CRIMINAL LAW I: Hand-out #4

AGGRAVATING CIRCUMSTANCES
- Aggravating circumstances are those which, if attendant in the
commission of the crime, serve to increase the penalty without however,
exceeding the maximum of the penalty provided by law for the offense.

Different Kinds of Aggravating Circumstances

1. Ordinary or Generic
2. Specific
3. Qualifying
4. Inherent; and
5. Special

Ordinary or Generic Aggravating Circumstances

- Those that can generally apply to all crimes. When attendant, they
increase the imposable penalty to the maximum period of that which is
prescribed, except when offset by ordinary mitigating circumstances.

- The following are generic aggravating circumstances:

1. Contempt or insult of public authority

2. Recidivism
3. Nighttime, uninhabited place, or band
4. Abuse of confidence or obvious ungratefulness
5. Palace or place of commission of crime
6. Crime committed in the dwelling of the offended party
7. Breaking of parts of the house
8. Unlawful entry
9. Habituality
10. Use of persons under 15 years of age
11. Craft, fraud, or disguise

Specific Aggravating Circumstances

- Those that apply only to particular classes of crimes. Nevertheless, they
are treated in the same manner as generic aggravating circumstances.

- The following are specific aggravating circumstances:

1. Disregard of rank, age, or sex due the offended party is applicable only in
crimes against persons and honor;
2. Abuse of superior strength or means be employed to weaken the defense
is applicable only in crimes against persons;
3. Treachery is applicable only in crimes against persons;
4. Ignominy is applicable only in crimes against chastity; and
 5. Cruelty applicable only in crimes against persons.

Qualifying Aggravating Circumstances

- Those that change the nature of the crime and thus do not merely affect
the penalty imposed. When acts are attended by qualifying aggravating
circumstances, they serve to make those acts punishable under a
different provision of law.

Inherent Aggravating Circumstances

- Those that must necessarily accompany the commission of the crime.
Thus, they are not appreciated as aggravating circumstances within the
contemplation of Article 14 and are treated as essential elements of the
offense to which they form an integral part. Thus, they generally do not
serve to increase the penalty.

- Some inherent aggravating circumstances are:

1. Evident premeditation is inherent in robbery, theft, estafa, adultery and

concubinage;
2. Fraud in estafa;
3. Breaking of a wall or unlawful entry into a house in robbery with the use
of force upon things;
4. Abuse of public position in malversation of public funds and property;
and
5. Deceit in simple seduction

Special Aggravating Circumstances

- Those which arise under special conditions, serving to increase the
penalty of the offense and cannot be offset by mitigating circumstances.

- Some examples are:

1. Complex crimes;
2. Use of unlicensed firearm, when inherent in the crime, or in the
commission of brigandage;
3. Taking advantage of public position;
4. Membership in an organized/syndicated crime group;
5. Error in personae; and
6. Quasi-recidivism

Rule on Specific Allegations of Aggravating Circumstances in a Criminal

Information
- Sec. 8 and 9 of Rule 110 of the Rules on Criminal Procedure provide that
for qualifying and aggravating circumstances to be appreciated, it must
be alleged in the complaint or Information. This is in line with the
 constitutional right of an accused to be informed of the nature and cause
of the accusation against him. Even if the prosecution has duly proven
the presence of the circumstances, the Court cannot appreciate the same
if they were not alleged in the Information.

Effect of the presence of multiple qualifying aggravating circumstances

- When there is more than one qualifying aggravating circumstance
present, one of them will be appreciated as qualifying while the others
will be considered as having the effect of a mere generic aggravating
circumstance.

Taking Advantage of Public Position

What is the effect of being a police officer in relation to this

circumstance?
- The mere fact that an accused is a policeman and used his government
issued revolver to kill the victim is not sufficient to establish that he
misused his public position in the commission of the crime. Accused
could still have committed the crime even without being a policeman. To
appreciate this aggravating circumstance, the public officer must use the
influence, prestige, or ascendancy which his office gives him as a means
by which he realizes his purpose.

Committed in Contempt of or With Insult to the Public Authorities

Requisites:

1. That the public authority is engaged in the exercise of his functions;

2. That the public authority is not the person against whom the crime is
committed;
3. That the offender knows him to be a public authority; and
4. That the presence of the public officer has not prevented the offender
from committing the criminal act in his presence.

Disregard of Rank, Sex, or Age

How are the aggravating circumstances of disregard of rank, sex, or age

appreciated when all are present?
- These circumstances can be considered single or altogether. If all of them
are present, they have the weight of one aggravating circumstance only.

In what crimes should the circumstances of disregard of rank, sex, or age

be applied?
 - The circumstance of rank, sex, and age may be taken into account only
in crimes against persons or honor, when in the commission of the
crime, there is some insult or disrespect to rank, sex, or age.

Instances when the aggravating circumstance of disregard of rank, sex, or

age cannot be appreciated

1. When the offender acted with passion and obfuscation;

2. When there exists a relationship between the offended party and the
offender;
3. When the condition of being a woman is indispensable in the commission
of the crime. (e.g. abduction, seduction, and rape)

Commission of Crime in One’s Dwelling

Dwelling
- Dwelling is a building or structure, exclusively used for rest and comfort.
The term dwelling includes dependencies, the foot of the staircase, and
enclosure under the house.

Does a “bedspace” qualify as “dwelling”?

- Yes. It is not necessary, under the law, that the victim owns the place
where he lives or dwells. Be he a lessee, a boarder, or a bed-spacer, the
place is his home, the sanctity of which the law seeks to protect and
uphold.

When can the circumstance of dwelling be applied?

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

Abuse of Confidence and Obvious Ungratefulness

- In order that abuse of confidence and obvious ungratefulness to be
considered aggravating, it is necessary that there exists a relation of
trust and confidence between the accused and one against whom the
crime was committed and the accused made use of such a relationship to
commit the crime. Similarly, there could have been no obvious
ungratefulness in the commission of the crime if the requisite trust of the
victims upon the accused prior to the criminal act is lacking or non-
existent.

Palace and Places of Commission of Offense

What is the basis of the aggravating circumstance that the crime is
committed in a place where public authorities were engaged in the
discharge of their duties?
- It must be pointed out that this aggravating circumstance is based on
the greater perversity of the offender, as shown by the place of the
commission of the crime, which must be respected.

Example of a place where public authorities are engaged in their duties

- If the crime was committed right in the police station where policemen
where discharging their public functions.

Nighttime, Uninhabited Place, or Band

Two Tests for Nocturnity to apply as an aggravating circumstance

1. The objective test, under which nocturnity is aggravating because it

facilitates the commission of the offense; and
2. The subjective test, under which nocturnity is aggravating because it was
purposely sought by the offender.

Essence of nocturnity as an aggravating circumstance

- The essence of this aggravating circumstance is the obscuridad afforded
by, and not merely the chronological onset of, nighttime. Although the
offense was committed at night, nocturnity does not become a modifying
factor when the place is adequately lighted and, thus, could no longer
insure the offender’s immunity from identification or capture.

How should the circumstance of uninhabited place be determined?

- The uninhibitedness of a place is determined not by the distance of the
nearest house to the scene of the crime, but whether or not in the place
of commission, there was reasonable possibility of the victim receiving
some help.

When is there an aggravating circumstance of band?

- The aggravating circumstance of band exists whenever more than three
armed malefactors act together in the commission of an offense.

When are nighttime, uninhabited place or band aggravating?

1. When it facilitated the commission of the crime; or

2. When especially sought or taken advantage of the accused to insure the
commission of the crime or for the purpose of impunity.

On Occasion of Calamity or Misfortune

What is the reason for the provision of the circumstance of “on occasion
of calamity or misfortune”?
- The reason for the provision of this aggravating circumstance is found in
the debased form of criminality met in one who, in the midst of a great
calamity, instead of lending aid to the afflicted, adds to their suffering by
taking advantage of their misfortune to despoil them.

Aid of Armed Men

Distinction between “by a band” from “with aid of armed men”

- When a crime is committed by a band, it requires more than three armed
malefactors (i.e. at least four) who should have acted together in the
commission of an offense and all band members are liable as principals.
On the other hand, if the crime is committed with the aid of armed men,
it requires the aid of at least two armed men and the latter should merely
act as accomplices.

Recidivism, Reiteracion, Quasi-recidivism, Habitual Delinquency

Recidivism Reiteracion Quasi-recidivism Habitual

Delinquency
Accused was previously convicted by final judgment of a crime/s and is
convicted anew of another.
Offense which the Offense/s which Offense of which Offenses which
accused was the accused was the accused was the accused was
previously previously previously previously
convicted of and punished for and convicted and for convicted of
of which he is of which he is which he is (which should be
convicted anew convicted anew serving sentence robbery, theft,
must be need not be is punished serious/less
embraced under embraced under under the RPC or serious physical
the same Title of the same Title of SPL, while the injuries, estafa,
the RPC. the RPC; both offense that he or falsification)
offenses however commits while and of which he
must be serving sentence is convicted anew
punished under therefor must be must be
the RPC. punished under punished under
the RPC. the RPC.
Previous Service of Previous Previous
conviction by sentence is conviction by conviction by
final judgment is required. final judgment is final judgment is
enough. enough. enough.
No period No period No period Within 10 years
between previous between previous between previous from release or
and last and last and last last conviction for
convictions. convictions. convictions. robbery, theft,
serious/less
serious physical
injuries, estafa,
or falsification,
accused was
found guilty
thereof, a third
time or oftener.
Generic Generic Special Extra-ordinary
Aggravating Aggravating Aggravating Aggravating
Circumstance Circumstance Circumstance Circumstance
Can be offset by Can be offset by Cannot be offset Cannot be offset
Mitigating Mitigating by Mitigating by Mitigating
Circumstance Circumstance Circumstance Circumstance
If not offset by If not offset by Serves to increase Additional
MC, serves to MC, serves to penalty to penalty is
increase penalty increase penalty maximum period. imposed.
to maximum to maximum
period. period.
Always an Not always an Always an Additional
Aggravating Aggravating Aggravating penalty is always
Circumstance Circumstance Circumstance imposed.

Price, Reward, or Promise

- To consider this circumstance, the price, reward, or promise must be the
primary reason or primordial motive for the commission of the crime.

Who incurs liability for the aggravating circumstance of price?

- This affects not only the person who received the money or the reward
but also the person who gave it.

By Means of Inundation, Fire, Poison, Explosion, Stranding of a Vessel or

International Damage thereto, Derailment of a Locomotive, or by the use
of any other artifice involving great waste and ruin
- These circumstances must be used by the offender as a means to
accomplish a criminal purpose otherwise it cannot be considered to
increase the penalty or to change the nature of the offense.

Evident Premeditation
- There is evident premeditation when the following requisites are met:

1. The time when the offender determined to commit the crime;

 2. An act manifestly indicating that the culprit has clung to his
determination; and
3. A sufficient lapse of time between the determination and execution to
allow him to reflect upon the consequences of his act.

Essence of Evident Premeditation

- The essence of evident premeditation is that the execution of the criminal
act must be preceded by cool thought and reflection upon the resolution
to carry out the criminal intent, during the space of time sufficient to
arrive at a calm judgment. The premeditation to kill must be plain and
notorious, and thereafter proven by evidence of outward acts showing
such intent to kill. Accordingly, there can be no evident premeditation
when the determination to commit the crime was immediately followed
by execution.

What does the law require for premeditation to be “evident”?

- Evident premeditation must be based on external facts which are
evident, not merely suspected, which indicate deliberate planning. There
must be direct evidence showing a plan or preparation to kill, or proof
that the accused meditated and reflected upon his decision to kill the
victim.

Craft, Fraud, or Disguise

- The following are examples of circumstance of craft, fraud, or disguise:

1. Where the accused pretended to be constabulary soldiers and by that

ploy gained entry into the residence of their prey whom they thereafter
robbed and killed;
2. Where the accused pretended to be needful of medical treatment, and
through this artifice, entered the house of the victim whom they
thereupon robbed and killed;
3. Where the accused pretended to be wayfarers who had lost their way and
by this means gained entry into a house, in which they then perpetrated
the crime of robbery with homicide;
4. Where the accused pretended to be a customer wanting to buy a bottle of
wine;
5. Where the accused pretended to be co-passengers of the victim in a
public utility vehicle; or
6. Where the accused pretended to posed as customers wishing to buy
cigarettes; and as being thirsty, asking for drink of water.

Abuse of Superior Strength

- It is present whenever there is a notorious inequality of forces between
the victim and the aggressor/s that is plainly and obviously
advantageous to the aggressor/s and purposely selected or taken
 advantage of to facilitate the commission of the crime. To take advantage
of superior strength means to purposely use force excessively out of
proportion to the means of defense available to the person attacked. The
appreciation of this aggravating circumstance depends on the age, size,
and strength of the parties.

Means Employed to Weaken the Defense

- This circumstance is applicable only to crimes against persons, and
sometimes against person and property, such as robbery with physical
injuries or homicide.

Instances that can be considered as means employed to weaken the

defense:

1. Suddenly throwing a cloak over the head of his opponent and wounds or
kills him;
2. Suddenly casting sand or dirt upon the latter’s eyes and then wounds or
kills him.

Treachery
- There is treachery when two conditions concur:

1. That the means, methods, and forms of execution employed gave the
person attacked no opportunity to defend himself or to retaliate; and
2. That such means, methods, and forms of execution were deliberately and
consciously adopted by the accused without danger to his person.

Essence of Treachery
- The essence of treachery is the sudden and unexpected attack by an
aggressor on the unsuspecting victim, depriving the latter of any chance
to defend himself and thereby ensuring its commission without risk of
himself.

Circumstances absorbed by treachery

- Treachery absorbs the following aggravating circumstances:

1. Craft;
2. Abuse of superior strength;
3. Nighttime;
4. Aid of armed men;
5. By band;
6. Employing means to weaken the defense

Ignominy
 - ignominy is a circumstance pertaining to the moral order, which adds
disgrace and obloquy to the material injury caused by the crime.

Some instances where ignominy was considered:

1. Where the accused ordered the complainant to exhibit to them her

complete nakedness for about ten minutes before raping her;
2. Where the rape was committed in front of the husband of the victim or
by two or more persons in view of one another.

Unlawful Entry
- There is unlawful entry when an entrance (and not escape) is effected by
a way not intended for the purpose.

Reason for the aggravation of the crime when committed with unlawful
entry
- One who acts, not respecting the walls erected by men to guard their
property and provide for their personal safety, shows a greater perversity,
a greater audacity; hence, the law punishes him with more severity.

Breaking Wall, Roof, Floor, Door, or Window

- To be considered as aggravating, the breaking must be utilized as a
means to commit the crime. However, it is not necessary that the
offender should have entered the building. What aggravates the liability
of the offender is the breaking of a part of a building.

- If the offender broke a window to enable himself to reach a purse with

money on the table near the window, which he took while his body was
outside of the building, the crime of theft was attended by this
aggravating circumstance. It is not necessary that the offender should
have entered the building.

Aid of Persons under 15 years of Age

- Under Sec. 20-C of RA 9344, as amended by RA 10630, any person who,
in the commission of a crime, makes use, takes advantage of, or profits
from the use of children (a person under 18 years old), including any
person who abuses his/her authority over the child or who, with abuse
of confidence, takes advantage of the vulnerabilities of the child and shall
induce, threaten or instigate the commission of the crime, shall be
imposed the penalty prescribed by law for the crime committed in its
maximum period.

By Means of Motor Vehicles, Airship, or Similar Means

- The use of a motor vehicle is aggravating when it is used either to
commit the crime or to facilitate escape, but not when the use thereof
 was merely incidental and was not purposely sought to facilitate the
commission of the offense or to render the escape of the offender easier
and his apprehension difficult.

Cruelty
- For cruelty to be appreciated against the accused, it must be shown that
the accused, for his pleasure and satisfaction, caused the victim to suffer
slowly and painfully as he inflicted on him unnecessary physical and
moral pain.