indispensable to the commission thereof; otherwise, they are liable
as principal by indispensable cooperation.
C oncurrence After t h e C o n spir at ors D e cided t o C o m mi t a
Crime
In People v. Sa l v a dor, G . R. N o . 2 0 1 4 43, A p r il 1 0 , 2 0 1 3 ,
conspirators and accomplices have one thing in common: they know
and agree with th e criminal design. Conspirators, howeve.", know
the criminal intention because they themselves have decided upon
s uch course of action. Accomplices come to know about it after th e
principals have reached the decision, and only then do they agree to
cooperate in its execution. Conspirators decide that a crime should
be committed; accomplices merely concur in it . Accomplices do not
decide whether the crime should be committed; they merely assent
to the plan and cooperate in its accomplishment. Conspirators are
the authors of a crime; accomplices are merely their i n s t r uments
who perform acts not essential to the perpetration of the offense.
In People v. De Vera, G.R. No. 128966, August 18, 1999, accused
knew that the chief actor had intended to kill victim at the time, and
he cooperated in the kill ing by acting as a lookout. But he himself
did not participate in the decision to kill vi ctim; that decis::on was
made by chief actor and the others. He joined them that af'.ernoon
after the decision to kill had already been agreed upon; he was there
because "nagkahiyaan na." Significantly, the plan to kill could have
been accomplished without him. It should be noted further that he
alone was unarmed that afternoon. He is liable as an accomplice.
Concurrence While the Cr ime Is in Pr o gress
C onspiracy must be hatched prior t o t h e commissior of t h e
crime. If a person acquires knowledge of or concurs in the criminal
d esign of the chief actor wh ile th e commission of the crime is i n
progress, there is no conspiracy, express or i m p lied. One cannot
conspire with th e chief actor to commit a c r im e i n t h e m : d dle of
its commission. If the accused joins the criminal design of the chief
actor while the latter is al r eady committing a cr ime, the basis of
the criminal liability of the former is community of design and not
conspiracy.
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IV. PERSONS CRIMINALLY LIABLE AND 323
DEGREE OF PARTICIPATION
Accused, who demanded (People v. Bacungay, G.R. ¹. 1 2 5 0 17,
March 12, 2002) or received the ransom money (People v. Octa, G.R.
No. 195196; J'uly 18, 2015) indicates the commonality of purpose
o f his acts t ogether w it h t h ose wh o ab ducted and d etained th e
victim. Hence, he is liable as principal by di rect participation for
kidnapping for ransom and not merely as an accomplice. In sum, the
participation of the abductors and the accused, who demanded or
received ransom, are circumstantial evidences that they agreed and
decided beforehand to commit kidnapping for ransom.
Accused discovered the commission of the crime only after they
heard a gunshot. The abductor (chief actor) instructed the accused
to get the ransom payment. He agreed and went to the designated
place to get th e r a nsom money. There is n o i m p l ied conspiracy.
Accused and the abductor did, not agree and decide beforehand to
commit kidnapping for r ansom. The abductor already commenced
t he commission of t h e c r i m e w h e n t h e a c cused discovered i t .
However, accused despite knowledge of the commission of the crime,
concurred with the criminal design of the abductor by agreeing to get
the ransom payment. In sum, there is a community of design. His
participation is not indispensable to the commission of kidnapping
for ransom since obtaining ransom money is not an element thereof.
What is important in this crime is abducting the victim for purpose
o f ransom. Since obtaining r a n som i s n o t i n d i spensable to t h e
commission of the crime, accused is merely liable as an accomplice.
(People v. Castro, G.R. No. 182726; July 28, 2002)
A, B, and C agreed and decided to kidnap the victim. Executing
their criminal design, they seized the victim and loaded him in a
taxi driven by X. They told X they will only teach the victim a lesson
in Christian humili ty. X drove them to a fishpond where the victim
was detained. A, B, and C are conspirators while Xis an accomplice
in the crime of illegal detention. X did not take part in the original
conspiracy to commit th e cr ime of r obbery. He merely concurred
with their criminal design at the time that the victim was already
abducted by furnishing the means of transporting him to the place
where he w il l b e d e t ained. (People v. Li n g a d, G .R. ¹. L -6' 9 89,
November 29, 1955; People v. De Vera, G.R. ¹. 12 8 9 6 6,August 18,
1999; 2006 Bar Exam)
H owever, t h e a c c used ca n c o n spir e t o c o m m i t a cr i m e
immediately before the commission thereof. Conspiracy arises at the
very instant the plotters agree, "expressly or impliedly," to commit
t he felony and forthw it h d ecide to commit i t . (People v. Peralta,

324 CRIMINAL LAW REVIEWER
VOLUME I
G.R. No. L-19069, October 29, 1968) In People v. Paragas, G.R. No.
146308, July 18, 2002, while i n t h e p assenger jeepney, the chief
actor glanced ataccused and the two nodded at each other before the
former stabbed the victim. Accused immediately and successfully
prevented the other passengers from pursuing the chief actor by
v olunteering t o g o a f ter h i m ( k i l l er ) i n s t ead. Accused w a h e l d
equally liable with the chief actor by reason of conspiracy.
Non-concurrence
In People v. Bulan, G.R. No. 143404, June 8, 2005, accused
w ere waiting outside the dance hall n ear t h e g at e w hen E d v i n
b rought the vi ctim t o w ards th em, onto th e street. Jose he d th e
victim by the right shoulder, while Allan held him by the left. Chief
actor suddenly appeared from behind the victim an d stabbed the
latter at the back with a small bolo. The accused continued holding
the victim as chief actor stabbed him yet again. Accused are guilty
as principals by direct participation i n the killing of the victirr sirc e
implied conspiracy was established.All the participants performed
specific acts with such closeness and coordination as to indi"ate a
common purpose or design to bring out the victim's death.
In People v. Ma n a nsala, Jr ., G . R. N o. 2 3514, February 1 7 ,
1 970, accused embraced the victim to stop him from further hitt in g
the chief actor with his fists. He did not embrace the victim because
of an agreement to kill the victim. The chief actor suddenly stabbed
the victim. After the first kn i fe thrust had been delivered, accused
did not try to stop the chief actor,either by word or overt act.
Instead, accused continued to hold the victim, even forced him down
on the bamboo bed with th e chief actor still p r essing the attack.
Implied conspiracy was not established. There is no showing that
the killing was agreed upon between them beforehand. However,
c ommunity of d esign was established. Despite knowledge of th e
chief actor's criminal design to kill when he stabbed the victim, the
accused concurred with t h a t c r i m i nal design and participated by
continuously holding the victim. Hence, he is liable as an accomplice.
In People v. Abina, G.R. No. 129891, October 27, 1998, accused
held the v i cti m t o i n s ur e h i s i m m o bility . W hen t h e c h ief a ctor
stabbed the victim, the accused were stunned, forthwith r eleased
their hold on th e vi ctim, r etreated to a d i stance of around t h r ee
m eters and desisted from joining th e chief actor who went on t o
pursue the wounded victim. The accused are not liable as prir cipals
J9JC9B0M
IV. PERSONS CRIMINALLY LIABLE AND 325
DEGREE OF PARTICIPATION
or accomplices because neither implied conspiracy nor community of
design was established.
A ccused, who h el d t h e v i c ti m w i t h ou t k n o w ledge that h i s
c ompanion intended. to stab him, is not l i able as principal for th e
sudden and unexpected stabbing of the victim because of the absence
of implied conspiracy. (People v. Ibanez, G.R. No. L-178, November
29, 1946; 1980 and 1991 Bar Exams) Neither community of design
is present since without prior knowledge of the attack, the accused
could not concur with the criminal design of the chief actor. (People
v. Caj andab, G.R No. L-29598, July 26, 1978; 1980 Bar Exam)
After murdering a child, A, the murderer, asked B, her friend,
to demand ransom from parents of the victim. Not aware that th e
child is already dead, B demanded ransom. A is liable for murder.
(People v. Lora, G.R. No. L-49480, March 80, 1982) B is not liable
for murder since both his criminal mind and participation pertains
to kidnapping for ransom. Without knowledge of the murder, B can
neither conspire with A nor concur with her criminal resolution to
commit murder. (2016 Bar Exam)
PRINCIPAL BY DIRECT PARTICIPATION
Those who take a direct part i n t h e execution of the act are
principals by direct participation. (Article 17 of the Revised Penal
Code; 1947, 1955, 1967, 1969, and 1970 Bar Exams) Principal by
direct participation includes chief actor and conspirator.
Chief Actor
Chief actor is th e one who committed the act constituting a
crime such as the person who stabbed and killed the victim. With
or without conspiracy, the chief actor is liable as principal by direct
participation. (People v. Tampis, G.R N o . 14 8725, July 81, 2008;
1991 Bar Exam)
A fatally wounded X. B, A's brother, hearing of the fight, came
rushing and, finding the dying man sprawled on the ground, stabbed
X in the leg infiicting a minor wound. X thereafter died. B is liable
as an accomplice since he concurred in t h e c r i m i nal design of A
by supplying material aid in an efficacious way. (1958 Bar Exam)
However, if B stabbed X in the throat instead of the leg and thereby
hastened his death, B is liable as principal in the crime of homicide.
Even though there is no conspiracy, A and B are liable for homicide
 326 CRIMINAL LAW REVIEWER
VOLUME I
since both of them ar e chief actors for t hey committed acts that
constitute the crime of homicide. (1958 Bar Exam )
Conspirator
Conspirator, who performed an act in furtherance of conspiracy,
is liable as principal by direct participation. A conspirator, who acted
as a lookout, is li able as principal by d i r ect participation (Peovle
v. Delim, G.R. No. 142778, January 28, 2003; 1992 and 2005 Bar
Exams) because the act committed by the chief actor in stabbing the
victim is the act of the former. In conspiracy, the act constituting
the crime by the chief actor is the act of all conspirators because of
the collective responsibility pr i nciple. In People v. Daud, G.R. No.
197539, June 2, 2014, when conspiracy has been established, the act
of one would be the act of all.
In conspiracy, it is not necessary to show tha t a l l th e
conspirators actually hit and k i l led the victim (People v. Elarcosa,
G.R. No. 186589, June 29, 2010) or to determine who inflicted the
fatal wounds because the act ofone conspirator is the acts of all.
(People v. Dacibar, G.R. No. 111286, February 1 7, 2000) In sum, the
acts of inflicting mortal wounds by the chief actor are the acts ot all
the conspirators. (1949 Bar Exam)
If there is no conspiracy, those who inflicted mortal wounds
are liable for homicide or mu r d e r; t he o thers, who inflicted ro n -
mortal wounds, are liable for physical injuries. (Siton v. Hon. Court
of Appeals, G.R. No. 94065, December 2, 1991)
To hold a n a c cused guilt y a s a c o - p rincipal b y r e a sor of
conspiracy, he must be shown to h ave performed an overt ac-. in
pursuance or furtherance of the conspiracy. (Zapanta v. People, G.R.
¹s . 1 92698-99,April 22, 2015)
A proposed to B th a t t h e y r o b a c e r t a in s t o re, to w h i ch B
agreed. Later,however, B undertook the robbery alone and made
off with P2,000 cash. The following day, after making some shallcw
explanation, B apologized to A and gave the latter P500, which A
somewhat grudgingly accepted. A is not liable as principal by direct
participation because he di d n o t p e r f orm a n a c t i n f u r t h e r ance
of conspiracy. However, he is li able either as an accessory to th e
crime of robbery for profiting from the effects of the crime (1983 Bar
Exam), or as principal in the crime of fencing under P.D. No. 1612.
The overt ac t i n f u r t h e r ance of conspiracy may c onsist of
active participation in the actual commission of the crime itself, or
J9JC9B0M
IV. PERSONS CRIMINALLY LIABLE AND 827
DEGREE OF PARTICIPATION
it may consist of mo ral assistance to his co-conspirators by being
present at the time of the commission of the crime, or by exerting
moral ascendancy over the other co-conspirators by moving them to
execute or implement the criminal plan. (People v. Tagana, G.R. No.
188027, March 4, 2004)
1. Ac t i v e P a r t i c i p a t ion — Ho l d i ng t he v ictim to r e nder
him immobile while his co-conspirator inflicted mortal wounds on
him is an active participation made in f u r t h erance of conspiracy.
(People v. Duetes, G.R. No. 144598, February 6, 2004)
2. Mo r a l A ss i s t a nce — A c c used w a s l e n d i ng m o r a l
assistance to his co-conspirator, the chief actor, by being armed with
a lethal weapon and present at the time when the latter killed the
victim. (PeopLev. Esponilla, G.R. No. 122766, June 20, 2008)
3. M or a l A scendency —Accused exerted moral ascendency
over his n ephew b y o r d ering hi m t o k i l l a p r i e st . H o wever, in
this situation, he would be held l i able not as pr i ncipal by d i rect
participation but as principal by in ducement. (US v. Gamao, G.R.
No. L-6942, August 80, 1912)
P RINCIPAL BY INDUCEME N T
Those who directly force or induce others to commit a c rim e
are principals by inducement. (ArticLe 17 of the Revised Penal Code;
1947, 1955, 1967, 1969, and 1970 Bar Exams)
Directly Forcing Another
One, who directly forced another to commit a crime, is a principal
by inducement. He compels another either by using irresistible force
or by causing uncontrollable fear to commit a crime. However, the
chief actor, who was forced to commit th e cr i me, is exempt from
criminal liability. Only the principal by inducement is liable.
Directly In d u cing Another
One, who directly i n duces another t o commit a c r i me, is a
principal by inducement.
If there is a cause and effect relationship between the stabbing
by the accused and death of the victim, the former is liable as principal
by direct participation. If t h ere is a cause and effect relationship
between the inducement by the accused and the commission of the
crime by the chief actor, the former is liable as principal inducement.
 328 CRIMINAL LAW REVIEWER
VOLUME I
To be held liable as principal by in ducement, it is i mportant
that the inducement is made directly upwith the intention of procuring
the commission of the crime.
A person who advised a married woman, whose husband was
very stingy and treated her badly that the only thing for her to do
was to rob him, was not guilty of the crime of robbery by inducement,
for the reason that a n i m p r u dent an d i l l -conceived advice is not
sufficient. (U.S. v. Indanan, G.R. No. 8187, January 29, 1913)
A father, who simply said "Hit hi m! Hit hi m ! " to his son, who
was at the time engaged in combat with another, was not responsible
for the i nj u r ies committed after such advice was given. (U.S. v.
Indanan, ibid.) E ven without such statement, his son will h it t h e
victim.
M oreover, i t i s a l s o r e q u ired t h a t t h e i n d u cement i s t h e
determining cause of the commission of the crime. Inducement is
either by command, or for a consideration, or by any other similar
act which constitutes the real and moving cause of the crime. (U.S.
v. Indanan, ibid.)
1. Co n s i d e r a t i on — A p e r s o n, w h o g a v e , offered or
p romised to th e chief actor a v a l u able consideration, which w a s
the determining cause of the commission of the crime, is liable as
principal by inducement, because without such offer or promise, the
criminal act would never have been committed. The person, who
actually commits the crime by reason of such promise, remuneration,
or reward, is liable as principal by direct participation. The liability
of both the induced and the inducer is aggravated by circumstance
of reward, promise or consideration. This circumstance is qualifying
in murder (1976 Bar Exam) and ordinary aggravating circumstance
in other crime such as arson. (1994 Bar Exam)
A for consideration induced B to k i ll X. I n s t ead of kil l i ng X,
B induced C to kill X for a consideration. C killed X. C is liable for
murder qualified by the circumstance of consideration as principal
by direct participation while B is liable as principal by inducement.
However, A i s n o t l i a bl e as p r i n cipal by i n d u cement because C
killed X not because of the inducement of A, but by r eason of the
inducement of B. Neither is A liable for proposal to commit murder
since there is no penalty prescribed by law for its commission.
2. W o r d o f C o m m an d — To m ake a word of command as
the determining cause of the commission of the crime, which will
m ake the accused liable as pr i ncipal by i n d ucement, it m u s t b e
J9JC9B0M
IV. PERSONS CRIMINALLY LIABLE AND 329
DEGREE OF PARTICIPATION
established that: (1) the in ducer by word of command must have
an ascendancy over the chief actor; (2) the word of command must
be so direct, so efficacious and so powerful amounting to physical or
moral coercion; (3) the word of command must be uttered prior to
the commission of the crime; and (4) the chief actor has no personal
reason to'commit the crime.
In U.S. v. Gamao, G.R. No. L-6942, August 30, 1912, the chief
actor was a poor, ignorant fisherman, and more or less dependent
upon his uncle for subsistence. On the other hand, Capt. Gil Gamao
was a man of great influence, a local political leader, and has several
relatives in the government. Gamao ordered the chief actor to kill
the priest. Immediately after murdering the priest, the chief actor
returned to the house of his uncle and reported the fact. Gamao is
liable as principal by inducement.
After the chief actor shot the first vi ctim, the accused stated
"Iyan pa ang isa dumarating." The chief actor shot the second victim.
Utterances may mean either as a direct command to kill or a warning
of impending threat. Since doubt should be resolved in favor of the
accused, the statements shall be considered as mere warning, and
thus, the accused is not liable as principal by inducement. (People v.
Canial, G.R. No. L-31042-31043, August 18, 1972)
After the chief actor shot the first victim, the accused, her wife,
stated, "Here comes another." The chief actor shot the second victim.
The accused beamed her flashlight at the third victim and she said,
"Here comes, here comes another, fire upon him." The chief actor shot
the third victim. The statement "H e re comes, here comes another,
fire upon h im" is a d i r e ct command to shoot the victim, but it i s
not so efficacious and so powerful amounting to moral coercion or
violence since the shooting of the victims was already in progress.
The rapidity of the shooting eliminated the necessity of encouraging
words such as those uttered by the accused. Hence, the accused is
not liable as principal by inducement. (People v. Madali, G.R. Nos.
67803-04, t'uly 30, 1990)
If the words were uttered while the commission of the crime
was in progress or subsequent the reto, it c ould not be s aid t h a t
u tterances are th e d etermining cause of th e c ommission of t h e
crime. In People v. Castillo, G.R. No. L-19238, July 26, 1966, accused
shouted "You kill him" to his son after the latter had already fatally
boloed the victim and was about to strike him a s econd time. The
alleged inducement to commit the crime was no longer necessary to
 330 CRIMINAL LAW REVIEWER
VOLUME I
induce his son to commit the crime. Accused is not liable as principal
by inducement.
The statement of the accused to his relative ' Ki ll h i m ! " (1978
Bar Exam) or "Eill them both, they are our enemies" (1987 Bar
Exam) while t he c ri me of m u r d er is i n p r o g ress, or "t h at s erves
him right" after t he assault (1981 Bar E x am) w i ll n ot m a ke h im
liable as principal by inducement because such utterance is not the
determining cause of the commission of the crime.
If h
the chief actor has personal reason to commit the crime, it
could not be said that the words uttered are the determining cause of
the commission of the crime. (People v. Caimbre, G.R No. L-12087,
December 29, 1960)
A asked B t o kill X because of a grave injustice done to A b X .
A promised B a reward. B was willing to kill X, not so much because
of the reward promised to him but because he also had his own long-
standing grudge against X, who had wronged h im in the past. If Xis
killed by B, A is not liable as a principal by inducement. (2092 Bar
Exam)
PRINCIPAL BY INDISPENSABLE COO P E R ATION
Th ose who cooperate i n t h e c o m m ission of t h e o f f ense
se yb
another act without which it would not have been accomplished are
principals by indispensable cooperation. (Article 17 of the Revised
Penal Code; 1947, 1955, 1967, 1969, and 1970 Bar Exams
)
T o be a p r i n c ipal b y i n d i spensable cooperation, one m u s t
participate i n t h e c r i m i na l r e solution, a co nspiracy o r u r i t y i n
criminal p u r pose (community of d e sign) a nd c ooperation in t h e
commission of the offense by performing another act without which
it would not h ave been accomplished. (People v. Abina, G.R. No.
129891, October 27, 1998; People v. Jorge, G.R. No. 99879, April 22,
1994) In sum, whether the accused conspired with th e chief actor
or concurred with hi s criminal design, he is liable as principal by
indispensable cooperation as long as without his participation, the
chief actor could not have accomplished the crime.
Conspiracy
If there is conspiracy, the accused who cooperated with the chief
a ctor in th e commission of the offense by performing anoth r a c t
without which it would not have been accomplished, is liable either
J9JC9B0M
331
IV. PERSONS CRIMINALLY LIABLE AND
DEGREE OF PARTICIPATION
as principal by direct participation because the act constituting the
crime of the chief actor is also his act, or as principal by indispensable
cooperation.
A conspirator, who held the victim to immobilize him/her while
h is co-conspirator in fl i cted mortal w o un d u pon hi m o r w h i l e h e
was raping her, was considered as principal by direct participation
(People v. Bulan, G.R. No. 148404, June 8, 2005; People v. Suarez,
G.R. ¹s . 1 5 8 578-76,April 15, 2005) or principal by indispensable
cooperation. (People v. Montealegre, G.R. No. L-67948, May 81, 1988;
People v. Quinola, G.R. No. 126148, May 5, 1999)
Community of Design
If there is community of design, the accused who cooperated
with the chief actor in the commission of the offense by performing
another act without which it would not have been accomplished, is
liable as principal by indispensable cooperation.
ACCOMPLICE
Accomplices are those persons who, not being principals,
cooperate in the execution of the offense by previous or simultaneous
acts.(Article 18 of the Revised Penal Code; 1947, 1955, 1969, 1970,
and 2018 Bar Exams)
To hold a person liable as an accomplice, three elements must
concur: (1) community of design, which means that the accomplice
knows of and concurs wi th , th e c r i m i nal design of th e p r i ncipal
by direct participation;(2) the performance by the accomplice of
previous or simultaneous acts that are not indispensable to the
commission of the crime (People v. Maliao, G.R. No. 178058, July
81, 2009); and (3) that t h ere be a r elation between the acts done
by the principal and those attributed tothe person charged as an
accomplice. (People v. Gambao, G.R. No. 172707, October 1, 2018;
Saldua v. People, G.R. No. 210920, December 10, 2018)
Conspiracy
If there is conspiracy, the accused who cooperated with the chief
actor in the commission of the offense, can be held liable as principal
by direct participation or principal by indispensable cooperation but
not as anaccomplice. Conspirators are liable as principals regardless
of the extent of participation (People v. Siongco, G.R. ¹. 1 8 6472,
J'uly 5, 2010) and time of participation.

332 CRIMINAL LAW REVIEWER
VOLUME I
In People v. Cruz, Jr., G.R. No. 168446, September 18, 2009, it
is immaterial whether accused acted as a principal or an accomplice.
What really matters is that the conspiracy was proven and he took
part in it . W i t h out the participation of accused, the offense would
not have been committed. He was the one who paved the way for the
victim to board the vehicle and his closeness with the victim led the
latter to t r ust th e former, thus, accomplishing their devious plan
of kidnapping him . Consequently, th e conspirators shall be h el d
equally liable for the crime, because in a conspiracy, the act of one
is the act of all.
In People v. Salvador, G.R. No. 201443, April 1 0, 2 013, the
a ccused owned the safe house where th e k i d n apped victim w a s
detained and assisted the k i d n appers such as b r i n ging foods to
the victim. Ownership of th e safe house and their p a r t i cipations
reasonably indicate that they were among those who at the outset
planned the kidnapping. Providing a safe house is an evidence of
conspiracy since the place where the victim is tobe detained is a
primary consideration in planning to commit kidnapping. Although
their participation pertains to those committed by mere accomplices,
they are liable as principals because implied conspiracy is shown.
If there isconspiracy, the extent of participation is not anymore
material.
C ommun it y o f D e s i g n
If th ere i s c o m m u nity of d e s ign, ac cused, who c ooperated
with th e chief actor i n t h e e x ecution of th e o ffense by pr evious
o r simultaneous acts, is l i a ble as a n a ccomplice or p r i n cipal by
indispensable cooperation depending upon the extent of participation.
In People v. Am o dia, G . R. N o. 1 73791, April 7 , 2 0 0 9, it i s
required, in order to be liable either as a principal by indispensable
cooperation or as an accomplice, that the accused must unite with
the criminal design of the principal by direct participation.
Adan and Eve were lovers but their relationship turned sour.
Adan tried to win back Eve but to no avail. Almost hopeless, Adan
went to see two of his friends, Bruno and Cora. Adan asked the two
to accompany him to the house of Eve. He told the two: "This is my
last attempt o f reconciliation. I must succeed even if I have to rape
Eve." The trio proceeded to the 'house of Eve using the car owned
and driven by Bruno. When they reached thehouse, Adan went
up, Cora stayed near the gate as lookout and Br uno remained in
J9JC9B0M
IV. PERSONS CRIMINALLY LIABLE AND 333
DEGREE OF PARTICIPATION
the car. Adan failed to win back Eve and true to his threat, raped
her. He went down the house,informed Bruno and Cora about the
incident and they thereafter went to a D sco Club and danced the
night away. Bruno and Cora are liable as accomplices in the crime of
rape. They are aware of the criminal design of Adan. They concurred
in his criminal design to rape the victim by supplying material aid in
an efficacious way. (1 979 Bar Exam)
1. I n Ca s e of D o ubt — In ca se of dou.bt, whether there is
conspiracy orcommunity of design, it should be resolved in favor of
the accused. Hence, the accused will be ccnvicted as an accomplice
on the basis of community of design. In People v. Eusebio, G.R. No.
182152, February 25,2013, the line that separates a conspirator by
concerted action from an accomplice by previous or simultaneous
acts is indeed slight. Accomplices do not decide whether the crime
should be committed; but they assent to the plan and cooperate in
its accomplishment. The solution in case of doubt is that such doubt
should be resolved in favor of the accusec.. When there is doubt as
to whether accused is guilty as principal ar accomplice, it should be
resolved in favor of the mil der form of responsibility. He should be
given the benefit of the doubt and be regarded only as an accomplice.
In People v. Gambao, G.R. No. 172707, October 1, 2013, accused
came to the r esort t h i n k in g i t w a s a s v,imming party. H owever,
she acquired knowledge of the criminal design of the kidnappers
when she saw the victim being guarded in the room. She concurred
with the criminal design of the kidnapper as shown by the fact that
she chose to keep quiet and did not repo:t the matter to the police
authorities. She gave the k i dnappers moral support by spending
the night a t t h e c o t t age. Her p r e sence and company we re n o t
indispensable and essential to the perpetration of the kidnapping
for ransom; hence, she is only liable as ar accomplice. Moreover, in
case ofdoubt, the participation of the offender will be considered as
that of an accomplice rather than that of a principal.
2. La c k of Knowledge — If the accused has no knowledge
of the criminal design of the chief actor. there is neither implied
conspiracy nor community of design. Hence, accused is not liable as
principal or accomplice.
X, a bank teller, received from A, a depositor, a check in the
amount of P1 million for deposit. Because the check is payable to
cash, X credited the amount t o Y i n s t ead of to A. Th e reafter, X
told Y that the amount of Pl million was wrongfully credited to
 334 CRIMINAL LAW REVIEWER
VOLUME I
h er. X urged Y to w i t h draw th e amount from her account and t o
t urn over the same to her. Y a greed. Y was gifted by X w i t h a n
expensive HERMES bag after the wit h drawal of the amount. Y is
neither liable as principal by in dispensable cooperation nor as an
accomplice since she has no knowledge as to the criminal design of
X. Knowledge of the criminal int ent of X is essential in order that
Y can be convicted as an accomplice (Abej uela v. People, G.R. No.
80180, August 19, 1991) or as principal by indispensable cooperation.
Without knowledge, Y could not conspire with X or concur with her
c riminal design. Without conspiracy or community of desi~ , Y i s
not criminally liable for assisting X in with drawing the money of A.
(2014 Bar Exam)
In People v. Elij orde, G.R. No. 126581, April 21, 1999, accused
kicked th e v i c ti m a t t h e b a c k b e f ore t h e l a t t e r w a s pu r s u e d
and stabbed by the chief actor. After k i cking the vi ctim, accused
remained where he was and did not cooperate with the chief actor in
pursuing the victim to ensure that the latter would be killed. There
is no showing that accused knew that the chief actor had a L~fe and
that he intended to use it to stab the victim. Accused is not liable as
principal or as an accomplice in the crime of murder.
8. Com m u n i t y o f D e s ig n a n d P a r t i c i p a t ion — T o b e
held liable as an accomplice, it is important that both community
of
design and participation must be present.
Lending weapon such as a gun to a k i l ler for tl e pu rpose of
killing a specific person, such as Pedro, is an act of an accomplice.
But if the killer used the weapon in kil l i ng a di fferent person, such
as Juan, the lender is not liable as an accomplice. To be he d liable
as an accomplice, it is important that he knows and concurs in the
c riminal design of the principal and participates before or durin g
the commission of the crime by supplying moral or material aid in
an efficacious way. In sum, there. must be a community of design. In
this case, the lender concurred in the killing of Pedro but not Juan.
Without community of design to kill Juan, he cannot be he d liable
as an accomplice. (2009Bar Exam)
If the k i l l er u s ed a n other weapon such as kn i fe in s tead of
the gun borrowed in k i l l in g Pedro, the lender is not l i able as an
accomplice. Although the lender concurred with the criminal design
to kill Pedro, he did not supply the killer material or moral aid in an
efficacious way since the weapon used is not the one borrowed from
him. Without previous or simultaneous participation, he cannot be
J9JC9B0M
IV. PERSONS CRI1VIINALLY LIABLE AND
DEGREE OF PARTICIPATION
held liable as an accomplice. Moreover. there is no relation between
the acts of stabbing by the chief actor and the lending of a gun by the
accomplice. (2009 Bar Exam)
4. E x t e n t o f P a r t i c i p a t ion — If t h e r e i s c ommunity o f
design, accused is liable as principal by indispensable cooperation or
as an accomplice depending upon the extent ot his participation. If he
performed previous or simultaneous acts that are not indispensable
to the commission of the crime, he is liable as an accomplice. If he
cooperated in the commission of the offense by another act without
which it would not have been accomplish d, he is liable as principal
by indispensable cooperation.(1 966Bar Exam)
The accomplice must perform th e p r evious or si mu lt aneous
a cts with th e i n t ention of supplying material or m oral aid i n t h e
execution of the crime in an efficacious way. (' People v . Yau, G.R. ¹.
2081 70, August 20, 2014)
a. M at e r i a l Aid —Accused knows the criminal design
of the chief actor, her husband, because the latter shot the first
victim. She concurred with the criminal design of her husband
by beaming her flashlight at them and by saying "Here comes,
here comes another, fire upon him." She supplied material aid
to her husband in an efficacious way by beaming her flashlight.
Her participation is not indispensable to the commission of the
crime because it is not too dark at tb.at time. Thus, she is liable
as an accomplice. (People v. Madal;; G.R. Nos. 67808-04, July
80, 1990) If the place was dark a .d her husband could not have
hit the victim w i t h out th e beam cf t l e f l ashlight, she could
have been liable as principal by indispensable cooperation.
b. M o r a l Ai d — In Peoplev. Mandolado, G.R. No.
51804, June 28, 1988, accused, by his acts, showed knowledge
of the criminal design of the chi f actor. He was present when
the chief actor tried to attack the v'ctim with a knife and fired
at the vehicle hitting a female p =ssenger. When the chief actor
got angry and cocked his gun and ordered the driver tostop
the jeep, their two other companions immediately jumped off
the jeep and ra n a w ay, but a ccus d st ayed. In a d i s play of
unity wit h chief actor, accused fired his armalite while they
w ere riding in th e j eep of the vi ctim. Accused's act of fir i n g
his gun towards the ground manifested his concurrence with
the criminal i n t ent. I n o t her w o r ds, accused's simultaneous
acts supplied, if not material, moral aid in the execution of the
 336 CRIMINAL LAW REVIEWER
VOLUME I
crime in an efficacious way. His presence served to encourage
the chief actor, or to increase the odds against the victims.
A a s s aulted X , a t eac h e r, b y r ea s o n o f her p a s t
performance of duty as a person in authority. B shouted words
of encouragement at A, he r h u s b a nd, a nd a l so t h r e atened
to slap X. B is l i a ble as an accomplice in the crime of direct
assault by supplying moral aid in an efficacious way to A. (2001
Bar Exam)
One could not be held liable as principal by indispensable
cooperation by s u p plying m o ra l a i d i n a n e f fi cacious way.
Moral aid is not in dispensable in the commission of a crime.
But a conspirator can b e h el d l i a ble as p r i n cipal by d i r ect
p articipation b y l e n d in g m o ra l a s sistance because th e a ct
constituting the crime by the chief actor is his act. In People
v. Arevalo, G.R. Nos. 150542-87, February 3, 2004, an overt
act in furtherance of conspiracy may consist of lending moral
assistance to t h e c o-conspirators even t h r ough on e's m ere
presence at the scene of the crime. Arevalo's pres nce and the
words, "Kaya mo 'yan pre,"encouraged Organista to pursue
his savage designs. Arevalo as a co-conspirator is principal by
direct participation.
5. T im e o f P a r t i c i p a t io n — T o b e h e l d l i a b le a s a n
accomplice, he must p erform p r evious or si m u l t aneous acts that
a re not in dispensable to th e commission of th e cr i me. This r u l e
on time of participation is applicable to principal by indispensable
cooperation. In sum, to be held liable as a principal by indispensable
cooperation, he must perform pr evious or simultaneous acts that
a re indispensable to th e c ommission of t h e c r i me. I f t h e a c t i s
subsequent to the commission of the crime, it cannot be considered
as an indispensable cooperation.
a. P r evious Cooperation — Accused, who looked for
a boat to be used in the commission of robbery, is liable as an
accomplice. (People v. Doble, G.R. No. L-80028, May 81, 1982)
However, if the accused is the only person who owns the only
motor boat in the locality, and the crime of murder would be
committed in an i solated island on the sea, providing a boat
will make him liable as principal by indispensable cooperation.
(1976Bar Exam; U.S. v. Ibanez, G.R. ¹. 60 0 8,August 7, 1911)
Zeno and Primo asked Bert to give them a sketch of the
location of Andy's house since they wanted to kill him. Bert
J9JC9B0M
IV. PERSONS CRIMINALLY LIABLE AND 337
DEGREE OF PARTICIPATION
agreed and drew them the sketch. Zeno and Primo drove to the
place and killed Andy. Providing a sketch despite knowledge of
the criminal design to kill the victim is proof of community of
design and previous participation, which is not indispensable
to the commission of the crime. Bert is liable as an accomplice.
(2011 Bar Exam)
b. Sim u l t a n e ous Cooperation — Accused, who held
the victim t o i m m obilize hi m w h i l e hi s co-accused inflicted
mortal wound upon the said victim, was considered as principal
by indispensable cooperation. (People v. Montealegre, G.R. No.
L-67948, May 31, 1988) However, if the accused concurred in
the criminal design of the chief actor and continued to hold
the victim to i m mobilize him after he had already sustained
stabbed wound, the accused is onlyliable as an accomplice.
Even without accused's cooperation th e offense would have
been accomplished. (People v. Manansala, Jr., G.R. No. 28514,
February 17, 1970)
Passive presence is not an evidence of conspiracy. Hence,
the accused cannot be held liable for th e crime on the basis
of his passive presence when i t w a s c o mmitt ed. (People v.
Silvestre and Atienza, G.R. No. L-85748, December 14, 1981)
However, active presence, such as acting as lookout or providing
moral aid to the chief actor, may indicate implied conspiracy or
community of design. In case of doubt, the court shall consider
community of design to determine the liability of the accused.
Presence and being armed may be an evidence of
conspiracy or community of 'design. If the accused is armed, his
presence shall be conside ed as active.
In People v. Galgo, G.R. No. 188887, May 28, 2002, if the
accused is armed at the time, he could be held liable as principal
on the basis of implied conspiracy. The fact that the accused is
armed may mean that he is supplying moral assistance to chief
actor. The armed presence of the accused may provide a sense
of security and encouragement on the part of the chief actor or
may serve asdeterrence against possible defender or rescuer.
In Saldua v. People, G.R. No. 210920, December 10, 2018
— At the time principal actor fired his gun and killed the victim,
the accused Saldua, who was armed, was present. By merely
standing behind the principal actor, it cannot be ascertained
whether accused Saldua was there to give moral support or
 CRIMINAL LAW REVIEWER
VOLUME I
encourage the criminal. When there is doubt as to whether a
guilty participant in a homicide performed the role of principal
or accomplice,accused can be regarded only as an accomplice.
In People v. Tomas, G.R. No. 192251, February 16, 2011,
the accused, who is unarmed, appeared in the compar.y of his
employer and another person. His employer shot and killed the
victim. Accused did nothing to prevent the killing. Accused fied
together with his employer and another person. The fact that
accused appeared together with employer and another person
and Red with them proves a certain degree of participat'on
and cooperation in the execution of the crime. However, there
is doubt as to whether accused acted as a principal orjust a
mere accomplice. Such doubt should be resolved in favor of the
milder form of criminal liability — that of a mere accomplice.
ACCESSORY
Accessories are those who, having knowledge of the commission
o f the crime, and w i t h out h a v ing p ar t i cipated therein, either a s
principals or accomplices, take part subsequent to its commission in
any of the following manners:
1. B y p r o f i t ing themselves or assisting the offender to
profit by the effects of the crime;
2. B y concealing or destroying the body of the crime
o r the effects or instruments thereof, in order to prevent it s
discovery;
8. B y h arboring, concealing, or assisting in the escape
of the principal of the crime, provided the accessory acts with
a buse of his public functions or wh enever the author of t h e
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. (Article 19 of th e Revised Per.al
Code; 1947, 1955, 1967, 1969, and 1970 Bar Exams)
Commission of Crime by Pr i n c i pal
Under the English text of Article 19 of the Revised Penal Code,
t he author of th e crime (principal) must be "guilty of m u r der" t o
make the one, who assisted him to escape, liable as an accessory.
Thus, in People v. Barlam, (CA) 59 O.G. 2474, the Court of Appeals
ruled that the accused cannot be held liable as an accessory under
J9JC9B0M
IV. PERSONS CRIMINALLY LIABLE AND 339
DEGREE OF PARTICIPATION
par. 8 of Article 19, if the principal charged with murder died before
trial.
However, in People v. Billon, CA, 48 O.G. 1891, the Court of
Appeals said that the English text of Article 19 of the Revised Penal
Code, which provides "whenever the author of th e crime is guilt y
of treason x x x," is an inaccurate translation of the Spanish text.
Settled is the rule that th e Spanish text prevails over the English
text.
Applying the Bi l l o n pr i n c iple, it i s n o t ne c essary t h at t h e
principalshould be first declared guilty before an accessory can be
made liable as such. (People v. Billon, CA, 48 O.G. 1891; 1978 and
1981 Bar Exams) One can be held liable as an accessory even if the
chief actor or principal was not convicted because:
1. T h e p r i n cipal is at large (People v. Inovera, 65 O.G.
8168); or
2. Th e p r i n cipal died (1968and 1966 Bar Exams); or
8. T he p r i n c ipal is unidentified, or was acquitted due
to technicality. (Vino v. People, G.R. No. 84168, October 19,
1989)
Since the case of Vi n o i s a Su p r e me C o urt d e c ision, t h e
Barlam case enunciated by the Court of Appeals is considered as an
abandoned principle.
Independent Responsibility Pr i n c i ple
The corresponding responsibilities of the principal, accomplice,
a nd accessory ar e d i s t i nct f r o m e a c h o t h er . A s l o n g a s t h e
commission of the offense can be duly established in evidence, the
determination of th e l i a bilit y o f t h e a ccomplice or accessory can
proceed independently of that of the principal. (People v. Bayabos,
G.R. ¹ . 1 71222,February 18, 2015)
One can be convicted as an a ccessory to a f e lony al though
the principal was not convicted because the latter isat large, or
unidentified or died. (Vino v. People, supra)
The concept of accessory in t h eft or r o bbery is th e same as
that of a fencer in the crime of fencing. Thus, one can be convicted
of fencing although the principal was not yet convicted of theft or
robbery. (Lim v. People, G.R. No. 211977, October 12, 2016)
 340 CRIMINAL LAW REVIEWER
VOLUME I
One can be convicted of hazing as an accomplice although the
principal was not yet convicted of hazing. (People v. Bayabcs, supra)
A private individual can be convicted of violation of Section
3(g) of H,.A. No. 3019 although his co-conspirator, a public off icer,
who entered into a m a n ifestly and grossly disadvantage contract
on behalf of the government, died during the pendency of the case.
(People v. Henry Go, G.R. No. 168589, March 25, 2014)
K nowledge of the Commission of the Crim e
The liability of th e p r i n cipal by d i r ect participation may be
based on an a ctual commission of th e c r im e or c onspiracy. The
liability of a principal by inducement is based on inducement and
conspiracy. The liability of a principal by indispensable cocperation
is based on conspiracy or community of design. The liability of an
a ccomplice is based on community o f d esign. The l i ability o f a n
accessory is based on knowledge.
Neither a Pr i n cipal nor an Accomplice
A ccused was held l i able as p r i n cipal for k i l l i n g t h e v i ct i m .
He was not anymore held liable as an accessory for encasing the
body in cement for the purpose of hiding the body of the crime to
prevent its discovery. (People v. Dacillo, G.R. No. 149868, 4pril 14 ,
2004) However, this can be considered as aggravating or q i alifying
circumstance of employment of means to afford impunity.
Accused was liable as an accomplice by leading the deceased
near the excavation which was to become their grave. He was not
anymore held liable as an accessory for filling the excavation with
earth after the chief actor killed the victims. (People v. Asesor, G.R.
¹. L - 2 958 and L-4083, t'uly 27,1951)
Subsequent Part i cipation
Accused, who participated after the commission of the crime, is
liable asprincipal or an accessory depending upon the existence or
non-existence ofconspiracy.
1. W i t h C o n s p i r acy — If t h e re is conspiracy, conspirators
are liable as principals regardless of the time of participation.
Profiting from the effects of the crime will make one liable as
an accessory. But if the accused is one of the members of the gang
o rganized for the purpose of seizing and making away with l a r ge
J9JC9B0M
IV. PERSONS CRIMINALLY LIABLE AND 341
DEGREE OF PARTICIPATION
cattle, and his proposal and suggestions determined the commission
of the numerous thefts, profiting from the effects of the crime makes
him liable as pr incipal and not m e r ely as an a ccessory. (U.S. v.
Saulog, G.R. No. 8856, November 21, 1918)
One who assisted the chief actor t o e scape is l i able as an
accessory. But i f t h e accused conspired with t h e chief actor, and
assisted him to escape in pursuant of conspiracy, the former is liable
as principal. (People v. Paragas, G.R. No. 146808, July 18, 2002)
Pursuant to a conspiracy to kill A, X lend his gun to Y, drove
Y to the house of the victim, and drove Y to the next town to evade
arrest after Y k i l led A, wh ile Z acted as a look out. Lending gun,
driving the murderer to the locus criminis, and acting as a look out
are acts pertaining to those committed by mere accomplices. Driving
the murderer to the next town to evade arrest is an act pertaining
to that committed by an accessory. However, X Y, and Z are liable
as principals by direct participation because of conspiracy. If there
is conspiracy, the extent of participation is not anymore material.
Because of conspiracy, the acts of Y i n k i l l i n g A a r e a l so t hose
acts of X and Z. In sum, because of conspiracy, all of them directly
participated in killing A. (2018 Bar Exam)
2 ' Without C o n spiracy — If t h e re is no conspiracy, the
time of participation is important. If th ere is community of design
and the a ccused cooperates in t h e e x ecution o f t h e o f f ense by
previous or simultaneous acts, the former is liable as an accomplice
or principal by indispensable cooperation, depending upon the extent
of his participation. If there is knowledge of the commission of the
crime and the accused takes part subsequent to its commission, he is
liable as an accessory.
Nature of Part i cipation
One is liableas an accessory if he participates subsequent to
the commission of the crime.
1. P r o f i t i n g —One, who had knowledge of the commission
of the crime and did not participate in its commission as principal or
accomplice, yet took part subsequent to its commission by profiting
himself or assisting the offender to profit by the effects of the crime,
is an accessory. There are two views as to the meaning of profiting.
Under the first view, to profit means to materially benefit from
the act or to improve his economic condition.
 342 CRIMINAL LAW REVIEWER
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Riding in a st olen vehicle is "not profiting" since it does not
improve his economic position. Profiting is not synonymous to intent
to gain as an e l ement of t h e ft. ( F u n damentals of C r i m i n al L a i v
Reviewer by Dean Antonio L. Gregorio; Morales, /'CAJ 71 O.G. 529)
But one, who regularly used a carabao in farming with k n owledge
that the property was stolen, is liable as an accessory. The regularity
in the use of the stolen property improves the economic position of
the user. He is liable as an accessory since he materially benefits
from the crime of theft. (Taer v. CA, G.R. No. 85204, June 18, 1990)
Receiving 10% of the proceeds of insurance involving a burned
b uilding in consideration of his service as a lawyer despite knowledge
that the money is the effect of the crime of arson makes him liable as
an accessory. (1987 Bar Exam)
U nder the second view, deriving benefit f ro m s omething i s
profiting. I m p roving economic condition i s n o t r e q u i red. H ence,
eating a stolen meat will make one liable as an accessory. (2014 Bar
Exam)
2. P r e v e n t i n g t h e D i s c o v er y o f t h e C r i m e — O ne,
w ho had knowledge of the commission of th e cr ime an d di d n o t
participate in it s commission as principal or accomplice, yet took
part subsequent to its commission by concealing or destroying the
bod f the crime or the effects or instruments thereof, in order to
o y of
prevent itsdiscovery, is an accessory.
Body of the crime is the same as corpus delicti. Corpus delicti
h as been defined as the body or substance of the crime and, in it s
primary sense, refers to th e f act t ha t a c r i m e ha s actually been
committed. Destroying or concealing the corpus delicti means doing
something that would make it appear that no crime was committed.
In mu rder o r h o m i cide, th e f a'ct of d eath i s t h e c o rpus de licti.
Showing the dead body of the victim will establish the fact of death.
Thus, burning the dead body of the murdered victim into ashes or
throwing it into the river is destroying the body of the crime. (People
v. Devaras, G.R. Nos. 100988-89, December 15, 1998) The mere act
of a person of carrying the cadaver of one unlawfully k i l l ed, when
it was buried to prevent the discovery of the crime, is sufficient to
make him responsible as an accessory. (The Revised Penal Code by
Luis Reyes; People v. Galleto, G.R. No. L-1095, July 81, .1947; 1989
Bar Exam)
In U.S. v. Cuison, G.R. 5 o. 6840, November 1, 1911, to make
it appear thatthe deceased was armed and that it was necessary to
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IV. PERSONS CRIMINALLY LIABLE AND
DEGREE OF PARTICIPATION
kill him by reason of his resistance to the military, accused placed
a dagger beside the deceased and directed his men t o d i scharge
their firearms into the air at the place where the corpse was lying.
Accused was found guilty as an accessory for concealing the body of
the crime.
3. A s s i s t ing th e P r i n c i pal t o E s c ape — O n e w ho h a d
knowledge of the commission of the crime and did not participate in
its commission as principal or accomplice, yet took part subsequent
to its commission by harboring, concealing, or assisting in the escape
of the principals ofthe crime, is an accessory, provided that the
crime committed istreason, parricide, murder, or an attempt to take
the life of the Chief Executive; or other crime, which is committed by
habitual delinquent, or where the accessory acts with abuse of his
public functions.
Assisting in the escape of the principal in the crime of murder,
which will m ake one liable as an accessory, is not just r efraining
from reporting an offense to the proper authorities (US v. Callapag,
G.R. No. 7041, Ja nuary 28, 1 9 12) but i t i n v o l ves a p ositive act
such as enjoining a witness not to reveal what he knew about the
crime (People v. Talingdan, G.R. No. L-82126, July 6, 1978) or
providing false information which t ended affirmatively to deceive
the prosecuting authorities and thus to prevent the detection of the
guilty parties and to aid t hem i n escaping, discovery, and arrest.
(U.S. v. Romulo, G.R. No. 5502, March 7, 1910) However, a Filipino
citizen, who failed to report conspiracy to commit treason, is liable
for misprision of treason.
In U.S. v. Yacat, G.R. No. 110, October 24, 1902, abusing his
public office, a municipal mayor refused to prosecute the crime of
homicide and thus made it possible for principals to escape. This
fact is sufficiently demonstrated in t h e r e cord, and he has been
unable to explain his conduct in refusing to make an investigation
o f this serious occurrence, of which complaint wa s made to hi m .
Consequently, he is liable as an accessory after the fact.
FENCING UNDER P.D. NO. 1612
The essential elements of t h e c r im e o f f e ncing under P .D.
No. 1612 are as follows: (1) A crime of robbery or th eft has been
committed; (2) The accused, who is not a p r i n cipal or accomplice
in the commission of the crime of robbery or theft, buys, receives,
possesses,keeps, acquires, conceals, sells or disposes, or buys and
sells, or in any manner deals in any article, item, object or anything

344 CRIMINAL LAW REVIEWER
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of value, which has been derived from t h e p r oceeds of th e said
crime; (3) The accused knows or should have known that th e said
article, item, object or anything of value has been derived from the
proceeds ofthe crime of robbery or theft; and (4) There is on the part
of the
o h accused, intent to gain for himself or for another. (Francisco
v. People, G.R. No. 146584, July 12, 2004; Ong v. People, G.R. No.
190475, April 10, 2018; 1995 and 2016 Bar Exams)
The concept of fencing is the same as that of theft or robbery
committed by an accessory. Hence, it is an essential element of fencing
that the fencer is not a principal or accomplice in the commission of
the crime of robbery or t h eft or carnapping. (Francisco v. People,
G.R No. 146584, July 12, 2004)
Fencing is a malum prohibitum, and P.D. No. 1612 creates a
prima facie presumption of fencing from evidence of possession b
thee accused of any good, article, item, object or anything of value,
which has been the subject of robbery or t h eft; and pr escribes a
higher penalty based on the value of the property. (Cahulugan v.
People, G.R. No. 225695, March 21, 2018)
Robbery or Theft
F iling o f c o m plaint f o r t h e f t i s n ot i n dispensable t o t h e
prosecution for fencing. However, if the complainant did not lodge
a criminal complaint against th e p r i n cipal i n t h e c r im e of t h eft ,
this may create doubt if theft was really committed. Without proof
of commission oftheft, accused shall be acquitted of the crime of
fencing.(see: Tan v.People, G.R. No. 184298, August 26, 1999)
Final conviction for theft is not indispensable for the prosecutio
cu ion
for fencing. For purposes of prosecution for fencing, theft may be
proven by t estimonial evidence, and other evidence. However, a
judgment of conviction of theft, which is not yet final, may not be
enough to establish the commission of theft as an element of fencing.
(Francisco v. People, G.R. No. 146584, July 12, 2004)
In Ii m v. People,G.R. No. 211977, October 12, 2016, the
complainant only reported the theft of grader to the police 10 days
after it was already sold to the accused. There is no fencing since it
was not shown that the grader was stolen because no theft had yet
been reported at that time.
Ar'lene is engaged in the buy and sell of used garments, more
popularly known as "ukay-unsay." Among the items found by the
police in a raid of her store in Baguio City were brand-new Louie
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IV. PERSONS CRIMINALLY LIABLE AND 345
DEGREE OF PARTICIPATION
Feraud blazers. Fencing is not committed since there is no showing
that the blazers were stolen. (2010 Bar Exam)
In fencing the property w h ich the accused possesses or deals
with intent to gain, must be derived from the proceeds of theft or
robbery. (Ong v. People, supra) If t he property is derived from the
proceeds of other crime such as malversation (1987 Bar Exam) or
estafa through misappropriation (1992 Bar E xam), fencing is not
committed. But th e accused can be held liable as an accessory if
he profited or assisted other t o p rofit f r o m t h i s m i sappropriated
property. However, there is fencing although the subject property
has been derived from the proceeds of carnapping or cattle rustling.
The concept of carnapping (People v. Sia, G.R. ¹. 13 7 4 57,¹v e m b e r
21, 2001) or cattle rustling (Pil-ey v. People, G.R. No. 154941, July
9, 2007) is the same as that of theft or robbery. Thus, carnapping
(Dimat v. People, G.R. No. 181184, January 25, 2 012; 2018 Bar
Exam) or c attle r u s tl ing ( 1 992 Bar E x a m) can be c onsidered as
within the contemplation of the word "theft" or "robbery" mentioned
in P.D. No. 1612.
Miguel took the horse without the consent of Aniceto, the owner
thereof, and thereafter, sold it t o Peping. The crime committed is
cattle rustling. But if Miguel borrowed the horse for a couple of days
from Aniceto, and thereafter, sold it to Peping, the crime committed
is estafathrough misappropriation. If the crime committed is cattle
rustling, Peping can be held liable for fencing. The crime of cattle
rustling is within the contemplation of the word "theft" or "robbery"
in P.D. No. 1612. If the crime committed is estafa, Peping cannot
b e held liable for f encing. The crime of estafa is not w i t hi n t h e
contemplation of th e w or d " t h eft" or " r obbery" in P .D . No. 1612.
(1992 Bar Exam) If Peping is aware the property bought is derived
from the proceeds ofestafa, he is liable as an accessory.
Since the concept of piracy is similar to theft or robbery, one
can be held liable for fencing for possessing or dealing with intent
to gain property,which is derived from the proceeds of piracy under
the Revised Penal Code. However, if the property is derived from the
proceeds of piracy under P.D. No. 532, one, who possessed, received,
or bought properties taken by p i r a t es, is l i able for p i r acy as an
accomplice. Under P.D. No. 532, person who knowingly acquires or
receives property taken by pirates or inany manner derives any
benefit therefrom shall be considered as an accomplice. (People v.
Tulin, G.R ¹. 1 1 1 709, August
80, 2001)
 346 CRIMINAL LAW REVIEWER
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K new or Should Have Kn ow n
Fencing is regarded as malum prohibitum, requiring no proof
of criminal intent. But the prosecution must still prove that accused
knew or should have known t ha t t h e p r operty he possessed was
derived from theftor robbery.
In a prosecution for fencing under P.D. No. 1612, proving that
the accused had no knowledge that the goods or articles found in his
possession had been thesubject of robbery isnot a complete defense.
(2009 Bar Exam) Actual knowledge that the property has been
derived from the proceeds oftheft or robbery is not required. The
accused can still be held liable for fencing if he should have known
that the property is stolen taken into consideration the attending
circumstances. Moreover,possession of stolen property gives rise to
the presumption that possessor "knows or should have known" that
the property isstolen.
The following circumstances indicate that the accused should
have known that the property is stolen:
a. Th e p r i ce of the property is so cheap,e.g., buying a
brand-new TV at the price of P500 (1981 Bar Exam) or a five
carat diamond ring at the price of P1,000 (1990 Bar Exam);
b. Exp e n s ive j e w elr y i s b e i n g o f f ered f o r sale at
midnight in a street;
c. A c c u sed k n e w t h a t t h e c a r h e b o u gh t w a s n o t
properly documented (Di mat v. People, supra; 2018 Bar Exam);
ox'
d. T h e n e w t i r e s are being peddled in th e streets by
an unknown seller. (Ong v. People, supra) Furthermore, mere
possession of stolen property shall be prima facie evidence of
fencing. (Section 5 of P.D. No. 1612)
In Dimat v. People, supra, P.D. No. 1612 is a special law and,
therefore, its violation is regarded as malum prohibitum re q uirin
n o proof of criminal i n t ent. Of course, the prosecution must st i l l
prove that accused knew or should have known t ha t t h e N i s san
Safari he acquired and later sold to complainant was derived from
theft or robbery and t hat h e i n t ended to obtain some gain out of
his acts. Accused knew that th e N i ssan Safari he bought was not
p roperly documented. He said t hat T olentino showed him it s ol d
certificate of registration and official receipt. But this certainly could
J9JC9B0M
IV. PERSONS CRIMINALLY LIABLE AND 847
DEGREE OF PARTICIPATION
not be true because, the vehicle having been carnapped, Tolentino
had no documents to show. That Tolentino was unable to make good
on his promise to produce new documents undoubtedly confirmed
to accused that the Nissan Safari came from an illicit source. Still,
accused sold the same t o complainant wh o a p parently m ade no
effort to check the papers covering her purchase. That complainant
might herself be liable for fencing is of no moment since she did not
stand accused in the case.
In Ong v. People, supra, accused was in the business of buy
a nd sell of t i res for th e p ast 24 y ears, ought to h ave known t h e
ordinary course of business in purchasing from an unknown seller.
Admittedly, Go approached accused and offered to sell the 18 tires
(which were stolen) and he did not even ask for proof of ownership of
the tires. The entire transaction, from the proposal to buy until the
delivery of tires happened in just one day. His experience from the
business should have given him doubt as to the legitimate ownership
of the tires considering that it was his first time to transact with Go
and the manner it was sold is as if Go was just peddling the 18 tires
in the streets. Accused was convicted of fencing.
The accused should have been forewarned that the soft drinks
came from an il legal source, as his tr ansaction with th e t h ief did
not have any accompanying delivery and official receipts, and that
the latter did not demand that such items be replaced v.ith empty
bottles, contrary to common practice among dealers of soft drinks.
He should have known that the goods are stolen. He was convicted
of fencing. (Cahulugan v. People, G.R. No. 225695, March 21, 2018)
R obbery wit h h o m i cide i nvolving sardines is committed i n
store, which is a block away from the house of Dimas. Earlier that
day Dimas heard rumors thatthe nearby store had been robbed and
that his f r i end Cosme was found dead. Dimas thought of asking
Aber and Bobot, the robbers, where they got the sardines to clear
away this doubt, but on the second thought did not. He bought the
cans for P20.00 and sold them for P80.00. Dimas is liable for fencing,
He should have known from th e circumstances that th e sardines
are derived from the proceeds of robbery with homicide. (1986 Bar
Exam)
I f the information alleged that th e accused "knows" that th e
property is stolen, he cannot be convicted of fencing on the ground
that he "should have known" that t he same was derived from the
proceeds of theft because of his constitutional right to be informed.
(Lim v. People, G.R ¹. 2 1 1977, October 12, 2016)
 348 CRIMINAL LAW REVIEWER
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To be held liable as an accessory, itis important that the
accused, who profited f ro m t h e e f fects of t h e c r i me, ha s actual
knowledge of the commission of the crime. Entertaining suspicion
that the property is stolen is not in i t self proof of knowledge that
a crime has been committed. "Knowledge" and "suspicion" are not
synonymous. The word suspicion is defined as being the imagination
of the existence of something w i t h out p r oof, or u pon v ery slight
evidence or upon no evidence at all. (People v. Batuampo, /CAJ 62
O.G. 6'269-6'270)
A municipal treasurer sold the brand new typewriters owned
by the province to his friend, Rodolfo, a general merchant for P2,000
each. Rodolfo as a g eneral m e rchant k n e w t h a t o n e t y p ewriter
could easily be between P6,000 to P10,000, and for this reason he
readily agreed to buy the four typewriters. Rodolfo then resold the
typewriters atP6,000. Rodolfo is not liable for fencing because the
propertiesare derived from proceeds of malversation, and not from
theft or robbery. Although circumstances 'may indicate that Rodolfo
should have known that the properties are derived from the proceeds
of malversation, he is not l i able as an accessory under Ar t i cle 19
of the Revised Penal Code since he has no actual knowledge of the
commission of malversation. (1987 Bar Exam)
Presumption of Fencing
There are two rules on presumption based on the possession
of stolen property, to w i t : p r e sumption on a ut h orship of t h e ft o r
robbery and presumption of fencing. (1948 Bar Exam)
If thesuspect is found in possession of recently stolen property,
he should be charged as principal in the crime of theft or robbery.
Under Section 3(j), Rule 131, a person found in possession of a thing
taken in the doing of recently wrongful act is the taker and the doer
of the whole act. Settled is the rule that unexplained possession of
recentlystolen property isp rima acief evidence of guilt of the crime
of theft. (People v. Tanchoco, G.R. No. 1-88, April 6, 1946)
If the subject property is not recently stolen, the presumption
under Section 3(j), Rule 131 will not arise. However, the possessor
is still presumed to have violated P.D. No. 1612 even if the property
being possessed was not recently stolen. Section 5 of P.D. No. 1612
provides: "Mere possession of any good, article,item, object, or
anything of value which has been the subject of robbery or thievery
shall be pri ma facie evidence of fencing."
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IV. PERSONS CRIMINALLY LIABLE AND
DEGREE OF PARTICIPATION
Possession of stolen property gives rise tothe presumption
that possessor "knows or should have known" that the property is
stolen and that he is motivated by "intent to gain." (Dunlao, Sr. v.
CA, G.R. No. 111848, August 22, 1996) In sum, if t he prosecution
establishes the possession of stolen properties by the accused, which
is an element of fencing, all other elements thereof are presumed to
be present.
Circumstances normally e x ist t o f o r ewarn, fo r i n s t ance, a
reasonably vigilant buyer that the object of the sale may have been
derived from the proceeds of robbery or theft. Such circumstances
include the time and place of the sale, both of which may not be
in accord with t h e u sual p r actices of commerce. The nature and
condition of the goods sold, and the fact that the seller isnot
regularly engaged in t h e b u siness of selling goods may l i k ewise
suggest the illegality of their source, and therefore should caution
the buyer. This justifies the presumption found in Section 5 of P.D.
No. 1612. This presumption is reasonable for no other natural or
logicalinference can arise from the established fact of possession of
the proceeds ofthe crime of robbery or theft. (Ong v. People, supra)
The accessory in theft should materially benefit from it. Riding
in a stolen vehicle is "not p rofiting" w i t hi n t h e contemplation of
Article 17 of the Revised Penal Code on accessory since it does not
improve his economic position. Profiting is not synonymous to intent
to gain as an element of theft (Gregorio). However, in violation of
P.D. No. 1612, use of stolen property gives rise to the presumption of
fencing. Hence, the user may be held liable for fencing even though
he did not materially benefit from crime of theft. Moreover, using
the stolen property is within the contemplation of the word 'gain' in
the definition of fencing.
The presumption of f encing ma y b e o v ercome: by showing
proof that accused bought the item from a licensed dealer of second-
hand items (Dizon-Pamintuan v. People, G.R. No. 11414, July l l ,
1 994); by presenting affidavit of ownership secured from a t h i r d
person, which, by virtue of its notarization, enjoys a presumption of
regularity (I im v. People, G.R. No. 211977, October12, 2016) or by
showing official receipts covering the purchases of subject property.
(D.M. Consunji, Inc. v. Esguerra, G.R. No. 118590, July 80, 1996)
The issuance of a sales invoice or receipt is proof of a legitimate
transaction and may be raised as a defense in the charge of fencing;
however, that defense is disputable. In this case, the validity of the
issuance of the receipt was disputed, and the prosecution was able to
 350 CRIMINAL LAW REVIEWER
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prove that Gold Link and its address were fictitious. Accused failed
to overcome the evidence presented by the prosecution and to prove
the legitimacy of the transaction. Thus, he was unable to rebut the
prima facie presumption under Section 6 of P.D. No. 1612. ('Ong v.
People, supra )
A mere claim that the accused bought the painting legitimately
from a f r i e nd ( 2014 Bar E x a m ); or m e re p r e sentation of r e ceipt
covering the sale of jewelries from a person, who is presently
nowhere to be found (1996Bar Exam) is not enough to overcome the
presumption that the possessor of the stolen property committed the
crime of fencing.
Fencing of the Second Form
There is a second crime of fencing, and that is, selling or buying
s econd hand goods without p e r m it . S ection 6 o f P . D . N o . 1 6 12
requires stores, establishments or entities dealing in the buying and
selling of any good, article, item, object or anything else of value
obtained from an unlicensed dealer or supplierthereof to secure
the necessary clearance or permit f rom th e station commander of
the Philippine National Police in the town or city where that store,
establishment or entity is located before offering the item for sale to
the public.
1 . B uy i n g P r o p e r t i e s f r o m U n l i c e n sed D e a l e r or
Supplier — Un d er the implementing rules and regulation of P.D.
No. 1612, "buy and sell" r e f ers t o t h e t r a n saction wh ereby one
purchases used secondhand articles for the purpose of resale to third
persons. Used secondhand articleshall refer to any goods, article,
item, object or anything of value obtained from an unlicensed dealer
o r supplier, r egardless of w h ether t h e s am e ha s a ctually o r i n
fact been used. Hence, this clearance or permit in Section 6 is not
required before reselling a property, if the same was bought from a
licensed dealer or supplier.
For example, buying n ew a r t i c les from SM f o r p u r p o ses of
reselling them in a sa r i-sari store is not covered by the clearance
requirement under Section 6. On the other hand, pawnshop in
selling unredeemed pawned jewelries, junk shop in selling metal
scraps bought from the public, and ukay-ukay store are required to
secure the permit required in Section 6.
2. S el l i n g P r o p e r t ies to th e G e n eral P u b lic — I n L i m
v. People, G.R No. 211977, October, 12, 2016, the clearance stated
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IV. PERSONS CRIMINALLY LIABLE AND 351
DEGREE OF PARTICIPATION
in Section 6 of P.D. No. 1612 is only required if several conditions,
are met: first, that t he person, store, establishment or entity is in
the business of buying and selling of any good, articles item object,
or anything of value; second, that such thing of value was obtained
from an unlicensed dealer or supplier thereof; and third, that such
thing of value is to be offered for sale to the public. In the present
case, the first and t h ir d r equisites were not met. Nowhere was it
established that petitioner was engaged in the business of buy and
sell. Neither was the prosecution able to establish that petitioner
i ntended to sell or wa s actually selling th e subject grader to t h e
public.
3. W it h o u t C l e ar a nce —Accused knew the requirement of
the law in selling second hand tires. In fact, accused has practiced
the procedure of obtaining clearances from the police station for some
used tires he wanted to resell but, in this particular transaction, he
was remiss in his duty as a diligent businessman who should have
exercised prudence. (Ong v. People, supra)
Ofelia, engaged in the purchase and sale of jewelry, was charged
with violation of P.D. No. 1612 for having been found in possession
of recently stolen jewelry valued at P100,000 at her jewelry shop.
Failure t o p r ov e t h a t a c cused, who en gaged i n b u y - and-sell of
jewelries, knows, or should have known that th e jewelry is stolen
is not a defense since this element is presumed to be present under
Section 5 where it was shown that she is in possession of this stolen
property. Moreover, there is no showing that Ofelia secured permit
or clearance from the PNP station commander of the place of sale
required in Section 6 of P.D. No. 1612. (2016Bar Exam ) Ofelia could
have acquired im m u nity f r o m s elling th e j ewelry t o t h e g eneral
public by obtaining clearance from the chief of police of the nearest
police station. (1990 Bar Exam)
Accessory and Fencer
The differences ofthe concept of accessory after the fact in theft
or robberyand that of fencer in the crime of fencing are as follows
(1995 Bar Exam):
1. N a t u r e o f t h e C r i m e — Th e f t o r r o b bery committed
by accessory is malum in s e. Fencing committed by a pri ncipal is
malum prohibitum. (Francisco v. People, supra)
2. Su b j e c t of Cr ime —,Persons,
who profit by the effects of
the crimes of robbery and theft, are accessories after the fact in the
 352 CRIMINAL LAW REVIEWER
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crime of theft or robbery under the Revised Penal Code. However,
under P.D. No. 1612, they are principals in the crime of fencing.
3. Cr im i n a l Ac t — T h e a ct t h a t m a k es one liable as an
accessory isprofiting from the effects of the crime or assisting other
to profit. On the other hand, the criminal act in fencing is possession
or dealing with stolen property with intent to gain for himself or for
others. Actual gain or profit is not an element of fencing.
4. P r e s u m p t io n — S e c t i on 5 o f P . D . N o . 1 6 1 2, m e r e
possession of any good, article, item, object, or anything of value
which has been the subject of robbery or t h i every shall be p r i m a
facie evidence of fencing. Under the Rules on Evidence, possession
of a recently stolen properties without valid explanation is a prima
facie evidence that the possessor is the author of theft or robbery.
5. P en a l t y — The penalty for accessory after the fact in the
crime ofrobbery or theft is two degrees lower than that prescribed
for the principal. On the other hand, P.D. No. 1612 was enacted to
impose heavy penalties on persons who profit by the effects of the
crimes ofrobbery and theft.Thus, the penalty for the accessory after
the fact is lighter than that for fencing.
6. Cr im i n a l E x e m p t ion —Under Article 16 of the Revised
P enal Code, accessories are ex'empt from cri minal l i ability i f t h e
principal merely committed a light felony. However, if the accessories
of the crime are charged with the crime of fencing, they cannot claim
criminal exemption under the Revised Penal Code even the theft is
merely a light felony. Anti-fencing law has no provision on criminal
exemption.
OBSTRUCTION OF JUSTICE
P.D. No. 1829
T he pu ni shable a ct s u n de r P . D . N o . 1 8 2 9 a r e f o u n d i n
pars. "a" to "i" of Section 1 th ereof. However, the first p aragraph
of Section 1 provides a penalty for any p erson who knowingly or
willfully obstructs, impedes, frustrates or delays the apprehension
of suspects and the investigation and prosecution of criminal cases.
This is the general element of all c r i mes of obstruction of justice
punishable under P.D. No. 1829. In sum, in crimes of obstruction of
justice, the accused is obstructing police investigation, preliminary
investigation, and criminal proceeding. For example. using fictitious
name to obstruct the implementation of decision in a civil case is not
obstruction of justice under Section 1 of P.D. No. 1829 but using of
fictitious name under Article 178 of the Revised Penal Code.
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IV. PERSONS CRIMINALLY LIABLE AND 353
DEGREE OF PARTICIPATION
Suppression of Evidence
U nder S ection 1 ( b) , a l t e r i ng , d e s troying, s u p pressing o r
c oncealing any p a p er, r ecord, document, o r o b j ect, w it h i n t e n t
t o i m p ai r i t s v e r a city , a u t h e nticity, l e g ibility , a v a i lability , o r
admissibility as evidence in criminal investigation or proceedings,
or to be used therein is obstruction of justice.
1. O bj e c t o f D e s t r u c t io n o r Con c e a l m en t — Th e
acts prohibited under Ar t i cle 19(2) of the Revised Penal Code are
destruction and concealment of body of t he c r i m e, or t h e e ffects
or instruments t h ereof. On t h e o t her h a nd , th e a cts p r ohibited
under Section 1(b) of P.D. No. 1829 are destruction, concealment,
suppression and alteration of paper, record, document, or object.
One who altered a police blotter by deleting the name of one of
the murder suspects is liable for the crime of obstruction of justice.
He cannot be held liable as an accessory to murder since he neither
destroyed nor concealed the body of th e c r i me, or t h e effects or
instruments thereof.
Destroying confiscated drugs in a c ase of sale of dangerous
drugs under R.A. No. 9165 is obstruction of justice under P.D. No.
1829. However, theaccused could not be held liable as an accessory
in illegal sale of dangerous drugs. R.A. No. 9165 did not adopt the
technical nomenclature of t h e p e nalty u n der t h e R evised Penal
Code; hence, the penal provisions on accessory under the Code will
not apply to crimes under R.A. No. 9165 (2005 Bar Exam) unless the
accused is a minor. (Section 98 of R.A. No. 916'5)
If the father of the respondent in a preliminary investigation
altered the allegations in the complaint-affidavit as tothe date
of criminal incident to make it appear that th e crime, with which
his son was charged, had prescribed, the alteration is constitutive
of the crime of falsification of document under Art i c le 172 of the
Revised Penal Code and obstruction of justice under P.D. No. 1829.
In this case, the offender should be prosecuted for the graver crime
of obstruction of justice.
Upon request of a strong political supporter, the Mayor instructs
the chief ofdetective to burn or destroy a confession of a robbery.
Claiming that the Mayor's instructions were improper and immoral,
the chief of detective disregards the Mayor's instructions and goes
ahead with the presentation of the confession in court. The accused
is finally convicted. The Mayor is liable for attempted obstruction of
justice. Since P.D. No. 1829 has adopted the technical nomenclature
 354 CRIMINAL LAW REVIEWER
VOLUME I IV. PERSONS CRIMINALLY LIABLE AND 855
DEGREE OF PARTICIPATION

of the penalty of the Revised Penal Code, the provisions on stages

under the Code shall apply to obstruction of justice. (1 969 Bar Exam) crime for the purpose of preventing the discovery thereof. Crime was
already discovered when the concealment was made. However, he
In Rodriguez v. Sandiganbayan, G.R. No. 141710, March 8, is liable for obstruction of justice for concealing the truck to impair
2004, during the preliminary investigation, the Ombudsman found its availability as ev idence in t he c ri m i n al p r o ceeding for i l l e gal
t hat the respondent„ in th e course of her d ut y a s M a y er, who i s possession of lumber. (Padiernos v. People, G.R. No. 181111, August
tasked to exercise general and operational control and supervision 17, 2015)
over the local police forces, used her infiuence, authority and office to
call and command members of the municipal police of Taytay to haul 3 . N e i t h e r P r i n c i p a l n o r A cc o m p l i c e — T o m a k e
an accused liable as an accessory, it is i m p ortant t hat h e did not
and transfer the lumber which was still subject of an investigation
participate as principal or accomplice.
for violation of P.D. No. 705. Thus, he was properly cha"ged with
obstruction of justice under P.D. No. 1829 with the Sandiganbayan. Although this is not expressly required in P .D. No. 1829 to
make one liable for obstruction of justice, a principal himself cannot
2. In t e n t i o n — The purpose of the accessory in destroying
be held liable for obstruction of justice. P.D. No. 1829 is applicable
or concealing the body of the crime, or the effects or instruments
only to another person and not to the offender himself. (Angeles v.
thereof, is to prevent its discovery. On the other hand, the purpose of
Gaite, G.R. No. 165276, November 25, 2009) Thus, to be held liable
the violator of Section 1(b) of P.D. No. 1829 in altering, destroying,
for obstruction ofjustice it must be established that a third person
suppressing or concealing paper, record, document, or object is
such as relative,or friend is being investigated or tried for a crime
to im pai r i t s v e r a city, a uthenticity, l e gibilit y , a vailability, o r
in a criminal case and the accused concealed object of document to
admissibility.
impair its verity, authenticity, legibility, availability, or admissibility
O ne who concealed or destroyed the body of a cr ime, or t h e as an evidence in that case.
effects or in str uments th ereof, in o r der t o p r event th e d i scovery
A attacked and k i l le d X . B an d C c a m e t o t h e s c ene and
of the crime an d i m p ai r i t s a v a i l abilit y a s a n e v i dence, can be
assisted him in b u r y ing the cadaver of X. A i s p r i ncipal by direct
prosecuted either as an ac cessory under the R evised Penal Code
participation in the crime of murder. The qualifying circumstance of
or as principal of t he offense of obstruction of ju s tice under P.D.
employment of men to afford impunity shall be appreciated since he
No. 1829. For example, the criminal actor, who threw the body of
buried the corpse to destroy evidence against him. Hence, A cannot
murdered victim into the river to destroy the corpus delicti, is liable
be charged as anaccessory since'he is already liable as principal
for murder qualified by the circumstance of employment of means
neither can A be charged with th e cr ime of obstruction of justice
to afford impunity. The one who assisted him in throwing the body
under P.D. No. 1829 since this is applicable to another person other
is liableeither as an accessory to murder for destroying the body
than the offender himself. On the other hand, B and C are liable as
of the crime to prevent its discovery (People v. Devaras, G.R. Nos.
accessoriesfor destroying the body of the crime or as principals in
100988-89, December 15, 1998) or a s p r i n c ipal to o bstruction of
the crime of obstruction of justice. (1 947 Bar Exam)
justice for destroying it t o i m p air it s availability as evidence in a
criminal proceeding. However, he'cannot be prosecuted for both as
Assisting Criminal to Escape
an accessory to murder and as principal to obstruction of justice.
Under Section 1(c), harboring or concealing, or facilitating the
O ne who concealed or destroyed the body of a cri me, or t h e
escape of, any person he knows, or has reasonable ground to believe
effects or i n s t r u m ents t h e reof, i n o r d e r i m p ai r i t s a v a i l ability
or suspect, has committed any offense under existing penal laws in
as an evidence but not to pr event the discovery of the crime, cari order to prevent his arrest, prosecution and conviction is obstruction
only be prosecuted for obstruction of justice. For example, After the
of justice.
discovery of illegal possession of lumber, the accused unlawfully took
the truck used to commit the crime from the authorities. He is not Harboring or concealing a criminal suspect in order to prevent
liable as an accessory since he did not conceal the instrument of the a lawful w a r r a n t less arrest or t h e i m p l e mentation of a w a r r a n t
of arrest constitutes obstruction of justice. However, harboring or

J9JC9B0M
 356 CRIMINAL LAW REVIEWER
VOLUME I
concealing a criminal suspect to prevent an il l e gal arrest is not a
crime. The term arrest in Section 1(c) of P.D. No. 1829 contemplates
a lawful arrest. Arrest not made in accordance with t h e flagrante
delicto principle or hot p u r s uit r u l e is u n l a w ful. (Posadas v. The
Hon. Ombudsman, G.R. No. 181492, September 29, 2000)
If obstruction of justice for harboring rebels is committed in
furtherance of rebellion, the l atter absorbs the former. (EnriIe v.
Amin, G.R. No. 98885, September 1 8, 1990) It i s s u b m it t ed t h a t
this En r ile pr i n ciple is a p p licable to n o n-political crime such a s
robbery with homicide where a principal assisted his co-conspirator
to escape.P.D. No. 1829 should be made applicable to third persons
and not to principals, who are responsible in the commission of the
crime.
1. Su s p i c ion — A n a c c essory under A r t i c le 1 9(3) of t h e
Revised Penal Code must have knowledge of the commission of the
crime by the principal. Entertaining suspicion is not in itself proof
of knowledge that a crime has been committed. (The Revised Penal
Code, Book II by CA Ju stice Luis B. Reyes) On the other hand, the
accused can be held liable for obstruction of justice under Sectior 1(c)
of P.D. No. 1829 if he has reasonable ground to believe or suspect
that the person being assisted has committed a crime.
2. Es c apee —To make a person liableas an accessory under
the Revised Penal Code, it is required that the person being assisted
to escape must be a principal. On the other hand, in obstructior. of
justicethe one being assisted to escape is any person.
A lent his revolver to B f or the purpose of killing X. With t h e
use of the revolver, B killed X. The Mayor helped A to escape. The
Mayor is not li able as an accessory because he did not ass st the
principal in the crime of murder. A is just an accomplice. However,
the Mayor is liable for obstruction of justice. (196'8 and 2008 Bar
Exams)
3. C ri m e C o m m i t t e d b y E s c apee — To m a ke a p e rson
liable as an accessory under the Revised Penal Code, it is required
that the crime committed by the person escaping must be treason,
parricide, murder, or an attempt to take the life of the Chief Execu-
tive; if other crime is committed, it is important that the accessory is
a public officer, who acted with abuse of his public functions, or that
the person assisted is a habitual delinquent. On the other hand, in
obstruction of justice, the crime committed by the person escaping is
any offense under existing penal laws.
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IV. PERSONS CRIMINALLY LIABLE AND 357
DEGREE OF PARTICIPATION
If the crime committed is homicide (1968 Bar Exam) or robbery
(2011 Bar Exam), and there is no abuse of public function and the
principal is not a habitual delinquent, the one who helps him escape
is not liable as an accessory to homicide or robbery. But he is liable
as principal to the crime of obstruction of justice.
Light Felonies Committed by Accessory
The following are criminally liable for light felonies: principals
and accomplices. (Article 16 of the Revised Penal Code; 1947, 1957,
and 196'5 Bar Exams) In sum, accessories are not criminally liable
for light felonies. However, the rule on non-liability of accessories
for light f elony does not a p ply t o o b struction of j u s tice because
the offender is being prosecuted as principal. One who obstructed
the apprehension or prosecution of another person is liablefor
obstruction of justice regardless of the gravity of the crime committed
by the latter.
A assaults X who sustains physical injuries which healed in
five days. B hi d es A in h i s h o use to prevent his a rr est, knowing
that he is wanted by the authorities for the assault of X. B is not
criminally l i able as an accessory for h i d ing B be cause the latter
merely committed slight physical injuries, and there is ro showing
that A i s a h a b i t ual delinquent or B is a p u b l ic officer who took
advantage of his official position. Moreover, slight physical injuries
is a light felony, and thus, an accessory cannot be held liable for
it. However, B is l iable as principal to obstruction of justice. This
can be committed regardless of the cr ime committed by th e one
being assisted to escape. Furthermore, the rule on non-liability of
accessoriesfor light felony does not apply to obstruction of justice.
(1957 Bar Exam)
E xempting C i r c u m stance o f R e l a t i o nship i n F a v o r o f a n
Accessory
Accessories by preventing the discovery of a crime or by assist-
ing the principal to escape are exempt also from criminal respon-
sibility if t hey are related to the pr incipal or chief actor. The cir-
cumstance of relationship covers spouses, ascendants, descendants,
legitimate, natural, and adopted brothers and sisters, or relatives by
affinity within the same degrees. (Article 20 of the Code; 1947 Bar
Exam)
One who pawned the earrings stolen by her daughter is liable as
an accessory to the crime of theft since the exempting circumstance
 858 CRIMINAL LAW REVIEWER
VOLUME I
of relationshipdoes not apply to accessories, who profited or assisted
the principal toprofit from the effect of the crime. Accessories by
profiting from the effects of the crime are motivated in p erfo "ming
participatory acts subsequent to the commission of the crime not by
ties of blood but by money or other m aterial consideration. (2004
Bar Exam) However, the mother can be charged as principal in the
crime of fencing instead of accessory to the crime of theft.
If the accessories of the crime were charged with the crime of
obstruction of justice, they cannot claim criminal exemption ander
Article 20 of the Revised Penal Code. Presidential Decree No. 1829
has no provision on criminal exemption. Moreover, violators of P.D.
No. 1829 are liable as principals and not as accessories. Hence, the
provision on criminal exemption of an a ccessory under th e Code
cannot be applied in a suppletory manner to P.D. No. 1829.
Despite knowledge that the money deposited by his brcther in
his vault is the effect of the crime of robbery, accused still kept it in
his vault. This is a violation of P.D. No. 1892 since he concealed an
object, which is an evidence in criminal investigation or proceedings,
with the intention to impair its availability. The fact that the robber
is thebrother of the accused is not a defense because relationship is
not exempting in obstruction of justice. (2013 Bar Exam)
A chief of police deliberately hides his son who has been ac "used
of murder. The chief of police cannot be charged as an accessory
to murder considering that th e m u r d erer is hi s son. Relat.onship
exempts him from incurring li ability. However, the chief o: police
can be charged with the crime of obstruction of justice. Presidential
Decree No. 1829 did not provide relationship as a ground for criminal
exemption. Moreover, the chief of police is being prosecuted not as
an accessory but as principal in the crime of obstruction of justice.
(1961, 1965, and 1982 Bar Exams)
Immediately after m u r dering Bob, Jake went t o hi s mo t her
to seek refuge. His mother told him t o h ide in th e maid's quarter
until she finds a better place for him to hide. After two days, Jake
transferred to his aunt's house. A week later, Jake was apprehended
b y the police. The mother cannot be made criminally li able as an
accessory to m u r der b ecause of t h e e x empting c i r cumstance of
relationship. However, she is liable for obstruction of justice v:here
relationship is not exempting. The aunt can be m ade criminall 'n.ina y
liable either as an accessory to murder or as principal in the crime of
obstruction of justice. The exempting circumstance of relationship in
accessory does not cover third degree relationship. (2010 Bar Exam)
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IV. PERSONS CRIMINALLY LIABLE AND
DEGREE OF PARTICIPATION
When accused learned that h i s a d opted brother wa s being
hunted by the police for kidnapping, she took him i nto her ho use
and concealed him. Thus, his brother was able to elude the police.
Accused is not liable as an accessory because the crime committed by
her adopted brother is not treason, parricide, murder, or an attempt
to take the life of the Chief Executive; she is not a public officer, who
acted with abuse of her public functions and her adopted brother is
not a habitual delinquent. Moreover, relationship is an exempting
circumstance. However, accused is liable for obstruction of justice.
This offense can be committed regardless of the crime committed
by his adopted brother. Moreover, relationship is not an exempting
circumstance in obstruction of justice. (1984 Bar Exam)
Preventing Testimony or Report
Under Section 1(a), of P .D. No . 1 829 pr eventing w i t nesses
from testifying in an y c r i m i nal p r oceeding or fr om r e porting the
commission of any offense or the identity of offender by means of
bribery, misrepresentation, deceit, inti m idation, force or threat is
obstruction of justice.
O ffering victim's f ather a s u b stantial a m ount o f m o ney i n
consideration for th e w i t h d r awal of t h e i r -charges for child abuse
a gainst h i m , w h i c h w a s ' pending p r e l i m i nary i n v e stigation, i s
considered an obstruction of justice under Section 1(a) of P.D. No.
1829. (Naval v. Panday, A.M No . RTJ-95-1283, December21, 1999)
Accused, who prevented her daughter from revealing to anyone
what she knew about the murder of his father by means of threat,
is liable either as an accessory in th e cr ime of m u r der since she
assisted the principal in escaping (People v. Talingdan, G.R. No.
L-32126, July 6, 1978); or as principal in the crime of obstruction of
justice under P.D. No. 1829.
Delaying Crim i nal P r osecution
Under Section 1(e), of P.D. No. 1829 delaying the prosecution
of criminalcases by obstructing the service of process or court orders
or disturbing proceedings in the fiscal's office, the Ombudsman, or
the courts is obstruction of justice.
Failure on the part of the arresting officers to arrest the accused
makes the latter a f u git ive from ju stice. However, the accused is
not liable for obstruction of justice. In obstruction of justice, only
the one who obstructed the prosecution or arrest of an accused in
 36Q CRIMINAL LAW REVIEWER
VOLUME I
a criminal case is liable under P.D. No. 1829. The accused, whose
arrest or prosecution is obstructed, is not liable for obstruction of
justice. The law is applicable only to another person and not to the
offender himself. No act can be pronounced criminal, which is not
clearly made so by a statute; so too, no person who is not clearly
within the terms of a statute can be brought within them. (Angeles
v. Gaite, G.B. No. 165276, November 25, 2009 )
Using False Evidence
Under Section 1(f), P.D. No. 1829 making, presenting or using
any record, document, paper or object with knowledge of its falsity
and with i n t ent t o a f fect th e course or outcome of the c r i m i n a l
investigation or proceedings is obstruction of justice. If the proceeding
is civil, the offender is liable for use of falsified document. In use of
falsified document in a judicial proceeding under Article 172 of the
Revised Penal Code, the offender introduces a false document in a
judicial proceeding regardless of whether the case is criminal, civil,
or administrative.
Obstruction of Prosecution for Consideration
Under Section 1(g), of P.D. No. 1829 soliciting, accepting, or
agreeing to accept any benefit in consideration of abstaining from,
discounting, or impeding the prosecution of a criminal offender is
obstruction of justice.
A prosecutor wh o a ccepted or a g r eed t o a ccept benefit i n
consideration of abstaining from the prosecution of a criminal case
is liable for obstruction of justice under Section 1(g) of P.D. No. 1829,
or direct bribery under Article 210 of the Revised Penal Code.
If a prosecutor maliciously abstained from prosecution of
a criminal c ase w i t h out c onsideration, th e c r i m e c ommit ted i s
dereliction in th e prosecution of offenses under Arti cle 208 of the
Revised Penal Code.
Threatening a Witness
Under Section 1(h), of P.D. No 1829 threatening directly or
indirectly another with the infliction of any wrong upon his person,
honor or property or t ha t of an y i m m ediate member or members
of his family i n o r der t o p r event such person from appearing in
the investigation of, or official proceedings in, criminal cases, or
i mposing a c o ndition, w h ether l a w fu l o r u n l a w f ul , i n o r d e r t o
J9JC9B0M
IV. PERSONS CRIMINALLY LIABLE AND 361
DEGREE OF PARTICIPATION
prevent a person from appearing in th e cr i m inal i n vestigation or
proceedings isobstruction of justice.
Preventing a person from appearing in a criminal proceeding by
means of threat constitutes obstruction of justice; if the proceeding
is civil or administrative, the crime committed is grave threat under
Article 282 of the Revised Penal Code; if the proceeding is legislative,
the crime committed is disobedience under Article 150 of the Code.
The crime of obstruction of justice under Section 1(h) of P.D.
No. 1829 is complete or consummated the very moment the offender
employed threat or imposed condition for the purpose of preventing
another from attending cri mi nal i n vestigation or p r oceeding. The
criminal i n t ent or p u r pose of preventing another from a t t ending
the proceeding is only the subjective element of the offense and it
i s sufficient that such purpose exists. It i s not n ecessary that h e
accomplished it. The fact that the witness attended the proceeding
despite the threat is not a defense in this crime.
If the wi tness was actually prevented f rom testifying in a n y
criminal proceeding by means of threat, the act constitutes the crime
under Section 1(a) of P.D. No. 1829. In v i olation of Section 1(a),
preventing another from testifying in a proceeding is the normative
element thereof.
False Information
Under Section 1(i), giving false or fabricated information to
mislead or prevent the law enforcement agencies from apprehending
the offender orfrom protecting the lifeor property of the victim; or
fabricating information from the data gathered in confidence by the
investigating authorities for p u r poses of background information
and not for publication and publishing or disseminating the same
to mislead the investigator orthe court is obstruction of justice. If
the offender gave falseinformation to mislead or prevent the law
enforcement agencies from apprehending the suspect, the former
could be prosecuted as principal to obstruction of justice under P.D.
No. 1829 or as an accessory under the Revised Penal Code. (U.S. v.
Bomulo, G.B. No. 5502, March 7, 1910)

V. PENALTIES
GENERAL PRINCIPLES ON PENALTIES
The court should prescribe the correct penalties in complex
crimes in strict observance of Article 48 of the Revised Penal Code.
In estafa through falsification of commercial documents, the court
should impose the penalty for the graver offense in the maximum
p eriod. Otherwise, the penalty prescribed is invalid, and v ill n ot
attain finality. (De Castro v. People, G.R. No. 171672, February 2,
2015)
Prospectivity and Retr oactivity
No felony shall be punishable by any penalty not prescribed by
law prior to its commission. (Article 21 of the Revised Penal Code)
Penal laws shall have a retroactive effect insofar as they favor
the person guilty of a felony, who is not a habitual criminal although
at the time of the publication of such laws a final sentence has been
pronounced and the convict is serving the same. (Article 22 of the
Revised Penal Code)
Measures of Prevention or Safety
The following shall not be considered as penalties:
1. T he a r r e s t a n d t e m p orary d e t ention o f a c cused
persons, as well astheir detention by reason of insanity or
imbecility, or illness r'equiring their confinement in a hospital.
2. T h ec ommitment of a minor to any of the institutions
under R.A. No. 9844. (J'uvenile Justice and Welfare Law
) cases is to correct and reform the offender; and
8. Su s p e nsion from employment or public office during
the trialin order to institute proceedings.
4 . F in e s an d other corrective measures which, in t h e
exercise of their administrative disciplinary powers, superior
officials may impose upon their subordinates.
J9JC9B0M
V. PENALTIES 363
5. De p r i v a t ion of rights and reparation which the civil
law may establish in p enal f orm. (A r t ic le 24 of th e Revised
Penal Code; 1972 Bar Exam)
Prohibition of the Im position of Death Penalty
R.A. No. 9846
The imposition of the penalty of death is prohibited. (Section 1
of R.A. No. 9846) In lieu of the death penalty, the following shall be
imposed:
1. T he p e n a lt y of re c lusion perpetua, w hen t he l a w
violated makes use of the nomenclature oi the penalties of the
Revised Penal Code; or
2 . T h e p e n a lt y o f l i f e i m p r i sonment, w hen t h e l a w
violated does not make use of the nomenclature of the penalties
of the Revised Penal Code. (Section 2; 1954, 1956, 1961, 1988,
and 2004 Bar Exams)
Person convicted of an offense punished with re clusion per-
petua, or whose sentences will be reduced to reclusion perpetua from
death penalty shall not be eligible for parole under the Indetermi-
nate Sentence Law. (Section 8)
Purpose of Penalties
The purposes of prescribing penalty for the commission of the
crime are:
1. Pr ev e ntion —The State must punish the criminal to
prevent or suppress the danger to the State arising from the
criminal acts of the offender;
2. Se l f - defense —The State has a right to punish the
criminal as a measure ofself-defense so as to protect society
from the threat and wrong infiicted by the criminal;
8. Ref o r m a t ion —The object of punishment in criminal
4. Ju st i c e —The crime must be punished by the State
as an act of retributive justice; a vindication of absolute right
and moral law violated by the criminal.
Classification of Penalties
1. C l a ssification of P e nalties in G e neral — Un d er
Article 25 of the Revised Penal Code, the penalties which may be
 364 CRIMINAL LAW REVIEWER V. PENALTIES 365
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imposed according tothis Code, and their different classes, are those T here ar e t w o c l a sses of p e n a l ty : p r i n cipal p e n alt y a n d
included in the following (1956 Bar Exam): accessory penalty. (1988 Bar Exam) Pr i ncipal penalties are those
expressly imposed by t h e c o ur t i n t h e j u d g m ent o f c o nviction.
Scale
Accessory penalties are impliedly included in the imposition of the
PrincipalPenalties principal penalties. (1969 Bar Exam)
Capital Punishment: The accused who, as clerk of court, was charged with infidelity
Death in the custody of public documents. was found not guilty of the charge
but was reprimanded by the court in his "apacity as clerk of court
Afflictive penalties: for various acts not material to the issue, such as the misreading of
Reclusion perpetua a ballot and his acceptance of free meals and transportation from
Reclusion temporal litigants. It was held that censure being a penalty is not proper for
acquittal. (see: People v. Meneses, G.P.. ¹. L - 4 8 4 4 6, February26;
Perpetual or temporary absolute disqualification
1948; 1988 Bar Exam)
Perpetual or temporary special disqualification
2. Cla s s i f ication o f F i n e — U n de r A r t i c l e 2 6 o f t h e
Prision mayor
Revised Penal Code as amended by R.A. No. 10951, a fine, whether
Correctional Penalties: imposed as a single or as an alternative penalty, shall be considered
Prision correccional an afflictive penalty, if it exceeds P1,200,000; a correctional penalty,
if it does not exceed P1,200,000 but is not less than P40,000; and a
Arresto mayor
light penalty, if it be less than P40,000.
Suspension
Destierro Fine may be a single penalty (P40,000), alternative penalty
(P40,000 or ar r e sto m enor) or a d d i t i o nal p e nalty ( P 4 0,000 and
L ight P e n a l t i e s : arresto menor). If the law prescribed alternative penalty of fine or
Arresto menor imprisonment, th e court i n s e n t encing th e accused must choose
Public censure between fine and i m p r i sonment. Th e court c a nnot sentence the
accused to suffer fine or imprisonment. To do so, is to allow the accused
Penalties Common to the Th ree Pr eceding Classes: to choose in serving the penalty between fine and i m prisonment,
Fine, and which is a violation of the principle of nor-delegation of power. The
Bond to keep the peace law delegates to the court the dis "retiona"y power to impose fine or
imprisonment. The court cannot re-delegate such discretion to the
Accessoi'y Penalties: accused by sentencing him to suffer fine or imprisonment. (2005 Bar
Perpetual or temporary absolute disqualification Exam)
Perpetual or temporary special disqualification Two or more accused could not be sentenced to pay fine jointly
Suspension from public office, the right to vote and be and severally because in case of non-payment t h ereof by r eason
voted for, the right to follow a profession or calling of insolvency, th e s u bsidiary im p r i s onment c o uld n ot b e f ix e d .
Civil interdiction Subsidiary imprisonment is a per alty which must be served only by
Indemnification the culprit who failed to pay it due to insolvency. (People v. Lopez,
(CAJ 71 O.G. 7824; 2005 Bar Exam)
Forfeiture or confiscation of instruments and proceeds
of theoffense If recklessimprudence has resulted to damage to property in
the amount of P10,000, the maximum fine that the court can impose
Payment ofcosts under Article 365 of the Revised Penal Code is P30,000. Under the

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 666 CRIMINAL LAW REVIEWER V. PENJJ TIES 367
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original version of Article 26 of the Revised Penal Code, this fine of 3. Re c lusidn temporal
P30,000 is classified as afflictive p'enalty since the amount exceeds
P6,000. Under Article90 of the Code, the period of prescr'ption of 4. Pr i s i on mayor
t his crime with afflictive penalty i s 15 years. Under Ar t ic l 2 6 o f
5. P n s ton correcctonal
the Revised Penal Code as amended by R.A. No. 10951, this fine of
P30,000 is a light penalty since the amount does not exceed P40,000. 6. Ar r e sto mayor
Hence, under Article 90 of the Code, the period of prescription of this
7. D estierro
crime with a li ght penalty is two months. Since R.A. No. 10951 is
favorable tothe accused for shortening the period of prescription, it 8. Ar r e sto menor
must be given aretroactive effect.
9. P u b lic censure
3. Cl a s s i fication o f F e l o n y — U nd e r A r t i c le 9 o f t h e
Revised Penal Code as amended by R.A. No. 10951; felon:es are 1 0. F i n e
classified into grave, less grave and light felonies.
SCALE NO. 2
Grave felonies are those to which the law attaches the "apital
Perpetual absolute disqualification
punishment or penalties which in any of their periods are afflictive
(e.g., reclusion perpetua, reclusion temporal, prision mayor or a fine Temporary absolu-.e disqualification
exceeding P1,200,000).
Suspension from public office, the right to vote and
Less grave felonies are those which th e la w p u n i shes with be voted for, and the right to follow a profession or
penalties which i n t h ei r m a x i mu m p e r iod ar e correctional (e.g., calling
prision correccional, arresto mayor or a fine not less than P40,000
but not exceeding P1,200,000). 4. Pu b l i c censure

Light felonies are those infractions of law for the commission 5. Fi n e

of which the penalty of arresto menor or a fine not exceeding P40,000
or both i s p r o vided. However, under A r t i cle 26, a fi n e n o t le s s 5. Sc a l e o f P e n a l t ies According t o T h e i r S e v e r i t y -
than P40,000 but not e xceeding P1,200,000 shall be considered a The scale of penalties in accordance to their severity under Article
correctional penalty. 70 of the Revised Penal Code is as follows:

If the penalty of fine for the crime committed is exactly P-'0,000, 1. D e ath
the felony is classified as light in accordance with Article 9 oecause 2. Re c lusion perpetua
the prescribed fine is not exceeding P40,000, w hile the penalty is
correctional in accordance with Article 26 because the fine is r.ot less 3. Re c lusion temporal
than P40,000. In sum, this is a light felony, which is punishable by 4. Pr i s i on mayor
a correctionalpenalty.
5. Pr i s i on correccional
4. G r a d u a t e d S c a l e s of P e n a lt y — T her e a re t w o
graduated scales of penalty under Ar t i cle 71 of the Revised. Penal 6. Ar r e sto mayor
Code, to wit:
7. A r r esto menor
SCALE NO. 1 8. Des tier ro
1. D e ath 9. P erpetual absolute disqualification
2. Re c lusion perpetua 10. T e m porary absolute disqualification

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 368 CRIMINAL LAW REVIEWER
VOLUME I
1 1. S u spension f ro m p u b li c of fice, th e r gh t t o v o t e
and be voted for, the right to follow a profession or
calling, and
12. P u b lic censure.
Purpose of Classification of Felony and Penalty
The purpose of classification of felony into grave felony, less
grave felony and light felony under Ar t i cle 9 of the Revised Penal
Code (2001 Bar Exam) is to ascertain:
1. W h e t h e r t h e o f fender is l i a ble for a t t empted and
frustrated felony under Article 7 of the Revised Penal Code;
2. W h e ther the offender isliable as accessory under
Article 16;
3. T h ep e riod of subsidiary imprisonment under Article
4. I f t h e c r i m e can be complexed with another crime
resulting from the same act under Article 48;
5. T he p e n a lt y f o r c r i m e w i t h i n c o mpl t e a c cident
under Article 67; and
6. T he p e n alty for r eckless imprudence under Article
365.
The purpose of classification of penalties under Articles 25 and
26 into capital punishment, afflictive penalty, correctional penalty
and light penalty is to determine the period of prescription of crimes
under Article 90, and period of prescription of penalty under Article
92. However, there is an occasion where Article 9 shall be used to
determine the period prescription of crime under 'Article 90.
In case of a light felony with th e correctional penalty of fine
of exactly P40,000,the period of prescription of the light felony is
two months because of Article 90 in relation to Article 9, v hile the
periodofprescription ofthiscorrectional penalty is 10 years because
of Article 92 in relation to Ar t i cle 26. (People v. Yu Hai, G.R. No.
L-9598, August 15, 1956)
The purpose of the graduated scale of penalties under Article 71
is to apply the rules on graduation. For example, reclusion temporal
in the graduated scale is immediately inferior to reclusion perpetua.
Hence, reclusion temporal for purposes of graduation is the penalty
next lower in degree than reclusion perpetua.
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V. FENALTIES 369
The purpose of the scales of penalties in accordance to their
severity under Article 70 is to apply the rule on successive sentences.
In sum, if the accused has multiple sentences, he will serve them
successively in the order of penalty based on this scale. For example,
if the accused is sentenced to suffer reclusion temporal for homicide
and prision mayor for frustrated homicide, he will serve reclusion
temporal ahead of prision mayor.
Article 25 provides the scale of penalties according to t heir
gravity.On the other hand, Article 70 provides scale of penalties
ir.accordance to their severity for purposes of applying the rule for
service of mult i ple sentences. Under Ar t i cle 25, ar resto menor i s
a light penalty wh ile destierro is a correctional penalty. However,
in the scale of penalties under Ar t i cle 70, destierro is place below
arresto menor. In other words, in the imposition of penalty, destierro
is a penalty graver than ar resto menor. However, in the service of
sentence, arresto menor is more severe than destierro. (Misa, C.A.,
36 O.G. 3697)
Under Article 70, the prisoner must serve arresto menor first
before serving destierro. This is only logical since arresto menor is
an imprisonment penalty while destierro is not. Prisoner must serve
first all imprisonment penalties before serving destierro. Otherwise,
a prisoner will be r eleased after serving "imprisonment penalties
other than arresto menor" to serve destierro just to be arrested again
to serve arresto menor.
Under the original version of Article 70, a person sentenced to
destierro who is also sentenced to the penalty of prision or arresto
shall berequired to serve these latter penalties before serving the
penalty of destierro.
DURATION AND EFFECTS OF PENALTIES
Reclusion Perpetua
The penalty of reclusion perpetua shall be from 20 years and 1
day to40 years. (Article27ofthe Revised Penal Code, as am ended by
R.A. No. 7659) However, the credit for preventive imprisonment for
the penalty ofreclusion perpetua shall be deducted from 30 years.
(Article 29 of the Revised Penal Code, as amended by R.A. No. 10592)
In People v. Lucas, G.R. Nos. 108172-73, January 9, 1995, the
Supreme Court En Banc, concluded after reexamining the legislative
history of R.A. No. 7659 that although the law has fixed the duration
ot"
reclusion perpetua from 20 years and 1 day to 40 years, there was
 370 CRIMINAL LAW REVIEWER V. PENALTIES 371
VOLUME I

no clear legislative intent t o a l ter it s ori ginal classification as an
indivisible penalty. It shall t hen remain as an indivisible penalt- ena y.
(2005 Bar E x a m) Th u s, the court c an o nly s entence the accused
to suffer re clusion perpetua. Im p osing the p e nalty of t h i r t y - four
(34) years, four (4) months and one (1) day of reclusion perpetua is
erroneous.
former has a dur ation of 40 (or 30 years if t h ere is a p r eventive
.
imprisonment) while the l a tter has no dur ation. Hence, R.A. No.
7659 shall be given a retroactive effect for being favorable to the
accused. (People v. Morilla, G.R. No. 189888, February 5, 2014; Ho
Wai Pang v. People, G.R. ¹. 1 76229, October 19, 2011)

If a special law p r escribes the penalty of l if e i m p r isonment Duration of Other Penalt i es

for an offense, the court should not sentence the accused to suffer The duration of penalties under Articles 27, 29, and 76 of the
reclusion perpetua. (People v. Ob i l l o, G . R. N o. 18 9 828, tu n e 6 , Revised Penal Code is as follows (1946, 1969, and 2019 Bar Exams):
2001) On th e o t her h a nd, i f t h e R e vised Penal Code or special
Reclusion perpetua 20 years and 1 day to 40 years (or 80 years)
I aw prescribes reclusion perpetua for a felony or offense, the court
should not sentence the accused to suffer life imprisonment (Peop'e Reclusion temporal 12 years and 1 day to 20 years
v. 1IIedina, G.R. Nos. 127756-58, tune 18, 2008; 1991 Bar Exam) cr Pri sion mayor 6 years and 1 day to 12 years
reclusion perpetua or life imprisonment. (2001 Bar Exam Prision correccional 6 months and 1 day to 6 years
) Reclusion
perpetua and l i f e i m p r i s onment a re n o t s y n o nymous penalties. Arresto mayor 1 month and 1 day to 6 months
(People v. Medina, supra) Arresto menor 1 day to 30 days
Reclusion perpetua and life imprisonment are distinguished as Reclusion temporal:
follows:
Maximum 17 years, 4 months and 1 day to 20 years
1. Rec l u s ion perpetuai s a p e nalty p r e scribed by th e Medium 14 years, 8 months and 1 day to 17 years
Revised Penal Code or special laws. The Revised Penal Code and 4 months
does not prescribe the penalty of life imprisonment for any cf Minimum 12 years and 1 day to 14 years and 8 months
the felonies therein defined. The penalty of life imprisonment
Prision mayor:
is invariably imposed for serious offenses penalized by special
laws. (People v. Medina, ibid.) Maximum 10 years and 1 day to 12 years
Medium 8 years and 1 day to 10 years
2. Re c l u sion p erpetua, w h i ch h a s a d u r a t i on o f 4 0
years under Article27 of the Revised Penal Code, or 30 years Minimum 6 years and 1 day to 8 years
ijf the
h accused had undergone preventive imprisonment under Prision correccionali
Article 29, is a lighter penalty than life imprisonment, which
Maximum 4 years, 2 months and 1 day to 6 years
has no duration. (People v. Morilla, G.R No. 189888, February
Medium 2 years, 4 months and 1 day to 4 years and
5, 2014; People v. Pang, G.R. No. 176229, October 19, 2011;
2 months
2009 and 2019 Bar Exams)
Minimum 6 months and 1 day to 2 years and 4 months
3. Rec l u s ion p e rpetua sh a ll c a r ry w i t h i t ac c e ssory
Arresto mayor:
penalties, namely: perpetual special disqualification, etc. It is
not the same as life imprisonment which, for one thing, does not Maximum 4 months and 1 day to 6 months
carry with it any accessory penalty (People v. Medina, supra; Medium 2 months and 1 day to 4 months
1994 Bar Exam) unless the special law provides accessory Minimum 1 month and 1 day to 2 months
penalties.
Arresto menor:
T he penalty f o r a crim e u n d e r R . A . N o . 6 4 2 5 w a s l i f e
imprisonment. However, R.A. No. 7659 amended R.A. No. 6425 by Maximum 21 days to 30 days
prescribing the penalty of re clusion perpetua. Reclusion perpetua Medium 11 days to 20 days
is a penalty, which is li ghter t han l if e i m p r isonment because the Minimum 1 day to 10 days

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 372 CRIMINAL LAW REVIEWER
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The duration of the minimum, medium and maximum periods
under Article 76 is 1/3equal portion of the respective penalties
except arresto mayor. U nder Ar t i c le 76, the t i me i n c luded in t h e
minimum period of arresto mayor is only one month while that of the
medium and maximum is two months.
Under Articles 27 and 76, the duration of absolute or special
temporary disqualificationand its periods are the same as that of
prision mayor; and t he d u r a tion of de stierro and suspension and
their periodare the same as that ofprision correccionaL
The bond to keep the peace shall be required to cover such
period of time as the court may determine. (Article 27)
Computation of Penalties
If the offender shall be in prison, the term of the duration of the
temporary penalties shall be computed from the day on which the
judgment of conviction shall have become final.
If the offender be not in prison, the term of the duration of the
penalty consisting of deprivation of liberty shall be computed from
the day that th e offender is placed at the disposal of the ju dicial
a uthorities for t h e e n forcement of t h e p e nalty. Th e d u r a t ion of
the other penalties shall be computed only from the day on which
the defendant commences to serve his sentence. (Article 28 of the
Revised Penal Code)
Preventive Im p r i sonment
If the accused was detained by reason of a warrant of arrest or
bench warrant or a lawful warr antless arrest, and he was not able
to post bail due to financial incapacity or since the offense of which
he is charged is n on-bailable, his d etention i s c alled pr eventive
imprisonment. (1994 Bar Exam)
1. Cr e d i t o f P r e v e n t ive I m p r i sonment —Un d er Article
29 of the Revised Penal Code, as amended by R.A. No. 10592, an
a ccused who ha s u n d ergone pr eventive i m p r i sonment s h al l b e
credited, either full or 4/5 of the term, in the service of their sentence
consisting of deprivation of liberty, provided he is not disqualified.
a. F u l l C r e d it — Credit is full if the detention prisoner
executed de tai nee's manifestation, w h i ch i s d e f i n ed a s a
written declaration of a detained prisoner, with the assistance
o f a counsel, stating hi s w i l l i n gness to abide by t h e s a m e
J9JC9B0M
V. PENALTIES 373
d isciplinary r u les imposed upon a convicted prisoner for th e
purpose of availing the full credit of the period of his preventive
imprisonment.
b. 4 / 5C r e d i t — Cr e dit is 4/5 if the detention prisoner
executed detainee's waiver, w h i ch i s d e f in ed a s a w r i t t e n
declaration of a d e t ained prisoner, with t h e a ssistance of a
counsel, stating his refusal to abide by the same disciplinary
rules imposed upon a p r i soner convicted by fi nal j u d gment.
(1994 Bar Exam) In s u m, by r e fusing to be subjected to the
same rules of discipline for convicted prisoner, which is stricter
than those for detention prisoner, he is waiving the benefit of a
full credit of the period of his preventive imprisonment.
c. N o Cr ed i t — Th e r e is no c redit if t h e a ccused is
a recidivist; ha s b een p r e viously convicted t w ice o r m o r e
times of any crime (reiterator, quasi-recidivist, and habitual
delinquent); or has failed to surrender voluntarily before a
c ourt of law u pon being summoned for th e execution of hi s
sentence. (1954 Bar Exam)
d. Ful l Cr e dit for Child in Conflict with t he Law
— If the offender is a child, the applicable rule for crediting
t he period of p r eventive i m p r isonment i s n o t A r t i cle 29 of
the Revised Penal Code but Section 41, R.A. No. 9344. Under
the said provision, the full t i m e spent in actual commitment
a nd detention of juvenile delinquent shall be credited in t h e
services of his sentence.
2. Cr e d i t for Reclusion Perpetua —Credit for preventive
imprisonment for the penalty of reclusion perpetua shall be deducted
from 30 years. (Article 29of Revised Penal Code, as amended by R.A.
No. 10592)
3. Cr e d i t for Destierro —The sentence involving destierro
for death under exceptional circumstance is within the contemplation
of the phrase "sentence consisting of deprivation of liberty" in Article
29. Therefore, where the penalty of destierro is to be imposed on the
accused, the benefits of Article 29 should be extended to him, that is,
he should be credited with the time during which he has undergone
preventive im p risonment. (People v. Bastasa, G.R. No. 1.-32792,
February 2, 1979; 1980, 1982, and 1983 Bar Exams)
4. Cr e d i t for Drug Rehabilitation —The penalty for use of
dangerous drugs committed by a first-time offender is a minimum of
six months rehabilitation. Preventive imprisonment may be credited
 374 CRIMINAL LAW REVIEWER
VOLUME I
in the service of the penalty of rehabilitation. In People v. Santiago,
G.R. No. 191061, February 9, 2011, the Supreme Court ruled that
s ince the accused had been u n der p r eventive detention for t h e
charge ofsale of dangerous drugs from 2005 to 2011 and presumably
deprived of the use of illegal substance during her detention, she
should be deemed to have served the penalty of rehabilitation (which
is not less than six months) for use of dangerous drugs.
5. I m m e d i a t e R e l e as e — If t h e p e r i o d o f p r e v e ntive
imprisonment i s e q ual t o t h e p o ssible m aximum i m p r i sonment
of the offense charged, the detention prisoner shall be released
immediately without prejudice to the continuation of the case. Such
period shall include good conduct time allowance. If the maximum
penalty to which the accused may be sentenced is destierro, he shall
be released after 30 days of imprisonment. (Article 29 of the Revised
Penal Code, as amended by R.A. No. 10$92)
H owever, the accused is no t e n t i t led t o t h e b e nefit o f t h e
rule on immediate release if he is: (1) a recidivist; (2) a habitual
delinquent; (3) an escapee; or (4) a person charged with h e inous
crimes. (Article 29) Note: If the period of preventive imprisonment is
equal to the possible minimum imprisonment of the offense charged,
the detention prisoner shall be r eleased on his own recognizance
without prejudice to the continuation of the case. (A.M No. 12-11-
2-SC)
Time Allowance
There ar e t h r e e t i m e -allowances for p r i s oners u nder t h e
Revised Penal Code, to wit: (1) good conduct time allowance; (2) time
allowance for study, teaching and mentoring; and (3) special time
allowance for loyalty.
l. Good Co n d u c t T i m e A l l o w a n ce ( G C T A) — Be f o re,
only convicted prisoner serving sentence is entitled to allowance for
good conduct. However, under Article 94 of the Revised Penal Code,
as amended by R.A. No. 10592, the following shall be entitled to
good conduct time allowance:
a . A det e n t i o n p r i s o ne r q u a l i fie d f o r c redit f o r
preventive imprisonment for his good conduct and exemplary
behavior; and
b. A p r i s o ner convicted by the final j u dgment in a n y
p enal institut ion, r ehabilitation or d e t ention center or a n y
other local jail for his good conduct and exemplary behavior.
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V. PENALTIES 375
T he good c onduct t i m e a l l o w ances u n der A r t i cl e 9 7 , a s
amended, are asfollows:
First 2 e ar s of im r i s onment:
20 days for each month of good behavior
3 rd to 5th ear:
23 days for each month of good behavior
6 th to 10th ear:
25 days for each month of good behavior
11th ear and successive ear s:
30 days foreach month of good behavior
An appeal by the accused shall not deprive him of entitlement
to the above allowances for good conduct.
2. T ime Allowance for Study,Teaching, and Mentoring
(TASTM) — A prisoner is also entitled to Time Allowance for Study,
Teaching and Mentoring, which is a privilege granted to a prisoner,
whether detained or convicted by final j u dgment, as a reward for
having earned apost-graduate degree or college degree, a certificate
of completion of a vocational or technical skill or values development
course, a high school or elementary diploma or to one serving his
fellow prisoner as a teacher or mentor while incarcerated, equivalent
to a deduction of a maximum of 15 days for every month of study or
mentoring services.
8 . Sp e c i a l T i m e A l l o w a n c e f o r L o y a l t y ( S T A L )
If a de tention prisoner or c onvicted prisoner e scapes during t h e
c alamity, and subsequently surrenders withi n 4 8 h ours from t h e
time the President announces the passing away of such calamity,
he is entitled to 1/5 special time allowance for loyalty (STAL) under
Article 98 of the Revised Penal Code, as amended by R.A. No. 10592;
if the convicted prisoner did not s ur r e nder wit h in t h e pe riod, he
is liablefor evasion of sentence under Article 158 of the Revised.
P enal Code punishable by a penalty equivalent to 1/5 of the ti m e
still remaining to be served under the original sentence, which in
no case shall exceed six months; if the de tention prisoner did not
surrender within the period, he is not liable for evasion of sentence.
Only convicted prisoner can commit evasion of service of sentence
because a detention prisoner is not serving sentence, which he can
evade.
 376 CRIMINAL LAW REVIEWER
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In case the prisoner chose to stay in the place of his confinement
notwithstanding the existence of a calamity, he is entitled to 2/5
STAL. (Article 98 of the Revised Penal Code, as amended by R.A.
¹. 10 5 9 2) A p ri soner who did not escape despite of the calamity
manifests a higher degree of loyalty to the penal system than those
who evaded their sentence but thereafter gave themselves up upon
the passing away of th e calamity. H ence, prisoners, who did not
escape, are entitled to a higher special time allowance.
The old version of Article 98 of the Revised Penal Code does not
grant STAL to a prisoner who did not escape despite the existence
of calamity. (Losada v. Acenas, G.R. No. L-810, March 81, 1947;
Fortuno v. Director o f Prisons, G.R. ¹ . L - 1 7 82, February 2,1948)
Republic Act No. 10592 sought to correct the unfairness under the
old rule for not recognizing the loyalty displayed by a non-evading
prisoner.
However, a prisoner is not entitled to STAL if he has committed
other offense or any act in violation of the law.
4. Ret r o a c t i v it y o f R . A . N o . 1 0 592 — R. A . N o . 1 0592,
which amended Article 97 and 9 8 of t h e Revised Penal Code by
l engthening th e p e r iod o f t i m e a l l o w ances and p r o viding t i m e
allowance to detention prisoner, is favorable to the accused. Hence,
the same must be given a retroactive effect pursuant of Article 22
of the Revised Penal. The im plementing r u les of R.A. No. 10952
providing prospectivity of this law is i n valid. (Inmates of the New
Bilibid Prison v. De Lima, G.R. No. 212719, June 25, 2019)
5. P r e m a ture release — A convict, who was prematurely
released based on a wrong computation of actual detention and good
conduct time allowances, can be re-arrested to complete the service
of his sentence. Partial service of sentence will not extinguish his
criminal li ability. Service of sentence as a mode of extinguishing
criminal liability under Ar t i cle 89 of the Revised Penal Code must
be in full. The prisoner's re-arrests would not place him t w ice in
jeopardy because his re-incarceration is merely a continuation of
the penalty that he had not completely served due to the erroneous
act of the warden, it is not a new or subsequent conviction. Neither
would his re-arrest deprive him of l i b erty w i t h out due process of
law, because he was not yet entitled to liberty at th e t ime he was
released. Service ofpenalties and allowance for good conduct are
governed by the Revised Penal Code and do not depend upon the
good faith of the warden and of the prisoner. (People v. Tan, G.R. No.
L-21805, February 25, 196'7)
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V. PENALTIES 377
6. H ei n o u s c r i m e — Th e r e a re t h r e e b enefits given by
the controversial R.A. No. 10592, to wi t: ( 1) credit of p r e ventive
imprisonment; (2) GCTA for detention prisoner; and (3) GCTA for
convicted prisoner.
a. Cr e d i t f o r p r e v e n t iv e i m p r i sonment — Cr e d it
o f preventive imprisonment is governed by Ar t i cle 29 of th e
Revised Penal Code as amended by R.A. No. 10592. Under
this p r ovision, o f fenders wh o h a v e u n d e rgone p r eventive
imprisonment shall be credited in the service of their sentence
except in th e f ollowing cases: (1) when they are recidivists,
(2) when they have been convicted previously twice or more
times of any crime; and (8) when upon being summoned for
the execution of their sentence they have failed to surrender
voluntarily.
b. G C T A f or det e n t i o n p r i s o n er — GCTA for
detention prisoner is governed by Articles 29 and 97 of the Code
as amended by R.A. No. 10592. Under Article 29, whenever an
accused has undergone preventive imprisonment for a period
equal to the possible maximum i m p r i sonment of the offense
charged, he shall be released immediately;for purposes of
immediate release, the computation of preventive imprisonment
shall be the actual period of detention with GCTA. However,
the entitlement of GCTA for detention prisoner is subject to
a qualifying pr o viso, which is q u o ted as follows: "Provided,
finally, T ha t r ecidivists, habitual d e li nquents, escapees and
p ersons charged with h einous crimes are excluded from t h e
coverage of this Act."
c. G C TA for con v i c te d p r i s o n er — GCTA for
convicted prisoner is governed by A r t i cle 97 of th e Code as
amended by R.A. No. 10592. Unlike Ar t i cle 29 on GCTA for
detention prisoner, Article 97 on GCTA for convicted prisoner
does not provide an exclusionary or disqualification clause or
qualifying proviso.
The last paragraph of Ar t i cle 29 contains provisions on
GCTA for pr eventive imprisonment. The phrase subsequent
to the w o rds "p r o vided fin a lly" in A r t i c le 2 9 i s a pr o v i so,
which contains the exceptions to the rule under the provision.
Settled is the rule that a proviso containing the exceptions will
merely qualify the provision containing the general rule that
immediately preceded it.
 CRIMINAL LAW REVIEWER
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In People v. Tu l u gan, G.R. No. 227363, March 1 2, 2 019, it
was held that the office of the proviso qualifies or modifies only the
phrase immediately preceding it or restrains of limits the generality
of the clause that it immediately follows. A proviso is to be construed
with reference to the immediately preceding part of the provisions,
to which it i s a t t ached, and not t o th e st atute itself or th e other
sectionsthereof.
Applying the Tulugan principle, the proviso in Ar t i cle 29 on
"the exclusion of heinous criminals, habitual delinquents, recidivists
and escapes from the coverage of R.A. No. 10592" merely qualifies
the provision in A r t i cle 29 on G CTA fo r d etention prisoner. The
qualifying effect of the proviso under Article 29 cannot extend to the
provision under Article 97 on GCTA for convicted prisoner. Hence,
the author of t h i s b ook h u m bl y s u b mi t t h a t h e i n ous crim inals,
habitual d e l i n quents, r e cidivists and escapes ar e d i s q ualified
from the benefit of GCTA for detention prisoner; but they are not
disqualified from the benefit of GCTA for convicted prisoner
EFFECTS OF THE PENALTIESACCORDING TO THEIR RESPECTIVE
NATURE
Disqualification
The penaltiesof perpetual or temporary absolute disqualifica-
tion for public office shall produce the following effects (Article 80 of
the Revised Penal Code):
1. T h edeprivation of the public offices and employments
which the offender may have held even if conferred by popular
election.
2. T he d e p r ivation of the right to vote in any election
for any popular elective office, or to be elected to such office.
3. T he di s q u a lification f o r t h e offices or p ubl i c
employments and for the exercise of any of the rights mentioned.
In case of temporary disqualification, such disqualification
as comprised in paragraphs 2 and 3 ofthis Article shall last
during the term of the sentence.
4. Th e l o s s o f al l r i g h t s t o r e t i r ement pa y o r o t h er
pension for any office formerly held. (Article 80 of the Revised
Penal Code)
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V. PENALTIES 379
The penalties of perpetual or temporary special disqualification
for public office, profession, or calling shall pr oduce the following
effects (Article 81 of the Revised Penal Code):
1. T h ed eprivation of the office, employment, profession
or calling affected;
2. Th e d i s q u alification for h o l d ing si m i lar o f fices or
e mployments either p erpetually o r d u r i n g t h e t e r m o f t h e
sentence, according to the extent of such disqualification.
T he perpetual or t e m porary special disqualification for t h e
exerciseofthe 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 82 of the Revised Penal Code)
1. P le b i s c ite — Th e r i g ht t o v o t e i n a p l e b i scite is n o t
mentioned in Article 32. Hence, despite of the penalty of perpetual
or temporary special disqualification for the exercise of the right of
suffrage, a convict can still exercise his right to vote in a plebiscite.
(2011 Bar Exam)
2. Cla s s i fication o f D is q u a lification — T h e p e n a l t y
o f disqualification m a y b e i m p o sed a s p r i n c ipal o r accessory.
Disqualification m a y b e a b s olut e or special, or temporary or
perpetual.
The classification of disqualification as absolute or special has
something to do with the effects of this penalty.
If disqualification is absolute, the effects of the imposition of such
penalties are: (1) deprivation of the public offices and employments
with loss of retirement and other pension benefits; (2) deprivation
of the right tovote or to be elected; and (3) disqualification for the
offices or public employments and for the exercise of any of the rights
mentioned.
If disqualification is special, the e ffects of the i m p osition of
such penalty are: (1) deprivation of the public office, employment,
profession or calling affected; (2) disqualification for holding similar
officesor employments; (3) deprivation of the right to vote or to be
elected; and (4) prohibition to hold any public off ice.
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The classification of disqualification as perpetual or temporary
has something to do with the duration of the penalty.
Perpetual disqualification deprives or disqualifies the convict
from the exercise of rights during his lifetime.
Temporary disqualification deprives or disqualifies the convict
from the exercise of rights during the term of the sentence. However,
as a principal penalty, its duration ranges from six years and one
day to 12 years. (Article 27)
Suspension
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 88 of the Revised Penal Code)
Civil Inter di ction
C ivil interdiction shall deprive the offender during th e t i m e
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 m anage his property and of the ri ght t o dispose of
such property byany act or any conveyance inter vivos. (A rticle84 of
the Revised Penal Code; 1956 Bar Exam)
T he principal p enalties, which i n clude civil i n t e r diction as
an accessory penalty, are death penalty,reclusion perpetua and
reclusion temporal. (Articles 40 and 41 of the Revised Penal Code;
1956 Bar Exam) The penalty of prision correccional in its medium
and maximum periods foradultery does not include the accessory
penalty of c i vi l i n t e r diction. ( Maquilan v . 3 f a q u i l an, G .R . N o .
155409, June 8, 2007)
Bond
It shall be the duty of any person sentenced to give bond to keep
the peace, to present two sufficient sureties who shall un dertake
that such person will not commit the offense sought to be prevented,
and that in case such offense be committed they will pay the amount
determined by th e court i n i t s j u d gment„ o r o t h erwise to deposit
J9JC9B0M
V. PENALTIES 381
such amount in the office of the clerk of the court to guarantee said
undertaking.
T he court s h al l d e t ermine, according t o i t s d i s cretion, t h e
period ofduration of the bond.
Should the person sentenced fail to give the bond as required,
he shall be detained for a period which shall in no case exceed six
months, if he shall have been prosecuted for a grave or less grave
felony, and shall not exceed 30 days, if for a light felony. (ArticLe85
of the Revised Penal Code)
Effect of Pardon
A pardon shall not w ork th e r estoration of the ri ght t o hold
public office, or the right of suffrage, unless such rights be expressly
restored bythe terms of the pardon.
A pardon shall in no case exempt the culprit from the payment
of the civil indemnity imposed upon him by the sentence. (Article 86
of the Revised Penal Code)
A person, who was pa r d oned for t h e c r i m e p u n i s hable by
reclusion perpetua, cannot run in the senatorial race if the terms of
the pardon has not expressly restored his right to hold public office or
remitted theaccessory penalty of perpetual absolute disqualification.
Under Ar t i cle 36 of th e Revised Penal Code, a pardon shall not
work the restoration of the r i ght t o h old public office (elective or
appointive) unless such right be expressly restored by the terms of
the pardon. Under Article 41, the penalty of reclusion perpetua shall
carry with it 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. (2004 and
2015 Bar Exams)
President Estrada was convicted of p l u nder an d sentenced
to suffer reclusion perpetua. President Arro yo pardoned him. The
pardon expressly declares that former President Estrada is hereby
restored to his civ il a nd p o l i t ic al r i g h t s. H e is e l i gible to r un a s
Mayor because the terms of the pardon expressly restored his civil
and political rights, which naturally include the right to seek public
elective office. This is a substantial compliance with the requirement
of express restoration of ri ght t o h old office in A r t i cles 36 and 41
of the Revised Penal Code. (Risos-Vidal v. Li m, G .R. No. 206'6'66;
January 21, 2015)
 382 CRIMINAL LAW REVIEWER
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Costs
Costs shall include fees and indemnities in the course of the
judicial proceedings, whether they be fixed or unalterable amounts
previously determined by law or regulations in force, or amounts not
subject to schedule. (Article 87 of the Revised Penal Code)
Order of Payment
In case the property of the offender should not be sufficient for
the payment of all his pecuniary liabilities, the same shall be met in
the following order:
1. T h e r e p aration of the damage caused;
2. I n d e m n i fication of consequential damages;
3. T h efi n e ; and
4. Th e costs of the proceedings. (Article 88 of t h e
Revised Penal Code)
If in a judgment of conviction for violation of B.P. Blg. 22, the
accused was sentenced to pay a fine of P20,000 and required to pay
the complainant P20,000 as actual damage, he is not allowed to pay
the fine ahead of the settlement of the civil award.
Forfeiture and Confiscation
Under Ar t i cle 45 of th e R evised Penal Code, every penalty
i mposed for th e c ommission of a f e l ony sh all c a rr y w i t h i t t h e
forfeiture of the proceeds of the crime and the instruments or tools
with which it w a s committed. Such proceeds and instruments or
tools shall be confiscated and forfeited in favor of the Government,
u nless they be th e p r operty of a t h i r d p e r son not l i a ble for t h e
offense, but those articles which are not subject of lawful commerce
shall be destroyed.
Section 20 of R.A. No. 9165 has adopted the rule in Article 45
of the Revised Penal Code. However, Section 20 of R.A. No. 9165
further provides that during the pendency of the case in the Regional
Trial Court, no property, or income derived therefrom, which may be
confiscated and forfeited,shall be disposed, alienated or transferred
and the same shall be in custodia legis and no bond shall be admitted
for therelease of the same.
While the prosecution was presenting its evidence in a case for
a ttempted sale of dangerous drugs, accused filed a motion for th e
J9JC9B0M
V. PENALTIES 383
release of the Toyota Innova, which was used in the commission of
the crime charged because he had only borrowed the vehicle from
his brother, the registered owner. (201 7 Bar Exam)
The court must deny the motion to release vehicle. Article 45 of
the Revised Penal Code and Section 20 of R.A. No. 9165 prohibits the
confiscation and forfeiture of an instrument used in the commission
of the crime if such "be the property of a third person not liable for the
offense." However, the criminal ins trument shall only be returned
to the owner, who is not an accused in the criminal case, after the
rendition of t h e j u d gment. Or dering th e r e l ease of th e cr i m i nal
instrument b efore th e r e n di tion o f t h e j u d g ment i s p r e m ature,
considering that Section 20 of R.A. No. 9165 expressly forbids the
disposition, alienation, or transfer of property confiscated from the
accused during th e p endency of th e p r oceedings in th e Regional
T rial C o u rt . S e ction 2 0 f u r t h e r e x p r essly r e q u ires t h a t s u c h
property should remain in custodia legis in all that time to preserve
it as evidence and to ensure its availability as such. Photographs
of such instrument mi ght not fil l i n f u l l y t h e evidentiary need of
the prosecution. (PDEA v. Brodett, G.R. ¹. 19 6 8 9 0,September 28,
2011)
The accused was convicted of complex crime of rape through
forcible abduction. Immediately after the judgment of conviction was
promulgated, accused filed in the RTC, Branch 8 a motion for the
release of the Toyota Innova used in committing forcible abduction
pending in Branch 8 because he had only borrowed the vehicle from
his brother, the registered owner. The motor vehicle was also used
in committing attempted sale of dangerous drugs pending with RTC
Branch 29. (2017 Bar Exam)
RTC Branch 8 must deny the motion to release motor vehicle.
Since the motor vehicle is also an instrument of attempted sale of
dangerous drugs, ordering the release of the vehicle will deprive the
RTC Branch 29 of its authority to maintain legal custody over the
same.
APPLICATION OF PENALTIES
The Spanish penal system under the Revised Penal Code is
designed to provide variant punishments, the degree of which is in
proportion to the degree of criminality in th e mind of the accused.
The prescribed penalties can be adjusted by degree or period in
t he light o f t h e c i r cumstances attending th e commission of t h e
 384 CRIMINAL LAW REVIEWER
VOLUME I
crime that measure the extent of his cri m inal m i nd. These penal
rules should not be abrogated because they are made to favor the
accused by providing a reasonable and proportionate punishment
for committing a crime. This system of penalties is in accordance
with th e C l assical Theory, which ha s endeavored to establish a
mechanical and direct proportion 'between crime and penalty. (I 956
Bar Exam)
1. D eg r e e a n d P e r i o d — De g ree of penalty refers to full
extent of a p enalty p r escribed by law an d t h a t o f t h e g r aduated
penalty. Ex a m ple: Th e p e n a lty f ix e d f o r h o m i c ide is re c l usion
temporal; if t he crime of homicide is frustrated, the fixed penalty
shall be graduated to prision mayor. The fixed penalty of reclusion
temporal and the graduated penalty ofprision mayor are degrees
of penalty. Prision mayor is t h e p e nalty n e xt l o wer in d e g ree to
reclusion temporal.
Period is the one-third portion of a divisible penalty.
2. P r escribed Penalty in Period and Proper Ixnposable
Period — Period may be a prescribed penalty in period or a proper
imposable penalty.
The penalty of arresto mayor in its minimum period prescr bed
by Article 287 of th e Revised Penal Code, for light coercion is a
prescribed penalty in period. If the crime is attended by mitigating
circumstance of confession,' arresto mayor in i ts m i n i m um p e r iod
shall be applied in its minimum period pursuant to Article 64 of the
Revised Penal Code. The mini mum period of ar resto mayor i n i t s
minimum period is the proper imposable period. (1957 Bar Exam)
3. M ax i m u m P e n a lt y an d M i n i m u m P e n a lt y — T h e r e
are two penalties under the I n determinate Sentence Law, to w it :
m aximum p enalty an d m i n i m u m p e n alty. T h er e i s n o m e d i u m
p enalty under th e I s l aw. Th e m a xi mu m p enalty i s t h a t fi xe d i n
accordance wit h t h e R e v i sed P enal C o de, w hile th e m i n i m u m
penalty is that fixed within the range of the penalty next lower in
degree than that prescribed by law.
4. Com p o u n d P en a l t y a nd C o m p l e x P en a l t y
Compound penalty is composed of two distinct penalties. Reclusion
perpetua to d eath p rescribed for m u r d er is a c o mpound penalty.
Complex penalty is composed of three distinct penalties. Reclusion
temporal to d e a th f or t r e a son committed by r e s ident a l i e n s a
complex penalty.
J9JC9B0M
V. PENALTIES 385
Compound period is c o mposed of t w o d i s t i n ct p e nalties in
period. Prision correccional in i ts m e d ium a nd m a x imum p eriods
prescribed for theft is a compound period. Complex period is
composed of three penalties in period.Prison correccional in its
maximum period to prision mayor in its medium period prescribed
for robbery isa complex period. Complex period is considered as a
complex penalty.
5. I n d i v i s i b l e Pe n a l t y an d Di v i s i b le P e n a l t y — A
penalty is indivisible if it cannot be divided into three for purposes
of producing minimum, medium and maximum periods. Reclusion
perpetua, reclusion perpetua to d e a th, d e ath p e nalty, p e rpetual
disqualification, and public censure are indivisible penalties for they
are not subject to division.
A penalty is divisible if it can be divided into three for purposes
of producing minimum, medium and maximum periods. There are
four kinds of divisible penalty, which are governed by Article 64 of
the Revised Penal Code, to wit: (1) penalty composed of three periods
fixed in accordance with Article 76; (2) penalty not composed of three
periods computed in accordance with Article 65; (3) complex penalty
under Article 77, par. 1; and (4) penalty without specific legal form
under Article 77, par. 2.
a. P e n a l t y C o m p osed of T h r e e P e r i ods — Ar t i c le
76 expressly fixed the range of the period for reclusion temporal,
prision mayor, temporary disqualification, prision correccional,
destierro, suspension, arresto mayor, and arresto menor. To find
the range of the periods of any of the aforesaid penalties, one
will simply read Article 76. If the crime committed is homicide
and there is one m i t i gating circumstance of confession, the
prescribed penalty of re clusion temporal shall be a pplied in
its minimum period because of Article 64. Article 76 expressly
states that t h e r a n g e of t h e m i n i m u m p e r iod of re c lusion
temporal is from 12 years and 1 day to 14 years and 8 months.
Within the range of this period, the maximum penalty under
the Indeterminate Sentence Law shall be fixed.
Under Article 76, the range of the periods of the penalties
are as follows:
Maximum 17 years, 4 months and 1
day to 20 years
Reclusion Temporal M edi u m 1 4 years, 8 m o nths a n d
1 day to 17 years and 4
months
 386 CRIMINAL LAW REVIEWER V. PENALTIES 387
VOLUME I

Minimum 12 years and 1 day to 14 and 1 day to 6 months. Hence, the time included in the duration
years and 8 months of the minimum period of arresto mayor is only 1 month while
Maximum 10 years and 1 day to 12 that of the medium and maximum is 2 months.
years b . P en a l t y N o t C o m p o sed o f T h r e e P e r i o d s -
Prision Mayor Medium 8 years and 1 day t o 10 Penalties w ith d i v i s ible d ura tion, t he p e riods of w h i ch a r e
years not expressly mentioned in Article 76 are called "penalties not
Minimum composed of three periods"; since Article 76 has not fixed the
6 years and 1 day to 8 years
duration of their periods, they must be computed in accordance
Maximum 4 years, 2 months and 1 day with Article 65. Under this provision, the time included in the
to 6 years duration of penalty shall be divided into three equal portions
Prision Correeeional Me d i u m 2 years, 4 months and 1 day and periods shallbe formed from each portion.
to 4 years and 2 months
The penalty for malversation under par. 2 of Article 217
Minimum 6 months and 1 da y t o 2 of RPC is prision mayor in its minimum and medium periods.
years and 4 months The range of the periods of this penalty is not found in Article
Maximum 4 months and 1 day t o 6 76. Considering that t h i s p enalty i s n o t c omposed of th r ee
months periods, the time included in the penalty prescribed should be
Arrest Mayor divided into three equal portions, with each portion forming
Medium 2 months and 1 da y t o 4
months one period, pursuant to Ar t i cle 65. (Zafra U. People, G.R. No.
176317, July 23, 2014)
Minimum 1 month an d 1 day to 2
months The duration of "p r i s i on m a y or i n i t s m i n i m u m a n d
medium period" is6 years and 1 day to 10 years. To determine
Maximum 21 days to 30 days "the time included in the duration," deduct "one day" and the
Arresto Menor Medium 11 days to 20 days lower limit of the prescribed penalty from its upper limit.
Minimum 1 day to 10 days 10 years - - - - - - - - -- - - u p per limit
Maximum 4 years, 2 months and 1 day - 6 years and 1 day ---- - l ower limit
to 6 years
- 1 day
Destierro Medium 2 years, 4 months and 1 day
to 4 years, and 2 months
4 years ---- - t ime included in the duration of penalty
Minimum 6 months and 1 day t o 2
years, 4 months Four years, which is "the time included in the duration,"
shall be divided into three equal portions.

T he range o f t h e m i n i m u m , m edium an d m a x i m u m 4 years

periods fixed in accordance with Ar t i cle 76 is one-third equal
portion of the respective penalties except arresto mayor. Under
Article 76, the minimum period of arresto mayor ranges from
1 month and 1 day to 2 months; medium period from 2 months 1 year an d 4 m o n th s - -------- one th ir d p o r tion of t h e
and 1 day to 4 months; and maximum period from 4 months penalty

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 888 CRIMINAL LAW REVIEWER
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The minimum, medium and m aximum periods shall be
f ormed out of th e 3 equal portions of the penalty. The t i m e
included in the duration of each period is 1 year and 4 months.
6 years
+ 1 year and 4 mo n t h s
7 y ears and 4 m o n t h s
+ 1 year and 4 mo n t h s
8 years and 8 m o n t h s
+ 1 year and 4 mo n t h s
10 years
Thus, the minimum p eriod of the prescribed. penalty of
"prision mayor in it s mi n i m um a nd m e dium periods" ranges
from 6 years and 1 day to 7 years and 4 months; its medium
periodranges from 7 years, 4months and 1 day to 8 years and
8 months; its maximum period ranges from 8 years, 8 months
and 1 day to 10 years. (Zafra v. People, G.R No. 176817, July
23, 2014)
c. Com p l e x P e n a lty — Complex penalty is composed
of three distinct penalties. The periods of complex penalty are
f ormed in accordance with A r t i cl e 77, par. 1. A pplying t h i s
provision, each of the components of the complex penalty shall
form a period; the lightest of them shall be the minimum, the
next the medium, and the most severe the maximum period.
Reclusion t e mporal to d e a t h pr e s c ribed f o r t r e a s on
committed by a resident alien under Ar ti cle 114 is a complex
penalty. This penalty is composed of three distinct penalties,
namely: re clusion t e mporal, reclusion perpetua a n d d e a t h
penalty. Out of these three components, periods shall be formed
in accordance with Article 77, par. 1. Thus, reclusion temporal,
which is the lightest of the three, shall be the minimum period
of this penalty; reclusion perpetua, which is the next penalty,
shall be the medium period; death penalty, which is the most
severe, shall be the maximum period. (1967 Bar Exam) Thus,
in the absence of modifying circumstances, reclusion temporal
to death prescribedfor treason shall be applied in its medium
period,and that is,reclusion perpetua.
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V. PENALTIES 889
Prision correccional in it s ma x i m um p e r iod to p r i s ion
mayor in its medium period prescribed for simple robbery under
Article 294 of RPC is a complex penalty since it is composed
of three distinct penalties. Thus, pr i s ion correccional in i t s
maximum period, which is the lig htest of the three, shall be
the minimum period of this prescribed penalty. Prision mayor
in its minimum period, which is the next penalty, shall be the
medium period. Prision mayor in its medium period, which is
the most severe, shall be the maximum period. In sum, prision
correccional in it s ma x i m um p e riod to p r i s ion m ayor in i t s
medium period prescribed for robbery shall be broken down as
follows:
Minimum: Pr i si o n c orreccional in its maximum period
(4 years, 2 months and 1 day to 6 years)
Medium: Pri si on m a y orin its minimum period
(6 years and 1 day to 8 years)
Maximum: Pri si o n m ayor in its medium period
(8 years and 1 day to 10 years)
see: People v. Dela Cruz, G.R. No. 1681 78, December 24, 2008, En
Banc; People v. Barrientos, G.R. No. 119886, January 28, 1998,
En Banc; People v. Castillo, G.R. No. L-11798, May 19, 1961,
En Banc; People v. Diamante, G.R. No. 180992, September 4,
2009; and People v. Lumiwan, G.R. Nos. 122768-66, September
7, 1998.
Reclusion temporal i n it s me d i um p e r i od t o r e c lusion
perpetua prescribed for sexual abuse under Section 5(b) of R.A.
No. 7610 is a complex penalty since it i s composed of three
distinct penalties. Applying A r t i cle 77, par. 1, t hi s complex
penalty can be broken down as follows:
Minimum: Recl u s i on temporalin its medium period
(14 years, 8 months and 1 day to 17 years
and 4 months)
Medium: Recl u si o n temporal in its maximum period
(17 years, 4 months and 1 day to 20 years)
Maximum: Recl u s i on perpetua
see: People v. Morante, G.R. No. 187782, November 28, 2012
 390 CRIMINAL LAW REVIEWER V. PENALTIES 391
VOLUME I

d. P en a l t y W it h o u t Spe c i fi c L e g a l F orm Stage of Execution

Reclusion t e mporal to reclusion p e rpetua p r e s cribed f o r
mutilation under A r t i cle 262 is a p enalty w i t h out a spec fic Frustrated stage
form. (People v. Romero, G.R. No. 112985, April 21, 1999) The Attempted stage
duration of its periods is not fixed by Article 76. This penalty
Nature of Participation
cannot be divided into three equal portions in accordance with
Article 65 since it has an indivisible component, and that.. is Accomplice
reclusion perpetua. It is n ot a c omplex penalty under Art i c le Accessory
7 7, par. 1 since it is merely composed of two distinct penalti s.
Privileged Mitigating Cir cumstance
In sum, this i s a compound penalty. Thus, its periods shall
be determined in a ccordance with A r t i cle 77, par. 2, w h i ch Minority 1
provides that t h e p e riods shall b e d i stributed, applyin g :"or Incomplete justification or exemption 1 or 2
analogy the prescribed rules. Applying Ar t i cle 77, par. by (Except: Accident)
analogy, the maximum period shall be formed out of the niost
severe penalty, and that is, reclusion perpetua. Applying Article Obsolete Rule — Under Article 68(1), a discretionary penalty
65 by analogy, the d u r a tion of re c lusion temporal s h a ll b e shall be imposed, but always lower by at least two degrees than the
divided into two equal portions and the minimum and medium prescribed penalty, upon a person under 15 but over nine years of
periods shall be formed from each portion. Applying Article , 7, age, who is not exempt from liability by reason of the court having
paragraph 2, reclusion temporal to reclusion perpetua is broken declared that he acted with discernment. However, under Section 6
down as follows: of R.A. No. 9844, a child in conflict with the law, who is 15 years of age
or under at the time of the commission of the crime, is exempt from
Minimum: Low e r ha lf of reclusion temporal criminal liability. Thus, the rule under Article 68(l) on graduation
of penalty two degrees lower is now obsolete. Since the child of such
(12 years and 1 day to 16 years)
age is now exempt from criminal liability, there is no penalty that
Medium : H i gh e r h alf of reclusion temporal can be reduced by atleast two degrees.
(16 years and 1 day to 20 years)
Maximum: Re c l u sion perpetua Rules for Graduat ing Penalti es
Graduated penalty is that which is inferior to the fixed penalty
see:People v. Macabando, G.R. No. 188708, July 31, 2018;
by oneor m ore degrees in the graduated scale of penalties.Article
People v. Romero, G.R. No. 112985, April 21, 1999; Gonzales
71 providesthe graduated scale of penalty (scale no. 1) as follows:
v. People, G.R. No. 159950, February 12, 2007; and People v.
Oliva, G.R. No. 122110, September 26, 2000 Death
Reclusion perpetua
GRAD U ATION OF PENALTY
Reclusion temporal
The number of degrees to which a fixed penalty shall be Prision mayor
graduated is governed by Articles 50 to 57, 64,pars. 5, 68, and Prision correccional
69. The factors to be considered are stage of execution, nature of
Arresto mayor
participation of offender, and t h e p r esence of special m i t i gating
Destierro
circumstance, or privileged mitiga'ting circumstances. Under these
p rovisions, the fixed penalty shall b e gr a duated by one or m o r e Arresto menor
degrees onthe basis of the following factors:(2018 Bar Exam) Public censure
Fine

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VOLUME I

In scale of penalties in a ccordance with i t s s everity u n d er

Article 70 forpurposes of successive service of sentences, arresto Maximums Prescribed penalty
Prisi on correcci onal Medium I
menor is listed below arresto mayor. In the graduated scale ender
Article 71 for purposes of graduation of penalties, destierro is listed Minimum One degree lower
below arresto mayor. (1966Bar Exam ) Maximum
a. G en e r a l R ule —Graduated penalty is generally a single Arresto mayor Medium Two degrees lower
penalty, which is i m mediately inferior to th e penalty or t o esser Minimum
component of the compound or complex penalty prescribed by law
for the crime committed. Arresto mayor in it s ma xim um period to prision correccional
Reclusion t e mporal i s i m me d i a tely i n f e r i or t o reclusion in its medium period is immediately inferior to prision correccional
perpetua prescribed for simple rape in accordance with the scale of in it s ma x i m um p e r iod t o p r i s i on m a y or i n it s me d i um p e r iod
graduated penalties. Hence, reclusion temporal is the penalty one prescribed for simple robbery. Hence, the former is the penalty one
degree lower than reclusion perpetua. degree lower than the latter. (People v. Dela Cruz, G.R. No. 1681 78,
December 24, 2008; People v. Bacungan, G.R. No. 152481, April 5 ,
Reclusion temporal is i m m e d i a tely i n f e r ior t o th e l e s s er 2005)
component of a compound penalty of re clusion perpetua to death
prescribed for murder in accordance with the scale ofgraduated Maximum
Prision mayor Medium
penalties. Hence, reclusion temporal is the penalty one degree lower
Minimum Prescribed penalty
than reclusion perpetua to death.
Maximum
b. Pe n a l t y i n P e r iod —If a penalty in period is prescribed Prision correccional edium
by law for the crime committed, the graduated penalty must also Minimum One degree lower
be in period. The graduated penalty in period must be immedia ely
Maximum
inferiorto the prescribed penalty in period. Ifthe prescribed penalty Arresto mayor Medium
is composed of asingle period, the graduated penalty must also be Minimum Two degrees lower
composed of a single period. If the prescribed penalty is a compound
Maximum
period,the graduated penalty must also be a compound period. If
Destierro Medium
the prescribed penalty i s complex period, the gr aduated penalty
Minimum
must also be complex period.
Prision correccional in it s mi n i m u m p e r i od is i m m e d iatel c. Pe n a l t y i n F u l l a n d P e n a l t y i n P e r i o d — I f t h e
ey
inferior to prision correccional in it s medium period prescribed for penalty prescribed by law forthe crime committed is composed of
conspiracy to commit sedition. Hence, the former is the penalty one a full penalty and penalty in p eriod, the graduated penalty must
degree lower than th e l a t t er. (People v. Co Pao, G.R. ¹. 3 88 2 9 , be complex period. This graduated penalty m ust be i m m ediately
October 10, 1 988, En B a n c; P eople v. Ha l o ot, G .R. N o. 45 4 90, inferiorto the prescribed penalty.
September 15, 1987)
Prision mayor in its maximum period to reclusion temporal in its
Arresto mayor in its maximum period to prision correccional in medium period (complex period) is immediately inferior to reclusion
its minimum period is immediately inferior to prision correcc onal temporal in its maximum period to reclusion perpetua prescribed for
i n it s m e d i u m and m a x i mu m p e r i ods p r e scribed f o r reckless attempted robbery with homicide. (Article 297) Hence, the former is
imprudence resulting in homicide. Hence, the former is the penalty the penalty one degree lower than the latter. (see: Peoplev. Bocalan,
one degree lower than the latter. (Abueva v. People, G.R. No. 134887, G.R. ¹ . 14 1 5 27,September 4, 2008)
September 27, 2002)

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 394 CRIMINAL LAW REVIEWER
VOLUME I
Reclusion perpetua Prescribed penalty
Reclusion temporal
Maximum ) penalties in Article 71. Hence, death shall be considered f' or purposes
Medium
Minimum
One degree lower
Maximum
Prision mayor Medium
Prision correccional
Minimum
Maximum
Medium
} Two degrees lower
Minimum
Graduating Death Penalty by One Degree Lower
Death shall be excluded from the scale of graduated per alties
under Article 71 of the Revised Penal Code pursuant to R.A. No.
9346, which prohibits the imposition of death penalty. In sum, R.A.
No. 9346 has an amendatory effect to the Revised Penal Code in the
sense that death penalty is deemed delisted in the scale of graduated
penalties under Article 71. (People v. Bon, G.R. No. 166401, October
80, 2006'; People v. Abellera, G.R. No. 166'61 7,July 8, 2007; People
v. Brioso, G.R. No. 18251 7,March 18, 2009; People v. Gambao, G.R.
¹. 1 72707,October 1, 2018)
For example, a child i n conflict w it h t h e la w i s convicted of
qualifiedrape. The penalty for qualified rape is death. However, R.A.
No. 9346 has excluded death penalty from the scale ofgraduated
penalties in Article 71. Hence, reclusion perpetua wh i ch is now th
hiighestpenalty in the said scale, shall be considered for purposes
of graduation. Since privileged mitigating circumstance of minority
is present, reclusion perpetua shall, be reduced to one degree lower,
and that is reclusion temporal.
Other Viezv — F or p u r p o ses of graduation of p e nalty, t h e
p enalty of death is still th e penalty to be reckoned with. In s u m ,
death penalty is not excluded from the scale of graduated penalties
by R.A. No. 9346. In sum, R.A. No. 9346 has no amendatory effect
to the provisions of Revised Penal Code such as Article 71 except
t hat it p r ohibits th e i m position of penalty. Death penalty i s st i l l
listed as number one in the scale of graduated penalties. (People v.
Sarcia, G.R. No. 169641, September 10, 2009; People v. Arpon, G.R.
¹. 18856'8,December 14, 2011; People v. Gulpe, G.R. No. 126'280,
March 80, 2004; People v. Quitorio, G.R. ¹. 11 6 7 6 5,January 28,
1998)
Fo r example, a child in conflict w it h t h e la w i s convict d f
U 1ified rape. The penalty for qualified rape is death. Republic Act
qua
J9JC9B0M
V. PENALTIES 395
No. 9346 has notexcluded death penalty from the scale of graduated
of graduation. Since the privileged mitigating circumstance of minor
is present,death penalty shall be reduced to one degree lower, and
that is reclusion perpetua.
The Sarcia rule was an abandonment of the Bon principle. In
People v. Jacinto, G.R. No. 182239, March 16, 2011, the Supreme
Court expressly rejected the application of the Bon principle, and
reaffirmed the Sarcia case. However, in People v. Gambao, G.R. No.
172707, October 1, 2013, the Supreme Court, En Banc, reverted to
the Bon doctrine.
In People v. Deliola, G.R. No. 200157, August 31, 2016, the
S upreme Court, T h i r d D i v i s ion s ai d t h a t t h e c o n t r olling j u r i s -
prudence is the Sarcia c ase. However, the Supreme Court, Third
Division in Deliola case cannot abandon Bon case and Gambao case
since in these cases the Supreme Court is sitting in En B a n c. For
purpose of the bar exam, it is advisable to discuss both views.
Graduating Reclusion Perpetua by One Degree Higher
T he penalty f o r s y n d icated chil d p o r nography u n der R . A .
No. 9775 is re c lusion perpetua. U n d er R . A. N o . 1 0 1 75, if c h i l d
pornography is committed t h r ough a computer system, reclusion
perpetua shall be graduated one degree higher, and that is, death
penalty. However, under the Constitution, to impose death penalty
C ongress through l e gislation m us t d e fine a h e i n ous cr im e a n d
expresslyimpose death penalty ifthere is a compelling reason to do
so. Hence, death penalty canno't be imposed through the application
of the rule on graduation of penalty. Moreover, R.A. No. 9346
prohibits the imposition of penalty. Lastly, under Article 74 of the
R evised Penal Code, if th e la w p r escribes a penalty hi gher th an
reclusion perpetua without specifically prescribing death penalty, the
court shall impose reclusion perpetua with t he accessory penalties
for death penalty under Article 40.
In sum, while one degree lower of death penalty is reclusion
perpetua (Article 71), one degree higher of reclusion perpetua is not
death, but reclusion perpetua with the accessory penalties for death
penalty. (Article 74)
IMPOSITION OF INDIVISIBLE PENALTIES
Reclusion perpetua, reclusion perpetua to d e a th a nd d e a th
penalty are indivisible penalties.
 396 CRIMINAL LAW REVIEWER
VOLUME I
S ingle In d i v i s i b l e P e n a l t y
If the penalty p r escribed by la w i s de a th ( s uch as t h at f o r
qualified rape), or reclusion perpetua (such as that for simple rape),
it shall b e a pplied by t h e court r e gardless of any m i t i g ating or
aggravating circumstances that may have attended it. (Article 6'8,
par. 1 of the Revised PenaL Code; People v. Amit, G.R. No. L-29066,
March 25, 1970)
S pecial m i t i g a t i n g circumstance, w hich r e q u i r e s the
g raduation of p enalty b y o n e d egree, is f ound i n A r t i cl e 6 4 o n
rules for the application of divisible penalties. Article 68 on rul es
for application of i n di visible penalty ha s no p r ovision on special
mitigating circumstance. (People v. Takbobo, G.R. No. 102984, June
80, 1998) In sum, if th e penalty is death or re clusion perpetua, it
shall not be lowered by one degree, no matter how many mitigating
circumstances are p r esent. (People v. Ra m os, G.R. ¹ . 1868 9 8 ,
November 28, 2000) The court shall simply apply this penalty as it is
regardless of the attendance of modifying circumstances. But where
the imposable penalty is death penalty, the same shall be reduced to
reclusion perpetua because of RA. No. 9846.
Accused is found guilty of qualified rape, which is punishable
by ed a th . Even if th ere are mitigating circumstances of confession
and surrender, the court shall apply the penalty of death. Special
mitigating circumstance shall not be considered since it can only
be appreciated if the penalty is divisible, and not if th e penalty is
indivisible such as death penalty. But since the imposition of death
is prohibited by R .A. No. 9846, this penalty shall b e r e duced to
reclusion perpetua.
A ccused is found guilty of si m ple rape which is punishabl
by reclusion
r perpetua. Even if t h e re are mit i g ating circumstances
of confession and surrender, the court shall apply th e penalty of
reclusion perpetua. S pecial mit i g ating c ircumstance shall n ot b e
considered since it can only be appreciated if the penalty is divisible
but it cannot be appreciated if th e p enalty i s i n d i visible such as
reclusion perpetua. (1980 and 1997 Bar Exams)
Two Indivisible Penalties
Where the penalty is reclusion, perpetua to death, the crucial
factor to be considered in determining the imposable penalty is the
presence or absence of aggravating circumstance. Under Article 68,
par. 2, the graver penalty of death shall be applied by the court if
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397
V. PENALTIES
at least one aggravating circumstance (1) is present, or (2) remains
after the application ofoffset rule; otherwise, the lesser penalty
of reclusion perpetua shall be applied. However, in c ase of death
penalty,the same shall be reduced to reclusion perpetua because of
R.A. No. 9846.
1 . A gg r a v a t in g Cir c u m s t a n ce — Th e agg r a v a ting
c ircumstance m e ntioned i n A r t i c l e 6 8 t h a t wi l l r e q u i r e t h e
application of the greater component of the penalty ofreclusion
perpetua to death refers to any circumstances listed in Art i c le 14
and not to an a l t ernative circumstance under Ar t i cle 15. (People
v. Orilla, G.R. ¹s . 14 8 9 8 9-40,February 13, 2004) However, the
special aggravating circumstance under Article 48 on complex crime,
or Article 160 on quasi-recidivism is w i t hi n t h e contemplation of
Article 68. (People v. Comadre, G.R. No. 153559, June 8, 2004, En
Banc; People v. Magalona, G.R. No. 148294, July 17, 2008;People v.
Carpo, G.R. No. 1826'76;Apri L 4, 2001; People v. Alcantara, G.R. No.
L-49698-94, December 29, 1983; PeopLev. Retania, G.R. No. L-84841,
January 22, 1980)
Accused is found guilty of murder qualified by the circumstance
of treachery, which is pu nishable by re clusion perpetua to death.
The ordinary aggravating circumstance of evident pr emeditation
is present. Taking into consideration the evident premeditation as
an aggravating circumstance, the greater penalty of death shall be
applied. However, since the imposition of death is prohibited by R.A.
No. 9846, this penalty shall be reduced to reclusion perpetua.
Accused is found guilty of murder qualified by the circumstance
of treachery, which is punishable by reclusion perpetua to death. The
aggravating circumstance of evident premeditation and mitigating
circumstance of c o nfession ar e p r e sent. E v i dent p r e meditation
is offset b y c o nfession. Since t h ere i s n o r e m a i n in g m o difying
circumstance, the l e sser penalty of re c l usion perpetua s hall b e
applied. (1999 Bar Exam)
2. Sp e c i al M i t i g a t i ng C i r c u m stance — S pecial miti-
gating circumstance, which requires the graduation of penalty by
one degree, is found in Article 64 on the rules for the application of
divisible penalties. Article 68 on the rules for application of indivi-
sible penalty has no provision on special mitigating circumstance.
(People v. Ta kbobo, G.R. No. 10 2984, tu n e 8 0 , 1 998) Thus, the
penalty of reclusion perpetua to death prescribed for murder (2018
Bar Exam) cannot be lowered by one degree, and that is, reclusion
 898 CRIMINAL LAW REVIEWER V. PENALTIES 899
VOLUME I

temporal, no matter how many mitigating circumstances are present.

For example, the accused is found guilty of simple rape, which
Thhe effect of the two mitigating circumstance is the application of the is punishable by reclusion perpetua. The court shall sentence the
lesser component of reclusion perpetua to death. In sum, the court
accused to suffer re clusion perpetua. O n t h e o t h er h a n d, if t h e
shall apply the lesser penalty of reclusion perpetua. (People v. De Los
accused is found guilty of q u alified r ape, which is pu nishable by
Santos, G.R. No. L-2405, March 81, 1950; People v. Castaneda, G.R.
death, the court shall reduce it to reclusion perpetua and sentence
No. 41085, September 14, 1984; People v. Relador, G.R. No. 40900,
the accused to suffer reclusion perpetua without eligibility for parole.
September 14, 1984)
Accused is f o un d g u i lt y o f p a r r i c ide, w h ich i s p u n i shable IMPOSITION OF DIVISIBLE PENALTIES
by re clusion pe rpetua t o d e a t h. T h e mitigating c i r cumstances
Prision mayor, prescribed for frustrated homicide, is a penalty
of confession, lack o f i n s t r u ction and pr a eter i n t e ntionem. are
composed of three periods under Article 65. It is a divisible penalty.
present. Taking into consideration the presence of three mitigating
It can be broken down as follows:
circumstances, the lesser penalty of re c lusion perpetua h 1 1 b
app lie
a i ed.
. A p p l ying t h e Ta h b obo pri nciple, the s pecial m i t i g ating Minimum: 6 years and 1 day to 8 years
circumstance shall not be considered since it can only be appreciated
Medium: 8 years and 1 day to 10 years
if the penalty is divisible, but it cannot be considered if the penalty
is indivisible such as reclusion perpetua to death. (1978 and 1997 Maximum: 10 years and 1 day to 12 years
Bar Exams)
If the penalty prescribed by law for committing a felony is a
Accused is found guilty of murder qualified by the circumstance divisible penalty, the court shall consider three rules: (1) graduation
of treachery, which is pu nishable by re clusion perpetua t d t h . of penalty i f t h e r e i s a g r a d u a t in g c i r cumstance; (2) r u les on
Th e circumstances of provocation, surrender and quasi-recidivism application for divisible penalty and other r u les to determine the
are present. Applying the Takbobo principle, the special mitigating proper imposable period; and (3) rules on fixing determinate penalty
circumstance shall not be considered since it can only be appreciated or indeterminate penalty.
if the penalty is di visible. Reclusion perpetua t o death penalty is
an indivisible penalty. (2018 Bar Exam) Since special aggravating Graduation of Penalty
circumstance of quasi-recidivism cannot be off-set by m i t i g ating
c ircumstances, th e g r e ater p e n alt y o f d e a t h s h a l l b e I f there i s a g r a duating circumstance, the court m ust fi r s t
applied. graduate the penalty before determining the proper imposable period
However, since the imposition of death is pr ohibited by R.A. No.
9346, thispenalty shall be reduced to reclusion perpetua. of the divisible penalty and fixing the determinate or indeterminate
penalty.
8. E l i g i b i l i t y fo r P a r o l e — Pe rsons convicted of offenses
punished with reclusion perpetua, or whose sentences will be reduced Proper Imposable Period
to reclusion perpetua, shall n ot b e e l i g ible for p a rol . ( S t '
r o e. e c i o n 8, As a general rule, the court can determine the proper;:mposable
R A . N o.. 9846) In cases where reclusion perpetua is imposable, the
period by t a k in g i n t o c onsideration th e p r esence or absence of
phrase without eligibility for parole must not be used to qualify the
modifying circumstances and Article 64 of the Revised Penal Code
penalty of reclusion perpetua. It is understood that convicted persons
and other provisions of the Code.
penalized with this penalty are not eligible for parole in accordance
w ith Section 3 of R.A. No. 9346. In cases where death penalty i s 1. A pp l i c a t ion for D i v i sible Penalty — Ar t i c le 64 of the
imposable,but the same is reduced to reclusion perpetua because of Revised Penal Code provides the rules for application of divisible
R.A. No. 9346, the phrase without eligibility for parole shall be used penalties or penalties composed of three periods, (1960 Bar Exam)
to qualify reclusion perpetua in order to emphasize that the accused
should have been sentenced to suffer the death penalty had it n ot a. N o M odi f y i n g C i r c u m st ance — I f t h e r e a r e
been for R.A. No. 9346. (A,M. No. 15-08-02-SC, August 4, 2015) neither a g gravating n o r m i t i g a t in g c i r cumstances, pr ision
mayor prescribed for frustrated homicide shall be applied in

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 400 CRIMINAL LAW REVIEWER
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its medium period. Within the range of the medium period of
prision mayor (8 years and 1 day to 10 years), the penalty to be
served by theaccused shall be fixed. (Article64,par. 1)
b. On e A g gr a v a t i n g C ircum st a nc e — I f an
a ggravating circumstance such a s d i sregard of d w e lling i s
present, prision mayor prescribed for frustrated homicide shall
be applied in it s m a x i mum pe r iod. W i t h in t h e r a n ge of t h e
maximum period ofprision mayor (10 years and 1 day to 12
years), the penalty to be served by the accused shall be fixed.
(Article 64, par. 8)
c. O n e M i t i g a t i n g C i r c u m s t a n c e — I f a m i t i gating
circumstance such as voluntary surrender is present, prision
mayor prescribed for frustrated homicide shall be applied in its
minimum period. Within the range of the minimum period of
prision mayor (6 years and 1 day to 8 years), the penalty to be
served by the accused shall be fixed. (Article 6'4,par. 2
) the off-setrule.
d. O ff - s e t Ru l e — I f aggr a v a t in g c i r c u mstances
a nd mit i gating c i r cumstances are p r esent, th e c our t s h a l l
reasonably offsetthose of one class against the other according
to their relative weight. (Article 64) After applying the offset
rule, if t h ere are r emaining aggravating circumstances, the
p enalty shall be applied in i t s m a x i mu m p eriod; if t h er e i s
n o remaining modifying circumstance, the penalty sh all b e
applied in its medium period; if there are remaining mitigating
c ircumstances, the penalty shall be applied in it s m i n i m u m
period.
Accused is found guilty of homicide, which is punishable
by re clusion t emporal. T h e re a re t w o o r d i n a ry m i t i g a ti n g
circumstances and one aggravating circumstance. Applying
the offset rule, there is one mitigating circumstance remaining.
With this mitigating circumstance, reclusion temporal shall be
applied in its minimum period. (2009 Bar Exam)
Only ordinary aggravating and mitigating circumstances
are subject to the offset rule. Privileged mitigating circumstance
o f m i n o r i t y c annot b e o f f s e t b y ordinary a g g r avating
circumstance. (Aballe v. People, G.R. No. L-64086, March 15,
1990; 2011 Bar Exam) If p r i v i l e ged mitigating circumstance
a nd o r d i n a r y aggravating c i r c u m stance a ttended t h e
commission of felony, the former shall be taken into account
in graduating penalty and the latter in applying the graduated
J9JC9B0M
V. PENALTIES 401
penalty in its maximum period. (People v. tumandong, G.R.
No. 132745, March 9, 2000, En Banc) The circumstance of
treachery, which qualifies the ki l l ing i nto mu r der, cannot be
offset by a n o r d i n ary m i t i g ating circumstance of voluntary
surrender. Treachery for being qualifying circumstance in or
an element of or inherent in murder is not subject to the off-set
rule. (PeopLev. Abletes, G.R. No. L-88804, July 81, 1974) Quasi-
recidivism is a s pecial aggravating circumstance, and th u s,
it cannot be offset by a n o r d i n ary m i t i g ating circumstance.
(PeopLe v. Macariola, G.R. No. L - 4 0757, January 24, 1 988)
Taking advantage of public position, syndicated crime group
(Article 62), band or uninhabited place in. robbery by means of
violence or inti m idation (Art icle 295), band and uninhabited
p lace i n r o b b er y i n i n h a b i te d h o u se, p u b li c b u i l d in g o r
edifice devoted to religious worship (Ar t icle 800) are special
aggravating circumstances, and thus. they are not subject to
e . M ul t ip l e A g g r a v a t in g C i r c u m s t a n ces — O n ly
one aggravating circumstance isneeded to apply the penalty
in its maximum period. The presence of additional aggravating
circumstance would not further increase the penalty by period.
The court is prohibited from imposing a greater penalty than
that fixed by law in it s m a x i mum period. (Article 64, par. 6)
Multiplicity of aggravating circumstances will neither increase
the penalty b y p e r io d a s m a n y " s t h e r e a r e a g g ravating
circumstances nor graduate the penalty .'o one degree higher.
(People v. Manlolo, G.R. No. 40778, January 26, 1989)
2. S p e c ia l M i t i g a t in g C i r c u m stance — W hen t h ere
are two o r m o r e m i t i g atin g c i r cumstances and n o a g gravating
circumstances are p r esent, th e c o ur t s h al l i m p ose th e p e nalty
n ext lower t o t h a t p r escribed by l aw , i n t h e p e r iod t hat i t m a y
d eem applicable, according t o t h e n u m ber a n d n a t u r e o f s u ch
circumstances. (Article 6'4,par. 5) This is called special mitigating
circumstance.
a. E f f e c t s o f S p e c ia l M i t i g a t in g C i r c u m stance
— If th ere is a special mitigating circumstance of confession
and surrender, the court shall graduate the penalty one degree
lower and determine theproper imposable period in accordance
with the Legrama case.
 402 CRIMINAL LAW REVIEWER
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i. P en a l t y Ne x t Lo w e r i n D e g r e e — I f t h e r e
are four mitigating circumstances, the penalty shall not be
lowered by two degrees. Special mitigating circumstance
shall only be appreciated once. Regardless of the number
of components of the special mitigating circumstance, the
penalty shallonly be reduced by one degree. (1982 Bar
Exam)
ii. L e gr a m a ' Formula - In Leg r a ma v.
Sandiganbayan, G.R. ¹ . 178 6 2 6, tu n e 1 8 , 2 0 1 2, t h e
Supreme Court laid down a rule on determination of the
proper imposable period in c ase the special mi t i gating
circumstance is present.
If there are two mi t i g ating circumstances such as
confession and surrender, they shall be used in lowering
the penalty prescribed by law by one degree. Since the
t wo circumstances were alr eady used i n l o w ering t h e
penalty by degree, and there is no remaining mitigating
c ircumstance that can be used to adjust the penalty i n
its minimum period, hence the reduced penalty shall be
applied in its medium period. (Legrama v. Sandigar.bayan,
supra; Bacar v. Guzman, A.M ¹ . R TJ - 9 6 -1849, April18,
1997;Pelonia v.People, G.R. No. 168997, April 18, 2007;
People v. Torpio, G.R. No. 188984, tune 4, 2004; 1968 and
2018 Bar Exams)
If th e re ar e th r e e m i t i g ating c i r c u mstances, t h e
first two mitigating circumstances shall be considered
Io wering the prescribed penalty by one degree and th e
remaining mitigating circumstance shall be used to appl
th
he reduced penalty i n i t s mi n i m u m p e r iod. (Legrama
v.Sandiganbayan, supra; Nizurtado v. Sandiganbayan,
G.R. No. 107888, December 7, 1994; People v. Castuera,
G.R. No. L-62607, December 15, 1982; 1982 and 1991 Bar
Exams)
If there are four mitigating circumstances, the first
two m i t i gatin g c i r cumstances shall b e c o nsidered
e in
I o wering the prescribed penalty by one degree and th e
remaining tw o m i t i g ating circumstances shall be u sed
to apply t h e r e duced penalty i n i t s mi n i m u m p e r i o d.
(Legrama v. Sandiganbayan, supra)
Iff there
h are two mitigating ciruc
mstancesofconfession
and surrender and special aggravating circumstance of
J9JC9B0M
V. PENALTIES 408
quasi-recidivism, the two mitigating circumstances shall
be considered in lowering the prescribed penalty by one
degree and the special aggravating circumstance shall be
used to apply the reduced penalty in its maximum period.
In sum, the Legrama case is not applicable if there is a
specialaggravating circumstance.
If t h e r e a r e tw' o mi t i g a t i ng c i r c u m stances o f
confession a n d su r r e n de r a n d spe c i al a g g r a v a ting
circumstance that the offender committed a complex crime,
the two mitigating circumstances shall be considered in
lowering the prescribed penalty by one degree and the
special aggravating circumstance shall be used to apply
the reduced penalty in i t s ma x i m um p e r i o d. I n s u m ,
the Legrama case is not applicable if th e re is a s pecial
aggravating ci r cumstance. (People v. C e sar, G .R. N o .
L-26185, March 13, 1968)
b. Re q u i s i tes of Special Mit i gating Circumstance
— To appreciate special mitigating circumstance, the following
requisites must be present:
1. To appreciate specialmitigating circumstance,
the penalty must be divisible. If th e prescribed penalty
is re clusion perpetua or re c l usion perpetua t o d e a t h ,
the presence of two m i t i gating circumstances shall not
require thegraduation of the penalty by one degree;
e 'i n Note: If t h e re is a g r a d u a ting c ircumstance such
as minority or that th e crime is at the frustrated stage,
the prescribed penalty shallbe reduced by degree even if
py
the penalty is indivisible. However, to appreciate special
mitigating circumstance for purposes of gradua-ion, the
prescribed penalty must be divisible.
A child in confiict w it h t h e l a w s u r r endered after
committing simple rape, and thereafter, confessed to such
crime in open court. Th e penalty of r eclusion perpetua
for rape shall bereduced to reclusion temporal because
o f the p r i v i l eged mi t i gating cir cumstance of m i n ority .
Even though reclusion perpetua is an indivisible penalty,
minority sh all b e c onsidered to g r a duate th e p enalty.
Article 68 does not require that the penalty muss be divi-
sible to appreciate the privileged mitigating circumstance
of minority. Since the reduced penalty of reclusion:emporal
 404 CRIMINAL LAW REVIEWER
VOLUME I
is a divisible penalty, special mitigating circumstance of
confession and surrender shall be considered in fu r t h er
reducing the penalty into prision mayor.
2. To appreciate specialmitigating circumstance,
there must be two or more mitigating circumstances and
no aggravating circumstance.
A ccused i s f o u n d g u i l t y o f fo r c i b l e abduction,
which is p u n i shable by re c lusion temporal. T h e re a re
three m i t i gatin g c i r c umstances and on e a g gravating
circumstance. Special mitigating circumstance cannot be
considered. Even if t h ere are two remaining mi t i gating
circumstances after applying the offset rule, Article 64(5)
is not applicable since it requires for purposes of lowering
the penalty by one degree that there are two or more
mitigating circumstance and no aggravating circumstance.
The presence of aggravating circumstance, even though
it is offset by a mitigating circumstance, will negate the
appreciation of s pecial m i t i g ating circumstance. (2018
Bar Exam)
Accused i s f o u n d g u i l t y o f h o m i c i de, w hich i s
punishable b y rec l u s ion temporal. T h e r e a re f o u r
ordinary mi t i gating circumstances and one aggravating
circumstance present. Applying the offset rule, there are
t hree mitigating circumstances remaining. Wit h t h e se
mitigating c i r cumstances, reclusion temporal s h a ll b e
applied in it s m i n i mu m p e r iod. The special mi t i gating
circumstance, which will require the reduction of penalty
b y one degree, cannot be considered since there is a n
aggravating circumstance. (1977 and 1995 Bar Exams)
The aggravating circumstance that will negate the
appreciation of special mitigating circumstance pertains
to those listed in Articles 14 and 15 of the Revised Penal
Code.
If there are two mitigating circumstances of confes-
sion and surrender and special aggravating circumstance
of quasi-recidivism, th e t w o m i t i g a ti ng c i r c umstances
shall be considered in l o w ering th e p r escribed penalty
by one degree and the special aggravating circumstance
shall be used to apply the reduced penalty in its ma" i mum
period. Quasi-recidivism, which is a not listed in Articles
J9JC9B0M
V. PENALTIES 405
14 and 15 of the Code, shall not negate the appreciation
of special mitigating circumstance.
If t h e r e a r e two mi ti g a t i ng c i r c u m stancesof
confession a n d s u r r e n d er and sp e cial a g g r a v ating
circumstance of taking advantage of public position, the
two mitigating circumstances shall not be considered in
lowering th e p r escribed penalty b y on e d egree. While
taking advantage of p osition i s a s p e cial a ggravating
circumstance under Article 62, it is listed in Article 14 as
an aggravating circumstance. Hence, taking advantage
of public position shall negate the appreciation of special
mitigating circumstance. In such a case, the penalty shall
be applied in its maximum period. Under Article 62, when
in the commission of th e c r i me, advantage was taken
by the offender of his public position, the penalty to be
imposed shall be in its maximum regardless of mitigating
circumstances.
3. Sp e c i a l A gg r a v a t in g Ci r c u m s t a nces — Sp e cial
aggravating circumstance shall require the application of penalty
in its m a x i mu m p e r iod r egardless of th e p r esence of mi t i gating
circumstance.For example, Article 64 requires the off-setting of
aggravating circumstance and mitigating circumstance while Article
160 on quasi-recidivism requires the application of the penalty in
its maximum period. Since Article 64 is a general provision while
Article 160 is a specific provision, the latter shall apply in case the
accused is a quasi-recidivist. Hence, the penalty shall be applied
in its m a xi mu m p e riod r egardless of th e p r esence of mi t i gating
circumstance.
In People v. Jo se, G.R. No. L - 3 5280, August 1 2, 1 983, the
liabilityof the accused is increased by the presence of the special
aggravating circumstance of quasi-recidivism. He shall be punished
by the maximum period. of the penalty prescribed by law for the new
felony. (Article 160 of the Revised Penal Code) Thus, the mitigating
circumstance of plea of guilty cannot be considered in his favor.
4. Com p l e x C r i m e — T her e a r e t w o p e n a l r u l e s f o r
complex crime under Article 48 of the Revised Penal Code, to wit: (1)
the court shall consider the penalty for the most serious component
thereof; and (2) the court shall apply the penalty in its maximum
period.
If there is a graduating circumstance in a complex crime, the
penalty for the most serious component thereof shall be graduated
 406 CRIMINAL LAW REVIEWER
VOLUME I
first and then the graduated penalty shall be applied in its maximum
period. For example, a child i n conflict w it h t h e la w i s convicted
of complex crime of direct assault w it h h o micide. The penalty of
reclusion temporal for homicide, which is the most serious component
of this complex crime, shall be reduced to prision mayor, and then,
this reduced penalty shall be applied in its maximum period. (2012
Bar Exam)
Thhe penalty for the most serious component of complex crime
of direct assault with homicide is reclusion temporal. Because of the
complex character of this crime, the penalty of reclusion temporal
shall be applied in its maximum period in accordance with Ar t i cle
48 (People v. Gutierrez, G,R. No. L-80814, March 15, 1982; People v.
Recto, G.R. No. 12906'9, October 1 7, 2001; Zafra v. P eople, G.R. ¹.
176'817, July 28, 2014; People v. Gadiano, G.R N o. L- 81818, July
80, 1982, En Banc; People v. Gonzalez, G.R. No. 48298, April 2 0 ,
1942; Concepcion v. People, G.R. No. 78854, May 9, 1989, En Banc)
regardless of th e p r esence of m i t i g ating cir cumstance. The fact
that the offender committed a complex crime is special aggravating
circumstance (People v. De Leon, G.R. No. 1 79948, June 26, 2009, En
Banc), which is not subject to the off-set rule.
For example, a child in conflict with the law confessed to complex
crime of d i r e ct a ssault w i t h h o m i c ide. The p enalty of re c lusion
temporal for homicide, which is the most serious component of this
complex crime, shall be r e duced to pr i s ion m ayor. Th e n, pr i s ion
mayor shall be applied in its maximum period. Confession shall be
disregarded since the factthat the offender committed a complex
crime is a special aggravating circumstance, which is not subject to
the off-setrule.
Note: In People v. Cesar, G.R, No. L-26185, March 13, 1968,
the penalty of pr i s ion m a yor for t h e m o st s erious component of
the complex crime was applied in its maximum period. Because of
confession, prision mayor in its maximum period was applied in its
minimum period.
The Cesar
C principle on appreciation of mitigating circumstance
in a complex crime, which is not compatible with the Gutierrez case,
Recto case and De Leon case, is deemed abandoned.
5. Special Rulefor Imprudence or Negligence — Under
Article 865 of the Revised Penal Code, in the imposition of penalties
for imprudence and negligence, the court shall exercise its sound
d iscretion, without r e gard t o t h e r u l e s p r escribed in A r t i cl e 64 .
J9JC9B0M
V. PENALTIES 407
(1979 Bar Exam) Thus, the penalty prescribed by Article 365 shall
not be applied in its mini mum period even if there is a mitigating
circumstance of voluntary confession. (People v. Ag ito, G.R. No.
L-12120, April 28, 1958 and Ma r i a no v. People, G.R. No. 178145,
July 7, 2 014) Neither s hall it b e g r a d uated to o ne degree lower
even though there are two or m ore mi t i gating circumstances and
no aggravating circumstance. (People v. Medroso, G.R. No. L-37683,
January 81, 1975)
Surrender is not a mitigating circumstance in all felonies under
the Revised Penal Code. It shall not be appreciated in the crime of
imprudence or negligence.(2009 Bar Exam)
Fixing the Penalty
After d etermining t h e p r o per i m p osable period, th e c ourt
shall now fi x t h e p e n alty. Th e p enalty i s e i t her d eterminate or
indeterminate.
1. D et e r m i n a t e P e n a lty — If t he penalty is divisible and
the Indeterminate Sentence Law (Islaw) is not applicable (e.g., the
accused is a habitual delinquent), the court shall fix straight penalty
or determinate penalty w i t hi n t h e r a nge of the proper imposable
period.
For example, a c h il d i n c onflict w i t h t h e l a w , a n e scapee,
confessed to the crime of homicide. Since the privileged mitigating
circumstance of minority and ordinary m i t i gating circumstance of
confession are present, reclusion temporal prescribed for homicide
shall be reduced to prision mayor and t he s ame shall be applied
in its minimum period. Since the convict is an escapee delinquent,
Islaw is not applicable. Hence, the court shall fix th e determinate
penalty within the range of the proper imposable period, and that
is, minimum period of pr i s ion mayor, which ra nges from 6 years
and 1 day to 8 years. The court may sentence the accused to suffer a
straight penalty of 7 years of prision mayor,
The penalty is called determinate since the accused shall be
released upon serving 7-year penalty taking into consideration
h is creditable p r eventive d etention, a ctual d e t ention an d t i m e
allowances. In sum, the date of his release is determinable.
2. In d et e r m i n a te P e n a l ty — If t h e p e n a lty is d i v i s ible
and Islaw is applicable, the court shall sentence the accused to an
indeterminate penalty, the maximum of which shall be fixed within
t he range of th e pr oper i mposable period while th e m i n i mu m of
 408 CRIMINAL LAW REVIEWER V. PENALTIES 409
VOLUME I

which shall be fixed within th e range of the penalty next lower in
degree than that prescribed by law.
For example, a c h il d i n c on fiict w i t h t h e l a w c o nfessed to
homicide. Since the privileged mitigating circumstance of minority
and ordinary m i t i g ating circumstance of confession are present,
reclusion temporal p r e scribed for h o m i c ide s hall b e r e d u ced to
prision mayor, and the same shall be applied in its minimum period.
Hence, the court shall fix the maximum penalty within the range of
the proper imposable period, and that is, minimum period of prision
mayor,which ranges from 6 years and 1 day to 8 years. T he court may
sentence the accused to suffer 7 years of prision mayor as maximum
p enalty. For purposes of parole, the court shall fi x t h e m i n i m u m
penalty within th e range of the penalty next lower in degree, and
that is, prision correccional, which ranges from 6 months and 1 day
to 6 years. The court may fix the minimum penalty at 6 months and
1 day of prision correccional.
INDETERMINATE SENTENCE AND PAROLE LAW
The basic purpose of the Indeterminate Sentence Law is to uplift
and redeem valuable human material,and prevent unnecessary and
excessive deprivation of personal liberty and economic usefulness
)
it is necessary to consider the criminal, first, as an individual and,
second, as a member of society. The Indeterminate Sentence Law
a ims to individualize the administration of our cr i m i nal law t o a
degree not heretofore known in t h ese Islands. (People v. Ducosin,
G.R. No. 38882, December 14, 1988; 1964 and 1970 Bar Exams
) 1999, and 2008 Bar Exams):
The f u n damental p r i n c i pl e i n i n t e r p r etin g a n d a p p l yin g
penal laws is the principle of pro reo. (2018 Bar Exam
) The phrase
in duhio pro reo means when in d o ubt, for the accused. (Intestate
estate of Gonzales v. People, G.R. No. 181409, February 11, 2010
TheI Indeterminate Sentence Law is intended to favor the accused,)
p articularly t o s h o r te n h i s t e r m of im p r isonment. (P eople
v.
Temporada, G.P. No. 17 3478, December 17, 2008) Hence, pro reo
principle must be used in interpreting Islaw.
T he pu r pose o f fi x i n g t h e m aximum p e n alt y u n d e r t h e
Indeterminate Sentence Law is to determine up to when the convict
m ust serve his sentence in p r i son. Upon serving th e m a x i m u m
penalty, the accused will be released. O n t h e o ther h a n d , t h e
r eason in fixing th e m i n i mu m p enalty i s t o d etermine when t h e
convict will be eligible for parole. Upon serving the minimum penalt
m pena y ,
the accused may be released on parole. However, his release upon
serving the minimum penalty is indeterminate since the President
may or may not place him on parole. (2002 Bar Exam) Since the date
when the convict will be released is indeterminate, the law called
the penalty as indeterminate penalty.
Allowing the convict to be released on parole upon serving the
minimum penalty w il l a c hieve the pu r pose of the I n determinate
Sentence Law. (1 975 Bar Exam) If the prisoner shows good behavior
while serving his mini mum penalty in p r i son, the President upon
recommendation of the Board of Parole through the Department of
Justice will place him on parole and allow him to serve his penalty
outside the p r i son facility s u bject t o c ertain c onditions such as
reporting and non-commission of a crime.
The sole purpose of fixing the minimum penalty is to determine
the time when the convict shall be eligible to apply for parole. Hence,
the minimum penalty shall not be considered for other purposes. For
example, in determining whether or not the penalty exceeds 6 years
for purposes of applying the probation law or converting the unpaid
fine into subsidiary im p risonment, and in a pplying the t hree-fold
rule, the court shall consider that m aximum penalty, sirce this is
the penalty fixed in accordance with the Revised Penal Code.
Coverage of the Indeterm i n ate Sentence Law
Under Section 2 of the Indeterminate Sentence Law and other
related laws, the benefits of parole or indeterminate sentence are
not applicable to the following cases (1947, 1959, 1964, 1970, 1988,
1. Treason, conspiracy or proposal tocommit treason
(2012 Bar Exam), misprision of treason, rebellion or sedition,
espionage or piracy.
2. H ab i t u a l d e l i n quents. No t e: A r ec i d i v ist i s n o t
excluded from th e c overage of th e I n d eterminate Sentence
Law. (2012 Bar Exam)
3. Th o s e w h o h a v e e s caped f r o m c o n fi nement o r
evaded sentence. (1988 Bar Exam) Note: The law contemplates
confinement in prison and not in a mental hospital. (1991 Bar
Exam)
4. Th o s e who violated the terms of conditional pardon.
5. P e n alty of i mprisonment, the maximum term of
which does not exceed one year. Note: If the duration of penalty

J9JC9B0M
 410 CRIMINAL LAW REVIEWER
VOLUME I
i s too short such as 10 days, it i s not p r actical to apply t h e
Islaw for p u r poses of parole. Ent i t l ement u n der th e p a r ole
system requires a comprehensive evaluation of the behavior of
the prisoner while he is serving the minimum penalty. Hence,
it is sensible that the prisoner should serve the penalty of 10
days in full since a thorough evaluation of his conduct while
under detention, on which an early release on parole is based,
cannot be made by the parole officers due to short duration of
the penalty. Under the law, the penalty must be at least 1 year
and 1 day of imprisonment, to apply the rule on indeterminate
sentence forpurposes of parole.
The penaltyofp rision mayor for grave threat exceeds one
year of imprisonment; hence, the accused can avail the benefit
of Indeterminate Sentence Law. (2019 Bar Exam)
6. De a t h p e n a lt y o r l i f e i m p r i sonment (Section 2 of
Act No.4103); or reclusion perpetua. (R.A. ¹. 9846; 1990 Bar
Exam)
Note: To exclude the accused from the coverage of Islaw,
w hat i s i m p o rtant i s n o t t h e p r e scribed penalty, bu t t h a t
actually i m posed in accordance with t h e l aw . Fo r e x ample,
the penalty i s re c lusion t empo
ral i n it s m e dium p e r iod t o
reclusion perpetuaas prescribed for sexual abuse. Ifthere is
an aggravating circumstance, the court shall impose reclusion
perpetua; hence, Islaw is not applicable. If there is a mitigating
circumstance, the court shall apply the penalty in its minimum
period, and that is, reclusion temporal in i ts m edium period.
Hence, Islaw is applicable. (19M and 1962 Bar Exams)
The penalty of m u r der i s re c lusion perpetua to d e ath;
hence, the accused cannot avail the benefit of I ndeterminate
Sentence Law. (2019 Bar Exam)
7. U s e of trafficked victim;(Section 11 of R.A. No. 9208,
as amended by RA. ¹. 10 8 6 '4)and
8. N o n - p r ison sentence.
Note: Under the ISLAW, in imposing a 'pr ison sentence"
f or an offense, the court s h al l s e ntence the accused to a n
indeterminate s entence. Hence, I S LA W i s not applicable
in i m p osing "n o n -prison sentence" su ch a s des t i e rro or
rehabilitation for use of dangerous drugs. (2007 Bar Exam)
The penalty of disqualification is not subject to the rule
on indeterminate sentence for purposes of parole because it is
J9JC9B0M
V. PENALTIES 411
not a prison sentence. (Perlas v. People, G.R. ¹s . 8 4 6 '87-89,
August 2, 1989) To be entitled to parole, the behavior of the
prisoner while serving the m i n i mu m p enalty i n p r i son shall
be evaluated by the parole officers. However, if the penalty is
disqualification, there is no way for th e probation officers to
observe his behavior since he is not serving his penalty inside
a prison facility.
If the convict is not entitled to the benefit of parole under
the Islaw, the court sh all sentence him t o s u ffer a s t r aight
penalty or determinate penalty. There is no use of fixing the
minimum penalty under Islaw to determine when the convict
can apply for parole simply because he is not entitled to apply
for parole.
Penalty for Felony
In imposing a prison sentence for an offense punished by the
Revised Penal Code, the court sh al l s entence the accused to an
indeterminate sentence the maximum t erm of which shall be that
which, in view of th e a t t ending circumstances, could be properly
imposed under the rules of the said Code, and the minimum term
shall be within the range of the penalty next lower to that prescribed
by the Code forthe offense. (Section 1 ofAct ¹. 4108; 1957, 2002,
and 2018 Bar Exams)
The words "attending ci r cumstances" i n S e c tion 1 o f t h e
I ndeterminate S entence L a w refer to m o d i f ying c i r c umstances
such as gr aduating, special or o r d i n ar y a g gravating, special or
ordinary mi t i gating, or alt ernative circumstance, or circumstance
involving incremental penalty r ul e i n e stafa and th eft. (People v.
Temporada, G.R. No. 178478, December 1 7, 2008; 2012 Bar Exam)
In sum, in fi x in g th e m aximum penalty u n der the I n determinate
Sentence Law, the court sh all a p ply A r t i cle 64 on application of
divisible penalty, Article 160 on quasi- recidivism,and Article 308 on
incremental penalty for theft and other provisions connected with
t he imposition of penalties. Simply put , th e m aximum penalty i s
that fixed in accordance with the Revised Penal Code.
1. R ec l u s ion Temporal —If the penalty prescribed by law
is reclusion temporal, the minimum penalty shall be fixed anywhere
within the full range of prisi on mayor (6 years and 1 day to 12 years),
which is th e p enalty n ext l o wer i n d e gree, while th e m a ximum
 412 CRIMINAL LAW REVIEWER
VOLUME I
penalty shall b e fi xe d a f ter t a k i n g i n t o c onsideration modifying
circumstances anywhere within the range of the proper imposable
period of reclusion temporal, which is broken down as follows:
Maximum: 17 years, 4 months and 1 day to 20 years
Medium: 14 years, 8 months and 1 day to 17 years
and 4 months
Minimum: 12 years and 1 day to 14 years and 8 months
a . M ax i m u m P er i o d of Re cl u s io n T em p o r a l
— Accused is convicted of direct assault wit h h o micide. The
penalty of reclusion temporal for homicide, which is the most
serious component of this complex crime, shall be applied in its
maximum period. Applying the Indeterminate Sentence Law,
the court shall fix th e m aximum penalty wi t hin th e r ange of
the proper imposable period, and that is, maximum period of
reclusion temporaL (17 years, 4 months and 1 day to 20 years).
For purpose of parole, the court shall fix the minimum penalty
within the range of the penalty next lower in degree, and that
is, prision mayor (6 years and 1 day to 12 years). Hence, the
court can sentence the accused tosuffer 6 years and 1 day of
prision mayor as m i n i m um p e nalty to 20 y e ars of re clusion
temporal as maximum penalty. (1985 Bar Exam)
b . M ed i u m P er i o d o f R ec l u s io n T e m p o r a l
The accused is convicted of h omicide. There are m i t i gating
circumstance of surrender and an aggravating circumstance
of nighttime. Applying the offset rule, there is no modifying
c ircumstance r e m aining. W i t h ou t a remaining m o d i fying
circumstance, reclusion temporal prescribed for homicide shall
be applied in its medium period. Applying the Indeterminate
S entence Law, the court shall fix the maximum penalty within
the range of the proper imposable period, and that is, medium
period of reclusion temporal (14 years, 8 months and 1 day to
17 years and 4 months). For purpose of parole, the court shall
fix the minimum penalty within the range of the penalty next
lower in degree, and that is, prision mayor (6 years and 1 day to
12 years). Hence, the court can sentence the accused to suffer
6 years and 1 day of prision mayor as minimum penalty to 16
years of reclusion temporal as maximum p enalty. (1974 Bar
Exam)
J9JC9B0M
V. PENALTIES 413
c . M i ni m u m P er i o d of R e cl u s i o n T em p o r a l
T he accused i s c o nvicted o f h o m i cide. T h er e are tw o
mitigating circumstances and one aggravating circumstance.
Applying th e offset r u le, t h ere i s one r emaining m i t i gating
circumstance. With t h i s r e m aining m i t i gating circumstance,
reclusion temporal pr e scribed for h o m icide shall be a pplied
in its minimum period. Applying the Indeterminate Sentence
L aw, the court s h al l fi x t h e m a x i mu m p e n alty w i t h i n t h e
range of the proper imposable period, and that is, mi ni mu m
period of reclusion temporal (12 years and 1 day to 14 years
a nd 8 months). For purpose of parole, the court shall fix t h e
minimum penalty wit hin th e r ange of the penalty next lower
in degree,and that is,prision mayor (6 years and 1 day to 12
years). Hence, the court can sentence the accused to suffer 6
years and 1 day of prision mayor as mini mum penalty to 12
years and 1 day of re clusion temporal as maximum penalty.
(2009 and 1957 Bar Exams)
The accused is convicted of h o micide. There ar e f our
mitigating circumstances and one aggravating circumstance.
Applying the offset rule, there are three remaining mitigating
circumstances. S pecial m i t i g a t in g c i r c u m stance w ill n o t
be appreciated because of the presence of aggravating
circumstance. With these remaining mitigating circumstances,
reclusion temporal prescribed for homicide shall be applied in
its mi ni mu m p e r i od. Applying t h e I n d eterminate Sentence
L aw, th e court s h al l fi x t h e m a x i mu m p e n alty w i t h i n t h e
range of the proper imposable period, and that is, minimum
period ofreclusion temporal (12 years and 1 day to 14 years
a nd 8 months). For purpose of parole, the court shall fix t h e
minimum penalty wit hin th e range of the penalty next lower
in degree,and that, is prision mayor (6 years and 1 day to 12
years). Hence, the court can sentence the accused to suffer 6
years and 1 day of pr is ion mayor as minimum penalty to 1 2
years and 1 day of re clusion temporal as maximum penalty.
(1995 and 2018 Bar Exams)
2. P r i s ion Mayor —If t he penalty prescribed by law is
prision mayor, the minimum penalty shall be fixed anywhere within
the full range of prision correccional (6 months and 1 day to 6 years),
which is th e p enalty n ext l o wer i n d e gree, while th e m a ximum
penalty shall be fixed after taking into consideration modifying
 414 CRIMINAL LAW REVIEWER
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circumstances anywhere within t he range of the proper imposable
period of prision mayor, which is broken down as follows:
Maximum: 10 years and 1 day to 12 years
Medium: 8 years and 1 day to 10 years
Minimum:
6 years and 1 day to 8 years
a. M a x i m u m P e r i o d o f P r i s ion M a yor — Ac c used
is convicted of estafa through falsification of public document.
The penalty prescribed by law for estafa is ar resto mayor in
its medium and maximum periods, while that for falsification
of public document is prision mayor. By reason of the complex
character of the crime, the penalty of prision mayor prescribed
f or falsification, w h ic h i s t h e m o s t s e r i ous component o f
this complex crime, shall be applied in it s m a ximum period.
Applying the Indeterminate Sentence Law, the court shall fix
the maximum penalty within the range of the proper imposable
period, and that is, maximum period of prision mayor (10 years
and 1 day to 12 years).For purpose of parole, the court shall
fix the minimum penalty wit hin the range of the penalty next
lower in degree, and that is,' prision correccional (6 months and
1 day to 6 years). Hence, the court can sentence the accused to
suffer 6 months and 1 day of prision correccional as minimum
penalty to 12 y ears of pr i s ion m ayor as m a x imum p e nalty.
(1997 Bar Exam)
A child in conflict with the law confessed to direct assault
with homicide. The penalty of reclusion temporal for homicide,
which is the most serious component of this complex crime, shall
be reduced to prision mayor because of the privileged mitigating
circumstance of minority. Because of the complex character
of the crime, prision mayor shall be applied in i ts m a ximum
period. The mitigating circumstance of confession shall not be
considered since the fact that the offender committed a complex
crime is a special mitigating circumstance, which is not subject
to the off-set rule. Applying the Indeterminate Sentence Law,
the court shall fix th e maximum penalty wi t hi n th e r ange of
the proper imposable period,and that is,maximum period of
prision mayor (10 years and 1 day to 12 years). Forpurpose
o f parole, the court shall fix th e mi n i mum penalty wit hin t h e
range of the penalty next lower in degree, and that is, prision
correccional(6 months and 1 day to 6 years). Hence, the court
law is pr i s ion correccional, t he m i n i m um p e n alty s h a ll b e f ix e d
can sentence the accused to suffer 6 months and 1 day prision
anywhere within th e f ul l r a nge of ar r esto mayor (1 month a nd 1
J9JC9B0M
V. PENALTIES 415
correccionalas minimum penalty to 12 years of prision mayor
as maximum penalty. (2012 and 1985 Bar Exams)
b. M e d ium Period of Prision Mayor —Accused is
convicted of bigamy. Without modifying circumstances, prision
mayor prescribed for bigamy shall be applied in i ts m e dium
period. Applying the I n determinate Sentence Law, the court
shall fix the maximum penalty within the range of the proper
imposable period, and that is, medium period of prision mayor
(8 years and 1 day t o 1 0 y ears). For pu r p ose of parole, the
court shall fix th e m i n i mu m p enalty w i t hi n th e r ange of the
penalty next lower in degree, and that is, prision correccional
(6 months and 1 day to 6 years). Hence, the court can sentence
the accused to suffer 6 months and 1 day of prision correccional
as minimum penalty to 8 years and 1 day of prision mayor as
maximum penalty. (1957 Bar Exam)
c. M i ni m u m P e r i o d of Prision Mayor — Accused is
convicted of bigamy. There are two mit igating circumstances
and one aggravating circumstance. Applying the offset rule,
t here is one r e m aining m i t i g ating circumstance. With t h i s
remaining mitigating circumstance, prision mayor prescribed
for bigamy shall be applied in it s mi n i mum period. Applying
t he I n determinate S entence L aw , t h e c o ur t s h al l f i x t h e
maximum penalty w i t hi n t h e r a nge of the proper im posable
period, and that is, minimum period of prision mayor (6 years
and 1 day to 8 years). For purpose of parole, the court shall
fix the minimum penalty wit hin the range of the penalty next
lower in degree, and that is, prision correccional (6 months and
1 day to 6 years). Hence, the court can sentence the accused
to suffer 6 months and 1 day prision correccional as minimum
penalty to 6 ye ars and 1 d ay of pr i s ion mayor as maximum
penalty. (1989 Bar Exam)
Note: The court can also sentence the accused to suffer 6
years as minimum penalty to 8 years as maximum penalty; or
3 years as minimum penalty to 7 years as maximum penalty.
What is important is that the minimum penalty is fixed within
the range of the penalty next lower than that prescribed by law
while the maximum penalty is fi xed wi t hi n th e r ange of the
proper imposable period.
3. P r i s i o n C o r r e c cional — If t h e p e nalty p re scribed by
 416 CRIMINAL LAW REVIEWER
VOLUME I
day to 6 months), which is the penalty next lower in degree, while
the maximum penalty shall be fixed after taking into consideration
modifying circumstances anywhere within the range of the proper
imposable periodofprision correccional, which is broken down as
follows:
Maximum:
4 years, 2 months and 1 day to 6 years
Medium: 2 years, 4 month and 1 day to 4 years
and 2 months
Minimum:
6 month and 1 day to 2 years and 4 months
If the penalty fixed in accordance with the Revised Penal
Code does not exceed one year, Islaw is not applicable. In sum,
the penalty is straight or determinate.
a. M a x i m u m p e r i o d of p r i s ion corr eccional — A
child in conflict with th e law surrendered to authorities after
committing d i r ect a s sault w i t h h o m i c ide, and th ereafter,
confessed to this crime in open court. The penalty of reclusion
temporal for homicide, which is the most serious component of
this complex crime, shall be reduced to prision mayor because
of the privileged mitigating circumstance of minority. Prision
mayor shall further be reduced to prision correccional because
of special mitigating circumstance of confession and surrender.
Prision correccional shall be applied in i ts m a x i m um p e riod
b ecause of the complex character of the crime. Applying th e
Indeterminate Sentence Law, the court shall fix the maximum
penalty within the range of the proper imposable period, and
that is, maximum p eriod of pr i s ion correccionat (4 years, 2
months and 1 day to6 years). For purposes of parole, the court
shall fix the minimum penalty within the range of the penalty
next lower in degree, and that is, arresto mayor (1 month and
1 day to 6 months). Hence, the court can sentence the accused
to suffer 6 months of arresto mayor as minimum penalty to 6
years of prision correccionat as maximum penalty. (1985 Bar
Exam)
The accused is convicted of the complex crime of estafa
through falsification of public document. The penalty prescribed
by law for estafa is arresto mayor in its medium and maximum
p eriods, whil e t h a t f o r f a l s i fication o f p u b li c d o cument i s
prision mayor. There are t wo m i t i g a ting circumstances and
no aggravating circumstance. The penalty of pr i s ion m a yor
J9JC9B0M
V. PENALTIES 417
for falsification, which is the most serious component of thi s
complex crime, shall be reduced to prision correccional because
of the special m i t i gating circumstance. Prision correccional
shall be applied in its maximum period because of the complex
character of the crime. Applying the Indeterminate Sentence
Law, the court shall fix the maximum penalty within the range
of the proper imposable period,and that is, maximum period
of prision correccional (4 years, 2 months and 1 day to 6 years).
For purpose of parole, the court shall fix the minimum penalty
within the range of the penalty next lower in degree, and that
is, arresto mayor (1 month and 1 day to 6 months). Hence, the
court can sentence the accused to suffer 6 months of ar resto
mayor as minimum penalty to 6 years of prision correccionat
as maximum penalty. (1997 Bar Exam)
b. M e d ium period of prision correccional — The
accused surrendered to authorities after committing frustrated
homicide, and thereafter, confessed to this crime in open court.
The penalty of reclusion temporal for homicide shall be reduced
to prision mayor because the crime is at the frustrated stage.
Prision mayor shall further be reduced to prision correccionat
because of special mitigating circumstance of confession and
surrender. Since confession and surrender was already used
to graduate the penalty to pr i s ion correccionat, there are no
remaining m i t i g ating c i r cumstances that ca n b e e m ployed
to apply such penalty in it s m i n i mu m p eriod. Hence, prision
correccional shall be applied in its medium period. Applying the
Indeterminate Sentence Law, the court shall fix the maximum
penalty within the range of the proper imposable period, and
that is, medium period of prision correccionat (2 years, 4 month
and 1 day to4 years, 2 months). For purpose of parole, the court
shall fix the minimum penalty within the range of the penalty
next lower in degree, and that is, arresto mayor (1 month and
1 day to 6 months). Hence, the court can sentence the accused
to suffer 6 months of arresto mayor as minimum penalty to 3
years ofprision correccional as maximum penalty. (2019 Bar
Exam)
c. M i n i mu m p e riod of p r i sion correccional -
If the penalty prescribed for the c rime committed is pr i s ion
correccional and the s ame is applied in i ts m i n i m um p e riod
(6 months and 1 day to 2 y ears and 4 months) because of a
mitigating circumstance, the court has two options.
 418 CRIMINAL LAW REVIEWER
VOLUME I
The first option of the court is to fix the penalty at 1 year
of imprisonment or less but within the range of the minimum
period of prision correccional. In such a case, the Indeterminate
Sentence Law is not a p plicable. For example, the court can
s entence the accused to suffer a s t r a i ght p enalty of 1 y e ar
of prision correccional. I n d eterminate Sentence Law i s n o t
a pplicable because the penalty fi xed in accordance with t h e
Revised Penal Code does not exceed one year of imprisonment.
(2005and 2017Bar Exams)
The second option of the court is to fix th e penalty at 1
year and 1 day of imprisonment or more but within the range
of the minimum period of prision correccional. In such a case,
the Indeterminate Sentence Law is applicable.
For example, the court can fix th e maximum penalty at
2 years, which is w i t hi n t h e r a nge of th e p r oper i m posable
period, and that is , m i n i mu m p e riod of pr i s ion corre"cional.
For purpose of parole, the court shall fix the minimum penalty
within the range of the penalty next lower in degree, and that
is arresto mayor. Hence, the court can sentence the accused
to suffer 6 months of arresto mayor as minimum penalty to 2
years of prision correccional as maximum penalty. (Gu:nhawa
v. People, G.R. No. 162822, August 25, 2005)
4. Ar r es t o M a y or — A c cused is convicted of homic d, t h e
penalty for which is reclusion temporal. The privileged mitigating
circumstance ofincomplete self-defense is also present. There are
two mitigating circumstances of confession and voluntary surrender
and no aggravating circumstance. The penalty of reclusion temporal
shall bereduced to one to two degrees lower because of the pr'vileged
mitigating circumstance of incomplete self-defense. In sum, it can be
reduced topri sion co
rrecci onal. This penalty shall further be reduced
to arresto mayor because of the special mitigating circumstance of
confession and surrender. Since the two mi t i gating circumstances
were used to reduce the penalty by one degree, there is no remaining
mitigating circumstance that can be used to apply arresto mayor in
its minimum pe riod. Hence, arresto mayor s hall be applied in i t s
medium period, which ranges from 2 months and 1 day to 4 mor ths.
The court can may sentence the accused to suffer a straight penalty
of 3 months or arresto mayor. The Indeterminate Sentence Law is
not applicable because the penalty is not more than one year. (1968
and 2018 Bar Exams)
J9JC9B0M
V. PENALTIES 419
A child i n c onflict w i t h t h e l a w i s c o n victed of f r u s t r ated
homicide. There ar e f ou r m i t i g a t in g c i r cumstances of p a ssion,
illness, confession and v olunt ary s u r r ender an d n o a g gravating
circumstance. The penalty of re clusion temporal shall be reduced
to prision mayor because of privileged mitigating circumstance of
minority. Pr i s ion m ayor sh a ll be r e d uced to pr i s ion correccional
b ecause of the graduating circumstance that th e cr ime i s a t t h e
frustrated stage. Prision correccional shall be r e d uced to ar r esto
mayor because of the special mitigating circumstance. Since there
are only two mitigating circumstances used to reduce the penalty by
one degree, there are still two remaining mitigating circumstances
that can be used to apply arresto mayor in its minimum period, which
ranges from 1 month and 1 day to 2 months. Hence, the court may
sentence the accused to suffer a straight penalty of 1 month and 1
day of arresto mayor. Indeterminate Sentence Law is not applicable
because the penalty is not more than one year. (1982 Bar Exam)
5. Com p l e x P e n alty —If the penalty prescribed by law for
robbery is prision mayor in its maximum period to reclusion temporal
in it s me d i um (c o mplex p e nalty), a nd t h e s p e cial a g g ravating
circumstance of q u a si-recidivism i s p r e sent, t h e i n d eterminate
minimum penalty shall be fixed anywhere within the range of p ri sion
correccional in its maximum period to prision mayor in its medium
period (4 years and 2 months and 1 day to 10 years), which is the
penalty next l ower i n d e gree, while the i n determinate maximum
penalty shall be fixed anywhere within the range of maximum period
of the prescribed penalty or reclusion temporal in its medium period
(14 years, 8 months and 1 day to 17 years and 4 months). Hence, the
court may sentence the accused to suffer an indeterminate penalty
of 4 years, 2 months and 1 day of prision correccional as minimum
to 14 years, 8 months and 1 day of reclusion temporal as maximum.
(People v. Martinada, G.R. Nos. 66401-08, February 18, 1991; 1968
Bar Exam)
Penalty for Offense Under Special Law
In 1932, the Philippines Legislature adopted two penal systems,
to wit: Spanish penal system under the R evised Penal Code and
American penal system of special laws. Same as the Revised Penal
Code, the Indeterminate Sentence Law was passed by the Philippine
Legislature. Hence, the Indeterminate Sentence Law provides two
rules, the first of which applies to felonies punishable by Spanish
penalty under the Revised Penal Code, the second govern offense
punishable by American penalty with maximum limit and minimum
 420 CRIMINAL LAW REVIEWER
VOLUME I
limit under special law. However, at present there are spe"ial laws
that prescribe Spanish penalty. These special laws, which borrow
the penalties from the Revised Penal Code
a re not contemp'
on emp.at e d
y t e second rule of the Indeterminate Sentence Law. Hence, th
w . e n ce , e
firrst rule and not the second rule will govern offenses punishable by
Spanish penalty under special laws.
First Rule — The first rule of the Indeterminate Sentence Law
applies to offenses under special laws, which prescribes Spanish
penalties described in th e Revised Penal Code. If th e special law
adopts the technical nomenclature of the penalties of th R -
e e v i s ed
Penal
ena Coo d e , the legislative intention is to adopt the penal provisions
of the Code such as those on graduation of penalties and modifying
circumstance, and the first rule of the Indeterminate Sentence Law.
(see: People v. Simon, G.R. No. 98028, July 29, 1994; J'acaban v.
People, G.R. No. 184855, March 28, 2015; Malto v. People, G.R No .
164788, September 21, 2007; People v. Montalaba, G.R. No. 186227,
J'uly 20,2011; People v. Musa, G.R. No. 199785, October 24, 2012;
People v. Salazar, G.R. No. 98 060, Ja n uary 27 , 1 9 97; People v.
Peralta, G.R. No. 221991, August 80, 201 7) Applying the first retie,
t he maximum penalty for offense under thi s special law shall be
f ixed within th e r a nge of the pr oper i m posable period: while t h e
minimum penalty shall be fixed within the range of the penalty next
lower in degree than that prescribed by law. (201 7 Bar Exam)
The penalty fo r v i o l ence against w o man p u n i shable under
R.A. No. 9262, a special law, is pr i s ion correccional. There being
no modifying circumstances, prision correccional shall be applied
in its medium period, which has a r a nge from 2 years, 4 months
and 1 day to 4 years and 2 months. Applying the first r ule of —.he
Indeterminate Sentence law, the maximum penalty shall be fi=ed
within the range of prision correccional in its medium period while
the minimum penalty shall be fixed within the penalty next lower
in degree, and that is ar r esto mayor, which ranges from 1
nion th
and 1 d ay t o 6 m o n t hs. The accused is hereby sentenced to suffer
an
6 months of arresto mayor, as minimum, to 4 years and 2 months
of prision correccional, as maximum. (Melgar v. People, G.R. No.
228477, February 14, 2018)
If the penalty for possession of dangerous drugs is 12 years and
ay o yea r s o f i m p r isonment and the accused is a minor, the
provisions of the Revised Penal Code shall apply. (Section 98 of R.A.
¹. 9 1 65)Hence, to apply the penal system under the Revised Penal
Code, the penalty prescribed by R.A. No. 9165 must be converted
J9JC9B0M
V. PENALTIES 421
into a Spanish Penalty. In sum, the penalty of 12 years and 1 day to
20 years of imprisonment must be converted into reclusion temporal.
With this conversion, Article 68 on minority, Article 64 on application
of divisible penalty and the first rule of the Indeterminate Sentence
Law can now be applied in imposing penalty. In sum, the court shall
fix the penalty in accordance with penal rules for felonies although
the offense is punishable under special law.
Second Rule — The second rule of the Indeterminate Sentence
Law a p plies t o o f f enses u n der s p ecial l a ws , w h i c h p r e scribes
A merican p e nalt y w i t h m a x i m u m l i m i t a n d mi n i m u m l i m i t .
Applying the second rule, the court shall sentence the accused to an
indeterminate sentence, the maximum of which shall not exceed the
maximum limit fixed by said law, and the minimum shall not be less
than the minimum l i mi t p r escribed by the same. (Section 1 of Act
No. 4108; 1957 and 2018 Bar Exams)
W here the penalty for election offense under special law i s
not less than 1 year but not more than 6 years of imprisonment, the
minimum penalty shall not be less than 1 year, while the maximum
shall not exceed 6 years. Hence, the court can sentence the accused
to suffer 1 year of imprisonment as minimum penalty to 6 years as
maximum. (Escalante v. People, G.R. No. 192727, January 9, 2018)
W here the penalty fo r a n o f f ense under special law i s n o t
less than 5 years but not more than 10 years of imprisonment, the
minimum penalty shall not be less than 5 years, while the maximum
penalty shall not exceed 10 years. Thus, the court can sentence the
accused to suffer 6 years of imprisonment as minimum to 9 years as
maximum. (1957, 1989, 1994, and 1999 Bar Exams)
If thepenalty for possession of dangerous drugs is 12 years
and 1 day to 20 years of imprisonment, the court can sentence the
accused to an indeterminate sentence, the minimum of which shall
not be less than 12 years and 1 day, while the maximum shall not
exceed 20 years. Thus, the court can sentence the accused to an
indeterminate penalty of 12 years and 1 day as minimum to 14 years
and 8 months as maximum. (Asiatico v. People, G.R. ¹. 195 0 0 5,
September 12, 2011; 2009 Bar Exam)
If the special law prescribes a fixed penalty, the first ru le of
the Indeterminate Sentence Law is not applicable since this is not a
Spanish penalty. Neither shall the second rule apply since it is not
a penalty with m a x i mum l i mi t an d m i n i mu m l i m it . For example,
the penalty for trafficking in person under R.A. No. 9208 is 20 years
of imprisonment. The court shall sentence the accused to suffer 20
 422 CRIMINAL LAW REVIEWER
VOLUME I
years of imprisonment. (Santiago' v. People, G.R. No. 218760, August
8, 2019)
The m i t i g atin g c i r c u mstance of confession s h al l n o t b e
considered where t h e s p ecial l a w d i d n o t a d op t t h e t e c h nical
nomenclature of penalties of th e Revised Penal Code. (1989 arid
2009 Bar Exams)
Straight or In d eter m i n ate Penalty
W here the penalty fo r a n o f f ense under special la w i s n o t
less than 6 mo n t hs but n ot mo re t h an 8 ye a rs of i m p r i s onment,
t he minimum penalty shall not be less than 6 m onths, while th e
maximum penalty shall not exceed 8 years. However, if the court
s entenced the accused t o 1 y e a r o f i m p r i sonment o r l e ss, t h e
Indeterminate Sentence Law will not apply, and hence, there is no
need to fix the minimum penalty. In sum, the court will sentence the
accused to a straight or determinate penalty. This is the Guinhawa
principle. For example:
( 1) T h e c o ur t c a n s e n t ence th e a ccused t o s u f fer a
straight penalty of 10 m onths of i m p r isonment. There is no
need to fix th e mi n i mum penalty because the Indeterminate
Sentence Law will not apply where the penalty does not exceed
one year. (2005 Bar Exam)
(2) T h e c o ur t c a n not s entence the accused to s u ffer
an indeterminate penalty of 6 m o n th s of i m p r i sonment, as
minimum, to 11 months, as maximum. Because 11 montl. ~ is
not more than one year, the Indeterminate Sentence Law will
not apply. Hence, the court should have sentenced the accused
to suffer a s t r ai ght p enalty of 1 1 m o n ths of i m p r i sonment.
There is no need to fix the minimum penalty. (2005 Bar Exam)
(8) T h e c ourt cannot sentence the accused to suffer a
straight penalty of 2 years. Because this penalty is more than
one year, the Indeterminate Sentence Law will apply. Hence,
there is a need to fix th e mi n i mu m penalty, which must not
be less than si x m o n t hs. Th e court s h ould h ave sentenced
t he accused to suffer an i n d eterminate penalty of 6 m o r t h s
imprisonment as minimum to 2 years as maximum. (2005 Bar
Exam)
The Guinhawa principle is also applicable to the penalty
of 6 months and 1 day to 4years prescribed for possession of
drug paraphernalia. (see: A.M. No. 18-08-16-SC)
J9JC9B0M
V. PENALTIES 423
Mandatory Application
The A p p l ication o f t he I n d e t e r m inat e S entence L a w i s
mandatory to both th e Revised Penal Code and the special laws.
(Romero v. People, G.R. No. 171644, November 28, 2011; 1947 Bar
Exam) Thus, the court cannot sentence the accused, who is found
guilty ofhomicide, to suffer a straight penalty of 12 years and 1 day
of reclusion temporal. (2010 Bar Exam)
However, the Supreme Court, in People v. Nang Kay, G.R. No.
L-8565, April 20, 1951, has provided an exception. In this case, the
accused pleaded guilty to offense where the law prescribed a penalty
of 5 to 10 years imprisonment. The court sentenced the accused to
suffer 5 years of imprisonment. The Supreme Court sustained the
penalty. Fixing the penalty at the minimum li mit w i t hout applying
the Indeterminate Sentence Law is favorable to the accused since
the accused shall be automatically released upon serving 5 years of
imprisonment. Applying Islaw would lengthen the penalty because
the indeterminate maximum penalty must be necessarily more than
five years. (1999 Bar Exam) In People v. Arroyo, G.R. Nos. L-85584-
85, February 18,1982, the Supreme Court reaffirmed the Nang Kay
principle.
However, there ar e t w o r e q uisites to a p ply t h e N a n g K a y
principle, to wit: (1) the penalty for a crime under special law must, be
subject to the second rule of the Islaw; and (2) the accused deserves
a lenient penalty because of confession.
First Requisite — The application of Indeterminate Sentence
L aw is always mandatory if the penalty is subject to the first rul e
of theIslaw since its application is always favorable to the accused.
It is favorable to the accused since in fixing the minimum penalty
under the first rule of the Islaw, the prescribed penalty under the
Code shall be lowered by one degree. On the other hand, in fixing
the minimum penalty for offense under special law under the
second rule of the Islaw, which is involved in the Nang Kay case, the
prescribed penalty shall not be lowered. (People v. Judge Lee, Jr.,
G.R. No. 66859, September 12, 1984)
Second Requisite — In Ba t i stis v. People, G.R. No. 181571,
December 16, 2009, the Nang Kay exception is not applicable where
there is no justification for lenity towards the accused since he did
not voluntarily plead guilt y, and t he c ri me committed is a g ra ve
economic offense because of the l a rge nu mber of f ak e F u n dador
confiscated.
 424 CRIMINAL LAW REVIEWER
VOLUME I
Republic Act No. 9165 provides that illegal possession of less
than 5 grams of shabu is penalized with imprisonment of 12 years
and 1 day to 20 years. The court cannot sentence the accused to
suffer a straight penalty of i m p r isonment of 12 years and 1 day.
(Asiatico v. People, G.R. No. 196006, September 12, 2011
) of sentences as an exception, remains.
Thhe penalty for election offense under special law is not less
than 1 year but not more than 6 years of imprisonment. The court
cannot sentence the accused to suffer a straight penalty of 1 year
of imprisonment.(Escalante v.People, G.R. No. 192727, January 9,
2018)
Condition of Parole
F very prisoner released from confinement on parole by virtue
o f this Act sh all, a t s uch t i mes and i n s uch m a nner as ma y b e
required bythe conditions of his parole, as may be designated by the
said Board for such purpose, reports personally to such government
officialsor other parole officers hereafter appointed by the Board of
Indeterminate Sentence for a period of surveillance equivalent to
the remaining portion of the maximum sentence imposed upon him
or until final release and discharge by the Board of Indeterminate
Sentence as herein provided. The officials so designated shall keep
such records and make such reports and perform such other duties
hereunder as may be required by said Board. The limits of residenc
esi ence
o such paroled prisoner during his parole may be fixed and from
t ime to time changed by the said Board in its discretion. If during
the period of surveillance such paroled prisoner shall show himself
to be a law-abiding citizen and shall not violate any of the laws of
the Philippine Islands, the Board of In determinate Sentence ma
ence may
issue a final certificate of release in his favor', which shall entitle him
to finalrelease and discharge. (Section 6 ofA ct No. 4108)
SERVICE OF SENTENCES
If thhe accused is sentenced to suffer several penalties, he must
serve them successively in accordance with Article 70 of the Revised
Penal Code. Under t hi s p r ovision, the general r ul e on service of
multiple penalties is successive. Simultaneous service of multiple
penalties is an exception to the rule. In fact, the title of the original
version of Article 70 of the Code is "Successive service of sentences;
Exception" which indicates that the general rule is successive service
while the exception is simultaneous service. Simultaneous service
of multiple penalties shall only apply if the nature of the penalties
J9JC9B0M
V. PENALTIES 425
will so permit. C.A. No. 217 amended Article 70, and in doing so, it
deleted the word "Exception" in the title of Article 70. Despite of the
deletion, the intention of the law and t ha t is , to make successive
service of sentences as the general rule, while simultaneous service
Simultaneous Service of Mult i ple Penalties
Convict could serve simultaneously arresto mayor and fine. The
service of principal penalty of reclusion perpetua and its accessory
penalties such as di squalification can be served simultaneously.
In sum, if the convict is in prison, he can be disqualified to run as
mayor.
Successive Service of Mult i ple Penalties
Imprisonments cannot b e s erved simultaneously by r e ason
of their nature. Thus, a convict must serve them successively. In
Rodriguez v. Director of Prisons, supra, the Supreme Court found no
legal justification for insistence of the accused that he is entitled to
the "simultaneous service" of the various penalties of imprisonment
imposed in the 13 criminal cases. Such a theory is inconsistent with
the system of juridical accumulation of penalties. Under this system,
the maximum duration of a culprit's confinement shall not exceed
three times the most serious of the penalties imposed upon him, but
shall notin any case exceed 40 years. (2018 Bar Exam)
When the culprit has to serve two or more penalties, he shall
serve them successively if the nature of the penalties will not permit
simultaneous service. A c o n vict m u s t s e rv e m u l t i pl e p e nalties
successively: (1) where the penalties to be served are destierro and
imprisonment; (2) wh ere the p enalties to be served are multiple
imprisonments; and (3) where the principal penalties to be served
are imprisonment, d i squalifications an d s u spension. (2007 B a r
Exam) However, the successive service of sentences is subject to the
scale of penalties in accordance with its severity and to the three-
fold rule and 40-year limitation rule. (1982 Bar Exam)
Scale of Penalties in Accordance with It s Severity
T he successive service of m u l t i pl e s entences is s u bject t o
the scale of penalties mention in A r t i cle 70. In sum, culprit m u st
s uccessively serve m u l t i pl e p e n alties i n a c cordance wit h t h e i r
respective order of severity. (Medina, G.R. No. 38417, December 16,
1988) Under the scale of penalties in accordance with its severity,
 426 CRIMINAL LAW REVIEWER
VOLUME I
t he penalties m ust b e s e r ved successively i n t h e o r d e r o f t h e
following penalties: Death, reclusion perpetua, reclusion temporal,
prision mayor, prision correccional, arresto mayor, arresto rnenor,
destierro, perpetual absolute disqualification, temporary absolute
disqualification, suspension and public censure.
The accused is sentenced to suffer pr i s ion m a yor w i t h t h e
accessory penalties including temporary absolute disqualification
for frustrated homicide,and fine of P50,000 and temporary special
d isqualification f o r t e c h n i cal m a l v e rsation. T h e c onvict w i l l
serveprision mayor and the accessory penalty of disqualification
simultaneously for frustrated homicide. He will also serve prision
mayor for frustrated homicide and fine for technical malversation
simultaneously. In sum, the court that convicted him for technical
malversation can require him to pay fine while he is serving prision
mayor in p r i s on. But he m u st s erve prision mayor for f r u s trated
homicide an d t e m p orar y s p e cial d i s q ualification f o r t e c h nical
m alversation s u ccessively b y o b s erving t h e scale of p e n alti es
mentioned in A r t i cle 70. Following the scale, he must fi rst serve
prision mayor wi t h t h e a c cessory penalty of d i s q ualification for
frustrated homicide ahead of the principal penalty of disqualification
for technical malversation.
The accused was sentenced to suffer 15 days of arresto menor
for slight physical injuries and 15 years of reclusion temporal for
homicide. After serving 10 years, the President granted absolute
pardon to him for the crime of homicide. According to the convict, he
has already served the arresto menor ahead of reclusion temporal.
Hence, he should be released immediately since he served out arresto
menor and he was pardoned with respect to reclusion tempora.'. The
argument of the convict is untenable. It i s r equired under Ar t i cle
70 that he should serve reclusion temporal ahead of arresto rr.enor.
Hence, when he was pardoned, the penalty of arresto menor is still
unserved.
Three-fold Rule
The successive service of multiple sentences is subject to three-
fold rule. Under the three-fold rule, in serving multiple sentences
the period of imprisonment that a convict must serve should neither
b e more than 4 0 y ears nor exceed three-fold the l ength of t i m e
corresponding to the most severe of the penalties imposed upon him.
For example, accused is convicted of 11 counts of unjust vexation
and sentenced to suffer i n e ach case 11 days of ar r e sto mer~r.
J9JC9B0M
427
V. PENALTIES
Applying the three-fold rule, accused will merely serve 88 days of
imprisonment and not the total duration of the penalties, and that
is, 121 days. (1952 Bar Exam)
l. 4 0- y e a r L i m i t a t i o n R u l e — T he m ax i m u m p e r i o d
o f imprisonment t ha t a c o n vict m u s t s u f fer i n s e r v ing m u l t i p l e
penalties must not exceed 40 years. For example, A was sentenced
to sufferthree penalties of 15 years of reclusion temporal for three
counts ofhomicide and the penalty of 10 years ofp rision mayor for
frustrated homicide. The total d u r a tion of th e p enalties imposed
upon him is 55 years. The most severe penalty imposed upon him is
15 years of reclusion temporal. Thus, three-fold the length of time
corresponding to the most severe of the penalties is 45 years. A will
be imprisoned for40 years because of the 40-year limitation rule.
Article 70 provides that the maximum duration of the convict' s
s entence shall no t b e m o r e t h a n t h r e e-fold th e l e n gth o f t i m e
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 said maximum period. Such
maximum period shall in no case exceed 40 years. For example, the
accused is sentenced to suffer two penalties of reclusion perpetua.
(1 980 Bar Exam) Under Article 70, in applying the provisions of this
rule, the duration of perpetual penalties shall be computed at 80
years. However, the accused shall suffer imprisonment for a period
of 40 years and not 60 years.(People v. Mirto, G.B. ¹. 198479,
October 19, 2011)
Accused, who is sentenced to suffer three reclusion perpetua for
murders and five prision mayor for grave threat, shall only serve 40
years of imprisonment. (2019 Bar Exam)
2. Ma x im u m P e na l t y — In comp u t i n g t h e se r v a ble
p enalties under th e t h r ee-fold ru le, th e court s h all consider th e
m aximum p enalty u n der t h e I n d eterminate Sentence Law. T h e
purpose of fixing the minimum penalty under this law is to determine
when the convict shall be eligible to apply for parole. The penalty
contemplated by the three-fold rule is that fixed in accordance with
the Revised Penal Code, and that is, the maximum penalty.
8. P en a l t i e s I m p osed in D i f f e r ent C a ses — The three-
fold rule applies although the penalties were imposed for different
crimes or under separate proceedings, because whether the culprit
was tried and convicted in one or several proceedings, the reasons
for the legal precept are the same, namely, to avoid the absurdity
 428 CRIMINAL LAW REVIEWER
VOLUME I
of a man being sentenced to imprisonment for a longer period than
his natural life. (Rodriguez v. Director of Prisons, G.R. No. L-85886,
September 28, 1972; 1962 Bar Exam)
4 . T h r e e - F ol d R u l e i n Co n n e c t io n w i t h S e r v i c e o f
Sentences — Article 70 of the Revised Penal Code is to be taken
into account not in the imposition of the penalty but in connection
with the service of the sentence imposed. This provision speaks of
service of sentences. Nowhere in the Article is anything mentioned
about the imposition of penalty. It merely provides that the prisoner
cannot be made to serve more than th r e e ti m es the most severe
of these penalties the maximum of w h ich i s 40 ye a rs. (Pe~pie v.
Escares, G.R. Nos. L-11128-88, December 28, 19 57; Mej orada v .
Sandiganbayan, G.R. No. L - 5 1065-72, t u n e 80, 19 87; 1962 B a r
Exam) Thus, the court cannot dismiss criminal cases in excess of
three on the basis of three-fold rule. (1985 Bar E xam) The court
must render a verdict of guilt and sentence the accused to suffer as
many penalties as there are crimes of which he is convicted. (1952
Bar Exam) The court cannot sentence the accused to suffer 40 years
of imprisonment for five counts of rape. (2018 Bar Exam
) and in no case shall it continue for more than one year. (Article 89,
SUBSIDIARY IMPRISONMENT
Under Article 39 of the Revised Penal Code, as amended by
R.A. No. 10159, if the convict has no property with w h ich to meet
the fine, he shall be subject to a subsidiary personal liability at the
rate of 1 day for each amount equivalent to the highest minimum
wage rate prevailing in the Philippines at the time of the rendition
of judgment of conviction by the trial court.
Noo subsidiary penalty is imposed for non-payment of (1) the
reparation ofthe damage caused (2019 Bar Exam
); (2) indemnifi-
cation of the consequential damages (1983 Bar Exam); and (3) the
costs of the proceedings. (Ramos v. Gonong, G.R. No. L-4201 3, Au-
gust 81, 1976)
A convict s h al l s u f f er s ubsidiary i m p r i sonment f o r
non-
payment of fine by reason of insolvency. The phrase "If the convict
has no property wi th w h i ch to m eet the fine" in Ar t i c le 39
ic e r .can s
that
a aa co
convict shall not suffer subsidiary i m p risonment if h e h a s
property to pay fine. The convict could not opt to serve subsidiary
imprisonment instead of fine if he is solvent. A fine, whether imposed
as a single or as an alternative penalty, should not and canrot be
reduced or converted into aprison term; it is to be considered as a
J9JC9B0M
V. PENALTIES 429
separate and independent penalty.(People v. Dacuycuy, G.R. No.
L-45127, May 5, 1989; 1954 Bar Exam)
Under th e C onstitution, n o p e rson shall b e i m p r i soned by
reason of non-payment of debt. Debt means obligation to pay sum of
money arising from contract. The obligation to pay fine arises from
law, which prescribes it as a penalty, and not from contract. Thus,
Article 39 is not unconstitutional. (Quemel v. CA, G.R. No. L-22794,
January 19, 1968; 1954 Bar Exam)
1. F i n e O n l y — Wh e n t h e p r i n c ipal penalty i m p osed be
only a fine, the subsidiary imprisonment shall not exceed 6 months,
if the culpritshall have been prosecuted for a grave or less grave
felony, and shall not exceed 15 days, if for a light felony. (Article 89,
par. 2)
2. Fi n e a n d I m p r i s o n me nt — If t h e p r i n c ipal p e nalty
imposed be prision correccional or arresto and fine, he shall remain
under confinement u n ti l h i s fi n e i s s a t isfied, but h i s s ubsidiary
imprisonment shall no t e x ceed 1/3 of th e t er m o f t h e s entence,
par. 1)
When the pr incipal penalty i m p osed is hi gher t han pr i s ion
correccional (higher than 6 y ears of imprisonment), no subsidiary
imprisonment s h al l b e i m p o sed u po n t h e c u l p r it . (A r t i c le 3 9 ,
par. 8) Thus, if the accused is sentenced to pay fine and to suffer
imprisonment of 6 years and 1 day (1965 Bar Exam), 12 years and 1
day (1980Bar Exam) or prision mayor (2018 Bar Exam), he shall not
undergo subsidiary imprisonment in case of non-payment of fine by
reason of insolvency because the maximum penalty of imprisonment
has exceeded 6 years.
If the court sentenced the accused to suffer an indeterminate
penalty an d f i ne, th e m a x i mu m p e n alty s h al l b e c onsidered to
determine if his sentence has exceeded 6 years of imprisonment for
purposes of applying the rule on subsidiary imprisonment. (Rosares
v. Director of Prisons, G.R. No. L-3468, March 6, 1950) Thus, where
the accused was sentenced to an indeterminate penalty of 4 years, 2
months and 1 day of prision correccional, as minimum, to 8 years and
1 day of prision mayor, as maximum, and to pay a fine of P 3,000, he
shall not undergo subsidiary imprisonment in case of non-payment
of fine by r eason of insolvency because the maximum penalty of
imprisonment exceeded 6 years. (1988 Bar Exam)
 430 CRIMINAL LAW REVIEWER
VOLUME I
According to Justice Florenz Regalado, what is determinative
is the total penalty actually i m posed, that is, the pena impuesta,
which includes the principal penalty and the additional per alty for
habitual delinquency. This pena impuesta in the Spanish text has
been erroneously translated into English as the 'pr i n cipal penalty
imposed" in Article 39.
I f t h e c o n v ic t w a s s entenced t o s uffer t w o
or more
imprisonment penalties and fine, the aggregate penalt'
na ies impose d
shall
s a e b considered todetermine if his sentence has exceededprision
correccional (six years of imprisonment); if it d oes, he shall not be
made to suffer subsidiary imprisonment due to non-payment f fi
N o prisoner
ri shall be held in jail for more than six years by reason
of insolvency. (Toledo v. T he S uperintendent of t he C orrectional
Institutionfor Women, G.R. No. L-16377, January 28, 1961)
3. F i n e w i t h S u bsidiary I m p r i sonment — Und
e r.M t i c1e
78 of
o Revised Penal Code, no penalty shallbe executed except by
virtue of a fi nal j u d gment. Subsidiary i m p risonment is a p enalty
since under Article 39, it is imposed upon the accused and served by
him in lieu of the fine which he fails to pay on account of insolvency.
Where the judgment fi n d ing th e accused guilty does not i m pose
subsidiary imprisonment in case of non-payment of fine by reason
of insolvency, the court could not legally compel him to serve said
subsidiary imprisonment. To r ul e otherwise is to v i olate F.evised
enal Code and the constitutional provision on due process. (People
v. Alapan, G.R. No. 199527, January 10, 2018) Subsidiary penalty is
not just an accessory to the penalty of fine. (People v. Faj ardo, G.R.
No. 43466, May 25, 1938; 1973 and 1978 Bar Exams) In sum, the
imposition of fine does not carry with it the imposition of subsidiary
i mprisonment. T o r equire t h e a ccused, t o
suffer subsidiary
imprisonment, the court must expressly state in the judgment that
the accused is sentenced to pay "fine with subsidiary imprisonment
in case of insolvency."
If th e co urt r e q u i r es t h e accused to
undergo subsidiary
imprisonment for non-payment of fine, although the same was not
expressly imposed in the decision, the remedy of the accused is to
e a petition for habeas corpus. (1989 Bar Exam)
4. S ub s i d i ar y D e s t i e r r o — I f th e pr i n c i p al p e n a l t y
imposed is not to be executed by confinement in a penal institution,
ut such penalty is of fixed duration, the convict shall continue to
suffer the same deprivations as those of which the principal penalty
consists. (Article 39, par. 4)
J9JC9B0M
V, PENALTIES 431
If the penalty i m posed is de stierro a nd f in e, t he c ourt m a y
also impose subsidiary destierro for non-payment of fine. (Tavera
v. Valdez, G.R. No. 92 2, No vember 8, 1 9 02) Destierro i s a n o n -
imprisonment penalty with duration. The subsidiary destierro shall
not exceed 1/3 of the term of the sentence.
If the penalty i m posed is public censure and fine, the court
cannot impose subsidiary p enalty fo r n o n -payment of fi n e s i n ce
public censure has no duration. Article 39(4) requires that the non-
imprisonment penalty must have a duration. (People v. Garcia, CA-
G.R. No. 25764-R, [CAj 56 O.G. 4933) Paragraph 2 of Article 39 is
not applicable since this provision refers to fine only.
5. M a n d a tory Pa y m e n t of Fine — Th e s u b s idiary
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. (Article 39, par. 5)
COM M U N ITY SERVICE
R.A. No. 11362, which i s a p proved on A u gust 8, 2019, has
i ntroduced a ne w p r o vision on c ommunity s ervice, and t ha t i s ,
Article 88-a of Revised Penal Code. Community service is not a
penalty but amode of serving the penalty of arresto menor or arresto
mayor.Article 88-a of the Code provides:
"Article 88 a. Co m m u n i ty S e r v i ce. T h e c o u rt i n i ts
discretion may, in l ieu of service in jail, require the penalties
of arrestomenor and arresto mayor be served by the defendant
by rendering community service in the place where the crime
was committed, under such terms as the court shall determine,
taking i nto consideration the gr a vity of th e offense and t h e
circumstances of the case, which shall be under the supervision
of a probation officer: Provided, That the court will prepare an
order imposing the community service, specifying the number
of hours to be worked and the period within wh ich to complete
the service. The order is then referred to the assigned probation
officer who shall have responsibility of the defendant.
"The defendant shal l l i k e wise be r equired t o u n d ergo
rehabilitative c o u nseling u n d er t he s ocial w e l f ar e a n d
development officer of th e city of m u n icipality concerned
with the assistance of the Department of Social Welfare and
Development. I n r e q u i r i n g c o m m u n it y s e r vice, the court
shall consider the welfare of the society and the reasonable
 432 CRIMINAL LAW REVIEWER
VOLUME I
probability that the person sentenced shall not violate the law
while rendering the service.
"Community service shall consist of any actual physical
activity wh i ch in culcates civil consciousness, and is in tended
towards the improvement of a public work or pr o motion of a
public service.
"If the de fendant v io lates the te rms of th e co mmunity
service, the court shall order hislher re;arrest and the defendant
shall serve the full term of the penalty, as the case may be, in
jail, or in the house of the defendant as provided under Article
88. However, if the defendant has fully complied with the terms
of the community service, the court shall order the release of the
defendant unlessdetained for some other reason.
The privilege of rendering community service in l ieu of
service injai l shall availed of only once."
EXECUTION AND SERVICE
T he instances or s i t u a tions i n c r i m i na l c ases wherein t h e
accused can be granted a suspended sentence are as follows:
(1) Where th e accused became insane before sentence could be
promulgated (Article 79 of the Revised Penal Code); (2) Where the
offender is placed under probation ( Baclayon v. M u t i a, G .B. N o .
L-59298, April 80, 1984); (3) Where the offender needs to be confined
in a rehabilitation center because of drug-dependency although he
committed the crime of use of dangerous drugs in accordance with
S ection 54 of R.A. No. 9165; (4) Where the offender is a child i n
conflict with th e law enti t led to automatic suspension of sentence
under Section 38 ofR.A. No. 9344. (2006 Bar Exam)
PROBATION (P.D. No. 968)
The court convicts and sentences the accused but the execution
of the sentence, imprisonment or fine may be suspended and placed
h im on probation. During a period of time fixed by the court, th e
probationer is provided with treatment and imposed conditions and
placed under the supervision of a probation officer. If the defendant
violates any of the conditions, the court may revoke his probation
and order him to serve the sentence originally imposed. Otherwise,
he shall be discharged by the court afterthe period of probation,
whereupon the case against him shall be deemed terminated. (1974
Bar Exam; Budlong v. Apalisok, G.B. No. 60151, June 24, 1988
)
J9JC9B0M
V. PENALTIES 433
Definition of Probation
Probation i s a d i s position u n der w h i c h a d e f endant, after
conviction and sentence, is released subject to conditions imposed
by the court and to the supervision of a probation officer. (1946 Bar
Exam; Section 8 of P.D. No. 968)
Probation, Parole, and Par d on
Probation,parole, and pardon are distinguished as follows:
1. Gr a n t o f p r obation is j u dicial wh ile t hat of p arole
and pardon is executive;
2. Pr o b a t ion suspends the sentence; parole suspends
the unserved portion of the sentences; pardon is remission of
penalty;
3. Of f e n der can generally apply for p r obation within
the period of perfecting an appeal; offender is eligiblefor
pardon after conviction by final judgment: offender is eligible
for parole after s erving t he m i n i m um o f t h e in d e terminate
penalty;
4. Of f e n d er, who was sentenced to suffer a penalty of
more than six years of imprisonment, is disqualified to apply
for probation. Offender, who was sentence to suffer reclusion
perpetua, life imprisonment or death penalty, is not qualified
for parole. However, the President can pardon offender even if
the penalty imposed upon him is reclusion perpetua (or death
penalty).
Purpose of Probation
T he purpose of probation i s r e formative i n n a t ur e an d n o t
preventive andisto be exercised primarily forthe benefit oforganized
society and only incidentally for the benefit of the accused. (Facinal
v. Cruz, G.R N o. 50 618, September 2, 1992) The law is based on
the philosophy that i n d i viduals can change and deserve a second
chance, and that itis for the greater good of society that offenders
not be summarily eliminated from productive life but brought back
to its fold in the quickest and least traumatic way possible. (Budlong
v. Apalisok, supra; 1986 Bar Exam ) Probation is based or positivist
theory.
 434 CRIMINAL LAW REVIEWER
VOLUME I
Grant of Probation
T rial court m a y u p o n a p p lication b y d e fendant w i t hi n t h e
period for perfecting an appeal suspend the executior
s entence and p l ace th e d efendant o n p r o bation. Bu t w h iof l e the
the
resolution ofthe application for probation is pending, the trialcourt
cannot implement the judgment of conviction. Under P.D. No. 968,
as amended by R.A. No. 10707, the trial court shall, upon receipt
of the application for probation filed, suspend the executicn of the
sentence imposed in the judgment.
An order gr a nting or d e n y i ng p r o bation (Section 4 o f P . D .
¹. o. 96'8)
) or revoking the grant of probation or modifying tl:e terms
and conditions thereof (Section 15) shall not be appealab e (2002
Bar Exam) fo r b e i ng d i s cretionary. (S uyan v. P e ople, G.R. N o .
1896'44, July 2, 2014) However, if there is grave abuse of discretion
tantamount to lack or excess of jurisdiction in granting or denying
applicationfor probation, the matter may be elevated to the appellate
court by way of petition for certiorari un der Rule 65 of the Revised
Rules of Court. (Balleta, Jr. v. Leviste, G.R. ¹. L - 4 9 9 07,August 21,
1979; 1991 Bar Exam)
Suspension of service of sentence
1 . A cc e s s or y P e n a l t y — I n p r o b ation, the r ul e t hat t h e
accessory follows the principal is applicable. The grant of probation
suspends the execution of the principal penalty of imprisonment, as
well as that of the accessory penalties. It appears then that during
the period of pr obation, the pr obationer i s no t even d i squalified
from running for a p u b lic office because the accessory penalty of
suspension from public office is put on hold for the duration of the
probation. Dur in g t h e p e r iod of p r obation, th e p r obationer does
not serve the penalty imposed upon him by the court but is merely
required to comply with all the conditions prescribed in the probation
order. (Villareal v. People, G.R. No. 151258, December 1, 201 4)
In pardon, the rule that the accessory follows the principal is
not applicable. Pardon remits the principal penalty of impriscnm
risc nmen
u t h e r e m i ssion does not e x t end t o t h e a c cessory penalty otf
disqualification unless it expressly remits the same. (Articles 40 to
2. C i v i l L i a b i l i t y — G r an t of probation shall not suspend
the payment of civil liability. Probation is defined b S t '
3 f P,D.
o. as a di s p o sition under which a defendant,after conviction
J9JC9B0M
V. PENALTIES 435
and sentence, is released subject to conditions imposed by the court
and to the supervision of a probation officer." The "conviction and
sentence" clause of th e st atutor; d e fi n i t ion clearly signifies that
probation affectsonly the criminal aspect of the case. The offender
shall continue to be obliged to satisfy the civil liability resulting from
the crime committed by him, notwithstandir g the fact that he has
not been required toserve the same by reason of probation. (Article
118 of the Revised Penal Code; Budlong v. Apalisok, G.R. ¹. 6 0 1 5 1,
June 24, 1988; 1988 Bar Exam)
The offended party can file a motion for the execution of the
civil aspect of the decision although th e accused is placed under
probation (1991 Bar Exam) or the court should allow the offended
party to present evidence on the civilaspect of the case after the
accused pleaded guilty during his arraignment, and was placed on
probation; a hearing to prove the civil liability of the accused would
neither nullify the order of suspension of the sentence nor defeat the
purpose of the Probation Law. The civil action for the civil liability is
separate and distinct from the criminal action. (Budlong v. Apalisok,
supra; 1984 Bar Exam)
The court order di recting th e pr obationer to pay th e actual
damages in a monthly installment is valid and. did not modify the
decision after it ha d become final. Such order did not i n crease or
decrease the civil l i a b ili ty a d j u dged against t he p r o bationer but
m erely provided for th e m a n ner of p a y ment b y h i m o f h i s c i v i l
liability during the period of probation. (People v. Salgado v. CA,
G.R. No. 89606, August 80, 1990; 1991 Bar Exam)
Mutually Exclusive Remedies
The filing of the application for probation shall be deemed a
waiver of th e r i ght t o a ppeal. On th e other h and, no application
for probation shall be entertained or granted if the defendant has
perfected the appealfrom the judgment of conviction. (Section 4 of
P.D. No. 968) In other words, appeal and application for probation
are mutually exclusive remedies. The accused cannot avail two
remedies. Availing the remedy of appeal excludes the remedy of
probation, and vice versa.
1. W a i v i n g Right to Appeal — The filing of the application
for probation shall be deemed a waiver of the right to appeal (Section
4 of P.D. No. 968) and shall make the decision of conviction final,
and shall not interrupt the running of period to appeal. (1992 Bar
Exam) However, Section 4 s hould not be s tr ictly construed since
 436 CRIMINAL LAW REVIEWER
VOLUME I
both appeal and probation are based on the philosophy of liberality
towards the accused. The waiver of r i ght t o appeal upon fil::ng of
application for probation is r evocable. The accused can withdraw
the application for probation and file an appeal provided that both
the withdrawal and appeal are made within the period of perfecting
an appeal.(Yusi v. Morales, G.R. No. 6'1958, April 28, 1988; 1984
Bar Exam)
The exercise of right to apply for probation is a waiver of right
to appeal. While accused did not file an appeal before applying for
probation, he assailed the validity of the conviction in the guise of a
petition supposedly assailing the denial of probation. In so doing, he
attempted to circumvent P.D. No. 968, which seeks to rr ake appeal
and probation mutually exclusive remedies. (Almero v. People, G.R.
No. 188191, March 12, 2014)
2. W ai v i n g Ri g ht to Apply for Probation — The exercise
of right to appeal is a w aiver of r i ght t o apply for probation. The
law expressly requires that a n a ccused must not h av e appealed
h is conviction before he can avail of p r obation. This outlaws th e
element of speculation on the part of the accused — to wager on the
result of his appeal — that when his conviction is finally affirmed
on appeal, the moment of truth well-nigh at hand, and the service of
his sentence inevitable, he now applies for probation as an "escape
hatch" thus rendering nugatory the appellate court's affirmance of
his conviction. Consequently, probation should be availed of at the
first opportunity by convicts who are w i l l in g t o be r eformed and
rehabilitated, who m anifest spontaneity, contrition and r e m orse.
(Francisco v. CA, G.R. No. '108747, April 6; 1995; 1994, 2001, and
2010 Bar Exams)
Under the old r u le, if t r i a l court sentenced the accused to a
penalty of more than six years but th e appellate court reduced it
to a probationable level, he could not apply for probation because
of the ru le of m u t u a l ly e xclusive remedies unless the s ole issue
raised in the appeal is the impropriety of the penalty. (Lagrosa v.
People, G.R. ¹ . 15 2 0 44,July 8, 2008; Dimakuta v. People, G.R. No.
206'518, October 20, 2015; 1988, 1998, 1995, and 2008 Bar Exams).
However, R.A. No. 10707, which is approved on November 26, 2015,
has rejected the Lagrosa case and Dimahuta case and adopted the
Coli nares principle.
In Colinares v. People, G.R. No. 182748, December 18, 2011,
the accused, who was convicted by th e l ower court of f r u s t ra ted
homicide with the non-probationable penalty of six years and one
J9JC9B0M
V. PENALTIES 467
day of prision mayor, but on appeal was found guilty of attempted
homicide with a probationable penalty of two years and four months
of prision correccional, may apply for probation upon remand of the
case to the RTC. (2018 Bar Exam)
In Vi l l a real v. People, G.R. No. 1 51258, December 1, 2014,
accused was convicted of homicide with a non-probationable penalty
of 17 years of reclusion temporal, by the tr i al court. However, the
Supreme Court found them liable for reckless imprudence resulting
homicide with a p r obationable penalty of four years of pr ision
correccional. They can still apply for probation. The Supreme Court
reaffirmed the Colinares principle.
The Colinares d o ctrine i s n o w : " o und i n t h e p r o v i s ion o f
probation law. U n der Section 4 of P .D. No. 968, as amended by
R.A. No. 10707, no application for probation shall be entertained or
granted if the defendant has perfected the appeal from the judgment
of conviction: Pr o v ided, Th a t w h e n a j u dg m e nt o f c o n v i c tion
imposing a non-probationable penalty is appealed or reviewed, and
such judgment is modified through the impcsition of a probationable
penalty, the defendant shall be allowed to apply for probation based
on the modified decision before such decis on becomes final. (2019
Bar Exam)
In Hernan v. Honorable Sandiganbayan, G.R. No. 217874,
December 5, 2 0 17, accused was co nvicted o f m a l v e rsation a n d
sentenced to suffer a penalty of 11 years, 6 months and 21 days of
prision mayor, which is non-probationable. The judgment becomes
final prior to the effectivity of R.A. No. 10951. Under Article 217 of
the Revised Penal Code as amended by P..A. No. 10951, the penalty
for malversation i nvolving a n a m ount o f n o t e x ceeding P40,000
is only prision correccional in i ts me dium and m a ximum p eriods.
Despite the immutability of a fi nal j u d gment, the Supreme Court
reduced thepenalty to three years, six months and 20 days ofprision
correccional in a ccordance with R . A. No. 10951, which penalty is
now probationable. It was stated that because of R.A. No. 10951,
not only must sentence of the accused be modified respecting the
settled rule on the retroactive effectivity of favorable laws, she may
even apply for pr obation. In s um , applying Section 4 of P.D. No.
968, as amended by R.A. No. 10707, since the judgment of conviction
i mposing a n o n - probationable penalty i s m o d i fied t h r o ugh t h e
imposition of a probationable penalty, she is now allowed to apply
for probation based on the modified decision before such decision
becomes final.
 438 CRIMINAL LAW REVIEWER
V. PENALTIES 439
VOLUME I

Applying for probation based on a modified decision rendered

Regional Trial Court t hat r endered the original decision or where
by the appellatecourt, and seeking review of the said decision are
the case was re-raffled. In a case involving several defendants where
mutually exclusive remedies. Under Section 4 of P.D. No. 968, as
some have taken further appeal, the other defendants may apply for
amended by R.A. No. 10707, the accused shall lose the benefit of
probation by submitting a written application and attaching thereto
probation should he seek a review of the modified decision which
already imposes a probationable penalty. a certified true copy of the judgment of conviction.

Thhe accused, who was convicted by the Regional Trial Court 2. Ch i l d i n C o n fl ict w it h t h e L a w — If t h e a pplicant is
of anon-probationable offense of frustrated homicide, but on appea. a child in c onflict wi th t he l aw, the application for probation can
be filed at any time in accordance with Section 42 of R.A. No. 9344,
the Court of Appeals found him guilty of a probationable offense of
which is amendatory to Section 4 of P.D. No. 968. The phrase at any
attempted homicide. Instead of applying for probation, the accused
filed a petition for review with the Supreme Court and maintained time means the child in conflict with the law may file application for
probation even beyond the period ofperfecting an appeal or during
that
a h e i s i n n o cent. Such fil ing a p e t i t ion seeking review of t h e
the pendency ofthe appeal. (2014 Bar Exam )
modified decision is a waiver of his right to apply for probation.
3. M ot i o n f o r R e c onsideration — The accused shall not
Proper Court lose the benefit of probation should he file a motion for reconsideration
of the original decision by the trial court imposing a probationable
The trial court that convicted and sentenced the accused has
penalty. If the motion for reconsideration (or new trial) in a criminal
authority to grant probation. (Villareal v. People, G.R. ¹. 15 1 2 5 8,
case is denied by the trial court, th'e accused has a fresh period of
December 1, 2014) However, ifthe application for probation is based
15 days to file notice of appeal. In Yu v. Sa mson-Tatad, G.R. No.
on the modified decision rendered by the appellate court, the same
170979, February 9, 2011,the Supreme Court applied the Neypes
shall be filed in t h e t r i a l court w h ere the ju dgment of conviction
principle or the "fresh period rule" to the period of appeal in criminal
imposing a non-probationable penalty was rendered, or in the trial
cases. Hence, the "balance of period rule" in Section 6 of Rule 122 of
court where such case has since been re-raffled. (Section 4 o
No. 968, as amended by RA. No. 10707)
f P.D. the Revised Rules of Criminal Procedure is not any more controlling.
The Neypes shall be considered in determining the period to file an
appeal orapply for probation.
Period to Apply for Pr obation
However, the accused shall lose the benefit of probation should
The application for probation must be filed within the period of
he seek a review of a modified decision where the appellate court
perfecting an appeal. (Section 4 of P.D. No. 968) Commitment order
reduces the penalty from a non-probationable to a probationable level
issued immediately after promulgation of judgment of conviction will
such as filing a motion for reconsideration. (Section 4 of P.D. No. 968,
not deprivethe accused of his right to appeal or apply for probation
as amended by R.A. No. 10707) If the motion for reconsideration of
within the period of 15 days therefrom. (1989 Bar Exam) The court
such modified decision is denied by the appellate court, the accused
may not place the accused on probation and suspend the sentence
cannot anymore file an application for probation.
without application from the accused. (1986Bar Exam
)
1. M od i f i e d D e c i sion — If t h e a p p l ication for p ro bation Criteria of Placing an Offender on Pr obation
is based on the m odified decision r e ducing t h e p e n a lt y t o a
probationable level rendered by the appellate court, it must be filed In determining whether an offender may be placed on probation,
before such decision becomes final. (Section 4 of P.D. No. 968, as the court shall consider all i n f ormation relative to the character,
amended by R.A. No. 10707) From receipt of the modified decision by a ntecedents, environment, mental an d p h y sical condition of t h e
the Court of Appeals reducing the penalty to a probationable level, offender, an d a v a i lable i n s t i t u t i onal an d c o m m unity re s ources.
the accused has the right within 15 days from receipt thereof to file a Probation shall be denied if the court finds that: (a) the offender is in
motion for reconsideration with the Court of Appeals or a petition for need of correctional treatment that can be provided most effectively
by his commitment to an institution; or (b) there is undue risk that
review with the Supreme Court or application for probation with the
during the period of probation, the offender wil l commit another

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 440 CRIMINAL LAW REVIEWER
VOLUME I
crime; or (c) probation will depreciate the seriousness of the offense
committed. (Section 8 of P.D. No. 96'8)
A pending preliminary investigation against applicant for the
additional shortage does not also constitute a sufficient basis for
a conclusion that she was already guilty th ereof and that t h ere is
"undue risk" that she will commit another crime during probation.
(Cabatingan v. Sandiganbayan, G.R. No. L-55388, January 22,
1981)
Issuing subject 54 bouncing checks is a serious offense. (B.P.
Blg. 2 2) To a llow p etitioner to be p l a ced on probation would b e
to depreciate the seriousness of her malefactions. (Santos v. Ho n.
CA and Castro, G.R. No. 127899, December 2, 1999) On the other
hand, the nature of the crime of estafa through the issuance of one
bouncing check could not be the basis of declaring that placir g the
offender on probation will depreciate the seriousness of the crime.
(To v. Hon. Cruz-Pano, G.R. No. 55180, January 1 7, 1983)
Accused was charged with consented abduction by a 1 r -year
o ld complainant. The accused made wedding arrangements wit h
the girl, but her parents insisted on the prosecution of the case. To
avoid further embarrassment of a court tr i al f or h im a nd t he girl
the accused entered a plea of guilty. H e t hen fi led a p eti t icn for
7 is the seriousness of the crime committed as would bring it, outside
probation before serving sentence, but the court denied the petition
on the ground t hat " i t w o ul d b e b etter for t h e accused to serve
sentence so that he would reform himself and avoid the scandal in
the community that would be caused by the grant of the petition."
Trial court gravely abused its discretion in not granting probation.
Taking i nt o c o n sideration t h e c i r c u mstances tha t t h e a c cused
shows remorse by making wedding arrangements with the girl and
by confessing to the crime, and he is not disqualified to app y for
probation, it would be for the best interest of the criminal system
to place him on probation. (Balleta, Jr. v. Leviste, G.R No. L-49907,
August 21, 1979; 1981 and 1991 Bar Exams)
D isquali f i c a t io n t o P r o b a t i o n
The benefits of probation law shall not be extended to:
1 . Th o s e s e n tenced t o s erve a m a x i m u m t e r m of
imprisonment of more than six years (Section 9 of P.D. No. 968)
unless the crime involved is possession or use of dangerous
drugs committed by fir st t i m e m i n or o ffender (Section 70 of
RA. No. 9165);
J9JC9B0M
V. PENALTIES 441
2. T h o s e c o n victed o f a n y c r i m e a g a i nst n a t i onal
security;
3. Th o s e who have been previously convicted by final
j udgment of a n o f f ense punished by i m p r i sonment of m o r e
than six months and one day and/or a fine of more than P1,000;
4. Th o s e who have been once on probation;
5. T h o s e w h o ar e a l r e a dy s e rving s e ntence at t h e
time the substantive provisions of the law became applicable
(Section9 ofP .D. No. 968, as amended by R.A. No. 10707); and
6. Th o s e convicted of d a ngerous drug t r afficking or
pushing. (Section 24 of R.A. No. 916'5; 1988 Bar Exam)
1. N o n - p r o b a t i o n a b l e P e n a l t y — O n e wh o is sentenced
to suffer a penalty of more than six years is not qualified to apply for
probation. (Section 9 of P.D. No. 96'8) A penalty of six years and one
day of prision mayor (1995 and 2002 Bar Exams; Palo v. 31ilitante,
G.R. No. 76100, April 18, 1 990); 14 years, and 1 day of re clusion
temporal (2019 Bar Exam); or life imprisonment (1 990 Bar Exam) is
not probationable. The policy consideration on this disqualification
the beneficent objective of th e l aw. (A m andy v. P eople, G.R N o .
L-76258, May 23, 1988)
The accused is eligible for probation if the prescribed penalty,
reclusion temporal, was reduced to prision correccional because of
the rules on graduation involving minority, and special mitigating
circumstance (1985Bar Exam); or attempted stage. (2009Bar Exam)
The court in determining eligibility for probation shall considered
not the prescribed penalty but the penalty actually imposed in the
judgment.
The accused is no t e l i g ible fo r p r o bation i f t h e i m p osable
penalty is prision mayor, which was reduced from reclusion temporal
by reason of minority. R.A. No. 9344 nowhere allows the trial and
appellate courts the discretion to reduce the penalty to six years,
which is outside the range of prision mayor, even for the sake of
enabling the child in confiict with th e law to qualify for probation.
(Hubilla v. People, G.R. No. 176'102, November 26, 2014)
To determine whether or no t t h e p enalty exceeds six years
of imprisonment, the maximum indeterminate penalty should
be considered. Thus, one, who is sentenced to suffer two years of
 442 CRIMINAL LAW REVIEWER
VOLUME I
prision correccional as minimum to six years and one day of prision
mayor as maximum, is not entitled to apply for probation because
the maximum penalty exceeds six years of imprisonment.
(2002 Bar
Exam)
2. N a t i o n a l S e c u r i t y — T h ose who are convicted of crimes
against national security ar e d i squalified to apply for p r obation.
Crimes against n a t i onal security i n c l ude t r eason, misprision of
treason, conspiracy and p r oposal t o c o mmi t t r e ason, espionage,
inciting to war or giving motives for reprisal, violation of neutrality,
correspondence with hostile country and flight to enemy's country.
Under Section 9 of P.D. No. 968, as amended by P.D. No. 1990,
crimes against public order are not p r o bationable. The penalties
for alarm and scandal and directassault do not exceed six years of
imprisonment. But direct assault (2012 Bar Exam) and alarm and
scandal (2018 Bar Exam) were not probationable because these are
crimes against public order. However, R.A. No. 10707 has amended
P.D. No.o. 968 by deleting crimes against public order in Section 9
th ereof. In sum, under the present law on probation, crimes against
public order such as alarm and scandal and direct assault are now
probationable.
Rebellion
b i s a c r i m e a g a inst p u b l ic o rd er a nd n o t a c r i m e
a gainst national security. Bu t i t i s n o t p r o b ationable since th e
penalty prescribed for it is higher than six years of imprisonment.
3. Pr e v i o u s C o n v i ction — U n d e r S ection 9 of P . D. N o .
968, the benefits of probation would not extend to those who have
been previously convicted by final judgment of an offense punished
by imprisonment of not l ess than one month and one day and/or
a fine of not less than P200. (1998, 2002, and 20 04 Bar E x a ms)
However, R.A. No. 10707 has increased the penalty for the offense
under previous conviction, which will constitute a bar to probation
for the offense under the present conviction. Under P.D. No. 968, as
amended by R.A. No. 10707, the benefits of probation shall not extend
t o those who have been previously convicted by final judgment f
o an
off
o ense punished by imprisonment of more than six months and one
day and/or afine of more than P1,000.
If the accused was previously sentenced to suffer 6 months and
1 day, he is not disqualified to apply for probation in his present case
b ecause the penalty for his previous conviction is not "more than 6
months and 1 day."
J9JC9B0M
V. PENALTIES 443
But even though the penalty for th e offense under previous
conviction is lesser than that as stated above, one cannot avail of
probation for th e offense under pr esent conviction if h e a l r eady
availed of the benefit of probation for the previous offense.
To determine whether th e accused is eligible or disqualified
for probation, mult i ple p r i son t erms i m posed in o ne d ecision in
consolidated cases involving several offenses should not be added up.
The multiple prison terms are distinct from each other, and if none
of theterms exceeds six years, he is entitled to probation. (Francisco
v. CA, G.R No . 10 8747, April 6, 1 995; 1997 Bar Exam) T he rule
on disqualification by r eason of previous sentence will not apply
because technically th e accused has no previous sentence where
the cases are consolidated. (Rur'a v. Lopena, G.R. ¹s . L- 6 9 810-14,
June 19, 1985) However, if the multiple prison terms are imposed in
different decisions involving crimes committed on the same occasion
(e.g., issuance of bouncing checks on the same occasion), his previous
sentence will disqualify hi m t o a p ply for pr obation if th e penalty
imposed is more than six months and one day of imprisonment or a
fine of more than P1,000. (Pablo v. Castillo, G.R. No. 125108, August
8, 2000)
4. Dr u g T r af f ic k i n g o r P u sh i n g — S e c t ion 24 of R . A.
No. 9165 provides thatany person convicted for drug trafficking or
fdrugJ pushing under said Act, regardLess of the penaLty imposed
by the Court, cannot avail of the privilege granted by the Probation
Law.
Pushing includes sale, trading, t r ansportation, distribution,
d elivery, d i spensation, g i v in g a w a y t o a nother, o n a n y t e r m s
whatsoever, or di spatching i n t r a n si t o r t r a n sporting dangerous
drugs or acting as a broker in any of such transactions. (Section 8 of
R.A. No. 9165)
Trafficking includes sale, trading, transportation, distribution,
delivery, dispensation, cultivation, culture, administration, manu-
facture,importation, exportation and possession of any dangerous
drug and/or controlled precursor and essential chemical. (Section 3
of R.A. No. 91 65)
Drug trafficking includes possession of dangerous drugs but
not possession of drug paraphernalia. Hence, Section 24 of R.A. No.
9165 on disqualificationto probation does not extend to possession
o f drug paraphernalia. Since th e ' p enalty fo r p ossession of dr u g
p araphernalia i s n o t m o r e t h a n s i x y e a rs, th e a ccused, who i s
convicted of this crime, can apply for probation.
 444 CRIMINAL LAW REVIEWER
VOLUME I
Under Section 70 of R.A. No. 9165, a first-time minor offender
can apply for probation forthe crime of illegal possession or use
of dangerous drug even if th e penalty is hi gher than six years of
imprisonment. (2014 Bar Exam) But Section 70 of R.A. No. 9165 is
only applicable if the minor is being charged with possession or use
of dangerous drugs. If th e charge is selling dangerous drugs, the
applicable rule is Section 24 of R.A. No. 9165, which disqualifies
drug traffickers and pushers for applying for probation. (1995 and
2010 Bar Exams) The law c onsiders the users and possessors of
illegal drugs as victims while the drug tr affickers and pushers as
predators.(Padua v. People, G.R. No. 168546, July 28, 2008; 1972
Bar Exam)
Period of Probation
The period ofprobation of a defendant sentenced to a term of
imprisonment of not more than one year shall not exceed two years
(2012 Bar Exam), and in all other cases, said period shall not exceed
six years. When the sentence imposes a fine only and the offender
is made to serve subsidiary imprisonment in case of insolvency, the
period of probation shall not be less than or m ore than t w ice the
total number of days of subsidiary imprisonment. (Section 14 of P.D.
No. 968; 2005 Bar Exam)
Arrest of the Probationer
At any time during probation, the court may issue a warrant
for the arrest of a probationer for violation of any of the conditions
of probation. The probationer, once arrested and detained, shall
immediately be brought before the court for a hearing, which may
be informal and summary, of the violation charged. The defendant
may be admitted to bail pending such hearing. In such a case, the
provisionsregarding release on bail of persons charged with a crime
shall be applicable to probationers arrested under this provision. If
the violation is established, the court may r evoke or continue his
probation and modify the conditions thereof. If revoked, the court
shallorder the probationer to serve the sentence originally imposed.
An order revoking the grant of pr obation or modifying the terms
and conditions thereof shall not be appealable. (Section 15 of P.D.
No. 968)
Having the power to grant probation, it follows that the tr i al
court also has the power to order itsrevocation in a proper case
and under appropriate circumstances. Thus, the court may revoke
J9JC9B0M
V. PENALTIES 445
probation for failure of the offender to submit the required program
of payment of his civil liability to the heirs of the deceased victim
(Soriano v. CA, G.R. No. 128986, March 4, 1999) or for continuing
his activities of f a l sifying pu blic or of fi cial d ocuments. (Bala v .
Martinez, G.R.No. 67801, January 29, 1990)
The period for w h ich t h e accused has undergone probation
cannot be deducted from th e i m p osed penalty because an order
p lacing the defendant on " p r obation" i s no t a " s entence," but i s
in effect a suspension of th e execution of th e sentence. (Bala v .
Martinez, ibid.)
Termination of Probation
A fter the period of probation and upon consideration of th e
report and recommendation of the probation officer, the court may
order the final discharge of the probationer upon finding that he has
fulfilled the terms and conditions of his probation and thereupon the
case isdeemed terminated. (Section 16 ofP .D. ¹. 968)
1. E x p i r a t i o n o f th e Per i o d — T h e e x p i r a tion of t h e
probation period alone does not automatically terminate probation.
Nowhere is the ip so facto t ermination of p r o bation found in t h e
provisions of the probation law. Probation is not co-terminus with its
period. There must first be an issuance by the court of an order of final
discharge based on the report and recommendation of the probation
officer. Only from such issuance can the case of the probationer be
deemed terminated. (Bala v. Ma r t i n ez, G.R. No. 67 801, January
29, 1990) Thus, the court may revoke the probation for transferring
residenceafter the expiration of the period of probation but before
the discharge of the probationer in violation of the condition thereof.
(2005 Bar Exam)
2. P e c u n i a r y Li a b i l i t i e s — P e c uniary l i a bilities include
fine and r eparation for d a m ages caused and i n demnification for
consequential damage. Discharge of the probationer shall extinguish
his cr i m i n al l i a b i l i ty in v o l v ing f in e b u t no t h i s c i v i l l i a b i l i t y
concerning reparation for damages caused and indemnification for
consequential damage. 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 not been required to serve the
same by reason of probation. (Article 113 of Revised Penal Code;
Bud long v. Apalisok, G.R. No. 601 51,June 24, 1988; 1983 Bar Exam)
 446 CRIMINAL LAW REVIEWER
VOLUME I
JUVENILE JUSTICE AND WELFARE ACT (R.A. No. 9344) AND
CHILD AND YOUTH WELFARE CODE (P.D.No. 603, AS AMENDED)
D efinition of Child in Conflict with the L a w
"Child in conflict with the Iaw" refers to a child who is alleged
as, accused of, or adjudged as, having committed an offense under
Philippine laws. "Child"refers to a person under the age of 18 years.
(Section 4 of RA. N o. 9844) An adult, who cannot protect himself
from abuse because of his mental or p h ysical condition is a child
under R.A. No. 7610 but not under R.A. No. 9344.
E ntitlements of Child in Conflict with the L a w
An accused is a child in conflict with the law as long as he is
under 18 years of age at the time of the commission of the offense.
Reaching theage of majority at any stage of the case will not deprive
him of his entitlements under the law as a child in conflict with the
law. Thus, a child in conflict with the law, who already reached the
age of majority during the pendency of the case, is still entitled to the
privileged mitigating circumstance of minority, the privilege of being
confined in agricultural camp or other tr aining facilities (People v.
Salcedo, G.R. ¹. 18 6 5 2 8,tu n e 22, 2011; People v. Gambao, G.R.
¹. 1 7 2 707,October 1, 2018) and suspension of sentence. (Section
88 of R.A. No. 9844)
In People v. ta c i n t o, G . R. N o . 1 8 2 2 39, M a r ch 1 6 , 2 0 1 1 ,
t he child in conflict wit h t h e la w sh all be entitled to the r i ght t o
restoration, rehabilitation, and reintegration in accordance with the
Act in order that he/she may be given the chance to live a normal
life and become a productive member of the community. The age of
the child in conflict with the law at the time of the promulgation of
the judgment of conviction is not material. What matters is that the
offender committed the offense when he/she was still of tender age.
However, there is an exception to this rule. Upon reaching the
age of 21 years, child in conflict with the law is not anymore entitled
to the benefit of a suspended sentence. (Section 40 of R.A. No. 9844;
2009 Bar Exam)
E xemption from Cr i m i nal L i a b i l i t y
If the child is 15 years of age or belou, minority is an exempting
circumstance. (Section 6 of R.A. No. 9844) Lack of discernment is
conclusively presumed.
If the child is above12 years of age up to 15 years of age, he
is exempt from cr i m i nal l i a bilit y bu t h e ca n b e considered as a
J9JC9B0M
V. PENALTIES 447
neglected child under P.D. No. 608 and be mandatorily placed in a
youth care facility or Bahay Pag-asa in the following instances:
1. If t h e child commitsserious crimes such as parricide,
murder, i n f a nticide, r a pe, k i d n apping a n d s e r i ous i l l egal
detention wit h h o m i cide or r a pe, robbery w it h h o m i cide or
rape, destructive arson, or carnapping where the driver or
occupant is k i l led or r a ped or o ffenses involving dangerous
drugs punishable by more than 12 years of imprisonment; and
2. In c a s e ofre petition of offenses and the child wa s
previously subjected to an intervention program and his best
interest requires involuntary commitment.
In case of commission of serious crime, a petition for involuntary
commitment shall be filed by a social worker i n court. I n case of
repetition of offenses,his parents or guardians shall execute a
w ritten authorization for voluntary commitment. However, if t h e
child has no parents or guardians or if they refuse or fail to execute
such authorization, the proper petition for involuntary commitment
shall be immediately filed by the social worker in court; but the child
may be subjected to intensive intervention program supervised by
the local social officer instead of involuntary commitment. (Section
20-A and 20-B of R.A. No. 9844, as amended by R.A. No. 10680)
Privileged Mit i gating Circumstance
If the child is above 15 years of age but below 18 years of age,
minority is either exempting or pr i v ileged mitigating. If the child
acted without discernment, the circumstance of minority is exempt-
ing. If the child acted with discernment, the circumstance of minori-
ty is privileged mitigating. (1995' Bar Exam) This circumstance shall
be appreciated even if minority was not proved during the trial and
that his birth certificate was belatedly presented on appeal. (People
v. Agacer, G.R. No. 177751, tanuary 7, 2018)
Diversion and Int e r v e nt ion Pr ogram
"Diversion" refers to an alternative, child-appropriate process
of determining the responsibility and treatment of a child in conflict
with th e l a w o n t h e b a sis of h i s /her social, cultur al, economic,
psychological or educational background without resorting to formal
court proceedings.
 448 CRIMINAL LAW REVIEWER
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"Diversion Program" r e fers to the p rogram that t he c hild i n
conflict with th e law i s r e quired to undergo after he/she is found
r esponsible fo r a n o f f e nse w i t h ou t r e s ortin g t o f o r m a l c o u r t
proceedings.
"Intervention" refers to a series of activities which are designed
to address issues that caused the child to commit an offense. It may
take the form of an i nd ividualized treatment program which may
include counseling, skills tr ai ning, education, and other activities
that will enhance his/her psychological, emotional and psycho-social
well-being. (Section 4 of R.A. No. 9844; 2009 Bar Exam)
Suspension of Sentence
The suspension of sentence of minor is now found in Section
38 of R.A. No. 9344, otherwise known as the Juvenile Justice and
Welfare Law. H ence, Ar t i cle 80 of t h e R e vised Penal Code and
relevant provisions in P.D. No. 603 (Youth and Welfare Code) on
suspension of sentence of minor are deemed repealed or modified.
Sections 66, 67, 68, and 69 of R.A. No. 9165 (Dangerous Drugs
Law) had pr ovided ru l es on s uspension of sentence of minor f o r
crime of possession or use of dangerous drugs. However, suspension
of sentence of child in conflict with the law is now covered by Section
38 of R.A. No. 9344. (Padua v. People, G.R. No. 16'8546, July 28 ,
2008; People v. Montalaba, G.R. No. 186227, July 20, 2011) Even
if the child in conflict with the law is convicted of sale of dangerous
drugs, which is a heinous crime, he is still entitled to a suspended
sentence under R.A. No. 9344. (People v. Sarcia, G.R. No. 169641,
September 10, 2009; People v. Jacinto, G.R. ¹. 18 2 2 8 9,March 16,
2011)
1. P r o m u l g a t io n o f J u d g m e n t — O nc e t h e c h i l d i n
conflict with the law is found guilty of the offense charged, the court,
i nstead of p r onouncing j u dgment o f c onviction, shall p l ace h i m
under suspended sentence, without need of application. (1984 Bar
Exam) But the court shall determine and ascertain any civil liability
which may have resulted from the offense committed. (Section 88 of
RA. ¹. 93 4 4 ) In other words, the suspension of sentence does not
extend tothe civilaspect of the case.
If the child in conflict with the law is found innocent or exempt
from criminal liability, the pronouncement of judgment of acquittal
shall not be suspended. This rule is similar to law on probation.
J9JC9B0M
V. PENALTIES 449
In suspension of sentence of minor, what is being suspended
is thepronouncement of sentence or promulgation of judgment of
conviction. In probation, what is being suspended is the service of
sentence. In parole, what is b eing suspended is the service of the
unserved portion of th e sentence. T he convict is o n ly e n t i t l ed t o
a pply for p a r ole after s erving t h e m i n i mu m p e n alty u n der t h e
indeterminate sentence law.
In suspension of sentence of minor, the rendition of judgment
is not subject to suspension. In s um , th e court shall st il l r e nder
judgment convicting the child in conflict with the law by signing it
and. submitting the same to the clerk of court; and then the court
shall issue an order placing the child in a su spended sentence or
suspending the promulgation of judgment.
2. A pp l i c a t i on , N o t R e q u i r e d — U n d e r t h e o l d r u l e ,
application for suspension of sentence is required. But under Section
38 of R.A. No. 9344, the court shall place the child in conflict with
the law under a suspended sentence without need of application.
However, in probation, application is needed.
3. R ea c h i n g the Age of Major ity — Un d er the old rule, a
child in conflict with the law is not entitled to a suspended sentence
upon reaching 18 years of age. (1 980 and 1985 Bar Exams) However,
under Section 38 of R.A. No. 9344, the suspension of sentence shall
still be applied even if the child in conflict with the law is already 18
years of age or more at the time of pronouncement. (2012 Bar Exam)
While Section 38 o f R .A . N o . 9 344 p r ovides suspension of
sentence can still be applied even if the child is already 18 years of
age or more at the time of the pronouncement, Section 40 limits the
suspension of sentence until the child reaches the age of 21. Hence,
child in conflict with the law, who reached 21 years of age, cannot
avail of suspension of sentence. (People v. Arpon, G.R. No. 18356'8,
December 14, 2011; Padua v. People, G.R. No. 16 8546; July 2 8 ,
2008; People v. Salcedo, G.R. ¹. 18 6 5 28,June 22, 2011; People v.
Gambao, G.R. ¹.172707, October 1,2018; 1978,1977, 1980, 1985,
2008, 2009,2012, and 2018 Bar Exams) However, he shallbe given
the benefit of being confined in an agricultural camp or any other
training facility. (People v. Rupisan, G.R. No. 226'494, February 14,
2018)
4. No D i s q u a lification — Un d er the old rule, the child in
conflict with the law is disqualified from the benefit of suspended
sentence if he had been sentenced to death, life imprisonment, or
 450 CRIMINAL LAW REVIEWER V. PENALTIES 451
VOLUME I

reclusion perpetua. (1995 Bar Exam) Section 38 of R.A. No. 9344 The law considers th e u sers an d p ossessors of i l l egal d r ugs as
on suspension of service of sentence of a minor does not distinguish victims while the drug traffickers and pushers as predators. (Padua
between a minor who has been convicted of a capital offense and v. People, G.R. No. 168546, July 23, 2008)
another who ha s been convicted of a l e sser offense. Hence, the
Court should also not distinguish and should apply the automatic Agricultural Camp or Ot her T r a i n in g Faciliti es
suspension of sentence to a child in conflict with th e law who has
been found guilty of a heinous crime. Moreover, the legislative intent, The child in conflict w it h t h e la w m ay , after conviction and
to apply to heinous crimes the automatic suspension of sentence upon order of the court, be made to serve his sentence, in lieu of
of a child in conflict with th e law can be gleaned from the Senate confinement in a regular penal institution, in an agricultural camp
deliberation. In fact, the Court En Banc promulgated on November and other training facilities in accordance with Section 51 of R.A. No.
2 4, 2009, the Revised Rule on Children in Conflict wit h t h e L a w , 9344. (People v. Mantalaba, G.R. No. 186227, July 20, 2011; People
which echoed such legislative intent. (People v. Sisracon, G.R. No. v. Arpon, G.R. No. 183563, December 14, 2011; 2014 Bar Exam)
226494, February 14 , 2 0 18; People v. Sa r c ia, G .R. N o. 16 9 641,
In Peoplev. Salcedo, G.R. No. 186523, June 22, 2011, an accused,
September 10, 2009; People v. Jacinto, G.R. No. 182239, March 16, who was under 18 years of age at the time of the commission of the
2011) Even a recidivist minor is entitled to a suspended sentence. crime, even if already over 21 years old at the t ime of conviction,
(2003 Bar Exam) may still avail of th e benefits accorded by Section 51 of R.A. No.
9344.
Probation
If the accused is an adu lt, application for probation must be Full Credit of Preventive Im p r i sonment
filed within the period of perfecting an appeal. (Section 4 of P.D. No. A convict is entitled to a f ul l o r 4/ 5 credit of hi s pr eventive
968) imprisonment. (Article 29 of the Revised Penal Code)
If the accused is a child in conflict with the law, application for If the convict is a child i n conflict w it h t h e l aw, he shall be
probation may be filed at any time. (Section 42 of RA. No. 9344) In credited in the services of his sentence the full time spent in actual
sum, it can be filed even beyond the period of perfecting an appeal or commitment and detention. (Section 41, R.A. No. 9344; Atizado v.
even during thependency of an appeal. (2014 Bar Exam
) People, G.R. No. 173822, October 13, 2010)
Under Section 9 of P.D. No. 968, one who is sentenced to suffer
a penalty (maximum indeterminate penalty) of more than six years
is not qualified to apply for probation (e.g., one who is sentenced to
suffer two years of prision correccional as minimum to six years and
one day of prision mayor as maximum is not entitled to apply for
probation).
Under Section 70 of R.A. No. 9165, a first-time minor offender
can apply for probation forthe crime of illegal possession or use
of dangerous drugs even if the penalty is higher than six years of
imprisonment. (2014 Bar Exam)
But Section 70 of R.A. No. 9165 is only applicable if the minor
is a first-time offender, who is charged with possession or use of
d angerous drugs. I f t h e c h a rge i s s e llin g d a ngerous drugs, t h e
applicable rule is Section 24 of R.A. No. 9165, which disqualifies
dangerous drug traffickersand pushers for applying for probations.

J9JC9B0M
 VI. MODIFICATION AND EXTINCTION 453
OF CRIMINAL LIABILITY

It is a basic rule that circumstance that tr anspired after the

consummation of the crime is not a defense unless it is expressly
mentioned by the law as modes of extinguishing criminal liability.
Vl. MODIFICATION AND EXTINCTION For example, restitution in m a l versation case, payment in estafa,
OF CRIMINAL LIABILITY pardon by offended party inprivate crime, subsequent d.eclaration
of nullity of marriage in a bigamy case, re-election in malversation,
and judicial suspension of all claims in estafa or violation of B.P.
Blg. 22 are not m odes of extinguishing criminal l i ability. H ence,
Criminal liability of the offender is totally extinguished (1960, the accused cannot use them as defenses. However, circumstance
1969, 1970, and 1988 Bar Exams) by: that transpired after the consummation of the crime may be source
of mitigation of c r i m i nal l i a b i l it y s uch a s c onfession, voluntary
1. D e a t h of the offender;
surrender, restitution i n m a l v e rsation, or r e t u r n o f t h e s t o l en
2. Se r v i ce of the sentence; properties.
3. A mn e s t y or absolute pardon; As a rule, circumstances that transpired after the consummation
of the crime are not defenses; however, there are exceptions, to wit:
4. Pr e s c ription of crime, or penalty;
1. Th o s e expressly mentioned by the law as modes of
5. M ar r i a g e b etween th e o f fender an d t h e o f fended
extinguishing criminal liability ;
party in crimes against chastity (Article 89 of the Revised Penal
Code) or in rape; or forgiveness in marital rape (Article 266-C 2. Th o s e w h i c h w i l l b e a b a r t o t h e i n s t i t u t ion o f
of the Code); criminal action such as subsequent pardon in crimes against
chastity (Article 844 of the Revised Penal Code); and
6. Fi n a l di s chargeof the probationer (P.D. No. 96'8 as
amended by R.A. ¹. 10 7 0 7 ); and 3. Pa y m e nt s after th e consummation of th e crime of
violation of B.P. Blg. 22 but before the institution of criminal
7. De c r i m i n a lization.
action. (Lim v. People, G.R. No. 190884, ¹v e m b er 26, 2014)
Criminal extinction is different from criminal exemption. The
modes of extinguishing criminal liability arise after the commission Desistance
of the crime. On the other hand, justifying circumstance, exempting
circumstance or absolutory cause, which exempts offender fr om Desistance of private complainant from pursuing the criminal
criminal liability, attends the commission of the crime. In criminal case filed against the offender does not extinguish the crime imputed
exemption there is no criminal l i ability f rom th e v ery beginning: to the latter, for this is not one of the accepted modes of extinguishing
w hile in criminal extinction, there is criminal liability at t h e criminal liability enumerated in Article 89. Such desistance has
beginning but it is thereafter extinguished. the effect of extinguishing the civil liability of the offender arising
from his commission of the crime. (Bautista v. CA, G.R. ¹. 12 1 6 88,
March 26, 1998; 1974 Bar Exam )
Subsequent-circumstance principle
Once the crime consummates, criminal l i ability i m m ediately Re-election
attaches to the offender. To escape from such criminal liability, the
same must be extinguished by subsequent circumstance identified Re-election to public office is not provided for in Article 89 of the
by the law as a mode of criminal extinction. Revised Penal Code as a mode of extinguishing criminal liability for
criminal offense incurred by a public officer prior to his re-election.
(Oliveros v. Judge Villaluz, G.R. No. L-84686, May 80, 1974; 1974
452
and 1980 Bar Exams) Hence, it is not a defense in a criminal case.

J9JC9B0M
 454 CRIMINAL LAW REVIEWER
VOLUME I
U nder the old r u le, a r e -elected public official could not b e
removed for administrative offense committed during a prior term,
s ince his r e-election t o of fice operates as a c o ndonation of h i s
misconduct to the extent of cutting off the right of the government to
remove him therefor. (Aguinaldo v. Santos, G.R. No. 94115, August
21, 1992) However, in Morales v. CA and Binay, G.R. Nos. 217126-
27, November 10, 2015,doctrine of administrative condonation has
been abandoned because it i s p l a i nly i n consistent to th e concept
of public office is a public t r ust an d th e corollary requirement of
accountability to the people at all times, as mandated under Section
1, Article XI of t h e 1 987 Constitution. Election is not a m ode of
condoning an administrative offense. In t hi s j u r i sdiction, liability
arising from administrative offenses may only be condoned by the
President, and not b y t h e c onstituents of th e r e -elected officers.
Power to grant executive clemency under Section 19, Article VII of
the 1987 Constitution extends to administrative offense.
However, the Binay principle shall be given a prospective effect.
Hence, if a public officer is re-elected before November 10, 2015 (the
date of the ruling in the Binay case), he can still use the condonation
doctrine as a defense in an a d m i nistrative case. (Ombudsman v .
Mayor Vergara, G.R. No. 21 6871, December 6; 201 7; 2019 Bar Exam
on Political Laiv)
Novation
N ovation is no t a m o d e of e x t i n guishing cri m i na l i a b i l i t y .
(People v. ¹r y, G. R N o . L - 1 9 5 67, February 5, 19 6 4) C r i m i n a l
liability for estafa is not affected by a compromise or novation of
contract. (Metropolitan Bank and Trust Company v. Reynando, G.R.
No. 164588, August 9, 2010; 1984 Bar Exam ) Hence, as a general
rule, novation is not a defense in a criminal case.
H owever, novation can e x t i n guish t h e ol d c o n tract, w h i ch
may be the basis of criminal l i ability. I n such case, novation is a
defense. In estafa through misappropriation, "receiving the property
in trust" i s a n e l e ment t h e reof. In s u m , c ontract of t r u s t i s a n
ingredient of this crime. Novation may convert the contract of trust
into creditor-debtor situation, or put doubt on the true natu "e of the
original transaction. (People v. ¹r y , s u pra) In these situations, the
accused willbe acquitted for failure to prove the element of "receipt
of property in tr u st." Thus, novation is a defense in estafa through
misappropriation where th e contract of agency is conver-.ed into
sale. (Deganos v. People, G.R. No. 162826, October 14, 2018; 1988
Bar Exam)
J9JC9B0M
VI. MODIFICATION AND EXTINCTION 455
OF CRIMINAL LIABILITY
However partialpayment and p romise
to pay the balance of
obligation under contract of agency will not convert it into sale. There
is no novation since the obligation of the accused in making a partial
payment is not incompatible to the obligation to give the proceeds of
sale of the property under the contract of agency. (Deganos v. People,
supra; 2014 Bar Exam)
1. Co n t r a c t ual Relationship —Novation can only be used
as a defense in a crime where one of its elements is the existence
of contractual relationship between the offender and the victim.
Novation is a d e f ense in e s t afa t h r ough m i sappropriation since
the juridical possession of the property by the offender, which is a
requisite to this crime, may be based on contract. Novation cannot
be used as a defense in case of theft or estafa through falsification
of document. In t h eft case, there is no contractual relationship or
bilateral agreement which can be modified or altered by the parties.
(People v. Tanj utco, G.R No. L- 28924, April 29, 1968) In complex
of estafa by means of false pretense through falsification of public
documents, the liability of the offender cannot be extinguished by
mere novation. (Milla v. People, G.R. No. 188726, January 25, 2012)
There is no contract wh ere one consented due to f alse pretense
employed by th e o t her p a r ty . W i t h out a v a l i d c ontract, there i s
nothing to extinguish through novation.
In estafa through issuance of bounced check in connection with
sale of goods, novation is not a defense. Even though the sale was
novated by contract of loan, the accused is still liable since the basis
of his criminal liability is not the contract of sale but the issuance
of bouncing check as a manner of defrauding the victim. The check
was issued for a consideration because of the contract of sale. When
the check was dishonored, the crime of estafa consummates. The
subsequent novation of contract of sale by a contract of loan will not
erase the element of consideration in estafa. As an element, what is
important is that there is consideration when the check was issued.
(1974 Bar Exam)
2. N ov a t i o n P r i o r t o I t s C o n summ at ion — If n o v ation
happens before the consummation of c ri me i n v olving contractual
relationship, novation can prevent the incipience of criminal liability
or the theory of novation raised by the accused may create doubt
a s to whether the t r a nsaction is a t r ust contract or loan. In t h i s
situation, novation is a defense for failure to prove the element of
contractual relationship beyond reasonable doubt.
 456 CRIMINAL LAW REVIEWER
VOLUME I
If novation happens after the consummation of crime involving
contractual relationship, novation can neither prevent the incipience
of criminal liability nor create doubt to the nature of tr ansaction.
Once the crime of estafa through misappropriation consummates,
criminal li ability w i l l i m m e diately at t ach to th e accused. Hence,
t he accused cannot prevent thr ough novation something that h a s
already transpired. Criminal liability t hat a t t aches to the accused
upon consummation of the crime cannot be extinguished by novation
because it is not mentioned by law as one of those modes of criminal
extinction.
In People v. Benitez, L-15923, June 30, 1 960, the f act —.hat
the accused had, with th e consent of the offended party, assumed
the obligation of paying the rentals, which he collected, out of his
own salary after he had committed the misappropriation does not
obliterate the criminal liability already incurred.
In Metropolitan Bank and Trust Company v. Reynando, supra,
novation is not one of the grounds prescribed by the Revised Penal
Code for the extinguishment of criminal liability. Criminal liability
for estafa isnot affected by a compromise or novation of contract.
Reimbursement of or compromise as to the amount misappropriated,
after the commission of the crime, affects only the civil liability of
the offender, and not his criminal liability for it i s a public offense
which must be prosecuted and punished by the Government on its
own motion even t h ough complete reparation should h ave been
made of thedamage suffered by the offended party.
M odes of Preventing Cr im i nal L i a b i l i t y
Circumstances that justify th e act or exempt th e actor from
criminal li ability m ust b e p r esent at th e ti m e of t he c ommission
of the crime; while th e m odes of extinguishing criminal l i ability
happen after the consummation of the crime. On t he other hand,
the modes of preventing criminal li ability must happen before the
consummation of the crime.
Novation is not a mode of extinguishing criminal li ability. It
is a mode of preventing criminal l i a bili ty. H ence, novation must
happen prior to the consummation of the crime. If novation happens
after the consummation of the crime, it is not a defense since there
i s nothing t o p r e vent. On e cannot p r event t h e c ompletion of a
completed act.
J9JC9B0M
VI. MODIFICATION AND EXTINCTION 457
OF CRIMINAL LIABILITY
I n estafa thr ough m i sappropriation, th e accused must fi r s t
receive the property in t r u st , and t h en, he m i sappropriates it. I f
after receiving the property in trust, the commodatum contract was
novated into contract of loan, novation will prevent criminal liability
since non-payment of loan cannot be considered as misappropriation
within the contemplation of the provision on estafa.
After receiving the property in tru st, the accused sold it to his
neighbor. Thereafter, the complainant, who is unaware of the sale,
agreed to the novation of the commodatum contract into contract
of loan. Accused is l i a bl e fo r e s t afa t h r o ugh m i s appropriation.
Novation is a mode of preventing and not extinguishing criminal
liability. Since criminal liability for estafa immediately attached to
the accused when he sold the property held by him in t r ust to hi s
neighbor, novation is not a defense since there is nothing to prevent.
In estafa t h r o ugh m i s appropriation, t h e a c t o f r e c eiving
t he property in t r u s t i s no t ye t a c r i me. The criminal act i s t h e
misappropriation of t h e p r o perty a f te r r e ceiving it . T h u s , a ft er
receiving the property in trust but before the actual misappropriation
thereof, novation of the trust into loan or sale, shall prevent criminal
liability. On the other hand, in estafa through false pretense, the
act of receiving the property through deceit is criminal. Thus, after
receiving the property though false pretense, the crime of estafa
is already consummated, and t h erefore, novation, as a m ode of
preventing criminal liability, is not a defense since there is nothing
to prevent.
Judicial declaration of nullity of the first m ar r i age is a mode
o f preventing a n d n o t e x t i n g uishing c r i m i nal l i a b i l it y a r i s i n g
from bigamy for h aving a second marriage. In b i gamy, having a
first marriage is not a crime. The criminal act is having a second
marriage despite the subsistence of the first marr iage. Thus, after
having a first mar r iage but before contracting a second marriage,
declaration of null ity of th e fi rs t m a r r i age shall prevent criminal
liability for bigamy. In sum, the second marriage cannot be classified
as bigamous since the firstmarriage is not subsisting because of
such previous declaration when the second marriage was contracted.
But if after the first marriage and the second marriage, the former
was judicially declared null and void, such declaration, which is a
mode of preventing criminal liability, is not a defense since there is
nothing to prevent. The crime of bigamy is consummated when the
second marriage was contracted despite the subsistence of the first
marriage.
 458 CRIMINAL LAW REVIEWER
VOLUME I
PROBATION
P robation is no t a m o d e of e x t i n guishing cri m i nal l i a bilit y
u nder Article 89 of th e Revised Penal Code. Under the old r u l e,
the discharge of the probationer would not extinguish his criminal
liability. The essence of probation is the suspension of the execution
o f sentence. Thus, cr i m i nal l i a b i l it y w o u l d r e m ai n d e spite t h e
discharge of the probationer, but the sentence would not be semed.
(Villareal v. People, G.R. No. 151258, December 1, 2014) However,
this rule is not a n ymore controlling because of the amendrrents
introduced by R.A. No. 10707 to Section 16 of P.D. No. 968. Under the
law on probation as amended, the final discharge of the probationer'
shall operate to restore him all civil r i g hts lost or suspended as a
result of his conviction and to totally extinguish his criminal liability
as to the offense for which probation was granted. In sum, probation
is now a mode of extinguishing criminal liability in addition to those
mentioned in Article 89 of the Code.
DEATH OF THE ACCUSED
Death of th e o ffender or a ccused extinguishes his cri min al
liability. However, death of the offended party will not extinguish
the criminal l i a bilit y o f t h e o f f ender. (People v. X X X, G. B. ¹ .
205888, August 22, 2018)
Death After Fi n a l ity of Judgment
When the death of th e offender occurs after final j u d g ment,
only his criminal liability is extinguished. However, his civil liability
is not affected by his death. Hence, despite the death of a convict
after finality of conviction for theft, his heirs are obligated to return
to theoffended party the stolen properties.
Death Before Finality of Judgment
When the death of the offender occurs before final judgrrient,
his liability as to the personal penalties and pecuniary penalti =s is
extinguished under Article 89 of the Revised Penal Code.
Under the old rule, the term "pecuniary penalties "merely refers
to fine and costs. This term does not include "pecuniary li abilities"
o r civil l i a bilit y a r i s ing f rom c r i me. For e x ample, requiring t h e
accused to restitute or r eturn th e stolen property to th e offended
party cannot be considered as punitive; hence, restitution cannot
be considered apecuniary penalty. (People v.Sendaydiego, L-33252,
J9JC9B0M
VI. MODIFICATION AND EXTINCTION 459
OF CRIMINAL LIABILITY
January 20, 1978; 1981, 1987, 1990, and 1992 Bar Exams) However,
People v. Bayotas, G.R. No. 102007, September 2, 1994 case has
abandoned th e S endaydiego principle and r u l e d t h a t p e cuniary
penalties include not only fine and cost but also civil liability arising
from crime. (2000, 2004, 2013, and 2015 Bar Exams) Several cases
of the Supreme Court, one of which is People v. Lipata, G.R. No.
200302, April 20, 2016, have reaffirmed the Bayotas principle.
Death Pending Appeal
As a r u l e , A r t i cl e 8 9 m e r el y p r o v ides m odes of c r i m i n al
extinction. The modes of extinguishing civil l i ability ar e found in
the Civil Code. However, there is an exception. Under Ar t icle 89,
death of the offender, which occurs before the finality of judgment,
is a mode of extinguishing both criminal liability and civil liability
arising from crime.
Upon death o f a n a c c u sed p ending a p peal, h i s c r i m i n al
liability and the corresponding civil liability arising from crime are
extinguished, but civil liability arising from other source of obligation
such as quasi-delict, contract, quasi-contract or law survives. (People
v. Bayotas, supra)
1. Civ i l L i a b i l it y A r i s in g f r o m C r i m e — Ci v i l a c t i o n
based on crime is deemed included in th e i n stit u tion of criminal
action. Death of the accused pending appeal will cause the dismissal
of both th e c r i m i nal a c tion an d c i vi l a c t ion si nce th e l i abiliti es
involved therein are extinguished. (People v. Bayotas, supra)
2. Civ i l L i a b i l it y A r i s ing f ro m O t h e r S o u rce — C i v i l
action based on quasi-delict, contract, quasi-contract or law is not
deemed included in the institution of criminal action. Since death of
the accused pending appeal does not extinguish civil liability arising
from these sources of obligation, the private complainant must file a
separate civilaction against either the executor or administrator, or
the estate of the accused. The statute of limitations on this surviving
c ivil li ability i s d e emed int errupted du r in g th e p endency of t h e
criminal case. (People v. Bayotas, supra)
3. Ci v i l L ia b i l i t y I n v o l v i n g V i o l a t io n o f B. P . B l g .
22 — In vi olation of B.P. Blg. 22, the civil action based on crime,
q uasi-delict, contract (loan or s ale), quasi-contract or l a w i s
mandatorily i n cluded in t h e i n s t i t u t ion of cr i m i nal action. Since
death of the accused pending appeal extinguishes criminal liability
a nd civil l i a b i lit y a r i s in g f r o m c r i me, both c r i m i nal a c tion a n d
civil action based on crime will be dismissed. But th e civil action
 460 CRIMINAL LAW REVIEWER
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based on contract (or other sources of obligation), which was also
deemed instituted in th e criminal action for B.P. Blg. 22, will not
be dismissed. Hence, the court, despite the death of th e accused,
must determine this surviving civil li ability arising from contract.
(Bernardo v. People, G.IL. No. 182210, October 5, 2015) In sum, the
private complainant is not r equired to file a separate civil action
ased on contract involving a dishonored check.
4. Ci v i l A c t i o n i n G e n e r a l a n d C i v i l A e t i o '
c ion i n B.P.
B lg.. 222 -— Civil action in general and civil action in B.P. Blg. 22 are
distinguished as follows:
1 . Ci v i l a c t ion i n g eneral i s d eemed included in t h e
institution of criminal action unless the offended party made a
reservation. Civil action in B.P. Blg. 22 is mandatorily included
in the institution of criminal action. Reservation is not 11
d.
owever, civil action in general or civil action in B.P. Blg. 22 is
not included in the institution of criminal action if the former
was instituted prior to the latter;
2. On l y c i vil action based on crime is deemed included
in the institution of criminal action. In B.P. Blg. 22, civil action
based on crime, quasi-delict,contract, quasi-contract or law is
mandatorily included in the institution of criminal action;
3 . U p o n d e at h o f t h e a c cused pending a ppeal, t h e
criminal action and civil action based on crime will be dismissed.
Offended party m u s t fi l e a s e p ar ate ci vi l a c t ion b ased on
quasi-delict, contract, quasi-contract or law against either the
executor or administrator,or the estate of the accused. The
statute of limitations on this surviving civil liability is deemed
interrupted during the pendency of the criminal case.
U pon death of the accused pending appeal '
22 , the criminal action and civil action based on crimeB.P. Bl .
will be
dismissed. But the civil action based on quasi-delict, contract,
quasi-contract or law, which is included in th e in stitution of
criminal action, will not be dismissed. The court despite the
death of the accused must determine this'civil liability arising
rom contract, quasi-contract, quasi-delict or law.
PRESCRIPTION OF CRINIES
Thhe law on prescription of crimes is an act of grace whereby
t e State,after the lapse of a certain period of time, surrenders its
sovereign power to prosecute the criminal act. (People v. Beyes G.A.
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VI. MODIFICATION AND EXTINCTION 461
OF CRIMINAL LIABILITY
Nos. 74226-27, July 27, 1989) It is a loss or waiver by the State of its
right to prosecute an act prohibited and punished by law. (Magat v.
PeopLe, G.IL. No. 92201, August 21, 1991; 1987 and 1997 Bar Exams)
The contention of the Fiscal that accused waived the d.efense of
prescription because she did not raise it during the trial of the case
is untenable. It has already been settled that prescription, although
not raised in the trial, may be invoked on appeal. (People v. Balagtas,
I-10210, July 29, 1959; People v. Castro, L-6407, July 29, 1954)
The right of th e State to prosecute a person who committed
a crime must be exercised within a r easonable time. The laws on
prescription fixed the reasonable period within which the offender
can be prosecuted. Institution of criminal action for m u rder after
the lapse of 20 y e ars f ro m d i scovery t h ereof i s no t r e asonable.
Hence, the law fixes 20-year period of prescription for murder. The
prescriptive period designed to compel the State through the person
in authority o r i t s a g ent, or t h e o f f ended party t o i m m e diately
prosecute the offender within a r easonable period of time. That is
why upon discovery of the crime by the State or offended party the
prescriptive period will commence to run, and upon institution of
criminal action, the same will be interrupted.
Period of Prescription
Under Ar t i cle 90 of th e Revised Penal Code, the periods of
prescription forfelony (1947, 1956, and 1961 Bar Exams) are as
follows:
General rule:
Death penaltylreclusion perpetual
reclusion temporal 20 years
Other afflictive penalty (e.g., prision mayor) 15 years
Correctional penalty (e.g., prision correccionaL) 10 years
Except: Arresto mayor 5 years
Light offenses 2 months
Special Rules:
Libel or other similar offense 1 year
(Grave) oral defamat1on and (grave)
slander by deed 6 months
 462 CRIMINAL LAW REVIEWER
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Under Article 90, the crime of oral defamation and slander by
deed shall prescribe in six m onths. Oral defamation and slander
y deed mentioned in Article 90 refer to grave oral defamation and
grave slander bydeed. Simple oral defamation and simple slander
y deed are light felonies; hence, they shall prescribe in two months.
( eople v. Maceda, G.R. No. 48224, September 28, 1942; 1987 and
1997 Bar Exams)
The penalty for ot her f orms of sw indling u nder A r t i cle 315
of the Revised Penal CCode is arresto mayor i n i t s m i n i m um a n d
medium periods and a fine of not less than the value of the damage
caused and not more than three times such value. If the value of the
damage caused is Pl mil l ion pesos, the imposable fine is P1 million
t oP3m
P m iil l i on.
i o .This fine is an afflictive penalty since it exceeds P1.2
million. (Article 26)
The prescriptive period for a f e l ony p u n i shable by ar r e sto
mayor is 5 years, while that punishable by afflictive penalt o f f i
is 15 e a rs. H
years. However, for purposes of prescription, the court shall
consider the afflictive penalty of fine and not the correctional penalty
of arresto mayor. Under Artic le 91, when the penalty fixed by law
is a compound one, the highest penalty shall be made the basis of
the application of the rules on prescription. The penalty of fine for
being an afflictive penalty is hi gher than ar r e sto mayor, which is
just a correctional penalty. The Revised Penal Code contains no
provision which states that a fine when imposed in conjunction with
o r as alternative penalty t o i m p r i sonment i s s ubordinate to t h e
main penalty. In conjunction with or alternative to imprisonment, a
fine is as much a principal penalty as the imprisonment. Neith
subor dinate to the other. Hence, the period of prescription efori er is
thi s
crime of other forms of swindling is 15 years. (People v. Crisostomo,
G.R. No. L-16945, August 81, 1962)
The
he penalty for special complex crime of robbery with homicide
is reclusion perpetua to death. Hence, the period of prescription for '
this crime is 20 years. (2019 Bar Exam)
Computation of Prescription of Offenses
T he period of prescription shall commence to ru n f r o m t h e
d ay on which the crime is discovered by the offended part, t h e
a uthorities, or their agents, and shall be interrupted by the fili n g
of the complaint or information, and shall commence to run
such proceedings are terminated without th e accused being
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VI. MODIFICATION AND EXTINCTION 463
OF CRIMINAL LIABILITY
convicted oracquitted, or are unjustifiably stopped for any reason
not imputable to him. The term of prescr'.ption shall not run when
the offender is absent from the Philippines. (Article 91 of the Revised
Penal Code; 1968 Bar Exam)
Under Section 1, Rule 22 of the Rules of Ccurt, if the last day
of the period of time prescribed or allowed by these Rules, or by
order ofthe court, or by any applicable statute, falls on a Saturday,
a Sunday, or a legal holiday in the place where the court sits, the
time shall not r u n u n t i l t h e n ex t w o r k in g d ay . H owever, these
rules do not apply tolengthen the period fixed by the State for it
to prosecute those who committed a crime against it. The waiver or
loss of the right to prosecute such offenders by reason of prescription
is automatic and by operation of law. Where the 60th and last day
to file an I n f ormation falls on a S u nday or legal holiday, the 60-
day prescriptive period for l i ght f elony cannot be extended up to
t he next working day. Prescription has automatically set in. Th e
remedy is for the fiscal or prosecution to file the information on the
last working day before the criminal cffense prescribes. (Yapdiangco
v. Hon. Buencamino, G.R. ¹. L - 2 8 8 4 1, June24, 1983; 1988 and
1987 Bar Exams)
Com m e n c e m e nt of the Running of Period
T he period of prescription shall commence to ru n f r o m t h e
d ay on which th e cr ime i s d i scovered by th e offended party, th e
authorities, or their agents. (2010 Bar Exam)
1 . O f f e n d e d P a r t y a n d P e r so n i n A u t h o r it y a n d I t s
Agents — Pr escription runs only upon discovery of the crime by
the offended party or the State through a person in authority or his
agent because they are the persons required by law to immediately
p rosecute th e c ase w i t h i n t h e p r e s cr'-ptive p eriod. T he y h a v e
the capacity t o i n t e r r up t t h e r u n n i n g o f p r e scriptive period by
instituting cr i m inal action. Prior t o d i scovery of th e cr i me, they
c annot institute criminal action. Hence, it is only proper that t h e
running of prescriptive period will only commence upon discovery
of the crime because this is the only t i me t h at t h ey can institute
criminal action to interrupt its running. It is unreasonable to let the
period run, and yet, they cannot interrupt it because they are not yet
aware of the crime.
The running of the 20-year prescriptive period will commence
to run upon reporting of the discovery of the dead body of a murdered
 464 CRIMINAL LAW REVIEWER
VOLUME I
victim to the police, who is an agent of the person in authority. (2010
Bar Exam)
For purposes of prescription of crime, the offended party
includes the person to whom the offender is civilly liable. Thus, the
widow of the murdered victim is an offended party.
(Garcia v. CA,
G.R. No. 119068, January 27, 1997) Discovery of crime by a mere
witness, who is not an offended party or a p erson in authority or
his agent, will not cause the commencement of the running of the
prescriptiveperiod. (2000, 2004, and 2009 Bar Exams)
X, a five-year old boy, w i t n essed the t r eacherous kill ing of
his father. Since his tender age may affect his capacity to institute
criminal action for murder against the culprit, it is submitted that
the 20-year period of prescription shall only commence to run upon
reaching hisage of majority.
2. Con s t r u c t iv e N o t ic e R u l e — Th e a ccused falsified a
notarized Secretary's Certificate by making it appear that a certain
member of the board participated in the meeting where in fact he is
already dead. On the basis of this Certificate, and Deed of Sale the
Registry of Deeds cancelled the title ofthe corporation's property and
a new one was issued. The offender party constructively discovered
the cr im e o f f a l s i fication upon r e gistration of th e S e cretary
Certificate with the Deed of Sale in the Registry of Deeds because
of the rule on constructive notice to th e entire world; hence, the
period forprescription commences on the date of registration of the
falsified document, and not the date of actual discovery of the crime.
The case was dismissed sincethe 10-year period of prescriptio f
a sification lapsed because the information was filed more than 10
years from the registration of the document. (Lim v. People, G.R.
¹. 2 2 6 590,April 28, 2018; People v. Reyes, G.R. No. 74226, July 27,
1989; 1998 Bar Exam)
Constructive notice rule i s no t a p p licable to r egistration of
b igamous marriage in t h e Of fice of th e C i vi l R egistrar. The l a w
on registration of document involving real property specificall
p rovides the rule on constructive notice. On the other hand, the law
on Civil Registry or the Family Code, which governs registration of
marriage, does not provide rule on constructive notice, hence the
15-year period of prescription for bigamy commences to run on the
date of actual discovery of the bigamous marriage.
(Sermonia v .
Court of Appeals, G.R. No. 109454, June 14, 1994; 1995 and 2011
Bar Exams)
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VI. MODIFICATION AND EXTINCTION 465
OF CRIMINAL LIABILITY
3. Con t i n u i n g Cr ime — If the crime is continuing such as
rebellion or kidnapping, the period of prescription commences to run
from the date the crime ended. (Arches v. Bellasillo, G.R. No. L-1779,
June 29, 1948) Thus, the 20-year prescriptive period for kidnapping
shall only commence to run on the date the victim escaped or was
released.
In Arches v. Bellosillo, supra, the accused was charged with
violation of ordinance for constructing di~es that block the course of
a river and creek. The dikes were constructed in 1939 but the case
was filed in 1947. According to the accused, the case should have
been filed within two months from the construction of the dikes in
1939, For filing t he case in 1 947, it m u st be d is missed since the
two-month period ofprescription had already lapsed. However, the
Supreme Court ruled violation of the ordinance is a continuing crime
since when the case is filed the dikes are still blocking the course of
the river and creek. Hence, the crime has not yet prescribed.
Interru pt ion of the Run n ing of Period
The running of period of prescription shall be interrupted by
the filing of the complaint or information, and shall commence to run
again when such proceedings are terminated without the accused
being convicted or acquitted, or are unjustifiably stopped for any
reason not imputable to him. (Article 91 of the Revised Penal Code;
2010 Bar Exam)
The filing of complaint or information interrupts the running
of prescriptive period. Article 91 does rot distinguish whether the
complaint is filed in the Office of the Prosecutor or in the Ombudsman
for preliminary i nvestigation or in court for action on the merits.
The investigation to be conducted by prosecutorial agency where
the complaint is filed is an ini t ial step of the criminal proceedings
against the offender. It is unjust to deprive the injured party of the
right to obtain vindication on accourit of delays in the preliminary
investigation that are not under his control. All t hat th e victim of
the offense may do on his part to in i t i ate the prosecution is to file
the requisite complaint. (Francisco v. CA, G.R. ~Vo.L-45674, May
80, 1988) Section 1, Rule 110 of the 2003 Revised Rules of Criminal
Procedure adopts the principle enunciated in Francisco case. (1977
Bar Exam)
1. L a c k o f J u r i s d i ction — Th e i n f o r m a tion f or e s tafa,
which is fi led i n t h e M e t r opolitan T r ia l C ourt o f B a t angas City,
 466 CRIMINAL LAW REVIEWER
VI. MODIFICATION AND EXTINCTION
VOLUME I OF CRIMINAL LIABILITY

alleged that the crime was committed in Batangas City. However,

evidence showed that the crime is committed in Manila.
For purposesof quashing the information or dismissing thecase,
what is important is the proof that the crime was committed outside
the territorial jurisdiction of the court. Hence, the Information shall
be quashed or the case shall be dismissed if evidence shows that the
crime was committed in Manila, which is outside the jurisd::ction of
Metropolitan Trial Court of Batangas.
For purposes of determining whether or not the proceedings with
the i mproper court interrupt the running of prescriptive period. what
is important is the allegation in the information. If the Information
alleged that the crime was committed within the jurisdiction of the
Metropolitan Trial Court of Batangas, the filing of such information
and the subsequent proceedings are valid until the case is dismissed
for lack of terr i t orial j u r i sdiction. Hence, prescriptive period was
interrupted an d t o l led d u r in g t h e p e n dency of t h e p r oceedings
before Metropolitan Trial Court of Batangas City. (People v. Galano,
G.R. No. L-42925, January 81, 1 9 77) Moreover, the p roceedings
to be filed with court of competent jurisdiction should be regarded
as mere continuations of the previous proceedings pending before
the Metropolitan Trial Court of Batangas. (Cruz v. Enrile, G.A. ¹ .
L-75988, April 15, 1988; 1977and 2001 Bar Exams
) However, the
prescriptive period will r u n a g ain u pon th e dismissal of the case
for lack of territorial jurisdiction up to the time that it was re-filed
with the proper court. Under the law, the period of prescription shall
commence to run again when criminal proceedings are terminated
without the accused being convicted or acquitted.
This Galano p rinciple is applicable to complaint filed with the
Office of the City Prosecutor where it wa s alleged that th e crime
was committed within its territorial authority to investigate, but the
evidence shows the contrary.
2. P rescription of a Lesser Offense — Where an accused
has been found t o h av e committed a l e sser offense
(slight oral
defamation), which is included in th e offense charged (grave oral
defamation),he cannot be convicted of the lesser offense (slight oral
defamation), if it has already prescribed. To hold otherwise would
be to sanction the circumvention of the law on prescription by the
simple expedient of accusing the accused of the graver offense if the
lesser crime has already prescribed. (Francisco v. CA, supra; 1997
8. A b s e n c e f r o m t h e P h i l i p p i n e s — U n d e r A r t i cle 91,
the term of prescription shall not run w hen the offender is absent
from the Philippines. The period during which the offender is out of
the country shall not be counted for purposes of prescription of the
crime. (2010 Bar Exam)
S ection 2 o f A c t N o . 3 3 2 6 , w h i c h p r o v i des t h e r u l e o n
interruption of pr escriptive period for of fense under special law,
does not expressly provide interruption of period by being absent
f rom the Philippines. Silence means the la w d i d n o t i n t end t h e
circumstance of being absent from the Philippines to be a factor that
would interrupt the prescription of offenses under special law such
' as R.A. No. 3019. (Romualdez v. Marcelo, G.R. ¹s . 16 5 510-88,July
28, 2006)
PRESCRIPTION OF VIOLATION OF SPECIAL LAWS
ACT NO. 3326
Period of Prescription
Under Section 1 of Act No. 3326, violations penalized by special
acts shall, u n less otherwise provided i n s uch a cts, prescribe in
accordance with the following rules:
Violation of ordinance 2 months
Fine 1 year
Imprisonment for:
1 month 1 year
More than 1 month 4 years
2 years or more 8 years
6 years or more 12 years
Applying Section 1 of Act No. 3326, the period of prescription
for violation of B.P. Blg. 22 is four years because the penalty for it is
"not more than 1 year."
There are laws that p r ovide period of prescription of crimes
punishable thereunder.
Republic Act No. 8019 and R.A. No. 7080 provide a special rule
on the period of prescription. For corruption under R.A. No. 3019 as
amended by R.A. No. 10910, and plunder under R.A. No. 7080, the
prescriptive period is 20 years. But, the right of the State to recover

J9JC9B0M
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properties unl awfully a c quired b y p u b li c of ficials o r e m p l oyees
through corruption or plunder, from them or from their nominees or
transferees,shall not be barred by prescription, laches, or estoppel.
(Section 15 of Article XI of the 1986 Constitution; Section 6 o f RA .
No. 7080)
Act No. 3326 does not apply to corruption and pl u nder w i t h
regards to the rule on period of prescription since R.A. No. 3019 and
R.A. No. 7080 provide a specialrule on the period of prescription.
H owever, Ac t N o . 3 3 2 6 o n t h e r ule o f c o m m encement a n d
interruption of the running of prescriptive period is still applicable
to crimes under R.A. No. 3019 and R.A. No. 7080. (see: Disini v .
Sandiganbayan, G.R Nos. 1 6'9828-24 and 1 74764-65, S
2018)
eptember11,
Under Section 24 of R.A. No. 9262,,the period of prescription
for physical violence against woman and psychological or economic
v iolence against w omen 'involving controlling her c ondu"t i s 2 0
years; while that for sexual violence against women and for other
psychological violence is 10 years.
Under Section 36 of R.A. No. 11313 (Safe Space Act), gender-
based sexual harassment in public spaces involving wolf-whistling
or similar acts, making offensive body gestures, and stalking shall
prescribe in 1, 3, and 10 years, respectively.
Gender-based online sexual harassment shall be imprescrip-
tible. Gender-based sexual harassment in the work place shall pre-
scribe in 5 years.
U nder Section 12 of R.A. No. 9208 as amended b P . A . N .
1 0 364, trafficking in person shall'prescribe in 10 years. But if t h i s
crime is committed by a syndicate, or in l a rge scale or against a
minor, it shall prescribe in 20 years. The prescriptive period shall
commence to run from the day the trafficked victim is released from
the condition of bondage or in case of a child from the day he reaches
the age of majority.
Under Section 7 of R .A . No. 8042, illegal recruitment shall
prescribe in 5 years. However, illegal recruitment involving economic
sabotage shallprescribe in 20 years.
C ommencem ent of the Running of the Period
Prescription shall begin to run from the day of the cominission
of the violation of the law, and if the same be not known at the time
J9JC9B0M
469
VI. MODIFICATION AND EXTINCTION
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from the discovery thereof and the institution of judicial proceeding
for its investigation and punishment. (Section 2 of Act No. 8826)
1 . D is c o v er y a n d J u d i c i a l I n s t i t u t i o n — A l i t e r a l
' reading of Section 2 of Act No . 3326 appears to suggest that t h e
running of the prescriptive period will commence upon concurrence
of two elements, to wit: (1) discovery of the commission of the crime,
and (2) the institution of judicial proceedings for its investigation
and punishment. However, the in stitu t ion of j u dicial proceedings
will also interrupt the running of period. This rule will r ender the
law on p r escription n u gatory s i nce r u n n in g o f t h e p r e scriptive
p eriod and th e i n t e r r u ption t h e reof ar e s i m u l t aneous upon t h e
institution of judicial proceeding. Thus, the phrase "institution of
judicial proceedings for its investigation and pu n i shment" may be
either disregarded as surplusage or should b e deemed preceded
by the word "until." (People v. Duque, G.R. No. 100285, August 18,
1992)
2 . B la m e l ess I g n o r a nc e D o c t r i n e — G e nerally, t h e
prescriptive period shall commence to run on the day when the crime
is committed. An exception to this rule is the "blameless ignorance"
doctrine, under which prescription runs only upon discovery of the
crime by offended party or State through a person in authority or his
agent. In other words, the courts would decline to apply the statute
of limitations where the State through a person in authority or it s
agent, and the offended party does not know, or has no reasonable
means of knowing the existence of a crime. In sum, the State and the
offended party should not be blamed for failure to institute the case
immediately after the commission of the crime if i t /he is ignorant
of such commission. This p r i n ciple i s i n corporated i n S ection 2
of Act 3326 and Ar t i cle 91 of th e Revised Penal Code. (Disini v.
Sandiganbayan, G.R. ¹s . 1 6 9828-24and 1 74764-66, September 11,
2018)
8. Cr im e s b y M a r c o s ' C r o n i e s — C o nsidering t h a t
during the Marcos regime, no person would have dared to assail the
legality of the transactions involving cronies such as behest loan, it
would be unreasonable to expect that the discovery of the unlawful
transactions was possible prior to 1986. (Disini v. Sandiganbayan,
G.R. Nos. 169828-24 and 17 4764-66, September 11, 2018) Hence,
the prescriptive period for violation of R.A. No. 3019 commenced
from the date of it s discovery in 1992 after th e Committee made
an exhaustive investigation. (Presidential Ad h oc F act-finding
 470 CRIMINAL LAW REVIEWER VI. MODIFICATION AND EXTINCTION 471
VOLUME I OF CRIMINAL LIABILITY

Committee v. Hon. Desierto, G.R. No. 185715 April 13 2 011

oth ) T 1
o er w i se is to let the period of prescription run and yet the State
It would be absurd to consider the prescriptive period for false
testimony or violation of B.P. Blg. 22 as already running before it
could not interrupt it prior to the EDSA revolution.
becomes actionable,and yet, the offended party could not cause its
4. No n -filing of SAI N — As a general ruleunder Act 3326, interruption because he is not yet allowed to file a complaint.
prescription for offense punishable under special laws begins to run
In People v. Pa ngilin a n, G. R. N o. 1 5 2 662, June 1 3, 2 0 12,
f rom the date of the commission of the offense; if the date of th e
t he Supreme Court r e c k ons t h e c o m m encement o f t h e p e r i o d
commission of the violation is not known, it shall be counted from
of prescription for v i olations of B .P. B lg. 22 i m p u ted t o accused
the date of discovery thereof (the bl ameless ignorance doctrine).
sometime in the latter part of 1995, as it was within this period that
In determining whether it is the general rule or the exception that
the accused was notified by the private complainant of the fact of
should apply in a p a r t i cular case, the availability or s uppression
dishonor of the subject checks and, the five days grace period granted
of the information relative to the crime should first be determined.
by law had elapsed. The private complainant then had, pursuant to
If the necessary information, data, or records based on which the
Act No. 3326, four years therefrom or until th e latter part of 1999
c rime could be discovered is r eadily a v ailable to th e p u blic, th e
to file her complaint or information against the accused before the
g eneral rul e applies. Prescription shall, t h erefore, run f r o m t h e
proper court.
date of the commission of the crime. Otherwise, should martial law
prevent the filing thereof or should information about the violation
Interruption of the Run n ing of Period
be suppressed, possibly t h r ough connivance, then th e e xception
applies and the period ofprescription shall be reckon d f The prescription shall be interrupted whenjudic ial proceedings
th for investigation and punishment are instituted against the guilty
ate o discovery thereof. Under the law, SALNs are accessible to
the public for copying or inspection at reasonable hours. Under the person, and shall begin to run again if the proceedings are dismissed
circumstances, the State is to be presumed to know of her omissions for reasons not constituting jeopardy. (Section 2 of Act No. 8326')
during the eight-year period of prescription set in Ac t N o . 3326. 1. P an a g u i t o n P r i n c i p l e — In Za l d iv ia v. Reyes, Jr., G.R.
(People v. Parba-Rural, G.R. No. 281884, June 27, 2018).
No. 102342, July 3,1992, the proceedings referred to in Section 2
5. Vi ol a t io n o f B. P . B l g . 2 2 — As of Act No. 3326 are "judicial proceedings" (which does not include
a rule, p eriod o f administrative proceedings). Thus, a c r i m e s uch a s v i olation of
p rescription commences to ru n f r o m t h e d at e of d i scovery of i t s
commission. However, if the crime is not yet actionable at the time ordinance may prescribe even if th e complaint is fi led seasonably
o f its commission, period of p r escription w il l c o m mence to r u n with the prosecutor's office if, int entionally or n ot , he delays the
rom the time it becomes actionable. In false testimony, the period institution of the necessary judicial proceedings until it is too late.
o f prescription commences to run f rom th e date of the fi n ality of
judgment of a case in which the offender testified falsely. Prior to
However, the Supreme Court inPanaguiton v. D of epartment
Justice,G.R. No. 167571, November 25, 2008, expressly abandoned
the date of finality, the crime is not yet actionable. (People v. Manej a, the Zaldivia principle. It was held that: Under Act No. 3326, the
G.R. No. 47684, tune 10, 1941; 1994 Bar Exam) running of the prescription of offense punishable under special law
In violation of B.P. Blg. 22 t h e cr ime is co shall be i n t errupted when j' u d i c ial p r o ceedings for in v estigation
the dishonor of the check by the dra wee bank. (Bautista v. Court and punishment" a re i n s t i t u t ed a g ainst t h e g u i l ty p e r s on. The
proceeding is described as "judicial" since when Act No. 3326 was
of B.P.
o . . Bl g. .2 2 , t t
h eefo ur- passed on December 4, 1926, preliminary investigation of criminal
four-year period of prescription for such crime
offenses was conducted by justices of the peace. Considering that
commences to run f r om t he d a te of t he expiration of the jive-day
period f rom receipt of notice of dishonor by t he d r a wer. Prior t o preliminary investigation in criminal case for purposes of prosecution
has become the exclusive function of the executive branch, the term
that date, the crime is not yet actionable. (see: People v. Pangilinan,
"proceedings" should no w b e u n d erstood either a s e x ecutive or
G.R No. 15266'2,June 18, 2012)
judicial in character: executive when it involves the investigation

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 472 CRIMINAL LAW REVIEWER
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phase and judicial when it re f ers to the tri al a nd judgment stage.
Hence, institution o f p r o ceeding, whether executive or j u d i cial,
interrupts the running of prescriptive period.
Applying the Panaguiton principle, the commencement of the
following proceedings for the prosecution of the accused effectively
interrupted the prescriptive period for the offense charged:
1. Fi l i n g of complaint for violation of B.P. Blg. 22 with
the Office of the City Pr osecutor (Panaguiton v. Department
of Justice, G.R. No. 16 7 571, November 25, 20 08; People v.
Pangilinan, G.R. No. 152662, tune 13, 2012);
2. Fi l i n g o f c o m plaint f o r v i o l ations of t h e R e vised
S ecurities Act a n d t h e S e curities w it h t h e S e curities an d
Exchange Commission (SEC v. Interport Resources Corporation,
G.R. No. 135808, October 6, 2008); and
3. Fi l i n g o f c omplaint for v i olation of R .A. No. 3019
with the Office of the Ombudsman. (Disini v. Sandiganbayan,
G.R. Nos. 169823-24 and 174764-65, September 11, 2013)
However, preliminary i n vestigation for vi olation of R.A. No.
3019 b y alleged cronies of Marcos not involving il l -gotten wealth
c onducted by P C
CGG G i s vo id ab i n i t io a nd could not i n t e rrupt t h e
20-year prescriptive period f o r v i o l a t ion o f R . A . N o . 3 0 1 9. T h e
investigatory power of the PCGG extended only to alleged ill-gotten
wealth cases. (People v. Romualdez and Sandiganbayan, G.R. No.
166510,April 29, 2009)
2. Ja d ew e l l P r i n c i p le — In Ja d e w ell P a r k i ng S ystems
Corp. v. Lidua, Sr., G.R. No. 169588, October 7, 2013, the Supreme
ourt applied the Zaldiv ia pr i nciple to prescription of violation of
ordinance in interpreting Act No. 3326. The provision in the Rules
on Criminal Procedure regarding the interruption of prescription
by institution of cr i m i nal a ction i s no t a p p licable to vi olation of
ordinance because case involving this crime is covered by the Rules
on Summary Procedure. Hence, the filing of complaint i n v olving
violation of ordinance for preliminary investigation with prosecutor's
office will not interrupt the running of prescription.
Jadewell pr i n ciple is n ot c o m patible w i th Pa n a guiton case
and other affir m atory cases since while th e l a t ter ab andoned the
aldivia, the f o rmer a ff irmed i t. B e cause of the i r r e concilability
of these principles, the application of the Ja dewell case should be
J9JC9B0M
VI. MODIFICATION AND EXTINCTION 473
OF CRIMINAL LIABILITY
confined to violation of ordinance. If the crime is punishable under
the Revised Penal Code or special law other than ordinance, principle
other than J'adewell should be applied even if the crime is covered
by the Rules onSummary Procedure.
8. Ru l e s o n I n t e r r u p t i o n o f P r es c r i p t i on — The
following rules shall be observed pertaining to the interruption of
period ofprescription:
a. Fe l o n y — If th e cr i me is punishable by a Revised
Penal Code, the filing of complaint for preliminary investigation
interrupts the running of prescriptive period. Article 91 of the
Revised Penal Code does not distinguish whether the complaint,
the filing of which interrupts the running of prescriptive period,
pertains to that filed in the prosecutor's office for preliminary
investigation or in court for action on the merits. (Francisco
v. CA, G.R. No. L-45674, May 30, 1983). The Francisco rule
applies even if the crime is covered by the Rules on Summary
Procedure. In People v. Bautista, G.R. No. 168641, April 2 7,
2007, the S u pr eme C our t a p p l ied t h e Fr a n c isco pr i nciple
to slight physical injuries, which is covered by the Rules on
Summary Procedure.
b. O f f e nse Under Special Law — If th e crime is
punishable by a special law, the proceedings, the institution
o f wh ic h i n t e r r u pt s r u n n i n g o f p r e s criptive p e r i od, a r e
either e x ecutive o r j u d i c i al . H e n ce, t h e r u n n i n g o f th e
prescriptive period foroffense punishable under special law
shall be interrupted upon filing of complaint for preliminary
investigation. (Panaguiton v. De partment of J u s t ice, supra;
SEC v. In t e r port R e sources Corporation, s u pra; D i s i ni v .
Sandiganbayan, supra; People v. Pangilinan, supra) This rule is
applicable even if the case is covered by the Rules on Summary
Procedure. In fact, the Panaguiton case and Pangalinan case
involve violation of B.P. Blg. 22, which is covered by the Rules
on Summary Procedure.
However, vo i d pr el i m i n a ry i nv e s t igation c o n d ucted
w ithout a u t h or it y w i l l n o t i n t e r r up t t h e r u n n i n g o f t h e
prescriptive period for a c r i m e. (P eople v. Ro m ualdez and
Sandiganbayan, supra)
c. V i o l a t i on of Ordinance —If the crimeis punishable
by an ordinance, the institution of which interrupts running of
prescriptive period, is judicial. Hence, the filing of complaint
 474 CRIMINAL LAW REVIEWER
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I VI. MODIFICATION AND EXTINCTION 475
OF CRIMINAL LIABILITY

involving violation of ordinance for preliminary investigat'

ion PRESCRIPTIONS OF CRIME AND PENA! TY
willn o t i n t e r r upt the running of tuo -month prescription. The
wi
provision in th e R ules on Cri m i nal Procedure regarding the The periods of prescription of crimes and prescription of
interruption of prescription by institution of criminal action is penalties in general are as follows:
not applicable to violation of ordinance because case involving
t is cr ime i s covered by th e R u les on Summary Pr ocedure. Prescription of: crime penalty
(Jadewell Parking Systems Corp. v. Lidua, Sr., supra) Death penalty 20 years 20 years
Reclusion perpetua 20 years 20 years
PRESCRIPTION OF PENALTIES
Reclusion temporal 20 years 15 years
Period of Prescription
Prision mayor 15 years 15 years
Under Ar t i cle 92 of t h e R e vised Penal Code, the penalties
Prision correccional 10 years 10 years
imposed by final sentence prescribed as follows:
Arresto mayor 5 years 5 years
Death penalty(reclusion perpetua 20 years
Arresto menor 2 months 1 year
Other afflictive penalties 15 years
Correctional penalty 10 years Death penalty, and felony punishable by death penalty shall
Except: Arresto mayor prescribe in 20 years.
5 years
Light penalty As a general rule, afflictive penalties and crimes punishable by
afflictive penalties shall prescribe in 15 years. However, there are
C omputation of the Prescription of Penalties exceptions; reclusion perpetua and crimes punishable by reclusion
perpetua and reclusion temporal shall prescribe in 20 years.
The period of p r escription o f p e n alties shall c ommence to
run from the date when the culprit should evade the service of his As a general rule, correccional'penalties and crimes punishable
sentence, and it shall be interrupted if th e defendant should give by correccional penalties shall prescribe in 10 years. However, there
h imself up, be captured, should go to some foreign country w i t h are exceptions. Arresto mayor, and c ri m es punishable by ar r esto
which this Government has no extradition treat (2 0 1 5 B mayor shall prescribe in 5 years.
E ),
or s ou c o m m i t a n other crime before the expiration of the period Light penalties shall prescribe in 1 year while light felony shall
of prescription. (Article 92 of the Revised Penal Code) prescribe in 1 month.
In Del Castillo v. Hon. Torrecampo, G.R. No. 139083, December There are specialrules on prescription of defamatory crimes.
18, 2002, Ar t i cle 9 3 o f t h e R e v ised Penal C ode provides when Libel or other similar offenses shall prescribe in two years; while
the prescription of penalties shall commence to r un . U n der said (grave) oral defamation and (grave) slander by deed shall prescribe
provision, it shall commence to run from the date the felon evades in six months. There are no special rules for prescription of penalties.
the service of his sentence. Pursuant to Article 157 of the same Code, '
evasion of service of sentence can be committed only by those who
Commencement
have been convicted by final judgment by escaping during the term
of his sentence. The petitioner never served a single minute of his The period of prescription of crime shall commence to run from
sentence, and thus, prescription never started to run in hi s favor. the day on which the crime is discovered by the offended party, the
learly, one who has not been committed to prison cannot be said to authorities,or their agents. The period of prescription of penalties
have escaped therefrom. (2015 Bar Exam) shall commence to run from the date when the culprit should evade
the service of his sentence.

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 476 CRIMINAL LAW REVIEWER
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Interruption
The period of prescription of crime shall be interrupted by the
filing of the complaint or i n formation, 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 wh en
the offender is absent from the Philippines.
The period ofprescription of penalties shall be interrupted if
the defendant should give himself up, be captured, should go to some
foreign country w i t h w h i c h t h i s G overnment ha s n o ex t r adition
treaty, or should commit another crime before the expiration of the
period ofprescription.
Under Article 93 of the Revised Penal Code, the running of
period of prescription for penalty shall be interrupted if the accused
should go to some foreign country with w hich this government has
no extradition treaty.
If the Philippine government has an extradition t reaty w i t h
the foreign country, the running of the prescriptive period shall not
be interrupted. This will compel the State to extradite the evader
within the prescriptive period.
If the Philippine government has no extradition t reaty w i t h
the foreign country, th e r u n n in g of t h e p r escriptive period shall
be interrupted. In the absence of extradition treaty, the State can
neither ap prehend n or e x t r a d ite t h e a c cused. Hence, it i s o n l y
proper to suspend the running of the period. Otherwise, the period
is running and yet the State cannot interrupt it since there is no way
to apprehend the accused.
Under Article 91, the term of prescription for crime shall not run
when the offender is absent from the Philippines. Unlike in Article
93, the non-existence of extradition treaty between the Philippines
and a foreign country is not determinative to the interruption of the
running of period of prescription for crime. In sum with or wit hout
extradition treaty, the prescriptive period for crime shall not run,
if the accused should go to some foreign country. (1960 Bar Exam)
PARDON BY OFFENDED PARTY
Private Pardon as a Bar to Crimi n al Prosecution
Under Art icle 28 of th e Revised Penal Code, express waiver
by the offended party extinguishes civil liability of the off nder
J9JC9B0M
VI. MODIFICATION AND EXTINCTION 477
OF CRIMINAL LIABILITY
with r egards to t h e i n t e rest of t h e f o r m er; h owever, pardon by
the offended part y d oes no t e x t i n g uish c r i m i na l a c t ion e xcept
as provided in Ar t i cle 344 of thi s Code, which provides a rule on
pardon in crimes against chastity such as adultery, concubinage,
seduction, abduction, or acts of lasciviousness. However, pardon in
Article 344 involving adultery, concubinage, seduction, abduction,
or acts of lasciviousness, which are called private crimes, is not a
mode of extinguishing criminal l i abili ty. I t i s j ust a ci rcumstance
that will prohibit the prosecution of the offender, or the institution
of criminal action. It d oes not even prohibit th e continuance of a
p rosecution if t h e o ffended party p a r dons the offender after t h e
institution of criminal action. Neither does it order th e dismissal
of said case. The only act that according to Article 344 extinguishes
the penal action and th e penalty t hat ma y h ave been imposed is
the marriage between the offender and the offended party. (People
v. Miranda, G.R. ¹ . 881 7 1 , October 6, 1982; Alonte v. Savellano,
G.R. No. 1816$2, March 9, 1998) However, pardon or forgiveness in
marital rape is a mode of extinguishing criminal liability .
Before,Article 344 also covered rape as a crime against chastity.
Since R.A. No. 8353, which amended the Revised Penal Code, took
effectin 1997, rape is no longer considered a crime against chastity.
Having been reclassifiedas a crime against persons, it is no longer
considered aprivate crime, or one which cannot be prosecuted except
upon a complaint fi led by th e aggrieved party. (People v. Estibal,
G.R.¹. 208749, November 26, 2014) Hence, pardon by the offended
party in rape as evidence by execution of affidavit of desistance will
not prohibit the institution of criminal action or the continuation of
the prosecution of the offender. (1991 Bar Exam)
Pardon in the Form of Marriage
Pardon in the form of marriage shall totally extinguish criminal
liability arising from seduction, abduction, or acts of lasciviousness.
(Article 89) This marriage between the offended party and offender
shall also extinguish criminal action'if the same is already instituted,
or penalty if the same is already imposed. (Article 844)
There are two rules under Article 334 of the Revised Penal Code
in connection with marriage as a mode of criminal extinction. First,
in cases of seduction, abduction, acts of lasciviousness and rape, the
marriage of the offender with th e offended party shall extinguish
the criminal action or remit the penalty already imposed upon him.
 478 CRIMINAL LAW REVIEWER
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Second, this rule on criminal extinction shall also be applicable to the
co-principals, accomplices, and accessories.
A, B, and C, helping one another, sexually abused a woman
X three ti mes, each of t hem t a k in g t u r n s i n c o m mi t t in g acts of
l asciviousness wit h h e r . S u b sequently, A m a r r i e d X . M a r r i a g e
extinguished the criminal l i a bility of A a s p r i n cipal w it h r e spect
to the acts of lasciviousness that he personally committed and the
criminal liability of B and C as co-principals by reason of conspiracy.
But the criminal liabilities of A, B, and C by reason of conspiracy
with respect to the acts of lasciviousness committed personally by B
and that by C are not extinguished since neither B nor C married X.
(1 982 Bar Exam)
Article 884 p r ovides mar r i age as a m o d e o f e x t i n guishing
criminal liability arising from rape. According to Justice Regalado,
since rape is now a crime against person, it should be considered as
deleted from the text of Article 384. In case of rape, the applicable
rule is now Article 266-C of the Revised Penal Code as amended by
R.A. No. 8858. Under this provision, subsequent marriage between
the offender and offended party shall extinguish the criminal action
or penalty: Provided, That the crime shall not be extinguished or the
penalty shall not be abated if the marriage is void ab initio. (2002
Bar Exam)
It seems that R.A. No. 8358 adopted the first rule in Article 344
of the Revised Penal Code but not the second rule. Hence, marriage
b etween the offender and offended party w il l n o t e x t i n guish t h e
criminal liability of the co-principal, accomplice or accessory of the
crime ofrape. (1982 Bar Exam)
F orgiveness in Mar i tal R a p e
I n case i t i s t h e l e ga l h u s b and w h o i s t h e o f f ender, t h e
s ubsequent forgiveness by th e w i f e a s t h e o f fended party s h a l l
extinguish the criminal action or the penalty. (Article 266-C of the
Revised Penal Code; 2011 Bar E x a m) Ma r r i a ge is n ot a m o de of
extinguishing criminal liability for marital rape because the parties
are already married. Hence, forgiveness is enough to extinguish this
liability.
Immutability of Final Ju d gment
The general rule is that a judgment that has acquired finality
becomes immutableand unalterable,and may no longer be modified
J9JC9B0M
VI. MODIFICATION AND EXTINCTION 479
OF CRIMINAL LIABILITY
in any respect even if the modification is meant to correct erroneous
conclusions of fact or law and whether it w il l be made by the court
that rendered it or by the highest court of the land. This doctrine
is based on the public policy that the judgments or orders of courts
must become final at some definite t im e fi xed by l aw ; otherwise,
there would be no end to l i t i gations. (Hernan v. Sandiganbayan,
G.R. No. 21 7874, December 5, 2015)
1. V o i d j u d g m ent — The immu tability of final judgement
will not apply in a c ase where the judgment is void. (Navarra v .
Liongson, G.A. No. 217980, April 18, 2016)
X was charged with rape by Z. During the pendency of the
case, X married Z. Upon motion of X t h e court dismissed the case
on the ground of extinction of criminal li ability ari sing from rape.
H owever, after fi v e y e ars, th e m a r r i age wa s declared nul l a n d
v oid for l ack of m a r r i age license. The court u pon m otion of t h e
prosecution can reconsider the order of dismissal and revive the case
without offending the rules on immutability of judgment and double
jeopardy.
The validity o f t h e o r d e r o f d i s m i ssal b ased on c r i m i n al
extinction for purpose of applying the rule on immutability of final
order will depend on the validity of the criminal extinction.
Under Article 266-C of the Revised Penal Code, the subsequent
v alid m a r r i age b e t ween t h e o f f ender a n d t h e offended party
s hall extinguish th e cr i m i nal a ction; but t h e c r im e shall not b e
extinguished if the marriage be void ab initio.
In this case, since the marriage between X and Z is judicially
declared as null and void, it is submitted that the order of dismissal
due to criminal extinction based on such marriage is also null and
void. Hence, the court can r e v ive th e case because the doctrine
of immutability of fi na l o r der sh all no t a p ply s i nce the order of
dismissal is invalid.
It is a basic rule that if the accused is acquitted or the case is
dismissed, which amounts to an acquittal (e.g., dismissal based on
right to speedy disposition), the rule on double jeopardy will apply
even if the termination of the case is made with the corformity of
the accused. However, if the order of dismissal is not equivalent to
an acquittal (e.g., dismissal based on lack of jurisdiction), the rule
on double jeopardy will only apply if the termination of the case is
made without his express conformity.
 480 CRIMINAL LAW REVIEWER
VOLUME I
In this case, it is submitted that the order of dismissal, which
is based on criminal extinction, is not equivalent to an acquittal.
Hence, the court can revive the case without violating the rule on
d ouble jeopardy since the dismissal is made upon motion of X or
with his conformity.
Immutability of order of dismissal rule and double j
eopardy rule
will not also apply in reviving a case, which was invalidly dismissed
based on criminal extinction due to presentation of death certificate
where it wa s found after fiv e y ears t ha t t h e d eath certificate is
falsified and the accused is still alive.
2 . S u b s t a n t i a l j u s t i c e — Th e i m mu t a b i l it y o f fi n a l
judgments is not a hard and fast rule as the Court has the power
and prerogative to relax the same in order to serve the demands of
substantial justice. (People v. Layag, G.R. ¹. 21 4 8 7 5,October 17,
2016).
If the death of the accused happened prior to the fins.lity of the
judgement convicting him of rape and acts of lasciviousness, but the
Supreme Court was informed of such death only after the finality of
such judgment, the case will be re-opened for purposes of dismissing
the case due to criminal extinction. (People v. Layag, supra
) may not be interfered with by C ongress or the Court, except only
If the penalty imposed by the trial court is not in accordance
with the law, the Supreme Court can re-open a final and immutable
judgement to impose the correct penalty under the law. (Bigler v.
People, G.R. No. 210972, March 19, 2016)
If the new law prescribes a lesser penalty forthe crime of
which the accused was previously convicted by fi na l j u d gement,
the Supreme Court can re-open a final and i m m u table judgement
judgment to impose the lesser penalty under the new law. In sum,
the new law shall be given a retroactive effect. (Hernan v. Honorable
Sandiganbayan, G.R. No. 21 7874, December 5, 2017)
PARDON BY THE CHIEF EXECUTIVE
Grant of pardon is an act of forgiveness, and thus, it relieves
the person pardoned from the penal consequences of the crime but
it doesnot erase or blot out the crime itself.Pardon does not make a
person innocent of the crime from which he was convicted. As far as
th e law is concerned, a person pardoned is still a convicted criminal
although he will not suffer the penal consequences of his criminal
act. The very act of forgiveness implies the commission of wrong,
J9JC9B0M
VI. MODIFICATION AND EXTINCTION 481
OF CRIMINAL LIABILITY
and that wrong has been established by the most complete method
known to modern civilization. Pardon may relieve the offender from
the disability of fines and forfeitures attendant upon a conviction,
but they cannot erase the stain of bad character, which has been
definitely fixed. (Monsanto v. Factoran, Jr., G.R. No. 78289, February
9, 1989)
Limitations to the Pardoning Power
The pardoning power of th e P r esident cannot be li m i ted by
legislative action. T hi s p ower i s c o nferred b y t h e C o n stitution;
hence, only the Constitution can limit the exercise thereof. The only
instances in which the President under the Constitution may not
extend pardon are asfollows: (1) impeachment. cases; (2) cases that
have not yet resulted in a fi nal conviction; and (3) cases involving
violations of election laws, rules and regulations in which there was
no favorable recommendation coming from the Comelec. (Risos-Vidal
v. Lim, G.R N o . 20 6 666, January 21, 2015) These constitutional
limitations are exclusive.
In Risos-Vidal v. Li m , s upra, the S upreme Court, En B a n c,
said that the pardoning power is discretionary in the President and
when it exceeds the limits provided for by the Constitution.
Under Article 160 of the Revised Penal Code, a quasi-recidivist
shall bepardoned at the age of 70 years provided that he is not a
habitual criminal and has already served out his original sentence,
or completed it after reaching said age. It should be noted that the
pardonable crime in Article 160 pertains to crime committed while
he was serving his sentence in prison as a convicted prisoner, and
not to the crime covered by his original sentence committed by him
before he was detained as a convicted prisoner.
Article 160 of the Code is an interference to the absolute and
discretionary pardoning power of the President, which is a violation
of the non-interference principle in the case of Risos-Vidal v. Lim ,
supra. According to former CA Justice Mariano Albert, the second
paragraph of Article 160 on pardon is unconstitutional.
In Celestial v. People, G.R. No. 214865, August 19, 2015, it was
held that death penalty is the penalty two degrees higher than the
fixed penalty of 20 years of reclusion temporal for qualified theft.
However, Article 74 prohibits the i m position of death penalty by
applying the rules of graduation. In such a situation, the penalty of
 482 CRIMINAL LAW REVIEWER
VOLUME I
reclusion perpetua shall be imposed with the accessory penalties for
death penalty. Moreover, applying Article 93 of the Old Penal Code,
which Article 74 of the Revised Penal Code is derived, a convict in
such cases cannot be pardoned until 40 years had elapsed.
It is submitted that A r t i cle 93 of the Old Penal Code cannot
prohibit th e P r esident i n g r a n t in g p a rdon t o a p e r son convicted
of qualified theft because Article 367 of th e Revised Penal Code
has expressly repealed the Old Penal Code. Moreover, Article 93
of the repealed Penal Code is an int erference to the absolute and
discretionary pardoning power of the President, which is a violation
of the non-interference principle in the case of Risos-Vidal v . Lim ,
supra. At any rate, in several cases such as San Diego v. Thne Hon.
CA, G.R. No. 176114, April 8, 2015; People u. Cruz, G.R. No. 200081,
June 8, 2016, the Supreme Court is not imposing reclusion perpetua
without eligibility fo r p a r do n f or 40 ye a rs i n q u a l if ied t h e ft i n
accordance with the Ce lestial pr i n ciple regardless of the value of
the property stolen. The highest penalty for qualified theft in these
cases is only reclusion perpetua.
Not a Mode of Extinguishing the Cri m e
Under Arti cle 89 of th e Revised Penal Code, pardon totally
extinguishes the criminal liability of the convict. Hence, pardon is
just a mode of extinguishing criminal liability. Same as death of the
offender (People v. Henry Go, G.R. ¹. 168 5 8 9, Ma r ch 25, 2014),
pardon is not a mode of extinguishing the crime itself.
O ne is disqualified to ru n a s p r esident of a l a bor u r i o n f o r
committing a crime involving moral turpitu'de, which is covered by
the executive pardon. The pardon granted by the President to him
did not extinguish or obliterate the crime, which is the basis of his
disqualification. (1 974 Bar Exam)
Reinstatement and Backw a ges
Though person pardoned will not serve the penalty imposable
for the crime to which he was convicted and will be eligible to hold
government office, he is not enti t led to demand his lost earnings
during the pendency of his case and reinstatement to hi s former
position as government employee. (Monsanto u. Factoran, G.R. No.
78289, February 9, 1989; 1990 and 1994 Bar Exams) But a pardonee
may apply forre-appointment and the concerned department may
reinstate him t o h i s f o r mer position, if t h e s ame is st il l v a cant.
J9JC9B0M
VI. MODIFICATION AND EXTINCTION 483
OF CRIMINAL LIABILITY
(Sabello u. D epartment of Education, Culture and Sports, G.R. ¹.
87687, December 26, 1989) But by way of exception, a pardoned
person may be given such ri ght t o b ackwages and reinstatement
where the President on the basis of his i n nocence pardoned him.
(Garcia v. Commission on Au d i t, G . R. No. 75 025, September 14,
1998)
AMNESTY
Amnesty is d efined as a n a c t o f g r a c e ( by t h e P r e s ident)
concurred in by the legislature, which is usually extended to groups
of persons who committed a political offense, which puts into oblivion
the offense itself. (Outline Reviewer in P olit ical L aw b y S olicitor
General Antonio Nachura) Un der Ar t i c le 89 of the Revised Penal
Code, criminal li ability, penalty and "a ll it s effects" are totally or
completely extinguished by amnesty.
M ode of Extinguishing the Cr i m e
Amnesty commonly denotes a general pardon to rebels for their
treason or other high political offenses, or the forgiveness which
one sovereign grants to the subjects of another, who have offended,
by some breach, the law of nations. Amnesty looks backward, and
abolishes and puts into oblivion, the offense itself; it so overlooks
and obliterates the offense with which he is charged, that the person
released by amnesty stands before the law precisely as though he
had committed no offense. (Magdalo Para sa Pagbabago u. Comelec,
G.R. No. 190798, June 19, 2012)
One who evaded service of his sentence by escaping during the
term of his imprisonment, which is imposed for rebellion by reason
of final judgment, is liable for evasion of service of sentence. If he
received amnesty for rebellion, there is no basis to prosecute him for
evasion of service of sentence because the imprisonment sentence
that he evaded has been obliterated.(2009 Bar Exam)
Under Article 89 of the Revised Penal Code, amnesty totally
extinguishes criminal l i ability, th e penalty for t h e c r ime and al l
its effects. However, the criminal extinction is not automatic upon
the legislative concurrence of t h e a m n esty p r oclamation i ssued
by the President. The criminal liability of the applicant shall only
b e extinguished upon th e d etermination t ha t t h e c r im e t ha t h e
c ommitted is covered by th e a m nesty proclamation and t hat t h e
accused complied with conditions for amnesty entitlement..
 484 CRIMINAL LAW REVIEWER
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Under A m n e sty P r o clamation no. 8 , d a t e d 1 9 4 6 i s s u ed
b y President R oxas, th e a m n esty c overs c r i m es c ommitted i n
furtherance of resistance against the enemy as determined by the
Commission. In Ve ra v. N a n a d iego, G.R. No. L- 26539, February
28, 1990, the Supreme Court ruled that the criminal liability of the
accused had been completely extinguished by virtue of the amnesty
extended to him by Commission in 1956.
Amnesty Proclamation no. 76, dated June 21, 1948 issued by
President Quirino granted amnesty to Huks, who have committed
the rebellion subject t o t h e c ondition t ha t t h e y m u s t p r esented
themselves with al l t h ei r a r m s t o th e au thorities within 2 0 d ays
from the date of concurrence by th e C ongress. Compliance vrith
t he condition as d etermined by t h e a m n esty commission or t h e
court shall extinguish the criminal liability of a Hu k a r i sing from
rebellion. (Tolentino v. Catoy, G.A. No. L-2508, December 10, 1948)
Conditions to Avail of Amnesty
There are two kinds of condition to avail of the benefit of an
amnesty proclamation, to wit: (1) express condition and (2) inherent
condition.
1. E x p r e s s Condition — 'Theamnesty proclamation may
expressly impose conditions to be entitled to the benefit of an am-
nesty proclamation. For example, the Quiri no am nesty proclama-
tion granted amnesty to members of the HUKBAL A H AP subject to
the condition that they shall present themselves with their firearms
with government authorities within 20 days from the congressional
concurrence of the proclamation.
2. I n he r e n t C o n d i t ion —Admission of guilt is a condition
for amnesty entitlement. Even t h ough an a m nesty proclamation
does not expressly impose this admission of guilt as condition i-, is
)
still necessary for the accused to admit the commission of the crime
charged to be en t i t led t o t h e b enefits of a m n esty p r oclamation.
A mnesty presupposes the commission of a c r i me , an d w h e n a n
accused maintains that he has not committed a crime, he cannot
have any use for amnesty. Invocation of amnesty is a confession and
avoidance defense where the accused confessed to the commission of
the crime charged and avoid criminal liability by invoking amnesty.
(Vera v. People, G.B. ¹. L - 1 8 1 84,January 81, 1968)
In pardon, it is constitutionally required that the same must
be given after conviction by final judgment. Admission of guilt is not
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VI. MODIFICATION AND EXTINCTION 485
OF CRIMINAL LIABILITY
required for one to be pardoned by the President since he is already
convicted.
3. B ur d e n o f P r oof —The invocation of amnesty is in the
nature of a plea of confession and avoidance, which means that the
pleader confesses to the crime charged and avoids criminal liability
by showing that s uch cr im e i s w i t h i n t h e s cope of th e a m nesty
p roclamation an d t h a t t h e c o n ditions, express or i n h erent, a r e
present. It is incumbent upon the accused to prove that he is entitled
to the amnesty proclamation. (Vera v. People, G.B. No. L-18184,
January 31, 1968)
The Roxas proclamation granted amnesty to all persons who
committed a felony in f u r t h erance of the resistance to the enemy
during the Japanese occupation. If the accused invoke this amnesty,
it is i n cumbent u pon hi m t o s h o w t h a t t h e c r i m e ch arged was
committed in f u r t h erance of the r esistance against the Japanese
Empire and that he admitted his guilt, which is a condition to be
entitled under this amnesty proclamation.
4. D e t e r m i n a t io n o f A m n e s t y E n t i t l e m en t — Th e
d etermination o n w h e t her o r n o t t h e c r i m e i s c o v ered by t h e
amnesty proclamation and the conditions for amnesty entitlement
are present, can be made administratively and judicially.
The Roxas proclamation declares amnesty in favor of persons,
w ho committed f elony i n f u r t h e r ance of t h e r e s i stance t o t h e
enemy during the Japanese occupation. The proclamation tasked
the Amnesty Commission to determine if th e cr ime is committed
within t h e t e r m s t h e r eof. H owever, w h il e t h e C o m mission can
t ake cognizance of th e a p plications for a m nesty, th e courts ar e
not excluded to decide any claim for amnesty. An accused charged
before the courts may claim amnesty as a defense, waive the filing
of an application therefor, and submit evidence thereof in the trial
of his case (to prove that the crime was committed in furtherance of
the resistance to the enemy). In sum, while all applications should
be passed upon by commissions, an accused may, instead of filing an
application, choose the alternative remedy of just raising the issue
in a court of justice in the trial of his case. (People v. Macadaeg, G.R.
No. L-4816, May 28, 1952) If a person opted to file an application for
amnesty with the commission, but he is unable to obtain his release
through executive channels although he is entitled to the benefits
of this proclamation, it devolves on the courts to protect his right.
(Tolentino v. Catoy, G.B. No. L-2508, December 10, 1948) In sum,
 486 CRIMINAL LAW REVIEWER
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the court shall ultimately determine if the accused is entitled to the
benefit of amnesty proclamation.
5. R ev o c a t io n o f t h e a m n e sty — P r o c lamation No. 7 5
issued by President Aquino and concurred in by Congress granted
a mnesty to t h e p a r t i cipants of J u l y 2 7 , 2 003 O akwood M u t i n y ,
the February 2006 Marines Stand-Off and the November 29, 2007
Manila Peninsula Incident. Under Section 2 of Proclamation No. 75,
they have to apply wit h th e ad hoc committee of the Department
of National Defense to be entit led to th e benefit of th e a m nesty
p roclamation. P r e sident D u t e r t e o n A u gust 8 1 , 2 0 1 8 i s s u ed
Proclamation No. 572 declaring the granting of amnesty to Senator
Trillanes as null and void for failure to file application as required
in Section 2 of Proclamation No. 75 and admit his guilt.
The Proclamation No. 572 is not a revocation of Proclamation
No. 75 but a declaration of nullity of th e granting of amnesty for
failure t o c omply w i t h S e ction 2 o f t h e a m n esty p r oclamation.
Thus, it seems the issue in t h i s d eclaration of n u l l it y i s f a ctual
rather than constitutional. In sum, Proclamation No. 572 did not
revoke the amnesty granted by P r esident Aquino and concurred
in by Congress. It m erely declared null an d v oid th e granting of
the benefit of the amnesty by Department of N a tional Defense to
S enator Trillanes. Proclamation No. 572 is an at t ack against th e
decision of D e p artment o f N a t i o nal D e f ense grantin g a m n esty
and not against the bilateral acts of President Aquino in i ssuing
Proclamation No. 75 and Congress in concurring with it. By basing
his declaration of nullity of the granting of amnesty on failure to file
an application, the President is invoking Section 2 of Proclamation
N o.
. 75; hence, he is in effect validating the amnesty proclamation
rather than revoking it.
Can the incumbent President revoke the amnesty proclamation
issued by a former President and concurred in by Co ngress?No.
Amnesty proclamation issued by a former President under express
authority of the Constitution and concurred in by Congress has the
nature, force, effect, and operation of a l aw. (People v. Macadaeg,
G.R. ¹ . L- 48 1 6, May 2 8, 19 62) He nce, an i n c umbent p re sident
cannot unilaterally revoke the bilateral acts of the former President
and Congress in making an amnesty proclamation. Same as a law,
amnesty proclamation can only re v o ke by c o ncurrent a c tions of
the President and Congress. Moreover, amnesty extinguishes the
criminal l i a bilit y o f t h e a m n esty b eneficiary. H ence, revocation
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VI. MODIFICATION AND EXTINCTION 487
OF CRIMINAL LIABILITY
made after the criminal extinction will not pr ejudice the amnesty
beneficiary.
C an th e i n c u mbent P r e sident n u l l i f y t h e d e cision o f t h e
Department of N ational Defense for failure to file application for
amnesty as an express precondition to the granting of the benefit
u nder an a m nesty pr oclamation an d f a i l ur e t o a d mi t h i s g u i l t ?
Yes. The Department o f N a t i onal D e fense is u n der t h e c ontrol
power of the President. Hence, he can nullify its decision granting
amnesty benefit despite of the failure of the beneficiary to comply
with conditions of the amnesty proclamation. But the nullification
is subject to th e j u dicial r eview. If t h e court f i nds t hat a m nesty
beneficiary made an a p p l ication an d a d m i t ted hi s g u il t t h e r ein
and the Department of N a t i onal D efense properly approved the
a pplication, it m a y r e v erse the decision of th e P r esident on t h e
ground of grave abuse of discretion tantamount to lack or in excess
of jurisdiction. Th e p r oper a p proval of t h e a m n esty a pplication
e xtinguishes the criminal l i a bilit y of t h e a p plicant for th e cr i m e
covered by theproclamation.
6. N on - d e l egation o f p o w e r — Le gi s l a tive, executive
and judicial p owers b elong t o t h e p e ople because "sovereignty
resides in t h e p e ople an d a l l g o v ernment a u t h or it y e m a n ates
from them." When the people ratified the 1987 Constitution, they
delegated these powers to the three main branches of government
by vesting legislative power, executive power, and judicial power in
Congress, the President and Supreme Court and other lower courts,
respectively. Since the people entrust these powers to these organs
of government, as a rule they may not re-delegate it to others. Re-
delegation of these powers is a betrayal of the trust reposed to them
by the people.
This principle of non-delegability of power is in conformity
with the Latin maxim of "Potestas delegata non potest delagari," or
delegated authority cannot be delegated. The basis of this doctrine
is the ethical principle that such a delegated power constitutes not
only a right but a duty that the delegate must perform through his
own judgment without intervention from another.
However, the principle of non-delegability of power is not an
absolute rule. It is subject to several exceptions. Congress in passing
legislation is allowed to authorize an agency under the Executive
Branch to issue implementing rules and to determine the existence
of certain facts in connection with th e i m plementation of the law.
 488 CRIMINAL LAW REVIEWER
VOLUME I
The conferment of quasi-legislative power and quasi-judicial power
to an implementing executive agency by Congress is not a vie'-ation
of maxim of "potestas delegata non potest delagari." Th u s, Congress
c an make a t a x a m n e sty a n d r e q u ir e t h e B u r ea u o f I n t e r n al
Revenue to determine whether a tax payer, who filed a tax amnesty
application, is entitled to the benefit of the law.
The Roxas proclamation declares amnesty in favor of persons,
who committed felony in furtherance of the resistance to the enemy
d uring th e J a p anese occupation. Th e p r o clamation t a sked t h e
Amnesty Commission to determine if the crime is committed within
the terms thereof. The delegation of'the power to determine amnesty
entitlement to the commission is valid. In Vera v. Nanadiego, G.R.
No. L-26589, February 28, 1990, the Supreme Court recognized the
amnesty extended by the Commission to amnesty applicant.
7 . A m n e s t y a n d P a r d o n — P a r d o n a n d a m n esty a r e
distinguished as follows (1965 and 2006 Bar Exams):
1. P a r d o n i s g r a n ted by t h e C h ief Executive and as
such it is a private act which must be pleaded and proved by
the person pardoned, because the courts could not take judicial
notice thereof, while the amnesty proclamation issued by the
President and concurred in by Congress, is a public act of which
the courts should take judicial notice;
2. Pa r d o n i s gr anted to a single individual after con-
viction of a crime, political or not political; w h i l e amnesty is
granted to classes of persons or communities who may be guilty
of political offenses, generally before or after the institution of
the criminal prosecution and sometimes after conviction;
8. Pa r d o n looks forward and relieves the offender from
the consequences of an offense of which he has been convicted,
that is, it abolishes or forgives the punishment, and for th at
reason it does "not work the restoration of the rights to hold
public office, or th e r i gh t o f s u f frage, unless such rights be
expressly restored by the terms of the pardon," and it "in no case
exempts the culprit f rom th e payment of the civil i n demnity
imposed upon him by the sentence." (Article 86; Revised Penal
Code) While amnesty looks backward and abolishes anc. puts
into oblivion the offense itself, it so overlooks and obliterates
the offense with which he is charged that the person released
by amnesty stands before the law precisely as though he had
committed no offense. (People v. Casido, G.B. No. 116512,
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VI. MODIFICATION AND EXTINCTION 489
OF CRIMINAL LIABILITY
March 7, 19 9 7; People v. Pa t r i a r ca, J r . , G . R. N o. 1 8 5457,
September 29, 2000)
Under Article 89 of the Revised Penal Code, pardon totally
extinguishes criminal l i ability of th e convict; while amnesty
totally extinguishes the criminal li ability of the offender and
completely extinguishes the penalty and al l i t s effects. Since
amnesty extinguishes the criminal liability, the penalty and all
effects of the penalty, it consequen-.ly extinguishes the crime
itself. Amnesty, which is derived from the word "amnesia," is
an act of forgetting while pardon is an act of forgiving.
a. R e c i d i v ism —Art i c le 89 of the Revised Penal
Code enumerates the modes cf criminal extinction such
as death, pardon and amnesty. In Pe ople v. Henry Go,
G.R. No. 168589, March 25, 2014, it was stated that the
only thing extinguished by the death of the offender is his
criminal liability. His death did not extinguish the crime.
In People v. Patriarca, Jr., G.R. No. 185457, September
29, 2000, the Supreme Court r u l e d t h a t p a r don looks
forward and abolishes or forgives the punishment.
Applying the Henry Go case and Patriarca case, the
modes mentioned in Article 89 such as death and pardon
merely extinguish the cri minal l i ability of th e offender
but not the crime itself. However, there is a special rule
on amnesty. Article 89 of the Revised Penal Code provides
that amnesty completely extinguishes the penalty and all
its effects. Because of this special rule of extinguishment of
all effects of the penalty, the Supreme Court in Patriarca
stated that amnesty looks backward and abolishes and
puts into oblivion th e o ffense itself. I n s u m , a m nesty
extinguishes not only the criminal liability of the offender
but also the crime itself.
Under Section 16 of P.D. No. 968 as amended by R.A.
No. 10707, final discharge of the probationer extinguishes
his criminal liability. The intention of the law is to make
discharge of the probationer a mode of criminal extinction
in addition to those listed in Article 89 of RPC. Since final
discharge of the probationer under Section 16 of P.D. No.
968 merely extinguishes his criminal l i ability, and not
the penalty and all its effects, the effect of such discharge
is similar to death or pardor, and not to amnesty. In
 490 CRIMINAL LAW REVIEWER
VOLUME I
s um, discharge of t h e p r obationer looks forward, an d
e xtinguishes merely th e c r i m i nal l i a bilit y an d no t t h e
crime itself.
Since the previous crime is not extinguished by the
discharge of the probationer or by pardon, the same shall
be considered for purposes of determining if the accused
i s a recidivist i n c o m mi t t in g a s econd crime, which i s
embraced in t h e s ame t i t le . (2009 Bar E x a m) O n t h e
other hand, since the previous crime is extinguished by
amnesty, the same shall not be considered for purposes of
determining if the accused is a recidivist in committing a
second crime, which is embraced in the same title.
Marriage between the offender and offended party
extinguishes: (1) criminal liability arising from seduction,
abduction, or acts of lasciviousness; (2) criminal action if
the same is already instituted; or (3) penalty if the same
is already imposed. (Articles 89 and 844) However. like
pardon and death it shall not extinguish the crime itself.
But marriage between the offender and offended party
extinguishes not only the criminal li ability ar i sing from
r ape, the cri m i nal a ction or p e n alty i m p osed but a l s o
the crime of rape itself. Under Ar t i cle 266-C, the crime
of rape shall not be extinguished if the marriage is void
ab initio. Applying this rule in reverse, a valid marriage
shall extinguish the crime of rape.
b. A c c e s sory Penalty of Disqualification —If
a Senator, who was convicted of rebellion and sentenced
to suffer reclusion perpetua, received an amnesty, he is
not anymore disqualified to ru n i n t h e Senatorial race.
Under Ar t i cle 89 of t h e R evised Penal Code, amnesty
extinguishes the criminal l i a bili ty, the p e nalty a nd a l l
its effects. Implied imposition of an accessory penalty is
one of theeffects of the imposition of principal penalty.
(Article 78) In sum, amnesty shall completely extinguish
the criminal l i ability, the pr i ncipal penalty of re clusion
perpetua an d a l l e f f e c ts t h e r eof,w hich i n cludes t h e
accessory penalty of disqualification. (2015 Bar Exam)
In Magdalo Para sa Pagbabago U. Comelec, G.R. No.
190793, June 19, 2012, the Supreme Court takes judicial
notice of the facts surrounding the Oakwood incident and
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VI. MODIFICATION AND EXTINCTION 491
OF CRIMINAL LIABILITY
the grant of amnesty in favor of the soldiers who figured in
this standoff. In view of the subsequent amnesty granted
in favor of the members of MAGDALO, the events that
transpired during th e O akwood incident can no longer
be interpreted as acts ofviolence in the context of the
disqualifications from party registration.
Under Articles 36, 40, 41, 42, 43, and 89 of the
R evised Penal C o de, a p a r d o n s h al l e x t i n guish t h e
criminal liability of the convict, and remit th e principal
penalty imposed upon him; but it shall neither remit the
accessory penalty ofdisqualification nor restore his right
to hold publicoffice (or of suffrage); however, pardon may
expressly remit such accessory penalty or it may expressly
restore such right to hold public office.
The i m p osition o f t he pr i n c i pa l p e n a lt y i n a
judgment of conviction carries with it the imposition of the
accessory penalty (Article 78) because of the rule that the
accessory follows the principal. However, the remission of
the principal penalty due to pardon does not carry with it
the remission of the accessory penalty (unless there is an
express remission thereof). In sum, the rule on remission
of penalty due to pardon does not follow the principle that
accessory follows the principal.
A Senator, w h o w a s c o n v icted o f p l u n der a n d
sentenced t o s u f fer re c l u sion p e r petua, r e c eived a n
absolute pardon from the President. However, the pardon
does neitherexpressly remit the accessory penalty of
d isqualification nor ex pressly restore his r i ght t o h o l d
p ublic office. The Senator i s d i squalified to ru n i n t h e
Senatorial race. Despite the r emission of th e p r i ncipal
penalty of reclusion perpetua due to pardon, he shall still
serve the accessory penalty of disqualification. (2015 Bar
Exam)
President Estrada, who was convicted of plunder and
sentenced to suffer reclusion perpetua, was pardoned by
President Arroyo. The pardon expressly restored his "civil
and political rights." While the pardon does not expressly
remit the accessory penalty of disqualification and restore
his right to hold public position, the express restoration
o f his p olitical r i g ht s n a t u r all y i n c l udes th e r i gh t t o
 492 CRIMINAL LAW REVIEWER
VOLUME I
seek public elective office. In sum, there is a substantial
compliance with the rul'e requiring express restoration of
right to hold public office. Hence, he is eligible to run as
Mayor. (Risos-Vidal v. I i m, G.R. ¹. 20 6 6 66,January 21,
2015)
The suspension o f service o f p r i n c i pal p e n a l ty
o f imprisonment du e t o p r o bation carries w it h i t t h e
s uspension of t h e s e r vice of t h e a ccessory penalty o f
disqualification. (Moreno v. Co melec, G.R. No. 16 8550,
August 10, 2006; Vil l a real v. People, G.R. No. 151258,
December 1, 2014) The Uillareal principle is in accordance
with the rule that accessory follows the principal. Because
of the Vi l l a r e al p r i n c iple, it i s su b m i t t ed t h a t f i n a l
discharge of the probationer shall extinguish his criminal
liiability w it h t h e consequent remission of the pr incipal
penalty and accessory penalty of disqualification.
EXTINCTION OF CIVIL LIABILITY
T he modes of c r i m i na l e x t i n ction ar e t h ose m entioned i n
A rticles 89 and 266-C of th e R evised Penal Code, and P.D. N o .
968 as amended. by R.A. No. 10707 and decriminalization. On the
other hand, modes of civil extinction are governed by Article 1231
o f the Civil Code, which provides that civil l i a bility ma y only be
extinguished by the same causes recognized in the Code, namely:
payment, loss of the thing due, remission of the debt, merger of the
rights of creditor and debtor, compensation and novation.
Extinguishment of c r i m i na l l i a b i l it y d oes not i n c l ude civil
obligation. (Article 118) Conversely, extinguishment of civil liability
does not i n c l u de criminal o b l i gation. (P eople
v. Ne rry, s u p r a )
However, there are two exceptions, to wit:
1. De a t h o f t h e offender p r i o r t o fin a l j u d g m ent
extinguishes both criminal l i ability and civil l i ability ar i sin
arising
from crime. (Article 89; People v. Bayotas, supra)
2. P a y m e n t o f o b l i gation u n der a d i s h onored check
w ithin t h e f i v e-banking-days grace period f r o m r e ceipt o f
notice of dishonor (or prior t o i n s t i t u t ion of cri minal action)
extinguishes both civil liability (arising from crime and contract)
and criminal liability arising from the crime of violation of B.P.
Blg. 22.
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Under Article 113 of the Revised Penal Code, the offender shall
continue to be obliged to satisfy th e civil l i a b ility r esulting fr om
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 toserve the same by reason of amnesty,
pardon, commutation of sentence or any other reason. The phrase
"any other reason" refers to modes of total or partial extinction of
criminal liability other than service of sentence, amnesty, pardon,
and commutation. Thus, the offender shall continue to be obliged
to satisfy the civil li ability r esulting from the crime committed by
him, notwithstanding the fact that he has not been required to serve
the same by reason of probation, marriage, prescription of crime,
prescription of penalty, conditional pardon, or allowance for good
conduct or loyalty.
Probation does neither affect the civil li ability of the accused
(Budlong v. Apalisok, G.R. ¹. 60 1 5 1, June24, 1983) nor his
administrative l i a b i l i ty. (P a gaduan v. C S C , G . R . ¹ . 2 068 7 9 ,
November 19, 201 4)
In People v. Relova, G.R. No. L - 4 5129, March 6, 1 987, the
extinction of criminal li ability by pr escription does not carry with
it the extinction of civil l i ability a r i sing from the offense charged.
However, although ext inction o f c r i m i na l l i a b i l it y b y r e a son of
prescription of crime will not extinguish civil liability arising from
crime, the c i vi l a c t ion m u s t b e i n s t i t u ted ( either separately or
together with t h e c r i m i nal action) wi t hi n t h e p r escriptive period
provided under the Civil Code.
CIVIL LIABILITY ARISING FROM CRIME
Every person criminally liable for a felony is also civilly liable.
(Article 100 of the Revised Penal Code) However, extinction of penal
action does not carry with it the eradication of civil liability, unless
the extinction proceeds from a declaration in the final judgment that
the fact from which the civil liability might arise did not exist.
A cquittal w il l b a r c i vi l a c t ion w hen a r i sing from th e cr i m e
where the ju dgment of a cquittal h o lds t h at. the accused did not
commit the act imputed to him.
Acquittal w il l n o t b a r a c i v i l a c t ion i n t h e f o l lowing cases:
( 1) where th e a c quittal i s b a sed o n r e a sonable doubt a s o n l y
preponderance of evidence is required in civil cases; (2) where the
court declared that accused's liability is not criminal but only civil
 494 CRIMINAL LAW REVIEWER
VOLUME I
in nature; and (3) where the civil liability does not arise from or is
not based upon the criminal act of which the accused was acquitted.
(Aglibot v. Santia, G.R. No. 185945, December 5, 2012; 1975, 1984,
and 2000 Bar Exams) In People v. Alej ano, G.R. No. 33667, October
4, 1930, the crime of theft of a ring was duly proven but the offender
was not identified. Thus, the accused was acquitted. However, stolen
property was returned to the owner.
A was a 17-year-old working student who was earning his keep
as a cigarette vendor. B was driving a car along busy Espana Street
at about 7:00 p.m. Beside B was C. The car stopped at an intersection
because of the red signal of the traffic light. While waiting for th e
green signal, C beckoned A to buy some cigarettes. A approached the
car and handed two sticks of cigarettes to C. While the transaction
was taking place, the t r affic l i ght c h anged to green and th e car
immediately sped off. As the car continued to speed towards
Quiapo,
A clung to the w i n dow of t he car b ut l o st h is g rip a nd f ell d own
on the pavement. The car did not stop. A suffered serious injuries
which eventually caused his death. C was charged with Robbery
with Homicide. In the end, the Court was not convinced with moral
certainty that the guilt of C has been established beyond reasonable
doubt and, thus, acquitted him on the ground of reasonable doubt.
The family of the victim cannot recover civil damages from C since
B's reckless act of driving the car is the proximate cause of the death
of A. (2000 Bar Exam)
Criminal liability will give rise to civil liability ex delicto only
if the same felonious act or omission results in damage or injury to
another and is the direct and proximate cause thereof. (B
J.
CA G.R. N . 101749, July 10, 1992) Article 100 is not applicable if
.R. No.
what is involved is "victimless crimes" where, by the very nature of
the crime, no damages can possibly be sustained by a private party,
such as espionage, violation of neutrality, flight to enemy country or
crimes against popular representation.(1978 Bar Exam) However,
in rebellion, civil damages may be awarded if the crime caused the
damage to a victim. (Opinion of Regalado in People v. Quij ada,
G.R. Nos.115008-09, July 24, 1996) Moral damages and exemplary
damages may also be awarded in slight oral defamation. (Occena v.
Icamina, G.R. No. 82146, January 22, 1990)
The obligation to make restoration or reparation for damages
and indemnification for consequential damages devolves upon the
heirs of the person liable. (1964 Bar Exam) The action to demand
J9JC9B0M
VI. MODIFICATION AND EXTINCTION 495
OF CRIMINAL LIABILITY
restoration, reparation, and i n demnification l i k ewise descends to
the heirs of the person injured. (Article 108)
If there are two or more persons civilly liable for a felony, the
courts shall determine the amount for w h ich each must respond.
(Article 109)
T he pr incipals, accomplices, an d a c cessories, each w i t h i n
their respective class, shall be liable severally (in solidum) among
themselves for their quotas, and subsidiarily for those of the other
persons liable. (Article 110)
In People v. Aguirre, G.R. No. 219952, November 20, 2017,
the traffickers are jointly and severally liable to pay each trafficked
victim moral and exemplary damages.
T he subsidiary l i abilit y s h all b e e n forced, first a g ainst t h e
property of the principals; next, against that of the accomplices, and,
lastly, against that of the accessories. (Article 110)
Whenever the liability in s o l id um or t h e s ubsidiary 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 110)
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. (Article 111) The person who
participated gratuitously in the proceeds of a felony referred
to in this ar ticle is not criminally l i able. (Reyes) If he is liable as
accessory, his civil responsibility is governed by Articles 104, 105,
and 106. Example: Suppose A after having stolen a diamond ring
worth P1,000 gives it to B who, not knowing the illegal origin of the
same, accepts it. Later B sells the ring for P500 to a foreigner, who
immediately leaves the country. As the ring cannot be returned, the
remedy availableto offended party is to obtain from the offender the
reparation equivalent to the value of the ring. In case A is insolvent,
B shall be subsidiarily liable in the amount not exceeding P500 which
is the gratuitous share in the commission of the crime. (Guevarra)
Civil Liabihty in Case of Justification or Exemption
1. I ns a n i t y , I m b e c i l i ty , a n d M in o r i t y — I n cr i me
committed by an offender, who is exempt from criminal liability by
reason of the circumstance of insanity (1969 Bar Exam), imbecility
or minority,the offended party may still recover damage from the
 496 CRIMINAL LAW REVIEWER
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person who has legal control or authority over the offender, unless
i t appears that t h er e wa s n o f a ul t o r n e g l igence on t h eir p a r t .
S11 ould there be no person having such insane, imbecile or minor
under his authority, legal guardianship, or control or if such person
b e insolvent, said i n sane, imbecile, or m i nor s h all r e spond wi t h
thheir own property, excepting property exempt from execution, in
accordance with the civil law. (Article 101 of the Revised Penal Code;
1975 Bar Exam)
The owner of the house burned cannot demand from an eight-
year-old boy, who committed arson, to indemnify him for the value
thereof. The owner can recover damage from the parents of the boy,
or person, who has legal authority or control over him. Ho wever,
in the absence of person having authority, legal guardianship, or
control over the boy, the boy himself shall respond to such damage
with hisown property. (1960 and 196'1Bar Exams)
T he idea i n A r t i cl e 1 0 1 i s n o t t o l e a v e t h e a c t e n t i r e l y
unpunished but to at t ach certain civil l i ability t o th e person who
has a delinquent minor, insane or imbecile under his legal authority
or control. (Salen and Salbanera v. Balce, G.R No. L-14414, April
27, 196'0)
A child is exempt from criminal l i ability wh ere his age is 15
years or below, orhis age is above 15 years but below 18 and he
a cted without di scernment. A child is not exempt from criminal
liability where his age is above 15 years but below 18 and l e acted
with discernment.
If th e child is exempt from crimin al l ia b il it y, the person (e.g.,
father or mother), who has legal authority or control over him, is
principally liable pursuant to, Article 101 of the Revised Penal Code.
Under Section 6 of R .A . No . 9344, the exemption from cr i m i n al
l iability of c h il d d oes not i n c lude exemption from c i vi l l i a b i l i t y .
H owever, the child sh all r e spond to such d amage wit h h i s o w n
property only i n t h e a b s ence of p erson h aving a u t h ority , l egal
guardianship, or control over him.
If the child is not exempt from crimin al l i a b il it y, he v%1 also
be civilly liable because of Article 100 of the Code. Article 10: of the
Code on the civil liability of parents is not applicable. This provision
merely applies in a case where the child is exempt from criminal
liability. However, the parents of this child are civilly liable pursuant
to Article 2180 of the Civil Code, which provides: "The father and,
in case of his death or incapacity, the mother, are responsible for
J9JC9B0M
VI. MODIFICATION AND EXTINCTION 497
OF CRIMINAL LIABILITY
damages caused by the minor children who lived in their company."
Article 2180 applies whether the damages was caused by quasi-delict
or crime. It would be absurd to make parents subsidiarily liable only
for damages caused by the negligent acts of their child but not for
those caused by criminal acts. (Fuel las v. Cadano, G.R. No. L-14409,
October 81, 196'1; Paleyan v. Bangkili, G.R. No. L-22258, July 80,
1971; Salen and Salbanera v. Balce, supra; 2018 Bar Exam)
2. Com p e l le d O f f e n der — An y p e r s on, who acts under
t he compulsion of i r r e sistible force or u n der t h e i m p u lse of a n
uncontrollable fear o f a n e q ua l o r g r e ater i n j u ry , i s c r i m i n ally
exempt under Article 12 of the Revised Penal Code. However, such
exemption does not extend to civil obligation. Under A r t i cle 101
of the Code, the persons using violence or causing the fears shall
be primarily li able to the offended party, and if t h ere be no such
persons, the c r i m i n ally e x empted offender sh all b e s econdarily
liable.
3. J u s t i f ie d A c t — W hen j u st i f y i ng c i r c u m stance i s
attendant, the act is ju stified; hence it is non-felonious. The non-
criminal character of the act would make the actor exempt not only
from criminal but also from civil liability. A non-felonious act could
not be a source of civil obligation.
T he law r e cognizes th e n o n-existence of a c r i m e w h e n a
justifying circumstance is present and exempts the accused from
both criminal and civil liability. However, there is an exception. In
case ofavoidance of greater evil,Article 101 requires that the civil
liability shall be borne by the persons benefited by the act. (Lacani lao
v. CA, G.R. No. L-84940, tu ne 27, 1988) The person who may be
benefitedfrom the act is either the actor (or the accused) or a third
person. This provision is in line with the rule on unjust enrichment.
Under Article 1157 of the Civil Code, obligation may arise from law,
contract, quasi-contract, crime or quasi-delict. In this case, source of
obligation of the beneficiaries is law and not crime.
If thereare several beneficiaries of the act committed to avoid
a greater evil, they shall be civilly liable in proportion to the benefit
which they may have received. The courts shall determine, in sound
discretion, the proportionate amount for w h ich each one shall be
liable. When the respective shares cannot be equitably determined,
e ven approximately, or w h e n t h e l i a b i l it y a l s o a t t aches to t h e
Government, or to the majority of the inhabitants of the town, and,
in all events, whenever the damage has been caused with the consent
 498 CRIMINAL LAW REVIEWER
VOLUME I
of the authorities or their agents, indemnification shall be made in
the manner prescribed by special laws or regulations.
(Article 101)
S ubsidi ar y L i a b i l i t y
Article 100 of the Revised Penal Code provides that every person
criminally liable for a felony is also civilly liable. In default of th e
p ersons criminally liable, employers engaged in an k ' d f ' d ~t
sshall
a bee ci v i l l y l i a ble for felonies committed by their employees in
the discharge of their du t ies in accordance with A r t i cles 102 and
103. (International Flavors and Fragrances, Inc. v. Argos, G.R. ¹ .
18086'2, September 10, 2001)
If the subsidiary liability of a person is based on Articles 102
and 103 of the Revised Penal Code, the exercise of the diligence
of a good father of a family in th e employment and tr ainir g of its
employee in order to prevent the damage is not a defense because
of the theory of incidental assumption of social risk and consequent
liability. (I ' u m ul v. Ju l i a n o, G.R. No. 47 6'90,April 28 , 1 941) On
the other hand, the liability of the employer or any person for that
matter, under Article 2176 of the Civil Code is primary and direct,
ased on a person's own negligence. Hence, exercise of the diligence
of a good father of a family in th e employment and tr aining of it s
employee in order t o p r event th e d amage is a d efense. (Pacis v.
Morales, G.R. No. 16'9467, February 26, 2010)
l. I n nk e e p e r's Subsidiary R e sponsibility — In n k e e p-
ers, tavernkeepers, and any other persons or corporations shall be
subsidiarily and civilly l i able for crime committed if th e following
elements are present: (1) a crime was committed in their establish-
ments; (2) they or their employee committed a violation of municip 1
nhchpa
ordhnan
rdinances or some general or special police regulation; and (3) of-
fender is insolvent. (Article 102of the Revised Penal Code) According
to Justice Regalado, the violation must have a direct causal relation
with the crime committed in their establishment.
If homicide is committed in an in n or bar on Sunday, which,
according to the ordinance, should be closed, since the innkeeper
in this case violates the ordinance by opening his establishment
for business on a prohibited day, he shall be subsidiary liable for
indemnity or civil liability to the heirs of the deceased. (Guevara)
Innkeepers are also subsidiarily l i a ble for th e r estitution of
goods taken from their guests or for the payment of the value thereof
if the following requisites are present: (1) robbery with violence or
J9JC9B0M
VI. MODIFICATION AND EXTINCTION 499
OF CRIMINAL LIABILITY
intimidation was committed by i n n keeper's employee, or robbery
with force upon things or theft was committed by any person; (2)
the crime was committed within t h eir h ouses from guests lodging
therein; (3) the guests notified in advance the innkeeper himself, or
the person representing him, of the deposit of such goods within the
inn; (4) the guests 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; and (5) offender is insolvent. (Article
102)
T l o dged in th e M ah a r l i k a H o t e l w i t h o ut n o t i f y i ng t h e
m anagement of the hotel of the goods he brought along with h i m .
Neither did he follow the directions of the hotel with respect to the
care and vigilance over saidgoods. One evening, the bellboy of the
hotel poked a gun on T and divested him of his goods. The owner of
the hotel cannot be made subsidiarily l i able for the restitution of
said goods, or to pay the value thereof because the third and fourth
requisites above-stated are not present. (1977 Bar Exam)
2. Em pl o y e r 'sSubsidiary Responsibility — Em p loyers,
teachers, persons, and corporations shall be subsidiarily and civilly
liable for crime committed if the following elements are present: (1)
they are engaged in any k in d of i n dustry; and (2) their servants,
pupils, workmen, apprentices, or employees committed crime in the
discharge of their du t ies; and (3) offender is insolvent. (Carpio v.
Doroj a, G.R. No. 84616, December 6, 1989; Calang v. People, G.R.
No. 190696, August 8, 2010) If these elements are all present, a
motion for a subsidiary writ of execution shall be granted despite the
decision convicting the employee made no mention of the subsidiary
liability of his employer and he was not impleaded in the case. (1998
Bar Exam)
In Pangonorom v. People, G.R. No. 143380, April 1 1, 2005,
the provisions of th e Revised Penal Code on subsidiary l i ability
are deemed written into the judgments in cases to which they are
applicable. Thus, in the dispositive portion of its decision, the trial
c ourt need not expressly pronounce the subsidiary liability of t h e
employer. The subsidiary liability of the employer arises only after
conviction of the employee in the criminal action. Once the judgment
of conviction against accused becomes final and executory, and after
the writ o f e xecution issued against hi m i s r e t u r ned unsatisfied
because of his i n solvency, a subsidiary w ri t o f e x ecution can be
issued against employer of the accused after a hearing set for that
precise purpose.
 500 CRIMINAL LAW REVIEWER
VOLUME I
In Philippine Rabbit Bus Lines, Inc. v. People, G.R. No. 147708,
April 14, 2004, the subsidiary l i abilit y o f e m ployer is i n cidental
to and dependent on th e pecuniary civil l i a bilit y of t h e accused-
employee. Since the civil liability of the latter has become final and
enforceable by reason of his flight, then the former's subsidiary civil
liability ha s a lso become immediately enforceable. The decision
convicting an employee in a criminal case is binding and conclusive
upon the employer not only with regard to the former's civil liability,
but also with r e gard to it s a m ount. Th e l i ability of a n e m ployer
cannot beseparated from that ofthe employee. However, before the
employers' subsidiary liability i s exacted, there must be adequate
evidence establishing that (1) they are indeed the employers of the
convicted employees; (2) that the former are engaged in some kind
of industry; (8) that the crime was committed by the employees in
the discharge of their duties; and (4) that the execution against the
latter has not been satisfied due to insolvency.
a. Con v i c t ion of Em pl oyee —Before the employer's
subsidiary liability may be proceeded against, it is imperative
that there should be a criminal action whereby the employee's
criminal n e g l igence or d e l ict a n d c o r r e sponding l i a b i l i t y
therefor are proved. If no criminal action was instituted, the
employer's liability would not be predicated under Article 108.
(Franco v. IAC, G.R. ¹. 71 1 8 7,October 5, 1989) Moreover, the
subsidiary liability of the employer arises only after conviction
of the employee in the criminal action. (Pangonorom v. People,
G.R. No. 148880, April 11, 2005)
b. E m p l o y e r Is Engaged in an Industry —Industry
has been definedas any department or branch of art,occupation
o r business, especially, one which employs much l abor an d
capital and is a distinct branch of trade. (Heirs of Diaz-Leus v.
Melvida, G.R. No. L-77716, February 17, 1988) An enterprise
not conducted as a means oflivelihood or for profit such as a
non-profitable hospital does not come within th e meaning of
the term industry. (Clemente v. Foreign Mission Sisters, CA.,
88 O.G. 1594) Ospital ng M a y n i l a, being a p u b l ic h ospital,
was not engaged in industry conducted for profit but purely in
charitable and humanitarian work. (Solidum v. People, G.R.
No. 192128, March 10, 2014)
In Steinmetz v. Valdez, G.R. No. L-47655, April 28, 1941,
where the defendant is admittedly a pr ivate person who has
no business or industry, and uses his automobile for private
J9JC9B0M
VI. MODIFICATION AND EXTINCTION 501
OF CRIMINAL LIABILITY
purposes, he is not also subsidiarily liable to the plaintiff for the
damages to thelatter's car caused by the reckless imprudence
of his insolvent driver.
c. D is c h a r ge of Duty —The subsidiary civil liability
of the master arises and takes place only when the servant,
subordinate or employee commits a p u n i shable criminal act
while in th e a ctual p erformance of hi s or dinary d u t ies and
service. (Marquez v. Castillo, G.R. No. 46287, September 27,
1989)
d. I ns o l v e nc y — T h e su b s i d iary c i v i l l i a b i l i ty o f
the master ar ises and t a kes pl ace only w h e n t h e s ervant,
subordinate o r e m p l o yee' i s i n s o lvent t h e r eby r e n d ering
him incapable of satisfying by himself his own civil l i ability.
(Marquez v. Castillo, supra)
Coverage of Civil Li ab ilit y
The civil liability arising from crime includes: (1) Restitution;
(2) Reparation of the damage caused; and (8) Indemnification for
consequential damages. (Article 104 of the Revised Penal Code; 1959
and 1978 Bar Exams)
1. Re s t i t u t i o n — Re s titution means return to t he o wner
t he property stolen, malversed, misappropriated, etc. If the t h i n g
stolen is money, restitution means return of the very money stolen
to the owner thereof. The purpose of the law is to place the offended
party as much as possible in the condition as he was before the crime
was committed against him. (People v. Mostasesa, G.R. ¹. L - 5 6 8 4,
January 22, 1954) If return of the very money stolen to the owner is
not possible, the offender may just return of the equivalent amount
of the stolen money; but this is not restitution but reparation.
Under Article 105, the restitution of the th ing itself must be
made whenever possible, with all owance for any deterioration, or
diminution of v alue as determined by th e court. Th e ph r ase "as
determined by the court" clearly shows that t he d etermination of
the amount of th e deterioration or of th e di m i n u tion of value, as
well as of the damages and losses, in the respective cases, has been
commended by the law entirely to the discretion of the courts. (U.S.
v. Mendoza, G.R. No. 6714, February 2, 1912)
a. T h i r d P e r s o n's Possession — The restitution of
the thing itself must be made whenever possible "even though
it be found in the possession of a third person who has acquired
 502 CRIMINAL LAW REVIEWER
VOLUME I
it by lawful means, saving to the latter his action against the
proper person who may be liable to him." (Article 105) I f the
accused is convicted of estafa with civil indemnity for restitution
and he is unable to make reparation due to insolvency and the
j ewelries are in the possession of third persons, action will li e
against the latter pursuant to the provision of Article 105. The
judgment requiring 'the accused either to restore the property
taken away or pay the value thereof, is no bar to the recovery of
the said property by the owner from anyone holding it throu h
1 ro u g
thee filii n g o f a separate civil action.(Gacula v. Martinez, G.R.
No. L-8088, January 82, 2951)
Th
he judge t a kirig cognizance of th e c r i m i nal c ase for
estafa has no right to interfere with the possession of a person,
who bought the properties that was allegedly obtained through
estafa from the accused. Buyer of stolen property in good faith
could not bedeprived of such property since he is not a party
in the cri minal case. (Chua Hai v. Ka p u n a n, J r . , G . R. No .
L-11108, June 80, 1958) The remedy of the complainant
an is t o
filee aa separate civil action against the buyer of propert .
(2975
Barr Exam) If t he property is stolen, the complainant can file
a case for fencing if the elements of this crime are all present.
Th e third person from whom the property was restituted
in favor of the complainant in a criminal case may file action
against the proper person (e.g., the convicted accused), who
may be liable to him (Article 105) such as the person convicted.
b. A ct i o n f o r R e c o v ery I s B a r r e d — T h e r e is n o
r estitution in case the th ing has been acquired by the t h i r d
person in the manner and under the requirements which, by
law, bar an action for its recovery (Article 105
) such as in cases
where recovery is denied by the civil law, notwithstanding the
fact that the former owner was deprived of his chattels through
crime. (Chua Hai v. Ka p u n a n, J r ., s upra) Th u s, restitution
cannot be made in the following cases:
a. Wh e r e t h e p r o p erty w a s p u r chased in g o od
faith at t h e p u b lic sale (Art ic le 559 of t he C iv il Co de;
Aznar v. Yapdiangco, G.R. ¹. L - 1 8 5 86, March31, 1965
);
b. Wh e r e a l a n d c o vered by T o r r ens t i t l e w a s
purchased in good faith (P.D. No. 1529); and
c. Pr o p e rt y p ur chased in store, fairs or markets.
(Article 1502 of the Civil Code)
J9JC9B0M
VL MODIFICATION AND EXTINCTION 503
OF CRIMINAL LIABILITY
2. Repa r a t i o n — Th e r es t i t u t i on o f t h e t h i n g s t o l e n,
m isappropriated, etc., m us t b e m a d e w h e never i s p o ssible. I f
restitution is not possible, the offender by way of reparation must
pay the amount of damage.(People v. Evangelio, G.R. ¹. 18 1 9 0 2,
August 81, 2012; People v. Dinamling, G.R ¹ . 184 6 0 5,March 12,
2002)
In a rape case,the court may order the accused to pay the
victim the value of her t o m garments as reparation for damage to
her property. (U.S. v. Yambao, G.R. No. 1162, February 18, 1905) In
determining the amount of damage, the court shall consider not only
the price of the th ing but a lso its sentimental value (Article 206)
such as the sentimental value to the owner of the ring considering
that it was a souvenir from her mother. (Cristobal v. People, August
80, 1949, G.R No. I -1542, August 80, 1949)
3. I n de m n i f i cation —Restitution and reparation generally
are ordered in crimes against property. Indemnification is generally
awarded in crimes against person and honor. (Regalado)
In US v. Di o n is io, G. R. N o. 1 1 589, October 26, 1 916. The
accused was convicted of the crime of estafa, in t hat h e r ented a
bicyclefor four days at the rate of one peso and a half a day, and
failed and declined thereafter, to return th e b i cycle to it s owner.
It was held that: The civil damages which may be recovered in a
criminal action are limited to consequential damages caused by, and
flowing from, the commission of the crime of which the accused is
convicted in that action. The indebtedness on account of unpaid hire
of the bicycle arose under the contract of hire and did not result from
the commission of the crime of which th e accused was convicted.
It was recoverable in a c i vi l a c tion and not i n a c r i m i nal action
charging estafa of the bicycle.
In Copiaco v. Lu z on B r o k erage Co., In c., G. R. N o. 4 6 1 35,
September 19, 1938,Article 107 of the Revised Penal Code provides
that the indemnification for damages includes not only those caused
to the injured party but also those suffered by his family or by a
third person. In the present case, it is undoubted that the family or
the heirsof the deceased have suffered double damages by reason of
the death of their two children, with the consequence that it is just
to indemnify them in the same measure for the death of each of the
two members of the family.
 504 CRIMINAL LAW REVIEWER VI. MODIFICATION AND EXTINCTION 505
VOLUME I OF CRIMINAL LIABILITY

The court may order theoffender to pay the offended party by

o ffense resulting i n p h y sical i n j u r i es; libel, slander, or a n y
way of indemnification the following:
other form of defamation (Ma t u ra v. Ia y a , G . R. ¹ . 4 45 5 0 ,
a. A ct u a l D a m a ges — In c ri mes, the defendants are July 30,1979);rape (People v.Capareda, G.R No. 128863, May
liable for al l d a m ages which ar e t h e n a t u ral an d p r obable 27, 2004);and murder or homicide. (H eirsof R aymundo Castro
c onsequences of the act or o mission complained of. It i s n o t v. Bustos, G.R. No. L-25918, February 28, 1969)
necessary that s uch d a m ages have been foreseen or could
have reasonably been f oreseen by t h e d e f endant. A ccused
are thereforeliable for the funeral and burial expenses and
medical expenses incurred by the family of victims. (Pecple v.
Dinamli ng, G.R No. 184605, March 12, 2002) and loss in" arne.
(People v. Tagana, G.R. No. 188027, March 4, 2004)

b. M od e r a t e o r T e m p e r at e D a m age — Th e award
of P25,000 astemperate damages in homicide or murder cases
is proper when n o evidence of burial an d f u n eral expenses
is presented in th e t r i a l court. (People v. J u gueta, G.R. ¹ .
202123, April 5 , 2 0 1 6) A r t i c le 2 224 of t he N e w C i v il C o d e
provides that "temperate or moderate damages, which are
more than nominal but less than compensatory damages may
be recovered when the court finds that some pecuniary loss has
b een suffered but it s amount cannot, from the nature of th e
case, be proved with certainty." In this case, it cannot be d nied
that the heirs suffered pecuniary loss for the wake, funeral and
burial of the victim, although the exact amount thereof was not
proved with certainty. (People v. Bernardo, G.R N o. 19 8789,
June 3, 2018; 2006 Bar Exam )

c. Ci v i l In d e m n i ty — Akin to actual or compensatory

damages is the civil i n demnity ex delicto. These two species
of damages differ basically in that civil indemnity ex de!icto
can be awarded without need of further proof than the fact of
commission of the felony itself while actual or compensatory
damages to be recoverable must additionally be established
with reasonable degree of certainty. (People v. Dianos, G.R. No.
119811, October 7, 1998)
The accused was found guilty of 10 counts of rape for
h aving carnal k n o w l edge w it h t h e s a m e w o ma n sh a I b e
required to pay civil indemnity in the amount of P100,000 for
each counts of rape. (2005 Bar E x am; People v. He rmoc'lla,
G.R. No. 1 75880, July 10, 2007)
d. Mo r a l D a m a g e s — It i s a l s o well s ettled in -.,his
jurisdiction that moral damages may be recovered in a criminal

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