Professional Documents
Culture Documents
It is that branch of public substantive law Note that consuls are not diplomatic
which defines offenses and prescribes their officers. This includes consul-general,
penalties. It is substantive because it vice-consul or any consul in a foreign
defines the state’s right to inflict punishment country, who are therefore, not immune to
and the liability of the offenders. It is public the operation or application of the penal law
law because it deals with the relation of the of the country where they are assigned.
individual with the state. Consuls are subject to the penal laws of the
country where they are assigned.
3. Must not partake of the nature of a Territoriality means that the penal laws of
bill of attainder. the country have force and effect only within
its territory. It cannot penalize crimes
4. Must not impose cruel and unusual committed outside the same. This is
punishment or excessive fines. subject to certain exceptions brought about
by international agreements and practice.
The territory of the country is not limited to
Characteristics of Criminal Law the land where its sovereignty resides but
includes also its maritime and interior
1. Generality waters as well as its atmosphere.
All bodies of water comprising the maritime Three international law theories on aerial
zone and interior waters abounding different jurisdiction
islands comprising the Philippine
Archipelago are part of the Philippine (1) The atmosphere over the country is
territory regardless of their breadth, depth, free and not subject to the
width or dimension. jurisdiction of the subjacent state,
except for the protection of its
On the fluvial jurisdiction there is presently a national security and public order.
departure from the accepted International
Law Rule, because the Philippines adopted Under this theory, if a crime is
the Archipelagic Rule. In the International committed on board a foreign aircraft
Law Rule, when a strait within a country has at the atmosphere of a country, the
a width of more than 6 miles, the center law of that country does not govern
lane in excess of the 3 miles on both sides unless the crime affects the national
is considered international waters. security.
the repeal, the act or omission which used escape. If they escape, they commit
to be a crime is no longer a crime. An the crime of evasion of sentence,
example is Republic Act No. 7363, which even if there is no more legal basis
decriminalized subversion. to hold them in the penitentiary. This
is so because prisoners are
A repeal is partial or relative when the crime accountabilities of the government;
punished under the repealed law continues they are not supposed to step out
to be a crime inspite of the repeal. This simply because their sentence has
means that the repeal merely modified the already been, or that the law under
conditions affecting the crime under the which they are sentenced has been
repealed law. The modification may be declared null and void.
prejudicial or beneficial to the offender.
Hence, the following rule: If they are not discharged from
confinement, a petition for habeas
corpus should be filed to test the
Consequences if repeal of penal law is total legality of their continued
or absolute confinement in jail.
(1) If a case is pending in court involving If the convict, on the other hand, is a
the violation of the repealed law, the habitual delinquent, he will continue
same shall be dismissed, even serving the sentence in spite of the
though the accused may be a fact that the law under which he was
habitual delinquent. This is so convicted has already been
because all persons accused of a absolutely repealed. This is so
crime are presumed innocent until because penal laws should be given
they are convicted by final judgment. retroactive application to favor only
Therefore, the accused shall be those who are not habitual
acquitted. delinquents.
but is not less than P 200.00, is considered self-terminating law because there was no
a correctional penalty. These two articles repeal at all.
appear to be inconsistent. So to harmonize
them, the Supreme Court ruled that if the
issue involves the prescription of the crime, BASIC MAXIMS IN CRIMINAL LAW
that felony will be considered a light felony
and, therefore, prescribes within two
months. But if the issue involves Doctrine of Pro Reo
prescription of the penalty, the fine of
P200.00 will be considered correctional and Whenever a penal law is to be construed or
it will prescribe within 10 years. Clearly, the applied and the law admits of two
court avoided the collision between the two interpretations – one lenient to the offender
articles. and one strict to the offender – that
interpretation which is lenient or favorable to
the offender will be adopted.
favorable for the accused to interpret the actual wrongdoers, since criminal law is
law. directed against acts and omissions which
the society does not approve. Consistent
with this theory, the mala prohibita principle
Nullum crimen, nulla poena sine lege which punishes an offense regardless of
malice or criminal intent, should not be
There is no crime when there is no law utilized to apply the full harshness of the
punishing the same. This is true to civil law special law.
countries, but not to common law countries.
In Magno v CA, decided on June 26,
Because of this maxim, there is no common 1992, the Supreme Court acquitted Magno
law crime in the Philippines. No matter how of violation of Batas Pambansa Blg. 22
wrongful, evil or bad the act is, if there is no when he acted without malice. The
law defining the act, the same is not wrongdoer is not Magno but the lessor who
considered a crime. deposited the checks. He should have
returned the checks to Magno when he
Common law crimes are wrongful acts pulled out the equipment. To convict the
which the community/society condemns as accused would defeat the noble objective of
contemptible, even though there is no law the law and the law would be tainted with
declaring the act criminal. materialism and opportunism.
Code of Kalantiao
Actus non facit reum, nisi mens sit rea
If you will be asked about the development
The act cannot be criminal where the mind of criminal law in the Philippines, do not
is not criminal. This is true to a felony start with the Revised Penal Code. Under
characterized by dolo, but not a felony the Code of Kalantiao, there were penal
resulting from culpa. This maxim is not an provisions. Under this code, if a man would
absolute one because it is not applied to have a relation with a married woman, she
culpable felonies, or those that result from is penalized. Adultery is a crime during
negligence. those days. Even offending religious things,
such as gods, are penalized. The Code of
Kalantiao has certain penal provisions. The
Utilitarian Theory or Protective Theory Filipinos have their own set of penology
also.
The primary purpose of the punishment
under criminal law is the protection of
society from actual and potential Spanish Codigo Penal
wrongdoers. The courts, therefore, in
exacting retribution for the wronged society, When the Spanish Colonizers came, the
should direct the punishment to potential or Spanish Codigo Penal was made applicable
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
and extended to the Philippines by Royal Since that Code of Crimes was never
Decree of 1870. This was made effective in enacted as law, he enacted his own code of
the Philippines in July 14, 1876. crimes. But it was the Code of Crimes that
that was presented in the Batasan as
Cabinet Bill no. 2. Because the code of
Who is Rafael Del Pan? crimes prepared by Guevarra was more of a
moral code than a penal code, there were
He drafted a correctional code which was several oppositions against the code.
after the Spanish Codigo Penal was
extended to the Philippines. But that
correctional code was never enacted into Proposed Penal Code of the Philippines
law. Instead, a committee was organized
headed by then Anacleto Diaz. This Through Assemblyman Estelito Mendoza,
committee was the one who drafted the the UP Law Center formed a committee
present Revised Penal Code. which drafted the Penal Code of the
Philippines. This Penal Code of the
Philippines was substituted as Cabinet Bill
The present Revised Penal Code no. 2 and this has been discussed in the
floor of the Batasang Pambansa. So the
When a committee to draft the Revised Code of Crimes now in Congress was not
Penal Code was formed, one of the the Code of Crimes during the time of
reference that they took hold of was the President Roxas. This is a different one.
correctional code of Del Pan. In fact, many Cabinet Bill No. 2 is the Penal Code of the
provisions of the Revised Penal Code were Philippines drafted by a code committee
no longer from the Spanish Penal Code; chosen by the UP Law Center, one of them
they were lifted from the correctional code was Professor Ortega. There were seven
of Del Pan. So it was him who formulated members of the code committee. It would
or paraphrased this provision making it have been enacted into law it not for the
simpler and more understandable to dissolution of the Batasang Pambansa
Filipinos because at that time, there were dissolved. The Congress was planning to
only a handful who understood Spanish. revive it so that it can be enacted into law.
During the time of President Manuel Roxas, During Martial Law, there are many
a code commission was tasked to draft a Presidential Decrees issued aside from the
penal code that will be more in keeping with special laws passed by the Philippine
the custom, traditions, traits as well as Legislature Commission. All these special
beliefs of the Filipinos. During that time, the laws, which are penal in character, are part
code committee drafted the so-called Code of our Penal Code.
of Crimes. This too, slept in Congress. It
was never enacted into law. Among those
who participated in drafting the Code of
Crimes was Judge Guellermo Guevarra.
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
expressly penalize the mere attempt was alerted. What was the crime
or frustration of the crime. committed?
Intraterritorial application
Felony
In the intraterritorial application of the
A crime under the Revised Penal Code is Revised Penal Code, Article 2 makes it
referred to as a felony. Do not use this term clear that it does not refer only to Philippine
in reference to a violation of special law. archipelago but it also includes the
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
atmosphere, interior waters and maritime (2) When the foreign country in whose
zone. So whenever you use the word territorial waters the crime was
territory, do not limit this to land area only. committed adopts the French Rule,
which applies only to merchant
As far as jurisdiction or application of the vessels, except when the crime
Revised Penal Code over crimes committed committed affects the national
on maritime zones or interior waters, the security or public order of such
Archipelagic Rule shall be observed. So the foreign country.
three-mile limit on our shoreline has been
modified by the rule. Any crime committed
in interior waters comprising the Philippine The French Rule
archipelago shall be subject to our laws
although committed on board a foreign The French Rule provides that the
merchant vessel. nationality of the vessel follows the flag
which the vessel flies, unless the crime
A vessel is considered a Philippine ship only committed endangers the national security
when it is registered in accordance with of a foreign country where the vessel is
Philippine laws. Under international law, as within jurisdiction in which case such foreign
long as such vessel is not within the country will never lose jurisdiction over such
territorial waters of a foreign country, vessel.
Philippine laws shall govern.
duties. However, if the second marriage application to the Revised Penal Code,
was celebrated within the Philippine because Title I of Book 2 does not include
embassy, he may be prosecuted here, since rebellion.
it is as if he contracted the marriage here in
the Philippines. Illustration:
Criminal Intent is not deceit. Do not use On the other hand, motive implies motion. It
deceit in translating dolo, because the is the moving power which impels one to do
nearest translation is deliberate intent. an act. When there is motive in the
commission of a crime, it always comes
In criminal law, intent is categorized into before the intent. But a crime may be
two: committed without motive.
and strangled his mother, the son, when reference to a particular crime, this term is
prosecuted for parricide, raised the defense meaningless. For example, in theft, the
that he had no intent to kill his mother. It mens rea is the taking of the property of
was held that criminal intent applies on the another with intent to gain. In falsification,
strangulation of the vital part of the body. the mens rea is the effecting of the forgery
Criminal intent is on the basis of the act, not with intent to pervert the truth. It is not
on the basis if what the offender says. merely writing something that is not true; the
intent to pervert the truth must follow the
Look into motive to determine the proper performance of the act.
crime which can be imputed to the accused.
If a judge was killed, determine if the killing In criminal law, we sometimes have to
has any relation to the official functions of consider the crime on the basis of intent.
the judge in which case the crime would be For example, attempted or frustrated
direct assault complexed with homicide is distinguished from physical
murder/homicide, not the other way around. injuries only by the intent to kill. Attempted
If it has no relation, the crime is simply rape is distinguished from acts of
homicide or murder. lasciviousness by the intent to have sexual
intercourse. In robbery, the mens rea is the
Omission is the inaction, the failure to taking of the property of another coupled
perform a positive duty which he is bound to with the employment of intimidation or
do. There must be a law requiring the doing violence upon persons or things; remove
or performing of an act. the employment of force or intimidation and
it is not robbery anymore.
Distinction between negligence and
imprudence
Mistake of fact
(1) In negligence, there is deficiency of
action; When an offender acted out of a
misapprehension of fact, it cannot be said
(2) in imprudence, there is deficiency of that he acted with criminal intent. Thus, in
perception. criminal law, there is a “mistake of fact”.
When the offender acted out of a mistake of
Mens rea fact, criminal intent is negated, so do not
presume that the act was done with criminal
The technical term mens rea is sometimes intent. This is absolutory if crime involved
referred to in common parlance as the dolo.
gravamen of the offense. To a layman, that
is what you call the “bullseye” of the crime. Mistake of fact would be relevant only when
This term is used synonymously with the felony would have been intentional or
criminal or deliberate intent, but that is not through dolo, but not when the felony is a
exactly correct. result of culpa. When the felony is a
product of culpa, do not discuss mistake of
Mens rea of the crime depends upon the fact. When the felonious act is the product
elements of the crime. You can only detect of dolo and the accused claimed to have
the mens rea of a crime by knowing the acted out of mistake of fact, there should be
particular crime committed. Without no culpa in determining the real facts,
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
However, in Samson v. CA, where a person looked into the physical injuries and the
who has been charged with falsification as damage to property as the felonies and not
an intentional felony, was found guilty of criminal negligence.
falsification through simple negligence. This
means that means that culpa or criminal In several cases that followed, the
negligence is just a modality of committing a Supreme Court ruled that where several
crime. consequences result from reckless
imprudence or criminal negligence, the
In some decisions on a complex crime accused should be charged only in the
resulting from criminal negligence, the Regional Trial Court although the reckless
Supreme Court pointed out that when imprudence may result in slight physical
crimes result from criminal negligence, they injuries. The Supreme Court argued that
should not be made the subject of a since there was only one criminal
different information. For instance, the negligence, it would be an error to split the
offender was charged with simple same by prosecuting the accused in one
negligence resulting in slight physical court and prosecuting him again in another
injuries, and another charge for simple for the same criminal negligence. This is
negligence resulting in damage to property. tantamount to splitting a cause of action in a
The slight physical injuries which are the civil case. For orderly procedure, the
result of criminal negligence are under the information should only be one. This
jurisdiction of the inferior court. But damage however, also creates some doubts. As you
to property, if the damage is more than know, when the information charges the
P2,000.00, would be under the jurisdiction accused for more than the crime, the
of the Regional Trial Court because the information is defective unless the crime
imposable fine ranges up to three times the charged is a complex one or a special
value of the damage. complex crime.
the cause of the cause is the evil of the prosecuted for manslaughter. The Supreme
cause. As a general rule, the offender is Court rationalized that what made B cut his
criminally liable for all the consequences of throat, in the absence of evidence that he
his felonious act, although not intended, if wanted to commit suicide, is the belief that
the felonious act is the proximate cause of sooner or later, he would die out of the
the felony or resulting felony. A proximate wound inflicted by A. Because of that belief,
cause is not necessarily the immediate he decided to shorten the agony by cutting
cause. This may be a cause which is far his throat. That belief would not be
and remote from the consequence which engendered in his mind were it not because
sets into motion other causes which of the profuse bleeding from his wound.
resulted in the felony. Now, that profusely bleeding would not have
been there, were it not for the wound
Illustrations: inflicted by A. As a result, A was convicted
for manslaughter.
A, B, C, D and E were driving their vehicles
along Ortigas Aveue. A's car was ahead, In criminal law, as long as the act of the
followed by those of B, C, D, and E. When accused contributed to the death of the
A's car reached the intersection of EDSA victim, even if the victim is about to die, he
and Ortigas Avenue, the traffic light turned will still be liable for the felonious act of
red so A immediately stepped on his break, putting to death that victim. In one decision,
followed by B, C, D. However, E was not the Supreme Court held that the most
aware that the traffic light had turned to red, precious moment in a man’s life is that of
so he bumped the car of D, then D hit the losing seconds when he is about to die. So
car of C, then C hit the car of B, then, finally, when you robbed him of that, you should be
B hit the car of A. In this case, the liable for his death. Even if a person is
immediate cause to the damage of the car already dying, if one suffocates him to end
of A is the car of B, but that is not the up his agony, one will be liable for murder,
proximate cause. The proximate cause is when you put him to death, in a situation
the car of E because it was the car of E where he is utterly defenseless.
which sets into motion the cars to bump into
each other. In US v. Valdez, the deceased is a member
of the crew of a vessel. Accused is in
In one case, A and B, who are charge of the crewmembers engaged in the
brothers-in-law, had a quarrel. At the height loading of cargo in the vessel. Because the
of their quarrel, A shot B with an airgun. B offended party was slow in his work, the
was hit at the stomach, which bled accused shouted at him. The offended party
profusely. When A saw this, he put B on the replied that they would be better if he would
bed and told him not to leave the bed not insult them. The accused resented this,
because he will call a doctor. While A was and rising in rage, he moved towards the
away, B rose from the bed, went into the victim, with a big knife in hand threatening
kitchen and got a kitchen knife and cut his to kill him. The victim believing himself to be
throat. The doctor arrived and said that the in immediate peril, threw himself into the
wound in the stomach is only superficial; water. The victim died of drowning. The
only that it is a bleeder, but the doctor could accused was prosecuted for homicide. His
no longer save him because B’s throat was contention that his liability should be only for
already cut. Eventually, B died. A was grave threats since he did not even stab the
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
victim, that the victim died of drowning, and aggravated, the offender is liable for the
this can be considered as a supervening death of the victim not only of the slight
cause. It was held that the deceased, in physical injuries. Reason – without the
throwing himself into the river, acted solely injury being inflicted, there would have been
in obedience to the instinct of no need for any medical treatment. That the
self-preservation, and was in no sense medical treatment proved to be careless or
legally responsible for his own death. As to negligent, is not enough to relieve the
him, it was but the exercise of a choice offender of the liability for the inflicting
between two evils, and any reasonable injuries.
person under the same circumstance might
have done the same. The accused must, When a person inflicted wound upon
therefore, be considered as the author of another, and his victim upon coming home
the death of the victim. got some leaves, pounded them and put
lime there, and applying this to the wound,
This case illustrates that proximate cause developed locked jaw and eventually he
does not require that the offender needs to died, it was held that the one who inflicted
actually touch the body of the offended the wound is liable for his death.
party. It is enough that the offender
generated in the mind of the offended party In another instance, during a quarrel, the
the belief that made him risk himself. victim was wounded. The wound was
superficial, but just the same the doctor put
If a person shouted fire, and because of that inside some packing. When the victim went
a moviegoer jumped into the fire escape home, he could not stand the pain, so he
and died, the person who shouted fire when pulled out the packing. That resulted into
there is no fire is criminally liable for the profuse bleeding and he died because of
death of that person. loss of blood. The offender who caused the
wound, although the wound caused was
In a case where a wife had to go out to the only slight, was held answerable for the
cold to escape a brutal husband and death of the victim, even if the victim would
because of that she was exposed to the not have died were it not for the fact that he
element and caught pneumonia, the pulled out that packing. The principle is that
husband was made criminally liable for the without the wound, the act of the physician
death of the wife. or the act of the offended party would not
have anything to do with the wound, and
Even though the attending physician may since the wound was inflicted by the
have been negligent and the negligence offender, whatever happens on that wound,
brought about the death of the offending he should be made punishable for that.
party – in other words, if the treatment was
not negligent, the offended party would In Urbano v. IAC, A and B had a quarrel
have survived – is no defense at all, and started hacking each other. B was
because without the wound inflicted by the wounded at the back. Cooler heads
offender, there would have been no intervened and they were separated.
occasion for a medical treatment. Somehow, their differences were patched
up. A agreed to shoulder all the expenses
Even if the wound was called slight but for the treatment of the wound of B, and to
because of the careless treatment, it was pay him also whatever lost of income B may
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
have failed to receive. B, on the other hand, immediate cause is also liable, but merely
signed a forgiveness in favor of A and on contributory or sometimes totally not liable.
that condition, he withdrew the complaint
that he filed against A. After so many weeks
of treatment in a clinic, the doctor Wrongful act done be different from what
pronounced the wound already healed. was intended
Thereafter, B went back to his farm. Two
months later, B came home and he was What makes the first paragraph of Article 4
chilling. Before midnight, he died out of confusing is the qualification “although the
tetanus poisoning. The heirs of B filed a wrongful act done be different from what
case of homicide against A. The Supreme was intended”. There are three situations
Court held that A is not liable. It took into contemplated under paragraph 1 of Article
account the incubation period of tetanus 4:
toxic. Medical evidence were presented
that tetanus toxic is good only for two (1) Aberratio ictus or mistake in the
weeks. That if, indeed, the victim had blow;
incurred tetanus poisoning out of the wound
inflicted by A, he would not have lasted two (2) Error in personae or mistake in
months. What brought about tetanus to identity; and
infect the body of B was his working in his
farm using his bare hands. Because of this, (3) Praeter intentionem or where the
the Supreme Court said that the act of B of consequence exceeded the
working in his farm where the soil is filthy, intention.
using his own hands, is an efficient
supervening cause which relieves A of any
liability for the death of B. A, if at all, is only Aberration ictus
liable for physical injuries inflicted upon B.
In aberratio ictus, a person directed the
If you are confronted with this facts of the blow at an intended victim, but because of
Urbano case, where the offended party died poor aim, that blow landed on somebody
because of tetanus poisoning, reason out else. In aberratio ictus, the intended victim
according to that reasoning laid down by the as well as the actual victim are both at the
Supreme Court, meaning to say, the scene of the crime.
incubation period of the tetanus poisoning Distinguish this from error in personae,
was considered. Since tetanus toxic would where the victim actually received the blow,
affect the victim for no longer than two but he was mistaken for another who was
weeks,, the fact that the victim died two not at the scene of the crime. The
months later shows that it is no longer distinction is important because the legal
tetanus brought about by the act of the effects are not the same.
accused. The tetanus was gathered by his
working in the farm and that is already an In aberratio ictus, the offender delivers the
efficient intervening cause. blow upon the intended victim, but because
of poor aim the blow landed on somebody
The one who caused the proximate cause is else. You have a complex crime, unless the
the one liable. The one who caused the resulting consequence is not a grave or less
grave felony. You have a single act as
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
against the intended victim and also giving Question & Answer
rise to another felony as against the actual
victim. To be more specific, let us take for
The facts were one of aberratio
example A and B. A and B are enemies.
ictus, but the facts stated that the offender
As soon as A saw B at a distance, A shot at
aimed carelessly in firing the shot. Is the
B. However, because of poor aim, it was
felony the result of dolo or culpa? What
not B who was hit but C. You can readily
crime was committed?
see that there is only one single act – the
act of firing at B. In so far as B is
All three instances under paragraph
concerned, the crime at least is attempted
1, Article 4 are the product of dolo. In
homicide or attempted murder, as the case
aberratio ictus, error in personae and
may be, if there is any qualifying
praeter intentionem, never think of these as
circumstance. As far as the third party C is
the product of culpa. They are always the
concerned, if C were killed, crime is
result of an intended felony, and, henc,e
homicide. If C was only wounded, the crime
dolo. You cannot have these situations out
is only physical injuries. You cannot have
of criminal negligence. The crime
attempted or frustrated homicide or murder
committed is attempted homicide or
as far as C is concerned, because as far as
attempted murder, not homicide through
C is concern, there is no intent to kill. As far
reckless imprudence.
as that other victim is concerned, only
physical injuries – serious or less serious or
slight.
Error in personae
If the resulting physical injuries were only
In error in personae, the intended victim
slight, then you cannot complex; you will
was not at the scene of the crime. It was
have one prosecution for the attempted
the actual victim upon whom the blow was
homicide or murder, and another
directed, but he was not really the intended
prosecution for slight physical injuries for
victim. There was really a mistake in
the innocent party. But if the innocent party
identity.
was seriously injured or less seriously
injured, then you have another grave or less
This is very important because Article 49
grave felony resulting from the same act
applies only in a case of error in personae
which gave rise to attempted homicide or
and not in a case of abberatio ictus.
murder against B; hence, a complex crime.
In Article 49, when the crime intended is
In other words, aberratio ictus, generally
more serious than the crime actually
gives rise to a complex crime. This being
committed or vice-versa, whichever crime
so, the penalty for the more serious crime is
carries the lesser penalty, that penalty will
imposed in the maximum period. This is the
be the one imposed. But it will be imposed
legal effect. The only time when a complex
in the maximum period. For instance, the
crime may not result in aberratio ictus is
offender intended to commit homicide, but
when one of the resulting felonies is a light
what was actually committed with parricide
felony.
because the person he killed by mistake
was somebody related to him within the
degree of relationship in parricide. In such
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
a case, the offender will be charged with a different victim, error in persona does not
parricide, but the penalty that would be affect the criminal liability of the offender.
imposed will be that of homicide. This is But if the crime committed was different
because under Article 49, the penalty for the from the crime intended, Article 49 will apply
lesser crime will be the one imposed, and the penalty for the lesser crime will be
whatever crime the offender is prosecuted applied. In a way, mistake in identity is a
under. In any event, the offender is mitigating circumstance where Article 49
prosecuted for the crime committed not for applies. Where the crime intended is more
the crime intended. serious than the crime committed, the error
in persona is not a mitigating circumstance
Illustrations: Praeter intentionem
In praeter intentionem, it is essential that knowing that she was already dead five
there is a notable disparity between the minutes earlier. Is an impossible crime
means employed or the act of the offender committed?
and the felony which resulted. This means
that the resulting felony cannot be foreseen Yes. Before, the act performed by
from the acts of the offender. If the resulting the offender could not have been a crime
felony can be foreseen or anticipated from against person or property. The act
the means employed, the circumstance of performed would have been constituted a
praeter intentionem does not apply. crime against chastity. An impossible crime
is true only if the act done by the offender
For example, if A gave B a karate blow in constitutes a crime against person or
the throat, there is no praeter intentionem property. However, with the new rape law
because the blow to the throat can result in amending the Revised Penal Code and
death. classifying rape as a crime against persons,
it is now possible that an impossible crime
So also, if A tried to intimidate B by poking a was committed. Note, however, that the
gun at the latter’s back, and B died of a crime might also fall under the Revised
cardiac arrest, A will be prosecuted for Administrative Code – desecrating the
homicide but will be given the mitigating dead.
circumstance praeter intentionem.
2. A was driving his car around
Roxas Boulevard when a person hitched a
Impossible crime ride. Because this person was exquisitely
dressed, A readily welcomed the fellow
An impossible crime is an act which would inside his car and he continued driving.
be an offense against person or property When he reached a motel, A suddenly
were it not for the inherent impossibility of swerved his car inside. A started kissing his
its accomplishment or on account of the passenger, but he found out that his
employment of inadequate or ineffectual passenger was not a woman but a man,
means. and so he pushed him out of the car, and
gave him fist blows. Is an impossible crime
committed? If not, is there any crime
Question & Answer committed at all?
minutes ago of bangungot. Is A liable for an et al., 215 SCRA 52. In this case, four
impossible crime? culprits, all armed with firearms and with
intent to kill, went to the intended victim’s
No. A shall be liable for qualified house and after having pinpointed the
trespass to dwelling. Although the act done latter’s bedroom, all four fired at and riddled
by A against B constitutes an impossible said room with bullets, thinking that the
crime, it is the principle of criminal law that intended victim was already there as it was
the offender shall be punished for an about 10:00 in the evening. It so happened
impossible crime only when his act cannot that the intended victim did not come home
be punished under some other provisions in on the evening and so was not in her
the Revised Penal Code. bedroom at that time. Eventually the
culprits were prosecuted and convicted by
In other words, this idea of an impossible the trial court for attempted murder. The
crime is a one of last resort, just to teach the Court of Appeals affirmed the judgment but
offender a lesson because of his criminal the Supreme Court modified the same and
perversity. If he could be taught of the held the petitioner liable only for the
same lesson by charging him with some so-called impossible crime. As a result,
other crime constituted by his act, then that petitioner-accused was sentenced to
will be the proper way. If you want to play imprisonment of only six months of arresto
safe, you state there that although an mayor for the felonious act he committed
impossible crime is constituted, yet it is a with intent to kill: this despite the destruction
principle of criminal law that he will only be done to the intended victim’s house.
penalized for an impossible crime if he Somehow, the decision depreciated the
cannot be punished under some other seriousness of the act committed,
provision of the Revised Penal Code. considering the lawlessness by which the
culprits carried out the intended crime, and
If the question is “Is an impossible crime is so some members of the bench and bar
committed?”, the answer is yes, because spoke out against the soundness of the
on the basis of the facts stated, an ruling. Some asked questions: Was it
impossible crime is committed. But to play really the impossibility of accomplishing the
safe, add another paragraph: However, the killing that brought about its
offender will not be prosecuted for an non-accomplishment? Was it not purely
impossible crime but for _____ [state the accidental that the intended victim did not
crime]. Because it is a principle in criminal come home that evening and, thus,
law that the offender can only be unknown to the culprits, she was not in her
prosecuted for an impossible crime if his bedroom at the time it was shot and riddled
acts do not constitute some other crimes with bullets? Suppose, instead of using
punishable under the Revised Penal Code. firearms, the culprits set fire on the intended
An impossible crime is a crime of last resort. victim’s house, believing she was there
when in fact she was not, would the criminal
liability be for an impossible crime?
Modified concept of impossible crime:
Until the Intod case, the prevailing attitude
In a way, the concept of impossible crime was that the provision of the Revised Penal
has been modified by the decision of the Code on impossible crime would only apply
Supreme Court in the case of Intod v. CA, when the wrongful act, which would have
33
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
constituted a crime against persons or that no felony resulted from the wrongful act
property, could not and did not constitute done, the penalty is fixed at arresto mayor
another felony. Otherwise, if such act or a fine from P200.00 to P500.00,
constituted any other felony although depending on the “social danger and degree
different from what the offender intended, of criminality shown by the offender” (Article
the criminal liability should be for such other 59), regardless of whether the wrongful act
felony and not for an impossible crime. The was an impossible crime against persons or
attitude was so because Article 4 of the against property.
Code provides two situations where criminal
liability shall be incurred, to wit: There is no logic in applying paragraph 2 of
Article 4 to a situation governed by
Art 4. Criminal paragraph 1 of the same Article, that is,
liability – Criminal liability where a felony resulted. Otherwise, a
shall be incurred: redundancy and duplicity would be
perpetrated.
1. By any person
committing a felony In the Intod case, the wrongful acts of the
(delito) although the culprits caused destruction to the house of
wrongful act be the intended victim; this felonious act
different from that negates the idea of an impossible crime.
which he intended. But whether we agree or not, the Supreme
Court has spoken, we have to respect its
2. By any person ruling.
performing an act
which would be an
offense against NO CRIME UNLESS THERE IS A LAW
persons or property, PUNISHING IT
were it not for the
inherent impossibility When a person is charged in court, and the
of its accomplishment court finds that there is no law applicable,
or on account of the the court will acquit the accused and the
employment of judge will give his opinion that the said act
inadequate or should be punished.
ineffectual means.
Article 5 covers two situations:
Paragraph 1 refers to a situation where the
wrongful act done constituted a felony (1) The court cannot convict the
although it may be different from what he accused because the acts do not
intended. Paragraph 2 refers to a situation constitute a crime. The proper
where the wrongful act done did not judgment is acquittal, but the court is
constitute any felony, but because the act mandated to report to the Chief
would have given rise to a crime against Executive that said act be made
persons or against property, the same is subject of penal legislation and why.
penalized to repress criminal tendencies to
curtail their frequency. Because criminal (2) Where the court finds the penalty
liability for impossible crime presupposes prescribed for the crime too harsh
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
he bought the poison to poison his wife in act which is directly linked to the felony
order to marry C. After that, they parted intended to be committed.
ways. D went directly to the police and
reported that A is going to kill his wife. So In US v. Namaja, the accused was arrested
the policemen went to A’s house and found while he was detaching some of the wood
A still unwrapping the arsenic poison. The panels of a store. He was already able to
policemen asked A if he was planning to detach two wood panels. To a layman, the
poison B and A said yes. Police arrested only conclusion that will come to your mind
him and charged him with attempted is that this fellow started to enter the store to
parricide. Is the charge correct? steal something. He would not be there just
to sleep there. But in criminal law, since the
No. Overt act begins when the act of removing the panel indicates only at
husband mixed the poison with the food his most the intention to enter. He can only be
wife is going to take. Before this, there is no prosecuted for trespass. The removal of the
attempted stage yet. panelling is just an attempt to trespass, not
an attempt to rob. Although, Namaja was
An overt act is that act which if allowed to prosecuted for attempted robbery, the
continue in its natural course would Supreme Court held it is only attempted
definitely result into a felony. trespass because that is the crime that can
be directly linked to his act of removing the
In the attempted stage, the definition uses wood panel.
the word “directly”. This is significant. In the There are some acts which are ingredients
attempted stage, the acts so far performed of a certain crime, but which are, by
may already be a crime or it may be just an themselves, already criminal offenses.
ingredient of another crime. The word
"directly’" emphasizes the requirement that In abduction, your desire may lead to acts of
the attempted felony is that which is directly lasciviousness. In so far the woman being
linked to the overt act performed by the carried is concerned, she may already be
offender, not the felony he has in his mind. the victim of lascivious acts. The crime is
not attempted abduction but acts of
In criminal law, you are not allowed to lasciviousness. You only hold him liable for
speculate, not to imagine what crime is an attempt, so far as could be reasonably
intended, but apply the provisions of the law linked to the overt act done by him. Do not
of the facts given. go far and imagine what you should do.
In deciding whether a felony is attempted or prosecute him. The public officer received
frustrated or consummated, there are three the money but just the same, arrested him.
criteria involved: He received the money to have evidence of
corruption. Do not think that because the
(1) The manner of committing the corruptor has already delivered the money,
crime; he has already performed all the acts of
execution, and, therefore, the corruption is
(2) The elements of the crime; and already beyond the attempted stage. That
thinking does away with the concept of the
(3) The nature of the crime itself. crime that it requires two to commit. The
manner of committing the crime requires the
meeting of the minds between the giver and
Manner of committing a crime the receiver.
For example, let us take the crime of When the giver delivers the money to the
bribery. Can the crime of frustrated bribery supposed receiver, but there is no meeting
be committed? No. (Incidentally, the of the minds, the only act done by the giver
common concept of bribery is that it is the is an attempt. It is not possible for him to
act of one who corrupts a public officer. perform all the acts of execution because in
Actually, bribery is the crime of the receiver the first place, the receiver has no intention
not the giver. The crime of the giver is of being corrupted.
corruption of public official. Bribery is the Similarly, when a public officer demands a
crime of the public officer who in consideration by official duty, the corruptor
consideration of an act having to do with his turns down the demand, there is no bribery.
official duties would receive something, or
accept any promise or present in If the one to whom the demand was made
consideration thereof.) pretended to give, but he had reported the
matter to higher authorities, the money was
The confusion arises from the fact that this marked and this was delivered to the public
crime requires two to commit -- the giver officer. If the public officer was arrested, do
and the receiver. The law called the crime of not think that because the public officer
the giver as corruption of public official and already had the money in his possession,
the receiver as bribery. Giving the idea that the crime is already frustrated bribery, it is
these are independent crimes, but actually, only attempted bribery. This is because the
they cannot arise without the other. Hence, supposed corruptor has no intention to
if only one side of the crime is present, only corrupt. In short, there is no meeting of the
corruption, you cannot have a minds. On the other hand, if there is a
consummated corruption without the meeting of the minds, there is
corresponding consummated bribery. There consummated bribery or consummated
cannot be a consummated bribery without corruption. This leaves out the frustrated
the corresponding consummated corruption. stage because of the manner of committing
If you have bribery only, it is only possible in the crime.
the attempted stage. If you have a
corruption only, it is possible only in the But indirect bribery is always consummated.
attempted stage. A corruptor gives money This is because the manner of
to a public officer for the latter not to
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
laying these inside the room. He lighted considered not only the acts of the offender,
these, and as soon as the jute sacks began but also his belief. That although the
to burn, he ran away. The occupants of the offender may not have done the act to bring
room put out the fire. The court held that about the felony as a consequence, if he
what was committed was frustrated arson. could have continued committing those acts
but he himself did not proceed because he
This case was much the way before the believed that he had done enough to
decision in the case of People v. Garcia consummate the crime, Supreme Court said
was handed down and the Court of Appeals the subjective phase has passed. This was
ruled that there is no frustrated arson. But applied in the case of US v. Valdez, where
even then, the analysis in the case of US v. the offender, having already put kerosene
Valdez is correct. This is because, in on the jute sacks, lighted the same, he had
determining whether the felony is no reason not to believe that the fire would
attempted, frustrated or consummated, the spread, so he ran away. That act
court does not only consider the definition demonstrated that in his mind, he believed
under Article 6 of the Revised Penal Code, that he has performed all the acts of
or the stages of execution of the felony. execution and that it is only a matter of time
When the offender has already passed the that the premises will burn. The fact that
subjective stage of the felony, it is beyond the occupant of the other room came out
the attempted stage. It is already on the and put out the fire is a cause independent
consummated or frustrated stage depending of the will of the perpetrator.
on whether a felony resulted. If the felony
did not result, frustrated. The ruling in the case of US v. Valdez is still
correct. But in the case of People v.
The attempted stage is said to be within the Garcia, the situation is different. Here, the
subjective phase of execution of a felony. offender who put the torch over the house of
On the subjective phase, it is that point in the offended party, the house being a nipa
time when the offender begins the hut, the torch which was lighted could easily
commission of an overt act until that point burn the roof of the nipa hut. But the torch
where he loses control of the commission of burned out.
the crime already. If he has reached that
point where he can no longer control the In that case, you cannot say that the
ensuing consequence, the crime has offender believed that he had performed all
already passed the subjective phase and, the acts of execution. There was not even a
therefore, it is no longer attempted. The single burn of any instrument or agency of
moment the execution of the crime has the crime.
already gone to that point where the felony
should follow as a consequence, it is either The analysis made by the Court of Appeals
already frustrated or consummated. If the is still correct: that they could not
felony does not follow as a consequence, it demonstrate a situation where the offender
is already frustrated. If the felony follows as has performed all the acts of execution to
a consequence, it is consummated. bring about the crime of arson and the
situation where he has not yet performed all
The trouble is that, in the jurisprudence the acts of execution. The weight of the
recognizing the objective phase and the authority is that the crime of arson cannot
subjective phase, the Supreme Court be committed in the frustrated stage. The
40
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
reason is because we can hardly determine the crime of physical injuries is penalized on
whether the offender has performed all the the basis of the gravity of the injuries.
acts of execution that would result in arson, Actually, there is no simple crime of physical
as a consequence, unless a part of the injuries. You have to categorize because
premises has started to burn. On the other there are specific articles that apply whether
hand, the moment a particle or a molecule the physical injuries are serious, less
of the premises has blackened, in law, serious or slight. If you say physical
arson is consummated. This is because injuries, you do not know which article to
consummated arson does not require that apply. This being so, you could not punish
the whole of the premises be burned. It is the attempted or frustrated stage because
enough that any part of the premises, no you do not know what crime of physical
matter how small, has begun to burn. injuries was committed.
(1) The injury should bring about the The mere intent to derive some profit is
ugliness; enough but the thinking must be complete
before a crime of theft shall be
(2) The ugliness must be visible; consummated. That is why we made that
distinction between theft and estafa.
(3) The ugliness would not disappear
through natural healing process. If the personal property was received by the
offender, this is where you have to decide
Along this concept of deformity in law, the whether what was transferred to the
plastic surgery applied to B is beside the offender is juridical possession or physical
point. In law, what is considered is not the possession only. If the offender did not
artificial or the scientific treatment but the receive the personal property, but took the
natural healing of the injury. So the fact same from the possession of the owner
that there was plastic surgery applied to B without the latter’s consent, then there is no
does not relieve the offender from the problem. That cannot be estafa; this is only
liability for the physical injuries inflicted. theft or none at all.
The crime committed is serious physical
injuries. It is consummated. In In estafa, the offender receives the property;
he does not take it. But in receiving the
determining whether a felony is attempted,
property, the recipient may be committing
frustrated or consummated, you have to
theft, not estafa, if what was transferred to
consider the manner of committing the
him was only the physical or material
felony, the element of the felony and the possession of the object. It can only be
nature of the felony itself. There is no real estafa if what was transferred to him is not
hard and fast rule. only material or physical possession but
juridical possession as well.
Elements of the crime When you are discussing estafa, do not talk
about intent to gain. In the same manner
In the crime of estafa, the element of that when you are discussing the crime of
damage is essential before the crime could theft, do not talk of damage.
be consummated. If there is no damage,
even if the offender succeeded in carting The crime of theft is the one commonly
away the personal property involved, estafa given under Article 6. This is so because
cannot be considered as consummated. For the concept of theft under the Revised
the crime of estafa to be consummated, Penal Code differs from the concept of
there must be misappropriation already larceny under American common law.
done, so that there is damage already Under American common law, the crime of
suffered by the offended party. If there is no larceny which is equivalent to our crime of
damage yet, the estafa can only be theft here requires that the offender must be
frustrated or attempted. able to carry away or transport the thing
being stolen. Without that carrying away,
On the other hand, if it were a crime of theft, the larceny cannot be consummated.
damage or intent to cause damage is not an
element of theft. What is necessary only is In our concept of theft, the offender need
intent to gain, not even gain is important. not move an inch from where he was. It is
42
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
I placed a wallet on a table inside a room. A If the thing is stolen from a compound or
stranger comes inside the room, gets the from a room, as long as the object has not
wallet and puts it in his pocket. I suddenly been brought out of that room, or from the
started searching him and I found the wallet perimeter of the compound, the crime is
inside his pocket. The crime of theft is only frustrated. This is the confusion raised
already consummated because he already in the case of US v. Diño compared with
acquired complete control of my wallet. This People v. Adio and People v. Espiritu.
is so true when he removed the wallet from
the confines of the table. He can exercise In US v. Diño, the accused loaded boxes of
his will over the wallet already, he can drop rifle on their truck. When they were on their
this on the floor, etc. way out of the South Harbor, they were
But as long as the wallet remains on the checked at the checkpoint, so they were not
table, the theft is not yet consummated; able to leave the compound. It was held
there can only be attempted or frustrated that what was committed was frustrated
theft. If he has started lifting the wallet, it is Theft.
frustrated. If he is in the act of trying to take
the wallet or place it under, attempted. In People v. Espiritu, the accused were on
their way out of the supply house when they
“Taking” in the concept of theft, simply were apprehended by military police who
means exercising control over the thing. found them secreting some hospital linen. It
was held that what was committed was
If instead of the wallet, the man who entered consummated theft.
the room pretended to carry the table out of
the room, and the wallet is there. While The emphasis, which was erroneously laid
taking the table out of the room, I in some commentaries, is that, in both
apprehended him. It turned out that he is cases, the offenders were not able to pass
not authorized at all and is interested only in the checkpoint. But why is it that in one, it is
the wallet, not the table. The crime is not frustrated and in the other, it is
yet consummated. It is only frustrated consummated?
because as far as the table is concern, it is
the confines of this room that is the In the case of US v. Diño, the boxes of rifle
container. As long as he has not taken this were stocked file inside the compound of
table out of the four walls of this room, the the South Harbor. As far as the boxes of
taking is not complete. rifle are concerned, it is the perimeter of the
43
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
This is very decisive in the problem because When the receptacle is locked or sealed,
in most problems given in the bar, the and the offender broke the same, in lieu of
offender, after having taken the object out of theft, the crime is robbery with force upon
the container changed his mind and things. However, that the receptacle is
returned it. Is he criminally liable? Do not locked or sealed has nothing to do with the
make a mistake by saying that there is a stage of the commission of the crime. It
desistance. If the crime is one of theft, the refers only to whether it is theft or robbery
moment he brought it out, it was with force upon things.
consummated. The return of the thing
cannot be desistance because in criminal
law, desistance is true only in the attempted Nature of the crime itself
stage. You cannot talk of desistance
anymore when it is already in the In crimes involving the taking of human life
consummated stage. If the offender has – parricide, homicide, and murder – in the
already acquired complete control of what definition of the frustrated stage, it is
he intended to take, the fact that he indispensable that the victim be mortally
changed his mind and returned the same wounded. Under the definition of the
will no longer affect his criminal liability. It frustrated stage, to consider the offender as
will only affect the civil liability of the crime having performed all the acts of execution,
because he will no longer be required to pay the acts already done by him must produce
the object. As far as the crime committed is or be capable of producing a felony as a
concerned, the offender is criminally liable consequence. The general rule is that there
and the crime is consummated theft. must be a fatal injury inflicted, because it is
only then that death will follow.
Illustration:
If the wound is not mortal, the crime is only
A and B are neighbors. One evening, A attempted. The reason is that the wound
entered the yard of B and opened the inflicted is not capable of bringing about the
chicken coop where B keeps his fighting desired felony of parricide, murder or
cocks. He discovered that the fighting homicide as a consequence; it cannot be
cocks were not physically fit for cockfighting said that the offender has performed all the
44
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
subsists even though the other the criminal objective. This was the ruling in
co-conspirator does not know that one of People v. Pinto, 204 SCRA 9.
them had already done the act of rebellion.
Although conspiracy is defined as two or
This legal consequence is not true if the more person coming to an agreement
conspiracy is not a crime. If the conspiracy regarding the commission of a felony and
is only a basis of criminal liability, none of deciding to commit it, the word “person”
the co-conspirators would be liable, unless here should not be understood to require a
there is an overt act. So, for as long as meeting of the co-conspirator regarding the
anyone shall desist before an overt act in commission of the felony. A conspiracy of
furtherance of the crime was committed, the second kind can be inferred or deduced
such a desistance would negate criminal even though they have not met as long as
liability. they acted in concert or simultaneously,
indicative of a meeting of the minds toward
Illustration: a common goal or objective.
Three persons plan to rob a bank. For as Conspiracy is a matter of substance which
long as none of the conspirators has must be alleged in the information,
committed an overt act, there is no crime otherwise, the court will not consider the
yet. But when one of them commits any same.
overt act, all of them shall be held liable,
unless a co-conspirator was absent from the In People v. Laurio, 200 SCRA 489, it was
scene of the crime or he showed up, but he held that it must be established by positive
tried to prevent the commission of the crime and conclusive evidence, not by conjectures
or speculations.
As a general rule, if there has been a
conspiracy to commit a crime in a particular In Taer v. CA, 186 SCRA 5980, it was held
place, anyone who did not appear shall be that mere knowledge, acquiescence to, or
presumed to have desisted. The exception approval of the act, without cooperation or
to this is if such person who did not appear at least, agreement to cooperate, is not
was the mastermind. enough to constitute a conspiracy. There
must be an intentional participation in the
We have to observe the distinction between crime with a view to further the common
the two because conspiracy as a crime, felonious objective.
must have a clear and convincing evidence
of its existence. Every crime must be When several persons who do not know
proved beyond reasonable doubt. each other simultaneously attack the victim,
the act of one is the act of all, regardless of
When the conspiracy is just a basis of the degree of injury inflicted by any one of
incurring criminal liability, however, the them. All will be liable for the
same may be deduced or inferred from the consequences. A conspiracy is possible
acts of several offenders in carrying out the even when participants are not known to
commission of the crime. The existence of each other. Do not think that participants
a conspiracy may be reasonably inferred are always known to each other.
from the acts of the offenders when such
acts disclose or show a common pursuit of Illustrations:
46
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
A thought of having her husband killed The Supreme Court has ruled that one who
because the latter was maltreating her. She desisted is not criminally liable. “When a
hired some persons to kill him and pointed person has set foot to the path of
at her husband. The goons got hold of her wickedness and brings back his foot to the
husband and started mauling him. The wife path of righteousness, the law shall reward
took pity and shouted for them to stop but him for doing so.”
the goons continued. The wife ran away.
The wife was prosecuted for parricide. But Where there are several persons who
the Supreme Court said that there was participated, like in a killing, and they
desistance so she is not criminally liable. attacked the victim simultaneously, so much
so that it cannot be known what
A law student resented the fact that his participation each one had, all these
brother was killed by A. He hired B to kill A participants shall be considered as having
and offered him P50,000.00. He disclosed acted in conspiracy and they will be held
to B that A was being arraigned in the City collectively responsible.
Hall of Manila and told him to execute the Do not search for an agreement among the
plan on the following day. In the evening of participants. If they acted simultaneously to
that same day, the law student changed his bring about their common intention,
mind so he immediately went to the police conspiracy exists. And when conspiracy
and told them to dispatch police officers to exists, do not consider the degree of
prevent B from committing the crime. participation of each conspirator because
Unfortunately, the police were caught in the act of one is the act of all. As a general
traffic causing their delay, so that when they rule, they have equal criminal responsibility.
reached the place, B had already killed A.
In this case, there was no proposal but a
conspiracy. They have conspired to Question & Answer
execute a crime but the crime involved here
is murder and a conspiracy to commit
There are several offenders who
murder is not a crime in itself but merely a
acted simultaneously. When they fled, a
basis for incurring criminal liability. This is
victim was found dead. Who should be
just a preparatory act, and his desistance
liable for the killing if who actually killed the
negates criminal liability.
victim is not known?
Proposal is true only up to the point where
There is collective responsibility
the party to whom the proposal was made
here. Without the principle of conspiracy,
has not yet accepted the proposal. Once
nobody would be prosecuted; hence, there
the proposal was accepted, a conspiracy
is the rule on collective responsibility since it
arises. Proposal is unilateral, one party
cannot be ascertained who actually killed
makes a proposition to the other; conspiracy
the victim.
is bilateral, it requires two parties.
There is conspiracy when the offenders
As pointed out earlier, desistance is true
acted simultaneously pursuing a common
only in the attempted stage. Before this
criminal design; thus, acting out a common
stage, there is only a preparatory stage.
criminal intent.
Conspiracy is only in the preparatory stage.
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
the acts committed during the commission and the crime committed by one of the
of the crime agreed upon. This is because, co-conspirators are distinct crimes.
in the eyes of the law, all those acts done in
pursuance of the crime agreed upon are Exception to the exception: In acts
acts which constitute a single crime. constituting a single indivisible offense,
even though the co-conspirator performed
Illustrations: different acts bringing about the composite
crime, all will be liable for such crime. They
A, B, and C decided to commit robbery in can only evade responsibility for any other
the house of D. Pursuant to their crime outside of that agreed upon if it is
agreement, A would ransack the second proved that the particular conspirator had
floor, B was to wait outside, and C would tried to prevent the commission of such
stay on the first floor. Unknown to B and C, other act.
A raped the girl upstairs. All of them will be
liable for robbery with rape. The crime The rule would be different if the crime
committed is robbery with rape, which is not committed was not a composite crime.
a complex crime, but an indivisible felony
under the Article 294 of the Revised Penal Illustration:
Code. Even if B and C did not know that
rape was being committed and they agreed A, B and C agreed to kill D. When they saw
only and conspired to rob, yet rape was part the opportunity, A, B and C killed D and
of robbery. Rape can not be separated from after that, A and B ran into different
robbery. directions. C inspected the pocket of the
victim and found that the victim was wearing
A, B and C agreed to rob the house of D. It a ring – a diamond ring – and he took it.
was agreed that A would go the second The crimes committed are homicide and
floor, B would stay in the first floor, and C theft. As far as the homicide is concerned,
stands guard outside. All went to their A, B and C are liable because that was
designated areas in pursuit of the plan. agreed upon and theft was not an integral
While A was ransacking the second floor, part of homicide. This is a distinct crime so
the owner was awakened. A killed him. A, the rule will not apply because it was not the
B and C will be liable for robbery with crime agreed upon. Insofar as the crime of
homicide. This is because, it is well settled theft is concerned, C will be the only one
that any killing taking place while robbery is liable. So C will be liable for homicide and
being committed shall be treated as a single theft.
indivisible offense.
Code. That was not what the examiner had Under Article 9, felonies are
in mind because the question does not classified as grave felonies or those
require the candidate to classify but also to to which attaches the capital
define. Therefore, the examiner was after punishment or penalties which in
the classifications under Articles 3, 6 and 9. any of their periods are afflictive;
less grave felonies or those to which
Felonies are classified as follows: the law punishes with penalties
which in their maximum period was
(1) According to the manner of their correccional; and light felonies or
commission those infractions of law for the
commission of which the penalty is
Under Article 3, they are classified arresto menor.
as, intentional felonies or those
committed with deliberate intent; and Why is it necessary to determine whether
culpable felonies or those resulting the crime is grave, less grave or light?
from negligence, reckless
imprudence, lack of foresight or lack To determine whether these felonies can be
of skill. complexed or not, and to determine the
prescription of the crime and the
(2) According to the stages of their prescription of the penalty. In other words,
execution these are felonies classified according to
their gravity, stages and the penalty
Under Article 6., felonies are attached to them. Take note that when the
classified as attempted felony when Revised Penal Code speaks of grave and
the offender commences the less grave felonies, the definition makes a
commission of a felony directly by reference specifically to Article 25 of the
overt acts, and does not perform all Revised Penal Code. Do not omit the
the acts of execution which should phrase “In accordance with Article 25”
produce the felony by reason of because there is also a classification of
some cause or accident other than penalties under Article 26 that was not
his own spontaneous desistance; applied.
frustrated felony when the offender
commences the commission of a If the penalty is fine and exactly P200.00, it
felony as a consequence but which is only considered a light felony under
would produce the felony as a Article 9.
consequence but which
nevertheless do not produce the If the fine is imposed as an alternative
felony by reason of causes penalty or as a single penalty, the fine of
independent of the perpetrator; and, P200.00 is considered a correctional
consummated felony when all the penalty under Article 26.
elements necessary for its execution
are present. If the penalty is exactly P200.00, apply
Article 26. It is considered as correctional
(3) According to their gravity penalty and it prescribes in 10 years. If the
offender is apprehended at any time within
ten years, he can be made to suffer the fine.
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
There are two others which are found Then, Article 89 provides how criminal
elsewhere in the provisions of the Revised liability is extinguished:
Penal Code:
Death of the convict as to the personal
(1) Absolutory cause; and penalties, and as to pecuniary penalties,
liability therefor is extinguished if death
(2) Extenuating circumstances. occurs before final judgment;
Service of the sentence;
In justifying and exempting circumstances,
there is no criminal liability. When an Amnesty;
accused invokes them, he in effect admits
the commission of a crime but tries to avoid Absolute pardon;
the liability thereof. The burden is upon him
to establish beyond reasonable doubt the Prescription of the crime;
required conditions to justify or exempt his
acts from criminal liability. What is shifted is Prescription of the penalty; and
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Under Article 344, in cases of seduction, An agent of the narcotics command had
abduction, acts of lasciviousness, and rape, been tipped off that a certain house is being
the marriage of the offended party shall used as an opium den by prominent
extinguish the criminal action. members of the society. The law enforcers
cannot themselves penetrate the house
because they do not belong to that circle so
Absolutory cause has the effect of an what they did was to convince a prominent
exempting circumstance and they are member of society to visit such house to
predicated on lack of voluntariness like find out what is really happening inside and
instigation. Instigation is associated with that so many cars were congregating there.
criminal intent. Do not consider culpa in The law enforcers told the undercover man
connection with instigation. If the crime is that if he is offered a cigarette, then he
culpable, do not talk of instigation. In should try it to find out whether it is loaded
instigation, the crime is committed with dolo. with dangerous drugs or not. This fellow
It is confused with entrapment. went to the place and mingled there. The
Entrapment is not an absolutory cause. time came when he was offered a stick of
Entrapment does not exempt the offender or cigarette and he tried it to see if the
mitigate his criminal liability. But instigation cigarette would affect him. Unfortunately,
absolves the offender from criminal liability the raid was conducted and he was among
because in instigation, the offender simply those prosecuted for violation of the
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
prosecute a citizen who only cooperated enumerated in Article 12, refer to the
with the law enforcer. The private citizen circumstance as an absolutory cause.
believes that he is a law enforcer and that is
why when the law enforcer tells him, he Mistake of fact is not absolutory cause. The
believes that it is a civil duty to cooperate. offender is acting without criminal intent. So
in mistake of fact, it is necessary that had
If the person instigated does not know that the facts been true as the accused believed
the person is instigating him is a law them to be, this act is justified. If not, there
enforcer or he knows him to be not a law is criminal liability, because there is no
enforcer, this is not a case of instigation. mistake of fact anymore. The offender must
This is a case of inducement, both will be believe he is performing a lawful act.
criminally liable.
Extenuating circumstances
In entrapment, the person entrapped should
not know that the person trying to entrap The effect of this is to mitigate the criminal
him was a law enforcer. The idea is liability of the offender. In other words, this
incompatible with each other because in has the same effect as mitigating
entrapment, the person entrapped is circumstances, only you do not call it
actually committing a crime. The officer mitigating because this is not found in
who entrapped him only lays down ways Article 13.
and means to have evidence of the
commission of the crime, but even without Illustrations:
those ways and means, the person
entrapped is actually engaged in a violation An unwed mother killed her child in order to
of the law. conceal a dishonor. The concealment of
dishonor is an extenuating circumstance
Instigation absolves the person instigated insofar as the unwed mother or the maternal
from criminal liability. This is based on the grandparents is concerned, but not insofar
rule that a person cannot be a criminal if his as the father of the child is concerned.
mind is not criminal. On the other hand, Mother killing her new born child to conceal
entrapment is not an absolutory cause. It is her dishonor, penalty is lowered by two
not even mitigating. degrees. Since there is a material lowering
of the penalty or mitigating the penalty, this
In case of somnambulism or one who acts is an extenuating circumstance.
while sleeping, the person involved is
definitely acting without freedom and The concealment of honor by mother in the
without sufficient intelligence, because he is crime of infanticide is an extenuating
asleep. He is moving like a robot, unaware circumstance but not in the case of parricide
of what he is doing. So the element of when the age of the victim is three days old
voluntariness which is necessary in dolo and above.
and culpa is not present. Somnambulism is
an absolutory cause. If element of In the crime of adultery on the part of a
voluntariness is absent, there is no criminal married woman abandoned by her husband,
liability, although there is civil liability, and if at the time she was abandoned by her
the circumstance is not among those husband, is it necessary for her to seek the
company of another man. Abandonment by
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
the husband does not justify the act of the (1) The circumstances affect the actor,
woman. It only extenuates or reduces not the act;
criminal liability. When the effect of the
circumstance is to lower the penalty there is (2) The act complained of is actually
an extenuating circumstance. wrongful, but the actor acted without
voluntariness. He is a mere tool or
A kleptomaniac is one who cannot resist the instrument of the crime;
temptation of stealing things which appeal
to his desire. This is not exempting. One (3) Since the act complained of is
who is a kleptomaniac and who would steal actually wrongful, there is a crime.
objects of his desire is criminally liable. But But because the actor acted without
he would be given the benefit of a mitigating voluntariness, there is absence of
circumstance analogous to paragraph 9 of dolo or culpa. There is no criminal;
Article 13, that of suffering from an illness
which diminishes the exercise of his will (4) Since there is a crime committed but
power without, however, depriving him of there is no criminal, there is civil
the consciousness of his act. So this is an liability for the wrong done. But
extenuating circumstance. The effect is to there is no criminal liability.
mitigate the criminal liability. However, in paragraphs 4 and 7 of
Article 12, there is neither criminal
nor civil liability.
Distinctions between justifying
circumstances and exempting When you apply for justifying or exempting
circumstances circumstances, it is confession and
avoidance and burden of proof shifts to the
In justifying circumstances – accused and he can no longer rely on
weakness of prosecution’s evidence
(1) The circumstance affects the act, not
the actor;
Justifying circumstances
(2) The act complained of is considered
to have been done within the bounds Since the justifying circumstances are in the
of law; hence, it is legitimate and nature of defensive acts, there must be
lawful in the eyes of the law; always unlawful aggression. The
reasonableness of the means employed
(3) Since the act is considered lawful, depends on the gravity of the aggression. If
there is no crime, and because there the unlawful aggressor was killed, this can
is no crime, there is no criminal; only be justified if it was done to save the
life of the person defending or the person
(4) Since there is no crime or criminal, being defended. The equation is “life was
there is no criminal liability as well as taken to save life.”
civil liability.
In justifying circumstances, the most feeling through the dark, and in the process,
important is self-defense. When this is he awakened the accused. Believing that
given in the bar, it is the element of unlawful her honor was at stake, she got a pair of
aggression that is in issue. Never confuse scissors and stabbed the man. When the
unlawful aggression with provocation. Mere lights were turned on, she realized that she
provocation is not enough. had stabbed her brother-in-law. The
accused claimed as having acted in defense
Illustration: of her honor and mistake of fact. She said
that she believed that her own honor was at
A and B are long standing enemies. stake. It was held that the whole matter is
Because of their continuous quarrel over the purely her imagination. Touching the arm
boundaries of their adjoining properties, could not produce such danger as would
when A saw B one afternoon, he really be imminent to the honor of the
approached the latter in a menacing manner woman.
with a bolo in his hand. When he was about
five feet away from B, B pulled out a Apparently, under the Revised Penal Code,
revolver and shot A on the chest, killing him. the honor of a woman in respect of her
Is B criminally liable? What crime was defense is equated with her virginity.
committed, if any?
In US v. Jaurigue, it was held that it was
The act of A is nothing but a provocation. It not possible to rape the accused because
cannot be characterized as an unlawful the whole thing transpired in the church,
aggression because in criminal law, an where there were so many people.
unlawful aggression is an attack or a Therefore, her availing of defense of honor
threatened attack which produces an is not tenable. She could not possibly be
imminent danger to the life and limb of the raped in that place. Defense of honor here
one resorting to self-defense. In the facts of is being equated with one of abuse of
the problem given above, what was said chastity of a woman. In this case, the
was that A was holding a bolo. That bolo offended party placed his hand on the thigh
does not produce any real or imminent of the woman who was then praying. There
danger unless a raises his arm with the was already some sort of aggression but it
bolo. As long as that arm of A was down was not enough to warrant the act resorted
holding the bolo, there is no imminent to by the accused in getting a small knife
danger to the life or limb of B. Therefore, from her bag and thrusting it on the chest of
the act of B in shooting A is not justified. the offended party.
In People v. Rodriguez, a woman went into If the person being defended is already a
the house of another woman whom she second cousin, you do not invoke defense
suspected of having an affair with her of relative anymore. It will be defense of
husband. She started pouring gasoline on stranger. This is vital because if the person
the house of the woman. Since the woman making the defense acted out or revenge,
has children inside the house, she jumped resentment or some evil motive in killing the
out to prevent this other woman from aggressor, he cannot invoke the justifying
pouring gasoline around the house. The circumstance if the relative defended is
woman who was pouring gasoline had a already a stranger in the eyes of the law.
bolo, so she started hacking the other On the other hand, if the relative defended
woman with it. They grappled with the bolo. is still within the coverage of defense of
At that moment, the one who jumped out of relative, even though he acted out of some
the house was able to wrest the bolo away evil motive, it would still apply. It is enough
and started hacking the other woman. It that there was unlawful aggression against
was held that the hacking was not justified. the relative defended, and that the person
Actually, when she killed the supposed defending did not contribute to the unlawful
unlawful aggressor, her life and limb were aggression.
no longer in imminent danger. That is the
focal point.
Question & Answer
At the time the accused killed the supposed
unlawful aggressor, was her life in danger?
The person being defended was a
If the answer is no, there is no self-defense.
relative – a first cousin. But the fellow who
But while there may be no justifying
killed the aggressor had some score to
circumstance, do not forget the incomplete
settle with the aggressor. Is he entitled to a
self-defense. This is a mitigating
justifying circumstance?
circumstance under paragraph 1 of Article
13. This mitigating circumstance is either
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Civil liability is based on the benefit derived Invariably, when you are given a problem on
and not on the act, damage or injury this premise, and the first condition is
caused. It is wrong to treat this as an present, but the second is not because the
exception to the rule that in justifying offender acted with culpa, the offender will
circumstances, there is no criminal nor civil be entitled to a privelege mitigating
liability, on the principle that “no one should circumstance. This is what you call
enrich himself at the expense of another”. incomplete justification of fulfillment of duty
or incomplete justification of exercise of a
Illustration: right. In that case, the penalty would be
reduced by one or two degrees.
A and B are owners of adjoining lands. A
owns the land for planting certain crops. B In People v. Oanis and Callanta, the
owns the land for raising certain goats. C accused Chief of Police and the
used another land for a vegetable garden. constabulary soldier were sent out to arrest
There was heavy rain and floods. Dam was a certain Balagtas, supposedly a notorious
opened. C drove all the goats of B to the bandit. There was an order to kill Balagtas
land of A. The goats rushed to the land of A if he would resist. The accused arrived at
to be saved, but the land of A was the house of a dancer who was supposedly
destroyed. The author of the act is C, but C the girlfriend of Balagtas. When they were
is not civilly liable because he did not there, they saw a certain person who
receive benefits. It was B who was resembled Balagtas in all his bodily
benefited, although he was not the actor. appearance sleeping on a bamboo bed but
He cannot claim that it was fortuitous event. facing the other direction. The accused,
B will answer only to the extent of the without going around the house, started
benefit derived by him. If C who drove all firing at the man. They found out later on
the goats is accused of malicious mischief, that the man was not really Balagtas. They
his defense would be that he acted out of a tried to invoke the justifying circumstance of
state of necessity. He will not be civilly having acted in fulfillment of a duty.
liable.
Fulfillment of duty The second requisite is absent because
they acted with negligence. There was
In the justifying circumstance of a person nothing that prevented them from looking
having acted out of fulfillment of a duty and around the house and looking at the face of
the lawful exercise of a right or office, there the fellow who was sleeping. There could
are only two conditions: not be any danger on their life and limb.
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Hence, they were held guilty of the crime of where the offender had run. But although
murder because the fellow was killed when he will be criminally liable, he will be given
he was sleeping and totally defenseless. the benefit of an incomplete fulfillment of
However, the Supreme Court granted them duty.
the benefit of incomplete justification of
fulfillment of duty and the penalty was
reduced by one or two degrees. Exempting circumstances
Do not confuse fulfillment of a duty with In exempting circumstances, the reason for
self-defense. the exemption lies on the involuntariness of
the act – one or some of the ingredients of
Illustration: voluntariness such as criminal intent,
intelligence, or freedom of action on the part
A, a policeman, while waiting for his wife to of the offender is missing. In case it is a
go home, was suddenly stabbed at the back culpable felony, there is absence of freedom
by B, a hoodlum, who mistook him for of action or intelligence, or absence of
someone else. When A saw B, he drew his negligence, imprudence, lack of foresight or
revolver and went after B. After firing a shot lack of skill.
in the air, B did not stop so A shot B who
was hit at a vital part of the body. B died. Is
the act of A justified? Imbecility and insanity
(2) The test of volition, or whether the (3) He must be below 18 years old
accused acted in total deprivation of because a youthful offender is one
freedom of will. who is below 18.
Schizoprenia (dementia praecox) can only Note that the age of majority has been
be considered a mitigating circumstance reduced to 18. There is no more bracket
because it does not completely deprive the where the offender is a minor yet no longer
offender of consciousness of his acts. entitled to a mitigating circumstance. An
offender below 18 is always entitled to a
mitigating or exempting circumstance.
civilly liable but he will be committed of the offender. The limitation that it
to the surveillance of his parents should be lowered by at least two
who will be required to report to the degrees is just a limitation on the
court periodically on the progress or power of the court to reduce the
development of the offender. penalty. It cannot be less than two
degrees.
If the offender is proven to have
acted with discernment, this is where (4) If the offender is 15 years old and
the court may give him the benefit of above but below 18, there is no
a suspended sentence. He may be exemption anymore but he is also
given the benefit of a suspended given the benefit of a suspended
sentence under the conditions sentence under the conditions stated
mentioned earlier and only if he earlier and if at the time the
would file an application therefor. sentence is promulgated, he is not
18 years old or over yet. If the
Suspension of sentence is not automatic. If sentence is promulgated, the court
the youthful offender has filed an application will impose a penalty one degree
therefor. lower. This time it is fixed. It is to be
imposed one degree lower and in
(3) If at the time the judgment is to be the proper periods subject to the
promulgated he is already above 18, rules in Article 64.
he cannot avail of a suspended
sentence. The reason is because if
the sentence were to be suspended, Damnum absque injuria
he would be committed in a
reformatory. Since he cannot be Under Article 12, paragraph 4, the offender
committed to a reformatory anymore is exempt not only from criminal but also
because he is not less than 18 years from civil liability. This paragraph embodies
old, he would have to be committed the Latin maxim “damnum absque injuria”.
to a penitentiary. That means
promulgation of the sentence shall Illustration:
not be suspended. If the sentence
should not be suspended, although A person who is driving his car within the
the minor may be qualified, the court speed limit, while considering the condition
will promulgate the sentence but the of the traffic and the pedestrians at that
minor shall be entitled to the time, tripped on a stone with one of his car
reduction of the penalty by at least tires. The stone flew hitting a pedestrian on
two degrees. the head. The pedestrian suffered profuse
bleeding. What is the liability of the driver?
When the offender is over nine but
below 15, the penalty to be imposed There is no civil liability under paragraph 4
is discretionary on the court, but of Article 12. Although, this is just an
lowered by at least two degrees. It exempting circumstance, where generally
may be lowered by three or four there is civil liability, yet, in paragraph 4 of
degrees, depending upon whether Article 12, there is no civil liability as well as
the court deems best for the interest
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
criminal liability. The driver is not under still possessed with voluntariness. In
obligation to defray the medical expenses. exempting circumstances, the offender must
act without voluntariness.
However, correlate paragraph 4 of Article 12
with the second paragraph of Article 275. In a situation where the offender would
Article 275 gives you the crime of otherwise be exempt, but the requisites for
abandoning the victim of one’s own exemption are not all present, the offender
accident. It is a crime. Here, the accident is still entitled to a mitigating circumstance
referred to in paragraph 2 of Article 275 is in of incomplete exemption under paragraph 1
the concept of paragraph 4 of Article 12. of Article 13. Apply the rule if majority of the
This means that the offender must be requisites to exempt from criminal liability
performing a lawful act, that he was doing it are present. The offender shall be given the
with due care but somehow, injury resulted benefit of privelege mitigating
by mere accident without fault or intention of circumstances. That means that the penalty
causing it. prescribed of the crime committed shall be
reduced by one or two degrees in
If at the very beginning, the offender was accordance with Article 69 of the Revised
negligent, you do not apply Article 275, Penal Code. If less than a majority of the
paragraph 2. Instead, it will be Article 365 requisites for exemption are present, the
on criminal negligence. Notice that in the offender shall be given only the benefit of
last paragraph of Article 365, in the case of ordinary mitigating circumstances. That
the so-called hit and run drivers who have means the penalty shall be reduced to the
injured somebody and would abandon the minimum period of the prescribed penalty,
victim of the accident, the penalty is unless the mitigating circumstance is offset
qualified to a higher degree. Here, under by an aggravating circumstance.
paragraph 4 of Article 12, the infliction of the
injury by mere accident does not give rise to
a criminal or civil liability, but the person Mitigating circumstances
who caused the injury is duty bound to
attend to the person who was injured. If he Distinctions between ordinary mitigating
would abandon him, it is in that circumstances and privileged mitigating
abandonment that the crime arises which is circumstances
punished under the second paragraph of
Article 275. (1) As to the nature of the
circumstances
fight back. B approached A and boxed him, accused that he is not allowed to go inside.
but A cannot hit back at B because B is The accused tried to reason out but the
bigger, so A boxed C. Can A invoke bully slapped him several times in front of
sufficient provocation to mitigate criminal so many people, some of whom were ladies
liability? who were being courted by the accused, so
he was humiliated and embarrassed.
No. Sufficient provocation must However, he cannot fight the bully at that
come from the offended party. There may time because the latter was much bigger
actually be sufficient provocation which and heavier. Accused had no choice but to
immediately preceded the act, but if go home. When he saw the bully again, this
provocation did not come from the person time, he was armed with a knife and he
offended, paragraph 4, Article 13 will not stabbed the bully to death. The evidence
apply. for the accused showed that when he went
home, he was not able to sleep throughout
the night, thinking of the humiliation and
The commission of the felony must be outrage done to him, despite the lapse of
immediate to the threat or provocation in about 22 hours. The Supreme Court gave
order that this circumstance be mitigating. If him the benefit of this mitigating
there is sufficient break of time before the circumstance. The reason stated by the
provocation or threat and the consequent Supreme Court for allowing the accused to
commission of the crime, the law be benefited by this mitigating circumstance
presupposes that during that interval, is that the effect of the humiliation and
whatever anger or diminished self control outrage emitted by the offended party as a
may have emerged from the offender had provocation upon the accused was still
already vanished or disappeared. In present when he committed the crime and,
applying this mitigating circumstance, the therefore, the reason for paragraph 4 still
courts are generally considering that there applies. The accused was still acting under
must be no break between the provocation a diminished self control because he was
or threat and the commission of the felony. thinking of the humiliation he suffered in the
In other words, the felony was committed hands of the offended party. The outrage
precisely because he was then and there was so serious unless vindicated.
provoked.
This is the correct interpretation of
However, the recent rulings of the Supreme paragraph 4, Article 13. As long as the
Court, as well as the Court of Appeals, has offender at the time he committed the felony
stretched this criterion – it is not only a was still under the influence of the outrage
matter of time anymore. Before, there was a caused by the provocation or threat, he is
ruling that if a period of one hour had lapsed acting under a diminished self control. This
between the provocation and the is the reason why it is mitigating.
commission of the felony, this mitigating
circumstance is no longer applicable. You have to look at two criteria:
threat or provocation had prolonged The word “immediate” here does not carry
and affected the offender at the time the same meaning as that under paragraph
he committed the crime, then you 4. The word “immediate” here is an
use the criterion based on the time erroneous Spanish translation because the
element. Spanish word is “proxima” and not
“immediatementa.” Therefore, it is enough
(2) However, if there is that time that the offender committed the crime with
element and at the same time, facts the grave offense done to him, his spouse,
are given indicating that at the time his ascendant or descendant or to his
the offender committed the crime, he brother or sister, whether natural, adopted
is still suffering from outrage of the or legitimate and that is the proximate cause
threat or provocation done to him, of the commission of the crime.
then he will still get the benefit of this
mitigating circumstance.
Passion or obfuscation
In People v. Diokno, a Chinaman eloped
with a woman. Actually, it was almost three This stands on the premise or proposition
days before accused was able to locate the that the offender is suffering from a
house where the Chinaman brought the diminished self control because of the
woman. Here, sufficient provocation was passion or obfuscation. The same is true
one of the mitigating circumstances with the circumstances under paragraphs 4
considered by the Supreme Court in favor of and 5. So, there is a ruling to the effect that
the accused. if the offender is given the benefit of
paragraph 4, he cannot be given the benefit
of paragraph 5 or 6, or vice-versa. Only one
Vindication of a grave offense of the three mitigating circumstances should
be given in favor of the offender.
The word “offense” should not be taken as a
crime. It is enough if what was imputed or However, in one case, one of the mitigating
what was done was wrong. In considering circumstances under paragraphs 4, 5 and 6
whether the wrong is a grave one upon the stands or arises from a set of facts, and
person who committed the crime, his age, another mitigating circumstance arises from
education and social status will be another set of facts. Since they are
considered. predicated on different set of facts, they
may be appreciated together, although they
Here, in vindication of a grave offense, the arose from one and the same case. Hence,
vindication need not be done by the person the prohibition against considering all these
upon whom the grave offense was mitigating circumstances together and not
committed. So, unlike in sufficient threat or as one applies only if they would be taken
provocation where the crime should be on the basis of the same set of facts.
inflicted upon the very person who made the
threat or provocation, here, it need not be If the case involves a series of facts, then
the same person who committed the grave you can predicate any one of these
offense or who was offended by the wrong circumstances on one fact and the other on
done by the offended party. another fact and so on.
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The essence of voluntary surrender requires Whether or not a warrant of arrest had been
that the offender, after having committed the issued against the offender is immaterial
crime, had evaded the law enforcers and and irrelevant. The criterion is whether or
the law enforcers do not know of his not the offender had gone into hiding or had
whereabouts. In short, he continues to the opportunity to go into hiding and the law
elude arrest. If, under this circumstance, enforcers do not know of his whereabouts.
the offender would come out in the open If he would give up, his act of surrendering
and he gives himself up, his act of doing so under such circumstance indicates that he
will be considered as indicative of is willing to accept the consequences of the
repentance and he also saves the wrong he has done and also thereby saves
government the time and the expense of the government the effort, the time and the
looking for him. expenses to be incurred in looking for him.
As a general rule, if after committing the Where the offender went to the municipal
crime, the offender did not flee and he went building not to own responsibility for the
with the responding law enforcers meekly, killing, such fact is not tantamount to
voluntary surrender is not applicable. voluntary surrender as a mitigating
circumstance. Although he admitted his
However, there is a ruling that if after participation in the killing, he tried to avoid
committing the crime, the offender did not responsibility by claiming self-defense which
flee and instead waited for the law enforcers however he was not able to prove. People
to arrive and he surrendered the weapon he v. Mindac, decided December 14, 1992.
used in killing the victim, the ruling was that
voluntary surrender is mitigating. In this Surrender to be considered voluntary and
case, the offender had the opportunity to go thus mitigating, must be spontaneous,
into hiding, the fact that he did not flee is not demonstrating an intent to submit himself
voluntary surrender. unconditionally to the person in authority or
his agent in authority, because (1) he
However, if he comes out from hiding acknowledges his guilt (2) he wishes to
because he is seriously ill and he went to save the government the trouble and
get medical treatment, the surrender is not expenses of searching and capturing him.
considered as indicative of remorse or Where the reason for the surrender of the
repentance. The surrender here is only accused was to insure his safety, his arrest
done out of convenience to save his own by policemen pursuing him being inevitable,
self. Hence, it is not mitigating. the surrender is not spontaneous.
mitigating because that does not bear any considered mitigated by incomplete state of
relation to the crime committed. necessity.
proven was the price, reward or promise as because that was not the crime he was
a consideration for killing. The treachery hired to commit.
was not proved. Just the same, the
accused cannot be convicted of murder
because the circumstance proven is not Taking advantage of public position
qualifying but merely generic. It is generic
because it is not alleged in the information Article 62 was also amended by the
at all. If any of these qualifying Republic Act No. 7659. The legal import of
circumstances is not alleged in the this amendment is that the subject
information, it cannot be considered circumstance has been made a qualifying or
qualifying because a qualifying is an special aggravating that shall not be offset
ingredient of the crime and it cannot be or compensated by a mitigating
taken as such without having alleged in the circumstance. If not alleged in the
information because it will violate the right of information, however, but proven during the
the accused to be informed of the nature of trial, it is only appreciated as a generic
the accusation against him. aggravating circumstance.
Correlate Article 14 with Article 62. Article The mitigating circumstance referred to in
62 gives you the different rules regarding the amendment as not affecting the
aggravating circumstances. Aggravating imposition of the penalty in the maximum
circumstances will not be considered when are only ordinary mitigating circumstances.
it is the crime itself. If the crime charged is Privileged mitigating circumstances always
qualified trespass to dwelling, dwelling is no lower the penalty accordingly.
longer aggravating. When the aggravating
circumstance refers to the material
execution of the crime, like treachery, it will Disrespect due to rank, age, sex
only aggravate the criminal liability of those
who employed the same. Aggravating only in crimes against persons
and honor, not against property like
Illustration: Robbery with homicide (People v. Ga, 156
SCRA 790).
A person induced another to kill somebody.
That fellow killed the other guy and Teachers, professors, supervisors of public
employed treachery. As far as the killing is and duly recognized private schools,
concerned, the treachery will qualify only colleges and universities, as well as lawyers
the criminal liability of the actual are persons in authority only for purposes of
executioner. The fellow who induced him direct assault and simple resistance, but not
becomes a co-principal and therefore, he is for purposes of aggravating circumstances
liable for the same crime committed. in paragraph 2, Article 14. (People v.
However, let us say, the fellow was hired to Taoan, 182 SCRA 601).
kill the parent of the one who hired him. He
killed a stranger and not the parent. What
was committed is different from what was Abuse of confidence
agreed upon. The fellow who hired him will
not be liable for the crime he had done Do not confuse this with mere betrayal of
trust. This is aggravating only when the
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
very offended party is the one who reposed place for his peace of mind, rest, comfort
the confidence. If the confidence is reposed and privacy. The rule that dwelling, in order
by another, the offended party is different to be aggravating must be owned by the
from the fellow who reposed the confidence offended party is no longer absolute.
and abuse of confidence in this case is not Dwelling can be aggravating even if it is not
aggravating. owned by the offended party, provided that
the offended party is considered a member
Illustrations: of the family who owns the dwelling and
equally enjoys peace of mind, privacy and
A mother left her young daughter with the comfort.
accused because she had nobody to leave
the child with while she had to go on an Illustration:
errand. The accused abused the child. It
was held that the abuse of confidence is not Husband and wife quarreled. Husband
aggravating. What is present is betrayal of inflicted physical violence upon the wife.
trust and that is not aggravating. The wife left the conjugal home and went to
the house of her sister bringing her personal
In a case where the offender is a servant, belongings with her. The sister
the offended party is one of the members of accommodated the wife in the formers
the family. The servant poisoned the child. home. The husband went to the house of
It was held that abuse of confidence is the sister-in-law and tried to persuade the
aggravating. This is only true however, if the wife to come back to the conjugal home but
servant was still in the service of the family the wife refused because she is more at
when he did the killing. If he was driven by peace in her sister's house than in the
the master already out of the house for conjugal abode. Due to the wife's refusal to
some time and he came back and poisoned go back to the conjugal home and live with
the child, abuse of confidence is no longer the husband, the husband pulled out a knife
aggravating. The reason is because that and stabbed the wife which caused her
confidence has already been terminated death. It was held that dwelling was
when the offender was driven out of the aggravating although it is not owned by the
house. offended party because the offended party
is considered as a member of the family
who owns the dwelling and that dwelling is
where she enjoyed privacy. Peace of mind
and comfort.
Dwelling
Even a room in a hotel if rented as a
Dwelling will only be aggravating if it is the dwelling, like what the salesmen do when
dwelling of the offended party. It should also they are assigned in the provinces and they
not be the dwelling of the offender. If the rent rooms, is considered a dwelling. A
dwelling is both that of the offended party room in a hotel or motel will be considered
and the offender, dwelling is not dwelling if it is used with a certain degree of
aggravating. permanence, where the offended party
seeks privacy, rest, peace of mind and
Dwelling need not be owned by the comfort.
offended party. It is enough that he used the
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
If a young man brought a woman in a motel dwelling, the same being necessary and an
for a short time and there he was killed, integral part of his house or dwelling.
dwelling is not aggravating. Hence, when an attack is made while A is
on the stairs, the aggravating circumstance
A man was killed in the house of his of dwelling is not present. If the attack is
common law wife. Dwelling is aggravating in made while B was on the stairs, then the
this case because the house was provided aggravating circumstance of dwelling is
by the man. present.
Dwelling should not be understood in the Whenever one is in his dwelling, the law is
concept of a domicile. A person has more presuming that he is not intending to commit
than one dwelling. So, if a man has so many a wrong so one who attacks him while in the
wives and he gave them a places of their tranquility of his home shows a degree of
own, each one is his own dwelling. If he is perversity in him. Hence, this aggravating
killed there, dwelling will be aggravating, circumstance.
provided that he also stays there once in a
while. When he is only a visitor there, Dwelling is not limited to the house proper.
dwelling is not aggravating. All the appurtenances necessary for the
peace and comfort, rest and peace of mind
The crime of adultery was committed. in the abode of the offended party is
Dwelling was considered aggravating on the considered a dwelling.
part of the paramour. The paramour is not a
resident of the same dwelling. However, if Illustrations:
the paramour was also residing on the
same dwelling, dwelling is not considered A man was fixing something on the roof of
aggravating. his house when he was shot. It was held
that dwelling is aggravating. Roof still part of
The term “dwelling” includes all the the house.
dependencies necessary for a house or for
rest or for comfort or a place of privacy. If In the provinces where the comfort rooms
the place used is on the second floor, the are usually far from the house proper, if the
stairs which are used to reach the second offended party while answering the call of
floor is considered a dwelling because the nature is killed, then dwelling is aggravating
second floor cannot be enjoyed without the because the comfort room is a necessary
stairs. If the offended party was assaulted dependency of the house proper.
while on the stairs, dwelling is already
aggravating. For this reason, considering A person while in the room of his house,
that any dependency necessary for the maintaining the room, was shot. Dwelling is
enjoyment of a place of abode is considered aggravating.
a dwelling.
If the offender entered the house and the
Illustrations: offended party jumped out of the house,
even if the offender caught up with him
A and B are living in one house. A occupies already out of the house, dwelling is still
the ground floor while B the upper floor. The aggravating. The reason is because he
stairs here would form part only of B's could not have left his dwelling were it not
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
help was very little, despite the fact that Nocturnity is the period of time after sunset
there were other persons not so far from the to sunrise, from dusk to dawn.
scene.
(3) There is no time limit between the (5) The circumstance must be alleged in
first conviction and the subsequent the information; otherwise the court
conviction. Recidivism is cannot acquire jurisdiction to impose
imprescriptible. additional penalty.
refer to a felony committed later in order to convicted also by final judgement for a
constitute recidivism. The reason for this is crime embraced in the same title in the
as the time the first crime was committed, Revised Penal Code, it is necessary that the
there was no other crime of which he was conviction must come in the order in which
convicted so he cannot be regarded as a they are committed.
repeater.
have a situation where the offender is a the same. If the prosecution tried to prove
habitual delinquent but not a recidivist recidivism and the defense objected, the
because no two crimes fall under the same objection should be overruled. The reason
title of the Code. is recidivism is a generic aggravating
circumstance only. As such, it does not
If the first conviction is for serious physical have to be alleged in the information
injuries or less serious physical injuries and because even if not alleged, if proven during
the second conviction is for robbery, theft or trial, the trial court can appreciate it.
estafa and the third is for falsification, then
the moment the habitual delinquent is on his Right now, the present rule is that it can be
fourth conviction already, you cannot avoid appreciated even if not alleged in the
that he is a habitual delinquent and at the information. This is the correct view
same time a recidivist because at least, the because recidivism is a generic aggravating
fourth time will have to fall under any of the circumstance. The reason why habitual
three categories. delinquency cannot be appreciated unless
alleged in the information is because
When the offender is a recidivist and at the recidivism has nothing to do with the crime
same time a habitual delinquent, the penalty committed. Habitual delinquency refers to
for the crime for which he will be convicted prior conviction and therefore this must be
will be increased to the maximum period brought in the information before the court
unless offset by a mitigating circumstance. can acquire jurisdiction over this matter.
After determining the correct penalty for the
last crime committed, an added penalty will Generally, the procedure you know that
be imposed in accordance with Article 62. when the prosecutor alleges habitual
delinquency, it must specify the crimes
Habitual delinquency, being a special or committed, the dates when they were
specific aggravating circumstance must be committed, the court which tried the case,
alleged in the information. If it is not alleged the date when the accused was convicted
in the information and in the course of the or discharged. If these are not alleged, the
trial, the prosecution tried to prove that the information is defective.
offender is a habitual delinquent over the
objection of the accused, the court has no However, in a relatively recent ruling of the
jurisdiction to consider the offender a Supreme Court, it was held that even
habitual delinquent. Even if the accused is though the details of habitual delinquency
in fact a habitual delinquent but it is not was not set forth in the information, as long
alleged in the information, the prosecution as there is an allegation there that the
when introducing evidence was objected to, accused is a habitual delinquent, that is
the court cannot admit the evidence enough to confer jurisdiction upon the court
presented to prove habitual delinquency to consider habitual delinquency. In the
over the objection of the accused. absence of the details set forth in the
information, the accused has the right to
On the other hand, recidivism is a generic avail of the so-called bill of particulars. Even
aggravating circumstance. It need not be in a criminal case, the accused may file a
alleged in the information. Thus, even if motion for bill of particulars. If the accused
recidivism is not alleged in the information, if fails to file such, he is deemed to have
proven during trial, the court can appreciate waived the required particulars and so the
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
court can admit evidence of the habitual repeater because that means he has not yet
delinquency, even though over and above reformed.
the objection of the defense.
You will only consider the penalty in
reiteracion if there is already a second
Reiteracion conviction. When there is a third conviction,
you disregard whatever penalty for the
This has nothing to do with the classification subsequent crimes committed. Even if the
of the felonies. In reiteracion, the offender penalty for the subsequent crimes
has already tasted the bitterness of the committed are lighter than the ones already
punishment. This is the philosophy on which served, since there are already two of them
the circumstance becomes aggravating. subsequently, the offender is already a
repeater.
It is necessary in order that there be
reiteracion that the offender has already However, if there is only a second
served out the penalty. If the offender had conviction, pay attention to the penalty
not yet served out his penalty, forget about attached to the crime which was committed
reiteracion. That means he has not yet for the second crime. That is why it is said
tasted the bitterness of life but if he had that reiteracion is not always aggravating.
already served out the penalty, the law This is so because if the penalty attached to
expects that since he has already tasted the felony subsequently committed is not
punishment, he will more or less refrain equal or higher than the penalty already
from committing crimes again. That is why served, even if literally, the offender is a
if the offender committed a subsequent repeater, repetition is not aggravating.
felony which carries with it a penalty lighter
than what he had served, reiteracion is not
aggravating because the law considers that Quasi-recidivism
somehow, this fellow was corrected
because instead of committing a serious This is found in Article 160. The offender
crime, he committed a lesser one. If he must already be convicted by final
committed another lesser one, then he judgement and therefore to have served the
becomes a repeater. penalty already, but even at this stage, he
committed a felony before beginning to
So, in reiteracion, the penalty attached to serve sentence or while serving sentence.
the crime subsequently committed should
be higher or at least equal to the penalty Illustration:
that he has already served. If that is the
situation, that means that the offender was Offender had already been convicted by
never reformed by the fact that he already final judgement. Sentence was promulgated
served the penalty imposed on him on the and he was under custody in Muntinlupa.
first conviction. However, if he commits a While he was in Muntinlupa, he escaped
felony carrying a lighter penalty; from his guard and in the course of his
subsequently, the law considers that escape, he killed someone. The killing was
somehow he has been reformed but if he, committed before serving sentence but
again commits another felony which carries convicted by final judgement. He becomes a
a lighter penalty, then he becomes a
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Illustration:
Illustration:
A and B were arguing about something.
One argument led to another until A struck A, on Monday, thought of killing B on Friday.
B to death with a bolo. A did not know that A knew that B is coming home only on
C, the son of B was also in their house and Friday so A decided to kill B on Friday
who was peeping through the door and saw evening when he comes home. On
what A did. Afraid that A might kill him, too, Thursday, A met B and killed him. Is there
he hid somewhere in the house. A then evident premeditation? None but there is
dragged B's body and poured gasoline on it treachery as the attack was sudden.
and burned the house altogether. As a
consequence, C was burned and eventually Can there be evident premeditation when
died too. the killing is accidental? No. In evident
premeditation, there must be a clear
As far as the killing of B is concerned, it is reflection on the part of the offender.
homicide since it is noted that they were However, if the killing was accidental, there
arguing. It could not be murder. As far as was no evident premeditation. What is
the killing of C is concerned, the crime is necessary to show and to bring about
arson since he intended to burn the house evident premeditation aside from showing
only. that as some prior time, the offender has
manifested the intention to kill the victim,
No such crime as arson with homicide. Law and subsequently killed the victim.
enforcers only use this to indicate that a
killing occurred while arson was being Illustrations:
committed. At the most, you could
designate it as “death as a consequence of A and B fought. A told B that someday he
arson.” will kill B. On Friday, A killed B. A and B
fought on Monday but since A already
suffered so many blows, he told B, "This
Evident premeditation week shall not pass, I will kill you." On
Friday, A killed B. Is there evident
For evident premeditation to be aggravating, premeditation in both cases? None in both
the following conditions must concur: cases. What condition is missing to bring
about evident premeditation? Evidence to
(1) The time when the accused show that between Monday and Friday, the
determined to commit the crime; offender clung to his determination to kill the
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
victim, acts indicative of his having clung to crime. Evident premeditation is always
his determination to kill B. absorbed in treachery.
A and B had a quarrel. A boxed B. A told B, This is one aggravating circumstance where
"I will kill you this week." A bought firearms. the offender who premeditated, the law says
On Friday, he waited for B but killed C evident. It is not enough that there is some
instead. Is there evident premeditation? premeditation. Premeditation must be clear.
There is aberratio ictus. So, qualify. Insofar It is required that there be evidence showing
as B is concerned, the crime is attempted meditation between the time when the
murder because there is evident offender determined to commit the crime
premeditation. However, that murder cannot and the time when the offender executed
be considered for C. Insofar as C is the act. It must appear that the offender
concerned, the crime is homicide because clung to his determination to commit the
there was no evident premeditation. crime. The fact that the offender
premeditated is not prima facie indicative of
Evident premeditation shall not be evident premeditation as the meeting or
considered when the crime refers to a encounter between the offender and the
different person other than the person offended party was only by chance or
premeditated against. accident.
qualified into murder by evident of the crime which tend directly and
premeditation which is a qualifying specially to insure its execution without risk
circumstance. Same where A planned to kill to himself arising from the defense which
any member of the Iglesio ni Kristo. the offended party might make. The means,
method or form employed my be an
There are some crimes which cannot be aggravating circumstance which like
aggravated by evident premeditation availing of total darkness in nighttime or
because they require some planning before availing of superior strength taken
they can be committed. Evident advantage of by the offender, employing
premeditation is part of the crime like means to weaken the defense.
kidnapping for ransom, robbery with force
upon things where there is entry into the Illustration:
premises of the offended party, and estafa
through false pretenses where the offender A and B have been quarreling for some
employs insidious means which cannot time. One day, A approached B and
happen accidentally. befriended him. B accepted. A proposed
that to celebrate their renewed friendship,
they were going to drink. B was having too
Craft much to drink. A was just waiting for him to
get intoxicated and after which, he stabbed
Aggravating in a case where the offenders B.
pretended to be bona fide passengers of a
jeepney in order not to arouse suspicion, A pretended to befriend B, just to intoxicate
but once inside the jeepney, robbed the the latter. Intoxication is the means
passengers and the driver (People v. Lee, deliberately employed by the offender to
decided on December 20, 1991). weaken the defense of the offended party. If
this was the very means employed, the
circumstance may be treachery and not
Abuse of superior strength abuse of superior strength or means to
weaken the defense.
There must be evidence of notorious
inequality of forces between the offender What is the essence of treachery?
and the offended party in their age, size and
strength, and that the offender took The essence of treachery is that by virtue of
advantage of such superior strength in the means, method or form employed by the
committing the crime. The mere fact that offender, the offended party was not able to
there were two persons who attacked the put up any defense. If the offended party
victim does not per se constitute abuse of was able to put up a defense, even only a
superior strength (People v. Carpio, 191 token one, there is no treachery anymore.
SCRA 12). Instead some other aggravating
circumstance may be present but not
treachery anymore.
Treachery
Illustration:
Treachery refers to the employment of
means, method and form in the commission
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
A and B quarreled. However A had no In the same manner, if the offender avails of
chance to fight with B because A is much the services of men and in the commission
smaller than B. A thought of killing B but of the crime, they took advantage of
then he cannot just attack B because of the superior strength but somehow, the
latter's size. So, A thought of committing a offended party fought back, the crime is still
crime at nighttime with the cover of murder if the victim is killed. Although the
darkness. A positioned himself in the qualifying circumstance is abuse of superior
darkest part of the street where B passes on strength and not treachery, which is also a
his way home. One evening, A waited for B qualifying circumstance of murder under
and stabbed B. However, B pulled a knife as Article 248.
well and stabbed A also. A was wounded
but not mortal so he managed to run away. Treachery is out when the attack was
B was able to walk a few steps before he merely incidental or accidental because in
fell and died. What crime was committed? the definition of treachery, the implication is
that the offender had consciously and
The crime is only homicide because the deliberately adopted the method, means
aggravating circumstance is only nocturnity and form used or employed by him. So, if A
and nocturnity is not a qualifying and B casually met and there and then A
circumstance. The reason why treachery stabbed B, although stabbing may be
cannot be considered as present here is sudden since A was not shown to have the
because the offended party was able to put intention of killing B, treachery cannot be
up a defense and that negates treachery. In considered present.
treachery, the offended party, due to the
means, method or form employed by the There must be evidenced on how the crime
offender, the offended party was denied the was committed. It is not enough to show
chance to defend himself. If because of the that the victim sustained treacherous
cover of darkness, B was not able to put up wound. Example: A had a gunshot wound
a defense and A was able to flee while B at the back of his head. The SC ruled this is
died, the crime is murder because there is only homicide because treachery must be
already treachery. In the first situation, the proven. It must be shown that the victim
crime was homicide only, the nighttime is was totally defenseless.
generic aggravating circumstance.
Suddenness of the attack does not by itself
In the example where A pretended to constitute treachery in the absence of
befriend B and invited him to celebrate their evidence that the manner of the attack was
friendship, if B despite intoxication was able consciously adopted by the offender to
to put up some fight against A but render the offended party defenseless
eventually, B died, then the attendant (People v. Ilagan, 191 SCRA 643).
circumstance is no longer treachery but
means employed to weaken the defense. But where children of tender years were
But in murder, this is also a qualifying killed, being one year old and 12 years old,
circumstance. The crime committed is the killing is murder even if the manner of
murder but then the correct circumstance is attack was not shown (People v. Gahon,
not treachery but means employed to decided on April 30, 1991).
weaken the defense.
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
In People v. Lapan, decided on July 6, offender shoved the body inside a canal,
1992, the accused was prosecuted for ignominy is held aggravating.
robbery with homicide. Robbery was not
proven beyond reasonable doubt. Accused After having been killed, the body was
held liable only for the killings. Although thrown into pile of garbage, ignominy is
one of the victims was barely six years old, aggravating. The Supreme Court held that it
the accused was convicted only for added shame to the natural effects of the
homicide, aggravated by dwelling and in crime.
disregard of age.
Cruelty and ignominy are circumstances
Treachery not appreciated where quarrel brought about which are not necessary in
and heated discussion preceded a killing, the commission of the crime.
because the victim would be put on guard
(People v. Gupo). But although a quarrel Illustration:
preceded the killing where the victim was
atop a coconut tree, treachery was A and B are enemies. A upon seeing B
considered as the victim was not in a pulled out a knife and stabbed B 60 times.
position to defend himself (People v. Will that fact be considered as an
Toribio). aggravating circumstance of cruelty? No,
there is cruelty only when there are
evidence that the offender inflicted the stab
Distinction between ignominy and cruelty wounds while enjoying or delighted to see
the victim in pain. For cruelty to exist as an
Ignominy shocks the moral conscience of aggravating circumstance, there must be
man while cruelty is physical. Ignominy evidence showing that the accused inflicted
refers to the moral effect of a crime and it the alleged cruel wounds slowly and
pertains to the moral order, whether or not gradually and that he is delighted seeing the
the victim is dead or alive. Cruelty pertains victim suffer in pain. In the absence of
to physical suffering of the victim so the evidence to this effect, there is no cruelty.
victim has to be alive. In plain language, Sixty stab wounds do not ipso facto make
ignominy is adding insult to injury. A clear them aggravating circumstances of cruelty.
example is a married woman being raped The crime is murder if 60 wounds were
before the eyes of her husband. inflicted gradually; absence of this evidence
means the crime committed is only
In a case where the crime committed is rape homicide.
and the accused abused the victims from
behind, the Supreme Court considered the Cruelty is aggravating in rape where the
crime as aggravated by ignominy. Hence, offender tied the victim to a bed and burnt
raping a woman from behind is ignominous her face with a lighted cigarette while raping
because this is not the usual intercourse, it her laughing all the way (People v. Lucas,
is something which offends the moral of the 181 SCRA 315).
offended woman. This is how animals do it.
Unlawful entry is inherent in the crime of helping one another for purposes of gain in
robbery with force upon things but the commission of a crime.
aggravating in the crime of robbery with
violence against or intimidation of persons. With this provision, the circumstance of an
organized or syndicated crime group having
committed the crime has been added in the
Motor vehicle Code as a special aggravating
circumstance. The circumstance being
The Supreme Court considers strictly the special or qualifying, it must be alleged in
use of the word “committed”, that the crime the information and proved during the trial.
is committed with the use of a motor Otherwise, if not alleged in the information,
vehicle, motorized means of transportation even though proven during the trial, the
or motorized watercraft. There is a decision court cannot validly consider the
by the Court of Appeals that a motorized circumstances because it is not among
bicycle is a motor vehicle even if the those enumerated under Article 14 of the
offender used only the foot pedal because Code as aggravating. It is noteworthy,
he does not know how to operate the motor however, that there is an organized or
so if a bicycle is used in the commission of syndicated group even when only two
the crime, motor vehicle becomes persons collaborated, confederated, or
aggravating if the bicycle is motorized. mutually helped one another in the
commission of a crime, which acts are
This circumstance is aggravating only when inherent in a conspiracy. Where therefore,
used in the commission of the offense. If conspiracy in the commission of the crime is
motor vehicle is used only in the escape of alleged in the information, the allegation
the offender, motor vehicle is not may be considered as procedurally
aggravating. To be aggravating, it must sufficient to warrant receiving evidence on
have been used to facilitate the commission the matter during trial and consequently, the
of the crime. said special aggravating circumstance can
be appreciated if proven.
Aggravating when a motorized tricycle was
used to commit the crime
Alternative circumstances
moment it is given in a problem, do not use (1) In the case of an accessory who is
alternative circumstance, refer to it as related to the principal within the
aggravating or mitigating depending on relationship prescribed in Article 20;
whether the same is considered as such or
the other. If relationship is aggravating, (2) Also in Article 247, a spouse does
refer to it as aggravating. If mitigating, then not incur criminal liability for a crime
refer to it as such. of less serious physical injuries or
serious physical injuries if this was
Except for the circumstance of intoxication, inflicted after having surprised the
the other circumstances in Article 15 may offended spouse or paramour or
not be taken into account at all when the mistress committing actual sexual
circumstance has no bearing on the crime intercourse.
committed. So the court will not consider
this as aggravating or mitigating simply (3) Those commonly given in Article 332
because the circumstance has no relevance when the crime of theft, malicious
to the crime that was committed. mischief and swindling or estafa.
There is no criminal liability but only
Do not think that because the article says civil liability if the offender is related
that these circumstances are mitigating or to the offended party as spouse,
aggravating, that if the circumstance is ascendant, or descendant or if the
present, the court will have to take it as offender is a brother or sister or
mitigating, if not mitigating, aggravating. brother in law or sister in law of the
That is wrong. It is only the circumstance of offended party and they are living
intoxication which if not mitigating, is together. Exempting circumstance is
automatically aggravating. But the other the relationship. This is an
circumstances, even if they are present, but absolutory cause.
if they do not influence the crime, the court
will not consider it at all. Relationship may Sometimes, relationship is a qualifying and
not be considered at all, especially if it is not not only a generic aggravating
inherent in the commission of the crime. circumstance. In the crime of qualified
Degree of instruction also will not be seduction, the offended woman must be a
considered if the crime is something which virgin and less than 18 yrs old. But if the
does not require an educated person to offender is a brother of the offended woman
understand. or an ascendant of the offended woman,
regardless of whether the woman is of bad
reputation, even if the woman is 60 years
Relationship old or more, crime is qualified seduction. In
such a case, relationship is qualifying.
Relationship is not simply mitigating or
aggravating. There are specific
circumstances where relationship is Intoxication
exempting. Among such circumstances
are: This circumstance is ipso facto mitigating,
so that if the prosecution wants to deny the
offender the benefit of this mitigation, they
should prove that it is habitual and that it is
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
intentional. The moment it is shown to be partaken of two cases of beer, but after
habitual or intentional to the commission of stabbing the victim he hailed a tricycle and
the crime, the same will immediately even instructed the driver to the place
aggravate, regardless of the crime where he is sleeping and the tricycle could
committed. not reach his house and so he has to alight
and walk to his house, then there is no
Intoxication to be considered mitigating, diminished self control. The Supreme Court
requires that the offender has reached that did not give the mitigating circumstance
degree of intoxication where he has no because of the number of wounds inflicted
control of himself anymore. The idea is the upon the victim. There were 11 stab
offender, because of the intoxication is wounds and this, the Supreme Court said, is
already acting under diminished self control. incompatible with the idea that the offender
This is the rational why intoxication is is already suffering from diminished self
mitigating. So if this reason is not present, control. On the contrary, the indication is
intoxication will not be considered that the offender gained strength out of the
mitigating. So the mere fact that the drinks he had taken. It is not the quantity of
offender has taken one or more cases of drink that will determine whether the
beer of itself does not warrant a conclusion offender can legally invoke intoxication.
that intoxication is mitigating. There must The conduct of the offender, the manner of
be indication that because of the alcoholic committing the crime, his behavior after
intake of the offender, he is suffering from committing the crime must show the
diminished self control. There is diminished behavior of a man who has already lost
voluntariness insofar as his intelligence or control of himself. Otherwise intoxication
freedom of action is concerned. It is not the cannot legally be considered.
quantity of alcoholic drink. Rather it is the
effect of the alcohol upon the offender which
shall be the basis of the mitigating Degree of instruction and education
circumstance.
These are two distinct circumstances. One
Illustration: may not have any degree of instruction but
is nevertheless educated. Example: A has
In a case, there were two laborers who were been living with professionals for sometime.
the best of friends. Since it was payday, He may just be a maid in the house with no
they decided to have some good time and degree of instruction but he may still be
ordered beer. When they drank two cases educated.
of beer they became more talkative until
they engaged in an argument. One pulled It may happen also that the offender grew
out a knife and stabbed the other. When up in a family of professionals, only he is the
arraigned he invoked intoxication as a black sheep because he did not want to go
mitigating circumstance. Intoxication does to school. But it does not follow that he is
not simply mean that the offender has bereft of education.
partaken of so much alcoholic beverages.
The intoxication in law requires that If the offender did not go higher than Grade
because of the quality of the alcoholic drink 3 and he was involved in a felony, he was
taken, the offender had practically lost self invoking lack of degree of education. The
control. So although the offender may have Supreme Court held that although he did
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
not receive schooling, yet it cannot be said the term principal when the crime committed
that he lacks education because he came is a violation of special law. Only use the
from a family where brothers are all term “offender.” Also only classify offenders
professionals. So he understands what is when more than one took part in the
right and wrong. commission of the crime to determine the
proper penalty to be imposed. So, if only
The fact that the offender did not have one person committed a crime, do not use
schooling and is illiterate does not mitigate principal. Use the “offenders,” “culprits,” or
his liability if the crime committed is one the “accused.”
which he inherently understands as wrong
such as parricide. If a child or son or When a problem is encountered where
daughter would kill a parent, illiteracy will there are several participants in the crime,
not mitigate because the low degree of the first thing to find out is if there is a
instruction has no bearing on the crime. conspiracy. If there is, as a general rule, the
criminal liability of all will be the same,
In the same manner, the offender may be a because the act of one is the act of all.
lawyer who committed rape. The fact that
he has knowledge of the law will not However, if the participation of one is so
aggravate his liability, because his insignificant, such that even without his
knowledge has nothing to do with the cooperation, the crime would be committed
commission of the crime. But if he just as well, then notwithstanding the
committed falsification, that will aggravate existence of a conspiracy, such offender will
his criminal liability, where he used his be regarded only as an accomplice. The
special knowledge as a lawyer. reason for this ruling is that the law favors a
milder form of criminal liability if the act of
the participant does not demonstrate a clear
PERSONS WHO ARE CRIMINALLY perversity.
LIABLE
As to the liability of the participants in a
Under the Revised Penal Code, when more felony, the Code takes into consideration
than one person participated in the whether the felony committed is grave, less
commission of the crime, the law looks into grave, or light.
their participation because in punishing
offenders, the Revised Penal Code When the felony is grave, or less grave, all
classifies them as: participants are criminally liable.
(1) principal; But where the felony is only light only the
principal and the accomplice are liable. The
(2) accomplice; or accessory is not.
consummated, even the principal and the In the first situation, the facts indicate that if
accomplice are not liable. the fellow who held the legs of the victim
and spread them did not do so, the offender
Therefore it is only when the light felony is on top could hardly penetrate because the
against person or property that criminal woman was strong enough to move or
liability attaches to the principal or resist. In the second situation, the son was
accomplice, even though the felony is only much bigger than the woman so considering
attempted or frustrated, but accessories are the strength of the son and the victim,
not liable for liable for light felonies. penetration is possible even without the
assistance of the father. The son was a
robust farm boy and the victim
Principal by indispensable cooperation undernourished. The act of the father in
distinguished from an accomplice holding the legs of the victim merely
facilitated the penetration but even without it
It is not just a matter of cooperation, it is the son would have penetrated.
more than if the crime could hardly be
committed. It is not that the crime would not The basis is the importance of the
be committed because if that is what you cooperation to the consummation of the
would imply it becomes an ingredient of the crime. If the crime could hardly be
crime and that is not what the law committed without such cooperation, then
contemplates. such cooperation would bring about a
principal. But if the cooperation merely
In the case of rape, where three men were facilitated or hastened the consummation of
accused, one was on top of the woman, one the crime, this would make the cooperator
held the hands, one held the legs, the merely an accomplice.
Supreme Court ruled that all participants are
principals. Those who held the legs and In a case where the offender was running
arms are principals by indispensable after the victim with a knife. Another fellow
cooperation. came and blocked the way of the victim
and because of this, the one chasing the
The accused are father and son. The father victim caught up and stabbed the latter at
told his son that the only way to convince the back. It was held that the fellow who
the victim to marry him is to resort to rape. blocked the victim is a principal by
So when they saw the opportunity the indispensable cooperation because if he did
young man grabbed the woman, threw her not block the way of the victim, the offender
on the ground and placed himself on top of could not have caught up with the latter.
her while the father held both legs of the
woman and spread them. The Supreme In another case, A was mauling B. C, a
Court ruled that the father is liable only as friend of B tried to approach but D stopped
an accomplice. C so that A was able to continuously maul
B. The liability of the fellow who stopped
The point is not just on participation but on the friend from approaching is as an
the importance of participation in committing accomplice. Understandably he did not
the crime. cooperate in the mauling, he only stopped
to other fellow from stopping the mauling.
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
In case of doubt, favor the lesser penalty or moral ascendancy and influence over Oscar
liability. Apply the doctrine of pro reo. being much older, 35 years old, than the
latter, who was 18 yrs old, and it was
Ernesto who provided his allowance,
Principal by inducement clothing as well as food and shelter, Ernesto
is principal by inducement.
Concept of the inducement – one strong
enough that the person induced could In People v. Agapinay, 186 SCRA 812, the
hardly resist. This is tantamount to an one who uttered “Kill him, we will bury him,”
irresistible force compelling the person while the felonious aggression was taking
induced to carry out the execution of the place cannot be held liable as principal by
crime. Ill advised language is not enough inducement. Utterance was said in the
unless he who made such remark or advice excitement of the hour, not a command to
is a co-conspirator in the crime committed. be obeyed.
While in the course of a quarrel, a person
shouted to A, “Kill him! Kill him.” A killed the In People v. Madali, 188 SCRA 69, the son
other fellow. Is the person who shouted was mauled. The family was not in good
criminally liable. Is that inducement? No. It graces of the neighborhood. Father
must be strong as irresistible force. challenged everybody and when neighbors
approached, he went home to get a rifle.
There was a quarrel between two families. The shouts of his wife “Here comes another,
One of the sons of family A came out with a shoot him” cannot make the wife the
shotgun. His mother then shouted, principal by inducement. It is not the
“Shoot!”. He shot and killed someone. Is determining cause of the crime in the
the mother liable? No. absence of proof that the words had great
dominance and influence over the husband.
Examples of inducement: Neither is the wife’s act of beaming the
victim with a flashlight indispensable to the
“I will give you a large amount of money.” commission of the killing. She assisted her
husband in taking good aim, but such
“I will not marry you if you do not kill B”(let assistance merely facilitated the felonious
us say he really loves the inducer). act of shooting. Considering that it was not
so dark and the husband could have
They practically become co-conspirators. accomplished the deed without his wife’s
Therefore you do not look into the degree of help, and considering further that doubts
inducement anymore. must be resolved in favor of the accused,
the liability of the wife is only that of an
In People v. Balderrama, Ernesto shouted accomplice.
to his younger brother Oscar, “Birahin mo
na, birahin mo na.” Oscar stabbed the
victim. It was held that there was no Accessories
conspiracy. Joint or simultaneous action
per se is not indicia of conspiracy without Two situations where accessories are not
showing of common design. Oscar has no criminally liable:
rancor with the victim for him to kill the
latter. Considering that Ernesto had great
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(1) When the felony committed is a light the principal to profit by the effects of
felony; robbery or theft is not just an accessory to
the crime, but principally liable for fencing
(2) When the accessory is related to the under Presidential Decree No. 1612.
principal as spouse, or as an
ascendant, or descendant or as Any person who, with intent to gain,
brother or sister whether legitimate, acquires and/or sell, possesses, keeps or in
natural or adopted or where the any manner deals with any article of value
accessory is a relative by affinity which he knows or should be known to him
within the same degree, unless the to be the proceeds of robbery or theft is
accessory himself profited from the considered a “fence” and incurs criminal
effects or proceeds of the crime or liability for “fencing” under said decree. The
assisted the offender to profit penalty is higher than that of a mere
therefrom. accessory to the crime of robbery or theft.
Accessory as a fence
1. May one who profited out of
the proceeds of estafa or malversation be
The Revised Penal Code defines what
prosecuted under the Anti-Fencing Law?
manners of participation shall render an
offender liable as an accessory. Among the
No. There is only a fence when the
enumeration is “by profiting themselves or
crime is theft or robbery. If the crime is
by assisting the offender to profit by the
embezzlement or estafa, still an accessory
effects of the crime”. So the accessory shall
to the crime of estafa, not a fence.
be liable for the same felony committed by
2. If principal committed
the principal. However, where the crime
robbery by snatching a wristwatch and gave
committed by the principal was robbery or
it to his wife to sell, is the wife criminally
theft, such participation of an accessory
liable? Can she be prosecuted as an
brings about criminal liability under
accessory and as a fence?
Presidential Decree No. 1612 (Anti-Fencing
Law). One who knowingly profits or assists
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
The liability of the wife is based on has performed them knowingly, unless the
her assisting the principal to profit and that contrary is proven.
act is punishable as fencing. She will no
longer be liable as an accessory to the Although Republic Act No. 7659, in
crime of robbery. amending Article 122 of the Revised Penal
Code, incorporated therein the crime of
In both laws, Presidential Decree No. 1612 piracy in Philippine territorial waters and
and the Revised Penal Code, the same act thus correspondingly superseding
is the basis of liability and you cannot Presidential Decree No. 532, Section 4 of
punish a person twice for the same act as the Decree which punishes said acts as a
that would go against double jeopardy. crime of abetting piracy or brigandage, still
stands as it has not been repealed nor
modified, and is not inconsistent with any
Acquiring the effects of piracy or brigandage provision of Republic Act No. 7659.
It shall be presumed that any person who In the case of a public officer, the crime
does any of the acts provided in this Section committed by the principal is immaterial.
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Crime committed is kidnapping for ransom. Here, there is no specification of the crime
Principal was being chased by soldiers. His to be committed by the offender for criminal
aunt hid him in the ceiling of her house and liability to be incurred for harboring,
aunt denied to soldiers that her nephew had concealing, or facilitating the escape of the
ever gone there. When the soldiers left, the offender, and the offender need not be the
aunt even gave money to her nephew to go principal – unlike paragraph 3, Article 19 of
to the province. Is aunt criminally liable? the Code. The subject acts may not bring
No. Article 20 does not include an auntie. about criminal liability under the Code, but
However, this is not the reason. The reason under this decree. Such an offender if
is because one who is not a public officer violating Presidential Decree No. 1829 is
and who assists an offender to escape or no longer an accessory. He is simply an
otherwise harbors, or conceals such offender without regard to the crime
offender, the crime committed by the committed by the person assisted to
principal must be either treason, parricide escape. So in the problem, the standard of
murder or attempt on the life of the Chief the Revised Penal Code, aunt is not
executive or the principal is known to be criminally liable because crime is
habitually guilty of some other crime. kidnapping, but under Presidential Decree
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
No. 1829, the aunt is criminally liable but not acquitted. So the criminal liability of an
as an accessory. accomplice or accessory does not depend
on the criminal liability of the principal but
Whether the accomplice and the accessory depends on the quantum of evidence. But if
may be tried and convicted even before the the evidence shows that the act done does
principal is found guilty. not constitute a crime and the principal is
acquitted, then the supposed accomplice
There is an earlier Supreme Court ruling and accessory should also be acquitted. If
that the accessory and accomplice must be there is no crime, then there is no criminal
charged together with the principal and that liability, whether principal, accomplice, or
if the latter be acquitted, the accomplice and accessory.
the accessory shall not be criminally liable
also, unless the acquittal is based on a Under paragraph 3, Article 19, take note in
defense which is personal only to the the case of a civilian who harbors, conceals,
principal. Although this ruling may be or assists the escape of the principal, the
correct if the facts charged do not make the law requires that the principal be found
principal criminally liable at all, because guilty of any of the specified crimes:
there is no crime committed. treason, parricide, etc. The paragraph uses
the particular word “guilty”. So this means
Yet it is not always true that the accomplice that before the civilian can be held liable as
and accessory cannot be criminally liable an accessory, the principal must first be
without the principal first being convicted. found guilty of the crime charged, either
Under Rule 110 of the Revised Rules on treason, parricide, murder, or attempt to
Criminal Procedure, it is required that all take the life of the Chief Executive. If the
those involved in the commission of the principal is acquitted, that means he is not
crime must be included in the information guilty and therefore, the civilian who
that may be filed. And in filing an harbored, concealed or assisted in the
information against the person involved in escape did not violate art. 19. That is as far
the commission of the crime, the law does as the Revised Penal Code is concerned.
not distinguish between principal, But not Presidential Decree No. 1829. This
accomplice and accessory. All will be special law does not require that there be
accused and whether a certain accused will prior conviction. It is a malum prohibitum,
be principal or accomplice or accessory will no need for guilt, or knowledge of the crime.
depend on what the evidence would show In Taer v. CA, accused received from his
as to his involvement in the crime. In other co-accused two stolen male carabaos.
words, the liability of the accused will Conspiracy was not proven. Taer was held
depend on the quantum of evidence liable as an accessory in the crime of cattle
adduced by the prosecution against the rustling under Presidential Decree No. 533.
particular accused. But the prosecutor must [Taer should have been liable for violation of
initiate proceedings versus the principal. the Anti-fencing law since cattle rustling is a
form of theft or robbery of large cattle,
Even if the principal is convicted, if the except that he was not charged with
evidence presented against a supposed fencing.]
accomplice or a supposed accessory does
not meet the required proof beyond In Enrile v. Amin, a person charged with
reasonable doubt, then said accused will be rebellion should not be separately charged
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
under Presidential Decree No. 1829. The This article gives justification for detaining
theory of absorption must not confine itself the accused. Otherwise, the detention
to common crimes but also to offenses would violate the constitutional provision
punished under special laws which are that no person shall be deprived of life,
perpetrated in furtherance of the political liberty and property without due process of
offense. law. And also, the constitutional right of an
accused to be presumed innocent until the
contrary is proved.
PENALTIES
Repeal of Article 80
Measures of prevention not considered
as penalty When may a minor be committed to
a reformatory?
The following are the measures of
prevention or safety which are not If the minor is between 9 - 15 years
considered penalties under Article 24: old and acted with discernment, sentence
must first be suspended under the following
(1) The arrest and temporary detention conditions:
of accused persons as well as their
detention by reason of insanity or (1) Crime committed is not punishable
imbecility or illness requiring their by death or reclusion perpetua;
confinement in a hospital.
(2) He is availing of the benefit of
(2) The commitment of a minor to any of suspension for the first time;
the institutions mentioned in art. 80
for the purposes specified therein. (3) He must still be a minor at the time
of promulgation of the sentence.
(3) Suspension from the employment or
public office during the trial or in
order to institute proceedings. Correlating Article 24 with Article 29
(4) Fines and other corrective measures Although under Article 24, the detention of a
which, in the exercise of their person accused of a crime while the case
administrative disciplinary powers, against him is being tried does not amount
superior officials may impose upon to a penalty, yet the law considers this as
their subordinates. part of the imprisonment and generally
deductible from the sentence.
(5) Deprivation of rights and reparations
which the civil laws may establish in When will this credit apply? If the penalty
penal form. imposed consists of a deprivation of liberty.
Not all who have undergone preventive
Why does the Revised Penal Code specify imprisonment shall be given a credit
that such detention shall not be a penalty
but merely a preventive measure? Under Article 24, preventive imprisonment
of an accused who is not yet convicted, but
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
So, if the accused has actually undergone Under what circumstances may a detention
preventive imprisonment, but if he has been prisoner be released, even though the
convicted for two or more crimes whether proceedings against him are not yet
he is a recidivist or not, or when he has terminated?
been previously summoned but failed to
surrender and so the court has to issue a Article 29 of the Revised Penal Code has
warrant for his arrest, whatever credit he is been amended by a Batas Pambansa
entitled to shall be forfeited. effective that tool effect on September 20,
1980. This amendment is found in the
If the offender is not disqualified from the Rules of Court, under the rules on bail in
credit or deduction provided for in Article 29 Rule 114 of the Rules on Criminal
of the Revised Penal Code, then the next Procedure, the same treatment exactly is
thing to determine is whether he signed an applied there.
undertaking to abide by the same rules and
regulations governing convicts. If he signed In the amendment, the law does not speak
an undertaking to abide by the same rules of credit. Whether the person is entitled to
and regulations governing convicts, then it credit is immaterial. The discharge of the
means that while he is suffering from offender from preventive imprisonment or
preventive imprisonment, he is suffering like detention is predicated on the fact that even
a convict, that is why the credit is full. if he would be found guilty of the crime
charged, he has practically served the
But if the offender did not sign an sentence already, because he has been
undertaking, then he will only be subjected detained for a period already equal to if not
to the rules and regulations governing greater than the maximum penalty that
detention prisoners. As such, he will only would be possibly be imposed on him if
be given 80% or 4/5 of the period of his found guilty.
preventive detention.
If the crime committed is punishable only by
From this provision, one can see that the destierro, the most the offender may be held
detention of the offender may subject him under preventive imprisonment is 30 days,
only to the treatment applicable to a and whether the proceedings are terminated
detention prisoner or to the treatment or not, such detention prisoner shall be
applicable to convicts, but since he is not discharged.
convicted yet, while he is under preventive
imprisonment, he cannot be subjected to Understand the amendment made to Article
the treatment applicable to convicts unless 29. This amendment has been incorporated
he signs and agrees to be subjected to such
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
under Rule 114 precisely to do away with exceed 40 years. If a convict who is to
arbitrary detention. serve several sentences could only be
made to serve 40 years, with more reason,
Proper petition for habeas corpus must be one who is sentenced to a singly penalty of
filed to challenge the legality of the reclusion perpetua should not be held for
detention of the prisoner. more than 40 years.
Under Article 70, which is the Three-Fold (1) When a legally married person who
Rule, the maximum period shall in no case had surprised his or her spouse in
the act of sexual intercourse with
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
another and while in that act or (4) The right to dispose of such property
immediately thereafter should kill or by any act or any conveyance inter
inflict serious physical injuries upon vivos.
the other spouse, and/or the
paramour or mistress. This is found Can a convict execute a last will and
in Article 247. testament? Yes.
4. What do we refer to if it is
special or absolute disqualification? (3) Article 42. Prision mayor - temporary
absolute disqualification perpetual
We refer to the nature of the special disqualification from the right
disqualification. of suffrage;
Penalties in which other accessory penalties A has been convicted and is serving the
are inherent: penalty of prision mayor. While serving
sentence, he executed a deed of sale over
(1) Article 40. Death - perpetual his only parcel of land. A creditor moved to
absolute disqualification, and civil annul the sale on the ground that the
interdiction during 30 years following convict is not qualified to execute a deed of
date of sentence; conveyance inter vivos. If you were the
judge, how would you resolve the move of
(2) Article 41. Reclusion perpetua and the creditor to annul the sale?
reclusion temporal - civil interdiction
for life or during the period of the Civil interdiction is not an accessory penalty
sentence as the case may be, and in prision mayor. The convict can convey
perpetual absolute disqualification; his property.
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
are not correct when they deviate from the determines whether the rules in Article 63 or
technical designation of the principal the rules in Article 64 should be observed in
penalty, because the moment they deviate fixing the penalty.
from this designation, there will be no
corresponding accessory penalties that will Thus, consistent with the rule mentioned,
go with them. the Supreme Court, by its First Division,
applied Article 65 of the Code in imposing
Illustration: the penalty for rape in People v. Conrado
Lucas, GR No. 108172-73, May 25, 1994.
When the judge sentenced the accused to It divided the time included in the penalty of
the penalty of reclusion perpetua, but reclusion perpetua into three equal portions,
instead of saying reclusion perpetua, it with each portion composing a period as
sentenced the accused to life imprisonment, follows:
the designation is wrong.
Minimum - 20 years and one day, to 26
years and eight months;
Reclusion perpetua as modified
Medium - 26 years, eight months and one
Before the enactment of Republic Act No. day, to 33 years and four months;
7659, which made amendments to the
Revised Penal Code, the penalty of Maximum - 34 years, four months and one
reclusion perpetua had no fixed duration. day, to 40 years.
The Revised Penal Code provides in Article
27 that the convict shall be pardoned after Considering the aggravating circumstance
undergoing the penalty for thirty years, of relationship, the Court sentenced the
unless by reason of his conduct or some accused to imprisonment of 34 years, four
other serious cause, he is not deserving of months and one day of reclusion perpetua,
pardon. As amended by Section 21 of instead of the straight penalty of reclusion
Republic Act No. 7659, the same article perpetua imposed by the trial court. The
now provides that the penalty of reclusion appellee seasonably filed a motion for
perpetua shall be from 20 years to 40 years. clarification to correct the duration of the
Because of this, speculations arose as to sentence, because instead of beginning
whether it made reclusion perpetua a with 33 years, four months and one day, it
divisible penalty. was stated as 34 years, four months and
one day. The issue of whether the
As we know, when a penalty has a fixed amendment of Article 27 made reclusion
duration, it is said to be divisible and, in perpetua a divisible penalty was raised, and
accordance with the provisions of Articles because the issue is one of first impression
65 and 76, should be divided into three and momentous importance, the First
equal portions to form one period of each of Division referred the motion to the Court en
the three portions. Otherwise, if the penalty banc.
has no fixed duration, it is an indivisible
penalty. The nature of the penalty as In a resolution promulgated on January 9,
divisible or indivisible is decisive of the 1995, the Supreme Court en banc held that
proper penalty to be imposed under the reclusion perpetua shall remain as an
Revised Penal Code inasmuch as it
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(2) When penalty is only a fine. In People v. Subido, it was held that the
convict cannot choose not to serve, or not to
Therefore, there shall be no subsidiary pay the fine and instead serve the
penalty for the non-payment of damages to subsidiary penalty. A subsidiary penalty will
the offended party. only be served if the sheriff should return
the execution for the fine on the property of
This subsidiary penalty is one of important the convict and he does not have the
matter under the title of penalty. A properties to satisfy the writ.
subsidiary penalty is not an accessory
penalty. Since it is not an accessory penalty,
it must be expressly stated in the sentence, Questions & Answers
but the sentence does not specify the period
of subsidiary penalty because it will only be
The penalty imposed by the judge is
known if the convict cannot pay the fine.
fine only. The sheriff then tried to levy the
The sentence will merely provide that in
property of the defendant after it has
case of non-payment of the fine, the convict
become final and executory, but it was
shall be required to save subsidiary penalty.
returned unsatisfied. The court then issued
It will then be the prison authority who will
an order for said convict to suffer subsidiary
compute this.
penalty. The convict was detained, for
which reason he filed a petition for habeas
So even if subsidiary penalty is proper in a
corpus contending that his detention is
case, if the judge failed to state in the
illegal. Will the petition prosper?
sentence that the convict shall be required
to suffer subsidiary penalty in case of
Yes. The judgment became final
insolvency to pay the fine, that convict
without statement as to subsidiary penalty,
cannot be required to suffer the accessory
so that even if the convict has no money or
penalty. This particular legal point is a bar
property to satisfy the fine, he cannot suffer
problem. Therefore, the judgment of the
subsidiary penalty because the latter is not
court must state this. If the judgment is
an accessory and so it must be expressly
silent, he cannot suffer any subsidiary
stated. If the court overlooked to provide for
penalty.
subsidiary penalty in the sentence and its
attention was later called to that effect,
The subsidiary penalty is not an accessory
thereafter, it tried to modify the sentence to
penalty that follows the principal penalty as
include subsidiary penalty after period to
a matter of course. It is not within the
appeal had already elapsed, the addition of
control of the convict to pay the fine or not
subsidiary penalty will be null and void.
and once the sentence becomes final and
This is tantamount to double jeopardy.
executory and a writ of execution is issued
to collect the fine, if convict has property to
levy upon, the same shall answer for the
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If the fine is prescribed with the penalty of fixed duration, the non-payment of the fine
imprisonment or any deprivation of liberty, will bring about subsidiary penalty. This
such imprisonment should not be higher being a restriction of liberty with a fixed
than six years or prision correccional. duration under Article 39 for the
Otherwise, there is no subsidiary penalty. nonpayment of fine that goes with the
destierro, the convict will be required to
undergo subsidiary penalty and it will also
When is subsidiary penalty applied be in the form of destierro.
Rule. If the totality of the imprisonment Fold Rule, the penalty does not go beyond
under this rule does not exceed six years, six years. Hence, for the non- payment of
then, even if the totality of all the sentences the fine of P10,000.00, the convict shall be
without applying the Three-Fold Rule will go required to undergo subsidiary penalty.
beyond six years, the convict shall be This is because the imprisonment that will
required to undergo subsidiary penalty if he be served will not go beyond six years. It
could not pay the fine. will only be one year and six months, since
in the service of the sentence, the
Illustration: Three-Fold Rule will apply.
(5) Whenever the provision of the Revised Penal Code are only in periods, like
Revised Penal Code specifically prision correcional minimum, or prision
lowers the penalty by one or two correcional minimum to medium.
degrees than what is ordinarily
prescribed for the crime committed. Although the penalty is prescribed by the
Revised Penal Code as a period, such
Penalty commonly imposed by the Revised penalty should be understood as a degree
Penal Code may be by way of imprisonment in itself and the following rules shall govern:
or by way of fine or, to a limited extent, by
way of destierro or disqualification, whether (1) When the penalty prescribed by the
absolute or special. Revised Code is made up of a
period, like prision correccional
In the matter of lowering the penalty by medium, the penalty one degree
degree, the reference is Article 71. It is lower is prision correccional
necessary to know the chronology under minimum, and the penalty two
Article 71 by simply knowing the scale. degrees lower is arresto mayor
Take note that destierro comes after arresto maximum. In other words, each
mayor so the penalty one degree lower than degree will be made up of only one
arresto mayor is not arresto menor, but period because the penalty
destierro. Memorize the scale in Article 71. prescribed is also made up only of
one period.
In Article 27, with respect to the range of (2) When the penalty prescribed by the
each penalty, the range of arresto menor Code is made up of two periods of a
follows arresto mayor, since arresto menor given penalty, every time such
is one to 30 days or one month, while penalty is lowered by one degree
arresto mayor is one month and one day to you have to go down also by two
six months. On the other hand, the duration periods.
of destierro is the same as prision
correccional which is six months and one Illustration:
day to six years. But be this as it is, under
Article 71, in the scale of penalties If the penalty prescribed for the
graduated according to degrees, arresto crime is prision correccional medium
mayor is higher than destierro. to maximum, the penalty one degree
lower will be arresto mayor
In homicide under Article 249, the penalty is maximum to prision correccional
reclusion temporal. One degree lower, if minimum, and the penalty another
homicide is frustrated, or there is an degree lower will be arresto mayor
accomplice participating in homicide, is minimum to medium. Every degree
prision mayor, and two degrees lower is will be composed of two periods.
prision correccional.
(3) When the penalty prescribed by the
This is true if the penalty prescribed by the Revised Penal Code is made up of
Revised Penal Code is a whole divisible three periods of different penalties,
penalty -- one degree or 2 degrees lower every time you go down one degree
will also be punished as a whole. But lower, you have to go down by three
generally, the penalties prescribed by the periods.
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
For instance, when there are two offenders The chronology of the penalties as provided
who are co-conspirators to a crime, and in Article 70 of the Revised Penal Code
their penalty consists of a fine only, and one shall be followed.
of them is wealthy while the other is a
pauper, the court may impose a higher It is in the service of the penalty, not in the
penalty upon the wealthy person and a imposition of the penalty, that the
lower fine for the pauper. Three-Fold rule is to be applied. The
three-Fold rule will apply whether the
Penalty for murder under the Revised Penal sentences are the product of one
Code is reclusion temporal maximum to information in one court, whether the
death. So, the penalty would be reclusion sentences are promulgated in one day or
temporal maximum – reclusion perpetua – whether the sentences are promulgated by
death. This penalty made up of three different courts on different days. What is
periods. material is that the convict shall serve more
than three successive sentences.
The common mistake is, if given a situation, It applies only when the penalty served is
whether the Three-Fold Rule could be imprisonment. If not by imprisonment, then
applied. If asked, if you were the judge, it does not apply.
what penalty would you impose, for
purposes of imposing the penalty, the court
is not at liberty to apply the Three-Fold
Rule, whatever the sum total of penalty for Purpose
each crime committed, even if it would
amount to 1,000 years or more. It is only The purpose of the Indeterminate Sentence
when the convict is serving sentence that law is to avoid prolonged imprisonment,
the prison authorities should determine how because it is proven to be more destructive
long he should stay in jail. than constructive to the offender. So, the
purpose of the Indeterminate Sentence Law
Illustration: in shortening the possible detention of the
convict in jail is to save valuable human
A district engineer was sentenced by the resources. In other words, if the valuable
court to a term of 914 years in prison. human resources were allowed prolonged
confinement in jail, they would deteriorate.
A person was sentenced to three death Purpose is to preserve economic usefulness
sentences. Significance: If ever granted for these people for having committed a
pardon for 1 crime, the two remaining crime -- to reform them rather than to
penalties must still be executed. deteriorate them and, at the same time,
saving the government expenses of
This rule will apply only if sentences are to maintaining the convicts on a prolonged
be served successively. confinement in jail.
degree lower, the court will fix the minimum there is always a minimum and maximum of
for the indeterminate sentence, and within the sentence that the convict shall serve. If
the range of the penalty arrived at as the the crime is punished by the Revised Penal
maximum in the indeterminate sentence, Code, the law provides that the maximum
the court will fix the maximum of the shall be arrived at by considering the
sentence. If there is a privilege mitigating mitigating and aggravating circumstances in
circumstance which has been taken in the commission of the crime according to
consideration in fixing the maximum of the the proper rules of the Revised Penal Code.
indeterminate sentence, the minimum shall To fix the maximum, consider the mitigating
be based on the penalty as reduced by the and aggravating circumstances according to
privilege mitigating circumstance within the the rules found in Article 64. This means –
range of the penalty next lower in degree.
(1) Penalties prescribed by the law for
If the crime is a violation of a special law, in the crime committed shall be
fixing the maximum of the indeterminate imposed in the medium period if no
sentence, the court will impose the penalty mitigating or aggravating
within the range of the penalty prescribed by circumstance;
the special law, as long as it will not exceed
the limit of the penalty. In fixing the (2) If there is aggravating circumstance,
minimum, the court can fix a penalty no mitigating, penalty shall be
anywhere within the range of penalty imposed in the maximum;
prescribed by the special law, as long as it
will not be less than the minimum limit of the (3) If there is mitigating circumstance,
penalty under said law. No mitigating and no aggravating, penalty shall be in
aggravating circumstances are taken into the minimum;
account.
(4) If there are several mitigating and
The minimum and the maximum referred to aggravating circumstances, they
in the Indeterminate Sentence Law are not shall offset against each other.
periods. So, do not say, maximum or Whatever remains, apply the rules.
minimum period. For the purposes of the
indeterminate Sentence Law, use the term (5) If there are two or more mitigating
minimum to refer to the duration of the circumstance and no aggravating
sentence which the convict shall serve as a circumstance, penalty next lower in
minimum, and when we say maximum, for degree shall be the one imposed.
purposes of ISLAW, we refer to the
maximum limit of the duration that the Rule under Art 64 shall apply in determining
convict may be held in jail. We are not the maximum but not in determining the
referring to any period of the penalty as minimum.
enumerated in Article 71.
In determining the applicable penalty
Courts are required to fix a minimum and a according to the Indeterminate Sentence
maximum of the sentence that they are to Law, there is no need to mention the
impose upon an offender when found guilty number of years, months and days; it is
of the crime charged. So, whenever the enough that the name of the penalty is
Indeterminate Sentence Law is applicable, mentioned while the Indeterminate
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Sentence Law is applied. To fix the periods. Moreover, crimes under special
minimum and the maximum of the law do not consider mitigating or
sentence, penalty under the Revised Penal aggravating circumstance present in the
Code is not the penalty to be imposed by commission of the crime. So in the case of
court because the court must apply the statutory offense, no mitigating and no
Indeterminate Sentence Law. The aggravating circumstances will be taken into
attendant mitigating and/or aggravating account. Just the same, courts are required
circumstances in the commission of the in imposing the penalty upon the offender to
crime are taken into consideration only fix a minimum that the convict should serve,
when the maximum of the penalty is to be and to set a maximum as the limit of that
fixed. But in so far as the minimum is sentence. Under the law, when the crime is
concerned, the basis of the penalty punished under a special law, the court may
prescribed by the Revised Penal Code, and fix any penalty as the maximum without
go one degree lower than that. But penalty exceeding the penalty prescribed by special
one degree lower shall be applied in the law for the crime committed. In the same
same manner that the maximum is also manner, courts are given discretion to fix a
fixed based only on ordinary mitigating minimum anywhere within the range of the
circumstances. This is true only if the penalty prescribed by special law, as long
mitigating circumstance taken into account as it will not be lower than the penalty
is only an ordinary mitigating circumstance. prescribed.
If the mitigating circumstance is privileged,
you cannot follow the law in so far as fixing Disqualification may be divided into three,
the minimum of the indeterminate sentence according to –
is concerned; otherwise, it may happen that
the maximum of the indeterminate sentence (1) The time committed;
is lower than its minimum.
(2) The penalty imposed; and
In one Supreme Court ruling, it was held
that for purposes of applying the (3) The offender involved.
Indeterminate Sentence Law, the penalty
prescribed by the Revised Penal Code and
not that which may be imposed by court. The Indeterminate Sentence Law shall not
This ruling, however, is obviously apply to:
erroneous. This is so because such an
interpretation runs contrary to the rule of pro (1) Persons convicted of offense
reo, which provides that the penal laws punishable with death penalty or life
should always be construed an applied in a imprisonment;
manner liberal or lenient to the offender.
Therefore, the rule is, in applying the (2) Persons convicted of treason,
Indetermiante Sentence Law, it is that conspiracy or proposal to commit
penalty arrived at by the court after applying treason;
the mitigating and aggravating
circumstances that should be the basis. (3) Persons convicted of misprision of
treason, rebellion, sedition,
Crimes punished under special law carry espionage;
only one penalty; there are no degree or
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(4) Persons convicted of piracy; Without regard to the nature of the crime,
only those whose penalty does not exceed
(5) Persons who are habitual six years of imprisonment are those
delinquents; qualified for probation. If the penalty is six
years plus one day, he is no longer qualified
(6) Persons who shall have escaped for probation.
from confinement or evaded
sentence; If the offender was convicted of several
offenses which were tried jointly and one
(7) Those who have been granted decision was rendered where multiple
conditional pardon by the Chief sentences imposed several prison terms as
Executive and shall have violated penalty, the basis for determining whether
the term thereto; the penalty disqualifies the offender from
probation or not is the term of the individual
(8) Those whose maximum term of imprisonment and not the totality of all the
imprisonment does not exceed one prison terms imposed in the decision. So
year, but not to those already even if the prison term would sum up to
sentenced by final judgment at the more than six years, if none of the individual
time of the approval of Indeterminate penalties exceeds six years, the offender is
Sentence Law. not disqualified by such penalty from
applying for probation.
Although the penalty prescribed for the
felony committed is death or reclusion On the other hand, without regard to the
perpetua, if after considering the attendant penalty, those who are convicted of
circumstances, the imposable penalty is subversion or any crime against the public
reclusion temporal or less, the order are not qualified for probation. So
Indeterminate Sentence Law applies know the crimes under Title III, Book 2 of
(People v. Cempron, 187 SCRA 278). the Revised Penal Code. Among these
crimes is Alarms and Scandals, the penalty
of which is only arresto menor or a fine.
Presidential Decree No. 968 (Probation Under the amendment to the Probation Law,
Law) those convicted of a crime against public
order regardless of the penalty are not
Among the different grounds of partial qualified for probation.
extinction of criminal liability, the most
important is probation. Probation is a May a recidivist be given the benefit of
manner of disposing of an accused who Probation Law?
have been convicted by a trial court by
placing him under supervision of a probation As a general rule, no.
officer, under such terms and conditions that
the court may fix. This may be availed of Exception: If the earlier conviction refers to
before the convict begins serving sentence a crime the penalty of which does not
by final judgment and provided that he did exceed 30 days imprisonment or a fine of
not appeal anymore from conviction. not more than P200.00, such convict is not
disqualified of the benefit of probation. So
even if he would be convicted subsequently
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
of a crime embraced in the same title of the the applicant is not disqualified under the
Revised Penal Code as that of the earlier provision of the Probation Law, but only
conviction, he is not disqualified from based on the report of the probation officer,
probation provided that the penalty of the the denial is correctible by certiorari,
current crime committed does not go because it is an act of the court in excess of
beyond six years and the nature of the jurisdiction or without jurisdiction, the order
crime committed by him is not against public denying the application therefore is null and
order, national security or subversion. void.
Consider not only the probationable crime, (2) That there is undue risk that during
but also the probationable penalty. If it were the period of probation the offender
the non-probationable crime, then will commit another crime; or
regardless of the penalty, the convict cannot
avail of probation. Generally, the penalty (3) Probation will depreciate the
which is not probationable is any penalty seriousness of the crime.
exceeding six years of imprisonment.
Offenses which are not probationable are The probation law imposes two kinds of
those against natural security, those against conditions:
public order and those with reference to
subversion. (1) Mandatory conditions; and
(5) Probation.
EXTINCTION OF CRIMINAL LIABILITY
for rebellion and he qualified for amnesty, When the crime carries with it moral
and so he was given an amnesty, then turpitude, the offender even if granted
years later he rebelled again and convicted, pardon shall still remain disqualified from
is he a recidivist? No. Because the those falling in cases where moral turpitude
amnesty granted to him erased not only the is a bar.
conviction but also the effects of the
conviction itself. Pedro was prosecuted and convicted of the
crime of robbery and was sentenced to six
Suppose, instead of amnesty, what was years imprisonment or prision correccional.
given was absolute pardon, then years later, After serving sentence for three years, he
the offended was again captured and was granted absolute pardon. Ten years
charged for rebellion, he was convicted, is later, Pedro was again prosecuted and
he a recidivist? convicted of the crime of theft, a crime
Yes. Pardon, although absolute does not embraced in the same title, this time he
erase the effects of conviction. Pardon only shall be a recidivist. On the other hand, if
excuses the convict from serving the he has served all six years of the first
sentence. There is an exception to this and sentence, and his name was included in the
that is when the pardon was granted when list of all those granted absolute pardon,
the convict had already served the sentence pardon shall relieve him of the effects of the
such that there is no more service of crime, and therefore even if he commits
sentence to be executed then the pardon theft again, he shall not be considered a
shall be understood as intended to erase recidivist.
the effects of the conviction.
In Monsanto v. Factoran, Jr., 170 SCRA
So if the convict has already served the 191, it was held that absolute pardon does
sentence and in spite of that he was given a not ipso facto entitle the convict to
pardon that pardon will cover the effects of reinstatement to the public office forfeited by
the crime and therefore, if he will be reason of his conviction. Although pardon
subsequently convicted for a felony restores his eligibility for appointment to that
embracing the same title as that crime, he office, the pardoned convict must reapply
cannot be considered a recidivist, because for the new appointment
the pardon wipes out the effects of the .
crime. Pardon becomes valid only when there is a
final judgment. If given before this, it is
But if he was serving sentence when he premature and hence void. There is no
was pardoned, that pardon will not wipe out such thing as a premature amnesty,
the effects of the crime, unless the language because it does not require a final
of the pardon absolutely relieve the offender judgment; it may be given before final
of all the effects thereof. Considering that judgment or after it.
recidivism does not prescribe, no matter
how long ago was the first conviction, he
shall still be a recidivist. Prescription of crime and prescription of the
penalty
Illustrations:
Prescription of the crime begins, as a
general rule on the day the crime was
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
committed, unless the crime was concealed, appeal, and the appellate court shall have
not public, in which case, the prescription no jurisdiction to continue, if legally, the
thereof would only commence from the time crime has indeed prescribed.
the offended party or the government learns
of the commission of the crime. The prevailing rule now is, prescription of
the crime is not waivable, the earlier
“Commission of the crime is public” -- This jurisprudence to the contrary had already
does not mean alone that the crime was been abrogated or overruled. Moreover, for
within public knowledge or committed in purposes of prescription, the period for filing
public. a complaint or information may not be
extended at all, even though the last day
Illustration: such prescriptive period falls on a holiday or
a Sunday.
In the crime of falsification of a document
that was registered in the proper registry of For instance, light felony prescribes in 60
the government like the Registry of Property days or two months. If the 60th day falls on
or the Registry of Deeds of the Civil registry, a Sunday, the filing of the complaint on the
the falsification is deemed public from the succeeding Monday is already fatal to the
time the falsified document was registered prosecution of the crime because the crime
or recorded in such public office so even has already prescribed.
though, the offended party may not really
know of the falsification, the prescriptive The rules on Criminal Procedure for
period of the crime shall already run from purposes of prescription is that the filing of
the moment the falsified document was the complaint even at the public
recorded in the public registry. So in the prosecutor’s office suspends the running of
case where a deed of sale of a parcel of the prescriptive period, but not the filing with
land which was falsified was recorded in the the barangay. So the earlier rulings to the
corresponding Registry of Property, the contrary are already abrogated by express
owner of the land came to know of the provision of the Revised Rules on Criminal
falsified transaction only after 10 years, so Procedure.
he brought the criminal action only then.
The Supreme Court ruled that the crime has The prescription of the crime is interrupted
already prescribed. From the moment the or suspended –
falsified document is registered in the
Registry of Property, the prescriptive period (1) When a complaint is filed in a proper
already commenced to run. barangay for conciliation or
mediation as required by Chapter 7,
When a crime prescribes, the State loses Local Government Code, but the
the right to prosecute the offender, hence, suspension of the prescriptive period
even though the offender may not have filed is good only for 60 days. After which
a motion to quash on this ground the trial the prescription will resume to run,
court, but after conviction and during the whether the conciliation or mediation
appeal he learned that at the time the case is terminated for not;
was filed, the crime has already prescribed,
such accused can raise the question of (2) When criminal case is filed in the
prescription even for the first time on prosecutor’s office, the prescription
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
of the crime is suspended until the will go on even if the offender leaves
accused is convicted or the Philippine territory for that country.
proceeding is terminated for a cause Presently the Philippines has an extradition
not attributable to the accused. treaty with Taiwan, Indonesia, Canada,
Australia, USA and Switzerland. So if the
But where the crime is subject to Summary offender goes to any of these countries, the
Procedure, the prescription of the crime will prescriptive period still continues to run.
be suspended only when the information is
already filed with the trial court. It is not the In the case of the prescription of the penalty,
filing of the complaint, but the filing of the the moment the convict commits another
information in the trial which will suspend crime while he is fugitive from justice,
the prescription of the crime. prescriptive period of the penalty shall be
suspended and shall not run in the
On the prescription of the penalty, the meantime. The crime committed does not
period will only commence to run when the include the initial evasion of service of
convict has begun to serve the sentence. sentence that the convict must perform
Actually, the penalty will prescribe from the before the penalty shall begin to prescribe,
moment the convict evades the service of so that the initial crime of evasion of service
the sentence. So if an accused was of sentence does not suspend the
convicted in the trial court, and the prescription of penalty, it is the commission
conviction becomes final and executory, so of other crime, after the convict has evaded
this fellow was arrested to serve the the service of penalty that will suspend such
sentence, on the way to the penitentiary, the period.
vehicle carrying him collided with another
vehicle and overturned, thus enabling the
prisoner to escape, no matter how long Marriage
such convict has been a fugitive from
justice, the penalty imposed by the trial In the case of marriage, do not say that it is
court will never prescribe because he has applicable for the crimes under Article 344.
not yet commenced the service of his It is only true in the crimes of rape,
sentence. For the penalty to prescribe, he abduction, seduction and acts of
must be brought to Muntinlupa, booked lasciviousness. Do not say that it is
there, placed inside the cell and thereafter applicable to private crimes because the
he escapes. term includes adultery and concubinage.
Marriages in these cases may even
Whether it is prescription of crime or compound the crime of adultery or
prescription of penalty, if the subject could concubinage. It is only in the crimes of
leave the Philippines and go to a country rape, abduction, seduction and acts of
with whom the Philippines has no lasciviousness that the marriage by the
extradition treaty, the prescriptive period of offender with the offended woman shall
the crime or penalty shall remain suspended extinguish civil liability, not only criminal
whenever he is out of the country. liability of the principal who marries the
offended woman, but also that of the
When the offender leaves for a country to accomplice and accessory, if there are any.
which the Philippines has an extradition
treaty, the running of the prescriptive period
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Co-principals who did not themselves Those who did not leave the penitentiary
directly participate in the execution of the under such circumstances do not get such
crime but who only cooperated, will also allowance for loyalty. Article 158 refers only
benefit from such marriage, but not when to those who leave and return.
such co-principal himself took direct part in
the execution of the crime.
Parole
Marriage as a ground for extinguishing civil
liability must have been contracted in good This correspondingly extinguishes service of
faith. The offender who marries the sentence up to the maximum of the
offended woman must be sincere in the indeterminate sentence. This is the partial
marriage and therefore must actually extinction referred to, so that if the convict
perform the duties of a husband after the was never given parole, no partial
marriage, otherwise, notwithstanding such extinction.
marriage, the offended woman, although
already his wife can still prosecute him
again, although the marriage remains a CIVIL LIABILITY OF THE OFFENDER
valid marriage. Do not think that the
marriage is avoided or annulled. The
marriage still subsists although the offended Civil liability of the offender falls under three
woman may re-file the complaint. The categories:
Supreme Court ruled that marriage
contemplated must be a real marriage and (1) Restitution and restoration;
not one entered to and not just to evade
punishment for the crime committed (2) Reparation of the damage caused;
because the offender will be compounding and
the wrong he has committed.
(3) Indemnification of consequential
damages.
Partial extinction of criminal liability
Restitution or restoration
Good conduct allowance
Restitution or restoration presupposes that
This includes the allowance for loyalty under the offended party was divested of property,
Article 98, in relation to Article 158. A and such property must be returned. If the
convict who escapes the place of property is in the hands of a third party, the
confinement on the occasion of disorder same shall nevertheless be taken away
resulting from a conflagration, earthquake or from him and restored to the offended party,
similar catastrophe or during a mutiny in even though such third party may be a
which he has not participated and he holder for value and a buyer in good faith of
returned within 48 hours after the the property, except when such third party
proclamation that the calamity had already buys the property from a public sale where
passed, such convict shall be given credit of the law protects the buyer.
1/5 of the original sentence from that
allowance for his loyalty of coming back.
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
For example, if a third party bought a the same or accepted the same would be
property in a public auction conducted by doing so without the benefit of the just title.
the sheriff levied on the property of a So even if the property may have been
judgment creditor for an obligation, the bought by the third person, the same may
buyer of the property at such execution sale be taken from him and restored to the
is protected by law. The offended party offended party without an obligation on the
cannot divest him thereof. So the offended part of the offended party to pay him
party may only resort to reparation of the whatever he paid.
damage done from the offender.
The right to recover what he has paid will be
Some believed that this civil liability is true against the offender who sold it to him. On
only in crimes against property, this is not the other hand, if the crime was theft or
correct. Regardless of the crime committed, robbery, the one who received the personal
if the property is illegally taken from the property becomes a fence, he is not only
offended party during the commission of the required to restitute the personal property
crime, the court may direct the offender to but he incurs criminal liability in violation of
restore or restitute such property to the the Anti-Fencing Law.
offended party. It can only be done if the
property is brought within the jurisdiction of If the property cannot be restituted
that court. anymore, then the damage must be
repaired, requiring the offender to pay the
For example, in a case where the offender value thereof, as determined by the court.
committed rape, during the rape, the That value includes the sentimental value to
offender got on of the earrings of the victim. the offended party, not only the replacement
When apprehended, the offender was cost. In most cases, the sentimental value
prosecuted for rape and theft. When the is higher than the replacement value. But if
offender was asked why he got on of the what would be restored is brand new, then
earrings of the victim, the offender disclosed there will be an allowance for depreciation,
that he took one of the earrings in order to otherwise, the offended party is allowed to
have a souvenir of the sexual intercourse. enrich himself at the expense of the
Supreme Court ruled that the crime offender. So there will be a corresponding
committed is not theft and rape but rape and depreciation and the offended party may
unjust vexation for the taking of the earring. even be required to pay something just to
The latter crime is not a crime against cover the difference of the value of what
property, this is a crime against personal was restored to him.
security and liberty under Title IX of Book II
of the RPC. And yet, the offender was The obligation of the offender transcends to
required to restore or restitute the earring to his heirs, even if the offender dies, provided
the offended woman. he died after judgment became final, the
heirs shall assume the burden of the civil
Property will have to be restored to the liability, but this is only to the extent that
offended party even this would require the they inherit property from the deceased, if
taking of the property from a third person. they do not inherit, they cannot inherit the
Where personal property was divested from obligations.
the offended party pursuant to the
commission of the crime, the one who took
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(1) In case of a felony committed under Example: Murder and theft (killed with
the compulsion of an irresistible treachery, then stole the right).
force. The person who employed Penalty: If complex – Reclusion temporal
the irresistible force is subsidiarily maximum to death.
liable; If treated individually – Reclusion temporal
to Reclusion Perpetua.
(2) In case of a felony committed under
an impulse of an equal or greater Complex crime is not just a matter of
injury. The person who generated penalty, but of substance under the Revised
such an impulse is subsidiarily liable. Penal Code.
The owners of taverns, inns, motels, hotels, Plurality of crimes may be in the form of:
where the crime is committed within their
establishment due to noncompliance with (1) Compound crime;
general police regulations, if the offender
who is primarily liable cannot pay, the (2) Complex crime; and
proprietor, or owner is subsidiarily liable.
(3) Composite crime.
Felonies committed by employees, pupils,
servants in the course of their employment,
schooling or household chores. The A compound crime is one where a single act
employer, master, teacher is subsidiarily produces two or more crimes.
liable civilly, while the offender is primarily
liable. A complex crime strictly speaking is one
where the offender has to commit an
In case the accomplice and the principal offense as a means for the commission of
cannot pay, the liability of those subsidiarily another offense. It is said that the offense is
liable is absolute. committed as a necessary means to commit
the other offense. “Necessary” should not
be understood as indispensable, otherwise,
COMPLEX CRIME it shall be considered absorbed and not
giving rise to a complex crime.
Philosophy behind plural crimes: The
treatment of plural crimes as one is to be A composite crime is one in which
lenient to the offender, who, instead of being substance is made up of more than one
made to suffer distinct penalties for every crime, but which in the eyes of the law is
resulting crime is made to suffer one penalty only a single indivisible offense. This is also
only, although it is the penalty for the most known as special complex crime. Examples
serious one and is in the maximum period. are robbery with homicide, robbery with
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rape, rape with homicide. These are crimes Abetting committed during the encounter
which in the eyes of the law are regarded between rebels and government troops
only as a single indivisible offense. such that the homicide committed cannot be
complexed with rebellion. This is because
they are indispensable part of rebellion.
Composite Crime/Special Complex Crime (Caveat: Ortega says rebellion can be
complexed with common crimes in
This is one which in substance is made up discussion on Rebellion)
of more than one crime but which in the
eyes of the law is only a single indivisible The complex crime lies actually in the first
offense. This is also known as a special form under Article 148.
complex crime. Examples are robbery with
homicide, robbery with rape, and rape with The first form of the complex crime is
homicide. actually a compound crime, is one where a
single act constitutes two or more grave
The compound crime and the complex and/or less grave felonies. The basis in
crime are treated in Article 48 of the complexing or compounding the crime is the
Revised Penal Code. But in such article, a act. So that when an offender performed
compound crime is also designated as a more than one act, although similar, if they
complex crime, but “complex crimes” are result in separate crimes, there is no
limited only to a situation where the complex crime at all, instead, the offender
resulting felonies are grave and/or less shall be prosecuted for as many crimes as
grave. are committed under separate information.
Whereas in a compound crime, there is no When the single act brings about two or
limit as to the gravity of the resulting crimes more crimes, the offender is punished with
as long as a single act brings about two or only one penalty, although in the maximum
more crimes. Strictly speaking, compound period, because he acted only with single
crimes are not limited to grave or less grave criminal impulse. The presumption is that,
felonies but covers all single act that results since there is only one act formed, it follows
in two or more crimes. that there is only one criminal impulse and
correctly, only one penalty should be
Illustration: imposed.
A person threw a hand grenade and the Conversely, when there are several acts
people started scampering. When the hand performed, the assumption is that each act
grenade exploded, no on was seriously is impelled by a distinct criminal impulse
wounded all were mere wounded. It was and for ever criminal impulse, a separate
held that this is a compound crime, although penalty. However, it may happen that the
the resulting felonies are only slight. offender is impelled only by a single criminal
impulse in committing a series of acts that
Illustration of a situation where the term brought about more than one crime,
“necessary” in complex crime should not be considering that Criminal Law, if there is
understood as indispensable: only one criminal impulse which brought
about the commission of the crime, the
offender should be penalized only once.
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therein. It was held that there is only one another place within the same penitentiary.
crime committed – multiple robbery, not The Supreme Court ruled that all accused
because of Article 48 but because this is a should be punished under one information
continued crime. When the robbers entered because they acted in conspiracy. The act
the compound, they were moved by a single of one is the act of all. Because there were
criminal intent. Not because there were several victims killed and some were
several quarters robbed. This becomes a mortally wounded, the accused should be
complex crime. held for the complex crime of multiple
homicide with multiple frustrated homicide.
The definition in Article 48 is not honored There is a complex crime not only when
because the accused did not perform a there is a single act but a series of acts. It
single act. There were a series of acts, but is correct that when the offender acted in
the decision in the Lawas case is correct. conspiracy, this crime is considered as one
The confusion lies in this. While Article 48 and prosecuted under one information.
speaks of a complex crime where a single Although in this case, the offenders did not
act constitutes two or more grave or less only kill one person but killed different
grave offenses, even those cases when the persons, so it is clear that in killing of one
act is not a single but a series of acts victim or the killing of another victim,
resulting to two or more grave and less another act out of this is done
grave felonies, the Supreme Court simultaneously. Supreme Court considered
considered this as a complex crime when this as complex. Although the killings did
the act is the product of one single criminal not result from one single act.
impulse.
In criminal procedure, it is prohibited to
If confronted with a problem, use the charge more than one offense in an
standard or condition that it refers not only information, except when the crimes in one
to the singleness of the act which brought information constitute a complex crime or a
two or more grave and/less grave felonies. special complex crime.
The Supreme Court has extended this class
of complex crime to those cases when the So whenever the Supreme Court concludes
offender performed not a single act but a that the criminal should be punished only
series of acts as long as it is the product of once, because they acted in conspiracy or
a single criminal impulse. under the same criminal impulse, it is
necessary to embody these crimes under
You cannot find an article in the Revised one single information. It is necessary to
Penal Code with respect to the continued consider them as complex crimes even if
crime or continuing crime. The nearest the essence of the crime does not fit the
article is Article 48. Such situation is also definition of Art 48, because there is no
brought under the operation of Article 48. other provision in the RPC.
In People v. Garcia, the accused were Duplicity of offenses, in order not to violate
convicts who were members of a certain this rule, it must be called a complex crime.
gang and they conspired to kill the other
gang. Some of the accused killed their In earlier rulings on abduction with rape, if
victims in one place within the same several offenders abducted the woman and
penitentiary, some killed the others in abused her, there is multiple rape. The
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
offenders are to be convicted of one count abused her, regardless of the number of
of rape and separately charged of the other rapes committed, there should only be one
rapes. complex crime of forcible abduction with
rape. The rapes committed were in the
In People v. Jose, there were four nature of a continued crime characterized
participants here. They abducted the by the same lewd design which is an
woman, after which, the four took turns in essential element in the crime of forcible
abusing her. It was held that each one of abduction.
the four became liable not only for his own
rape but also for those committed by the The abuse amounting to rape is complexed
others. Each of the four offenders was with forcible abduction because the
convicted of four rapes. In the eyes of the abduction was already consummated when
law, each committed four crimes of rape. the victim was raped. The forcible
One of the four rapes committed by one of abduction must be complexed therewith.
them was complexed with the crime of But the multiple rapes should be considered
abduction. The other three rapes are only as one because they are in the nature
distinct counts of rape. The three rapes are of a continued crime.
not necessary to commit the other rapes.
Therefore, separate complaints/information. Note: This is a dangerous view because
the abductors will commit as much rape as
In People v. Pabasa, the Supreme Court they can, after all, only one complex crime
through Justice Aquino ruled that there is of rape would arise.
only one count of forcible abduction with
rape committed by the offenders who In adultery, each intercourse constitutes one
abducted the two women and abused them crime. Apparently, the singleness of the act
several times. This was only a dissenting is not considered a single crime. Each
opinion of Justice Aquino, that there could intercourse brings with it the danger of
be only one complex crimeof abduction with bringing one stranger in the family of the
rape, regardless of the number of rapes husband.
committed because all the rapes are but
committed out of one and the same lewd Article 48 also applies in cases when out of
design which impelled the offender to a single act of negligence or imprudence,
abduct the victim. two or more grave or less grave felonies
resulted, although only the first part thereof
In People v. Bojas, the Supreme Court (compound crime). The second part of
followed the ruling in People v. Jose that Article 48 does not apply, referring to the
the four men who abducted and abused the complex crime proper because this applies
offended women were held liable for one or refers only to a deliberate commission of
crime – one count or forcible abudction with one offense to commit another offense.
rape and distinct charges for rape for the
other rapes committed by them. However, a light felony may result from
criminal negligence or imprudence, together
In People v. Bulaong, the Supreme Court with other grave or less grave felonies
adopted the dissenting opinion of Justice resulting therefrom and the Supreme Court
Aquino in People v. Pabasa, that when held that all felonies resulting from criminal
several persons abducted a woman and negligence should be made subject of one
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
information only. The reason being that, time he collects veteran’s benefits
there is only one information and on behalf of a client who agreed that
prosecution only. Otherwise, it would be attorney’s fees shall be paid out of
tantamount to splitting the criminal such benefits (People v. Sabbun,
negligence similar to splitting a cause of 10 SCAR 156). The collections of
action which is prohibited in civil cases. legal fees were impelled by the
same motive, that of collecting fees
Although under Article 48, a light felony for services rendered, and all acts of
should not be included in a complex crime, collection were made under the
yet by virtue of this ruling of the Supreme same criminal impulse.
Court, the light felony shall be included in
the same information charging the offender On the other hand, the Supreme Court
with grave and/or less grave felonies declined to apply the concept in the
resulting from the negligence of reckless following cases:
imprudence and this runs counter to the
provision of Article 48. So while the (1) Two Estafa cases, one which was
Supreme Court ruled that the light felony committed during the period from
resulting from the same criminal negligence January 19 to December, 1955 and
should be complexed with the other felonies the other from January 1956 to July
because that would be a blatant violation of 1956 (People v. Dichupa, 13 Phil
Article 48, instead the Supreme Court 306). Said acts were committed on
stated that an additional penalty should be two different occasions;
imposed for the light felony. This would
mean two penalties to be imposed, one for (2) Several malversations committed in
the complex crime and one for the light May, June and July 1936 and
felony. It cannot separate the light felony falsifications to conceal said
because it appears that the culpa is crime offenses committed in August and
itself and you cannot split the crime. October, 1936. The malversations
and falsifications were not the result
Applying the concept of the “continued of one resolution to embezzle and
crime”, the following cases have been falsify (People v. CIV, 66 Phil. 351);
treated as constituting one crime only:
(3) Seventy-five estafa cases committed
(1) The theft of 13 cows belonging to by the conversion by the agents of
two different persons committed by collections from the customers of the
the accused at the same place and employer made on different dates.
period of time (People v. Tumlos,
67 Phil. 320); In the theft cases, the trend is to follow the
single larceny doctrine, that is taking of
(2) The theft of six roosters belonging to several things, whether belonging to the
two different owners from the same same or different owners, at the same time
coop and at the same period of time and place, constitutes one larceny only.
(People v. Jaranillo); Many courts have abandoned the separate
larceny doctrine, under which there was
(3) The illegal charging of fees for distinct larceny as to the property of each
service rendered by a lawyer every victim.
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW