Justifying Circumstances – where the act of a person is in accordance with law such that

said person is deemed not to have violated the law.

General Rule: No criminal and civil liability incurred.

Exception: There is civil liability with respect to par. 4 where the liability is borne by persons
benefited by the act.

Par. 1 Self-defense
Elements:
1. Unlawful Aggression
- indispensable requirement
- There must be actual physical assault or aggression or an immediate and imminent threat,
which must be offensive and positively strong.
- The defense must have been made during the existence of aggression, otherwise, it is no
longer justifying.

- While generally an agreement to fight does not constitute unlawful aggression, violation of
the terms of the agreement to fight is considered an exception.

2. Reasonable necessity of the means employed to prevent or repel it

Test of reasonableness depends on:

(1) weapon used by aggressor
(2) physical condition, character, size and other circumstances of aggressor
(3) physical condition, character, size and circumstances of person defending himself
(4) place and occasion of assault

3. Lack of sufficient provocation on the part of the person defending himself

NOTE: Perfect equality between the weapons used, nor material commensurability between
the means of attack and defense by the one defending himself and that of the aggressor is
not required

REASON: the person assaulted does not have sufficient opportunity or time to think and
calculate.

Rights included in self-defense:

1. defense of person
2. defense of rights protected by law
3. defense of property (only if there is also an actual and imminent danger on the person of
the one defending)
4. defense of chastity

Kinds of Self-Defense:
1. self-defense of chastity – there must be an attempt to rape the victim
2. defense of property – must be coupled with an attack on the person of the owner, or on
one entrusted with the care of such property.

People v. Narvaez, (GR No. L-33466-67, April 20, 1983) Attack on property alone was
deemed sufficient to comply with element of unlawful aggression.

3. self-defense in libel – justified when the libel is aimed at a person’s good name.
“Stand ground when in the right” - the law does not require a person to retreat when his
assailant is rapidly advancing upon him with a deadly weapon.

NOTE: Under Republic Act 9262 (Anti-Violence Against Women and Their Children Act of
2004), victim-survivors who are found by the Courts to be suffering from Battered Woman
Syndrome (BWS) do not incur any criminal or civil liability despite absence of the necessary
elements for the justifying circumstance of self-defense in the RPC. BWS is a scientifically
defined pattern of psychological and behavioral symptoms found in women living in battering
relationships as a result of cumulative abuse.

2002 Bar Exam Question

Justifying Circumstances: Defense of Honor

When A arrived home, he found B raping his daughter. Upon seeing A, B ran away. A took
his gun and shot B, killing him. Charged with Homicide, A claimed he acted in defense of his
daughter's honor.

Is A correct? If not, can A claim the benefit of any mitigating circumstance or circumstances?

No, A cannot validly invoke defense of his daughter's honor in having killed B since rape was
already consummated; moreover, B already ran away, hence, there was no aggression to
defend against and no defense to speak of.

A may, however, invoked the benefit of the mitigating circumstance of having acted in

immediate vindication of a grave offense to a descendant, his daughter, under par.5,

article 13 of the Revised Penal Code, as amended.

2003 Bar Exam Question and Answer (Defense of Property)

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

Should the accused, given the circumstances, be convicted or acquitted? Why?

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

Alternative Answer:

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

2000 Bar Exam Question; Defense of Honor

Osang, a married woman in her early twenties, was sleeping on a banig on the floor of their
nipa hut beside the seashore when she was awakened by the act of a man mounting her.
Thinking that it was her husband, Gardo, who had returned from fishing in the sea, Osang
continued her sleep but allowed the man, who was actually their neighbor, Julio, to have
sexual intercourse with her. After Julio satisfied himself, he said "salamat osang" as he
turned to leave. Only then did Osang realize that the man was not her husband. Enraged,
Osang grabbed a balisong from the wall and stabbed Julio to death. When tried for
homicide, Osang claimed defense of honor.

Should the claim be sustained? Why?

No, Osang's claim of defense of honor should not be sustained because the aggression on
her honor had ceased when she stabbed the aggressor. In defense of rights under
paragraph 1, Article 11 of the RPC, It is required inter alia that there be 1.Unlawful
aggression and 2.Reasonable necessity of the means employed to to prevent or repel it. The
unlawful aggression must be continuing when the aggressor was injured or disabled by the
person making a defense.

But if the aggression that was begun by the injured or disabled party already ceased to exist
when the accused attacked him, as in the case at bar, the attack made is a retaliation, and
not a defense. Paragraph 1, Article 11 of the code does not govern.

Hence, Osang's act of stabbing Julio to death after the sexual intercourse was finished, is
not defense of honor but an immediate vindication of a grave offense committed against her,
which is only mitigating.

1996 Bar Exam Question (Defense of Property)

A security guard, upon seeing a man scale the wall of a factory compound which he was
guarding, shot and killed the latter. Upon investigation by the police who thereafter arrived at
the scene of the shooting, it was discovered that the victim was unarmed. When prosecuted
for homicide, the security guard claimed that he merely acted in self-defense of property and
in the performance of his duty as a security guard.

If you were the judge, would you convict him of homicide? Explain.

Yes. I would convict the security guard for homicide if I were the judge, because his claim of
having acted in defense of property and in the performance of a duty cannot be fully justified.
Even assuming that he victim was scaling the wall of the factory compound to commit a
crime inside the same, shooting him is never justifiable, even admitting that such act is
considered unlawful aggression on property rights. In People vs. Narvaes, 121 SCRA 329, a
person is justified to defend his property rights, but all the elements of self-defense under
Art.11 , must be present. In the instant case, just like in Narvaes, the second element
(reasonable necessity of the means employed) is absent. Hence, he should be convicted of
homicide but entitled to incomplete self-defense.
Par. 2 Defense of Relative
Elements:
1. Unlawful Aggression (indispensable requirement)
2. reasonable necessity of the means employed to prevent or repel it
3. In case the provocation was given by the person attacked, the one making the defense
had no part in such provocation.

Relative entitled to the defense:

1. spouse
2. ascendants
3. descendants
4. legitimate, natural or adopted brothers and sisters, or
relatives by affinity in the same degrees
5. relatives by consanguinity within the 4th civil degree

NOTE: The relative defended may be the original aggressor. All that is required to justify the
act of the relative defending is that he takes no part in such provocation.

Par. 3 Defense of Stranger

Elements:
1. unlawful aggression (indispensable requirement)
2. reasonable necessity of the means employed to prevent or repel it
3. person defending be not induced by revenge, resentment or other evil motive

2002 Bar Exam Question

A chanced upon three men who were attacking B with fist blows. C, one of the men,
was about to stab B with a knife. Not knowing that B was actually the aggressor because he
had earlier challenged the three men to a fight. A shot C as the latter was about to stab B.

May A invoked the defense of a stranger as a justifying circumstance in his favor? Why?

Yes. A may invoke the justifying circumstance of defense of stranger since he was not
involved in the fight and he shot C, when the latter was about to stab B. There being no
indication that A was induced by revenged, resentment or any other evil motive in shooting
C, his act is justified under paragraph 3, Article 11 of the Revised Penal Code as amended.

Par. 4 State of Necessity (Avoidance of Greater Evil or Injury)

Elements:
1. evil sought to be avoided actually exists
2. injury feared be greater than that done to avoid it
3. no other practical and less harmful means of preventing it

NOTE: The necessity must not be due to the negligence or violation of any law by the actor.

2004 Bar Exam Question

Par. 5 Fulfillment of Duty or Lawful Exercise of a Right or Office

Elements:
1. accused acted in the performance of duty or in the lawful exercise of a right or office
2. the injury caused or offense committed be the necessary consequence of the due
performance of the duty, or the lawful exercise of such right or office.

NOTE: The accused must prove that he was duly appointed to the position claimed he was
discharging at the time of the commission of the offense. It must also be shown that the
offense committed was the necessary consequence of such fulfillment of duty, or lawful
exercise of a right or office.

2000 Bar Examination Question (Fulfillment of Duty)

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

Is the defense tenable? Explain.

No, the defense of Pat.Reyes is not tenable. The defense of having acted in the fulfillment of
a duty requires as a condition, inter alia, that the injury or offense committed be the
unavoidable or necessary consequence of the due performance of duty (People vs. Oanis,
et. al, 74 Phil. 257). It is not enough that the accused acted in the fulfillment of a duty.

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

Par. 6 Obedience to a Superior Order

Elements:
1. an order has been issued
2. order has a lawful purpose (not patently illegal)
3. means used by subordinate to carry out said order is lawful

NOTE: The superior officer giving the order cannot invoke this justifying circumstance. Good
faith is
material, as the subordinate is not liable for carrying out an illegal order if he is not aware of
its illegality and he is not negligent.

General Rule: Subordinate cannot invoke this circumstance when order is patently illegal.

Exception: When there is compulsion of an irresistible force, or under impulse of

uncontrollable fear.

EXEMPTING CIRCUMSTANCES – grounds for exemption from punishment because there

is wanting in the agent of the crime any of the conditions which make the act voluntary or
negligent.
Basis: The exemption from punishment is based on the complete absence of intelligence,
freedom of action, or intent, or on the absence of negligence on the part of the accused.

Burden of proof: Any of the circumstances is a matter of defense and must be proved by the
defendant to the satisfaction of the court.

Par. 1 Imbecility or Insanity

IMBECILE – one while advanced in age has a mental development comparable to that of
children between 2 and 7 years old. He is exempt in all cases from criminal liability.

INSANE – one who acts with complete deprivation of intelligence/reason or without the least
discernment or with total deprivation of freedom of will. Mere abnormality of the mental
faculties will not exclude imputability.

General Rule: Exempt from criminal liability

Exception: The act was done during a lucid interval.

NOTE: Defense must prove that the accused was insane at the time of the commission of
the crime because the presumption is always in favor of sanity.

Par. 2 Under Nine Years of Age

Requisite: Offender is under 9 years of age at the time of the commission of the crime. There
is absolute criminal irresponsibility in the case of a minor under 9 years of age.

NOTE: Under R.A. 9344 or the Juvenile Justice And Welfare Act a minor 15 years and below
is exempt from criminal liability

1998 Bat Exam Question

John, an eight-year old boy, is fond of watching the television program "Zeo Rangers"." One
evening while he was engrossed watching his favorite television show, Petra, a maid
changed the channel to enable her to watch "Home along the Riles." This enraged John who
got his father's revolver, and without warning, shot Petra at the back of her head causing her
instantaneous death.

Is John Criminally liable?

No, John is not criminally liable for killing Petra because he is only 8 years old when he
committed the killing. A minor below nine (9) years old is absolutely exempt from criminal
liability although not from civil liability. (Art.12, par.2, RPC).

Par. 3 Person Over 9 and Under 15 Acting Without Discernment

NOTE: Such minor must have acted without discernment to be exempt. If with discernment,
he is criminally liable.

Presumption: The minor committed the crime without discernment.

DISCERNMENT – mental capacity to fully appreciate the consequences of the unlawful act,
which is shown by the:
1. manner the crime was committed
2. conduct of the offender after its commission

NOTE: Under R.A. 9344 a minor over 15 but below 18 who acted without discernment is
exempt from criminal liability

2000 Bar Examination Question

While they were standing in line awaiting their vaccination at the school clinic, Pomping
repeatedly pulled the ponytail of Katreena, his 11 years, 2 months, and 13 days old
classmate in Grade 5 at the Sampaloc Elementary School. Irritated, Katreena turned around
and swung at Pomping with a ball pen. The top of the ball pen hit the right eye Pomping
which bleed profusely. Realizing what she had caused, Katreena immediately
helped Pomping. When investigated, she freely admitted to the school principal that she
was responsible for the injury to Pomping's eye. After the incident, she executed a
statement admitting her culpability. Due to the injury, Pomping lost his right eye.

a. Is Karen criminally liable? Why?

b. Discuss the attendant circumstances and effect thereof.

a. No, Katreena is not criminally liable although she is civilly liable. Being a minor less than
fifteen (15) years old although, over nine (9) years of age, she is generally exempt from
criminal liability. The exception is where the prosecution proved that the act was committed
with discernment. The burden is upon the prosecution to prove that the accused acted with
discernment.

The presumption is that such minor acted without discernment, and this is strengthened by
the fact that Katreena only reacted with a ballpen which she must be using in class at the
time, and only to stop Pomping's vexatious act of repeatedly pulling her ponytail. In other
words, the injury was accidental.

b. The attendant circumstances which may be considered are:

1. Minority of the accused as an exempting circumstances under Art.12. paragraph 3,

Revised Penal Code, where she shall be exempt from criminal liability, unless it was proved
that she acted with discernment. She is however, civilly liable.

2. If found criminally liable, the minority of the accused is a privilege mitigating circumstance.
A discretionary penalty lower by at least two (2) degrees than that prescribed for the crime
committed shall be imposed in accordance with Art.68. paragraph 1, Revised Penal Code.
The sentence, however, should automatically be suspended in accordance with Section 5(a)
of Republic Act No.8369 otherwise known as the "Family Courts Act of 1997".

(1) Also if found criminally liable, the ordinary mitigating circumstance of not intending to
commit so grave a wrong as that committed, under Art.13. paragraph 3, Revised Penal
Code; and

(2) The ordinary mitigating circumstance of sufficient provocation on the part of the offended
party immediately preceded the act.
Par. 4 Accident without fault or intention of causing it
Elements:
1. A person is performing a lawful act
2. with due care
3. He causes injury to another by mere accident
4. Without fault or intention of causing it.

Par. 5 Irresistible Force

IRRESISTIBLE FORCE – offender uses violence or physical force to compel another person
to commit a crime.

Elements:
1. The compulsion is by means of physical force.
2. The physical force must be irresistible.
3. The physical force must come from a third person

NOTE: Force must be irresistible so as to reduce the individual to a mere instrument.

Par. 6 Uncontrollable Fear

UNCONTROLLABLE FEAR – offender employs intimidation or threat in compelling another

to commit a crime.

DURESS – use of violence or physical force

Elements:
1. The threat which causes the fear is of an evil greater than, or at least equal to, that which
he is required to commit.
2. It promises an evil of such gravity and imminence that an ordinary man would have
succumbed to it.

NOTE: Duress to be a valid defense should be based on real, imminent or reasonable fear
for one’s life or limb. It should not be inspired by speculative, fanciful or remote fear. A threat
of future injury is not enough.

ACTUS ME INVITO FACTUS NON EST MEUS ACTUS – Any act done by me against my
will is not my act.

PAR 7. Insuperable Cause

INSUPERABLE CAUSE – some motive, which has lawfully, morally or physically prevented
a person to do what the law commands

Elements:
1. An act is required by law to be done.
2. A person fails to perform such act.
3. His failure to perform such act was due to some lawful or insuperable cause.

Ex:
1. A priest can’t be compelled to reveal what was confessed to him.
2. No available transportation – officer not liable for arbitrary detention
3. Mother who was overcome by severe dizziness and extreme debility, leaving child to die –
not liable for infanticide (People v. Bandian, 63 Phil 530)

ABSOLUTORY CAUSES – where the act committed is a crime but for some reason of public
policy and sentiment, there is no penalty imposed. Exempting and justifying circumstances
are absolutory causes.

Examples of such other circumstances are:

1. spontaneous desistance (Art. 6)
2. accessories exempt from criminal liability (Art. 20)
3. Death or physical injuries inflicted under exceptional circumstances (Art. 247)
4. persons exempt from criminal liability from theft, swindling, malicious mischief (Art 332)
5. instigation

NOTE: Entrapment is NOT an absolutory cause. A buy-bust operation conducted in

connection with illegal drug-related offenses is a form of entrapment.

Entrapment from Instigation

1. The ways and means are resorted to for the purpose of trapping and capturing the
lawbreaker in the execution of his criminal plan. while The Instigator practically induces the
would-be accused into the commission of the offense and himself becomes a co-principal
2. In Entrapment, not a bar to accused prosecution and conviction while in Instigation,
Accused will be acquitted.
3. Entrapment is not an absolutoty cause while Instigation is an absolutory cause.

MITIGATING CIRCUMSTANCES – those which if present in the commission of the crime

reduces the penalty of the crime but does not erase criminal liability nor change the nature of
the crime.

NOTE: A mitigating circumstance arising from a single fact absorbs all the other mitigating
circumstances arising from that same fact.

ART.13

Par. 1 Incomplete Justifying or Exempting Circumstances

NOTE: This applies when not all the requisites are present. If two requisites are present, it is
considered a privileged mitigating circumstance. However, in reference to Art.11(4) if any of
the last two requisites is absent, there is only an ordinary mitigating circumstance.
Remember though, that in self-defense, defense of relative or stranger, unlawful aggression
must always be present as it is an indispensable requirement

Par. 2 Under 18 or Over 70 Years Old

NOTE: Age of accused is determined by his age at the date of commission of crime, not date
of trial.

Par. 3 No Intention to Commit so Grave a Wrong

NOTE: Can be used only when the proven facts show that there is a notable and evident
disproportion between the means employed to execute the criminal act and its
consequences.

Factors that can be considered are:

1. weapon used
2. injury inflicted
3. part of the body injured
4. mindset of offender at the time of commission of crime

This provision addresses the intention of the offender at the particular moment when the
offender executes or commits the criminal act, not to his intention during the planning stage

NOTE: In crimes against persons – if victim does not die, the absence of the intent to kill
reduces the felony to mere physical injuries. It is not considered as mitigating. It is mitigating
only when the victim dies.

NOTE: It is not applicable to felonies by negligence because in felonies through negligence,

the offender acts without intent. The intent in intentional felonies is replaced by negligence or
imprudence. There is no intent on the part of the offender, which may be considered as
diminished

Par. 4 Provocation or Threat

Provocation – any unjust or improper conduct or act of the offended party, capable of
exciting, inciting or irritating anyone.

Requisites:
1. provocation must be sufficient
2. it must originate from the offended party
3. must be immediate to the commission of the crime by the person who is provoked

NOTE: Threat should not be offensive and positively strong. Otherwise, it would be an
unlawful aggression, which may give rise to self-defense and thus no longer a mitigating
circumstance.

Par. 5 Vindication of Grave Offense

Requisites:
1. a grave offense done to the one committing the felony, his spouse, ascendants,
descendants, legitimate, natural or adopted brothers or sisters or relatives by affinity within
the same degrees
2. the felony is committed in immediate vindication of such grave offense

NOTE: “Immediate” allows for a lapse of time, as long as the offender is still suffering from
the mental agony brought about by the offense to him. (proximate time, not just immediately
after)

Par. 6 Passion or Obfuscation

Requisites:
1. offender acted upon an impulse
2. the impulse must be so powerful that it naturally produced passion or obfuscation in him

NOTE: Act must have been committed not in the spirit of lawlessness or revenge; act must
come from lawful sentiments.

Act, Which Gave Rise To Passion And Obfuscation:

1. That there be an act, both unlawful and unjust
2. The act be sufficient to produce a condition of mind
3. That the act was proximate to the criminal act, not admitting of time during which the
perpetrator might recover his normal equanimity
4. The victim must be the one who caused the passion or obfuscation

NOTE: Passion and obfuscation cannot co-exist with treachery since this means that the
offender had time to ponder his course of action.

Passion or Obfuscation from Irresistable Force

1. Passion or obfuscation is mitigating while Irresistable force is exempting
2. Passion or Obfuscation, no physical force needed while irresistable force requires
physical force.
3. Passion and Obfuscation must come from the offender himself while Irresistable Force
must come from 3rd peson
4. Paasion or Obfuscation must come from lawful sentiments while Irresistable force is
unlawful.

Par. 7 Surrender and Confession of Guilt

WHEN SURRENDER VOLUNTARY

- must be spontaneous, showing the intent of the accused to submit himself unconditionally
to the authorities, either because:
1. he acknowledges his guilt; or
2. he wishes to save them the trouble and expense necessarily incurred in his search and
capture.

NOTE: If both are present, considered as two independent mitigating circumstances. Further
mitigates penalty

NOTES:
Plea made after arraignment and after trial has begun does not entitle accused to the
mitigating circumstance.

If accused pleaded not guilty, even if during arraignment, he is entitled to mitigating

circumstance as long as he withdraws his plea of not guilty to the charge before the fiscal
could present his evidence.

Plea to a lesser charge is not a Mitigating Circumstance because to be such, the plea of guilt
must be to the offense charged.

Plea to the offense charged in the amended info, lesser than that charged in the original info,
is Mitigating Circumstance.

1999 Bar Exam Question (Mitigating;Plea of Guilty)

An accused charged with the crime of homicide pleaded "not guilty" during the preliminary
investigation before the municipal court. Upon the elevation of the case to the Regional Trial
Court of competent jurisdiction, he pleaded guilty freely and voluntarily upon arraignment.

Can his plea of guilty before the Regional Trial Court be considered spontaneous and thus
entitle him to the mitigating circumstance of spontaneous plea of guilty under Art.13(7),
RPC?

Yes, his plea of guilty before the Regional Trial Court can be considered spontaneous, for
which he is entitled to the mitigating circumstance of plea of guilty. His plea of not guilty
before the Municipal Court is immaterial as it was made during the preliminary
investigation only and before a court not competent to render judgment.
1999 Bar Exam Question (Mitigating;Plea of Guilty;Requisites)

In order that the plea of guilty may be mitigating, what requisites must be complied with?

For plea of guilty to be mitigating, the requisites are:

1. That the accused spontaneously pleaded to the crime charged;

2. That such plea was made before the court competent to try the case and render
judgment; and
3. That such plea was made prior to the presentation of evidence for the prosecution.

1997 Bar Exam Question (Mitigating;Plea of Guilty;Requisites)

After killing the victim, the accused absconded. He succeeded in eluding the police until he
surfaced and surrendered to the authorities about two years later. Charged with murder, he
pleaded not guilty but, after the prosecution had presented two witnesses implicating him to
the crime, he changed his plea to that of guilty.

Should the mitigating circumstances of voluntary surrender and plea of guilty be considered
in favor of the accused?

Suggested Answer:

Voluntary surrender should be considered as a mitigating circumstance. After two years, the
police were still unaware of the whereabouts of the accused and the latter could have
continued to elude arrest. Accordingly, the surrender of the accused should be considered
mitigating because it was done spontaneously, indicative of the remorse or repentance on
the part of said accused and therefore, by his surrender, the accused saved the government
expenses, efforts, and time.

Alternative Answer:

Voluntary surrender may not be appreciated in favor of the accused. Two years is too long a
time to consider the surrender spontaneous (People vs. Ablao, 183 SCRA 658). For sure the
government had already incurred considerable efforts and expenses in looking for the
accused.

Plea of guilty can no longer be appreciated as a mitigating circumstance because the

prosecution had already started with the presentation of evidence (Art.13, par.7 RPC).

1996 Bar Examination (Mitigating;Voluntary Surrender)

Hilario, upon seeing his son engaged in a scuffle with Rene, stabbed and killed and latter.
After the stabbing, he brought his son home. The Chief of police of the town, accompanied
by several policemen, went to hilario's house, Hilario, upon seeing the approaching
policemen, came down from his house to meet them and voluntarily went with them to the
police station to be investigated in connection with the killing. When eventually charged with
and convicted of homicide, Hilario, on appeal, faulted the trial court for not appreciating in his
favor the mitigating circumstance of voluntary surrender.

Is he entitled to such a mitigating circumstance?

Yes, Hilario is entitled to the mitigating circumstance of voluntary surrender. The crux of the
issue is whether the fact that Hilario went home after the incident, but came down and met
the police officers and went with them is considered "voluntary surrender". The voluntariness
of surrender is tested if the same is spontaneous showing the intent of the accused to submit
himself unconditionally to the authorities. This must be either (a) because he acknowledges
his guilt, or (b) because he wishes to save the trouble and expenses necessarily incurred in
his search and capture. Thus, the act of the accused in hiding after commission of the crime,
but voluntarily went with the policemen who had gone to his hiding place to investigate, was
held to be mitigating circumstance.(People vs. Dayrit)

Par. 8 Physical Defect of Offender

The offender is deaf and dumb, blind or otherwise suffering from some physical defect,
restricting his means of action, defense or communication with others.

NOTE: The physical defect must relate to the offense committed.

Par. 9 Illness of the Offender

Requisites:
1. The illness of the offender must diminish the exercise of his will-power.
2. Such illness should not deprive the offender of consciousness of his acts.

Par. 10 Similar and Analogous Circumstances

Example:
1. Defendant who is 60 years old with failing eyesight is similar to a case of one over 70
years old.
2. Outraged feeling of an owner of an animal taken for ransom is analogous to vindication of
grave offense.

3. Impulse of jealous feeling, similar to passion and obfuscation.

4. Voluntary restitution of property, similar to voluntary surrender.

5. Extreme poverty, similar to incomplete justification based on state necessity.

Aggravating Circumstances

ART.14

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

Requisites:
1. Offender is public officer
2. Public officer must use the influence, prestige, or ascendancy which his office gives him
as means to realize criminal purpose

It is not considered as an aggravating circumstance where taking advantage of official

position is made by law an integral element of the crime or inherent in the offense,

Ex: malversation (Art. 217), falsification of a document committed by public officers (Art.
171).

When the public officer did not take advantage of the influence of his position, this
aggravating circumstance is not present
NOTE : Taking advantage of a public position is also inherent in the case of accessories
under Art. 19, par. 3 (harboring, concealing, or assisting in the escape of the principal of the
crime), and in crimes committed by public officers (Arts. 204-245).

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

Requisites:
1. That the public authority is engaged in the exercise of his functions.
2. That he who is thus engaged in the exercise of said functions is not the person against
whom the crime is committed.
3. The offender knows him to be a public authority.
4. His presence has not prevented the offender from committing the criminal act.

PERSON IN AUTHORITY – public authority, or person who is directly vested with jurisdiction
and has the power to govern and execute the laws
Ex:
1. Governor
2. Mayor
3. Barangay captain/ chairman
4. Councilors
5. Government agents
6. Chief of Police

NOTE: A teacher or professor of a public or recognized private school is not a “public

authority within the contemplation of this paragraph. While he is a person in authority under
Art. 152, that status is only for purposes of Art. 148 (direct assault) and Art.152 (resistance
and disobedience)

The crime should not be committed against the public authority (otherwise it will constitute
direct assault under Art.148) This is NOT applicable when committed in the presence of a
mere agent.

AGENT – subordinate public officer charged w/ the maintenance of public order and
protection and
security of life and property
Ex: barrio vice lieutenant, barrio councilman

Par. 3. That the act be committed:

(1) with insult or in disregard of the respect due the offended party on account of his
(a)rank,
(b) age, or
(c) sex or
(2) that it be committed in the dwelling of the offended party, if the latter has not given
provocation

Rules regarding par 3(1):

1. These circumstances shall only be considered as one aggravating circumstance.
2. Rank, age, sex may be taken into account only in crimes against persons or honor, they
cannot be
invoked in crimes against property.
3. It must be shown that in the commission of the crime the offender deliberately intended to
offend or insult the sex, age and rank of the offended party.

RANK – The designation or title of distinction used to fix the relative position of the offended
party in reference to others (There must be a difference in the social condition of the
offender and the offended party).

AGE – may refer to old age or the tender age of the victim.

SEX– refers to the female sex, not to the male sex.

The AC of disregard of rank, age, or sex is not applicable in the following cases:
1. When the offender acted with passion and obfuscation.
2. When there exists a relationship between the offended party and the offender.
3. When the condition of being a woman is indispensable in the commission of the crime.
(Ex: in parricide, abduction, seduction and rape)

People vs. Lapaz, March 31, 1989

Disregard of sex and age are not absorbed in treachery because treachery refers to the
manner of the commission of the crime, while disregard of sex and age pertains to the
relationship of the victim.

DWELLING – must be a building or structure exclusively used for rest and comfort
(combination of house and store not included), may be temporary as in the case of guests in
a house or bedspacers. It includes dependencies, the foot of the staircase and the enclosure
under the house

NOTES:
The aggravating circumstance of dwelling requires that the crime be wholly or partly
committed therein or in any integral part thereof.

Dwelling does not mean the permanent residence or domicile of the offended party or that
he must be the owner thereof. He must, however, be actually living or dwelling therein even
for a temporary duration or purpose.

It is not necessary that the accused should have actually entered the dwelling of the victim to
commit the offense; it is enough that the victim was attacked inside his own house, although
the assailant may have devised means to perpetrate the assault from without.

What aggravates the commission of the crime in one’s dwelling:

1. The abuse of confidence which the offended party reposed in the offender by opening the
door to him; or
2. The violation of the sanctity of the home by trespassing therein with violence or against
the will of the owner.

Meaning of provocation in the aggravating circumstance of dwelling:

The provocation must be:
1. Given by the owner of the dwelling,
2. Sufficient, and
3. Immediate to the commission of the crime.

NOTE: If all these conditions are present, the offended party is deemed to have given the
provocation, and the fact that the crime is committed in the dwelling of the offended party is
NOT an aggravating circumstance.
REASON: When it is the offended party who has provoked the incident, he loses his right to
the respect and consideration due him in his own house

Dwelling is not aggravating in the following cases:

1. When both the offender and the offended party are occupants of the same house, and this
is true even if offender is a servant in the house.
exception: In case of adultery in the conjugal dwelling, the same is aggravating.
However, if the paramour also dwells in the conjugal dwelling, the applicable aggravating
circumstance is abuse of confidence.

2. When robbery is committed by the use of force upon things, dwelling is not aggravating
because it is inherent.

However, dwelling is aggravating in robbery with violence against or intimidation of persons

because
this class of robbery can be committed without the necessity of trespassing the sanctity of
the offended party’s house.

3. In the crime needed to see this picture. dwelling, it is inherent or included by law in
defining the crime.

4. When the owner of the dwelling gave sufficient and immediate provocation.

There must exist a close relation between the provocation made by the victim and the
commission of the crime by the accused.

5. The victim is not a dweller of the house.

Par. 4. That the act be committed with: (1) abuse of confidence or (2) obvious
ungratefulness

There are two aggravating circumstances present under par.4 which must be independently
appreciated if present in the same case.

While one may be related to the other in the factual situation in the case, they cannot be
lumped together. Abuse of confidence requires a special confidential relationship between
the offender and the victim, while this is not required for there to be obvious ungratefulness

Requisites Of Abuse Of Confidence:

1. That the offended party had trusted the offender.
2. That the offender abused such trust by committing a crime against the offended party.
3. That the abuse of confidence facilitated the commission of the crime.

NOTE: Abuse of confidence is inherent in malversation (Art. 217), qualified theft (Art. 310),
estafa by conversion or misappropriation (Art. 315), and qualified seduction (Art. 337).

Requisites of obvious ungratefulness:

1. That the offended party had trusted the offender;
2. That the offender abused such trust by committing a crime against the offended party.
3. That the act be committed with obvious ungratefulness.

NOTE: The ungratefulness contemplated by par. 4 must be such clear and manifest
ingratitude on the part of the accused.

Par. 5. That the crime be committed in the palace of the Chief Executive, or in his
presence, or where public authorities are engaged in the discharge of their duties, or
in a place dedicated to religious worship.

Actual performance of duties is not necessary when crime is committed in the palace or in
the presence of the Chief Executive.
Requisites Regarding Public Authorities:
1. crime occurred in the public office
2. public authorities are actually performing their public duties

Requisites (Place Dedicated To Religious Worship):

1. The crime occurred in a place dedicated to the worship of God regardless of religion
2. The offender must have decided to commit the crime when he entered the place of
worship

Except for the third which requires that official functions are being performed at the time of
the
commission of the crime, the other places mentioned are aggravating per se even if no
official duties or acts of religious worship are being conducted there.

Cemeteries, however respectable they may be, are not considered as place dedicated to the
worship of God.

Par. 6. That the crime be committed (1) in the nighttime, or (2) in an uninhabited place,
or (3) by a band, whenever such circumstance may facilitate the commission of the
offense

NOTE: When present in the same case and their element are distinctly palpable and can
subsist
independently, they shall be considered separately.

When nighttime, uninhabited place or band aggravating:

1. When it facilitated the commission of the crime; or
2. When especially sought for by the offender to insure the commission of the crime or for
the purpose of impunity; or
3. When the offender took advantage thereof for the purpose of impunity

NIGHTTIME (obscuridad) – that period of darkness beginning at the end of dusk and ending
at dawn.

Commission of the crime must begin and be accomplished in the nighttime. When the place
of the crime is illuminated by light, nighttime is not aggravating. It is not considered
aggravating when the crime began at daytime.

Nighttime is not especially sought for when the notion to commit the crime was conceived of
shortly before commission or when crime was committed at night upon a casual encounter

However, nighttime need not be specifically sought for when

(1) it facilitated the commission of the offense, or
(2) the offender took advantage of the same to commit the crime

A bare statement that crime was committed at night is insufficient. The information must
allege that nighttime was sought for or taken advantage of, or that it facilitated the crime

GENERAL RULE: Nighttime is absorbed in treachery.

EXCEPTION: Where both the treacherous mode of attack and nocturnity were deliberately
decided upon in the same case, they can be considered separately if such circumstances
have different factual bases. Thus:
In People vs. Berdida, et. al. (June 30, 1966),
- nighttime was considered since it was purposely sought, and treachery was further
appreciated because the victim’s hands and arms were tied together before he was beaten
up by the accused.

In People vs. Ong, et. al. (Jan. 30, 1975), there was treachery as the victim was stabbed
while lying face up and defenseless, and nighttime was considered upon proof that it
facilitated the commission of the offense and was taken advantage of by the accused.

UNINHABITED PLACE (despoblado) – one where there are no houses at all, a place at a
considerable distance from town, where the houses are scattered at a great distance from
each other.

Solitude must be sought to better attain the criminal purpose.

What should be considered here is whether in the place of the commission of the offense,
there was
a reasonable possibility of the victim receiving some help.

BAND (en cuadrilla) – whenever there are more than 3 armed malefactors that shall have
acted together in the commission of an offense

NOTE: There must be four or more armed men

If one of the four-armed malefactors is a principal by inducement, they do not form a band
because it is undoubtedly connoted that he had no direct participation.

“By a band” is aggravating in crimes against property or against persons or in the crime of
illegal detention or treason but does not apply to crimes against chastity

“By a band” is inherent in brigandage

This aggravating circumstance is absorbed in the circumstance of abuse of superior

strength

1994 Bar Exam Question (Aggravating;Nighttime;Band)

At about 9:30 in the evening, while Dino and Raffy were walking along Padre Faura Street,
Manila, Johnny hit them with a rock injuring Dino at the back. Raffy approached Dino, but
suddenly, Bobby, Steve, Danny, and Nonoy surrounded the duo. Then Bobby stabbed Dino.
Steve, Danny, Nonoy, and Johnny kept on hitting Dino and Raffy with rocks. As a result,
Dino died. Bobby, Steve, Danny, Nonoy, and Johnny were charged with homicide.

Can the court appreciate the aggravating circumstances of nighttime and band?

No, nighttime can not be appreciated as an aggravating circumstance because there is no

indication that the offenders deliberately sought the cover of darkness to facilitate the
commission of the crime or that they took advantage of nighttime.(People vs. De los Reyes,
203 SCRA 707).

Besides, judicial notice can be taken of the fact that Padre Faura Street is well lighted.

However, Band should be considered as the crime was committed by more than three
armed malefactors. In a recent Supreme Court Decision, stones or rocks are considered
deadly weapons.

1996 Bar Examination (Aggravating Circumstances)

Jose,Domingo,Manolo, and Fernando, armed with bolos, at about one o'clock in the
morning, robbed a house at a desolate place where Danilo, his wife, and three daughters
were living. While the four were in the process of ransacking Danilo's house, Fernando,
noticing that one of Danilo's daughters was trying to get away, ran after her and finally
caught up with her in a thicket somewhat distant from the house. Fernando, before bringing
back the daughter to the house, raped her first. Thereafter, the four carted away the
belongings of Danilo and his family.

a. What crime did Jose,Domingo,Manolo, and Fernando commit? Explain.

b. Suppose, after the robbery, the four took turns in raping the three daughters of Danilo
inside the latter's house, but before they left, they killed the whole family to prevent
identification, what crime did the four commit? Explain.

c. Under the facts of the case, what aggravating circumstances maybe appreciated against
the four? Explain.

a. Jose,Domingo, and Manolo committed robbery, while Fernando committed complex crime
of Robbery with Rape.

b. The crime would be Robbery with Homicide because the killings were by reason (to
prevent identification) and on the occasion of the robbery. The multiple rapes committed and
the fact that several persons were killed (homicide), would be considered as aggravating
circumstances. The rapes are synonymous with ignominy and the additional killing
synonymous with cruelty.(People vs. Solis, 182 SCRA; People vs. Plaga, 202 SCRA 531)

c. The aggravating circumstances which may be considered in the premises are:

1. Band because all the four offenders are armed.
2. Nocturnity because evidently the offenders took advantage of nighttime.
3. Dwelling; and
4. Uninhabited place because the house where the crimes were committed was "at a
desolate place" and obviously the offenders took advantage of this circumstance in
committing the crime.

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

earthquake, epidemic or other calamity or misfortune.

Requisites:
1. The crime was committed when there was a calamity or misfortune
2. The offender took advantage of the state of confusion or chaotic condition from such
misfortune

If the offended was PROVOKED by the offended party during the calamity/misfortune, this
aggravating circumstance may not be taken into consideration.

Par. 8.That the crime be committed with the aid of

(1) armed men or
(2) persons who insure or afford impunity
Requisites:
1. That armed men or persons took part in the commission of the crime, directly or indirectly.
2. That the accused availed himself of their aid or relied upon them when the crime was
committed

NOTE: This aggravating circumstance requires that the armed men are accomplices who
take part in a minor capacity directly or indirectly, and not when they were merely present at
the crime scene. Neither should they constitute a band, for then the proper aggravating
circumstance would be cuadrilla.

When This Aggravating Circumstance Shall Not Be Considered:

1. When both the attacking party and the party attacked were equally armed.
2. When the accused as well as those who cooperated with him in the commission of the
crime acted under the same plan and for the same purpose.
3. When the others were only “casually present” and the offender did not avail himself of any
of their aid or when he did not knowingly count upon their assistance in the commission of
the crime

If there are four armed men, aid of armed men is absorbed in employment of a band. If there
are three armed men or less, aid of armed men may be the aggravating circumstance.

“Aid of armed men” includes “armed women.”

Par. 9. That the accused is a recidivist

RECIDIVIST – 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 the RPC.

Requisites:
1. That the offender is on trial for an offense;
2. That he was previously convicted by final judgment of another crime;
3. That both the first and the second offenses are embraced in the same title of the Code;
4. That the offender is convicted of the new offense.

MEANING OF “at the time of his trial for one crime.” It is employed in its general sense,
including the rendering of the judgment. It is meant to include everything that is done in the
course of the trial, from arraignment until after sentence is announced by the judge in open
court.

What is controlling is the TIME OF THE TRIAL, not the time of the commission of the
offense.

GENERAL RULE: To prove recidivism, it is necessary to allege the same in the information
and to attach thereto certified copy of the sentences rendered against the accused.

Exception: If the accused does not object and when he admits in his confession and on the
witness stand.

Recidivism must be taken into account no matter how many years have intervened between
the
first and second felonies.

Amnesty extinguishes the penalty and its effects. However, pardon does not obliterate the
fact that
the accused was a recidivist. Thus, even if the accused was granted a pardon for the first
offense but he commits another felony embraced in the same title of the Code, the first
conviction is still counted to make him a recidivist

Being an ordinary aggravating circumstance, recidivism affects only the periods of a penalty,
except in prostitution and vagrancy (Art. 202) and gambling (PD 1602) wherein recidivism
increases the penalties by degrees. No other generic aggravating circumstance produces
this effect

In recidivism it is sufficient that the succeeding offense be committed after the commission of
the
preceding offense provided that at the time of his trial for the second offense, the accused
had
already been convicted of the first offense.

If both offenses were committed on the same date, they shall be considered as only one,
hence, they
cannot be separately counted in order to constitute recidivism. Also, judgments of convicted
handed down on the same day shall be considered as only one conviction.

REASON: Because the Code requires that to be considered as a separate convictions, at

the time of his trial for one crime the accused shall have been previously convicted by final
judgment of the other.

2001 Bar Exam Question (Aggravating;Recidivism)

Juan de Castro already had three (3) previous convictions by final judgment for theft when
he was found guilty of Robbery with Homicide. In the last case, the trial judge considered
against the accused both recidivism and habitual delinquency. The accused appealed and
contended that in his last conviction, the trial court cannot consider against him a finding of
recidivism and, again, of habitual delinquency.

Is the appeal meritorious? Explain.

No, the appeal is not meritorious. Recidivism and habitual delinquency are correctly
considered in this case because the basis of recidivism is different from that of habitual
delinquency.

Juan is a recidivist because he had been previously convicted by final judgment for theft and
again found guilty of Robbery with Homicide, which are both crimes against property,
embraced under the same title (title ten, book 2) of the Revised Penal Code. The implication
is that he is specializing in the commission of crimes against property, hence aggravating in
the conviction for Robbery with Homicide.

Habitual delinquency, which brings about an additional penalty when an offender is

convicted a third time or more for specified crimes, is correctly considered.

Par. 10. That the offender has been previously punished for an offense to which the
law attaches an equal or greater penalty or for two or more crimes to which it attaches
a lighter penalty.

Requisites Of Reiteracion Or Habituality:

1. That the accused is on trial for an offense;
2. That he previously served sentence for another offense to which the law attaches an
a) Equal or
b) Greater penalty, or
c) For two or more crimes to which it attaches a lighter penalty than that for the new offense;
and
3. That he is convicted of the new offense

Habituality vs Recidivism
1. As To The First offense
Habituality - It is necessary that the offender shall shall have served out his sentence for the
first offense.
Recidivism - It is enough that a final judgment has been rendered in the first offense.
2. As to the kind of offenses involved
Habituality - The previous and subsequent offenses must not be embraced in the same title
of the code.
Recidivism - Requires that the offenses be included in the same title of the code.

THE FOUR FORMS OF REPETITION ARE:

1. Recidivism (par. 9, Art. 14) – Where a person, on separate occasions, is convicted of two
offenses
embraced in the same title in the RPC. This is a generic aggravating circumstance.
2. Reiteracion or Habituality (par. 10, Art. 14) – Where the offender has been previously
punished for
an offense to which the law attaches an equal or greater penalty or for two crimes to which it
attaches
a lighter penalty. This is a generic aggravating circumstance.
3. Multi-recidivism or Habitual delinquency (Art.62, par, 5) – Where a person within a period
of ten
years from the date of his release or last conviction of the crimes of serious or less serious
physical injuries, robbery, theft, estafa or falsification, is found guilty of the said crimes a third
time or oftener. This is an extraordinary aggravating circumstance.
4. Quasi-recidivism (Art. 160) – Where a person commits felony before beginning to serve or
while
serving sentence on a previous conviction for a felony. This is a special aggravating
circumstance.

Since reiteracion provides that the accused has duly served the sentence for his previous
conviction/s, or is legally considered to have done so, quasi-recidivism cannot at the
same time constitute reiteracion, hence this aggravating circumstance cannot apply to
a quasi-recidivist.

If the same set of facts constitutes recidivism and reiteracion, the liability of the accused
should be
aggravated by recidivism which can easily be proven.

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

Requisites:
1. There are at least 2 principals:
- The principal by inducement (one who offers)
- The principal by direct participation (accepts)
2. The price, reward, or promise should be previous to
and in consideration of the commission of the
criminal act

NOTE: The circumstance is applicable to both principals.

 It affects the person who received the price / reward as
well as the person who gave it.

If without previous promise it was given voluntarily after

the crime had been committed asan expression of his
appreciation for the sympathy and aid shown by the other
accused, it should not be taken into consideration for the
purpose of increasing the penalty.

The price, reward or promise need not consist of or refer

to material things or that the same were actually delivered,
it being sufficient that the offer made by the principal
by inducement be accepted by the principal by direct
participation before the commission of the offense.

The inducement must be the primary consideration for the

commission of the crime.

Par. 12. That the crime be committed by means of inundation, fire, explosion,
stranding of a vessel or intentional damage thereto, derailment of a locomotive, or by
use of any artifice involving great waste and ruin

The circumstances under this paragraph will only be considered

as aggravating if and when they are used by the offender as a
means to accomplish a criminal purpose

When another aggravating circumstance already qualifies the

crime, any of these aggravating circumstances shall be
considered as generic aggravating circumstance only

When used as a means to kill another person, the crime is

qualified to murder.

Par. 13. That the act be committed with evident premeditation

Requisites:
The prosecution must prove –
1. The time when the offender determined to commit the crime;
2. An act manifestly indicating that the culprit has clung to his determination; and
3. A sufficient lapse of time between the determination and execution, to allow him to reflect
upon the consequences of his act and to allow his conscience to overcome the resolution of
his will.

Essence of premeditation: The execution of the criminal act must be preceded by cool
thought and reflection upon the resolution to carry out the criminal intent during the space of
time sufficient to arrive at a calm judgment.

To establish evident premeditation, it must be shown that there was a period sufficient to
afford full opportunity for meditation and reflection, a time adequate to allow the conscience
to overcome the resolution of the will, as well as outward acts showing the intent to kill. It
must be shown that the offender had sufficient time to reflect upon the consequences of his
act but still persisted in his determination to commit the crime. (PEOPLE vs. SILVA, et. al.,
GR No.140871, August 8, 2002)

Premeditation is absorbed by reward or promise.

When the victim is different from that intended, premeditation is not aggravating. However, if
the offender premeditated on the killing of any person, it is proper to consider against the
offender the aggravating circumstance of premeditation, because whoever is killed by him is
contemplated in his
premeditation.

Par. 14. That (1) craft,

(2) fraud, or
(3) disguise be employed.

Requisite
The offender must have actually used craft, fraud, or disguise to facilitate the commission of
the crime.

CRAFT (astucia) – involved the use of intellectual trickery or cunning on the part of the
accused. A chicanery resorted to by the accused to aid in the execution of his criminal
design. It is employed as a scheme in the execution of the crime

FRAUD (fraude) – insidious words or machinations used to induce the victim to act in a
manner that would enable the offender to carry out his design

Craft and fraud may be absorbed in treachery if they have been deliberately adopted as the
means, methods, or forms for the treacherous strategy, or they may co-exist independently
where they are adopted for a different purpose in the commission of the crime.

Ex:
In People vs. San Pedro (Jan. 22, 1980), where the accused pretended to hire the driver in
order to get his vehicle, it was held that there was craft directed to the theft of the vehicle,
separate from the means
subsequently used to treacherously kill the defenseless driver.

In People vs. Masilang (July 11, 1986) there was also craft where after hitching a ride, the
accused
requested the driver to take them to a place to visit somebody, when in fact they had already
planned to kill the driver.

DISGUISE (disfraz) – resorting to any device to conceal identity

The test of disguise is whether the device or contrivance resorted to by the offender was
intended to or did make identification more difficult, such as the use of a mask or false hair
or beard.

The use of an assumed name in the publication of a libel constitutes disguise.

Par. 15. That (1) advantage be taken of superior strength, or

(2) means be employed to weaken the defense.

Par. 15 contemplates two aggravating circumstances, either of

which qualifies a killing to murder.

MEANING OF “advantage be taken”:To deliberately use excessive

force that is out of proportion to the means for self-defense
available to the person attacked. (PEOPLE vs. LOBRIGAS, et.
al., GR No. 147649, December 17, 2002)
 No Advantage Of Superior Strength In The Following:
1. One who attacks another with passion and obfuscation does
not take advantage of his superior strength.
2. When a quarrel arose unexpectedly and the fatal blow was
struck at a time when the aggressor and his victim were
engaged against each other as man to man.

TEST for abuse of superior strength: the relative strength of

the offender and his victim and whether or not he took
advantage of his greater strength.

When there are several offenders participating in the crime,

they must ALL be principals by direct participation and their
attack against the victim must be concerted and intended
to be so.

Abuse of superior strength is inherent in the crime of

parricide where the husband kills the wife. It is generally
accepted that the husband is physically stronger than the wife.

Abuse of superior strength is also present when the offender

uses a weapon which is out of proportion to the defense
available to the offended party.

NOTE: Abuse of superior strength absorbs cuadrilla (“band”).

MEANING OF “Means employed to weaken defense” - the offender

employs means that materially weaken the resisting power of
the offended party.

Ex:
1. Where one, struggling with another, suddenly throws a
cloak over the head of his opponent and while in this
situation he wounds or kills him.
2. One who, while fighting with another, suddenly casts sand
or dirt upon the latter eyes and then wounds or kills him.
3. When the offender, who had the intention to kill the
victim, made the deceased intoxicated, thereby materially
weakening the latter’s resisting power.

NOTE: This circumstance is applicable only to crimes against

persons, and sometimes against person and property, such as
robbery with physical injuries or homicide.

Par. 16. That the act be committed with treachery (alevosia)

TREACHERY – when the offender commits any of the crimes against

the person, employing means, methods or forms in the execution
thereof which tend directly and specially to insure its
execution without risk to himself arising from the defense
which the offended party might make.

Requisites:
1. That at the time of the attack, the victim was not in a
 position to defend himself; and
2. That the offender consciously adopted the particular means,
method or form of attack employed by him.

TEST: It is not only the relative position of the parties but,

more specifically, whether or not the victim was forewarned or
afforded the opportunity to make a defense or to ward off
the attack.

Rules Regarding Treachery:

1. Applicable only to crimes against persons.
2. Means, methods or forms need not insure accomplishment of crime.
3. The mode of attack must be consciously adopted.

Treachery is taken into account even if the crime against the

person is complexed with another felony involving a different
classification in the Code. Accordingly, in the special complex
crime of robbery with homicide, treachery but can be
appreciated insofar as the killing is concerned.

The suddenness of attack in itself does not constitute treachery,

even if the purpose was to kill, so long as the decision was
made all of a sudden and the victim’s helpless position was
accidental.

Treachery applies in the killing of a child even if the manner

of attack is not shown.

Treachery must be convincing evidence proved by clear and

Treachery is considered against all the offenders when there

is conspiracy.

WHEN MUST TREACHERY BE PRESENT:

1. When the aggression is continuous, treachery must be present
in the beginning of the assault. (PEOPLE vs. MANALAD, GR
No. 128593, August 14, 2002)

Thus, even if the deceased was shot while he was lying wounded
on the ground, it appearing that the firing of the shot was
a mere continuation of the assault in which the deceased was
wounded, with no appreciable time intervening between the
delivery of the blows and the firing of the shot, it cannot
be said that the crime was attended by treachery.

2. When the assault was not continuous, in that there was

interruption, it is sufficient that treachery was present
at the moment the fatal blow was given.

Hence, even though in the inception of the aggression

which ended in the death of the deceased, treachery
was not present, if there was a break in the continuity of
the aggression and at the time of the fatal wound was
inflicted on the deceased he was defenseless, the
circumstance of treachery must be taken into account.
 Treachery Should Be Considered Even If:
1. The victim was not predetermined but there was a generic
intent to treacherously kill any first two persons belonging
to a class. (The same rule obtains for evident premeditation).
2. There was aberratio ictus and the bullet hit a person different
from that intended. (The rule is different in evident
premeditation).
3. There was error in personae, hence the victim was not the
one intended by the accused. (A different rule is applied in
evident premeditation).

REASON FOR THE RULE: When there is treachery, it is impossible

for either the intended victim or the actual victim to defend
himself against the aggression.

TREACHERY ABSORBS:
1. Craft
2. Abuse of superior strength
3. Employing means to weaken the defense
4. Cuadrilla (“band”)
5. Aid of armed men
6. Nighttime

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

IGNOMINY – is a circumstance pertaining to the moral order,

which adds disgrace and obloquy to the material injury caused
by the crime.

MEANING OF “which add ignominy to the natural effects thereof”

The means employed or the circumstances brought about must tend
to make the effects of the crime more humiliating to victim or
to put the offended party to shame, or add to his moral
suffering. Thus it is incorrect to appreciate ignominy where
the victim was already dead when his body was dismembered, for
such act may not be considered to have added to the victim’s
moral suffering or humiliation. (People vs. Carmina,
G.R. No. 81404, January 28, 1991)

Applicable to crimes against chastity, less serious physical

injuries, light or grave coercion, and murder.

Par. 18. That the crime be committed after an unlawful entry.

UNLAWFUL ENTRY - when an entrance is effected by a way not intended for the purpose.

NOTE: Unlawful entry must be a means to effect entrance and not for escape.

REASON FOR AGGRAVATION: One who acts, not respecting the walls erected by men to
guard their property and provide for their personal safety, shows a greater perversity, a
greater audacity; hence, the law punishes him with more severity.

1997 Bar Examination Question(Treachery;Unlawful Entry)

The accused and the victim occupied adjacent apartments, each being a separate dwelling
unit of one big house.The accused suspected his wife of having an illicit relation with the
victim. One afternoon, he saw the victim and his wife together on board a vehicle. In the
evening of that day, the accused went to bed early and tried to sleep, but being so annoyed
over the suspected relation between his wife and the victim, he could not sleep. later in the
night, he resolved to kill the victim. He rose from bed and took hold of a knife. He entered the
apartment of the victim through an unlock window. Inside, he saw the victim soundly asleep.
He thereupon stabbed the victim, inflicting several wounds,
which caused his death within a few hours.

Would you say that the killing was attended by the qualifying or aggravating circumstances
of evident premeditation, treachery, nighttime, and unlawful entry?

1. Evident premeditation cannot be considered against the accused because he resolved to

kill the victim "later in the night" and there was no sufficient lapse of time between the
determination and execution, to allow his conscience to overcome the resolution of his will.

2. Treachery may be present because the accused stabbed the victim while the latter was
sound asleep. Accordingly, he employed means and methods which directly and specially
insured the execution of the act without risk to himself arising from the defense which the
victim might have made.(People vs. Dequina, 60 Phil. 27, People vs. Miranda,et.al, 90 Phil.
91)

3. Nighttime cannot be appreciated because there is no showing that the accused

deliberately sought or availed of nighttime to insure the success of his act. The intention to
commit the crime was conceived shortly before its commission.(People vs. Pardo, 79 Phil.
568) Moreover, nighttime is absorbed in treachery.

4. Unlawful entry may be appreciated as an aggravating circumstance, in as much as the

accused entered the room of the victim through the window, which is not the proper place for
entrance into the house.(Art.14. par.18. Revised Penal Code, People vs. Baruga, 61 Phil.
318)

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

Applicable only if such acts were done by the offender to effect ENTRANCE. If the wall, etc.,
is broken in order to get out of the place, it is not an aggravating circumstance.

It is NOT necessary that the offender should have entered the building Therefore, If the
offender broke a window to enable himself to reach a purse with money on the table near
that window, which he took while his body was outside of the building, the crime of theft was
attended by this aggravating circumstance.

NOTE: Breaking in is lawful in the following instances:

1. An officer, in order to make an arrest, may break open a door or window of any building in
which the person to be arrested is or is reasonably believed to be;
2. An officer, if refused admittance, may break open any door or window to execute the
search warrant or liberate himself,
3. Replevin, Section 4, Rule 60 of the Rules of Court

Par. 20. That the crime be committed

(1) with the aid of persons under fifteen (15) years of age, or
(2) by means of motor vehicles, airships, or other similar means.
TWO DIFFERENT CIRCUMSTANCES GROUPED IN THIS PARAGRAPH:
1. With the aid of persons under fifteen years of age:

Intends to repress, so far as possible, the frequent practice resorted to by professional

criminals to avail themselves of minors taking advantage of their irresponsibility.

2. By means of motor vehicles, airships, or other similar means:

Intended to counteract the great facilities found by modern criminals in said means to
commit crime and flee and abscond once the same is committed.

Use of motor vehicle is aggravating where the accused purposely and deliberately used the
motor vehicle in going to the place of the crime, in carrying away the effects thereof, and in
facilitating their escape.

MEANING OF “or other similar means” Should be understood as referring to motorized

vehicles or other efficient means of transportation similar to automobile or airplane.

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

CRUELTY – there is cruelty when the culprit enjoys and delights in making his victim suffer
slowly and gradually, causing unnecessary physical pain in the consummation of the criminal
act.

Requisites:
1. That the injury caused be deliberately increased by causing other wrong;
2. That the other wrong be unnecessary for the execution of the purpose of the offender.

Cruelty is not inherent in crimes against persons.

In order for it to be appreciated, there must be positive proof that the wounds found on the
body of the victim were inflicted while he was still alive in order unnecessarily to prolong
physical suffering.

Cruelty cannot be presumed

If the victim was already dead when the acts of mutilation were being performed, this would
also qualify the killing to murder due to outraging of his corpse.

Ignominy involves moral suffering. Cruelty refers to physical suffering.

Unlike mitigating circumstances (par. 10, Art. 13), there is NO provision for aggravating
circumstances of a similar or analogous character.

1994 Bar Examination Question (Cruelty;Relationship)

Ben, a widower, driven by bestial desire, poked a gun on his daughter Zeny, forcibly
undressed her and tied her legs to the bed. He also burned her face with a lighted cigarette.
Like a madman, he laugh while raping her.

What aggravating circumstances are present in this case?

a. Cruelty, for burning the victim's face with a lighted cigarette, thereby deliberately
augmenting the victim's suffering by acts clearly unnecessary to the rape, while the offender
delighted and enjoyed seeing the victim suffer in pain.(People vs. Lucas, 181 SCRA 316)

b. Relationship, because the offended party is a descendant (daughter) of the offender and
considering that the crime is one against chastity.

Alternative Circumstances

Article 15. Their concept. - Alternative circumstances are those which must be taken into
consideration as aggravating or mitigating according to the nature and effects of the crime
and the other conditions attending its commission. They are the relationship, intoxication and
the degree of instruction and education of the offender.

The alternative circumstance of relationship shall be taken into consideration when the
offended party in the spouse, ascendant, descendant, legitimate, natural, or adopted brother
or sister, or relative by affinity in the same degrees of the offender.

The intoxication of the offender shall be taken into consideration as a mitigating

circumstance when the offender has committed a felony in a state of intoxication if the same
is not habitual or subsequent to the plan to commit said felony but when the intoxication is
habitual or intentional, it shall be considered as an aggravating circumstance.

Alternative Circumstances – Those which must be taken into consideration

as aggravating or mitigating according to the nature and effects of the crime and the other
conditions attending its commission. (Art.15)

Basis
The nature and effects of the crime and the other conditions attending its commission.

The Alternative Circumstances Are:

1. Relationship;
2. Intoxication; and
3. Degree of instruction and education of the offender.

Relationship
The alternative circumstance of relationship shall be taken into consideration when the
offended party is the –
1. Spouse,
2. Ascendant,
3. Descendant,
4. Legitimate, natural, or adopted brother or sister, or
5. Relative by affinity in the same degree of the offender.

Other Relatives Included (By Analogy):

1. The relationship of stepfather or stepmother and stepson or stepdaughter.

REASON: It is the duty of the step-parents to bestow upon their stepchildren a

mother’s/father’s affection, care and protection.

2. The relationship of adopted parent and adopted child.

NOTE: But the relationship of uncle and niece is not covered by any of the relationship
mentioned.
When Relationship Mitigating And When Aggravating:
1. As a rule, relationship is mitigating in crimes against property, by analogy to the provisions
of Art. 332.
Thus, relationship is mitigating in the crimes of robbery (Arts. 294-302), usurpation (Art.
312), fraudulent insolvency (Art. 314) and arson (Arts. 321-322, 325-326).

2. In crimes against persons –

a) It is aggravating where the offended party is a relative of
(1). a higher degree than the offender, or
(2). when the offender and the offended party are relatives of the same level (e.g. brothers)

b) But when it comes to physical injuries:

(1). It is aggravating when the crime involves serious physical injuries (Art.263), even if the
offended
party is a descendant of the offender. But the serious physical injuries must not be inflicted
by a parent upon his child by excessive chastisement.
(2). It is mitigating when the offense committed is less serious physical injuries or slight
physical injuries, if the offended party is a relative of a lower degree.
(3). It is aggravating if the offended party is a relative of a higher degree of the offender.

c) When the crime is homicide or murder, relationship is aggravating even if the victim of the
crime is a relative of a lower degree.

d) In rape, relationship is aggravating where a stepfather raped his stepdaughter or in a case

where a father raped his own daughter.

3. In crimes against chastity, like acts of lasciviousness (Art. 336), relationship is always
aggravating, regardless of whether the offender is a relative of a higher or lower degree of
the offended party. When the qualification given to the crime is derived from the relationship
between the offender and the offended party, it is neither mitigating nor aggravating,
because it is inseparable from and inherent in the offense. (e.g. parricide, adultery
and concubinage).

Intoxication - When Intoxication Mitigating And When Aggravating:

1. Mitigating –
a. If intoxication is not habitual, or
b. If intoxication is not subsequent to the plan to commit a felony.
2. Aggravating –
a. If intoxication is habitual, or
b. If it is intentional (subsequent to the plan to commit a felony).

To Be Entitled To The Mitigating Circumstance Of Intoxication, It Must Be Shown:

1. That at the time of the commission of the criminal act, the accused has taken such
quantity of alcoholic drinks as to blur his reason and deprive him of a certain degree of
control, and
2. That such intoxication is not habitual, or subsequent to the plan to commit the felony.

To be mitigating, the accused’s state of intoxication must be proved. Once intoxication is

established by satisfactory evidence, in the absence of proof to the contrary, it is presumed
to be non-habitual or unintentional.

2000 Bar Exam Question (Non-Intoxication)

Despite the massive advertising campaign in media against firecrackers and gun-firing
during the New Year's celebrations, Jonas and Jaja bought ten boxes of super lolo and pla-
pla in Bocaue, Bulacan. Before midnight of December 31, 1999, Jonas and Jaja started their
celebration by having a drinking spree at Jona's place by exploding their high-powered
firecrackers in their neighborhood. In the course of their conversation, Jonas confided to Jaja
that he has been keeping a long-time grudge against his neighbor Jepoy in view of the
latter's refusal to lend him some money. While under the influence of liquor, Jonas started
throwing lighted super lolos inside Jepoy's fence to irritate him and the same exploded inside
the latter's yard. Upon knowing that the throwing of the super lolo was deliberate, Jepoy
became furious and sternly warned Jonas to stop his malicious act or he would get what he
wanted.A heated argument between Jonas and Jepoy ensued but Jaja tried to calm down
his friend. At midnight, Jonas convinced Jaja to lend him his .45 caliber pistol so that he
could use it to knock down Jepoy and to end his arrogance. Jonas thought that after all,
explosions were everywhere and nobody would know who shot Jepoy. After Jaja lent his
firearm to Jonas, the latter again started throwing lighted super lolos and pla-plas at Jepoy's
yard in order to provoke him so that he would come out of his house. When Jepoy came out,
Jonas immediately shot him with Jaja's .45 caliber gun but missed his target. Instead, the
bullet hit Jepoy's five year old son who was following behind him, killing the boy
instantaneously.

a. What crime or crimes can Jonas and Jaja be charged with? Explain.

b. If you were Jonas' and Jaja's lawyer, what possible defenses would you set up in favor of
your clients? Explain.

a. Jonas and Jaja, can be charged with the complex crime of attempted murder with
homicide because a single act caused a less grave and and a grave felony.(Art.48 RPC)

b. If I were Jonas' and Jaja's lawyer, I will use the following defenses:

1. That the accused had no intention to commit so grave a wrong as that committed as they
merely intended to frighten Jepoy.

2. That Jonas committed the crime in a state of intoxication thereby impairing his will power
or capacity to understand the wrongfulness of his act. Non-intentional intoxication is
a mitigating circumstance (People vs. Fortich, 281 SCRA 600 (1997); Art.15, RPC).

Alternative Circumstances Example

2002 Bar Examination Question (Alternative Circumstances; Intoxication)

A was invited to a drinking spree by friends. After having had a drink too many, A and B had
a heated argument, during which A stabbed B. As a result, B suffered serious physical
injuries.

May the intoxication of A be considered aggravating or mitigating?

The intoxication of A may be prima facie considered mitigating since it was merely incidental
to the commission of the crime. It may not be considered aggravating as there is no clear
indication from the facts of the case that it was habitual or intentional on the part of A.
Aggravating circumstances are not to be presumed; they should be proved beyond
reasonable doubt.
Instruction or Education
As an alternative circumstance it does not refer only to literacy but more to the level of
intelligence of the accused.

Refers to the lack or presence of sufficient intelligence and knowledge of the full significance
of one’s acts.

Low degree of instruction and education or lack of it is generally mitigating. High degree of
instruction and education is aggravating, when the offender took advantage of his learning
in committing the crime.

GENERAL RULE: Lack of sufficient education is mitigating

EXCEPTIONS:
1. Crimes against property (e.g. arson, estafa, theft, robbery)
2. Crimes against chastity, and
3. Treason – because love of country should be a natural feeling of every citizen, however
unlettered or uncultured he may be.