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CrimLaw I Garcia Notes
CrimLaw I Garcia Notes
CRIMINAL LAW REVIEW Limitations to the Power of Congress to enact Penal Laws:
23 Penal law must be General in application otherwise it
BY: ATTY. VICTORIA GARCIA would be violative of the Equal Protection Clause;
24 Must not partake the nature of an ex post facto law – ex
Transcribed by: post facto law makes criminal an act done before the
Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne passage of the law and which was innocent when done,
Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & and punishes such an act;
Maria Maica Angelika Roman. 25 Not a Bill of Attainder – A bill of attainder is a legislative act
which inflicts punishment without judicial trial;
Updated by: 26 Cannot impose cruel or excessive penalties or punishments
Updated by Anonymous Lawyer - e.g. congress cannot amend article 308-309 death, by
saying that henceforth that any who commit theft will be
(https://www.facebook.com/Anonymouslawer/)
given death. This is unusual punishment so it is prohibited.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 2
Generally, consuls are subject to penal laws of the country where 2.1 Basis of criminal liability is man’s social environment;
they are assigned unless there is a treaty or an agreement between 23 “All men are born good, they only become evil due to the
influence of the community.”
the home country of the consul and the country where he is 24 Crimes are a social phenomenon;
designated stating that the consul is immune from the criminal
jurisdiction of the host country. 2.2. Purpose of penalty is for purposes of rehabilitation;
Example;
23 Offender is a socially sick individual who need to be corrected not
to be punished;
A is an employee in ADB, a foreigner economist. A Filipino filed an
oral defamation against the foreigner economist. The DFA issued a 2.3. Determination of penalty is done on the case to case basis
letter and protocol to the court which states that ADB and PH has an
agreement that the ADB economist is immune from suit. The SC held 2.4. Emphasis of the law is on the offender and not to the
that it was erroneous that there was a decision immediately to offense;
dismiss the case without adducing any evidence, without informing 23 ...on the criminal not on the crime;
the fiscal. SC ruled that diplomatic immunity is only applied in the 24 great regard to the human element of the crime;
exercise of one’s function, but in this defamation case, it immunity
will not lie. Evidence first must be gathered to determine if the act 25 takes into consideration why the offender committed the crime;
was done in the exercise of one’s functions. (Liang v. People, G.R.
No. 125865. January 28, 2000) CLASSICAL PHILOSOPHY POSITIVIST PHILOSOPHY
Basis of criminal activity is Basis of criminal liability is
TERRITORIALITY human free will; man’s social environment;
Penal laws shall be applicable only within the Philippine jurisdiction Purpose of penalty is Purpose of penalty is for
including its atmosphere, internal waters, etc; Retribution; purposes of rehabilitation;
Determination of penalty is Determination of penalty is
General Rule done mechanically; done on the case to case basis;
Crimes committed outside the Philippine jurisdiction cannot be Emphasis is on the crime and Emphasis of the law is on the
under Philippine courts.
not on the criminal; offender and not to the
offense;
Exception;
Art. 2 of the Revised Penal Code provides situations where the extra-
23 MIXED/ECCLECTIC PHILOSOPHY
territorial jurisdiction of the Revised Penal Code may be applied. 23 Crimes which are heinous/obnoxious in nature-classical
24 Crimes which are social/economic – positivist
PROSPECTIVITY
Penal laws Penal laws shall only be applied from the time of 23 The Revised Penal Code adheres to Classical
effectivity. It be given retroactive application unless;
philosophy; Merely copied from Spanish...French
23 If penal laws are favorable to the accused provided that espoused classical;
the is not a habitual criminal; and
24 If the penal laws allow retroactivity; Although RPC is molded with classical philosophy, the amendments
are geared toward the positivist philosophy;
Philosophies under the Criminal Law System
23 Classical/ Juristic Philosophy; Example;
23 Indeterminate Sentence Law – once served the minimum of his penalty,
24 Positivist/ Realistic Philosophy; eligible for parole (rehabilitation);
25 Mixed/Eclectic; 24 Probation Law – 6 years and below, probation report to probation
officer;
25 RA 9346 –abolished death penalty;
CLASSICAL/JURISTIC PHILOSOPHY
3.1 Basis of criminal activity is human free will; THEORIES/RULES CONCERNING CRIMINAL LAW;
23 Man is a moral creature which understands right from wrong; The following are the theories concerned with Criminal Law;
24 When he commits a wrong, he voluntarily does the same, 23 Utilitarian. Protective theory;
therefore, he shall be ready for the consequences of his acts
24 Doctrine of Pro Reo;
25 Lenity Rule;
1.2 Purpose of penalty is Retribution;
26 Equipoise Rule;
23 Evolves from the maxim “an eye for an eye.” therefore, for
every crime committed, there is a corresponding penalty
based on the injury inflicted on the victim; Utilitarian/ Protective Theory;
Purpose of punishment is to protect the society from
1.3. Determination of penalty is done mechanically; actual/potential wrong doing;
23 Done mechanically since the punishment is proportionate to the
severity sustained by the victim; Even in violation of special penal laws, wherein intent does not
matter, courts should see to it that punishment shall only be
1.4. Emphasis is on the crime and not on the criminal; imposed to actual/potential wrongdoers;
23 …on the offense and not on the offender
Magno v. CA (G.R. No. 96132)
POSITIVIST/REALISTIC PHILOSOPHY
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 3
Potential wrongdoer was not Magno rather it was Mrs. Teng. She There are no common law crimes in the Philippines since the
should not have deposited the check upon withdrawing the Philippines is a civil law country. Penal laws are enacted. They do not
machineries. She was the one who acted in bad faith. evolve through time;
The Judge should rule in favor of the accused. Under the equipoise *Remember the Larranaga case, based on the RPC, a person who is
rule, when the evidence of the prosecution and the defense is convicted of a crime shall serve his sentence in the New Bilibid prison,
equally balanced, justice should be tilted in favor of the accused. that is the national penitentiary. However, the Philippines entered into
an agreement with Spain. This agreement was ratified by the Senate. As
23 What if what has performed was a perverted/immoral act but a result thereof, after Larranaga has been convicted of kidnapping and
there is no law which punishes the said act. Can the person be serious illegal detention with rape and homicide, considering that he has
prosecuted in court? 2 citizenship – both Filipino and Spanish. He was brought to Spain, and
23 No, “nullem crimen nulla poena sine lege” there is no crime when there he is serving his sentence. Because based on that agreement,
there is no law which punishes it. Spanish citizens who are serving their sentence in the Philippines can be
brought to Spain and they are to serve their sentence there. Larranaga
Q: Are there common law crimes in the Philippines? took advantage because definitely, the facilities perhaps are better than
23 NO. Common law crimes are principles, usages and use of action prison facilities here.
which the community considers as condemnable even if there’s no
law that punishes it;
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 4
st English Rule
1 : Those who should commit an offense while on a Philippine ship
or airship. The English Rule states that when a crime is committed on board a
foreign merchant vessel while on the waters of another country it is
Q: When is it a Philippine ship or airship? the host country which will have jurisdiction over the said crime;
5888 If it’s registered in the Philippines and under the Philippine
laws. Exception;
Even if totally or wholly owned by a Filipino citizen, if it is not When the crime merely affects the internal management of the
registered in the Philippines it cannot be considered as a Philippine vessel, then it is the flag country which will have jurisdiction. In
ship/airship. It is only upon registration that this aircraft/vessel can effect, the English Rule is territorial in nature.
fly the Philippine flag. Therefore, it is registration which is the
operative act which makes it a Philippine ship/airship. *Philippines adhere to the English Rule which is strictly territorial in
nature.
This is a situation where a crime is committed on board a Philippine
vessel while it is outside Philippine territory but not in the territory Example;
of another country. A foreign merchant vessel is on Manila Bay. A crime was committed
on board, the Philippines will have jurisdiction over the said crime
0 If a Philippine vessel is on waters of the Philippines, and a crime and criminal because we follow the English Rule.
was committed on board. What country will have jurisdiction?
23Obviously, the Philippines. nd
2 : Those who should forge or counterfeit any coin or currency note
of the Philippine Islands or obligations and securities issued by the
23 What if that Philippine Vessel is on the high seas or international Government of the Philippine Islands.
waters and a crime was committed on board the said Philippine Vessel.
What country will have jurisdiction over the said crime? rd
3 : Those who should be liable for acts connected with the
23 Still the Philippines. Because of the extraterritorial application of introduction into these islands of the obligations and securities
the RPC. It is the situation referred to as the 1st circumstance under mentioned in the presiding number.
paragraph 2 of Art. 2. It is the situation where the Philippine ship is
outside the Philippine territory but not in the territory of another Example;
country. So X was in Japan. He counterfeited Philippine coins. He then
introduced these coins in to the Philippine Islands. Although the
23 What if the Philippine Vessel is on the waters on Malaysia and a crime has been committed in Japan, he can be held liable before
crime was committed on board. What country will have jurisdiction? Philippine courts. This is necessary in order to maintain and preserve
23 Malaysian courts will have the jurisdiction because of the the financial circulation and financial stability of the Philippines.
territoriality characteristic of criminal law. Otherwise, no other country would be interested in prosecuting him
except the Philippines because it is only the Philippines will be
Exceptions; affected by the said counterfeiting of coins.
If the vessel is a Philippine war vessel or warship or it is a Philippine
warplane. A Philippine warship or war aircraft is considered an th
4 : Those who while being public officers or employees should
extension of the Philippine sovereignty. commit an offense in the exercise of their functions.
Wherever they may be, when a crime is committed on board a
Philippine war vessel or warplane, the Philippines will always have
jurisdiction and the reason is the 1st paragraph of Art. 2 of the RPC –
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 5
This refers to public officers or employees who are working in the Philippine territory. Therefore, S should file the case before the
another country, while they are working, they committed a crime. Philippine courts because it is as if the crime was committed within
The crime committed by this public officers or employees must be in the Philippine archipelago. The reason for this is the Intraterritorial
connection with the exercise of their functions. application of the RPC. But if the rape was committed at any other
place outside the Philippine Embassy, then PC should be prosecuted
If the crime they committed is not connected with the exercise of before the courts of Japan because rape is in no way connected with
their functions, then they should be prosecuted in the courts of the the exercise of his functions and a consul does not enjoy diplomatic
country where they are assigned; immunity.
Example; 5th: Those who should commit any of the crimes against national
OFW who lost his passport, he went to the Philippine Embassy in Japan security and the law of nations, defined in Title One of Book Two of
applying for a new passport. He has been going there back and forth this Code.
that it has not it was not yet approved or it was not yet released. On his
way out, he saw the approving authority (AA). He talked to AA Crimes against National Security includes the following;
requesting and begging him that it be immediately approved and 23 Treason;
released. He was invited to a coffee shop, while having coffee, AA asked 24 Conspiracy/proposal to commit treason;
$500 from him and promised on that same afternoon, his passport 25 Misprision of treason;
would be released. So the poor OFW gave the $500. 26 Espionage;
27 enticing to war or giving motives for reprisals;
23 Where may this AA be prosecuted? Before Philippine courts or
before the courts of Japan? If any of this crime is committed, even if it is done outside the
23 AA may be prosecuted before the Philippine courts. He did not Philippine archipelago the offender can be prosecuted before the
commit in effect a crime in approving the said passport because it Philippine courts.
his obligation to approve the said passport. However, he would not
perform his obligation without a bribe. He would not perform his Crime committed against the Law of Nations include the following;
function without the money given by the said OFW. So in effect, he 23 Piracy;
committed bribery in its 2nd form – he performs an act not 24 Qualified piracy;
constituting a crime in connection with the exercise of his function in 25 Mutiny; and
consideration of the bribe money. So here, he committed bribery, he 26 Qualified mutiny
can be prosecuted before Philippine courts. His act is in connection
with the exercise of his functions. Likewise, if the crime committed is against the Law of Nations the
said offender can also be prosecuted before the Philippine courts;
What if instead of the AA, here comes a Filipino filing clerk (FC)
inside the Philippine Embassy. The FC followed the OFW, the FC told Example;
him that he can facilitate the release of his passport if he will him A, B, C, D, and E are in America. They decided to over throw the
$50. Desperate, the OFW gave him the money. However, that government of the Philippines. In preparation for their plan, they
afternoon, the passport was still not released. He wanted to file a bought guns, ammos, and grenades. However, before they can
case against the FC. proceed with their plan, thy got caught.
23Where can he file a case? Before courts of Japan or Philippines? Q: Can A, B, C, D, and E be tried in the Philippines?
23 It should be filed before the courts of Japan because the act 23NO. Their crime is conspiracy to commit rebellion which is a crime
performed by FC has nothing to do with the exercise of his official against public order, Title Three of the Revised Penal Code, thus they
functions. In effect, what he has committed is estafa because he are outside the scope of extra-territorial jurisdiction of the
made this OFW believe that he has the authority to facilitate the Philippines under Article 2 of the RPC.
release of the said passport but he did not have such qualification.
He committed estafa under Art.315 (2)(a). Therefore, he should be Example;
prosecuted before the courts of Japan. Accused A, B, C, D, and E were in America. At that time, America is at
war with the Philippines. The accused decided to over throw the
Example; government of the Philippines. However, before they can overthrow
There is this Philippine consul (PC). The PC told his secretary to work the government, all the accused were caught.
overtime. So S followed PC. In the evening, PC gave coffee to S.
Unknown to S, there was something mixed in the coffee to make her Q: Can A, B, C, D, and E be tried in the Philippines?
unconscious. So after drinking the coffee, she became unconscious 23 YES. All the accused committed conspiracy to commit treason
and she was raped by PC. S now wanted to file a case against PC. which is penalized under Title One, Book two of the Revised Penal
Code. Thus, it is within the scope of extra-territorial jurisdiction of
Q: Where may she file the case? the Philippines under Article 2 of the RPC.
23 The act of rape committed has nothing to do with the exercise of
PC’s functions. Therefore, it should be filed before the courts of --xXx--
Japan. However, it was committed inside the Philippine Embassy.
Article 3. Definitions. - Acts and omissions punishable by law are
The Philippine Embassy which is considered an extension of the felonies (delitos).
Philippine sovereignty, then it is as if the crime was committed within
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 6
Felonies are committed not only be means of deceit (dolo) but FAULT (CULPA)
also by means of fault (culpa). Fault (culpa) or culpable felony exist when the wrongful act results
There is deceit when the act is performed with deliberate intent from imprudence, negligence, lack of foresight or lack of skill;
and there is fault when the wrongful act results from imprudence,
negligence, lack of foresight, or lack of skill. Elements;
23 Criminal negligence;
Felonies 24 Freedom of action;
Felonies are acts or omissions punishable by the RPC. When the law 25 Intelligence;
says ‘by law’, it means the RPC.
Under Art. 365, a culpable felony is defined as one wherein the
Acts offender, although without malice or deliberate intent caused an
Acts refer to any body movement which has a direct connection to injury to another by the means of negligence or imprudence.
the felony intended to be committed. Therefore, even a culpable felony is a voluntary act;
It is an external act, an overt act in connection with the felony
intended to be committed. Internal acts or mere criminal thoughts Voluntariness
will never give rise to a crime; In so far as criminal law is concerned, voluntariness is actually the
concurrence of the 3 elements of intentional felony and the
Example; concurrence of the 3 elements of culpable felony;
A lust for his neighbor. Whenever the neighbor would pass by going
to work, A would always look at the neighbor. And for the whole In other words, in so far as voluntariness of intentional felony is
day, he would think of the neighbor with nothing but lust. No matter concerned, it is the concurrence of criminal intent, freedom of
how criminal his thoughts are it will never give rise to a crime action and intelligence;
because it is merely an internal unless he performs an external act
or an overt act related to acts of lasciviousness or attempted rape or Therefore, without voluntariness, there can neither be an
rape. The law requires an act. intentional felony nor a culpable felony;
Omission Freedom
Omission is the failure of a person to perform an act or to do a duty There is freedom of action when the offender performs the act on
which is required by law. his own free will, without force, duress, uncontrollable fear.
Example; So note if the offender performs the criminal act but he did the act
If a person found, any personal property on the street or on any place because there was this compulsion and irresistible fear or under the
and he failed to deliver the same to the owner or to the local impulse of an uncontrollable fear. There is no criminal liability. They
authorities. Under Art.308 he becomes liable for theft. Or if a person are exempting circumstances under Art. 12 of the RPC because there
was driving his vehicle, then he bumped and hit another person. And is no freedom of action, an element of voluntariness. There is
instead of helping that person, he increased his speed and left. It is a hit- neither an intentional felony nor culpable felony because there is
and-run situation. Such fact that he failed to lend help and assistance to wanting of freedom of action, an element of voluntariness.
that victim will aggravate his criminal liability under Art.
23 So here, for failing to perform an act which is required by law to Intelligence
be done. He commits a felony. So felonies are acts or omissions Intelligence is the mental capacity of a person to know wrong from
punishable by the RPC. right and to appreciate the consequences of one’s act.
Kinds of Felonies If the person acted without intelligence, there is no criminal liability.
2 kinds of felonies that are may be committed under Art. 3; So if the criminal act has been committed by an insane, an imbecile
23 Deceit (dolo); or a minor, the said offender is said to be exempted from criminal
24 Fault; liability.
DECEIT (DOLO) Under Art. 12, they are exempting circumstances, he is free of both
Deceit (Dolo) or intentional felony exist when the act is done with intentional and culpable felony because he acted without
deliberate intent; intelligence, an element of voluntariness.
Elements: INTENT
23 Criminal intent on the part of the offender; Intent is the use of a particular means to achieve the desired result;
24 Freedom of action in doing the act on the part of the
offender; * You cannot see intent. It is an internal state of the mind;
25 Intelligence of the offender;
Factors to Determine Intent
An intentional felony is a voluntary act because it is committed by In the case of Rivera v. People (G.R. No. 166326, January 25, 2006),
means of deliberate intent. Court declared that evidence to prove intent to kill in crimes against
persons may consist of the following;
23 The means used by the malefactors;
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 7
23 The nature, location, and number of wounds sustained by Therefore, it must be proven
The prosecution does not have
the victim; the burden to prove it;
by the prosecution beyond
23 What is the nature, number and location of wound inflicted on Q: Will A’s defense stand in court?
the victim? 23 NO. A’s defense that he has not intent to kill B will not lie. The
23 The victim did not sustain any wound despite the fact that it was reason is since the victim died, intent to kill becomes a General
hit with a lead pipe. Criminal Intent which is presumed by law. Prosecution need not
prove intent to kill in homicide, parricide, murder, infanticide
Q: What was the manner of committing the crime? because the victim died. It is only in the attempted and frustrated
23 After hitting A once, B ran away. If he had intended to kill the stages of the HPMI wherein intent to kill is considered an element.
victim, he would have hit A several times.
23 Why is it only in the consummated stage of Homicide, Patricide,
23 What were the act, deeds and words made by the offender Murder, Infacnticide that intent to kill is presumed?
before, during or after the commission of the crime? 23Because the best evidence to prove intent to kill is that the victim
23 He just saw the victim, hit the victim thereafter ran away. All of died. So it is presumed by law.
these would show there was no intent to kill on the part of said
offender. 23 Is there a defense to negate criminal intent?
23YES. The accused may plead mistake of fact
Therefore, B should not be convicted of attempted homicide.
MOTIVE
Example; Motive is the moving power which impels a person to do an act to
The use of a lethal weapon would show intent to kill on the part of achieve the desired result
the offender although death did not arise. Taking the personal
property of another without the consent of the owner would show General Rule: Motive is not material in determining the criminal
intent to gain on the part of the offender. liability of the offender is identified, admits to the commission to the
crime, if the prosecution has direct evidence or eyewitness to the
Kinds of Intent commission of the crime, if crime committed is a culpable felony,
There are 2 kinds of intent: crime committed is not a special penal law.
23 General Criminal Intent (GCI);
24 Specific Criminal Intent (SCI); Exceptions;
Motive becomes material in determining the criminal liability of the
GENERAL CRIMINAL INTENT SPECIFIC CRIMINAL INTENT offender;
Specific Criminal Intent is just 23 When the act of the offender would result to variant crimes (to
General Criminal Intent is know what crime should be charged);
like an element, an ingredient
conclusively presumed by law 24 When the identity of the offender is doubtful;
of the commission of the 25 When the prosecution only has circumstantial evidence to
by the mere doing of an act; prove the commission of the crime;
crime;
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 8
Example; immediately after the
City mayor (CM) was jogging near the seashore. Here comes X who commission of the crime;
went to CM and him. CM was not in the performance of his official
duty when he was shot. Therefore, the act of X in killing and MISTAKE OF FACT
shooting CM may result to variant crimes depending on the motive, Mistake of Fact is the misapprehension of facts on the person who
depending on the reason of X of killing. If the reason is a personal caused injury to another.
grudge/vendetta, murder is committed. But if the reason is because
of CM’s past performance of his duty, then the crime committed is If a person acted under mistake of fact, he is absolved of criminal
direct assault with homicide. liability because he acted without criminal intent. That is, had the
facts been as he believed them to be, his act done would have been
Example; lawful and justifiable.
There are so many suspects, A, B, C, D and E. There’s doubt as to
who among the committed the crime. Then motive will become Elements of Mistake of Fact
material in determining the criminal liability of the offender. Before one may be absolved of criminal liability for having acted
under mistake of fact, the following are elements:
Example; 23 That the act done would have been lawful and justifiable
Who was the last person seen together with the victim before he had the facts been what the accused believed them to be -
was killed? Why was he with the victim at that time? What could be Had it been as he believed, the act performed would’ve
the motive behind the kill? All of these must be taken into amounted to a justifying or exempting circumstance;
consideration because there was no eyewitness, no direct evidence 24 That the intention of the accused in doing the act must be
in the commission of the crime. lawful - The must be ignited by a noble or lawful or
justifiable intent
*Motive alone, however strong, will never bring about conviction. 25 That the mistake must be without fault, negligence,
But motive and circumstantial evidence, or motive and supporting careless on the part of the offender - The offender cannot
evidence is necessary for conviction. be negligent in ascertaining the true facts of the case and
at the same time invoke mistake of fact;
People v. Mapalo (G.R. No.172608, February 6, 2007)
SC convicted him only of ill treatment of another by deed, a form of 23 Can a mistake of fact be used as a defense against culpable
slight physical injury. Ill treatment of another by deed is the felony?
circumstance wherein a person was hit or there was injury caused to 23NO. One of the elements of Mistake of Fact is that the intent must
the person but there was no intent. be lawful. Since intent is not an element in culpable felonies, then
mistake of fact cannot be used as a efense.
Q: How do you prove Motive?
23 Motive is proved by the testimony of the witnesses as to the acts US v. Ah Chong (G.R. No. L-5272 March 19, 1910.)
or statements made by the accused before or immediately after the Ah Chong was acquitted because he acted under mistake of fact.
commission of the crime. [M’Garcia: BUT that was because the case was decided a long time
ago. If the case is decided now, I doubt if there will be an acquittal.
Example; Let’s go by the elements: 2nd and 3rd elements are present.
Before the killing of A, a witness saw B threatening to kill A.
Therefore, B would have the motive because of his acts prior to the However, the 1st element is wanting - that the act done would have
commission of the crime. Or right after the killing of A, a witness saw been lawful and justifiable had the facts been as the accused
B running away from the scene of the crime laughing saying “finally, believed them to be - the victim was only trying to enter.
I have my revenge” there is the motive.
Q: Will that act already constitute unlawful aggression?
So here motive is established by the acts or statements made by the 23 NO. There is no unlawful aggression because there was no
accused prior to or after the commission of the crime but NOT imminent or immediate danger on the life and property of the said
DURING because in motive, there is no direct evidence. The witness offender. 1st element is wanting.]
did not see how the crime was committed.
Example;
INTENT MOTIVE The police officers A, B and C were dining in a restaurant when they
It is the moving power which noticed a group of men who are so noisy. And so A looked at them
impels a person to do a specific and noticed that one of them, X had a gun tucked on his waist. So A
Use of a particular means to
act to achieve the desired went on the back of X and told him “I can see that you have a gun
achieve a desired result; tucked on your waist. Do you have a license? I’m a police officer.” X
result, therefore, it is the
said “Yes sir, I have a license.” And A said “Show me your license.”
reason behind intent;
So X stood up and he tried to get his wallet from his pocket in order
A material element in Immaterial to determine the
to show his license as requested by A. As he was picking his wallet,
determining the criminal criminal liability of the
he was turning around to look at A. The moment he faced A, A shot
liability of the accused; offender;
him. X died. Prosecuted for homicide, A said he acted under mistake
Established/proven by the Established by the of facts. He thought, what X was picking was his gun and that he
overt act of the offender or by acts/statements made by the would be shot by X. Therefore, in self-defense he shot X first.
the means employed; accused prior to or
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 9
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 10
23 NO. In the case of Loney v. People the Supreme Court held that Proximate Cause - Proximate cause is the cause that sets in to
intent is a material element in acts mala prohibita, on the other motion all other causes and which unbroken by efficient intervening
hand intent is immaterial in acts mala prohibita. cause produces the felony without which the felony would have not
been committed.
Lonely v. People (G.R. No. 152644, February 10, 2006)
Lonely and company, the head of marcopper company were charged For one to be criminally liable under the Proximate Cause doctrine, it
4 cases – violation of the water code of the Philippines, violation of is necessary that the felonious act and the resulting felony must not
the Philippine mining act, violation of national pollution control be broken by any efficient intervening cause.
degree – all three are acts mala prohibita and one act malum in se –
that is violation of Art.365 reckless imprudence resulting to damage No efficient or supervening intervening cause must have broken the
to property. Their contention was that the 3 other information causal connection between the felonious act of the offender and the
involving violation of special penal law should already be quashed resulting felony.
because they are absorb by Art. 365. Anyway, the incident resulted
from the same act of polluting. Elements;
In the case of Garcia v. People (G.R. No. 171951, August 28, 2009),
23 Should reckless imprudence resulting to damage to property The Supreme Court enumerated the following elements of
under Article 365 of the Revised Penal Code absorb the violation of proximate cause:
special penal laws? 23 The intended act is a felonious act;
23 NO. Acts mala in se cannot absorb acts mala prohibita. What makes 24 The resulting act is a felony;
an act malum in se is the presence of intent, deceit or dolo or fault or 25 The resulting act is the direct, natural and logical
culpa. On the other hand, what makes an act malum prohibitum is the consequence of the felonious act of the offender;
fact that it’s in violation of a special penal law. Therefore, one cannot
absorb the other. So they have to be prosecuted on all 4 cases. Therefore, for one to be criminally liable under the Proximate Cause
Example; doctrine, it is necessary that the offender is performing a felonious
X killed B with the use of motor vehicle. X hit and bumped B. X was act and since he is performing a felonious act, he becomes liable for
charged with murder. So the information charges an intentional all the resulting crime although different from that which he
felony of murder. Trial on merits ensued, after the prosecution intended. Provided that the resulting felony is the direct, natural and
presented evidence, the defense presented evidence. The defense logical consequence of his felonious act. Otherwise stated, his
was able to show, to prove beyond reasonable doubt that the felonious act must be the proximate cause of the resulting felony.
reason for the said act of killing B was because X lost control of his
brake. Therefore, according to them, there was only imprudence For one to be criminally liable under the Proximate Cause doctrine, it
and so X should only be held liable for reckless imprudence resulting is not necessary that the offender should have even touch the body
in homicide. The judge believed the defense. So in an information of the victim. It suffices that the felonious act performed by the
for an intentional felony of murder, the said court convicted X only offender has generated in the mind of the victim, fear for his life. By
of reckless imprudence resulting in homicide, a culpable felony. reason of that fear for his life the victim performed acts, made risk
that injured himself. The accused will become criminally liable.
23 Is the judge correct? Can the judge convict a person of a culpable
felony in an information that charges him of intentional felony? Example;
23 Yes. The reason is that a culpable felony is necessarily included in B and G were boyfriend and girlfriend respectively. During their
an intentional felony because a culpable felony is of lesser offense relationship, B promised G that he would marry her. One day, B told
than that of intentional felony. G that she should wait for him outside the church at 7pm that night
so they could get married. However, instead of showing up, B sent G
*A malum prohibitum is not necessarily included in malum in se. a letter saying that he couldn’t marry her because B already has a
Therefore, one cannot absorb the other. wife and children. G was so heartbroken. She couldn’t live with the
pain so she ended her life and committed suicide.
--xXx--
23 Is B liable for the death of G through the Proximate Cause
Art. 4. Criminal liability. — Criminal liability shall be Doctrine?
incurred: 23 No. The first element of Proximate Cause is absent. Under the
By any person committing a felony (delito) although the Family Code, breach of promise to marry is not an actionable wrong.
wrongful act done be different from that which he intended. Thus, although the death of G is considered a felony, the intention of
By any person performing an act which would be an B is not a felonious act.
offense against persons or property, were it not for the inherent
impossibility of its accomplishment or an account of the Example;
employment of inadequate or ineffectual means. B and G were boyfriend and girlfriend respectively. B promised G
that he will marry her. However, B changed his mind. G was so
Proximate Cause Doctrine heartbroken, she went to the top floor of the nearest building. At
Proximate Cause Doctrine states that criminal liability shall be the top, G jumped over the ledge and committed suicide. G died. On
incurred by any person committing a felony (delito) although the her way down, G landed over a pedestrian. The pedestrian was
wrongful act done be different from that which he intended. squashed by G resulting to the death of the pedestrian.
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 11
23 Is G liable for the death of the pedestrian by virtue of the Q: Is X criminally liable for the death of the boy?
proximate cause? 23YES. First element, the intended act is a felonious act. He was not
23 NO. Under the Revised Penal Code, committing suicide is not committing a felonious act. He was just acting his right when he said
considered a felony. he will call the police considering that the boys were taking his
mangoes, they were committing theft. Therefore, he was just acting
EFFICIENT INTERVENING CAUSE (EIC) within his right. Since X was not committing a felonious act, he
Efficient Intervening Force is an active force which is a distinct act cannot be held criminally liable for the resulting felony.
absolutely foreign from the felonious act of the offender.
23 So if you are given a problem, the first thing you should do
In order that an act is considered an Efficient Intervening Cause, it is is to determine if the person is committing a felonious act. If not, a
necessary that it is totally foreign from the felonious act that is person cannot be held liable for the resulting felony. If he is, then he
performed by the offender; is liable for the resulting felony.
Proximate Cause is not always the immediate cause. At times it may Example;
be a remote cause; In the same case, X told the boys, if you will not come down I have
here my shotgun, I will shoot each one of you and he fired shots in
Example; the air. The boys were so afraid and hurriedly went down, one of
A was driving his car along SLEX followed by B, by C, by D, by E. them jumped, fell and suffered serious physical injuries because of
When A reached the tollgate, he stopped to pay the toll, so B his broken legs.
stopped as well as C and D. E however was very sleepy, he did not
put to stop so he hit D, D hit C, C hit B, B hit A. Because of the impact Q: Is X criminally liable for the injuries sustained by the boy?
the car of A sustained serious damage. 23 NO. Because this time he was committing a felonious act. He was
threatening to shoot the children. It is a felonious act amounting to
23 What is the proximate cause of the damage sustained by the car grave threats. Therefore, this time he is criminally liable for the
of A? resulting felony although different from that which he intended.
23 The Proximate Cause was E because it was the car of E which sets
into motion all other cars to bump each other. It was not the 23 For one to be criminally liable under the Proximate Cause
immediate cause because the immediate cause was the car of B Doctrine, it is necessary that there is no efficient intervening cause that
because it is the car of B which hit the car of A. So a PC is not always has broken the chain between the felonious act and the resulting felony.
the immediate cause, at times it may be the remote cause.
Example;
Example; A and B, they are boyfriend and girlfriend respectively. The A
A bus was going to Quezon, suddenly 4 men boarded a bus, 2 man promised to marry B that night. B waited in vain, however, A did not
seated at front seats and the other 2 seated at back. While they arrive. Instead B received a text message saying that A would not be
were traversing a zigzag portion on the road, the 4 men stood up able to come, and could not marry B because A is already a married
and announced a hold up. One passenger was so afraid of the man with 5 children. So B became so sad. Frustrated, she began
robber as he had a previous experience of robbers. He was so afraid crying terribly and went out of the house, walked on the streets, not
that he opened a window and he jumped out of a window, he fell on on her own rightful self. She fell on a canal and she died.
a cliff and he died.
Q: Is A the boyfriend, liable for the death of B?
Q: Are the robbers liable for the death of the passenger? 5888 NO. It is a settled rule that breach of promise to marry is
23 Yes. The robbers in announcing a holdup are committing a not a felonious act. Since B was not committing a felony, therefore,
felonious act. he cannot be liable for the death of A.
The resulting act was a felony, the resulting felony was the direct, Example;
natural and logical consequence of the felonious act of the offenders. In the same problem, when the girl learned that the man could not
Were it not for the robbers announcing a hold up, there would be no marry her. She went on the top most portion of the building,
fear on the mind of the passenger. But because of the announcement, decided to commit suicide to take her own life. She jumped.
there was fear on the mind of passenger and by reason of that fear, he However, as she was falling, she fell on a child. The girl survived but
made risk that caused his death. The robbers are liable for robbery with the child was pinned down and died.
homicide because they are liable for the death of the passenger.
Q: Is A, the boyfriend, liable for the death of the child?
Example; 0 NO. Again, breach of promise to is not a felony. Since A was not
X was having a siesta on the terrace of their house on a rocking performing a felonious act, he is not liable for any resulting felony.
chair. Suddenly he was awakened by the noise of the children. He
found out that it was coming from the backyard of their house, saw Q: is B, the girlfriend, liable for the death of the baby?
4 boys harvesting his mango tree. So he told the boys to come down 23NO. Committing suicide is not a felony either the RPC or any special
the tree, otherwise, he will be calling the police and let them be Penal law in PH jurisdiction. It is not a felonious act. However, in
arrested. The boys hurriedly went down the tree. One boy from the performing said lawful act, she did not do so with due care. Since she did
top most portion of the tree jumped down and his head hit a big not do so with due care, she becomes liable for a CULPABLE FELONY. So
stone. He suffered hemorrhage, thereafter he died. here there is a simple negligence on the part of the said
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 12
woman, therefore, the said woman may be held liable for simple precisely he needed medical intervention, he needed treatment of
negligence resulting to homicide for the death of the said child. the doctor because he sustained a stab wound from A. Therefore,
there is a connection between the felonious act and the medical
People vs. Villacorta (G.R. No. 186412, August 28, 2009) treatment. It there for cannot be considered as an EIC. The doctors
January 23, 2002, there was a stabbing incident. Cruz was stabbed negligence would only make him liable administratively but not
by Villacorta on the left side of his body with a sharpened bamboo criminally.
stick. He was brought to the Tondo Medical Center. He was released
on the very same day as out patient because his wound was not Example;
fatal. February 14, 2002 he was brought to San Lazaro Hospital. He A and B were friends. After farming while they were having a
was already suffering from tetanus infection. A day after February 15 drinking spree, they had a political discussion, A was pro Pnoy and B
he died. The cause of his death was tetanus infection. Villacorta was was pro GMA. Their agreement heated, B stood up and broke a
prosecuted for the crime of homicide for the death of Cruz. The bottle of beer, stabbed A. A was wounded. They parted ways. A was
lower court convicted him. on his way home when suddenly it rained. After it rained there was
lightning and A was hit by lightning. A died. The heirs of A filed a
Q: Is the accused liable for homicide? case of homicide against B.
23NO. Supreme Court: Citing Urbano case, he cannot be convicted
of the crime of homicide. Based on the expert testimony of the Q: Is B criminally liable for the death of A?
doctor, the incubation period of the tetanus virus is within 14 days. 23NO. Under the proximate cause doctrine, B is not criminally liable
In the case, it took the victim 22 days before he died. Therefore the for the death of A because there was an EIC that is the lightning. The
stab wound was without tetanus virus. Cruz may have performed lightning was an active force which is a distinct act or fact absolutely
acts which brought about the tetanus virus. The stabbing was only a foreign from the felonious act of the offender which was the
remote cause and the tetanus infection was the proximate infection stabbing of the victim. Therefore he cannot be held liable for the
which brought about the death of the victim. death of A but only physical injuries sustained by the victim.
So Villacorta was only convicted of slight physical injuries because 3 SITUATIONS WHEREIN A PERSON BECOMES CRIMINALLY LIABLE
they were not able to prove intent to kill. First, no evidence of motif. FOR THE RESULTING FELONY ALTHOUGH DIFFERENT FROM THAT
Second nature and number of weapon used. A sharpened bamboo WHICH HE INTENDED:
stick, not even a little weapon made of metal. Third, the nature, 23 Abberatio Ictus (Mistake in the blow)
number and location of wound. It was only on the left side of the 24 Error in Personae (Mistake in the identity);
body. Fourth, manner of committing the crime. After one stabbing, 25 Praeter intentionem;
there was no more. So from homicide, he was only convicted of
slight physical injury punished by the lowest penalty arresto menor, ABERRATIO ICTUS
1-30days or fine of not more than P200. Aberratio Ictus is a situation wherein the offender directed a blow at
his intended victim but because of poor aim, the blow landed on
Urbano vs. IAC (G.R. NO. 72964, September 7, 2011) another victim.
Javier was hacked by Urbano on his right palm. Javier suffered an
incised wound and brought to the hospital. There was settlement. Example;
Thereafter he was released. However, after 22 days he was brought X and Y had a fist fight. X lost. However, X vowed to Y that he will have
to the hospital, he was already suffering from tetanus poisoning. The his revenge. One day, X saw Y riding in a tricycle. In that instance, X
next day he died. pulled out his gun and with intent to kill, shot Y. However, due to poor
aim, X hit the tricycle driver instead. The tricycle driver died.
Q: Is the accused liable for homicide?
23 NO. SC: same reasoning by the SC. The act committed by Javier Q: What crime may X be convicted in so far as Y is concerned?
after he was released from the hospital, the fishing, going to the 23In so far as Y is concerned, X is liable for attempted murder
farm was considered as the proximate cause that brought about the because he intended to kill Y. He already performed an overt act
tetanus virus on his incised wound. Therefore he was not convicted when he fired the gun with intent to kill against B. There was
of the crime of homicide but only physical injuries. treachery because the victim was totally defenseless. However,
because of poor aim, it was the tricycle driver who died.
Example;
A and B were fighting. A stabbed B. B sustained a less serious 23 What crime may X be convicted in so far as the tricycle driver is
physical injuries. B was brought to the hospital, it was not a serious concer?
wound, however, because of the negligence or careless treatment of In so far as the tricycle driver is concerned, X is liable for murder. In
the doctor, this not serious wound became a very serious wound the case of People v. Flora (G.R. No. 125909, June 23, 2000), the
which later on caused the death of B. The relatives of B filed a case Supreme Court held that treachery is appreciated in Aberratio Ictus.
of homicide against A. The Flora doctrine was likewise adopted by the court in People v.
Adrian (G.R. No. 205228, July 15, 2015).
23 Is A liable of homicide for the death of B? Or would you consider
the careless treatment of the doctor as an EIC? Q: Therefore, of what crime will you charge and convict
23 A is liable for the death of B. The negligence or careless treatment of X?
the doctor cannot be considered as an EIC. The negligent treatment of 23 There are two crimes committed. Against Y attempted murder,
the doctor was an active force but it is not a distinct act or fact against the tricycle driver is murder. But since this 2 crimes were
absolutely foreign from the felonious act of the offender. Because brought about by a single act, it will give rise to a complex crime under
Art. 48. Under Art. 48 when a single act constitutes two or more grave
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 13
or less grave felonies, we have compound crime or a complex crime. ERROR IN PERSONAE
Thus, the crime committed by X is Murder with attempted murder Error in Personae is a situation wherein the victim actually received
because it results from the single act of the crime. the bullet but he was mistaken to be the intended victim. The
intended victim was not at the scene of the crime.
23 In the same case as mentioned above, the tricycle driver survived
but sustained a mortal wound. What crime may be charged to X? Effects
23 As to Y, X is liable for attempted murder. As to the tricycle driver, The effect of error in personae depends on the variance between the
X is liable for serious Physical injuries only because there is no intent intended crime and the actual crime committed;
to kill on his part.
Mitigating - If there is variance between the penalty of the intended
23 What if when the tricycle driver was hit by the bullet, he only crime and the penalty of the actual crime committed, the lesser
sustained a slight physical injury which is a light felony, are you penalty between the two shall apply;
going to complex?
23NO. This time you cannot complex because under Art. 48, you can If there is no variance between the penalty of the intended crime
only complex grave and less grave felonies. You cannot complex a and the crime actually committed, then it will not affect the criminal
light felony. Therefore, there would be 2 cases filed separately. liability of the offender;
Attempted murder in so far as B is concerned. Slight physical injury
in so far as C is concerned. So 2 informations, 2 cases must be filed Example;
in the court. A and B were fighting. A punched B so hard, he fell on the ground,
his face facing the ground. A left the scene of the crime. At that
People v. Flora (G.R. No. 125909, June 23, 2000). precise moment when A left, here comes the father of B who saw his
Hermogenes Flora and his brother Edwin Flora were in a party. In poor son boxed by A so he came to the rescue of his son and went
that party, they saw Ireneo Gallarte, the uncle of their enemy near him. To retaliate, B took out his balisong and stabbed the
Villanueva. As a revenge against Villanueva, the brothers shot person next to him thinking that it was still his opponent A but in
Gallarte, but because of poor aim, they hit Flor Espinas and killed truth it was already his father. Let's say the father died.
Emerita Roma. However, the brothers succeeded in killing Gallarte.
Q: What was the intended crime committed by B?
23 What is the liability of the brothers to the deceased Gallarte and 23B intended to commit homicide because he intended to kill A, the
Roma? person who boxed him.
23 As to Gallarte and Roma, the Supreme Court held that the brothers
were guilty of murder because the killing was qualified by treachery. Q: What crime did B actually commit?
Treachery is present when the deceased was not given a chance to 23B actually committedparricide because he killed his own father.
defend themselves. Since neither Gallarte and Roma were given a
chance to defend themselves, both accused were guilty of murder. Q: Of what crime will you prosecute B?
23 B should be prosecuted for Parricide because that is the crime he
Q: What is the liability of the brothers to the Espinas? actually committed.
23As to Flor Espinas, the brothers were guilty of attempted murder.
Let's say that he is now charged of parricide. Trial on the merits
People v. Adriano (G.R. 205228, July 15, 2015) proceeded. The Judge found him guilty beyond reasonable doubt of
Police Officers Garabiles and Santos were on patrolling the streets of parricide.
Pampanga when they saw a Toyota Corolla overtook them. The
Corolla reached alongside a SUV. The Corolla cut the lane of the SUV Q: What penalty as a Judge would you impose on him?
leading the latter to swerve and fall into a canal. 4 men alighted the 23The judge should impose the penalty for homicide. The penalty
Corolla and thereafter peppered the SUV with gunshots resulting to for parricide under Art. 246 is reclusion perpetua to death whereas
the death of the driver. A stray bullet hit a bystander identified as the penalty for homicide under Art. 249 is reclusion temporal.
Bulanan. Further investigation showed that the accused Cabiedes Although he committed parricide. You have to impose upon him the
was one of those men who participated in the killing of the driver of penalty which is lesser and that is reclusion temporal but in its
the SUV. maximum period.
Q: What is the liability of the accused to the driver of the SUV? Under Art. 49, in case of Error in Personae or Mistake in the Identity,
23As to the driver of the SUV, the accused is guilty of murder when there is a variance between the intended crime and the actual
because the killing was coupled by treachery. The accused crime committed, you have to compare the 2. Whichever has a
ambushed the SUV giving the driver no chance to defend himself. lesser penalty, that penalty has to be imposed.
Q: What is the liability of the accused to Bulanan? In the case the intended felony is homicide but the actual felony is
23 As to Bulanan, the accused is likewise guilty of murder. The Court parricide. Compare the penalty of the 2, although B should be
held that treachery is appreciated in aberration ictus applying the convicted of the crime of parricide, the penalty will be that of the
Flora doctrine. crime with a lesser penalty. That is reclusion temporal for homicide.
Example;
In the same problem, instead of the father coming to the rescue of
B, it was the friend of B who came to his rescue. So when A left, the
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 14
friend of B arrived and was the one stabbed by B and died. Therefore, B 23 YES. because no one could have foreseen that the mere act of
killed his own best friend. The crime committed is homicide. elbowing the W, death would result. There was a notable disparity
between the means employed, the act of elbowing the W, and the
23What was B’s intended crime? resulting felony which is death or parricide. Therefore, he should be
23B intended to commit homicide. given the benefit of mitigating circumstance.
Q: What crime did B actually commit? Garcia vs. People (G.R. No. 171951)
23 B actually committed homicide because he killed his own best Accused Garcia was having a karaoke with his friends late at night
friend. when deceased Chy requested the accused to quiet down.
Thereafter, accused vowed to kill Chy one day. On one instance, the
Q: What crime would you charge him of? accused saw the deceased in a sari-sari store. Suddenly, the accused
23B should be charged of Homicide because that was his actual crime. hit the victim in the nape with a bottle of beer and thereafter
mauled him. The deceased was able to escape and called his wife to
Q: After trial on the merits what penalty will you impose? call for police. When his wife returned, the Chy was already lying in
23 The penalty to be imposed against B is the penalty for homicide the floor lifeless. Autopsy report concludes that Chy died from a
because there is no variance between the intended felony and the heart attack brought about by emotional stress. The accused was
felony actually committed. In this case, Error in Personae will not charged with the crime of homicide.
mitigate the liability of the offender. Art. 49 will not apply.
Q: Should the accused be convicted for the crime of homicide?
PRATER INTENTIONEM 23 YES. His act of mauling him was the proximate cause of his heart
Praeter intentionem occurs when the consequence went beyond the attack. However, he was given the benefit of Praeter intentionem.
intention or when the injurious result is greater than that intended. Who would have anticipated that the mere act of mauling or boxing
him, death would result. Therefore, there was Praeter intentionem.
Praeter Intetionem is a situation wherein the offender directed the
blow at his actual victim, the victim received the blow. However, the People vs. Noel Sales (G.R. No. 177218).
injurious result is far greater than what is intended by the victim. The accused Noel Sales beat his sons because they went out of the
house for two days without permission. The accused tied one of his
Effect sons to a coconut tree and thereafter hit him with a thick piece of
Praeter Interionem it is always a mitigating circumstance because of wood. Thereafter, the son experienced a difficulty in breathing, and
Art. 13 of the Revised Penal Code; his eyes were moving up and down. The son collapsed, and died.
Autopsy report suggest that the son died. According to the accused,
The offender has no intention to commit so grave a wrong as that he cannot be held liable for parricide. He claimed that he has no
committed. intention to kill the child, he only intended to discipline his children.
However, since the victim died, death is considered a general
Elements; criminal intent which is presumed by law. Therefore, he should be
23 That the offender committed a Felony; held liable of parricide.
24 There must be a notable or notorious disparity between
the means employed by the offender and the result of the Q: Does the Proximate Cause Doctrine Apply?
felony; 23Yes. The father in beating the son with a thick piece of wood while
the child was tied on a coconut tree was already a felonious act.
For Praeter intentionem to be considered as a mitigating Therefore the father should be liable for the resulting felony
circumstance, the prime element or requisite is that there must be a although different from that which he intended.
notable disparity between the means employed by the offender and
the resulting felony. 23 Should the father be given the benefit of Praeter intentionem?
23 No. According to the SC, there was no notable disparity between
23 Out of the means employed by the offender, no one could the act of the father hitting the said son with a thick piece of wood
have anticipated or foreseen that injurious result. while being tied on a coconut tree and the resulting felony which is
death. Considering the age of the child, such act of the father would
Example; produce and indeed produce the death of the child. Therefore it
H arrived home and asked W what was their dinner and the W cannot b said that there is no intention to commit so grave a wrong
answered that she has not yet cooked because she was watching as that committed.
teleserye. Since the H was so tired, he got mad and elbowed the W.
The W fell on floor and her head hit the edge of the table and so she IMPOSSIBLE CRIME DOCTRINE
suffered hemorrhage. Thereafter, she died. H said he had no Impossible Crime is committed by any person performing an act
intention of killing his W, he only elbowed her. However, since death which would be an offense against persons or property, were it not
is the result, it is a general criminal intent which is presumed by law. for the inherent impossibility of its accomplishment or an account of
the employment of inadequate or ineffectual means.
Q: What crime should H be prosecuted?
A: H should be prosecuted for the crime of Parricide It is not really a crime in the legal sense of the word because a crime
requires a substantive change in the outside world. Here the act dis
Q: Should H be given the benefit of Praeter intentionem? not ripen into a crime. It was not accomplished into a crime because
of its inherent impossibility.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 15
The offender is being punished because of his criminality and KINDS OF INHERENTLY IMPOSSIBILITY
dangerousness. So although objectively, no crime is committed, still According to jurisprudence, there are two kinds of inherent
the offender shall be punished that is why he is convicted only of impossibility;
Impossible Crime. 23 Legal Impossibility;
24 Physical Impossibility;
The penalty of IC is only arresto mayor or a fine of P200-P500
depending on the criminality or dangerousness of the offender. Legal Impossibility
There is legal impossibility when all the intended acts even if
Elements; committed would not have amounted to a crime.
For a person to be liable of Impossible Crime, the following
requisites must concur; Example;
23 That the act done would have been an offense against X saw his enemy Y lying on a bench. He went to Y and stabbed Y 10
persons or property; times not knowing that Y had already long been dead for 2 hours
24 That the act was done with evil intent; due to a heart attack. Even if X performed all the acts amounting to
25 That the act was not accomplished because of its inherent murder, still murder would not arise which is a crime against
impossibility or the employment of inadequate or persons because the victim is already deceased. He is no longer a
ineffectual means; person in the eyes of criminal law. Therefore there is Impossible
26 That the act done should not constitute any other violation Cime and what we have is legal impossibility.
of the Revised Penal Code;
Physical Impossibility
CRIMES AGAINST PERSON OR PROPERTY Physical or Factual Impossibility exist when an extraneous
Under the Revised Penal Code, crimes against person includes the circumstance unknown to the offender prevented the consignation
following; of the crime. Here, there are circumstances unknown to the
23 Parricide; offender, the inadequate control of the offender which prevented
24 Murder; the consignation of the crime.
25 Homicide;
26 Abortion; Example;
27 Infanticide; A person placed his hands inside the pocket of the polo of another,
28 Duel; intended to get the wallet of the said person but the pocket was
29 Physical injuries; empty. It is an IC. Extraneous Circumstances unknown to the
30 Rape; offender prevented the consignation of the crime. Unknown to him
the wallet was not inside his pocket. S it is an IC because it would
Under the Revised Penal Code, crimes against property include; have amounted to theft, a crime against property.
23 Robbery;
24 Brigandage; MUST NOT CONSTITUTE ANY OTHER VIOLATION OF THE REVISED
25 Theft; PENAL CODE
26 Usurpation or occupation of real property; It is necessary that the act done must not be a violation of any crime
27 Estafa or swindling; under the RPC otherwise that person would be held liable of that
28 Malicious mischief; crime and not of an Impossible crime.
29 Arson.
Intod vs. CA (G.R. No. 103119 October 21, 1992)
*Only crimes against persons and property would an IC Intod, accompanied by other men, wanted to kill Palampangan. Thus,
the accused peppered Palampangan’s room with bullets. However, the
Example; intended victim was not there. Only the son-in-law and children were
H and W were lawfully married. During the subsistence of their present but they were not hit. Intod and his company were charged with
marriage, H caught W having sexual intercourse with another man. the crime of attempted murder up to the CA.
As a result, H filed a complaint of adultery against W. As a defense,
W argued that she cannot be held liable for adultery because she Q: Should Intod be convicted for attempted murder?
was born a man and merely changed her sexual organ. 23 NO. The Supreme Court held that an impossible crime was
committed. It was unknown to the offenders that the intended
Q: Is W liable for an impossible crime of adultery? victim was not at the scene of the crime. It could have amounted to
23 NO. For a person to be held liable for impossible crime, the act a crime against persons which is murder. But it was inherently
committed would have been a crime against person or property impossible because the victim was not there.
were it not for the inherent impossibility of the crime or the
inadequate and ineffective means employed. In this case, adultery is This decision of the SC were criticized because under the 4th
a crime against chastity. Thus, the first requisite of an impossible element, the act must not constitute any other violation of the RPC.
crime is absent. When this accused peppered the house of Palampangan with
bullets, they did peppered the house with bullets. So they said, they
INTENT should be liable with malicious mischief because damage was done
It is necessary that the offender in doing the act must be incited by to the house and not IC. SC retained its decision that it is an IC and
an evil intent. this case of Intod vs. CA was cited in the case of Jacinto vs. People.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 16
Jacinto vs. People (G.R. No. 162540. July 13, 2009) of some cause or accident other than this own spontaneous
A check which was supposed to be remitted was not remitted by the desistance.
offender to Megafoam. Instead the check was depositedto her own
account. Since the check was not remitted, Megafoam filed a case of 2 Phases in the Commission of the crime
qualified theft against the employee. She was convicted before the There are always 2 phases in the commission of the crime;
lower court up to the CA. 23 Subjective phase;
24 Objective phase;
23Should the accused be convicted of theft if the check she stole
was dishonored due to lack of funds? Subjective Phase
23 NO. The Supreme Court held that the crime committed was an The subjective phase is the portion in the commission of the act
Impossible Crime citing the case of Intod vs. CA. The act amounted wherein the offender commences the commission of the crime after
to qualified theft. However, unknown to the said offender the check the time that he still has control over his acts.
was not funded. Therefore, she was not able to get the face value of
the said check. Hence, physical circumstances unknown to the He may or may not proceed in the commission of the crime. He still
offender prevented the consummation of the crime. We have has control over his acts
physical or factual impossibility.
Objective Phase
23 What about the fact that the check was taken and was not From the moment the offender loses control over his acts, it is
remitted to Megafoam? already in the objective phase of the commission of the crime.
23According to the Supreme Court, theft has been defined under
Art. 308 as the taking of a property with intent to gain the personal Stages in the Development of the Crime
property of another. Therefore it is necessary that the property The following are the stages in the development of a crime;
taken must have value because the taking must be with intent to 23 Internal Acts;
gain. The mere taking of a check without value would not amount to 24 External Act;
theft because the check without value is a worthless check. Hence,
the SC said that the crime committed is only an IC. Internal Acts
Internal acts are not punishable. Mere criminal thoughts will never
--xXx-- give rise to criminal liability. There must be an external act.
Art. 5. Duty of the court in connection with acts which External Act
should be repressed but which are not covered by the law, and in External Act are acts which includes preparatory acts and acts of
cases of excessive penalties. — Whenever a court has knowledge execution. As a rule, preparatory Acts are not yet punishable
of any act which it may deem proper to repress and which is not because they are not yet connected to a particular felony.
punishable by law, it shall render the proper decision, and shall
report to the Chief Executive, through the Department of Justice, Example;
the reasons which induce the court to believe that said act should Conspiracy to commit a crime, proposal to commit a crime -> merely
be made the subject of legislation. preparatory acts. Hence, as a rule they are not punishable
In the same way, the court shall submit to the Chief
Executive, through the Department of Justice, such statement as ACTS OF EXECUTION
may be deemed proper, without suspending the execution of the Acts of Execution is the actual act of committing the crime. We have
sentence, when a strict enforcement of the provisions of this Code 23 stages;
would result in the imposition of a clearly excessive penalty, taking 23 Attempted;
into consideration the degree of malice and the injury caused by 24 Frustrated; and
the offense. 25 Consummated;
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 17
23 That he does not perform all acts of execution that would Baleros vs. People (G.R. No. 138033, February 22, 2006)
have produced the felony; The woman was awakened by a man pressing a cloth soaked with
24 That his act was not stopped by his own spontaneous chemical on her face. The man was on top of her, she struggled, she
desistance; was able to kick the man, the man jumped out of the window. She
25 That he was not able to perform all acts of execution by called on the guard and then everyone came up to her. The case
reason of some cause or accident other than his own filed against the man was attempted rape. The man was convicted
spontaneous desistance; up to the CA of attempted rape.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 18
People v. Labiaga (G.R. No. 02867, July 15, 2013) Q: What crime did X commit, if any?
Accused Labiaga was in the house of Gregorio Conde when suddenly X is liable for an impossible crime. Had the gun been loaded with
he shot Gregorio in the forearm. Gregorio shouted for help. One of bullets, X would have committed the crime of murder. However,
his daughters, Judy Conde, came to his rescue. However, the because the gun had no bullets, it is inherently impossible to commit
accused shot Judy to the stomach. Accused was charged with the crime of murder in any circumstance.
murder and frustrated murder.
FRUSTRATED STAGE
Whether or not the accused is guilty of frustrated murder against There is frustrated felony when the offender performs all the acts of
Gregorio Conde? execution which would produce the felony as a consequence but
NO. Gregorio Conde failed to present prove that the wound he which, nevertheless, do not produce it by reason of causes
sustained was fatal. If the wound sustained by the victim is a not independent of the will of the perpetrator.
fatal or not mortal, the crime is only in the attempted stage. The
reason is that it is only when the wound sustained is mortal or fatal Elements:
that it can be said that the said offender has already performed all In the case of People v. Badriago (G.R. No. 183566, May 8, 2009) the
the acts of execution which would produce the felony. However, the Supreme Court gave the elements of frustrated homicide;
felony was not produced by reason of a cause independent of his The offender performs all the acts of executions;
will that is the immediate medical intervention. All the acts performed would produce the felony as a
consequence;
Example; Felony is not produced;
X and Y are enemies. In one instance, X saw Y outside his house. By reason of cause or accident other than the will of the
Angered, X took his father’s gun. The gun was not used for a long perpetrator;
time. Thereafter, X took aim and, with intent to kill, pulled the
trigger of the gun. However, the gun did not fire the shot. X pulled Example;
the trigger four times, yet no bullet came out. The gun was jammed. A wanted to kill his own father to get his inheritance immediately
and wanted to be rich. Went to drug store and bought poison.
Q: What is the liability of X, if any? Before going home, he went to the house of his friend and told his
X is liable for homicide. The overt act of pointing the gun to Y is friend "tonight I will be rich, I will be poisoning my father, I will be a
directly connected to the crime of homicide. However, the gun millionaire." After telling that to his friend, A ran to his house. Upon
jammed. X was prevented from performing all the acts of execution reaching his house, he took the poison out of the plastic.
by some reason or accident other than his own spontaneous Meanwhile, the friend went to the police and told plan of A to kill
desistance. the father. The friend and the police went to the house of A and the
father. Upon reaching the house, they saw A in the act of taking out
the said poison from the plastic bag. A was arrested.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 19
Q: Is A liable of attempted parricide? The son is liable of physical injuries depending on the required medical
NO. He is not yet liable of attempted parricide. The act of buying intervention. 1-9 days slight physical injuries. 10-30 days less serious
poison, taking out of the plastic are only preparatory act. It is not yet physical injuries, more than 30 days serious physical injuries.
an overt act directly connected to parricide. He may use the poison
not really to kill the father, he may use it to kill insects or pests. NO FRSUTRATED THEFT
Therefore, he cannot be liable of attempted parricide. In the case of People vs. Valenzuela (G.R. No. 160188, June 21, 2007)
the Supreme Court held that there is no such thing as frustrated
Example; theft. Under Art. 308, theft is committed when the person takes the
A mixed the poison to the juice of the father and then he gave it to personal property of another with intent to gain without violence,
his father. The father was about to drink the juice with poison. force or intimidation upon persons or things without the consent of
However, since the father was clumsy, the glass fell from the hands the owner.
of the father.
Theft can admit only either an attempted and consummated stage
Q: Is A liable of attempted parricide? because the moment the offender gains possession of the personal
YES. He already liable. The moment he poured the poison in the property of another, unlawful taking is already committed.
juice of the father and he gave it to the father for him to drink, he
already performed an overt act directly connected to parricide. Even if he has no opportunity to dispose of the property and the
However, parricide was not consummated and he was not able to moment the unlawful taking is complete, theft is already
perform all the acts of execution by reason of an accident. It was consummated. Hence, there can be no instance of frustrated theft.
purely accidental because the father was clumsy and the glass
slipped from his hands. Example;
A woman went to Rustans and bought perfume. While she was
Example; sitting and the saleslady was taking the perfume in the counter, she
In the same problem, after mixing the poison in the juice, he gave it saw a new line of lipsticks on a glass shelf. She went there but it was
to his father. The father was about to drink the juice with a poison locked. Saw the key on the table and opened it, took one and
when A took pity on his father and had a change of heart. He slipped in inside her bag, closed the glass, placed the key back on the
immediately grabbed the juice and threw it on the garden. table. The saleslady arrived and gave her the perfume. She was
about to leave Rustans when suddenly this certain device detected
Q: Is A liable of attempted parricide? and made a sound, so the unpaid lipstick was discovered.
NO. He is not liable of attempted parricide. The act of mixing of the
poison with the juice is an overt act directly connected to parricide, Q: What crime was committed by the woman?
however, he was not able to perform all acts of execution by reason The woman committed consummated Theft. Even if she has not yet
of his own spontaneous desistance. Therefore, he is absolved of left Rustans, the moment she took the lipstick from the glass shelf,
criminal liability. Because for one to be liable in the attempted stage, taking is already complete, theft is already consummated.
the reason for the non-consummation of the crime must not be his
own spontaneous desistance. In the same problem, woman took a lipstick and slipped it inside her
bag. Suddenly she has a change of heart. She took the lipstick from
Example; her back and placed it back on the glass shelf and the closed the
In the same problem, A mixed the poison with a juice and gave it to his glass and locked it.
father. The father drank the juice and was poisoned. Suddenly, he was
already showing signs of being poisoned, he was chilling. Upon seeing Q: Did the woman commit any crime?
his father in that condition, A immediately administered an antidote to YES. She is already liable of consummated theft. The moment she
his father, after that he immediately rushed his father to the hospital. took the lipstick from the glass shelf and placed it inside her bag,
The father survived. The doctor said, were it not for the antidote given taking is already complete, therefore, theft is already consummated.
by the son, the father would have died. Her change of heart would not amount to desistance. Too late.
Desistance will only lie in the attempted stage but never in the
Q: Is the son liable of attempted parricide? consummated nor in the frustrated stage.
NO. The moment the father drank the juice, all the acts for the
performance of the crime has already been done. The offender has Q: What is the effect of returning back the lipstick?
already performed all acts of execution necessary to consummate There will only be NO civil liability. She will not be made to pay the
the crime. However, the crime was not consummated. lipstick because she returned it but nevertheless, she is already
liable for consummated theft because unlawful taking is already
Q: Is the son liable of frustrated parricide? committed.
NO. In frustrated parricide although the offender has already
performed all the acts of execution, the reason for the non- Example;
consummation of the crime must be a cause independent of his will. In the same case, the woman opened the glass shelf. She was about
The reason for the non-consummation of the crime is the own will of to take the lipstick when suddenly there was this hand placed on top
the son. Therefore, the son is not liable of frustrated homicide. of her hand before she could even get the lipstick. Unknown to her,
her acts were being seen on a CCTV camera and the head of the
Q: What is the liability of the son? administrative office immediately went to her upon seeing that she
was about to take the lipstick.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 20
People vs. Lizada (G.R. No. 143468-71, January 24, 2003) As a rule, light felonies are punishable only when they are on their
The man was still in his shorts. His penis has not yet even touch the consummated stage. Unless the crime is committed against person
genitalia of the girl. He only touched the private parts of the girl. or property
How come the conviction was for attempted rape and not mere Q: Why are attempted and frustrated felonies not punishable?
acts of lasciviousness? Light felonies produces such light, such insignificant, moral and
The Supreme Court convicted the accused of attempted rape taking into material injuries. If they are not consummated, the wrong done is so
consideration the 3 other consummated rape that has been done by the slight that there is no need of providing a penalty at all.
stepfather on the daughter. Considering that in these 3 former acts rape
had been consummated, the obvious intent of the stepfather is to rape Q: What is the reason for the exception?
the girl. It just so happen that he saw the son peeping and so he went The commission of felonies against persons or property presupposes
out of the room. That is the reason given. in the offender moral depravity.
If that is the reason given without the said facts that there has been --xXx--
consummated rape for the past 3 acts, it should only be acts of
lasciviousness or at least attempted rape if there in an intent to lie. Art. 8. Conspiracy and proposal to commit felony. —
In the case, the stepfather was still in his shorts, the penis has not Conspiracy and proposal to commit felony are punishable only in
yet touched even the outer portion of a woman's genitalia. Absent the cases in which the law specially provides a penalty therefor.
the facts that there were 3 former consummated rape, it should only A conspiracy exists when two or more persons come to
be acts of lasciviousness. Because to amount to at least attempted an agreement concerning the commission of a felony and decide to
stage, it is necessary that the penis must touch at least the outer commit it.
portion to show intent to lie. The man was still in his shorts, how can There is proposal when the person who has decided to
you know that there was intent to lie. It is only a different ruling commit a felony proposes its execution to some other person or
because there were 3 previous consummated rape and the SC persons.
considered all these saying that the obvious intent of the stepfather
was also to rape the daughter. Conspiracy v. Proposal.
CONPIRACY PROPOSAL
Acts of Lasciviousness v. Attempted Rape A bilateral act – there must be
Unilateral act – only one
ACTS OF LASCIVIOUSNESS ATTEMPTED RAPE at least two persons who
person who decide to commit
Likewise, the penis only agreed to the commission of
The penis only touched the a felony is sufficient;
the crime;
touched the outer portion of
outer portion of the vagina;
the vagina;
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 21
Elements Example;
In the case of People v. Castillo (G.R. No. 132895, March 10, 2004) A, B and C decided to kill X. Went to the place where X will be
conspiracy is established by the presence of two factors; passing at night time. When they saw X, A B and C surrounded X and
Singularity of intent; they all stabbed X. When X was lying on the ground, A and B left. C
Unity in the execution of the unlawful objective; remained and took the valuables of X.
2 kinds of Conspiracy as a means of committing a crime Q: What is or are the criminal liabilities of A, B and C?
Direct or express conspiracy; A, B and C are all liable for the crime of murder as conspirators
Implied or Inferred Conspiracy; because it is the crime agreed upon. However, only C will be liable
for the crime of theft. A and B cannot be held liable for the crime of
theft because theft was not a crime agreed upon by all of them.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 22
Also, theft was committed in the absence of A and B. There was no In People vs. Garchitorena (G.R. No. 131357, August 28, 2009), the
opportunity for A and B to stop C in theft. Therefore, only C will be Supreme Court held that direct proof is not necessary for one to
held liable for theft. become a conspirator because conspiracy can be proven from the
acts done or performed prior, during or subsequent to the
Example; commission of the crime.
In the same problem, C took the valuables of X in the presence of A
and B. While he was taking them, A said what about the cellphone, B Example;
what about the ring, here take it also. A, B and C alighted in the house of X, they were all armed with
armalites. They all went in front of the door. A knocked at the door.
Q: What is or are the criminal liabilities of A, B and C? When X opened the door, B fired at X. X fell on the floor. C kicked his
Although theft was not a crime agreed upon, all of them will be held body inside and closed the door. All of them left still armed.
liable of the crime of theft because although theft was not agreed
upon, it was committed in the presence of A and B and they did not Q: Are they all conspirators for the murder of X?
perform acts to prevent C from committing theft. YES. It is evident here that there is a pre conceived plan prior to the
commission of the crime. Although the only participation of A was to
Example; knock at the door and the only participation of C was to close the
A, B and C decided to injure X to teach him a lesson. When X arrived, door, it was obvious, there was a pre conceived plan. All of the,
they surrounded him, boxed, punched, hit X. While X was lying on arrived at the same time armed with armalites. They went in front of
the ground, seriously wounded, A inflicted a fatal wound by kicking the door, one knocked, one fired, one closed the door, left together
the neck of X. X died. still armed. All of these showed that there was a pre conceived plan
to kill X. As such they are all liable as conspirators regardless of the
Q: Who is liable for the death of X? quantity and quality of their participation.
A:All of them are criminally liable for the death of X. They all agreed
to injure X. That was their agreement. The death of X however was Implied or Inferred Conspiracy
the natural consequence of their agreement to injure X. Therefore, Implied or inferred conspiracy is deduced from the mode and
even if it is not their intended act, since it is the natural consequence manner of committing the crime, there is no pre-conceived plan but
of the crime, they are all criminally liable for the death of X. the offenders acted simultaneously in a synchronized and
coordinated manner, their acts complimenting one another towards
Example; a common criminal objective or design. T
A, B and C decided to rob the house of X. They went inside the house of
X. They have already taken the valuables. On their way out however, C It may happen that the conspirators do not know each other. Since
pushed a chair. The chair fell on floor and created a noise. The owner of the offenders acted in a synchronized and coordinated manner, a
the house was awakened and began shouting upon seeing A, B and C. C conspiracy was established instantly, impulsively, at the spur of the
shot the owner of the house. The owner died. moment.
Is there conspiracy among the accused? Mere presence at the scene of the crime, mere approval, mere
YES. The Supreme Court held that although the participation of acquiescence, mere knowledge of the commission of the crime will
Milan was only to close the door, Chua was only to order Milan to not make one a conspirator absent any active participation. Because
shoot the 3rd police officer, such act of Chua showed that he the basis is on the acts performed by the offender. Unlike a
exercised moral ascendancy over Milan. Therefore, since what is preconceived plan there was a prior agreement, therefore mere
present here is a prior agreement to kill the police officers, mere presence or exercise of moral ascendancy will make one a
exercise of moral ascendancy will already make one a conspirator. It conspirator. In implied the conspiracy is established based on the
is not necessary that they actually participate in the execution of the acts performed. Therefore, if you do not perform an act, if you are
crime. Thus, all of them are held criminally liable. merely present then you cannot be held a conspirator.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 23
YES. R.A. 9262 allows suppletory application of the Revised Penal --xXx--
Code. Hence. The i-laws may likewise be charged of violation of R.A.
9262 if they acted in conspiracy with the husband or the man. Art. 11. Justifying circumstances. — The following do not
incur any criminal liability:
--xXx-- Anyone who acts in defense of his person or rights,
provided that the following circumstances concur;
Art. 9. Grave felonies, less grave felonies and light felonies. First. Unlawful aggression.
— Grave felonies are those to which the law attaches the capital Second. Reasonable necessity of the means employed to
punishment or penalties which in any of their periods are afflictive, prevent or repel it.
in accordance with Art. 25 of this Code. Third. Lack of sufficient provocation on the part of the
person defending himself.
Less Grave Felonies Anyone who acts in defense of the person or rights of his
Less grave felonies are those which the law punishes with penalties spouse, ascendants, descendants, or legitimate, natural or adopted
which in their maximum period are correctional, in accordance with brothers or sisters, or his relatives by affinity in the same degrees
the above-mentioned Article and those consanguinity within the fourth civil degree, provided
that the first and second requisites prescribed in the next
Light Felonies preceding circumstance are present, and the further requisite, in
Light felonies are those infractions of law for the commission of case the revocation was given by the person attacked, that the one
which a penalty of arrest menor or a fine not exceeding 200 pesos or making defense had no part therein.
both; is provided. Anyone who acts in defense of the person or rights of a
stranger, provided that the first and second requisites mentioned
3 kinds of felonies according to severity in the first circumstance of this Article are present and that the
Grave felonies; person defending be not induced by revenge, resentment, or other
Less grave felonies; evil motive.
Light felonies; Any person who, in order to avoid an evil or injury, does
not act which causes damage to another, provided that the
--xXx-- following requisites are present;
First. That the evil sought to be avoided actually exists;
Art. 10. Offenses not subject to the provisions of this Code. Second. That the injury feared be greater than that done
— Offenses which are or in the future may be punishable under to avoid it;
special laws are not subject to the provisions of this Code. This Third. That there be no other practical and less harmful
Code shall be supplementary to such laws, unless the latter should means of preventing it.
specially provide the contrary. Any person who acts in the fulfillment of a duty or in the
lawful exercise of a right or office.
Example; Any person who acts in obedience to an order issued by a
What if a person convicted of a violation of a SPL? A issued a check superior for some lawful purpose.
to B for payment of an obligation. B deposited but the check
bounced. Notice of dishonor was sent. After the trial on the merits, CIRCUMSTANCES WHICH AFFECT THE LIABILITY OF THE OFFENDER
A was found guilty of the violation of BP 22 beyond reasonable The following circumstances affects the criminal liability of the
doubt. Fine and payment of the value of the check. The court said in offender;
case of non payment of the fine, the said convict shall suffer Justifying circumstances; (Art. 11)
subsidiary imprisonment. Exempting circumstances; (Art. 12)
Mitigating Circumstances; (Art. 13)
Can a person who violated a SPL and was imposed with fine be Aggravating Circumstances; (Art. 14)
made to suffer subsidiary imprisonment in case of non payment of
fine? JUSTIFYING CIRCUMSTANCES
YES. There is no provision in B.P. 22 prohibiting the application of Justifying circumstances are those where the acts of the actor are in
the Revised Penal Code, then the RPC shall apply suppletorily or accordance with the law, thus he incurs no criminal liability. Since
supplementarily to the provisions of Special Penal Law unless the there is no crime, there is no criminal and civil liability.
Special Penal Law provides otherwise.
Effect of Invoking Justifying Circumstance
Example of "unless" The moment the offender or the accused invokes any of the acts
Sec. 98 of RA 9165. It is expressly provided that the provisions of the amounting to justifying circumstance, he is in effect admitting the
RPC shall not apply to the violations RA 9165 or the 2002 commission of the crime. But he wanted to evade criminal liability
Comprehensive Dangerous Drugs Act. The law uses the word shall. by invoking justifying circumstances.
Exception; Example;
If the offender is a minor. In that case if the minor is penalized with A killed B. A case of homicide was filed against A. A pleaded not
life imprisonment to death, it will be considered as reclusion guilty during the arraignment. During the pre-trial, the counsel of A
perpetua to death and the nomenclature of the penalties in the RPC invoked self-defense. The moment the counsel said that their
will now be applied defense is self-defense, a kind of justifying circumstance, the
procedure in trial would be inverted.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 25
If however the defense invoke any of the justifying circumstances, Test for unlawful aggression
the trial will be inverted. It is the defense that must first present In the same case of People v. Dulin, the Supreme Court held that
evidence. Because he in effect admits the commission of the crime. that the test for unlawful aggression under the circumstance is
He only wanted to avoid liability by saying that his act was justifying. whether the aggression from the victim put in real peril the life or
personal safety of the person defending himself. The peril must not
Burden to Prove Justifying Circumstance be an imaginary threat.
Therefore the burden of evidence is upon the defense to prove all
the elements, all the requisites of the justifying circumstance that he Example;
is invoking. X was walking along the street. Suddenly, Y went up to him. Y
pointed a gun towards X. Y commanded X to give him his wallet,
If the defense failed to prove the evidence or requisites of justifying watch, and cellphone otherwise he will stab him. X gave his
circumstance that he is invoking, that will amount to conviction cellphone and his wallet. When X was about to give his watch, he
because he already admitted to the commission of the crime. suddenly grabbed the gun from Y. Now with the possession of the
gun, X ordered Y to give him back his cellphone and wallet. Instead
SELF-DEFENSE of giving X back his belongings, Y ran away. Thereafter, X fired a shot
Self-defense is not limited to one’s life. The following is the scope of against Y, hitting Y in his knee. Unable to run, X approached Y and
self-defense; thereafter took his belongings. X left. Thereafter, X was charged with
Defense of life; physical injury. X argued self-defense.
Defense of honor or chastity;
Defense of property provided that it is coupled with an attack Q: Is X liable for physical injury
on the person entrusted with the said property; NO. Although X already gained possession of the gun, the unlawful
aggression did not cease. The unlawful aggression continued
Elements of Self-defense because Y still had the property of X. Had X not shot Y in the knee, Y
The following are the elements of self-defense; would have gotten away with the property of X.
Unlawful Aggression;
Reasonable necessity of the means employed to prevent or REASONABLE NECESSITY OF THE MEANS EMPLOYED TO PREVENT
repel it; OR REPEL IT.
Lack of sufficient provocation on the part of the person When you say reasonable necessity, what the law requires is
defending himself; rational equality or rational equivalence as determined by the
emergency. Rational is the means employed. Rationally necessary to
UNLAWFUL AGGRESSION prevent or repel it.
Unlawful Aggression is an attack with physical force or with a
weapon as to cause injury or danger to life or personal safety. Reasonable necessity does not necessarily mean that when the
Unlawful aggression must come from the victim. aggressor makes use of a bolo, the person defending must also make
use of a bolo.
Unlawful aggression I the primordial requisite which must at all
times be present. When unlawful aggression is absent, there is no Factors of Reasonable Necessity
self-defense whether complete or incomplete. Factors to be considered in order to be said that the means
employed is rationally necessary are the following;
Elements of unlawful aggression Nature and the number of the weapon used by the aggressor;
In the case of People v. Dulin (G.R. No. 171284, June 29, 2015), the Physical condition, size, weight and other personal
Supreme Court provided the elements of unlawful aggression; circumstances of the aggressor versus that of the person
There must be physical or material attack or assault; defending himself;
The attack or assault must be actual or at least imminent; Place and location of the assault;
The attack or assault must be unlawful;
All of these would determine if the means employed of the person
Kinds of Unlawful Aggression defending himself is reasonably necessary to prevent or repel the
In the case of People v. Fontanilla (G.R. No. 177743, January 25, aggression.
2012), the Supreme Court held that there are two kinds of unlawful
aggression; LACK OF SUFFICIENT PROVOCATION
Actual or Material Unlawful Aggression; There must be lack of sufficient provocation on the part of the
Imminent Unlawful Aggression; person defending himself.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 26
Sufficient Provocation NO. There was no self-defense. The unlawful aggression already
Sufficient Provocation refers to an act which is adequate to stir a ceased to exist because the sexual congress was already finished.
person to do the wrongful act and when it is proportionate to the There was no more honor to protect.
gravity of the act.
If you were the judge, would you convict or acquit the accused?
No Sufficient Provocation YES, I would convict the accused for the crime of homicide, but I will
The following circumstances show that there is no sufficient give the said victim the mitigating circumstances of immediate
provocation on the part of the person defending himself; vindication of a grave offense and sudden impulse of passion and
When no provocation at all was given; obfuscation. This to lower the imposable penalty.
When although provocation was given, it was not sufficient;
When although the provocation was sufficient, it did come from Example;
the person defending himself; and A tried to stab B. B evaded the blow. In the course of said struggle, B
Although provocation came from the person defending himself, gained possession of the bolo or gun and fired at A. A died.
it is not immediate or imminent to the aggression;
Q: Was there self-defense?
Example; NO. Even if the unlawful aggression was started by A, the moment B
A saw his enemy B. B was fast approaching to A with a gun on his gained possession of the bolo or gun, the unlawful aggression has
hand. Upon seeing that B was about 10 feet away, A immediately already ceased to exist. There was no more danger on the life of B.
pulled out his balisong and he spin B who was hit on the neck and so when B fired, it was not an act of retaliation which is justifying
died. circumstance.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 27
may the father invoke self-defense in order to be exempt from the brothers and sisters, or relative by affinity within the same degree.
criminal liability frustrated homicide? Although C is the first cousin of W and thus related to H by affinity, C
YES. There was unlawful aggression because the neighbor tried to hit is not of the same degree mentioned by the provision. C is neither
him with a rake 3 times. There was an image of danger from his life. the ascendant, descendant, legitimate, natural, or adopted brother
nd or sister of W. Thus, the defense of relative is untenable.
2 , the means was reasonable and necessary because tThe father
went to the house of the neighbor without any arms and at the time
he was attacked, he just saw a pointed stick. That is the only means Q: Are there other defenses which H can use?
that he could avail at the moment to protect himself. Lastly, there YES. Although, C is not of the same degree as that mentioned by law,
was lack of sufficient provocation on the part of the father. The act H can still argue defense of a stranger since C in this case is a
of the father inquiring from the neighbor why he slapped his son stranger.
was an act within his right. It cannot be considered as sufficient
provocation. It is the right of the father to know why his son was DEFENSE OF A STRANGER
hurt or injured by the neighbor. Anyone who acts in defense of the person or rights of a stranger,
provided that the first and second requisites mentioned in the first
Toledo vs. People (G.R. No. 158057, September 24, 2004) circumstance of this Article are present and that the person defending
The Supreme Court held that there is no such thing as accidental self- be not induced by revenge, resentment, or other evil motive.
defense. You cannot invoke self-defense and accident at the same time.
Because in self-defense it is direct and positive overt act in the name of Elements
self-preservation. The offender killed the victim so as to preserve his The following are the elements of defense of a stranger;
own life. It is direct and positive. It cannot be done out of accident Unlawful aggression;
imminence. Therefore, it is inconsistent with accident. Reasonable necessity of the means employed to prevent or
repel the attack;
Stand Ground When in the Right The person defending be not induced by revenge, resentment,
The reason behind self-defense stand ground when in the right. or motive;
Stand ground in the right means that where the said accused is
where he should be and his assailant is fast approaching, the law rd
The 3 element requires that the said offender must be
does not require him to retreat because the moment he retreats he disinterested and not induced by any other motive, otherwise,
runs the risk of being stabbed at the back. defense of a stranger will not lie.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 28
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 29
convict. Likewise, the injury caused to X was the necessary On the other hand, the battered woman also tries to convince
consequence of the fulfillment of Y’s duties, otherwise X will kill the herself that the battery will never happen again; that her partner
child. Y can also use the justifying circumstance of defense of will change for the better; and that this good, gentle and caring man
stranger. is the real person whom she loves.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 30
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 31
suspended the sentence because at that time the law was enacted NO. Although the police officer is performing a lawful act in pacifying
and was on appeal to the CA, the accused was 20 years of age, the two men are fighting on the street, he did not perform it with
hence he is entitled to the automatic suspension of his sentence. due care. Considering that it was a community, he knew that a stray
bullet would have landed on any person. He should not have fired
ACT OF DISCERNMENT shots. The police officer is liable for reckless imprudence resulting to
In the case of Madali v. People (G.R. No. 180380, August 4, 2009), there homicide, a culpable felony.
is an act of discernment when the minor knows the consequences and
circumstances of his act. Discernment is that mental capacity of a minor IRRESISTIBLE FORCE
to fully appreciate the consequences of his unlawful act. Such capacity Any person who act under the compulsion of irresistible force.
may be known and should be determined by taking into consideration all
the facts and circumstances. Elements;
There must be Compulsion is by means of physical force;
In this case, the accused who was 16 years old at the time of the Physical force must be irresistible;
commission of the crime, warned the witness not to reveal their Physical force must come from a third person;
hideous act, otherwise, he (accused) and his co-accused would kill
him. Therefore, he knew that killing the victim was a condemnable In irresistible force, the offender must be reduced as a mere
act and should be kept in secrecy. He fully appreciated the instrument, that he is not acting in his will. Therefore, if he is acting
consequences for his unlawful act. against his will, voluntariness is absent.
Example; Q: Is the farmer criminally liable together with the two men?
A police officer saw two men fighting on a street. They were hitting YES. There was an uncontrollable fear when the farmer saw that the
each other. The police tried to pacify the two men, but they won’t two men shot X. If the two men can shoot X, they can also shoot
stop. So what the police officer did was that he fired shots to pacify him. Therefore, there was an uncontrollable fear and it was real and
the men. However, one of the stray bullets landed on the child. imminent. The farmer’s fear is of an injury is greater than or equal to
Unfortunately the child died. The police officer was prosecuted for that committed because his life is more important. Therefore all the
homicide. As a defense, the police officer invoked accident elements are present, he is not liable
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 32
Example; Example;
I the same problem, the farmer was told that If he will not bury X, For example, there is a war in which the Philippines is involved. A, B,
they will shoot and kill his carabao. The farmer was so afraid. His and C conspired to commit treason against the government. A, one
carabao was his only means of living. And so, he buried X. of the conspirators went to the priest and confided to the priest that
there was conspiracy between B and C to commit treason against
Q: Is the farmer criminally liable together with the two men? the government. Despite knowledge on the conspiracy to commit
YES. There was an uncontrollable fear and it is real and imminent treason, the priest did not immediately divulge it to the police.
because the farmer saw that the two men shot X. If the two men can Under Art 116, the priest is criminally liable for misprision of
shoot X, they can also shoot the carabao. However, the third treason, for not divulging the conspiracy to commit treason.
element is wanting. The death of the carabao is not equal to or However, the priest failed to perform such act due to a lawful cause.
greater than the life of the human. Under your rules on evidence, a confession made to a priest is
considered as a privileged communication. Therefore the priest does
Example; not incur any criminal liability.
In the same problem, the two men told the farmer that if the farmer
will not bury X, they will go to his house, rape his wife, thereafter kill EXEMPTING V. JUSTIFYING
her and his children and burn his house. His family is the most EXEMPTING JUSTIFYING
important people in his life. Therefore, he was constrained to bury X. The act is legal; The act is criminal;
There is no crime, hence there There is a crime, hence there is
Q: Is the farmer criminally liable? is no criminal; a criminal;
NO. Although there is an existence of an uncontrollable fear Since there is a crime, there is
because, his wife would be raped, his children would be killed and Since there is no crime, there is criminal liability, although he is
his house would be burned, the 2nd element is not present. The fear no criminal and civil liabilities; exempted therefrom, and
is not present. It is in the future, speculative. Imagine, the two men there are civil liabilities.
would still have to go to the house of the farmer and look for his The emphasis of the law is on The emphasis of the law is on
wife and children. By that time, the farmer had already gone to his the act; i.e. self-defense. the actor;
house and warned his family. He could also have reported the killing Cannot be invoked in Quasi-
of X. So his fear is not real imminent. Imaginative not present. Can be invoked in quasi-
offenses, i.e. reckless
Ty v. People (G.R. No. 149275, September 27, 2004) offenses;
imprudence;
In the case of Vicky Ty, she was accused of issuing bouncing checks.
Vicky Ty’s defense was that she feared that her ailing mother who --xXx--
was confined in the hospital would commit suicide because of the
hospital’s ill treatment. So she was compelled to issue unfunded Article 13.Mitigating circumstances. - The following are
checks for her mother to be discharged. In this case, yes there is an mitigating circumstances;
uncontrollable fear. However, her fear was not real and imminent. It
Those mentioned in the preceding chapter, when all the
is mere imaginative, speculative. It is not now, or not present. requisites necessary to justify or to exempt from criminal liability
in the respective cases are not attendant.
Q: How about state of necessity?
That the offender is under eighteen year of age or over
NO. The threat of the mother does not actually exist because the seventy years. In the case of the minor, he shall be proceeded
threat is in the future. Therefore state of necessity is not present. against in accordance with the provisions of Art. 80.
The Supreme Court ruled that she was not in state of necessity. That the offender had no intention to commit so grave a
Because she has several jewelries. She could have sold the jewelries wrong as that committed.
to pay for the hospital expenses That sufficient provocation or threat on the part of the
offended party immediately preceded the act.
LAWFUL AND INSUPERABLE CASUE That the act was committed in the immediate vindication of a
Any person who fails to perform an act required by law, when grave offense to the one committing the felony (delito), his spouse,
prevented by some lawful insuperable cause. ascendants, or relatives by affinity within the same degrees.
That of having acted upon an impulse so powerful as naturally
Elements; to have produced passion or obfuscation.
An act is required by law to be done; That the offender had voluntarily surrendered himself to a
A person fails to perform such act; person in authority or his agents, or that he had voluntarily
Failure to perform such act was due to some lawful or confessed his guilt before the court prior to the presentation of the
insuperable cause; evidence for the prosecution;
That the offender is deaf and dumb, blind or otherwise
No Civil Liability suffering some physical defect which thus restricts his means of
Note that it is one of the instances in exempting circumstances that action, defense, or communications with his fellow beings.
the actor is exempt from both criminal and civil liability. It is akin to Such illness of the offender as would diminish the exercise of
a justifying circumstance because what prevented the offender from the will-power of the offender without however depriving him of
performing a lawful act is a lawful cause. the consciousness of his acts.
And, finally, any other circumstances of a similar nature and
analogous to those above mentioned.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 33
Mitigating circumstances need not be alleged in the information in Privilege Mitigating or Ordinary Mitigating
order to be appreciated by the court provided that such The following are the rules to determine whether an incomplete
circumstance is shown and proven during the trial. justifying or incomplete exempting circumstance should be treated
as privilege or ordinary mitigating;
There is a lesser criminality on the part of the offender because the If majority of the elements necessary to justify the act or to
offender acted with the diminution of any of the elements of exempt from liability are present, then it’s treated as
voluntariness. privilege mitigating circumstance;
If less than the majority is present, then it is an ordinary
There is a diminution on the following; mitigating circumstance which can be offset by a generic
Criminal intent; aggravating circumstance;
Freedom of action; or If the elements necessary to justify the act or to exempt from
Intelligence. criminal liability is only 2, the presence of 1 element is
already a privilege mitigating circumstance .
Kinds of mitigating Circumstance
There are 2 kinds of mitigating circumstance; Incomplete Self-Defense
Ordinary Mitigating Circumstance; In case of incomplete self-defense, incomplete defense of a relative,
Privilege Mitigating Circumstance; incomplete defense of a stranger, there must always be unlawful
aggression in order for the mc to mitigate.
Ordinary Mitigating Circumstance
An Ordinary Mitigating Circumstance is one which may be offset by It is only ordinary mitigating if only the element of unlawful
a generic aggravating circumstance aggravating circumstance. If an aggression is present, the incomplete self-defense should be treated
ordinary mitigating circumstance is not offset by a generic ac it as an Ordinary.
would reduce the imposable penalty to its minimum period.
It is privilege mitigating circumstance if aside from unlawful
Privilege Mitigating Circumstance aggression, another element but not all is present, it is to be treated
A Privilege Mitigating Circumstance is one which cannot be offset by as a privilege mitigating circumstance .
any ac and the effect of privilege mitigating circumstance is to
reduce the imposable penalty not only to its period but by one or Example;
more degrees A was running in a subdivision with a bolo, he was hacking all those
he passed by. So the residents called for police assistance. The police
*If in the computation of penalties there’re aggravating arrived headed by police officer X. They called on A to put down his
circumstances, mitigating circumstances, if there is a privilege weapon but A instead of laying down his weapon, advanced towards
mitigating circumstance, that presence of privilege mitigating the police with the bolo in his hands in a hacking position in the act
circumstance takes preference over all other things. Before you can of hacking the police officers. So X immediately fired at A. He hit the
even the appropriate penalty, you still have to first consider the hands and legs of A. non-fatal wounds. A slam on the ground face
presence of the privilege mitigating circumstance. That is how facing the ground. At that particular moment, X went to A, got his
important that is why it’s privileged. bolo and then fired shot at the head of A and A died. X was
prosecuted for murder, police officer invoked 2 justifying
Ordinary Mitigating v. Privilege Mitigating circumstance. We have self-defense and fulfillment of duty.
ORDINARY MITIGATING PRIVILEGE MITIGATING
Can be offset by generic Cannot be offset by any kind of Q: Is there self-defense or at least incomplete self-defense?
aggravating circumstance; aggravating circumstance; NO. There’s no self-defense because at the time X shot the head of A, A
Lowers the penalty to the was already lying on the ground. Whatever inceptive unlawful
minimum period except when aggression he has commenced, it has ceased to exist from the time the
there are two ordinary Lowers the penalty by one or fatal blow was inflicted on him. Therefore, there was no unlawful
aggression. Since unlawful aggression is the element that is wanting.
mitigating circumstance in two degrees;
There’s no self-defense, neither is there incomplete self-defense.
which case the penalty is
lowered by one degree only;
Q: Is there fulfillment of duty?
Not considered in the
determination of the proper NO. There are only 2 elements in fulfillment of duty, 1stelement - that
penalty when the penalty Always considered regardless the accused acted in the due performance of his duty or in lawful
exercise of his proper office. It is present right because the police officer
prescribed by law for the single of the penalty imposed’
went there because the residents asked for police assistance. They went
crime is a single indivisible
there to maintain peace and order. The 1st element is present. The 2nd
penalty;
element – that the injury caused is an unavoidable consequence of the
due performance of a duty. The 2nd element is
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 34
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 35
The word immediate here does not allow a lapse of time. There That there be a grave offense to the one committing the felony,
must be no lapse of time between the provocation and the his spouse, ascendants, descendants, legitimate, natural,
commission of the crime. or adopted brothers or sister, or relatives by affinity within
the same degree;
Example; It requires that the said act or grave offense must be the
There was this long line of evacuees, victims of Pablo who are to be proximate cause of the commission of the crime.
th
given reliefs. A was 5 on the line, suddenly, X inserted himself in
front of A. This angered A, A told X to place himself at the end of the It is necessary that the commission of the crime was in immediate
line but X didn’t want because he was so hungry. This angered A, vindication of the grave offense done to the one committing the
and so A pulled out his bolo and hacked X at the back. A was felony.
prosecuted for homicide.
Is it necessary that the grave offense need be a punishable act?
Is the mitigating circumstance of sufficient provocation on the part NO. It suffices that it be any act unjust act, immoral act which cause the
of the offended party justified? offender sleepless nights and move him to vindicate himself.
NO. Although the act of X in inserting himself to the line is an act
adequate to stir a person to commit a wrongful act, the 2nd element Immediate
is absent – it is not proportionate to the gravity of the act. The act of The 2nd element requires that the commission of crime was in
killing is not proportionate to the act of X of placing himself in front immediate vindication of the grave offense. This time the word
of A in a long line. Therefore, sufficient provocation as a mc is not immediate allows a lapse of time.
present so as to reduce the imposable penalty.
According to the Supreme Court, very funny reasoning, there was an
Urbano v. People (G.R. No. 182750, January 20, 2009) erroneous Spanish translation. Our RPC was copied from the Spanish
The victim has always been calling and teasing on the accused Codigo Penal, in there, the word used there was proximate. Yet when it
Urbano. So there was a confrontation because whenever the victim was translated in the RPC, the word used was immediate. Supreme
was drunk, he would defame Urbano. So there was a verbal Court said wrong translation. It is sufficient that the said grave offense
confrontation and ensued into a fight. In the said fight, Urbano was must be the proximate cause of the commission of the crime.
losing because he was just a small man. However, he was able to
land one lucky punch on the face of the victim (parangsiPacquiao). Immediate allows an interval of time between the commission of
Because of the said lucky punch, the said victim was about to fall the offense and its vindication as long as the offender is still suffering
unconscious on the ground. However, the other employees were from the mental agony brought about by the offense.
able to prevent him from falling on the ground. Nevertheless, he
became unconscious and later on regained consciousness. In and PASSION OR OBFUSCATION
out of the hospital, later on he died. That of having acted upon an impulse so powerful as naturally to
have produced passion or obfuscation.
Q: Is Urbano criminally liable for the death of the victim?
YES. Under Art. 4, because he was committing a felonious act. In the case of People v. Lobino (G.R. No. 123071, October 28, 1999),
Therefore he is criminally liable for the resulting felony although the Supreme Court held that there is passion and obfuscation when
different from that which he intend. the crime was committed due to an uncontrollable burst of passion
provoked by prior unjust or improper acts, or due to a legitimate
But there are 2 mitigating circumstance considered by the court to stimulus so powerful as to overcome reason.
st
reduce the imposable penalty. 1 according to the court, there was
nd Paragraphs 4 and 5 are related to each other. They are collectively
sufficient provocation. 2 , that the offender has no intention to
commit so grave a wrong as that committed. Who could have known as sudden impulse of passion and obfuscation.
anticipated that out of one lucky punch, death would result. There
was a total disparity on the means employed by the offender and Elements;
the resulting felony. There be an act both unlawful and sufficient to produce
passion and obfuscation;
Q: How about sufficient provocation, is it present? 2. The act that must produce passion and obfuscation must
YES. The provocation was on the part of the victim. He would always not be far removed from the commission of the crime by
call names and defame Urbano. Is it sufficient? Yes, because what the considerable length of time during which the offender
Urbano only did was to confront the victim verbally. That was his might have recovered his normal equanimity;
first act, later on only did it ensue to a fight.
Passion and obfuscation on the part of the accused must arise from
IMMEDIATE VINDICATION OF A GRAVE OFFENSE lawful sentiments because an unlawful act was committed against
That the act was committed in the immediate vindication of a grave him.
offense to the one committing the felony (delito), his spouse,
ascendants, or relatives by affinity within the same degrees. Immediate
nd
2 element requires also the immediateness. It is necessary that it
Elements; must be done immediately because the law says the commission of
He following are the elements of immediate vindication of a criminal the act which produced the passion and obfuscation must not be far
offense. removed from the commission of the crime by a considerable length
of time.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 36
Example; Yes. It is also present. The act of the neighbor trying to hack the wife
What if A attempted on the virtue of the wife of B, B learned about and his act of continuously hacking the wooden door and walls.
this from a neighbor. When B learned about this, 4 days after, he
went to A and hacked A to death. Q; Since both mitigating circumstance are present, should you
consider both in the computation of the penalty?
Is the mitigating circumstance of sudden impulse of passion and NO. Since both mitigating circumstance arises from only one act, you
obfuscation and immediate vindication of grave offense present? should only consider mitigating circumstance.
NO. 4 days had already lapsed. According to the SC, 4 days is already
a long time for the said offender to have recovered from his normal VOLUNTARY SURRENDER AND VOLUNTARY PLEA OF GUILT
equanimity. That the offender had voluntarily surrendered himself to a person in
authority or his agents, or that he had voluntarily confessed his guilt
More so in the case of People v. Ignas (G.R. No. 140514-15, before the court prior to the presentation of the evidence for the
September 30, 2003), in this case, from the time of the discovery of prosecution;
the adultery of the wife, to the time of the killing, 2 weeks had
already lapsed, the SC said such 2 weeks is too long a time for such There are 2 mitigating circumstance here;
offender to have recovered already his normal equanimity. Voluntary surrender;
Voluntary plea of guilt;
In the case of People v. Romera, the Supreme Court said par.4 -
sufficient provocation on the part of the offended party, par.5 - If both are present, you have to consider always 2 mitigating
immediate vindication of grave offense, par.6 – sudden impulse of circumstance. They have different elements and would always arise
passion and obfuscation are related to each other such that in the from different set of facts and circumstances. Therefore, they are
commission of the crime, all three present, or any 2 are present, if always separate and distinct from each other.
they are based on the same facts and circumstances they should be
appreciated only as 1 mitigating circumstance, not 2 or 3. Voluntary Surrender
The elements of Voluntary surrender are the following;
Q: Why is this important? The offender had not actually arrested; T
It is important because in the computation of the penalties, if you The offender had voluntarily surrendered himself to a person in
consider them as 3, you will be wrong in the penalties. authority or his agent; S
Such surrender must be voluntary;
*So again note, if 4, 5 and 6 are all present or if any 2 is present and
they are all based on the same facts and circumstances, they should So it is necessary that the offender has not yet been arrested. It is
only be treated as 1 mc. necessary that he surrender to a person in authority or his agent.
The surrender must be voluntary.
Example;
Husband and wife were about to have dinner. Then someone was Q: When is surrender voluntary?
calling the name of the husband outside their house. The wife Surrender is said to be voluntary when it is done spontaneously and
opened the door, upon opening, the neighbor who was calling the unconditionally either because he has this feeling of remorse and
name tried to hack the wife. Good enough, the wife was able to wanted to admit his guilt or he wanted to save the government that
reach and close the door and the wife was not hacked. The neighbor much needed time or effort which will be incurred in looking for him.
however with a use of a bolo continuously hacked the wooden or
the bamboo door and walls of the house. And so, considering that Example;
his house was being damaged, the husband was forced to go outside A case was found against B in the fiscal’s office. A warrant of arrest
to confront the neighbor. He used the kitchen door. He called the was requested, the fiscal found probable cause. The information
neighbor and asked what was the reason why he was hacking. The filed in court, the court agreed with the fiscal, a warrant of arrest
neighbor instead of answering tried to hack the husband. They was issued. B got a tip from the court employee that a warrant of
struggled for the possession of the bolo, and in the course the arrest was now in possession of the police officers. And so B upon
husband gained possession of the bolo. Once in the possession of learning that there was already an issued warrant of arrest,
the bolo, the husband hacked the neighbor. The neighbor suffered a immediately went to the police station and surrendered himself to
fatal wound but was brought to the hospital by the husband and so the authorities. Then trial against him proceeded, and after trial on
he survived. Husband was prosecuted for frustrated homicide, the the merits, he was convicted. But the judge did not consider
husband as a defense invoked 2 mitigating circumstance – 1st, there voluntary surrender in reducing his imposable penalty.
was sudden impulse of passion and obfuscation, 2nd that there was
sufficient provocation on the part of the offended party immediately Q: Is the judge correct?
preceded the action. The judge is wrong because voluntary surrender is present as a
mitigating circumstance. Although there is already a warrant of
Q: Is sufficient provocation present? arrest issued. The police officers have not yet gone out looking for
YES. Both are present. There is sufficient provocation because of the him. Therefore, any surrender would still be considered as voluntary
act of the neighbor trying to hack the wife. And his act of surrender even if there is already a warrant of arrest against the said
continuously hacking the wooden door and walls of the house – that offender.
is sufficient provocation.
In the case of De Vera v. De Vera (G.R. No. 172832, April 7, 2009), the
Q: Is sudden impulse of passion and obfuscation present? Supreme Court held that mere filing of an information and/or the
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issuance of a warrant of arrest will not automatically make the If the offender voluntary confessed his guilt to a court which has no
surrender involuntary. The accused may still be entitled to the jurisdiction and later on pleaded guilty before the proper court,
mitigating circumstance in case he surrenders, depending on the will the voluntary plea of guilt still be appreciated?
actual facts surrounding the very fact of giving himself up. YES. Since the proceedings before the former court was void, the
voluntary plea of guilt may still be appreciated in the court with
Voluntary Plea of Guilt proper jurisdiction.
The elements of voluntary plea of guilt are the following;
That guilt tendered is confessed spontaneously and PHYSICAL DEFECT
unconditionally; That the offender is deaf and dumb, blind or otherwise suffering
That he confesses guilt in open court that is before the court some physical defect which thus restricts his means of action,
tried his case; defense, or communications with his fellow beings.
The confession that was made before the presentation of the
evidence for the prosecution; For this mitigating circumstance to lie in favor of the accused, it is
necessary that there must be a connection, a relation between the
Example; physical defect and the crime committed. It is necessary that the
A was charged with the crime of frustrated murder. During the plea said physical defect must have restricted his use of action, defense
bargaining, with the consent of the judge, the fiscal and the or communication with his fellow being.
offended party, he said that he had plead guilty to attempted
murder. And so he pleaded guilty to attempted murder. The judge Example;
rendered judgment without considering voluntary plead of guilt so A is a cripple, he has no legs, he always position himself near the
as to reduce his penalty. Quiapo church. He was on board a skateboard. So he often stays
there, and his work was to snatch the handbags of any churchgoers.
Q: Is the judge correct? And so one time, he snatched the handbag of a churchgoer and
YES. For said plea of guilty to be considered voluntary, it must be thereafter, he sped away on board his skateboard. He was
done spontaneously. Spontaneously, it must be the original crime thereafter arrested.
charged.
Will his physical defect of being crippled, a man with no legs, be
Example; mitigating?
A was charged as a principal in the crime of robbery. He pleaded NO. His physical defect has no relation at all to the crime he has
guilty with the consent of the judge, the fiscal and the offended committed.
party to the crime of robbery but merely as an accomplice. The
judge rendered judgment because of the plea of guilt. The judge did Example;
not consider the said plea of guilt as mitigating. A is a blind man, blind beggar, near the Quiapo church. One time he
was begging for alms, suddenly, he was scraped on his head with a
Q: Is the judge correct? wound, it was so strong that he fell on the ground wounded. Angry,
Yes, the judge is correct because when he pleaded guilt as an he stood up, took his cane and retaliated by hitting the person next
accomplice, his plea of guilt was not done unconditionally. to him, not knowing that it was not the person but an innocent
passerby. The innocent passerby suffered less physical injuries. So
Example; the blind beggar was prosecuted for less serious physical injuries.
A was prosecuted for the crime of reckless imprudence resulting in
homicide and multiple physical injuries. He was driving his vehicle, Is the mitigating circumstance of physical defect present so as to
bumped a person and injured several others. During arraignment, he reduce the imposable penalty?
immediately pleaded guilty. The judge rendered judgment. In YES. His being blind restricted his means of action, defense or
rendering judgment, the judge did not consider the voluntary plea of communication with his fellow being. His intention was to hit the
guilt as mitigating. person who scraped him with the wound. But because of he could
not see, he hit an innocent passerby. There was a relation between
Q: Is the judge correct? the physical defect and the crime committed. Therefore, it will
YES. In Mariano v. People (G.R. No. 178145, July 7, 2014) the mitigate his criminal liability.
Supreme Court held that in the case of a culpable felony, in case of
quasi-offenses, under Art. 365 the judge may or may not consider ILLNESS
these mitigating circumstance in the imposition of penalty. If the Such illness of the offender as would diminish the exercise of the
judge consider it or if the judge did not consider it, that is the will-power of the offender without however depriving him of the
decision of the judge. Under Art. 365, the court is not mandated to consciousness of his acts.
consider the rules, the decision is based on the sound discretion
whether or not to consider the mitigating circumstance. So this is illness. It is necessary that the said illness must diminish the
exercise of the will-power of the offender. But it must not deprive
May the mitigating circumstance of voluntary plea of guilt be him of his consciousness of his act because if it will deprive him of
appreciated in confessions before the media? consciousness of his act, then it is exempting not merely mitigating.
NO. Confessions before the media are considered extra-judicial
confessions. For voluntary plea of guilt be appreciated, the Example;
confession must be made before the court. A is a kleptomaniac, he has this urge to steal. Now, his urge is to steal
diamonds. So one time he was in a party, he was talking to a lady with
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diamond earrings, diamond necklace, diamond watch, diamond That the offender has been previously punished by an offense
bracelet. Then after the conversation, the lady went to the restroom. to which the law attaches an equal or greater penalty or for two or
Upon looking at the mirror, she shouted, she was shocked, the diamond more crimes to which it attaches a lighter penalty.
earring, necklace, watch and bracelet were all gone. It was already taken That the crime be committed in consideration of a price,
by the said accused. A was prosecuted for theft. reward, or promise.
That the crime be committed by means of inundation, fire,
Q: Will his illness mitigate his criminal liability? poison, explosion, stranding of a vessel or international damage
Yes. It diminishes his exercise of his will-power without however thereto, derailment of a locomotive, or by the use of any other
depriving him of consciousness. He knew that he was committing artifice involving great waste and ruin.
theft, he knew that he was taking the personal property of another That the act be committed with evidence premeditation.
but he cannot control, he has a diminished self-control to prevent That the craft, fraud or disguise be employed.
the commission of the crime. It will only mitigate, reduce the That advantage be taken of superior strength, or means be
imposable penalty but it will not exempt from criminal liability. employed to weaken the defense.
That the act be committed with treachery (alevosia). There is
ANALOGOUS CIRCUMSTANCE treachery when the offender commits any of the
And, finally, any other circumstances of a similar nature and crimes against the person, employing means, methods, or forms in
analogous to those above mentioned. the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which
Any other circumstance which is similar in nature from the 1st to the the offended party might make.
9th paragraph, then it is also considered as a mc. That means be employed or circumstances brought about
which add ignominy to the natural effects of the act.
Example; That the crime be committed after an unlawful entry. There is
A public officer who has malversed public funds, voluntarily, an unlawful entry when an entrance of a crime a wall,
voluntary returned the public funds, it is akin to voluntary surrender. roof, floor, door, or window be broken.
Or what if a person is already of 65 years of age, sickly, suffering That the crime be committed with the aid of persons under
from a disease it can be said to be akin or similar to seniority. It will fifteen years of age or by means of motor vehicles, motorized
mitigate his criminal liability. watercraft, airships, or other similar means. (As amended by RA
5438).
--xXx-- That the wrong done in the commission of the crime be
deliberately augmented by causing other wrong not necessary for
Article 14. Aggravating circumstances. - The following are its commissions.
aggravating circumstances:
That advantage be taken by the offender of his public AGGRAVATING CIRCUMSTANCE
position. Aggravating Circumstance are those which, if attendant in the
That the crime be committed in contempt or with insult to the commission of the crime, serve to increase the penalty without,
public authorities. however, exceeding the maximum of the penalty provided by law
That the act be committed with insult or in disregard of the for the offense.
respect due the offended party on account of his rank, age, or sex,
or that is be committed in the dwelling of the offended party, if the Kinds of aggravating Circumstances:
latter has not given provocation. Generic Aggravating;
That the act be committed with abuse of confidence or Specific Aggravating;
obvious ungratefulness. Inherent Aggravating;
That the crime be committed in the palace of the Chief Qualifying Aggravating;
Executive or in his presence, or where public authorities are Special Aggravating;
engaged in the discharge of their duties, or in a place dedicated to
religious worship. In order for aggravating circumstance to be appreciated, all the
That the crime be committed in the night time, or in an aggravating circumstance must be alleged in the information and
uninhabited place, or by a band, whenever such circumstances must be proven during the trial.
may facilitate the commission of the offense.
Whenever more than three armed malefactors shall have Unlike justifying, exempting and mitigating circumstances, which are
acted together in the commission of an offense, it shall be deemed not stated or alleged in the information, aggravating circumstances
to have been committed by a band. must be alleged in the information. Even if they are proven in trial
That the crime be committed on the occasion of a but they are not alleged in the information, they cannot be
conflagration, shipwreck, earthquake, epidemic or other calamity considered against the person. They must be both alleged and
or misfortune. likewise proven during trial, so as not to deprive the accused of right
That the crime be committed with the aid of armed men or to know the nature of the accusation against him.
persons who insure or afford impunity.
That the accused is a recidivist. Generic Aggravating Circumstance
A recidivist is one who, at the time of his trial for one crime, Generic Aggravating Circumstance are those that applies generally
shall have been previously convicted by final judgment of another to all crimes.
crime embraced in the same title of this Code.
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his public position as a means to facilitate the commission of the disrespected the said person as a public authority if he has no
crime. knowledge that he is a public authority.
Example; That the presence of the public authority did not prevent the
W is a woman who drives a jeepney for a living. While she was offender from the commission of the crime.
driving her route, police officer X flagged her down and demanded An offense may be said to have been committed in contempt of
for her to pay a toll in the amount of fifty pesos. However W refused public authority when his presence, made known to the offender,
to give money to X. Thus, X arrested W and brought her to the police has not prevented the latte from committing the criminal act.
station. W was detained in the investigation room. Thereafter, X
entered in the investigation room. While there, X had carnal Example;
knowledge of W. an information for rape was filed with the The barangay chairman was in a restaurant having dinner with his wife
aggravating circumstance of taking advantage of public position. because it was there wedding anniversary. Suddenly here comes A, B
and C who are constituents of the barangay chairman. Upon seeing the
How do we appreciate the aggravating circumstance of taking chairman, they greeted him and even congratulated him and his wife
advantage of public position in this case? upon learning that they were celebrating their wedding anniversary.
Taking advantage of public position should be appreciated as a They seated next to the table of the chairman and ordered food. In the
qualifying circumstance in this case. Article 266-B (3) of the Revised giving of the food, there was an argument between A and the waiter.
Penal Code states that Death penalty shall be imposed if the crime of The argument immediately became a heated one. A took the table knife
rape is committed when the victim is under the custody of the police or and stab the waiter. The waiter suffered serious physical injuries.
the military or any law enforcement or penal institution. In this case, the Prosecuted for frustrated homicide.
charge against X should qualified rape. Since death penalty is suspended,
X shall suffer the penalty of Reclusion perpetua. In the prosecution for said crime, is the aggravating circumstance of in
contempt of or with insult to public authority present?
CONTEMPT OF OR WITH INSULT TO THE PUBLIC AUTHORITIES. NO. The first element is absent. The first element is that the public
This is based on the greater perversity of the offender, as shown by officer or public authority is engaged in the exercise of his function.
his lack of respect for the public authorities. At the time of the commission of the crime, yes he was there but he
was in a private act. He was not engaged in the exercise of his
Elements: function, hence it cannot be said that the said offender insulted the
That the public officer or public authority is engaged in the exercise said public authority.
of his function;
That the public authority is not the person against whom the crime Example;
is committed; The public authority was the city mayor who was inside his office.
That the offender knows him to be a public authority; Suddenly he heard commotion on the ground floor. He looked out
That the presence of the public authority did not prevent the his window, he saw his two supporters having an argument. A and B
offender from the commission of the crime. were having an argument over a parking space. The mayor went
down the building and talked to both A and B. He told them to shake
That the public officer or public authority is engaged in the exercise hands and forget everything. Then he told A to just allow B to park
of his function. his car anyway there was another parking space available. This
Public authority refers to Justice of the peace, persons in authority, angered A because he thought that the mayor was siding with B. A
or any person directly vested with jurisdiction whether an individual took out his balisong and stabbed the mayor.
or some members of court or governmental commissioner. It is
necessary that he has the duty to govern and execute the laws. Is the aggravating circumstance of in contempt of or with insult to
public authority present?
Example; YES. It is present but it is not an aggravating circumstance but an
Mayors, barangay chairman police officer is merely an agent of a element of the crime because the crime committed is direct assault.
person in authority. It is direct assault because the public authority at the time of the
attack was engaged in the performance of his functions. Since the
Agents of public authority are not included. Police officers are agents crime committed was against the public authority himself, the fact
of public authority. that it was committed in contempt of or with insult to the said public
authority is an ingredient of the crime.
That the public authority is not the person against whom the crime
is committed. Example;
If the offender is the person against whom the crime is committed, such hat if in the same problem instead of stabbing the said mayor, A felt
fact that the crime was committed in contempt of the public authority is insulted with the mayor’s words that he is giving the parking space
an element because the crime committed would be direct assault. In to B so this angered A. A stabbed B. B died.
direct assault, in contempt of or with insult to public authority is an
element, no longer an aggravating circumstance. Is the aggravating circumstance of in contempt of or with insult to
public authority present?
That the offender knows him to be a public authority. YES. The mayor’s act of pacifying A and B was engaged in his official
There must be knowledge on the part of the offender that the said functions. He was not the person against whom the crime was
person is a public authority. Otherwise, it cannot be said that he committed. A was a supporter, therefore he knew mayor was a person
in authority. Yet, the presence of the mayor did not prevent A
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from committing the crime against B. Hence, the second aggravating offended party was inside his dwelling at the time of the commission
circumstance is present. of the crime and he has not given any provocation.
DISRESPECT OF RANK, AGE OR SEX, OR DWELLING OF THE If the crime is committed inside the dwelling of the offended party, it
OFFENDED PARTY, IF THE LATTER HAS NOT GIVEN PROVOCATION. is as an aggravating circumstance because it shows the greater
perversity of the offender than when the crime is committed in any
There are four aggravating circumstances under this paragraph; other place.
Disregard of rank;
Disregard of age; The constitution itself provides that a man’s abode must be respected
Disregard of sex; and therefore when a crime is committed inside the house dwelling it
Crimes committed in dwelling of the offended party; shows the greater criminality on the part of the offender.
These four aggravating circumstances can be appreciated singly or Even if a crime is committed inside dwelling, it cannot be considered
collectively if present in the commission of the crime. There must be as aggravating if the following circumstances are present;
deliberate intent on the part of the offender to disrespect the offended has given provocation;
offended party on account of the latter’s age, sex, or rank. If the offender and the offended party are living in the same
dwelling;
Disregard of rank, disregard of age and disregard of sex can only be Dwelling is inherent in the commission of the crime.
considered in crimes against persons and crimes against chastity.
You do not consider these in crimes against property; you do not Example;
consider these in crimes against public interest. They can only be X and Y are roommates in a rented apartment. One night, when X
considered in crimes against persons and crimes against chastity. was studying for his exam, Y arrived from work. Y was so tired, he
went directly straight to bed and turned off the lights. However, X
Disregard of rank turned on the lights and told Y that he was still studying. On the
Rank refers to a high social standing, a high position in the society. For other hand, Y turned off the lights because he can’t sleep with the
this to be considered as an aggravating circumstance, it is necessary that lights. X turned off the lights, and Y turned it on again. An altercation
the offender be of lower rank than that of the offended party. ensued between X and Y. Suddenly, X stabbed Y with a ballpen in the
eye. Y was blinded. X was charged with serious physical injury.
Example;
A student attacking a professor. There was a disregard of rank of the May the aggravating circumstance of dwelling be appreciated in
said professor. An employee attacking his employer. There was a this case?
disregard of rank of the said employer. NO. One of the exceptions for dwelling to be appreciated is that
when the offender and the offended party are both living together in
Disregard of age the same dwelling. In this case, X and Y are roommates. They are
Age here refers to both minority and senority. living in the same dwelling together. Thus, the aggravating
circumstance of dwelling cannot be appreciated.
Example;
The offended party is 95 years old. A killed him by hitting his head Example;
for 25 times with a lead pipe. Obviously, there was disregard of his X and Y were fighting in the streets. In the course of their fight, X
age. Considering his age, whereas even one hit of the lead pipe lost. Thereafter, X went home and left the gate and door open.
could have already killed the said old man but he was hit 25 times Sometime later, X saw Y walking in the street in front of his home. X
showing disregard of the age of the old man. told Y “kung matapang ka, pumasok ka dito”. Y entered the house of
X. Without any warning, Y stabbed X multiple times. Y was charged
Example; with the information of homicide.
A child is 4 years old. He was stabbed 25 times, thereafter his body
was placed inside a dram filled with water and then the dram was Whether or not the aggravating circumstance of dwelling should
covered. There was disregard of age. The victim was a minor and be appreciated?
therefore any attack, just 1 stab, could have killed the minor. But he NO. In order for dwelling to be appreciated, there must be no
was stabbed 25 times; not only that, he was also submerged and the provocation on the part of the owner of the house who is also the
drum was covered, which shows disrespect of age. offended party. In this case, were it not for X taunting Y to come into
*If there was disrespect of age and there was also treachery, the his house if Y is brave, Y would not have had the opportunity to stab
aggravating circumstance to be considered is treachery because it X.
absorbs disrespect of age.
*Dwelling includes the dependencies, the staircase and the
Disrespect of sex enclosures therein.
Disrespect of sex refers to the female sex. This is inherent in the
crime of rape and in certain crimes involving chastity. *The dwelling need not be owned by the offended party. It suffices
that the offended party uses it for rest and comfort. E.g., a room
Crimes committed in dwelling of the offended party being rented by the lessee or a tenant; room where a person is living
Dwelling is considered as aggravating circumstance if the crime is as a bedspacer.
committed inside the dwelling of the offended party, that is, the
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biscuits. However A suddenly, brought out his knife and stabbed X employees had already left, so the farmers were there still having
and thereafter robbed him. their rally. They set tents and prepared to sleep there. In the course
thereof, 2 farmers argued at each other. In the course of their
Is the aggravating circumstance obvious ungratefulness present? argument one farmer jumped into the fence and went inside the
YES. Instead of showing gratitude for having been allowed to enter DAR. The second farmer followed him and when the second farmer
the house and given a glass of water with biscuits, he instead took was able to catch up with the first farmer, he killed the latter.
advantage of the goodness of the man and committed the crime of
killing and robbery. There was obvious ungratefulness on the part of Is the aggravating circumstance that the crime was committed in a
the offender. place where the Public Authorities are engaged in the discharge of
their duties present?
THE PALACE OF THE CHIEF EXECUTIVE, OR IN HIS PRESENCE, OR NO. Although DAR is a place where the Public Authorities are
WHERE PUBLIC AUTHORITIES ARE ENGAGED IN THE DISCHARGE OF engaged in the discharge of their duties, at the time of the
THEIR DUTIES OR IN A PLACE DEDICATED TO RELIGIOUS WORSHIP. commission of the crime, the officials and employees are not in the
If the crime is committed in any of these places it is considered as an actual performance of their duties. Under this aggravating
aggravating circumstance because it shows on the part of the circumstance, it is not only necessary that the said places are where
offender lack of respect on these places. public authorities are engaged in the discharge of their duties, it is
also necessary that at the time of the commission of the crime, the
There are four aggravating circumstances in this case; public authorities are actually engaged in the performance of their
In the Palace of the chief executive; duties.
In the presence of the chief executive;
Public authorities engaged in the discharge of their duties; In a place dedicated to religious worship
Place dedicated to religious worship; Even if there is no religious ceremony on going, for as long as the
said crime is committed in said place dedicated to religious worship
In order however for these aggravating circumstances to be it is aggravating because of lack of respect on said place.
considered, it is necessary that the offender deliberately sought the
said place to commit the crime because otherwise it cannot be said Example;
that he disrespected the place. X was in a church praying to kill Y. X saw Y at the back of the church.
X went out of the church. X entered the church in the back door and
In the Palace of the Chief Executive suddenly, he stabbed Y. Y died. X was charged with homicide.
This aggravating circumstance may be committed regardless of
whether there is a public affair or official affair going on, if a crime is Is the aggravating circumstance of place of religious worship
committed it is aggravating. present?
YES. In order for the aggravating circumstance of religious worship
Example: to be appreciated, the offender must especially sought the place to
A and B are chefs in Malacanang. They are outdoing each other in facilitate the commission of the crime. In this case, when X saw Y, he
trying to prepare the best meal for P-noy. One time, both of them went out of the church and entered in the back so that he could stab
were preparing lunch for the president. Suddenly they had an Y. X deliberately sought the place of religious worship to facilitate
argument. In the course thereof, A stabbed B. B suffered a fatal the commission of the crime.
wound but he survived. Prosecuted for frustrated homicide.
NIGHTTIME, UNINHABITED PLACE, OR BY A BAND
Is the aggravating circumstance that the crime was committed in There are three aggravating circumstances in this case;
the palace of the Chief Executive present? Nighttime;
NO. Because he works there, he lives there. It cannot be said that he Uninhabited place;
sought the said place in order to commit the crime. It cannot be said Band;
that he went to said place in order to commit the crime or can it be
said that he disrespected the said place. Nighttime
Nighttime is from sunset to sunrise. In order for these aggravating
In the presence of the Chief Executive circumstances to be considered, it is necessary that the offender
Even if the Chief Executive is not engaged in his official duty, still it is deliberately sought the darkness of the night either to facilitate the
considered as aggravating because of the lack of respect to the chief commission of the crime or to insure or afford impunity.
executive.
Elelements;
Where the Public Authorities are engaged in the discharge of their The following are the elements of Nighttime;
duties The darkness or silence of the night was especially sought by
It is not only necessary that the said places are where public authorities the offender;
are engaged in the discharge of their duties, it is also necessary that at That night time was taken advantage of by the offender to
the time of the commission of the crime, the public authorities are facilitate the commission of the crime;
actually engaged in the performance of their duties. The purpose is to insure his immunity from capture;
Example; Even if the offender sought nighttime, the moment the scene of the
Many farmers were having a rally outside the DAR. They started the rally crime has been illuminated by any light, rule out nighttime as an
around 6am, it is now 8pm, they were still there. The officials and aggravating circumstance.
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Example; imprescriptible. There is no time limit between the first crime for
An earthquake occurred. All of the persons in the community panicked which he has been convicted by final judgment and the second
and went outside their house. Upon Seeing this, X saw an opportunity to crime for which he is also convicted.
commit theft and take the belongings of other person who are out of
their house. However, X was apprehended and charged for the crime of Example;
theft with the aggravating circumstance that the crime was committed X was a convicted murder. While serving his sentence, he was
on the occasion of an earthquake. granted an absolute pardon by President Duterte. X was released
from prison. After a few weeks, X was engaged in a fight and killed Y.
How do we appreciate the aggravating circumstance of X was convicted with homicide with the aggravating circumstance of
earthquake in relation to the crime of theft? recidivism.
The aggravating circumstance of earthquake should be considered
as a qualifying circumstance. Article 310 of the RPC states that when Is the aggravating circumstance of recidivism present in this case?
theft was committed on the occasion of an earthquake, the crime YES. The fact that X was granted with pardon does not erase the
committed is qualified theft. In this case, since X committed the effects of the prior conviction of murder.
crime of theft in the occasion of an earthquake, he is liable for
qualified theft. Example;
X was a military man. He was convicted of conspiracy to commit
AID OF ARMED MEN rebellion. While he was serving his sentence, an amnesty
Aid of armed men means that the armed men aided the offender in the proclamation was executed by the president for all those who
commission of the crime. The aid given by the armed men maybe a conspired to commit rebellion. X applied for amnesty and was
direct or indirect participation in the commission of the crime. granted. X was able to get out of prison. Sometime later, X joined
some military men and participated in their coup d’état. X, long with
The armed men who gives aid to the offender are merely accomplices the other military men, were apprehended and convicted.
because they may give material or moral aid to the offender.
Is the aggravating circumstance of recidivism present in this case?
Armed men v. By a band NO. Amnesty erases the effects of the crime as if no crime happened
BY A BAND AID OF ARMED MEN and no crime was committed by the accused. It totally obliterates
There must be at least 4 armed There is no requisite as to the and erase the former conviction. In this case, since X was granted
malefactors; number of armed men; amnesty in the conspiracy to commit to commit rebellion, recidivism
The armed men may have was not present.
Must have acted together in
direct or indirect participation. REITERACION OR HABITUALITY
the actual commission of the
They are mere accomplices of The offender has been previously punished for an offense to which
crime; (conspiracy) the law attaches an equal or greater penalty or for two or more
the offender.
crimes to which it attaches a lighter penalty.
RECIDIVISM
The following are the elements of reiteracion;
A recidivist is one whom at the time of his trial for one crime, shall
have previously been convicted by final judgment of another crime That the accused is on trial for an offense;
embraced in the same title of this Code. That he previously served sentence for another crime to which
the law attaches an equal or greater penalty or for two or
The following are the elements of recidivism; more crimes to which it attaches a lighter penalty;
The offender is on trial for an offense; That he is also convicted of the new offense.
He was previously convicted by final judgment of another
crime; The first situation is that, he has already served out the sentence, he
has already been punished for a crime.
Both the first and second offenses are embraced in the same
title of the code;
Under the second element there are two situations;
That the offender is convicted of the second offense charged.
If it is only one crime it is necessary that the said crime must carry a
penalty equal to or greater than the second crime;
Example:
If there are two crimes for which he had been previously
A has been convicted of the crime of attempted homicide. The judge
punished, it is necessary that they carry a lighter penalties
found him guilty beyond reasonable doubt, therefore, he was than the new crime for which he is convicted.
convicted. The judgment became final and executory, therefore he
was behind bars. He served out his sentence. Once out of prison cell,
There are four forms of habituality;
he lived a good life. However, after 25 years, he engaged in a fight
Recidivism; (Article 14, par. 9)
and killed the other man. By reasonable doubt he was charged with
Riteracion; (Article 14, par. 10)
and convicted of the crime of murder.
Habitual Delinquency; (Article 62, no. 5)
Quasi-recidivism; (Article 160)
Can the judge consider recidivism as an aggravating circumstance
in imposing the penalty for murder?
YES. Both homicide and murder are embraced in the same title of
the code. The fact that 25 years had lapsed from the time of the first
crime to the second crime is immaterial because recidivism is
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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Recidivism v. Reiteracion NO. Slight physical injuries which carries with it the penalty of
RECIDIVISM REITERACION arresto menor is lighter than malicious mischief which carries with it
Requires conviction by final the penalty of arresto mayor. Therefore the judge cannot consider
Requires service of sentence; reiteracion as an aggravating circumstance. He was convicted of
judgment; malicious mischief and placed behind bars.
May be felonies or offenses
Crimes must be felonies;
punishable by special law; Example;
Offenses are under the same Offenses may or may not be in In the same problem, after service of sentence, A is now out of
title of the RPC; the same title of the RPC; prison. Once out of prison, he was still mad at B. Therefore he made
sworn affidavits stating false statements against B. B filed a case of
Example: perjury against A. he is now on trial for the crime of perjury. The
A has been convicted of the crime of homicide. Convicted by final judge found him guilty beyond reasonable doubt.
judgment, he was placed behind bars. He served out his sentence.
Once out of prison, he committed forcible abduction. Homicide is Can the judge consider reiteracion as an aggravating
punished by reclusion temporal. Forcible abduction is now on trial. circumstance?
The penalty prescribed by law for forcible abduction is also reclusion YES. The first two crimes, the penalties of which were already served
temporal. The judge found him guilty for forcible abduction. out, carry lighter penalties than the third crime: slight physical
injuries, arresto menor; malicious mischief arresto mayor. Therefore
Can the judge consider reiteracion as an aggravating circumstance reiteracion can be considered.
in imposing the penalty for forcible abduction?
YES. The penalty for the crime of homicide where he has already Example;
served out his sentence is equal to the penalty for forcible X was convicted of homicide with the privilege mitigating
abduction, both reclusion temporal. Therefore, reiteracion or circumstance of incomplete self-defense. The judge imposed upon
habituality can be considered. him the penalty of Prision coreccional (6 years). X applied for
probation and it was granted. While under probation, X forcibly
Example; abducted his neighbor. As a result, an information for forcible
B committed forcible abduction. He was convicted by final judgment. abduction was charged against X with the aggravating circumstance
He served out his sentence. He is now out of prison. Once out of of reiteracion.
prison, he committed falsification of public document. He is on trial
for the said falsification of public document. The judge found him is the aggravating circumstance of reiteracion present in this case?
guilty beyond reasonable doubt. NO. In order for reiteracion to be appreciated as an aggravating
circumstance, the offender must have previously served his
In imposing the penalty for falsification of public document, can sentence. By applying probation, the accused admitted to the
judge consider reiteracion as an aggravating circumstance? commission of the crime, however, he avoided serving sentence.
YES. The penalty for forcible abduction is reclusion temporal, which The Supreme Court held that probation is not the same as serving
is higher than the penalty for falsification of public document once sentence. In this case, there was no reiteracion.
committed by a private individual which is only prision correccional.
Therefore, reiteracion or habituality should be considered by the IN CONSIDERATION OF A PRICE, REWARD, OR PROMISE.
court in imposing the penalty for falsification of public document. If the price, reward or promise, as a circumstance is present in the
killing of a person, it is not considered as a generic aggravating
Example; person but a qualifying aggravating circumstance. It is one of the
B committed falsification of public document. Convicted, served out qualifying circumstances under Art.248.
the sentence. After service of sentence, he is out of prison, he
engaged in a fight and killed his opponent. His now on trial for This aggravating circumstance should be considered both against the
homicide. The judge found him guilty beyond reasonable doubt. person who made the offer and the person who accepted the price,
reward or promise. Therefore, it is to be considered both against the
Can the judge consider reiteracion as an aggravating principal by inducement and the principal by direct participation.
circumstance?
NO. The crime for which he has served out his sentence carries a To be considered against the principal by inducement, it is necessary
penalty lighter than that of the second crime. The law requires that that the price, reward or promise must be the prime reason for the
if it is only one crime, it must carry a penalty equal to or greater than principal by direct participation committed the crime. That without
the second crime he committed. the price, reward or promise, the principal by direct participation
would not have committed the crime.
Example;
A slapped B. B filed a case for slight physical injuries against A. He BY MEANS OF GREAT WASTE AND RUIN
was convicted and served out his sentence for slight physical injuries That the crime be committed by means of inundation, fire, poison,
which is arresto menor. Once out of prison, he was still mad at B. He explosion, stranding of a vessel or international damage thereto,
deliberately caused damage to the property of B. B now filed a case derailment of a locomotive, or by the use of any other artifice
of malicious mischief against A. The judge found him guilty beyond involving great waste and ruin.
reasonable doubt for malicious mischief. The offender makes use of inundation, fire or explosion in order to
commit the crime. It is a means to commit the crime. If these means
Can the judge consider reiteracion as an aggravating
circumstance?
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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Example; This include stockings, bonnet or anything that could be used so that
A slapped B two times in front of the public. B felt so humiliated so one could not be recognized.
he told A “the next time I see you, I will kill you!” B went home and
searched for his gun. He found the same and kept it under his pillow, If despite disguise he is recognized, rule out disguise as an
waiting for the time to kill A. A month has lapsed. B while walking aggravating circumstance, it did not serve its purpose.
saw A. upon seeing A, he immediately run to his house, went to his
bedroom and took the gun under his pillow. He raised back to A and ABUSE OF SUPERIOR STRENGTH
shot him. Abuse of superior strength is intentionally employing excessive force
out of proportion to the means of defense available to the offended
Is the aggravating circumstance of evident premeditation present? party.
YES. First, the time when the offender determined to commit the
crime. That is the time when B told A “the next time I see you, I will The requisites for abuse of superior strength are the following;
kill you!” Second, an overt act manifestly indicating that he has clung That there be a notorious inequality of forces between the
to his determination. He brought a gun. It is an overt act showing offender and the offended party in terms of their age, size
that he has clung to his determination. Third, a sufficient lapse time and strength;
between the determination and execution. A month has passed. That the offender took advantage of this inequality of forces to
That is sufficient for him to cool off, to reflect upon the facilitate the commission of the crime.
consequences of his acts. Therefore, evident premeditation was
present in the commission of the crime. Inequality of forces
Inequality of forces includes the following;
THAT THE CRAFT, FRAUD OR DISGUISE BE EMPLOYED. Offender uses weapon to tak advantage;
There are three aggravating circumstances; Numerical Superiority;
Craft; Difference in physical characteristics such as age strength and
Fraud; size.
Disguise
The mere fact that there was numerical superiority does not
Craft automatically mean that there is abuse of superior strength. Under
Craft means intellectual trickery or cunning resorted to by the the second element, evidence must show that the offender
accused deliberately took advantage of their strength to facilitate the
commission of the crime.
Example;
The accused knocked at the door. He knows that only the maid was TRERACHERY
at home. He told the maid that he was a relative of the owners of There is treachery or alevosia when the offender commits any of the
the house who came from the province. He was allowed to enter the crimes against the person, employing means, methods, or forms in
house, thereafter he committed a crime of robbery. There was the execution thereof which tend directly and specially to insure its
cunning or intellectual trickery resorted to by the accused for he execution, without risk to himself arising from the defense which the
tricked the maid to consummate the crime of robbery. offended party might make.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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The essence of treachery is the suddenness and unexpectedness of The Offender Adopted Particular Means
the act to unexpecting and unarmed victim who has not even the The offender must have deliberately adopted the particular means,
slightest provocation. The victim must be totally without defense. method or form of attack employed by him.
If the victim was able to put out any defense, no matter how minor, Example;
treachery is not present. A prisoner arrived at the police station. Upon removal of his
handcuffs, he immediately grab the pistol of the arresting officer.
Example; Thereafter he went out pointing the said gun. Upon seeing a woman
A was about to stab B but he was able to parry the blow, that is who was getting inside the PNP station, he shot the woman.
already a defense on his part. He was able to run away, that is
already considered as a defense. Treachery is no longer present. It is The woman died. Is the aggravating circumstance of treachery
necessary that the offended party or the victim must be totally present?
without defense. NO. It is a mere chance encounter. The first element is wanting.
There is no showing the offender deliberately adopted the particular
Q: What if the attack is a frontal attack? means, method or form of attack employed by him in killing the
Even if it is a frontal attack, if it is so sudden, unexpected, such that woman.
the offended party would not be aware of it and was not able to put
up any defense, there is still treachery. People v. Vilbar (G.R. No. 186541, February 1, 2012)
Guilbert Patricia and his wife Maria Liza owns a sari-sari store. One
Example; night, when Guilbert arrived home from work, he saw the accused
A and B were walking towards each other. When near enough, B who was drunk, urinating in one of the table in their store. Guilbert
suddenly stabbed A. It was a frontal attack yet obviously there was reprimanded the accused, but the accused merely ignored Guilbert.
treachery. A was totally defenseless and B deliberately and Suddenly, the accused approached Guilbert, drew out a knife, and
consciously adopted the means in the commission of the crime. stabbed him repeatedly. The accused was charged with murder
qualified by treachery.
People v. Matibag (G.R. No. 206381, March 15, 2015)
Deceased Duhan was walking along the road when the accused Q: Was treachery present as an aggravating circumstance?
Matibag confronted him and asked “ano bang pinagsasabi mo?”, NO. The Supreme Court held that the prosecution in the instant case
Duhan replied “wala”. Matibag thereafter hit Duahan and pulled out merely showed that accused-appellant attacked Guilbert suddenly
a gun and shot him. Matibag was charged with the murder qualified and unexpectedly, but failed to prove that accused-appellant
by treachery. consciously adopted such mode of attack to facilitate the
perpetration of the killing without risk to himself.
Is the aggravating circumstance of treachery present in this case?
YES. The essence of treachery is the sudden and unexpected attack. A Treachery must be present at the commencement of the attack For
frontal attack does not necessarily rule out treachery. The qualifying treachery to arise it is necessary that he must be present at the
circumstance may still be appreciated if the attack was so sudden and so commencement of the attack in order to know whether the
unexpected that the deceased had no time to prepare for his or her offended party was totally defenseless.
defense. In this case, Although the attack was frontal, the sudden and
unexpected manner by which it was made rendered it impossible for People v. Bokingco (G.R. No. 187536, August 10, 2011)
Duhan to defend himself, adding too that he was unarmed. The witness saw the deceased Pasion enter the room of Bokingco.
The witness peeped through the window of Bokingco who was seen
When Victim is a Minor hitting something in the floor. Bokingco was charged with murder
Whenever the offended party is a minor, there is always treachery qualified by treachery.
because the minor is always defenseless.
Q: Is the aggravating circumstance of treachery present?
Example; NO. For treachery to be appreciated, the prosecution must prove
Victim is 17 years of age, but a big, macho man, full of muscles. that at the time of the attack, the victim was not in a position to
defend himself, and that the offender consciously adopted the
Q: Is there treachery? particular means, method or form of attack employed by
The Supreme Court held that whenever the offended party is a him.Nobody witnessed the commencement and the manner of the
minor, there is always treachery. attack. While the witness Vitalicio managed to see Bokingco hitting
something on the floor, he failed to see the victim at that time.
Minority Appreciated in Treachery
Minority here does not refer to the statutory definition of minority, People v. Tabarnero (G.R. No. 68169, February 24, 2010)
that is, being below 18 years of age. Minority here is with reference The witness Emerito testified that he saw the deceased Ernesto bing
to the sense of helplessness of the victim. So it is necessary that the held by two persons whil accused Gary and Alberto Tabarnero were
victim is helpless. stabbing the deceased. The witness did not see how the attack
commenced but only that he was attacked by both the accused
Example; while his hands were held by another person.
If the victim is 17 years old with a masculine physique and was able
to put up a defense, there is no treachery. But if the victim is 6 years
old, then there is treachery.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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that is to a window. Thus, the fact that a crime was committed after Example;
an unlawful entry is not an aggravating circumstance. A person was found dead with several wounds all over his body. The
fact that there was 25-50 wounds cannot immediately mean that
Example; there was cruelty in the commission of the crime. It is necessary to
A was passing by the house of B. Suddenly he saw through the window, determine, whether first, he was still alive at the time the physical
two cellphones being charged. Interested on the cellphones, he broke pain was inflicted; second, did the offender enjoy and delight in
the window entered his hand and took the cellphones. seeing his victim suffer gradually by the infliction of the physical
pain. If there were defense wounds, cruelty cannot be appreciated.
Is the aggravating circumstance that as a means to the
commission of the crime the window was broken present? Ignominy vs. Cruelty
YES. The crime committed is theft only and not robbery because the IGNOMINY CRUELTY
offender did not enter the house. In the case of People v. Jaranilla The victim suffered moral pain; The victim suffered physical
(G.R. No. L-28547 February 22, 1974) One essential requisite of pain or physical suffering;
robbery with force upon things is that the malefactor should enter The victim may either be alive It is necessary that the victim is
the building or dependency, where the object to be taken is found. If or dead; alive;
the culprit did not enter the building, there would be no robbery
with force upon things. The crime committed is only theft. In this USE OF AN UNLICENSED FIREARM
case, the offender only broke the window, entered his hand and
Under section 1 of P.D. 1866 as amended by. R.A. 8294, If homicide
took the cellphones. Therefore the crime committed is theft. In
or murder is committed with the use of an unlicensed firearm, such
theft, the fact that a window was broken is not inherent it is an
use of an unlicensed firearm shall be considered as an aggravating
aggravating circumstance. circumstance.
AID OF PERSONS UNDER 15 YEARS Special Aggravating Circumstance
If the crime committed makes use of minors under 15 years of age, it In the case of People v. Palaganas (G.R. No. 165483, September 12,
shows the greater perversity of the offender because he knows that 2006) The Supreme Court held that the passage of Republic Act. No.
minors cannot be arrested. Persons below 15 years of age cannot be 8294 on 6 June 1997, the use of an unlicensed firearm in murder or
prosecuted, it is among the exempting circumstances. Therefore, it homicide is now considered as a SPECIAL aggravating circumstance
shows greater perversity. and not a generic aggravating circumstance.
BY MEANS OF MOTOR VEHICLE
Thus, if the use of unlicensed firearm is inherent in the crime
If the crime is committed with the use of motor vehicle in killing a committed, it shall not constitute as another offense but will be
person, it is a qualifying aggravating circumstance under article 248. If considered as a special aggravating circumstance.
the motor vehicle is used in the commission of any other crime, it is
mere generic aggravating circumstance. Example;
A killed B by means of an unlicensed firearm. B died and A was
Example;
arrested. The firearm was recovered. Two cases were filed against A;
X was walking along the road. Suddenly two men riding in tandem in murder or homicide as the case maybe and illegal possession of
a motorcycle snatched the handbag of X. X was able to identify the unlicensed firearm under PD. 1866 as amended by RA 8294.
plate number of the motorcycle and reported the matter to the
police. The police made an investigation which resulted to the arrest Q: Are the charges correct?
of the two men.
NO. Under section 1 of PD. 1866 as amended by RA 8294 if homicide
or murder is committed with the use of an unlicensed firearm, such
Q: Is the use of motor vehicle an aggravating circumstance?
use of unlicensed firearm shall be considered as an aggravating
YES. The two men used the motor vehicle to snatch the handbag of circumstance. Therefore, there shall only be one charge of murder
X. Thereafter, the two men utilized the motor vehicle to facilitate or homicide as the case maybe. The use of the unlicensed firearm
their escape. Thus, the aggravating circumstance of use of motor shall be alleged in the information as an aggravating circumstance.
vehicle is present because it facilitated the commission of the crime.
Example;
CRUELTY
A father and son had an argument. The son shot his father with an
Cruelty is the additional physical pain aside from the material injury
unlicensed firearm. The father died. Two cases were filed against the
which is not necessary to the commission of the crime.
son: parricide and illegal possession of unlicensed firearm. The fiscal
opined that under section 1 of PD. 1866 as amended by RA 8294 if
The following are the elements of cruelty;
homicide or murder is committed with the use of an unlicensed
That at the time of the infliction of the physical pain, the firearm, such use of unlicensed firearm shall be considered as an
offended party is still alive;
aggravating circumstance. It did not provide for parricide, therefore
That the offender enjoys and delights in seeing his victim suffer two cases should be filed.
gradually by the infliction of the physical pain;
Q: Is the fiscal correct?
The victim must be alive because a corpse cannot feel pain.
NO. SC has already ruled, that the words homicide and murder in the
said law is used in its generic sense. Therefore it includes all kinds of
killing where the penalty prescribed by law is the same as murder
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 51
which is reclusion perpetua to death. The penalty prescribed by law The intoxication of the offender shall be taken into
is reclusion perpetua to death. consideration as a mitigating circumstances when the offender has
committed a felony in a state of intoxication, if the same is not
Example; habitual or subsequent to the plan to commit said felony but when
X wanted to carnap the vehicle of Y. In doing so, X approached Y and the intoxication is habitual or intentional, it shall be considered as
intimidated him with an unlicensed firearm. X told Y to surrender his an aggravating circumstance.
vehicle otherwise he will be killed. Y, being terrified for his life,
surrendered the keys to his vehicle. X drove away. Thereafter, Y ALTERNATIVE CIRCUMSTANCE
reported the incident to the police. An investigation ensued which Alternative circumstances are those circumstances which can either
lead to the arrest of X. X was charged with the information of be aggravating or mitigating, depending on their effect in
carnapping and use of an unlicensed firearm. commission of the crime.
Art. 15. Their concept. — Alternative circumstances are Relationship is inherent in the crime of parricide.
those which must be taken into consideration as aggravating or
mitigating according to the nature and effects of the crime and the INTOXICATION
other conditions attending its commission. They are the There is intoxication when the offender has taken such amount of
relationship, intoxication and the degree of instruction and liquor of sufficient quantity as to affect his mental capacity to
education of the offender. determine the consequences of his act.
The alternative circumstance of relationship shall be
taken into consideration when the offended party in the spouse, Intoxication as mitigating
ascendant, descendant, legitimate, natural, or adopted brother or Intoxication is considered as a mitigating circumstance if it is not
sister, or relative by affinity in the same degrees of the offender. habitual or subsequent to the plan to commit the felony
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As Aggravating Circumstance Art. 16. Who are criminally liable. — The following are
A high degree of education is considered as an aggravating criminally liable for grave and less grave felonies:
circumstance if the offended makes use of his high degree of Principals.
education in facilitating the commission of the crime. Accomplices.
Accessories.
Example;
A lawyer committing estafa by falsifying a deed of absolute sale. The The following are criminally liable for light felonies:
lawyer makes use of his high degree of education in order to commit Principals
the crime. Accomplices
However, in a case where a lawyer kills another person in the course --xXx--
of an argument, his high degree of education has nothing to do with
the commission of the crime. Therefore in this case, it cannot be Art. 17. Principals. — The following are considered principals:
considered as an aggravating circumstance. Those who take a direct part in the execution of the act;
Those who directly force or induce others to commit it;
ABSOLUTORY CAUSES
Those who cooperate in the commission of the offense by
Absolutory Causes are those circumstance which have the effect in another act without which it would not have been
Article 12. Absolutory causes exempts a person from criminal accomplished.
liability but not from civil liability.
Kinds
Examples; There are three kinds of Principals;
Mistake of fact; Principal by direct participation;
Instigation; Principal by inducement;
Accessories in Light felonies; Principal by direct participation;
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of treason, parricide, murder, or an attempt to take the life of the of arson. W executed the acts of execution of arson in burning the
Chief Executive, or is known to be habitually guilty of some other; house of Y with the body of Y inside.
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as an accessory because estafa or swindling is not among the crimes the incident to the police. Upon investigation, the police
rd apprehended X, the mother, and the jewelry store owner.
mentioned in the second part of the 3 act.
Q: Are both A and B liable for murder? Q: What is the liability of the Jewelry store owner?
NO. The Supreme Court said that only B is liable, not for murder but The Jewelry store owner is liable as a fence. The jewelry store
only for homicide. When A arrived, the housemaid was already owner, knowing that the said jewels were sold to him at an
dead. extremely low price, should have known that the same were
proceeds of the crime of robbery or theft.
Q: Does A have no criminal liability?
A is considered as an accessory. Her act of trying to place the If you were the fiscal, what case would you prefer to file against
deceased body inside the trunk of the car in order to prevent the the jewelry store owner? a fence or an accessory?
discovery of the crime her act constitutes that of an accessory. But You can only file either of the two. It’s better to file fencing.
she falls under Article 20 since she is related to the offender. Because it is easier to prove. While in accessory, he must first know
that the crime has been committed. In fencing, it is not necessary
FENCING that he knows.
Under P.D. 1612, a fence includes any person, firm, association
corporation or partnership or other organization who/which Section 5 of PD 1612 provided a prima facie presumption of fencing.
commits the act of fencing. The burden of evidence is shifted on the accused
“Fencing" is the act of any person who, with intent to gain for --xXx--
himself or for another, shall buy, receive, possess, keep, acquire,
conceal, sell or dispose of, or shall buy and sell, or in any other Art. 20. Accessories who are exempt from criminal
manner deal in any article, item, object or anything of value which liability. — The penalties prescribed for accessories shall not be
he knows, or should be known to him, to have been derived from imposed upon those who are such with respect to their spouses,
the proceeds of the crime of robbery or theft. ascendants, descendants, legitimate, natural, and adopted
brothers and sisters, or relatives by affinity within the same
Elements degrees, with the single exception of accessories falling within the
In the case of Dimat v. People (G.R. No. 181184, January 25, 2012) provisions of paragraph 1 of the next preceding article.
The Supreme Court held the following as elements of fencing;
A robbery or theft has been committed; An accessory is exempted from criminal liability in the following
The accused, who took no part in the robbery or theft, buys, instances;
receives, possesses, keeps, acquires, conceals, sells or When the crime committed is a light felony;
disposes, or buys and sells, or in any manner deals in any When the said accessory is the spouses, ascendants, descendants,
article or object taken during that robbery or theft; legitimate, natural, and adopted brothers and sisters, or
The accused knows or should have known that the thing relatives by affinity within the same degrees;
derived from that crime; and
He intends by the deal he makes to gain for himself or for --xXx--
another.
Example;
X was a house helper. One night, when the master was not home, X
went to the room of his master and took the jewelries worth 500k and
cash worth 1M from the cabinet. X went to his mother and told her that
she stole the jewelries and cash from the master. The mother deposited
the cash to a bank. The mother sold the jewelries to a jewelry store in a
discounted amount of 100k. When the master came home, he found the
jewelries and cash missing. The master reported
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawe r/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 56
Light penalties:
CRIMINAL LAW REVIEW Arresto menor,
BY: ATTY. VICTORIA GARCIA Public censure.
PART II Penalties common to the three preceding classes:
PENALTIES Fine, and
Bond to keep the peace.
Transcribed by:
ACCESSORY PENALTIES
Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne
Perpetual or temporary absolute disqualification,
Rose De Guia, Ma. Althea Raypon, J-ann Javillonar &
Perpetual or temporary special disqualification,
Maria Maica Angelika Roman. Suspension from public office, the right to vote and be
voted for, the profession or calling.
Updated by: Civil interdiction,
Anonymous Lawyer Indemnification,
(https://www.facebook.com/Anonymouslawer/) Forfeiture or confiscation of instruments and proceeds of
the offense,
Payment of costs.
PENALTIES --xXx--
Penalties refers to punishment, imposed by lawful authority upon a
person who has committed an intentional felony or a culpable felony CAPITAL PUNISHMENT
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 57
the application of two indivisible penalties under Article 63 of the CORRECTIONAL PENALTIES
Revised Penal Code will be meaningless and there would be no
statutory rules for determining when either reclusion perpetua or PRISION CORRECCIONAL AND DESTIERRO
death should be the imposable penalty Under Article 27 of the Revised Penal Code, the duration of the
penalties of prision correccional shall be from six (6) months and one
If reclusion perpetua is an indivisible penalty, then what is the (1) day to six (6) years.
reason for fixing the duration of reclusion perpetua?
In the same case as mentioned above, the Supreme Court held that DESTIERRO
the duration of thirty (30) years for reclusion perpetua is necessary Under Article 87 of the Revised Penal Code, any person sentenced to
to serve as the basis for determining the convict's eligibility for destierro shall not be permitted to enter the place or places
pardon or for the application of the three-fold rule in the service of designated in the sentence, nor within the radius therein specified,
multiple penalties. which shall be not more than 250 and not less than 25 kilometers
from the place designated.
RECLUSION TEMPORAL
Under Article 27 of the Revised Penal Code, the duration of reclusion Destierro is a principal penalty and has a duration of six (6) months
temporal is 12 years and 1 day to 20 years. and one (1) day to six(6) years under Article 27 of the Revised Penal
Code,
PRISION MAYOR
Under Article 27 of the Revised Penal Code, the duration of Prision SUSPENSION
mayor shall be from six (6) year and one day to twelve (12) years. Suspension may either be a principal penalty or an accessory penalty.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 58
court in the judgment, or otherwise to deposit such amount in the Such proceeds and instruments or tools shall be confiscated and
office of the clerk of the court to guarantee said undertaking. forfeited in favor of the Government, unless they be property of a
third person not liable for the offense, but those articles which are
Bond to keep the peace is a principal penalty. not subject of lawful commerce shall be destroyed.
Under Article 284 of the Revised Penal Code, in cases of grave Cost Includes
threats and light threats, the person making the threats may also be Under Article 7 of the Revised Penal Code, costs shall include fees
required to give bail not to molest the person threatened, or if he and indemnities in the course of the judicial proceedings, whether
shall fail to give such bail, he shall be sentenced to destierro. they be fixed or unalterable amounts previously determined by law
or regulations in force, or amounts not subject to schedule.
Bond to keep the peace v. Bond for good behavior
BOND TO KEEP THE PEACE BOND FOR GOOD BEHAVIOR Q: Who shall pay the cost?
May be applied to all cases; Applicable only to cases of If an accused is convicted of a crime, cost shall be adjudged against him.
grave threats and light threats; However, in case of acquittal, each party must bear his own lost.
Failure to post a bond to keep If a person fails to post a bond --xXx--
the peace results to for good behavior , he shall be
imprisonment either for six (6) sentenced to destierro; PREVENTIVE IMPRISONMENT
months or thirty (30) days Preventive Imprisonment is the detention of accused while the case
depending on whether the against him is on going trial either because;
felony committed is grave or The crime he committed is a non-bailable offense and evidence
less grave on one hand, or a of guilt is strong; or
light felony on the other; The crime committed is a bailable offense but he does not have
the funds.
--xXx--
Can the period of preventive imprisonment undergone by the
ACCESSORY PENALTIES accused be credited to his final sentence?
YES. As a general rule, Article 29 of the Revised Penal Code states
CIVIL INTERDICTION that offenders who have undergone preventive imprisonment shall
be credited in the service of their sentence consisting of deprivation
Under Article 34 of the Revised penal Code, Civil interdiction shall
deprive the offender during the time of his sentence the following of liberty, with the full time during which they have undergone
rights; preventive imprisonment, if the detention prisoner agrees
Rights of parental authority; voluntarily in writing to abide by the same disciplinary rules imposed
upon convicted prisoners, except in the following cases;
Guardianship, either as to the person or property of any ward;
Marital authority, When they are recidivists or have been convicted previously
twice or more times of any crime; and
The right to manage his property; and
When upon being summoned for the execution of their
The right to dispose of such property by any act or any
sentence they have failed to surrender voluntarily;
conveyance inter vivos.
What is the effect if the detention prisoner does not abide by the
The offender sentenced to civil interdiction ma make a last will and same disciplinary rules imposed upon convicted prisoners?
testament because the prohibition to dispose property extends only
to inter vivos and not to mortis causa. Under Article 29 of the Revised Penal Code, if the detention prisoner
does not agree to abide by the same disciplinary rules imposed upon
convicted prisoners, he shall be credited in the service of his
Donation may also be made by the offender provided that it shall
take effect after death or mortis causa. sentence with four-fifths of the time during which he has undergone
preventive imprisonment.
An accessory penalty
What is the effect if the accused has undergone imprisonment for a
Civil Interdiction is always an accessory penalty in case of the
following principal penalties; period equal to or more than the maximum imprisonment for the
offense charged?
Death;
Reclusion perpetua; Under Article 29 of the Revised Penal Code, whenever an accused
Reclusion temporal; has undergone preventive imprisonment for a period equal to or
more than the possible maximum imprisonment of the offense
FORFEITURE AND CONFISCATION charged to which he may be sentenced and his case is not yet
terminated, he shall be released immediately without prejudice to
Under Article 45 of the Revised penal Code, every penalty imposed the continuation of the trial thereof or the proceeding on appeal, if
for the commission of a felony shall carry with it the forfeiture of the
the same is under review.
proceeds of the crime and the instruments or tools with which it was
committed.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 59
Preventive imprisonment for Destierro Will the pardon of X in the crime of acts lasciviousness against Y
In case the maximum penalty to which the accused may be operate to dismiss the case already instituted?
sentenced is destierro, he shall be released after thirty (30) days of NO. Although the crime committed by Y is a private crime under
preventive imprisonment. Article 344 of the Revised Penal Code, the case will not be dismissed
because it was given after the institution of the criminal prosecution.
Can the period of preventive imprisonment be deducted in case of
destierro? Q: What is the effect of pardon given by X?
YES. Because destierro also involves deprivation of liberty and has a The pardon of X will only serve as to extinguish the civil liability of Y
fixed duration of six (6) months and one (1) day to six (6) years. in the complaint for acts of lasciviousness.
NOTE: If detention has already exceeded the possible maximum Regardless of whether private or public crimes, the pardon given by
imprisonment of the offense charged but his case is not yet the private complainant must be prior to the institution of the
terminated, file a case for Habeas Corpus for the immediate release criminal case.
of the accused.
Marital Rape
--xXx-- Although the general rule is that pardon must be given prior to the
institution of the criminal case, Article 266-C of the Revised Penal
PARDON Code, the subsequent valid marriage between the offended party
There are two kinds of pardon; shall extinguish the criminal action or the penalty imposed.
Pardon by the offended party; (Article 23)
Pardon by the President; (Article 36) Under Article 266-C of the revised penal Code, in case it is the legal
husband who is the offender, the subsequent forgiveness by the
Pardon by the offended party wife as the offended party shall extinguish the criminal action or the
Under Article 23 of the Revised Penal Code, a pardon of the offended penalty: Provided, That the crime shall not be extinguished or the
party does not extinguish criminal action except as provided in Article penalty shall not be abated if the marriage is void ab initio.
344 of this Code; but civil liability with regard to the interest of the
injured party is extinguished by his express waiver. Pardon by the President
Under Article 36 of the Revised Penal Code, a pardon shall not work
Example; the restoration of the right to hold public office, or the right of
X killed Y. The relatives of Y filed a complaint for homicide against X. suffrage, unless such rights be expressly restored by the terms of the
thereafter, X asked forgiveness from the relatives of Y. The relatives pardon.
of Y accepted the apology of X and thereby granted him a pardon.
Just like amnesty and parol, the pardon by the president does not
Will the pardon of the offended party extinguish the criminal extinguish civil liability because the same is personal to the victim.
liability of the offender in homicide?
NO. In the crime of homicide, pardon by the offended party will not 2 kinds of pardon by the president;
extinguish the criminal liability of the offender. Homicide is a public Absolute pardon; (Article 89)
crime and it is essentially more of an offense against the state rather Conditional Pardon; (Article 94)
than the offended party because it causes disturbance or public
disorder. In addition, Presidential Pardon does not automatically restore the
following rights, unless they are specifically stated by the terms of
Private Crimes the pardon;
Pardon by the offended party does will only operate to extinguish To hold public office;
the criminal liability in private crimes as mentioned under under To vote and be voted; and
Article 344 of the Revised Penal Code; To exercise his right of suffrage;
Adultery;
Concubinage; Pardon by the President v. Pardon by the Offended
Seduction; party
Abduction; PARDON BY THE PRESIDENT PARDON BY THE OFFENDED
Rape; and PARTY
Acts of lasciviousness; Extinguishes criminal liability; Does not extinguish criminal
liability whether public or
Example; private crime with the
X filed a complaint for acts of lasciviousness against Y. during the exception of Marital Rape
trial, Y asked for forgiveness from X. X accepted the apology of Y. under Article 266-C;
Thereafter, X granted Y a pardon. Does not extinguish civil liability Extinguish civil liability as it is
of the offender; deemed as a waiver;
Pardon prior to Criminal proceedings
Pardon must be made before Pardon may only be made after
For pardon to extinguish the criminal liability of the offender, it must the institution of the criminal conviction by final judgment
be given prior to the institution of the criminal action.
case; only in private crimes;
--xXx--
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
Roman] Updated by Anonymous Lawyer (https://www.facebook.com/Anonymouslawer/)
GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 60
Art. 38. Pecuniary liabilities; Order of payment. — In case Rate of Subsidiary Penalty
the property of the offender should not be sufficient for the Under Article 39 of the Revised Penal Code, if the convict has no
payment of all his pecuniary liabilities, the same shall be met in the property with which to meet the fine mentioned in paragraph 3 of
following order: Article 38 of the Revised Penal Code, he shall be subject to a
The reparation of the damage caused. subsidiary personal liability at the rate of one day for each amount
Indemnification of consequential damages equivalent to the highest minimum wage rate prevailing in the
The fine. Philippines at the time of the rendition of judgment of conviction by
The cost of the proceedings. the trial court subject to the following rules;
If the principal penalty imposed be prision correccional or
PECUNIARY LIABILITIES PECUNIARY PENALITIES arresto and fine, he shall remain under confinement until
(ARTICLE 38) (ARTICLE 25) his fine referred to in the preceding paragraph is satisfied,
Imposed by the court in case of Imposed by the court in case of but his subsidiary imprisonment shall not exceed one-third
conviction but not as penalty; conviction as a penalty; of the term of the sentence, and in no case shall it
continue for more than one year, and no fraction or part
--xXx-- of a day shall be counted against the prisoner;
When the principal penalty imposed be only a fine, the subsidiary
Article 39. Subsidiary penalty. - If the convict has no imprisonment shall not exceed six months, if the culprit shall
property with which to meet the fine mentioned in the paragraph have been prosecuted for a grave or less grave felony, and
3 of the nest preceding article, he shall be subject to a subsidiary shall not exceed fifteen days, if for a light felony;
personal liability at the rate of one day for each eight pesos, When the principal imposed is higher than prision correccional,
subject to the following rules: no subsidiary imprisonment shall be imposed upon the
culprit;
If the principal penalty imposed be prision correccional or
arresto and fine, he shall remain under confinement until his fine If the principal penalty imposed is not to be executed by
referred to in the preceding paragraph is satisfied, but his confinement in a penal institution, but such penalty is of
subsidiary imprisonment shall not exceed one-third of the term of fixed duration, the convict, during the period of time
the sentence, and in no case shall it continue for more than one established in the preceding rules, shall continue to suffer
year, and no fraction or part of a day shall be counted against the the same deprivations as those of which the principal
prisoner. penalty consists;
When the principal penalty imposed be only a fine, the The subsidiary personal liability which the convict may have
subsidiary imprisonment shall not exceed six months, if the culprit suffered by reason of his insolvency shall not relieve him,
shall have been prosecuted for a grave or less grave felony, and from the fine in case his financial circumstances should
shall not exceed fifteen days, if for a light felony. improve. (As amended by RA 5465, April 21, 1969).
When the principal imposed is higher than prision
correccional, no subsidiary imprisonment shall be imposed upon Limitations of Subsidiary Penalty
the culprit. Subsidiary penalty cannot be imposed on the following instances;
If the principal penalty imposed is not to be executed by If the judgment of the court did not impose fine as a penalty;
confinement in a penal institution, but such penalty is of fixed If the judgment of the court did not expressly state that in case
duration, the convict, during the period of time established in the of nonpayment of fine, the convict shall suffer subsidiary
preceding rules, shall continue to suffer the same deprivations as penalty;
those of which the principal penalty consists. If the principal penalty that goes with fine exceeds prision
The subsidiary personal liability which the convict may correccional or higher than 6 years;
have suffered by reason of his insolvency shall not relieve him, If the principal penalty that goes with fine does not have fixed
from the fine in case his financial circumstances should improve. duration;
(As amended by RA 5465, April 21, 1969). If what the convict thinks to pay is not fine but damages and
cost;
SUBSIDIARY PENALTY
Subsidiary Penalty is a substitute penalty for fine in case of Example;
insolvency by the accused. X was convicted of reckless imprudence causing damage to
property. Penalty imposed on him is fine and public censure. Lower
If the accused is insolvent and cannot pay the fine, may he be portion of the decision “in case of insolvency to pay the fine, he shall
imposed of a subsidiary penalty of imprisonment? suffer subsidiary penalty”.
NO. Absent any express statement of subsidiary penalty by the
court, subsidiary penalty cannot be imposed even if the accused is Q: Is the court correct?
insolvent and cannot pay the fine. NO. The principal penalty that goes with fine is public censure is not
to be executed in a penal institution and is an indivisible penalty.
Why must there be an express statement by the court imposing
subsidiary penalty? Example;
Because it is only a substitute penalty. A subsidiary penalty is not a Accused was convicted of prision mayor and fine. The decision of the
principal penalty nor an accessory penalty, but only a substitute court includes a statement that in case of insolvency to pay the fine,
penalty for fine. he shall suffer subsidiary penalty.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 61
Q: Is the court correct? If two persons died, the charge is double murder. If three or more
NO. Failure to state that in case of insolvency to pay the fine, convict persons died, the crime is multiple murder. There is no complex
cannot be made to suffer subsidiary penalty. crime of triple murder.
Example; Example;
X was convicted of a fine with a subsidiary penalty. However, X was X wanted to kill Y. to kill Y, X placed a bomb under the car of Y.
insolvent so he was imprisoned. When he was released he bought When Y and wife and 3 children opened the car, the bomb exploded.
lottery tickets and won the lottery. X is now a multimillionaire. As a result, Y and his wife died. However, the children survived due
Thereafter, the court issued a writ of execution against him. X argues to medical treatment.
that his fine is now satisfied because he was subsidiarily imprisoned
in lieu thereof. Q: Is X liable for a complex crime?
YES. The single act of X in placing the bomb in the car of Y resulted
Can the court issue a writ of execution against X despite serving to 5 grave felonies; the murder of Y and his wife, and the frustrated
the subsidiary penalty of imprisonment? murder of the children. The charge should be double murder with
YES. Even if X already served the prison term for subsidiary multiple frustrated murder.
imprisonment, the court may still hold him liable for the fine
unsatisfied. In the same problem, what is the crime committed if all of them
died?
--xXx-- X will be liable for multiple murder because the single act of placing
a bomb resulting to 5 grave felonies. There should only be one
Memorize the Rules in Articles 50 – 57. charge or one information filed in court.
Exception to Articles 50 – 57 is Article 60.
Example;
--xXx-- X is armed with M-16 high powered rifle, machine gun. He went
inside the conference room. One pull of trigger, many bullets came
Article 48. Penalty for complex crimes. - When a single out hitting 5 persons.
act constitutes two or more grave or less grave felonies, or when
an offense is a necessary means for committing the other, the Q: is X liable for the complex crime of multiple murder?
penalty for the most serious crime shall be imposed, the same to NO. If the weapon used is a high powered machine gun, the factor
be applied in its maximum period. to be considered is the number of bullets which came from the
machine gun and the number of people wounded or killed rather
2 Kinds of Complex Crime than the single act of pulling the trigger. Thus, X is liable for 5 counts
There are 2 kinds of complex crime; of murder.
Compound Crime;
Complex Crime Proper; COMPLEX CRIME PROPER
Complex crime proper is present when the offense is a necessary
In both kinds, only one (1) information is filed and the accused shall means commit the another offense.
suffer the penalty for the most serious crime in its maximum period.
Elements
COMPOUND CRIME The following are the elements of complex crime proper;
Compound Crime is present when the offender performs a single act Two offenses committed;
which constitutes to two or more grave or less grave felonies. Offenses necessary means to commit the other;
Both crimes are punished by the same statute
Basis
Basis of compound crime is the singularity of act of the offender. Example
The following are examples of complex crime proper;
Elements Rape with forcible abduction - A was on the ladder of the
The elements of compound crime are the following; house, B a woman abducted her against her will and with
Offender performs single act; lewd design;
Resulted to two or more less grave felonies Basis: Singularity of Estafa thru falsification of public document. Person falsifies a public
act document – Falsification used to defraud another;
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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Estafa through falsification of private document Crime committed is one charge of theft. X impelled by a single
There is no estafa by falsification of private document. In estafa and impulse committed overt acts leading to theft.
falsification of private document, there is only and the same damage
contemplated by both felonies. Thus, only charge can be made, Santiago v. Garchtorena (G.R. No. 109266, December 2, 1993)
either falsification or estafa, otherwise the prohibition against the Petitioner Miriam Defensor-Santiago was charged in the
twice recovery for damages will be violated. Sandiganbayan with the Anti-Graft & Corrupt Practices Act for
favoring 32 “unqualified” aliens with the benefits of the Alien
If estafa cannot be committed without falsification, the correct Legalization Program. Defender-Santiago moved for a bill of
charge is falsification. Estafa is merely a consequence. particulars, contending that unless she be provided with the names
and identities of the “aliens” she would not be able to adequately
If estafa can be committed without falsifying, the proper charge is prepare for trial. Initially, the public prosecutors stated that they
estafa. Falsification is merely an incident of estafa. would file only one amended complaint, but they later filed 32
amended informations, separately naming each of the aliens in each
On the other hand, in falsification of public document, damage is not of the informations. The Sandiganbayan admitted the 32 amended
an element of the offense. Thus, the charge of estafa thru informations.
falsification of public document may exist.
Q: Was it correct to admit the 32 amended informations?
SPECIAL COMPLEX CRIME NO. For delito continuado to exist there should be a plurality of acts
Special complex crimes exist when, in reality, two or more crimes are performed during a period of time; unity of penal provision violated; and
committed but in the eyes of law only one. unity of criminal intent or purpose, which means that two or more
violations of the same penal provisions are united in one and same
It is the law which provides what crimes would be complexed and instant or resolution leading to the perpetration of the same criminal
what crimes go together; purpose or aim. In this case, the 32 Amended Informations aver that the
Robbery with homicide; (Article 294) offenses were committed on the same period of time, i.e., on or about
Kidnapping with homicide; (Article 267 as amended by R.A. October 17, 1988. The strong probability even exists that the approval of
7659) the application or the legalization of the stay of the 32 aliens was done
Rape with homicide; (Article 266-B) by a single stroke of the pen, as when the approval was embodied in the
same document.
Special Complex Crime v. Compound Crime
SPECIAL COMPLEX CRIME COMPOUND CRIME CONTINUING CRIME OR TRANSITORY OFFENSE.
The law specifies the crimes Crimes are general; In Continuing crime, the offender may be prosecuted in any courts of
which are combined; the place where any of the crime has been committed. This is more
Law provides for the penalty; The penalty for the most on remedial law not in criminal law.
serious crime is imposed in the
maximum period; Example;
Light felonies are absorbed; Light felonies committed is a X in payment of his obligation, issued a postdated check to Y in
separate and distinct charge; Manila, on the maturity date, Y deposited the check to his
depositary bank in Quezon City. The check however was dishonored
DELITO CONTINUADO. by the drawee bank in Caloocan City. Notice of dishonor was sent. X
failed to make good the check. A complaint was filed against X for
Delicto continuado or continuous crime is present when the offender violation of B.P. 22.
is impelled by a single criminal impulse commits a series of overt
acts in about the same time and about the same place violating one
Where may Y file the case for violation of BP 22?
and the same provision of law. Basis is singularity of impulse.
The complaint may be filed in any of the court where the elements
of the crime occurred.
Basis
The basis is the singularity of impulse of the offender.
If the BP 22 case has already been filed in the MTC of Manila, the
Elements said case can no longer be filed before the MTC of Quezon City or
Caloocan City.
In the case of Santiago v. Garchtorena (G.R. No. 109266, December
2, 1993) the Supreme Court established the elements of delito
--xXx--
continuado;
Plurality of acts performed during a period of time;
Art. 46. Penalty to be imposed upon principals in general.
Unity of penal provisions violated;
Unity of criminal purpose or aim; — The penalty prescribed by law for the commission of a felony shall
be imposed upon the principals in the commission of such felony.
Example; Whenever the law prescribes a penalty for a felony is
general terms, it shall be understood as applicable to the
A, B, C,D lives in one compound. All engaged in the business of selling consummated felony.
rooster. One night, 11:00 in the evening here comes X. While they were
sleeping, X took the rooster of A, then of B, then of C, then of D.
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 63
Penalty Imposed shall not be taken into account for the purpose of increasing the
Under Article 46, when the law prescribes a penalty for a felony, it penalty.
shall be understood to mean that such penalty shall be imposed
upon principals of a consummated felony. The same rule shall apply with respect to any aggravating
circumstance inherent in the crime to such a degree that it must of
--xXx-- necessity accompany the commission thereof.
PENALTY IMPOSED UPON ACCESSORIES AND Aggravating or mitigating circumstances which arise from
ACCOMPLICES (Articles 50-57) the moral attributes of the offender, or from his private relations
Articles 50-57 provides for penalties if the offender is a principal, with the offended party, or from any other personal cause, shall
accomplice or accessory whether or not the felony is consummated, only serve to aggravate or mitigate the liability of the principals,
frustrated, attempted. accomplices and accessories as to whom such circumstances are
attendant.
CONSUMMATED FRUSTRATED ATTEMPTED
Penalty The penalty A penalty lower The circumstances which consist in the material
prescribed by lower by one by two degrees execution of the act, or in the means employed to accomplish it,
law for the degree than than that shall serve to aggravate or mitigate the liability of those persons
offense; that prescribed by law only who had knowledge of them at the time of the execution of
prescribed for principal of a the act or their cooperation therein.
PRINCIPALS by law for consummated
the principal felony; Habitual delinquency shall have the following effects:
of a (Art. 51)
consummate Upon a third conviction the culprit shall be sentenced to
d felony; the penalty provided by law for the last crime of which he be found
(Art. 50) guilty and to the additional penalty of prision correccional in its
A penalty lower The penalty A penalty lower medium and maximum periods;
by one degree lower by one by one degree
than that degree than than that Upon a fourth conviction, the culprit shall be sentenced
prescribed by prescribed prescribed by law to the penalty provided for the last crime of which he be found
law for principal by law for for principals of guilty and to the additional penalty of prision mayor in its
ACCOMPLICES minimum and medium periods; and
of a the principal an attempted
consummated of a felony;
felony; frustrated (Art. 56) Upon a fifth or additional conviction, the culprit shall be
(Art. 52) felony; sentenced to the penalty provided for the last crime of which he be
(Art. 54) found guilty and to the additional penalty of prision mayor in its
A penalty lower The penalty The penalty lower maximum period to reclusion temporal in its minimum period.
by two degrees lower by two by two degrees
than that degrees than than that Notwithstanding the provisions of this article, the total of
prescribed by prescribed prescribed by law the two penalties to be imposed upon the offender, in conformity
law for principal by law for for principals of herewith, shall in no case exceed 30 years.
ACCESSORIES
of a the an attempted
consummated principals of felony; (Art. 57) PARAGRAPH 1.
felony; a frustrated The following aggravating circumstance shall not be taken into
(Art. 53) felony; account for the purpose of increasing penalty;
(Art. 55 Aggravating circumstances which in themselves constitute a
crime specially punishable by law; or
Exception Aggravating circumstances which are included by the law in
defining a crime and prescribing the penalty therefor;
Under Article 60, the provisions contained in Articles 50 to 57, inclusive,
of this Code shall not be applicable to cases in which the law expressly Aggravating circumstance inherent in the crime to such a
prescribes the penalty provided for a frustrated or attempted felony, or degree that it must of necessity accompany the
to be imposed upon accomplices or accessories. commission thereof (Par. 2);
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PARAGRAPH 3. Is the aggravating circumstance that the crime that the crime be
The following aggravating or mitigating circumstance shall serve to committed by means of poison applicable to A?
aggravate for mitigate the liability of the principals, accomplices, and NO. The aggravating circumstance that the crime be committed by
accessories; means of poison is not applicable to A.
Those which arise from the moral attributes of the offender; or
From his private relations with the offended party; or ORGANIZED OR SYNDICATED CRIME GROUP.
From any other personal cause; An organized or syndicate crime group consists of two or more
persons collaborating, confederating and mutually helping another
for purposes of gain in the commission of the crime.
Those which arise from the moral attributes of the offender
The maximum penalty shall be imposed if the offense was committed by
Example; any person who belongs to an organized/syndicated crime group.
A and B killed C. A acted with evident premeditation, and B with
passion and obfuscation. The information charges A, B, C, D as collaborating, confederating
and mutually helping another for purposes of gain in the
Q: How should the aggravating circumstance be appreciated? commission of the crime. This is what the information alleges. Trial
Evident premeditation should affect and aggravate only the penalty found this so. The judge considered conspiracy and considered this
for A, while passion and obfuscation will benefit B only mitigate his special aggravating circumstance.
liability.
Q: Is the court correct?
From his private relations with the offended party. NO. Before the special aggravating circumstance be considered the
A and C inflicted slight physical injuries on B. A is the son of B. C is court, evidence must show was held to commit crimes involving gain.
the father of B.
HABITUAL DELINQUENCY
How does A and C’s relationship with B affect their criminal A person shall be deemed to be habitual delinquent, is within a
liability? period of ten years from the date of his release or last conviction of
The alternative circumstance of relationship, as aggravating shall be the crimes of serious or less serious physical injuries, robo, hurto,
taken into account against A only, because he is a relative of a lower estafa or falsification, he is found guilty of any of said crimes a third
degree than the offended party, B. time or oftener.
From any other personal cause In the material execution of the act Elements;
A and B committed a crime. A was under 16 years of age and B was a The crime is specified should be serious physical injuries, less
recidivist. serious physical injuries, robbery, theft, estafa;
There should be at least three convictions;
PARAGRAPH 4
Each convictions must come within ten year from date of
The following circumstance shall serve to aggravate or mitigate the release or last conviction of the previous crime;
liability of those persons only who had knowledge of them at the
time of the execution of the act or their cooperation therein;
Effect
In the material execution of the act; or
In the means employed to accomplish it; Additional penalty shall be imposed in the maximum period being an
aggravating circumstance.
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NUMBER OF CONVICTION PENALTY PRESCRIBED No prescriptive period on the Prescribes in ten years;
The penalty for the last crime commission of the offense;
of which he be found guilty. No additional penalty; Provides additional penalty;
Limitation Q: Is A a quasi-recidivist?
The penalty committed for the crime plus additional penalty should YES. Maximum period prescribed by law shall be imposed.
not exceed thirty years.
--xXx--
Recidivism and Habitual Delinquency
Recidivism and Habitual Delinquency may be simultaneously Article 63. Rules for the application of indivisible penalties.
considered because they have different effects on criminal liability of In all cases in which the law prescribes a single indivisible penalty,
the offender. Recidivism effect is on the theft committed. It may be it shall be applied by the courts regardless of any mitigating or
offset by mitigating circumstances. Habitual delinquency will give aggravating circumstances that may have attended the commission
him additional penalty. of the deed.
In all cases in which the law prescribes a penalty
Example; composed of two indivisible penalties, the following rules shall be
A was charged and convicted of robbery he served his sentence. observed in the application thereof;
Within 10 years from date of release he committed theft. He served When in the commission of the deed there is present
sentence and again released. Within 10 years he committed another only one aggravating circumstance, the greater penalty shall be
theft. The judgment become final and executory. He served again applied.
and out of prison. Within 10 years against he committed another When there are neither mitigating nor aggravating
theft. He is now in trial. circumstances and there is no aggravating circumstance, the lesser
penalty shall be applied;
Can the judge impose both recidivism and habitual delinquency? When the commission of the act is attended by some
YES. He is recidivist because at the time he served theft he was mitigating circumstances and there is no aggravating circumstance,
previously convicted of a final judgment of robbery embraced within the lesser penalty shall be applied;
the same title of the code. He is also habitual delinquent, because When both mitigating and aggravating circumstances
within the ten years from the date of his last release he committed a attended the commission of the act, the court shall reasonably
theft the third time. allow them to offset one another in consideration of their number
and importance, for the purpose of applying the penalty in
RECIDIVISM HABITUAL DELINQUENCY accordance with the preceding rules, according to the result of
Generic aggravating Cannot be offset by ordinary such compensation;
circumstance - Can be offset; mitigating circumstance;
Requires at least two Requires at least three Outline of the rules.
conviction; convictions; When the penalty is single indivisible, it shall be applied
regardless of any mitigating or aggravating circumstances.
Felony violated must be within The felony violated are serious
the same title of the code; physical injuries, less serious When the penalty is composed of two indivisible penalties, the
following rules shall be observed;
physical injuries, robbery, theft,
estafa, falsification;
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a. When there is only one aggravating circumstance. Since only one mitigating circumstance is left, the
circumstance, the greater penalty shall be lesser penalty of reclusion perpetua shall apply;
imposed;
When there is neither mitigating nor aggravating PRIVELEGE MITIGATING CIRCUMSTANCE
circumstances, the lesser penalty shall be When there is a privileged mitigating circumstance, apply it first
imposed; before computing the penalties.
When there is a mitigating circumstance and no
aggravating circumstance, the lesser penalty Example;
shall be imposed. A was charged with the information of Rape. At the time of the
When both mitigating and aggravating circumstances commission of the offense, A was only 16 years old. After trial, he
are present, the court shall allow them to offset was sentenced to the indivisible penalty of reclusion perpetua. In his
one another; motion for reconsideration, A argues that his penalty should be
lowered by one degree because he is a minor. The judge denied the
Example; motion on the ground that reclusion perpetua is an indivisible
The penalty for Rape is reclusion perpetua. If the penalty is single penalty and cannot be offset by mitigating circumstance.
and indivisible, it shall be imposed as is, without consideration of
any Aggravating or Mitigating circumstance Q: Is the judge correct?
NO. Minority is a privilege mitigating circumstance which lowers the
Example; penalty by one degree. Indivisible penalties shall be imposed as is
The penalty for the crime of murder is reclusion perpetua to death - regardless of mitigating or aggravating circumstance. However,
two indivisible penalties. privilege mitigating circumstance takes preference over prior to the
computation of penalties. In this case, since A was a minor at the
Only one aggravating circumstance. time of the commission of the offense, his penalty should be
If the murder was committed with the aggravating circumstance of lowered by one degree to reclusion temporal.
trespass to dwelling, the greater penalty of death shall be applied;
--xXx--
Two or more aggravating circumstance and no mitigating
circumstance Article 64. Rules for the application of penalties which
If the murder was committed with the aggravating circumstances of contain three periods. - In cases in which the penalties prescribed
trespass to dwelling and recidivism, the greater penalty of death by law contain three periods, whether it be a single divisible
shall be applied; penalty or composed of three different penalties, each one of
which forms a period in accordance with the provisions of Articles
No mitigating nor aggravating circumstance 76 and 77, the court shall observe for the application of the penalty
If there is no mitigating or aggravating circumstance in attendant, the following rules, according to whether there are or are not
apply the lesser penalty of reclusion perpetua; mitigating or aggravating circumstances:
When there are neither aggravating nor mitigating
One mitigating and no aggravating circumstance circumstances, they shall impose the penalty prescribed by law in
If the murder was committed with the mitigating circumstance of its medium period.
passion and obfuscation, the lesser penalty of reclusion perpetua When only a mitigating circumstances is present in the
shall apply; commission of the act, they shall impose the penalty in its
minimum period.
Two or more mitigating circumstance and no aggravating When an aggravating circumstance is present in the
circumstance commission of the act, they shall impose the penalty in its
If the murder was committed with the mitigating circumstances of maximum period.
passion and obfuscation and sufficient provocation on the part of the When both mitigating and aggravating circumstances are
offended party, the lesser penalty of reclusion perpetua shall apply; present, the court shall reasonably offset those of one class against
the other according to their relative weight.
If there are two aggravating circumstance and one mitigating When there are two or more mitigating circumstances and no
circumstance aggravating circumstances are present, the court shall impose the
If the murder was committed with the aggravating circumstances of penalty next lower to that prescribed by law, in the period that it
trespass to dwelling and recidivism, and the mitigating circumstance may deem applicable, according to the number and nature of such
of passion and obfuscation, one mitigating circumstance will offset circumstances.
one aggravating circumstance. Since only one aggravating Whatever may be the number and nature of the aggravating
circumstance is left, the greater penalty of death shall apply; circumstances, the courts shall not impose a greater penalty than
that prescribed by law, in its maximum period.
If there are two mitigating circumstance and one aggravating Within the limits of each period, the court shall determine the
circumstance extent of the penalty according to the number and nature of the
If the murder was committed with the mitigating circumstances of aggravating and mitigating circumstances and the greater and
passion and obfuscation and sufficient provocation on the part of the lesser extent of the evil produced by the crime.
offended party, and the aggravating circumstance of trespass to
dwelling, one mitigating circumstance will offset another aggravating
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 67
Degree of penalty previous rules. Thus, X will suffer the penalty of prision mayor in its
Degree of penalty is a penalty prescribed by law for every crime minimum period.
committed whether divisible or indivisible.
Four mitigating circumstance.
Period of penalty X committed homicide with passion and obfuscation when he was
A period of penalty refers to the subdivision of every said divisible suffering from an illness which would diminish the exercise of his
penalty into three portion, the first portion is minimum, second is will-power, and thereafter voluntary surrendered and there is a
medium, third is maximum voluntary plea of guilt. The penalty imposed upon him cannot be
lowered by two degrees. Thus, X will suffer the penalty of prision
Indivisible penalty mayor in its minimum period.
Indivisible penalties are penalties without fixed duration, death,
reclusion perpetua, perpetual absolute disqualification, perpetual In order that the penalty will be lowered by 1 degree, it is necessary
special disqualification, public censure, fine. that there absolutely is NO aggravating circumstance.
Divisible penalty Even if there are many Mitigating circumstances, as long as there is 1
Divisible Penalties are penalties with fixed duration and therefore aggravating circumstance, you will cannot lower the penalty by
can be divided into three period. the first portion is minimum, degrees, it is only by periods.
second is medium, third is maximum
Privilege Mitigating Circumstance
*Memorize the rules under Article 64. If present, Privilege Mitigating Circumstance must be applied first
prior to the application of penalties under the Rules of Articles 63
Example; and 64.
X and Y had a fight. In the course of the fight, X killed Y. X was
charged and convicted of homicide. The penalty for homicide is Example;
Reclusion temporal. X committed the crime of homicide. The penalty for homicide is
reclusion temporal.
No aggravating and no mitigating.
Reclusion temporal shall be imposed in its medium period. One privilege mitigating circumstance.
X was a minor at the time he committed homicide. Minority is a
One mitigating and no aggravating. privilege mitigating circumstance which will lower the imposable
If there is voluntary surrender in the part of X, reclusion temporal penalty by one degree. Thus, X will suffer the penalty of prision
shall be imposed in its minimum period. mayor in its medium period.
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period. Thus, X will suffer the penalty of arresto mayor in its Indeterminate Sentence Law, it is after 'any prisoner shall have
minimum period. served the minimum penalty imposed on him, that the Board of
Indeterminate Sentence may consider whether such prisoner may
--xXx-- be granted parole. There being no 'minimum penalty imposable on
those convicted to reclusion perpetua, it follows that persons
INDETERMINATE SENTENCE LAW (R.A. 4103) sentenced by final judgment to reclusion perpetua could not have
Indeterminate Sentence Law modifies the imposition of penalty. It is availed of parole under the Indeterminate Sentence Law.
applied both to the Revised Penal Code and Special Penal Laws. It
provides for a minimum and max term, such that the moment the is the indeterminate sentence law applicable if the penalty
offender serves the minimum of the sentence, he shall be eligible for imposed is destierro?
parole. If granted, he will serve the remainder of the sentence out of NO. Destierro does not involve imprisonment.
prison, but subject to the supervision of the parole officer
Effect of disqualification
OBJECTIVES If the offender is disqualified for the application of the indeterminate
The following are the objectives of the Indeterminate Sentence Law; sentence law, he shall be given a straight penalty. The offender must
Uplift and redeem valuable human material; serve the entire term of his sentence and he is not eligible for parole.
Avoid unnecessary and excessive deprivation of liberty;
Example;
These objectives are achieved when the moment the offender A final judgment was rendered against X. He was granted conditional
becomes eligible to apply for parole and he may be able to serve pardon by the Chief Executive. He violated the terms and conditions
sentence out of jail. of the said pardon. He was charged with evasion of service of
sentence. He was found guilty by the court.
PAROLE
Parole is the conditional release of the offender form the correctional Q: Can the court impose upon him an indeterminate sentence?
institution after serving minimum sentence after showing that he has NO. X is among those disqualified under the law. By violating the
reformed. Note it does not extinguish criminal and civil liability. condition of his pardon he cannot avail of an indeterminate
sentence law.
Requisites;
He must be placed in prison jail to serve an indeterminate Example;
sentence penalty which exceeds 1 year; X has been convicted of final judgment of serious physical injuries,
Served minimum term of sentence; thereafter he committed homicide and the judge found him guilty of
Board of pardons and parole found that his released is for homicide.
greater interest of society
Q: Can the judge impose upon him an indeterminate sentence?
DISQUALIFICATIONS UNDER THE INDETERMINATE SENTENCE LAW. YES. X is a recidivist. Under the Indeterminate Sentence Law, only
The general rule is that everyone is entitled to the Indeterminate habitual delinquents are disqualified from availing indeterminate
Sentence law. However, this act shall not apply to the following sentence. A recidivist is qualified under the law from availing the
persons; Indeterminate Sentence Law.
Convicted crime punished by death or life imprisonment;
(Reclusion perpetua ias held by the Supreme Court in Example;
People v. Enriquez G.R. No.158797, July 29, 2005) X is a minor who was charged and convicted for kidnapping with
Those convicted of treason, conspiracy or proposal to commit ransom, the penalty of which is reclusion perpetua to death. Since
treason, misprision of treason; minority is a privilege mitigating circumstance, we will lower the
Those convicted of rebellion, sedition, or espionage; imposable penalty by one degree.
Those convicted piracy;
Those who are habitual delinquents; (In People v. Jaranilla, G.R. No. Q: is X qualified under for indeterminate sentence?
28547, Feb. 22, 1974, the Supreme Court ruled that Recidivist YES. In applying the indeterminate sentence law, we should consider the
are entitled to an indeterminate sentence law) imposable penalty rather than the penalty prescribed by law. In this
Those who shall have escaped from confinement or evaded case, since the penalty of reclusion perpetua was lowered to reclusion
sentence; (In People v. Perez, 44 OG 3884, a minor who temporal, then X is qualified for indeterminate sentence.
escaped from confinement in the reformatory is entitled
to the benefits of the law because confinement is not Computation for Indeterminate Sentence Law
considered imprisonment). In order to arrive at an indeterminate sentence in the violation of
Those who having been granted conditional pardon by the the RPC, the following rules must be considered;
President shall have violated the terms thereof; Get first the maximum term of sentence with all the attendant
Those whose maximum period of imprisonment does not circumstance in accordance with Article 64 of the RPC;
exceed one year; Lower it the one degree. Do NOT consider anymore the
attendant circumstance. The minimum term of sentence
Reclusion perpetua cannot Avail Indeterminate Sentence Law depends upon the sound discretion of the court.
In the concurring opinion of Justice Tinga in the case of (People v.
Tubongbanua, G.R. No. 171271, August 31, 2006) Parole is extended
only to those convicted of divisible penalties. Under Section 5 of the
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VIOLATION OF SPECIAL PENAL LAWS What if there is only one aggravating circumstance is present?
If the offense is punished by special laws, the court shall sentence the The maximum term will be reclusion temporal in its maximum
accused to an indeterminate sentence, the maximum term of which period and the minimum term is Prision mayor in any of its period
shall not exceed the maximum fixed by said law and the minimum shall according to the sound discretion of the court.
not be less than the minimum term prescribed by the same.
What if both aggravating and mitigating circumstance are
Example; present?
X committed was charged and convicted of the anti-carnapping law. The maximum term shall be reclusion temporal in its medium period
Section 14 of R.A. 6539 (Anti-Carnapping law) provides a penalty for because under article 64 you should offset the circumstances. The
17 years and 4 months to 30 years if a person committed carnapping minimum term will be one degree lower than reclusion temporal
by means of violence against or intimidation of any person, or force which is Prision mayor in any of its period according to the sound
upon things. discretion of the court.
Under the indeterminate sentence law, what is the duration of the What if there are 2 aggravating circumstance and 1 ordinary
penalty for the violation of the anti-carnapping law? mitigating circumstance present?
Under the indeterminate sentence law, if a special law is violated, The maximum term shall be reclusion temporal in its maximum
the courts may sentence the accused to an indeterminate sentence period applying the last aggravating circumstance after offsetting the
provided that it shall not be less than the minimum or more than the aggravating circumstance and mitigating circumstance. The
maximum according to the sound discretion of the judge. Thus, minimum term is Prision mayor in any of its period according to the
anywhere from 17 years and 4 months to 30 years may be imposed sound discretion of the court.
upon X.
What if there are two mitigating circumstances and no
Argoncillo v. CA, G.R. No. 118816, July 10, 1998 aggravating circumstance present?
The crime committed is illegal fishing with the use of explosives. The The maximum term shall be prision mayor in its medium period.
penalty prescribed by law is 20 years to life imprisonment. The judge Since there are two ordinary mitigating circumstances, we lower the
imposed him the penalty of straight 30 years. imposable penalty by one degree. The minimum term is prision
correccional in any of its periods according to the sound discretion of
Q: Is the judge correct? the court.
NO. The Indeterminate sentence law states that a violation of
special penal law and the said special penal law does not use the What if there are three mitigating circumstance with no
enumeration of penalties in the RPC, the maximum term of the aggravating circumstance present?
sentence shall not exceed the maximum penalty prescribed by law The maximum term shall be prision mayor in its minimum period.
and the minimum term of sentence shall not be less than the The two ordinary mitigating circumstances shall operate to lower
minimum penalty prescribed by law. In this case, since the penalty the imposable penalty by one degree, the remaining ordinary
prescribed by law is 20 years to life imprisonment, it means that the mitigating circumstance shall operate to make the penalty in its
penalty to be imposed upon the convict must be an indeterminate minimum period. The minimum term is prision correccional in any of
sentence. SC said the penalty must be 20 years (minimum term) to its periods according to the sound discretion of the court.
25 years (maximum term)
What if there are four mitigating circumstances and no
Article 64 and Indeterminate Sentence law aggravating circumstance?
The indeterminate sentence law did not repeal Article 34 of the The maximum term shall still be prision mayor in its minimum
Revised Penal Code. On the contrary, they are related. period. In case of ordinary mitigating circumstance, you can only
lower the penalty by one degree. You cannot lower the penalty by
Example; two degrees. The two ordinary mitigating circumstances shall
A abducted B with lewd design. His intention was rape. But before A operate to make the penalty in its minimum period. The minimum
raped B, A was arrested. A was charged with the crime of forcible term is prision correccional in any of its periods according to the
abduction punishable by reclusion temporal. sound discretion of the court.
What is the penalty imposed if there is no mitigating or In order that the penalty will be lowered by one degree, it is
aggravating circumstance? necessary that there is NO aggravating circumstance.
The maximum term will be reclusion temporal in medium period
since there are no mitigating or aggravating circumstance. The Even if there are many mitigating circumstances, for as long as there
minimum term is 1 degree lower in any of its periods according to is one aggravating circumstance, you cannot lower the penalty by
the sound discretion of the court. Thus, the imposable penalty is degrees. Only by periods.
prsion mayor in any of its period to reclusion temporal.
Example;
What if there is only one ordinary mitigating circumstance is A was charged with the information of rape with mitigating
present? circumstance of passion and obfuscation, against B. thereafter, A
Maximum term will be reclusion temporal in minimum period and voluntarily surrendered. A convicted of rape and was punished with
the minimum term is Prision mayor in any of its period according to the penalty of reclusion perpetua.
the sound discretion of the court.
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 70
since there are two mitigating circumstance, should the judge To prevent further commission of crimes because the offender
lower his penalty by one degree? is placed under an individualized treatment;
NO. Reclusion perpetua is an indivisible penalty. Under Article 63 of To decongest cases;
the Revised Penal Code, if the penalty prescribe by law is a single To save the Government from spending much-needed funds
invisible penalty you shall impose it as it is regardless of any when the offender will be placed behind bars
aggravating or mitigating circumstance.
The first three objectives are based on P.D. 968. The last two
What is the penalty of A if, in a addition to the 2 mitigating purposes are jurisprudential.
circumstances above mentioned, A is a minor at the time of the
offense? Probation as a Privilege
privilege mitigating circumstance must first be applied prior to the Probation is not a right but a privilege. Thus, even if a convict is not
ordinary mitigating circumstance. Since minority is a privilege among those disqualified of probation, the judge can still deny the
mitigating circumstance which lowers the penalty by one degree, application. This denial is not appealable. The grant or denial of
the maximum term is prision mayor in its medium period and the application is dependent solely on the sound discretion of the judge.
minimum term prision correccional in any of its range according to
the sound discretion of the court. DISQUALIFICATIONS
The following are disqualified to avail probation;
*Only circumstance that can defeat an indivisible penalty is a Those whose maximum term of imprisonment is more than 6
privilege mitigating circumstance. years;
Those who have been convicted of subversion and crimes
Example; against national security;
X was charged with the crime of frustrated homicide. X voluntarily Those who have previously been convicted by final judgment of
surrendered to the authorities. In the trial, the mitigating an offense punished by imprisonment of more than six (6)
circumstance of immediate vindication to a grave offense was in months and one (1) day and/or a fine of more than one
attendant. thousand pesos (P1,000.00);
Those who have already availed the benefit of probation;
Q: What should be the penalty imposed to X? Those who have perfected an appeal from judgment of
Since the penalty for frustrated homicide is prision mayor and there conviction;
are two other ordinary mitigating circumstance present, the maxium Those convicted of an election offense under the Omnibus
term of sentence is Prision correccional in its medium period while Election Code;
the mimimum term of sentence. Arresto mayor within the range or. Those convicted of drug trafficking or drug pushing;
Those who filed a malicious report that a person is committing
What is the penalty if, in addition to the facts above mentioned, X a violation of Anti-money laundering law and was
is minor committing without discernment? convicted because of such malicious filing
Since the penalty already imposed upon X is prision correccional, we
lower it by one degree more because minority is a privilege Example;
mitigating circumstance. Thus, according to Article 64, the maximum X was charged and convicted for alarms and scandals. He was
term is Arresto mayor in its medium period. Indeterminate sentence sentenced to 30 days of arresto menor.
law is not applicable if the penalty imposed upon the offender does
not exceed one year. In this instance we cannot give him an Q: Can X avail probation?
indeterminate sentence because the duration of arresto mayor is 1 If the felony was committed prior to the amendment of the
month to 6 months. probation law, X cannot avail probation. Under P.D. 968, a person
who is convicted of a crime involving public disorder cannot avail
If the maximum term of sentence does not exceed one year, a probation. The felony of Alarm and Scandal is a crime against public
straight penalty shall be imposed upon him. disorder. Thus X cannot avail probation. However, if the crime was
convicted after the amendment, X may avail probation. Under R.A.
--xXx-- 1070, crimes against public disorder is removed from the
disqualifications. Thus, X may avail probations
PROBATION LAW (P.D. 968 as Amended by R.A. 10707)
Probation is a disposition by which a convict after conviction and May probation be availed even if the penalty imposed upon the
sentence is released subject to the conditions imposed by the court offender is only a fine?
under the supervision of a probation officer. YES. Under Section 4 of P.D. 968 as Amended by R.A. 10707,
Probation may be granted whether the sentence imposes a term of
Objectives imprisonment or a fine only.
The following are the objectives of probation law;
To promote the correction and rehabilitation of the offender APPEAL AND PROBATION
because he is placed under a personalized treatment; Generally, under P.D 968, appeal and probation are mutually
To provide an opportunity for the reformation of penitent exclusive remedies. This is because the reason behind appeal and the
offender; reason behind probation are diametrically opposed.
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 71
applies for probation, it means that he is accepting the judgment of A grant of probation is applied before the Trial Court which heard
the court. He, however, does not want to serve his sentence behind the case within the period of perfecting an appeal or within 15 days
bars. from promulgation of judgment.
have served sentence for more than 1 year. Since Moreno applied Factors to consider in imposing fines;
and was granted of probation, he did not serve his sentence because Aggravating and mitigating circumstance;
probation suspends the service of the offender. Wealth and means of the offender
Can a person who was convicted by final judgment but was Scale of Penalty in case of Fine
granted probation run for public office? Article 26 of the Revised Penal determines whether a fine is
YES. The phrase service of sentence, understood in its general and afflictive, correctional, or light penalty.
common sense, means the confinement of a convicted person in a SCALE OF PENALTY AMOUNT OF FINE
penal facility for the period adjudged by the court. During the period Afflictive Penalty; Exceeds P6,000.00
of probation, the probationer does not serve the penalty imposed Correctional Penalty From P200.00 to P6,000.00
upon him by the court but is merely required to comply with all the Light Penalty; Less than P200.00
conditions prescribed in the probation order. Furthermore, he
accessory penalties of suspension from public office, from the right --xXx--
to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, attendant to the penalty Art. 75. Increasing or reducing the penalty of fine by one
of arresto mayor in its maximum period to prision correccional in its or more degrees. — Whenever it may be necessary to increase or
minimum period imposed upon Moreno were similarly suspended reduce the penalty of fine by one or more degrees, it shall be
upon the grant of probation. increased or reduced, respectively, for each degree, by one-fourth
of the maximum amount prescribed by law, without however,
Example; changing the minimum.
Lindsay Lohan, after conviction, applied for probation and was
granted the same. Thereafter, she filed an appeal questioning the If a fine is imposed to an accomplice or an accessory, the fine shall
civil indemnity imposed upon her. The judge denied the appeal on be reduced or increased, respectively for e each degree, by one
the ground that Lindsay already applied for probation. Therefore, fourth of the maximum amount prescribed by law.
the appeal cannot be granted.
Example;
Is the judge correct? If A prevented the meetings of congress by means of fraud, the penalty
NO. The only effect of probation is to suspend the execution of the imposed upon him is P200 – P2000. If he is merely an accomplice, the
sentence. It has nothing to do with the civil aspect of the case. fine will be lowered by one degree and a decrease of
Insofar as the civil aspect is concerned, the convict can still appeal it. of the maximum amount prescribed by law. Since ¼ of P2,000.00 is
P500.00, the penalty imposed upon the accomplice is P200.00 to
Example; P,500.00.
D, under the probation for two years, was imposed the condition
that he could not change his residence. For two years, he complied Example;
with this condition. After the lapse of two years, D now changed his A, B, and C, was charged and convicted of an impossible crime. A as the
residence. The probation officer learned about this and filed for a principal, B as the accomplice, and C as the accessory. The court
Motion to Revoke the probation. D contended that the period of imposed upon them a fine of P200.00 to P500.00 as prescribed by law.
probation (2 years) has already been completed, so he is already
allowed to change residence. The trial court granted the revocation. Q: How much would A, B, and C, pay?
A, as the principal, is liable for a fine ranging from P200.00 –
Q: Is the trial court correct? P500.00. To get the liability of B as an accomplice we take ¼ of the
YES. The expiration of the period of probation does not ipso facto maximum amount of fine and deduct it therefrom. So the maximum
mean the termination of probation. Probation is only terminated amount of fine is P500.00 ¼ of P500.00 is 125. Deduct P125.00 from
upon the issuance of the court of a final discharge of probation. This P500.00. This will now be P375.00 Thus, B, as an accomplice, is liable
happens when after the lapse of the period of probation, the for P200-P375. Let us say the offender is a mere accessory, deduct ¼
probation officer will file a Motion before the court with a or P125.00 from the maximum fine. The sum is P250.00. Thus, C as
recommendation stating that the convict has complied with the the accomplice is liable for P200.00 - P250.00
conditions imposed and therefore, he should be discharged. The
court will then issue a final discharge of probation. Only then will --xXx--
probation be terminated.
Article 70. Successive service of sentence. - When the
--xXx-- culprit has to serve two or more penalties, he shall serve them
simultaneously if the nature of the penalties will so permit
Art. 66. Imposition of fines. — In imposing fines the otherwise, the following rules shall be observed:
courts may fix any amount within the limits established by law; in In the imposition of the penalties, the order of their
fixing the amount in each case attention shall be given, not only to respective severity shall be followed so that they may be executed
the mitigating and aggravating circumstances, but more successively or as nearly as may be possible, should a pardon have
particularly to the wealth or means of the culprit. been granted as to the penalty or penalties first imposed, or should
they have been served out.
FINE
Fine is a pecuniary penalty imposed by court in case of judgment of
conviction.
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 73
For the purpose of applying the provisions of the next Order of Severity.
preceding paragraph the respective severity of the penalties shall In the imposition of penalties, the convict shall first serve the most
be determined in accordance with the following scale: severe penalty imposed upon him in accordance with the scale
provided for in Article 70.
Death,
THREE-FOLD RULE
Reclusion perpetua, The three-fold rule provides that when multiple successive penalties
are imposed upon the offender, the maximum duration of the
Reclusion temporal, convict's sentence shall not be more than three-fold the length of
time corresponding to the most severe of the penalties imposed
Prision mayor, upon him. However, such maximum period shall in no case exceed
forty years.
Prision correccional,
Example;
Arresto mayor, X raped her daughter 5 times. He was charged and convicted of 5
counts of rape. The penalty for 1 count of rape is reclusion perpetua.
Arresto menor,
What penalty shall the court impose on him?
Destierro, 5 counts of reclusion perpetua.
Perpetual absolute disqualification, Since reclusion perpetua is 20-40 years, does that mean X will serve
200 years in prison?
Temporal absolute disqualification. NO. Under the three-fold rule the when the offender is serving
multiple successive sentences, the maximum duration of the
Suspension from public office, the right to vote and be offender’s sentence shall not exceed three folds of the length of the
voted for, the right to follow a profession or calling, and most severe penalty, provided that such penalty will not be more
than 40 years. In this case, since the penalty imposed upon X is 5
Public censure. reclusion perpetua, his service of sentence will not be more than
three-folds of the length of reclusion perpetua which is the most
Notwithstanding the provisions of the rule next severe penalty imposed upon him. However, since three counts of
preceding, the maximum duration of the convict's sentence shall reclusion perpetua is 120 years which exceeds the maximum penalty
not be more than three-fold the length of time corresponding to of 40 years, X will serve the maximum sentence of 40 years.
the most severe of the penalties imposed upon him. No other
penalty to which he may be liable shall be inflicted after the sum Example;
total of those imposed equals the same maximum period. X was charged and convicted of 5 counts of rape punishable by
Such maximum period shall in no case exceed forty years. In reclusion perpetua and a civil liability of P50,000.00. The judge,
applying the provisions of this rule the duration of perpetual applying the three-fold rule, sentenced X of 40 years of
penalties (pena perpetua) shall be computed at thirty imprisonment and a civil liability of P50,000.00.
years. (As amended).
Q: Is the judge correct?
SIMULTANEOUS SERVICE OF SENTENCE NO. The three-fold rule is not for the judge to impose. The 40 years
Under Article 70, as a rule, when the convict has to serve two or imprisonment in accordance to three-fold rule refers to service of
more penalties, he shall serve them simultaneously if the nature of sentence, NOT to the imposition of penalties.
the penalties will so permit.
If the judge will not impose the three-fold rule? Who will impose
Penalties that allow simultaneous service of sentence; it?
Improvement and fine; The three-fold rule is for the Director of Prisons to apply and
Imprisonment and suspension; compute, and not for the judge to impose.
Imprisonment and public censure;
What penalties cannot be served at the same time? Q: How should the judge impose 5 counts of rape?
All forms of imprisonment. The judge shall impose upon him a penalty of reclusion perpetua for
each count of rape, the penalty prescribed by law for the crime of
SUCCESSIVE SERVICE OF SENTENCE rape. Likewise, the judge shall impose upon the convict the civil
All forms of imprisonment cannot be served simultaneously. liability of P50,000.00 for each count of rape.
Example; does the three-fold rule also apply to civil liabilities of the
X was convicted of two counts of homicide. A penalty of reclusion offender?
temporal was imposed upon him for each count of homicide. NO. Each count of rape is a violation of the person of the victim
Reclusion temporal has a duration of 12-20 years. X will satisfy the therefore, civil indemnity is separate and distinct from the criminal
first 12-20 years of imprisonment. Thereafter, he shall serve another offense of rape. The civil indemnity shall be the number of times the
12-20 years of reclusion temporal for the second count of homicide. victim was raped.
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 74
In answering questions regarding penalties, you need not state the SUBSIDIARY PENALTIES
equivalent duration. It suffices that you state the designation, i.e. Subsidiary penalties are deemed imposed.
prision mayor, prision correcional, etc.
SUBSIDIARY IMPRISONMENT
--xXx-- Unlike subsidiary penalties, the subsidiary imprisonment must be
expressly stated in the decision.
Article 71. Graduated scales. - In the case in which the
law prescribed a penalty lower or higher by one or more degrees --xXx--
than another given penalty, the rules prescribed in Article 61 shall
be observed in graduating such penalty. Art. 74. Penalty higher than reclusion perpetua in certain
The lower or higher penalty shall be taken from the cases. — In cases in which the law prescribes a penalty higher than
graduated scale in which is comprised the given penalty. another given penalty, without specially designating the name of
The courts, in applying such lower or higher penalty, shall the former, if such higher penalty should be that of death, the
observe the following graduated scales: same penalty and the accessory penalties of Article 40, shall be
considered as the next higher penalty.
SCALE NO. 1
If the decision or law says higher than Reclusion perpetua or 2
Death, degrees than Reclusion temporal, then the penalty imposed is
Reclusion perpetua, Reclusion perpetua or Reclusion temporal as the case may be.
Reclusion temporal,
Prision mayor, Death must be designated by name. However, for the other
Prision correccional, penalties, this does not apply.
Arresto mayor,
Destierro, Example;
Arresto menor, The penalty for crime X is 2 degrees lower than RP. The penalty
Public censure, imposed is prision mayor.
Fine.
--xXx--
SCALE NO. 2
Art. 75. Increasing or reducing the penalty of fine by one
Perpetual absolute disqualification, or more degrees. — Whenever it may be necessary to increase or
Temporal absolute disqualification reduce the penalty of fine by one or more degrees, it shall be
Suspension from public office, the right to vote and be increased or reduced, respectively, for each degree, by one-fourth
voted for, the right to follow a profession or calling, of the maximum amount prescribed by law, without however,
Public censure, changing the minimum.
Fine.
The same rules shall be observed with regard of fines
What is the importance of 1 day in the duration of the period (6 yrs that do not consist of a fixed amount, but are made proportional.
and 1 DAY -12 years)?
The 1 day separates the different degrees of the penalty. It also --xXx--
separates a divisible penalty from an indivisible penalty. It also
determines whether subsidiary imprisonment may be imposed on Art. 76. Legal period of duration of divisible penalties. —
the offender. The legal period of duration of divisible penalties shall be
considered as divided into three parts, forming three periods, the
--xXx-- minimum, the medium, and the maximum in the manner shown in
the following table:
Art. 72. Preference in the payment of the civil liabilities.
— The civil liabilities of a person found guilty of two or more --xXx--
offenses shall be satisfied by following the chronological order of Art. 77. When the penalty is a complex one composed of
the dates of the judgments rendered against him, beginning with three distinct penalties. — In cases in which the law prescribes a
the first in order of time. penalty composed of three distinct penalties, each one shall form a
period; the lightest of them shall be the minimum the next the
The penalties shall be satisfied according to the scale of Art 70 medium, and the most severe the maximum period.
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 75
--xXx-- DESTIERRO
Destierro is considered as a principal correctional and divisible
Art. 79. Suspension of the execution and service of the penalty. Therefore, jurisdiction over crimes punishable with
penalties in case of insanity. — When a convict shall become destierro lies with the Metropolitan Trial Court.
insane or an imbecile after final sentence has been pronounced,
the execution of said sentence shall be suspended only with regard Destierro shall be imposed in the following cases;
to the personal penalty, the provisions of the second paragraph of Death or serious physical injuries is caused or are inflicted
circumstance number 1 of article 12 being observed in the under exceptional circumstance;
corresponding cases. Person fails to give bond for good behavior in grave and light
If at any time the convict shall recover his reason, his threats;
sentence shall be executed, unless the penalty shall have Concubine’s penalty for the crime of concubinage;
prescribed in accordance with the provisions of this Code. When after reducing the penalty by one or more degree,
The respective provisions of this section shall also be destierro is the proper penalty
observed if the insanity or imbecility occurs while the convict is
serving his sentence. Execution of Destierro
Convict shall not be permitted to enter the place designated in
INSANITY AT THE TIME OF TRIAL OR AFTER THE CONVICTION OF the sentence nor within the radius specified, which shall
THE ACCUSED BY FINAL JUDGMENT not be more than 250 and not less than 25 km from the
There will be a suspension of sentence. The accused cannot be made place designated;
to suffer the sentence. If the convict enters the prohibited area, he commits evasion of
sentence
The moment he regains his sanity he is required to serve his sentence.
Provided, that the period of penalty has not yet prescribed. --xXx--
Art. 81. When and how the death penalty is to be executed. --xXx--
Art. 82. Notification and execution of the sentence and assistance
to the culprit.
Art. 83. Suspension of the execution of the death sentence.
Art. 84. Place of execution and persons who may witness the same.
Art. 85. Provisions relative to the corpse of the person executed
and its burial.
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 77
must plead and prove it before Congress. Courts take judicial PRESCRIPTION OF CRIME
the courts. No judicial notice of notice of it; Prescription of Crime is the loss or forfeiture of the right of State to
Pardon; prosecute an act prohibited by law. The moment that a crime has
May be given to all kinds of Generally granted to a class or already prescribed, the court has to dismiss the case even if the
offenders; group of persons who have accused has not moved for its dismissal. The courts lose their
committed political offenses; jurisdiction to try the case.
Art. 90. Prescription of crime. — Crimes punishable by Q: Can the State still prosecute H for parricide?
death, reclusion perpetua or reclusion temporal shall prescribe in YES. The crime has not yet prescribed. The authorities and their
twenty years.
agents only came to know the crime 25 years from its commission.
Crimes punishable by other afflictive penalties shall This is the only time when the prescriptive period for the crime shall
prescribe in fifteen years. commence to run. Also, the neighbor who knew the commission of
Those punishable by a correctional penalty shall the crime is not the person required by law to discover the crime in
prescribe in ten years; with the exception of those punishable by order to start the running of the prescriptive period. Therefore, the
arresto mayor, which shall prescribe in five years. State can still file the case of parricide.
The crime of libel or other similar offenses shall prescribe
in one year. Example;
The crime of oral defamation and slander by deed shall Niki and Mariah were friends. Niki, before going to Mindanao, left
prescribe in six months.
the titles of her properties to Mariah for safekeeping. Mariah
Light offenses prescribe in two months.
became interested in one of the properties. While Niki was in
When the penalty fixed by law is a compound one, the Mindanao, Mariah falsified a Deed of Absolute Sale forging the
highest penalty shall be made the basis of the application of the signature of Niki, making it appear that Niki sold the property to her.
rules contained in the first, second and third paragraphs of this Mariah then registered the Deed before the Registry of Deeds. The
article. (As amended by RA 4661, approved June 19, 1966.) title was thereafter transferred to the name of Mariah. 20 years
thereafter, Niki came back to Manila and acquired the titles she left
Art. 91. Computation of prescription of offenses. — The to Mariah. Niki noticed that one title was missing. She eventually
period of prescription shall commence to run from the day on discovered that the property covered by such missing title was
which the crime is discovered by the offended party, the already transferred to the name of Mariah.
authorities, or their agents, and shall be interrupted by the filing of
the complaint or information, and shall commence to run again Can Niki file case of falsification of public document punishable by
when such proceedings terminate without the accused being Prision mayor, against Mariah?
convicted or acquitted, or are unjustifiably stopped for any reason
NO. The crime has already prescribed. If a document or transaction
not imputable to him.
involves real properties (sale, lease, attachment), the moment the
The term of prescription shall not run when the offender document is registered before the Registry of Deeds, such registration
is absent from the Philippine Archipelago. constitutes constructive notice. As such, the law presumes that the
whole world, including Niki, knows about the registration. The period
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 78
of prescription commences to run from that time. Since 20 years purposes of preliminary investigation. It remains suspended until the
have already lapsed in this case, the crime has already prescribed. accused is convicted or acquitted or the case is terminated without
This concerns only criminal liability. But Niki can still file a civil case the fault of accused.
for damages or any civil action to recover the property.
The term shall not run when the offender is absent from the
VIOLATION OF SPECIAL PENAL LAWS Philippine Archipelago.
In the case of People v. Pangilinan (G.R. No. 152662, June 13, 2012),
the Supreme Court said whether it is a violation of a special penal Situations which do not follow Art. 91;
law like the BP 22 or a violation of the RPC, the filing of a complaint In continuing crimes-prescriptive period will start to run only at
before the office of the public prosecutor suspends or interrupts the the termination of the intended result;
running of the prescriptive period. It remains suspended until the In crimes against false testimony, prescriptive period is
case has been decided the accused being acquitted or convicted or reckoned from the day final judgment is rendered in the
the case has been dismissed for any reason not imputable to him. proceeding where such false testimony is utilized not
when the false testimony is made;
Here the checks were issued, and the notice of dishonor was received by In Election offenses;
the maker in 1995. The cases were filed before the prosecutors in 1997, if discovery of the offense is incidental to judicial
and they filed the information in the MTC in 2000. The MTC and RTC proceedings, prescription begins when such
ruled that the crime did not prescribe. The CA held that the crime had proceedings terminate; or
prescribed, and that the filing of the complaint before the prosecutors From the date of the commission of the offense.
did not suspend the running of the prescriptive period.
--xXx--
The CA cited the case of Zaldivia v. Reyes and ruled that the violation
of BP 22 has already prescribed because according to the CA, in case Art. 92. When and how penalties prescribe. — The penalties
of violation of special penal laws, the running of the prescriptive imposed by final sentence prescribe as follows;
period is only interrupted upon the filing of the case before the Death and reclusion perpetua, in twenty years;
appropriate court because the Supreme Court interpreted the word Other afflictive penalties, in fifteen years;
“proceedings” as judicial proceedings in Zaldivia v. Reyes. Correctional penalties, in ten years; with the exception of the
penalty of arresto mayor, which prescribes in five years;
The SC said that the interpretation of the CA is erroneous. SC said it is Light penalties, in one year.
now settled in jurisprudence that whether it is a violation of a special
penal law or a violation of the RPC, the filing of the complaint with the Art. 93. Computation of the prescription of penalties. — The
public prosecutor interrupts the running of the prescriptive period. period of prescription of penalties shall commence to run from the
date when the culprit should evade the service of his sentence, and
Violation of Municipal Ordinance it shall be interrupted if the defendant should give himself up, be
In Zaldivia v. Reyes (G.R. No. 102342, July 3, 1992), what is involved captured, should go to some foreign country with which this
is a violation of a municipal ordinance. It is only in case of violation Government has no extradition treaty, or should commit another
of municipal ordinance wherein the running of the prescriptive crime before the expiration of the period of prescription.
period is interrupted upon the filing of the complaint before the
proper court. The filing of the information in 1997 suspended the PRESCRIPTION OF PENALTY
prescriptive period and the same remains suspended; thus the crime Prescription of penalty is the loss of the right of the State to execute
has not yet prescribed the sentence.
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 79
was only after 20 years that Garcia was located and brought behind For good conduct allowances which the culprit may earn while
bars. Garcia’s counsel filed a Petition for Habeas Corpus contending he is serving his sentence.
that the penalty prescribed and therefore, Garcia could not be
imprisoned. MODES FOR PARTIALLY EXTINGUISHING CRIMINAL LIABILITY
The following are the modes for extinguishing criminal liability;
Q: Is the counsel correct? Conditional Pardon;
YES. The penalty has prescribed. Homicide prescribes in 15 years. Commutation of sentence;
Here, Garcia was captured 20 years from escape. Good conduct of allowance;
Special Time Allowance for Loyalty;
Example; Parole under the Indeterminate Sentence Law;
Cuenca was charged with homicide. Being a bailable offense, Cuenca Implied repeal or amendment of penal law lowering the
posted bail. During the arraignment and pre trial, Cuenca appeared penalty;
before the court. However, during the trial proper, he did not
appear. Trial in absentia ensued. Judgment was for conviction. CONDITIONAL PARDON
Warrant of arrest was issued against Cuenca. It was only 20 years Conditional Pardon is an act of grace received from a power
thereafter that the police were able to arrest Cuenca and bring him entrusted with the authority to execute the law, but the pardon
behind bars. Cuenca’s counsel filed a petition for habeas corpus herein is subject to strict conditions.
contending that the penalty has prescribed.
Because of this strict conditions, there must be acceptance on the
Is the counsel correct? part of the offender. The moment he accepts, it becomes incumbent
NO. The penalty has not prescribed. In fact, prescription has not even upon him to comply with the strict terms and conditions of the
commenced to run. For the period to run, it is necessary that the pardon.
offender is serving sentence and while serving sentence, he escaped.
The running of prescriptive period only starts from the escape of Failure to comply with any of the strict conditions, the State can file
offender. In this case, the offender has not even served his sentence. a criminal case under Art 159- evasion of service of sentence. In
addition, the Chief Executive can order the immediate incarceration
SUSPENSION OF PRESCRIPTIVE PERIOD OF PENALTY of the offender under the Administrative Code.
The following are the grounds when the prescriptive period of
penalty is suspended; COMMUTATION OF SENTENCE
When offender surrenders; In commutation of sentence, a new sentence imposed shall be in lieu
When offender went to a country which has no extradition of the original sentence.
treaty with the Philippines;
When convict commits a crime before the expiration of period Example;
of prescription; Death penalty commuted to Reclusion perpetua.
When the offender is captured;
--xXx--
Prescription of Crimes v. Prescription of Penalty ART. 97. Allowance for good conduct. – The good conduct
PRESCRIPTION OF CRIMES PRESCRIPTION OF PENALTY of any offender qualified for credit for preventive imprisonment
Loss or forfeiture of the right Loss or forfeiture of the right pursuant to Article 29 of this Code, or of any convicted prisoner in
of the State to prosecute; of the State to enforce final any penal institution, rehabilitation or detention center or any
judgment; other local jail shall entitle him to the following deductions from
Starts counting upon the Starts counting upon the the period of his sentence;
discovery of the commission of escape or evasion of service of During the first two years of imprisonment, he shall be
the crime. sentence. allowed a deduction of twenty days for each month of good
Mere absence from the Absence from the Philippines behavior during detention;
Philippines interrupts the interrupts the period only During the third to the fifth year, inclusive, of his
running of the prescription; when the convict goes to a imprisonment, he shall be allowed a reduction of twenty-three
foreign country without an days for each month of good behavior during detention;
extradition treaty with the During the following years until the tenth year, inclusive, of
Philippines; his imprisonment, he shall be allowed a deduction of twenty-five days
for each month of good behavior during detention;
Commission of another crime Commission of another crime
before the expiration of the before the expiration of the During the eleventh and successive years of his
prescriptive period does not period interrupts the imprisonment, he shall be allowed a deduction of thirty days for
each month of good behavior during detention; and
interrupt prescription. prescription.
At any time during the period of imprisonment, he shall
be allowed another deduction of fifteen days, in addition to
--xXx--
numbers one to four hereof, for each month of study, teaching or
mentoring service time rendered. (As amended by R.A. 10592)
Art. 94. Partial Extinction of criminal liability. — Criminal liability is
extinguished partially;
An appeal by the accused shall not deprive him of
By conditional pardon;
entitlement to the above allowances for good conduct.
By commutation of the sentence; and
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 80
--xXx-- Reason
The commission of a crime, 2 injuries are inflicted;
ART. 98. Special time allowance for loyalty. – A deduction Social injury against the State for the disturbance of social
of one fifth of the period of his sentence shall be granted to any order; and
prisoner who, having evaded his preventive imprisonment or the Personal Injury against the offended party and his heirs;
service of his sentence under the circumstances mentioned in
Article 158 of this Code, gives himself up to the authorities within The social injury against the state will be answered by reparation.
48 hours following the issuance of a proclamation announcing the The personal injury will be answered by the civil indemnity.
passing away of the calamity or catastrophe referred to in said
article. A deduction of two-fifths of the period of his sentence shall Exceptions to Implied Institution of Civil Action
be granted in case said prisoner chose to stay in the place of his The following are the exemption to the general that a civil action is
confinement notwithstanding the existence of a calamity or impliedly instituted in a criminal case;
catastrophe enumerated in Article 158 of this Code. (As amended When offended party waives the civil action;
by R.A. 10592)
When the offended party reserves the right to file a separate
civil action, which must be made prior to the presentation
Example; of evidence of the prosecution;
During the time Bin Laden was serving his sentence behind bars, an When the offended party files the civil action prior to the
8.9 magnitude earthquake suddenly occurred prompting Bin Laden criminal action
to escape. He then went to the house of his mother. While Bin
Laden was watching TV in the house of his mother, he saw the ACQUITTAL; EFFECT ON CIVIL LIABILITY:
President announcing that the earthquake subsided. Within 48 In the following cases, acquittal in a criminal action bars recovery in
hours from announcement, Bin Laden surrendered. Because of this a civil action;
surrender, Bin Laden is entitled to the special allowance for loyalty If the judgment of acquittal states that the alleged criminal acts
for being so loyal to the government. of the offender were not committed by him;
If the judgment of acquittal states that the accused is not guilty
If Bin Laden remained in prison despite the 8.9 magnitude of criminal or civil damages;
earthquake, he is entitled to a deduction of 2/5 from the period of
his sentence.
In the following cases, the acquittal of the accused in a criminal case
is not a bar to recover civil liability;
However, if Bin Laden did not return, there will be an additional 1/5 When judgment of acquittal is based on reasonable doubt - This
to the term of his sentence. If Bin Laden merely remained in prison, is because civil actions require mere preponderance of
there will be neither deduction nor addition to his sentence. evidence;
When judgment of acquittal states that the liability of accused
--xXx--
is not criminal but civil in nature - This usually happens
when the case is estafa and there is a contract between
the accused and complainant, upon which the
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 81
accused failed to comply with the terms of the contract. is the one who acted under the compulsion of irresistible force or
There is breach of contract; uncontrollable fear.
When the judgment of acquittal states that the civil liability
does not arise from the crime but from other sources of --xXx--
obligations;
Art. 102. Subsidiary civil liability of innkeepers,
--xXx-- tavernkeepers and proprietors of establishments. — In default of
the persons criminally liable, innkeepers, tavernkeepers, and any
Art. 101. Rules regarding civil liability in certain cases. — other persons or corporations shall be civilly liable for crimes
The exemption from criminal liability established in subdivisions 1, committed in their establishments, in all cases where a violation of
2, 3, 5 and 6 of article 12 and in subdivision 4 of article 11 of this municipal ordinances or some general or special police regulation
Code does not include exemption from civil liability, which shall be shall have been committed by them or their employees.
enforced subject to the following rules: Innkeepers are also subsidiarily liable for the restitution
First. In cases of subdivisions 1, 2, and 3 of Article 12, the of goods taken by robbery or theft within their houses from guests
civil liability for acts committed by an imbecile or insane person, lodging therein, or for the payment of the value thereof, provided
and by a person under nine years of age, or by one over nine but that such guests shall have notified in advance the innkeeper
under fifteen years of age, who has acted without discernment, himself, or the person representing him, of the deposit of such
shall devolve upon those having such person under their legal goods within the inn; and shall furthermore have followed the
authority or control, unless it appears that there was no fault or directions which such innkeeper or his representative may have
negligence on their part. given them with respect to the care and vigilance over such goods.
Should there be no person having such insane, imbecile No liability shall attach in case of robbery with violence against or
or minor under his authority, legal guardianship or control, or if intimidation of persons unless committed by the innkeeper's
such person be insolvent, said insane, imbecile, or minor shall employees.
respond with their own property, excepting property exempt from
execution, in accordance with the civil law. Art. 103. Subsidiary civil liability of other persons. — The
Second. In cases falling within subdivision 4 of Article 11, subsidiary liability established in the next preceding article shall
the persons for whose benefit the harm has been prevented shall also apply to employers, teachers, persons, and corporations
be civilly liable in proportion to the benefit which they may have engaged in any kind of industry for felonies committed by their
received. servants, pupils, workmen, apprentices, or employees in the
The courts shall determine, in sound discretion, the discharge of their duties.
proportionate amount for which each one shall be liable.
When the respective shares cannot be equitably SUBSIDIARY CIVIL LIABILITY
determined, even approximately, or when the liability also Parents, teacher, employers, and proprietors shall be subsidiarily
attaches to the Government, or to the majority of the inhabitants liable for the crimes committed by their children, students,
of the town, and, in all events, whenever the damages have been employees, servants.
caused with the consent of the authorities or their agents,
indemnification shall be made in the manner prescribed by special Subsidiary Liability of employers
laws or regulations. Employers may be held subsidiarily liable for the acts of their
Third. In cases falling within subdivisions 5 and 6 of employees provided the following requisites are present;
Article 12, the persons using violence or causing the fears shall be Employer must be engaged in some kind of industry;
primarily liable and secondarily, or, if there be no such persons, Employer and employee relationship;
those doing the act shall be liable, saving always to the latter that Employee committed a crime in the exercise of his duties as
part of their property exempt from execution. employee;
There must be conviction of the crime and the employee was
INSANE, IMBECILE, MINOR found insolvent to pay civil indemnity;
In case the offender is insane, imbecile or minor, the civil liability
arising from their acts shall be shouldered by the persons who have The moment the employee was found insolvent, the liability of the
custody of the insane, imbecile or minor. employer now becomes absolute. A motion for the issuance of a
subsidiary writ of execution must then be filed by the complainant
Secondary liability falls on the property of the insane, imbecile or
minor, except those properties which are prohibited from being Example;
attached. Paris Hilton, a guest in a hotel, told the representative of the hotel
that she carries valuables. The representative of the hotel told Paris
STATE OF NECESSITY about the rules regarding the care and vigilance of the valuables.
All persons who have been benefitted during the state of necessity However, during nighttime, a robbery occurred inside the hotel.
shall bear the civil liability. If there are many persons benefitted, the Among those taken were the valuables of Paris. The offender was
liability shall be divided by the court proportionately. arrested, convicted and civil liability was imposed upon him.
IRRESISTIBLE FORCE OR UNCONTROLLABLE FEAR In case of insolvency of the offender, does the proprietor of the
Borne by the person who enforced the threats to the offender. hotel or establishment have subsidiary civil liability?
Secondary liability falls upon the principal by direct participation, who
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 82
YES. The guest complied with the rules and regulations as to the care Q: Is the proprietor of the establishment liable?
and vigilance of the goods. He also informed the representative of YES. There was a violation of the ordinance. Any crimes committed
the hotel of the presence of his valuables. in the establishment will make the proprietor subsidiarily liable for
civil liability only, not for criminal liability.
Example;
Same situation as above. The guard of the hotel tried to fight the Example;
robbers. One of the robbers shot the guard. Prosecuted for robbery Vin Diesel was a driver of XYZ Corporation engaged in the business of
with homicide and was convicted. distributing goods to supermarkets. Vin Diesel was driving recklessly as
he was headed to one supermarket. In the course thereof, Vin Diesel hit
In case of insolvency, is the proprietor of the hotel subsidiarily a car. The car was damaged. Because of this, a crime for reckless
liable? imprudence resulting to damage to property was filed against Vin Diesel.
NO. The crime committed is robbery with homicide, which is a crime Court found him guilty. The penalties imposed were fine and payment of
under robbery with violence against or intimidation of persons. If damage caused. When the judgment became final and executory, a writ
the crime committed is robbery with violence against or intimidation of execution was issued but was returned unsatisfied due to the
of persons, the proprietor is not liable, except if the offender is the insolvency of Vin Diesel.
employee of the hotel or establishment.
Q: Is there need to file a separate civil action?
NO. There is no need to file a separate civil action. In the very same
Solidum v. People (G.r. No. 192123, March 10, 2014) action for reckless imprudence resulting to damage to property, the
Gerald Gercayo was born with an imperforated anus. Two days after moment the employee is found to be insolvent, the liability of the
his birth, Gerald underwent colostomy, a surgical procedure to bring employer becomes absolute. However, even if it is absolute, it is not
one end of the large intestine out through the abdominal wall, automatic. The complainant has to file a Motion for the Issuance of a
enabling him to excrete through a colostomy bag attached to the Subsidiary Writ of Execution. This is not an ex parte motion, but a
side of his body. When Gerald was three years old, he was admitted litigated one. Thus, the other party (XYZ COrpo) must be informed
at the Ospital ng Maynila for a pull-through operation. Dr. Leandro for due process.
Resurreccion headed the surgical team along with the
anesthesiologists which includes petitioner Dr. Fernando Solidum. --xXx--
During the operation, Gerald experienced bradycardia, and went
into a coma. His coma lasted for two weeks,9 but he regained Art. 104. What is included in civil liability. — The civil liability
consciousness only after a month. He could no longer see, hear or established in Articles 100, 101, 102, and 103 of this Code includes;
move. Thus, the mother lodged a complaint for reckless imprudence Restitution;
resulting in serious physical injuries against the attending physicians Reparation of the damage caused;
and Ospital ng Maynila. Indemnification for consequential damages.
Q: Is Dr. Solidum civilly or criminally liable? Art. 105. Restitution. — How made. — The restitution of
NO. The Prosecution presented no witnesses with special medical the thing itself must be made whenever possible, with allowance
qualifications in anesthesia to provide guidance to the trial court on for any deterioration, or diminution of value as determined by the
what standard of care was applicable. It would consequently be truly court.
difficult, if not impossible, to determine whether the first three The thing itself shall be restored, even though it be found
elements of a negligence and malpractice action were attendant. in the possession of a third person who has acquired it by lawful
means, saving to the latter his action against the proper person,
Q: Is Ospital ng Maynila subsidiarily liable? who may be liable to him.
NO. For one, Ospital ng Maynila was not at all a party in the This provision is not applicable in cases in which the thing
proceedings. Hence, its fundamental right to be heard was not has been acquired by the third person in the manner and under the
respected from the outset. Second, granting for the sake of requirements which, by law, bar an action for its recovery.
argument that Ospital ng Maynila was impleaded, still it cannot be
subsidiarily liable because the requisites for the subsidiary liability of RESTITUTION
the employers are not present. First, there is no employer-employee Restitution is the return of the very thing taken.
relationship because based on the evidence, Dr. Solidum is a
consultant and not an employee of OM. Second, OM is not engaged Exception
in some kind of industry, it is a charitable institution that caters Exception: if the innocent purchaser acquired the said property in a
hospital services to poor patients; there is no profit. Also, Dr. public sale. Then, it can no longer be taken away from him.
Solidum was not criminally liable. Lastly, granting that Dr. Solidum
was held liable for civil liability, there was no proof that Dr. Solidum What is the remedy of the offended party if the thing can no longer
was insolvent such that OM will be subsidiarily liable. be returned?
The remedy of the offended party is reparation.
Example;
A municipal ordinance provides that Establishment XYZ should only --xXx--
be open during weekdays. However, this establishment violated the
ordinance as it opened on a Sunday. A crime was committed during Art. 106. Reparation. — How made. — The court shall
the Sunday it opened. determine the amount of damage, taking into consideration the
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GARCIA NOTES - CRIMINAL LAW REVIEW [2018] 83
price of the thing, whenever possible, and its special sentimental value shall have a right of action against the others for the amount of
to the injured party, and reparation shall be made accordingly. their respective shares.
Reparation Example;
In case of inability to return the property stolen, the culprit must pay X, Y and Z were charged in the case of robbery. They were all
the value of the property stolen. The court shall determine the value charged as principals. But the judge ruled that X is a principal, Y is an
of the thing taken including its sentimental value. accomplice and Z is a mere accessory. The judge divided the civil
liability proportionately. Their liabilities among themselves are in
--xXx-- solidum.
Art. 107. Indemnification — What is included. — Against whom can the private complainant recover said civil
Indemnification for consequential damages shall include not only liability?
those caused the injured party, but also those suffered by his The private complainant can recover the entire civil liability from X,
family or by a third person by reason of the crime. the principal but X now has a right of action against Y and Z insofar
as their respective civil liabilities are concerned. If X cannot pay, the
INDEMNIFICATION private complainant can go against Y. Y can now go against X and Z
Indemnification includes moral damages, civil indemnity, exemplary because their liabilities are in solidum but subsidiary insofar as the
damages. private complainant is concerned
[Maria Aurora Mon, Carmel Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon, J-ann Javillonar & Maria Maica Angelika
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