CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Examples:
DATE OF EFFECTIVENESS AND APPLICATION OF THE PROVISIONS
OF THIS CODE
Relevant Provisions:
Article 1. Time when Act takes effect. — This Code shall take effect on the first
day of January, nineteen hundred and thirty-two.
Article 2. Application of its provisions. — Except as provided in the treaties and
laws of preferential application, the provisions of this Code shall be enforced not
only within the Philippine Archipelago, including its atmosphere, its interior
waters and maritime zone, but also outside of its jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or airship;
2. Should forge or counterfeit any coin or currency note of the Philippine
Islands or obligations and securities issued by the Government of the
Philippine Islands;
3. Should be liable for acts connected with the introduction into these islands
of the obligations and securities mentioned in the preceding number;
4. While being public officers or employees, should commit an offense in the
exercise of their functions; or
Should commit any of the crimes against national security and the law of nations,
defined in Title One of Book Two of this Code.
——————————————————————————————————
Q: What are the characteristics of Criminal Law?
1. general in nature
2. territorial in nature
3. prospective in nature
Q: What does general in nature mean?
Criminal law is binding on all persons who live or sojourn in the Philippines.
Irrespective of the nationality of a person, as long as he commits a crime in the
Philippines, he can be sued in the Philippines.
Exceptions: Article 14 of the Civil Code which is the principles of international
law and treaty stipulations.
COLLEGE OF 4B | 2021
1. Visiting Forces Agreement.
2. Under RA 75 Chiefs of State and ministers are immune from criminal liability
but NOT consuls and vice consuls including their domestic servants, which
servant’s names must be submitted to the DFA. This can only be invoked by
the foreign ministers if their country also gives the same privilege to a Filipino
head of state or dignitary by virtue of the Principle of Reciprocity.
Q: What does territorial in nature mean?
General Rule: To be sued in the Philippines, the crime must be committed within
the Philippine territory.
Exceptions: The territoriality rule shall NOT apply when a person:
1. Commits an offense while on a Philippine ship or airship;
2. Forges or counterfeits any coin or currency note of the Philippine Islands or
obligations and securities issued by the Government of the Philippine
Islands;
3. Is liable for acts connected with the introduction into these islands of the
obligations and securities mentioned in the preceding number;
4. While being a public officer or employee, commits an offense in the exercise
of his functions;
5. Commits any of the crimes against national security and the law of nations,
defined in Title One of Book Two of the RPC; or
6. Violates the Human Security Act of 2007 (RA No. 9372)
For the first exception [Art.2(1)], it is required that the vessel is registered with
the Bureau of Customs or Marina.
Q: What if the crime was committed in a foreign vessel in Philippine sea?
French Rule. An offender cannot be sued in the Philippines except if the crime
committed affects the peace and security of the territory, or the safety of the
country is endangered.
English Rule. Any crime committed on board of a foreign vessel within the
Philippine territory is triable in the Philippines unless the crime committed merely
affects the things within the vessel, or refers to the internal management thereof.
TN: Philippine laws follow the English Rule.
TN: The Human Security Act has extra territorial application.
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Q: What is the Archipelagic Doctrine?
Draw an imaginary line connecting all the islands of the Philippines. The waters
inside that imaginary line shall form part of the internal waters of the Philippines.
From that imaginary line, there is still a 3-mile (12-nautical-mile) territorial sea
which will still be considered within the Philippine territory.
TN: The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over which the
Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and
aerial domains, including its territorial sea, the seabed, the subsoil, the insular
shelves, and other submarine areas. The waters around, between, and
connecting the islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the Philippines. (Article 1, 1987
Constitution)
Q: What does prospective in nature mean?
Any act which is committed prior to the effectivity of the penal law punishing it is
not punishable; otherwise, it becomes an ex post facto law.
Exception: If the law is favorable to the accused (retroactive)
Exception to the Exception: If the law expressly provides, or when the
accused is a habitual criminal (habitual delinquents).
TN: In the Philippines, criminal law is always decided in favor of the accused. If
there is doubt, the doubt is always resolved in favor of the accused (Pro Reo
principle).
TN: “Nullum crimen, nulla poena sine lege” – there is no crime where there is
no law punishing it.
Q: What is the Equipoise Rule?
If the evidence given by the prosecution and the accused are equal in weight,
the same shall be tilted in favor of the accused, and he must be acquitted.
Q: A is married to B. B has a mistress in the person of C. B and C went to
the US, married therein, but not in the Philippine embassy. When B and C
went back to the Philippines, A filed a case for bigamy against them. Will
the case prosper?
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
No. Criminal law is territorial in nature. Since the second marriage was not
committed in Philippine territory, B and C cannot be sued in the Philippines for
the crime of bigamy.
Q: What are the 2 theories of criminal law?
Classical theory, and Positivist theory.
Classical theory states that the commission of a crime is on the offender
himself because the person can choose between what is right and what is
wrong. This focuses on the free will of the accused.
Positivist theory states that a person commits a crime not merely because of
his own free will but because he is affected by a strange and morbid
phenomenon which compels him to commit a crime. This concept is the basis
for RA 9344 on restorative justice.
In criminal procedure, venue becomes jurisdiction. A person cannot file a
criminal case except on the place where the crime was committed, unless a
petition for change of venue is filed before Supreme Court.
Q: In which court should the case be filed if the crime is committed outside
the Philippine territory?
It can be filed anywhere in the Philippines. If the case is filed in the RTC of Jolo,
Sulu, then it already excludes other RTCs.
FELONIES AND CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY
FELONIES
Relevant Provision:
Article 3. Definitions. — Acts and omissions punishable by law are felonies
(delitos). Felonies are committed not only be means of deceit (dolo) but also by
means of fault (culpa).
There is deceit when the act is performed with deliberate intent and there is fault
when the wrongful act results from imprudence, negligence, lack of foresight, or
lack of skill.
——————————————————————————————————
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Q: What is the manner of incurring criminal liability? Article 3 or 4?
Article 3 which provides for the concept of felonies.
Felonies are not the same as crimes. In terms of application, crimes are broader
than felonies. A felony refers to act or omission punishable by RPC. If the act is
punished by a special law, then it is a crime.
Q: What are the elements of felonies?
1. There must be an act or omission. Omission occurs when a person fails to
do something he is required to do.
Examples: Article 275 Abandonment of persons in times of danger,
Misprision of treason and other crimes by omission;
2. The act or omission must be punished by the RPC;
3. The act is performed or the omission incurred by means of dolo or culpa.
Dolo means deceit.
Culpa means lack of skill, imprudence, lack of foresight, negligence.
Q: What are the classifications of felonies?
1. Intentional felonies which are committed by deceit or dolo.
2. Culpable felonies which are committed by culpa through either lack of skill
or lack of foresight.
TN: Crimes committed by culpa are termed as quasi-offenses punished under
Article 365 of the RPC.
Q: How is intent determined?
Intent is very difficult to prove because it is a state a mind. The principle is that
intent need not be proved because it is already presumed from the commission
of an unlawful act.
Q: How is intent distinguished from motive?
Intent is an element of a crime while motive is not.
Motive is the moving power which impels one to act for a definite result, while
intent is the purpose to do the crime.
General Rule: There is no need for the prosecution to prove motive.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Exceptions:
1. When there are no eyewitnesses
2. If the evidences are merely circumstantial
3. If there is doubt as to the identity of the accused
4. If there were two version on how the accused committed the crime
In intentional felony, lack of intent and good faith can be raised as valid
defenses.
Mistake of Fact in the case of US vs. Ah Chong as compared to the case of
People vs. Oanis
In US vs. Ah Chong, to become a mistake of fact, the following elements must
be present:
1. that the act done would have been lawful as the accused believed them to
be,
2. that the intention of the accused in performing the act is lawful, and
3. that the mistake must be without fault or carelessness on the part of the
accused.
TN: The act must be a justifying circumstance or an absolutory cause.
Otherwise, it would never be a mistake of fact.
In US vs. Ah Chong, the SC said that Ah Chong acted in self-defense while in
People vs. Oanis, it was not considered as a mistake of fact because the third
element was not present.
Q: What are the classifications of crime?
1. mala in se – crimes which are inherently wrong. These are the crimes
punished by the RPC. Lack of intent or good faith is a valid defense.
2. mala prohibita – crimes which are punished by special law. The only
consideration is whether or not the law is violated.
General Rule: The following are NOT defenses because it is not the intent to
commit the act BUT intent to perpetrate the act in answer to the question as to
whether the accused violated the law:
1. Lack of intent
2. Good faith
3. Mistake of fact
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Exceptions: There are crimes which are punishable by Special Law but in terms
of application are considered as mala in se and the accused can still raise as
valid defenses the lack of intent or good faith, i.e.
a) RA 10591- Illegal possession of Firearm- the prosecution has the burden of
proving intent to possess to warrant conviction
b) Anti-Sexual Harassment Law
c) Omission in the Voter's Registry by virtue of the Omnibus Election Code of
the Philippines
Relevant Provision:
Article 4. Criminal liability. — Criminal liability shall be incurred:
1) By any person committing a felony (delito) although the wrongful act done
be different from that which he intended.
2) By any person performing an act which would be an offense against persons
or property, were it not for the inherent impossibility of its accomplishment
or on account of the employment of inadequate or ineffectual means.
—————————————————————————————————
JS: Article 4 of the RPC likewise talks about how to incur criminal liability.
TN: If the question is “what is the manner of incurring criminal liability”, the
answer is Article 3, and not Article 4. But be that as it may, Article 4 likewise
provides for two instances where criminal liability is incurred:
1. By one committing a felony although the wrongful act is different from that
intended.
Requisites:
1) Commission of a felony
TN: If one is not committing a felony, he is not liable for the subsequent
act which emanates therefrom.
Q: Juan went to the highest building in Tacloban because he
wanted to commit suicide. Unfortunately, when he jumped, he fell
on a person standing by. The latter died but Juan survived. Is Juan
liable for the death of the person standing?
No, because committing suicide is not a felony.
2) The wrong done must be the direct, natural and logical consequence of
the act committed.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Q: The accused stabbed Pedro in the stomach, resulting in only
less serious physical injury. Pedro refused to submit himself to
medical attention, which caused his death. Can the person who
stabbed Pedro be held criminally liable?
Yes.
TN: To create a criminal liability, the act must be the proximate cause of
the injury.
Proximate cause - that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred.
TN: If in between, there is an efficient intervening cause, incontestably,
that person would not be held liable as a consequence thereto.
Q: A punched B. B fell to the ground. While B was on the ground, a
horse nearby jumped on him, causing his death. Is A liable?
No, because the proximate cause of the death of B is not the act of A’s
boxing him, but the jumping of the horse on him. There was no proximate
cause because there was a broken change of event. There was an
efficient intervening cause which intervened, thereby breaking the
relation between the act and the resultant injury.
JS: In the Principle of Aberratio Ictus (Mistake in the Blow), Principle of
Error in Personae (Mistake in the Identity) and Principle of Praeter
intentionem (the act is greater than that intended), in all of these three,
there is a criminal liability on the part of the accused.
2. In cases of impossible crimes
Q: Is impossible crime really a crime?
Yes, because there is a penalty imposed under the RPC if one commits an
impossible crime.
Requisites:
1) The act performed is an offense against persons or property.
JS: Therefore, there can be an impossible crime of rape because rape
is now is classified as a crime against person.
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2) The act is done with evil intent
3) Its accomplishment is inherently impossible, or the means employed is
either inadequate or ineffectual.
4) The act does not constitute a violation of another provision of the RPC.
(Very important!)
Q: A, not knowing that B was already dead 1 hour ago, stabbed B. Later he
learned that B was already dead before he stabbed him. Is it an impossible
crime?
Yes, but if A, while stabbing B, already knew that B has been dead for an hour,
there is no impossible crime, A did not commit any criminal liability.
Q: A wanted to steal the rolex watch worn by B. One time, A waited for B
in a dark alley, and when A saw B, by means of violence and intimidation,
A immediately grabbed the hands of B and got the rolex watch from him.
A found out later it was the rolex watch which he lost 2 weeks ago. Did A
commit an impossible crime?
Yes, because one of the elements in robbery is that the personal property should
belong to another.
Relevant Provisions:
Article 5. Duty of the court in connection with acts which should be repressed
but which are not covered by the law, and in cases of excessive penalties. —
Whenever a court has knowledge of any act which it may deem proper to repress
and which is not punishable by law, it shall render the proper decision, and shall
report to the Chief Executive, through the Department of Justice, the reasons
which induce the court to believe that said act should be made the subject of
penal legislation.
In the same way, the court shall submit to the Chief Executive, through the
Department of Justice, such statement as may be deemed proper, without
suspending the execution of the sentence, when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive
penalty, taking into consideration the degree of malice and the injury caused by
the offense.
Article 6. Consummated, frustrated, and attempted felonies. — Consummated
felonies as well as those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
the acts of execution which would produce the felony as a consequence but
which, nevertheless, do not produce it by reason of causes independent of the
will of the perpetrator.
There is an attempt when the offender commences the commission of a felony
directly by overt acts, and does not perform all the acts of execution which
should produce the felony by reason of some cause or accident other than his
own spontaneous desistance.
——————————————————————————————————
Classifications of Crimes According to Stages of Execution
1. Consummated
2. Frustrated
3. Attempted
The penalty for a crime in the frustrated stage is one degree lower from that of
the consummated stage, and the penalty for attempted felonies is 2 degrees
lower.
There are no attempted and frustrated stages in the following:
1. Crimes punishable by special law have no frustrated and attempted
stages, unless the law itself expressly provides.
2. Impossible crimes
If it is a felony by means of omission (failure to do something which is required
by one), there are no frustrated and attempted stages.
In Theft, Robbery, Rape there are only attempted and consummated stages,
there is no frustrated.
In Crimes against Persons, the determining factor on whether the offense is
attempted or frustrated depends on the fatality of the wound inflicted.
• If the wound was severe or mortal and the victim did not die, then it is
frustrated.
• If the wound inflicted was not serious, was not mortal and the victim did not
die, then it is attempted.
In an attempted felony, the offender commences the commission of a felony by
overt act but does not perform all the acts of execution which would have
produced the felony by reason of some cause or accident other than his own
spontaneous desistance.
If accused voluntarily desisted himself, then there is no criminal liability.
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Indeterminate offense is one where the purpose of the offender in performing
an act is not certain. Its nature in relation to its objective is ambiguous.
Relevant Provisions:
Article 7. When light felonies are punishable. — Light felonies are punishable
only when they have been consummated, with the exception of those committed
against persons or property.
Article 8. Conspiracy and proposal to commit felony. — Conspiracy and
proposal to commit felony are punishable only in the cases in which the law
specially provides a penalty therefor.
A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.
There is proposal when the person who has decided to commit a felony
proposes its execution to some other person or persons.
——————————————————————————————————
Conspiracy is only a manner of incurring criminal liability. If conspiracy is proven
in the commission of the offense, the result would be the act of one is the act of
all.
Conspiracy per se is not a crime, it is only a manner of incurring criminal liability
EXCEPT if the law expressly provides. In which case, conspiracy becomes a
crime (e.g. conspiracy to commit rebellion, conspiracy to commit sedition –
usually in Crimes against National Security and Law of Nations and Crimes
against Public Order).
Q: How is conspiracy proven?
It is proven by unity of purpose and unity of design, which can be gleaned from
the acts of the accused before, during, and after the commission of the crime.
Relevant Provisions:
Article 9. Grave felonies, less grave felonies and light felonies. — Grave
felonies are those to which the law attaches the capital punishment or penalties
which in any of their periods are afflictive, in accordance with Article 25 of this
Code.
Less gave felonies are those which the law punishes with penalties which in
their maximum period are correctional in accordance with abovementioned
article.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Light felonies are those infractions of law for the commission of which the penalty
of arresto menor or a fine not exceeding forty thousand pesos (₱40,000) or both
is provided. (As amended by RA No. 10951, August 29, 2017)
Article 10. Offenses not subject to the provisions of this Code. — Offenses
which are or in the future may be punishable under special laws are not subject
to the provisions of this Code. This Code shall be supplementary to such laws,
unless the latter should specially provide the contrary.
——————————————————————————————————
The provisions of the RPC are only applicable to felonies which are punished by
the RPC. They do not apply to crimes punished by special law, although Art. 10
is very clear that the provisions of the RPC may be applied in a suppletory
character for crimes which are punishable by special law.
JUSTIFYING CIRCUMSTANCES AND
CIRCUMSTANCES WHICH EXEMPT FROM CRIMINAL LIABILITY
Relevant provision:
Article 11. Justifying circumstances. — The following do not incur any criminal
liability:
1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or
repel it;
Third. Lack of sufficient provocation on the part of the person defending
himself.
2. Anyone who acts in defense of the person or rights of his spouse,
ascendants, descendants, or legitimate, natural or adopted brothers or
sisters, or of his relatives by affinity in the same degrees, and those by
consanguinity within the fourth civil degree, provided that the first and
second requisites prescribed in the next preceding circumstance are present
and the further requisite, in case the provocation was given by the person
attacked, that the one making defense had no part therein.
3. Anyone who acts in defense of the person or rights of a stranger, provided
that the first and second requisites mentioned in the first circumstance of
this Article are present and that the person defending be not induced by
revenge, resentment, or other evil motive.
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4. Any person who, in order to avoid an evil or injury, does an act which causes
damage to another, provided that the following requisites are present:
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid it;
Third. That there be no other practical and less harmful means of
preventing it.
5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a
right or office.
6. Any person who acts in obedience to an order issued by a superior for some
lawful purpose.
————————————————————-—————————————
If the accused raises the defense of a justifying circumstance, he has the burden
of proving the same. He is not allowed to rely on the weakness of the case of
the prosecution. It has to stand on its own merit.
Inverted trial is allowed in this case and once it is permitted by the court, there
is no violation of due process.
Q: Is inverted trial mandatory?
No. The choice belongs to the accused.
JS: There are some accused who would raise self-defense as a defense but
would still opt to present their evidence after the prosecution. This is because if
the defense will present its evidence first, it will be risky on their part to prove
the elements to justify the act.
1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.
Self-defense does not only include the right to life, but it includes other rights
like right to honor and right to property.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
People vs. Apolinar: To constitute self-defense in relation to the right to property,
the attack must not only be on the property, but also on the person of the owner.
Q: If there is no attack on the owner of the property can he still claim
justifying circumstance?
Yes, but not self-defense. He can claim lawful exercise of a right under Article
11(5) of the RPC, by virtue of the Doctrine of Self-help under Article 429 of the
Civil Code.
Q: In the third requisite, is it required that there must be no violence to
constitute lack of sufficient provocation on the part of the person
defending himself? What is sufficient provocation?
No. Provocation is sufficient when it is adequate to steer the aggressor to commit
the crime charged against him. It does not always follow that to be sufficient,
there must be violence.
Examples: (1) the accused kissed the sister of the victim so he was attacked;
(2) the accused was challenged to a fight and because of such challenge, there
was no other choice but to kill. In these cases, there is sufficient provocation.
2. Anyone who acts in defense of the person or rights of his spouse, ascendants,
descendants, or legitimate, natural or adopted brothers or sisters, or of his relatives
by affinity in the same degrees, and those by consanguinity within the fourth civil
degree, provided that the first and second requisites prescribed in the next preceding
circumstance are present and the further requisite, in case the provocation was given
by the person attacked, that the one making defense had no part therein.
Defense of relatives.
Q: Who are included in the term “relatives”?
Spouse, ascendants, descendants, or legitimate, natural or adopted brothers or
sisters, relatives by affinity in the same degrees, and relatives by consanguinity
within the fourth civil degree.
JS: Meaning up to first cousins. All the rest are strangers.
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Q: Would death terminate the relationship of spouses?
It depends. If there is no issue, death terminates the relationship. But if there is
an issue, the relationship continues even after death.
TN: If the person defended is not one of those enumerated earlier, that would
become defense of strangers.
For the requisite of lack of sufficient provocation, even if the victim was initially
provoked by the relative, it would still constitute a justifying circumstance if the
person defending his relative has no part in the provocation.
Q: Can it be made on the honest belief of the person defending a relative?
Yes.
Example: A provoked B into a fight. When C, the wife of A, arrived and saw that
A was on a very compromising position as compared to B, C defended A. That
would still be defense of relative.
3. Anyone who acts in defense of the person or rights of a stranger, provided that the
first and second requisites mentioned in the first circumstance of this Art. are present
and that the person defending be not induced by revenge, resentment, or other evil
motive.
In self-defense, defense of relatives and defense of strangers, the most
important element is the first requisite: unlawful aggression.
Q: Why is unlawful aggression the most important element?
Because if not all of the elements are present, but there is unlawful aggression,
it becomes a privileged mitigating circumstance. Absent the element of unlawful
aggression, there is no justifying nor mitigating circumstance.
This is in reference to the privileged mitigating circumstance of when the act is
not wholly excusable.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Q: How is the presence of unlawful aggression determined?
There is unlawful aggression if one is assaulted, attacked, or threatened in an
actual imminent manner either by actual physical force or by use of weapon.
TN: Slapping is considered an act of unlawful aggression.
Q: Why is slapping considered an act of unlawful aggression?
It is considered unlawful aggression because the face represents a person’s
dignity. Slapping is a physical assault coupled with a willful disregard and a
defiance of an individual’s personality. It may therefore be frequently regarded
as placing in real danger a person’s dignity, right and safety.
General Rule: If an aggressor flees, unlawful aggression no longer exists.
Exception: If the aggressor’s purpose of fleeing is for him to secure a more
advantageous position compared to the other. In which case, the aggression
continues to exist.
TN: If the accused attacks the aggressor when the latter flees, there is criminal
liability because what happened is that the unlawful aggression on the part of
the aggressor no longer exists. Hence, absence of such will not make the attack
of the accused a defense but a retaliation.
second requisite: Reasonable necessity of the means employed to prevent or
repel it.
It is not a hard and fixed rule. It is not material commensurability (measurable or
comparable by a common standard) between the attack and the defense. What
is required is rational equivalence, taking into account several factors like age,
body build, and the imminent danger which impelled a person to use an
instrument to defend himself.
Example: If the only available instrument was a stone and the accused used
that stone to smash the head of Juan dela Cruz, under the circumstances, that
is considered as reasonable necessity of the means employed.
third requisite: The person defending was not induced by hate, revenge or any
other evil motive.
Page 8 | 77

Intent is presumed from the commission of an unlawful act, and need not be
proved. The difference between intent and motive is that intent is an element of
the crime, while motive is not. Motive is not used in ascertaining the criminal
liability of the accused unless in cases that fall under the exceptions.
4. Any person who, in order to avoid an evil or injury, does an act which causes
damage to another, provided that the following requisites are present;
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid it;
Third. That there be no other practical and less harmful means of preventing it.
TN: In this case, there is no criminal liability but there is a civil liability.
The fourth justifying circumstance includes:
1. Injury to persons, and
2. Damage to property
Example 1: Jettison. There was a typhoon and the only way to save the vessel
from sinking was to throw some cargo into the sea. In that case, there is no
criminal liability but there is civil liability to the owners of the cargoes thrown.
Example 2: A was driving his motorcycle at downtown, Tacloban at a regular
speed. He was caught in a situation where if he will swerve to the left, he will kill
himself, but if he will swerve to the right, he will kill a bystander. He chose to
swerve to the right and killed the bystander. In such case, A is not criminally
liable for the death of the bystander but he is civilly liable for damages.
TN: if there was negligence on the part of the person claiming this, there can be
no justifying circumstance.
Q: A was driving in downtown at a speed of 150 kph. He was caught in that
particular situation. Can he claim exemption from criminal liability?
No, because there was negligence on his part.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Elements of Par. 4:
1. That the evil sought to be avoided actually exists.
2. That the injury feared be greater than that done to avoid it.
3. That there be no other practical and less harmful means of preventing it.
5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a right
or office.
Example: In a case where there was an attack on a person’s property, but none
on his person, the defense of lawful exercise of a right may be availed of, and
not self-defense. This is because only the property was attacked. If there was
an attack on the owner, he can also use the same as part of this particular lawful
exercise of a right.
Requisites:
1. The person acted in the fulfillment of a duty or in the lawful exercise of a
right or office.
2. The injury caused or the offense committed is the necessary consequence
of the due fulfillment of duty or lawful exercise of the right.
Relevant Provision:
Article 12. Circumstances which exempt from criminal liability. — the following
are exempt from criminal liability:
1. An imbecile or an insane person, unless the latter has acted during a lucid
interval.
When the imbecile or an insane person has committed an act which the law
defines as a felony (delito), the court shall order his confinement in one of
the hospitals or asylums established for persons thus afflicted, which he
shall not be permitted to leave without first obtaining the permission of the
same court.
(Paragraphs 2 and 3 on the exempting circumstance of minority is deemed
repealed by R.A. No. 9344, otherwise known as Juvenile Justice and
Welfare Law. Minority as an exempting circumstance is now found in Section
6 of R.A. No. 9344.)
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4. Any person who, while performing a lawful act with due care, causes an
injury by mere accident without fault or intention of causing it.
5. Any person who act under the compulsion of an irresistible force.
6. Any person who acts under the impulse of an uncontrollable fear of an equal
or greater injury.
7. Any person who fails to perform an act required by law, when prevented by
some lawful or insuperable cause.
——————————————————————————————————
Unlike in justifying circumstances, in exempting circumstances, there is
complete absence of intelligence, of voluntariness, and of freedom of action.
Therefore, the accused does not incur criminal liability, but there is still civil
liability.
Exceptions: Paragraphs 4 and 7 of Article 12.
4. Any person who, while performing a lawful act with due care, causes
an injury by mere accident without fault or intention of causing it.
7. Any person who fails to perform an act required by law, when
prevented by some lawful insuperable cause.
In these instances, there is no criminal liability and no civil liability.
1. An imbecile or an insane person, unless the latter has acted during a lucid interval.
When the imbecile or an insane person has committed an act which the law defines
as a felony (delito), the court shall order his confinement in one of the hospitals or
asylums established for persons thus afflicted, which he shall not be permitted to
leave without first obtaining the permission of the same court.
Q: Where lies the difference between the two terms in terms of criminal
liability?
The imbecile is exempt in all cases from criminal liability, whereas the insane is
not exempt if it can be shown that he acted during a lucid interval. In insanity, it
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has to be determined whether the accused acted in lucid interval when he
committed the offense.
TN: For insanity to be considered as an exempting circumstance, it should be
insanity before or at the time of the commission of the offense.
The court will order the insane accused to be brought to a mental hospital for
mental treatment and examination. The period upon which he was at the mental
asylum will be deducted from his sentence in case he is convicted.
Imbecility or insanity is a matter of defense and the burden of proof lies on the
accused because the presumption is sanity.
Q: What are some diseases covered by insanity?
Dementia Praecox – Schizophrenia, homicidal attack, psychosis, epilepsy,
Somnambulism.
Q: What if the question involves a kind of mental disease which is not yet
settled? Is it exempting or mitigating?
It depends. If in consequence of the mental disease, the accused was
completely deprived of his reason, then it is exempting. Otherwise, if there was
only diminution of his intelligence, then it is only mitigating.
Answer copied from the book: If the unlawful act of the accused is due to his
mental disease or a mental defect, producing an irresistible impulse, as when
the accused has been deprived or he has lost the power of his will which would
have enabled him to prevent himself from doing the act, the irresistible impulse,
even to take another’s property should be considered as covered by the term
insanity.
2. A person fifteen years of age and under.
3. A person over fifteen years of age but below eighteen years of age who acts with
discernment shall now be subject to an intervention and diversion program under the
Juvenile Justice and Welfare Act.
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JS: Do not use the term “under fifteen” rather “fifteen years and under” so
that when the child-in-conflict with the law (CICL) was 15 years old when he
committed the offense, then that is an exempting circumstance.
“Unless the offender acted with discernment” refers to CICL who are over 15 but
below 18. If he acted without discernment, then it falls under exempting
circumstance number 3. If he acted with discernment, it becomes a privileged
mitigating circumstance of minority in which the court has the discretion to
lower the penalty to one or two degrees.
JS: It is not always that the penalty is one degree lower because the offender is
a minor. The court can lower the penalty to two degrees if it finds that it is
favorable to the minor.
There is discernment when the person is able to distinguish that his act is right
or wrong.
Q: How can it be determined that the offender acted with discernment?
Consider the manner by which the crime was committed, and the conduct of the
offender before, during or after the commission of the crime.
Example: A 16-year old boy waited until 12 midnight before stealing his
neighbor’s chicken while everyone was asleep. Incontestably, he acted with
discernment.
R.A. No. 9344 | JUVENILE JUSTICE AND WELFARE ACT
Relevant Provisions:
Section 6, RA 9344. Minimum Age of Criminal Responsibility. – A child fifteen
(15) years of age or under at the time of the commission of the offense shall be
exempt from criminal liability. However, the child shall be subjected to an
intervention program pursuant to Section 20 of this Act.
A child above fifteen (15) years but below eighteen (18) years of age shall
likewise be exempt from criminal liability and be subjected to an intervention
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program, unless he/she has acted with discernment, in which case, such child
shall be subjected to the appropriate proceedings in accordance with this Act.
The exemption from criminal liability herein established does not include
exemption from civil liability, which shall be enforced in accordance with existing
laws.
Section 7, RA 9344. Determination of Age. – The child in conflict with the law
shall enjoy the presumption of minority. He/She shall enjoy all the rights of a
child in conflict with the law until he/she is proven to be eighteen (18) years old
or older. The age of a child may be determined from the child’s birth certificate,
baptismal certificate or any other pertinent documents. In the absence of these
documents, age may be based on information from the child himself/herself,
testimonies of other persons, the physical appearance of the child and other
relevant evidence. In case of doubt as to the age of the child, it shall be resolved
in his/her favor.
Any person contesting the age of the child in conflict with the law prior to the
filing of the information in any appropriate court may file a case in a summary
proceeding for the determination of age before the Family Court which shall
decide the case within twenty-four (24) hours from receipt of the appropriate
pleadings of all interested parties.
If a case has been filed against the child in conflict with the law and is pending
in the appropriate court, the person shall file a motion to determine the age of
the child in the same court where the case is pending. Pending hearing on the
said motion, proceedings on the main case shall be suspended.
In all proceedings, law enforcement officers, prosecutors, judges and other
government officials concerned shall exert all efforts at determining the age of
the child in conflict with the law.
Section 20, RA 9344. Children Below the Age of Criminal Responsibility. – If it
has been determined that the child taken into custody is fifteen (15) years old or
below, the authority which will have an initial contact with the child has the duty
to immediately release the child to the custody of his/her parents or guardian, or
in the absence thereof, the child’s nearest relative. Said authority shall give
notice to the local social welfare and development officer who will determine the
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appropriate programs in consultation with the child and to the person having
custody over the child. If the parents, guardians or nearest relatives cannot be
located, or if they refuse to take custody, the child may be released to any of the
following: a duly registered nongovernmental or religious organization; a
barangay official or a member of the Barangay Council for the Protection of
Children (BCPC); a local social welfare and development officer; or when and
where appropriate, the DSWD. If the child referred to herein has been found by
the Local Social Welfare and Development Office to be abandoned, neglected
or abused by his parents, or in the event that the parents will not comply with
the prevention program, the proper petition for involuntary commitment shall be
filed by the DSWD or the Local Social Welfare and Development Office pursuant
to Presidential Decree No. 603, otherwise, known as “The Child and Youth
Welfare Code”.
Section 23, RA 9344. System of Diversion. – Children in conflict with the law
shall undergo diversion programs without undergoing court proceedings subject
to the conditions herein provided:
(a) Where the imposable penalty for the crime committed is not more than six
(6) years imprisonment, the law enforcement officer or Punong Barangay
with the assistance of the local social welfare and development officer or
other members of the LCPC shall conduct mediation, family conferencing
and conciliation and, where appropriate, adopt indigenous modes of conflict
resolution in accordance with the best interest of the child with a view to
accomplishing the objectives of restorative justice and the formulation of a
diversion program. The child and his/her family shall be present in these
activities.
(b) In victimless crimes where the imposable penalty is not more than six (6)
years imprisonment, the local social welfare and development officer shall
meet with the child and his/her parents or guardians for the development of
the appropriate diversion and rehabilitation program, in coordination with
the BCPC;
(c) Where the imposable penalty for the crime committed exceeds six (6) years
imprisonment, diversion measures may be resorted to only by the court.
Section 24, RA 9344. Stages Where Diversion May be Conducted. – Diversion
may be conducted at the Katarungang Pambarangay, the police investigation or
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the inquest or preliminary investigation stage and at all levels and phases of the
proceedings including judicial level.
Section 25, RA 9344. Conferencing, Mediation and Conciliation. – A child in
conflict with law may undergo conferencing, mediation or conciliation outside the
criminal justice system or prior to his entry into said system. A contract of
diversion may be entered into during such conferencing, mediation or
conciliation proceedings.
Section 26, RA 9344. Contract of Diversion. – If during the conferencing,
mediation or conciliation, the child voluntarily admits the commission of the act,
a diversion program shall be developed when appropriate and desirable as
determined under Section 30. Such admission shall not be used against the
child in any subsequent judicial, quasi-judicial or administrative proceedings.
The diversion program shall be effective and binding if accepted by the parties
concerned. The acceptance shall be in writing and signed by the parties
concerned and the appropriate authorities. The local social welfare and
development officer shall supervise the implementation of the diversion
program. The diversion proceedings shall be completed within forty-five (45)
days. The period of prescription of the offense shall be suspended until the
completion of the diversion proceedings but not to exceed forty-five (45) days.
The child shall present himself/herself to the competent authorities that imposed
the diversion program at least once a month for reporting and evaluation of the
effectiveness of the program.
Failure to comply with the terms and conditions of the contract of diversion, as
certified by the local social welfare and development officer, shall give the
offended party the option to institute the appropriate legal action.
The period of prescription of the offense shall be suspended during the effectivity
of the diversion program, but not exceeding a period of two (2) years.
Section 37, RA 9344. Diversion Measures. – Where the maximum penalty
imposed by law for the offense with which the child in conflict with the law is
charged is imprisonment of not more than twelve (12) years, regardless of the
fine or fine alone regardless of the amount, and before arraignment of the child
in conflict with the law, the court shall determine whether or not diversion is
appropriate.
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Section 38, RA 9344. Automatic Suspension of Sentence. – Once the child who
is under eighteen (18) years of age at the time of the commission of the offense
is found guilty of the offense charged, the court shall determine and ascertain
any civil liability which may have resulted from the offense committed. However,
instead of pronouncing the judgment of conviction, the court shall place the child
in conflict with the law under suspended sentence, without need of
application: Provided, however, That suspension of sentence shall still be
applied even if the juvenile is already eighteen years (18) of age or more at the
time of the pronouncement of his/her guilt.
Upon suspension of sentence and after considering the various circumstances
of the child, the court shall impose the appropriate disposition measures as
provided in the Supreme Court Rule on Juveniles in Conflict with the Law.
Section 39, RA 9344. Discharge of the Child in Conflict with the Law. – Upon
the recommendation of the social worker who has custody of the child, the court
shall dismiss the case against the child whose sentence has been suspended
and against whom disposition measures have been issued, and shall order the
final discharge of the child if it finds that the objective of the disposition measures
have been fulfilled.
The discharge of the child in conflict with the law shall not affect the civil liability
resulting from the commission of the offense, which shall be enforced in
accordance with law.
Section 40, RA 9344. Return of the Child in Conflict with the Law to Court. – If
the court finds that the objective of the disposition measures imposed upon the
child in conflict with the law have not been fulfilled, or if the child in conflict with
the law has willfully failed to comply with the conditions of his/her disposition or
rehabilitation program, the child in conflict with the law shall be brought before
the court for execution of judgment.
If said child in conflict with the law has reached eighteen (18) years of age while
under suspended sentence, the court shall determine whether to discharge the
child in accordance with this Act, to order execution of sentence, or to extend
the suspended sentence for a certain specified period or until the child reaches
the maximum age of twenty-one (21) years.
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Section 41, RA 9344. Credit in Service of Sentence. – The child in conflict with
the law shall be credited in the services of his/her sentence with the full time
spent in actual commitment and detention under this Act.
Section 42, RA 9344. Probation as an Alternative to Imprisonment. – The court
may, after it shall have convicted and sentenced a child in conflict with the law,
and upon application at any time, place the child on probation in lieu of service
of his/her sentence taking into account the best interest of the child. For this
purpose, Section 4 of Presidential Decree No. 968, otherwise known as the
“Probation Law of 1976”, is hereby amended accordingly.
Section 45, RA 9344. Court Order Required. – No child shall be received in any
rehabilitation or training facility without a valid order issued by the court after a
hearing for the purpose. The details of this order shall be immediately entered
in a register exclusively for children in conflict with the law. No child shall be
admitted in any facility where there is no such register.
——————————————————————————————————
RA No. 9344 is the Juvenile Justice and Welfare Act which took effect on May
20, 2006. This is anchored on the principle of restorative justice and based on
the positivist theory.
In minority, it is first determined if the minor is over 15 and under 18, then it is
classified whether he acted with discernment or not. However, there are crimes
which, irrespective of whether a minor acted with discernment or not, he is
exempt from prosecution. These are called status offenses.
Status offenses are offenses which discriminate only against a child while an
adult does not suffer any penalty for committing a similar act.
1. Vagrancy, although this has been already decriminalized;
2. Prostitution;
3. Mendicancy - soliciting money or food (especially in the street by an
apparently penniless person) beggary, begging; or
4. Sniffing of rugby
These are pursuant to Section 57 of RA No. 9344. In these offenses, the minor
is automatically exempted from prosecution.
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Q: A 16-year old girl who was dancing nude in a night club was raped by
police officers. Thereafter, she was arrested and sued for prostitution. Was
it proper?
No, she cannot be prosecuted. Prostitution is a status offense in which a CICL
is always automatically exempted from prosecution.
TN: A minor who is over 15 and under 18 may be exempted from criminal liability
but there may still be civil liability by virtue of P.D. 603.
Q: Who will shoulder the civil liability of the minor offender?
The parents, the guardian in the absence of the former, or a relative (P.D. 603)
TN: Those over 15 and under 18 who acted with discernment under R.A. 9344
can be charged accordingly, subject to diversion proceedings.
A diversion is an alternative child-appropriate process of determining the
responsibility and treatment of a CICL based on his or her social, cultural,
economic psychological or educational background, without resorting to formal
court proceedings.
Q: When may diversion be resorted to?
Diversion can be resorted to in all stages of the proceedings. Even before the
barangay level before the lupong tagapamayapa, or before the police
investigation, or before the prosecutor’s office, but it depends on the penalty of
the crime committed by the CICL.
(a) Where the imposable penalty for the crime committed is six (6) years
imprisonment or less, (or up to prision correccional only)
The law enforcement officer or Punong Barangay with the assistance of the
local social welfare and development officer or other members of the Local
Council for the Protection of Children, including the child and his family shall
conduct mediation, family conferencing and conciliation and where appropriate,
adopt indigenous modes of conflict resolution in accordance with the best
interest of the child with a view to accomplishing the objectives of restorative
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justice and the formulation of a diversion program. The child and his/her family
shall be present in these activities.
(b) In victimless crimes (where there is no private offended party like violations
of municipal or city ordinances) where the imposable penalty is 6 years
imprisonment or less
The local social welfare and development officer shall meet with the child and
his/her parents or guardians for the development of the appropriate diversion
and rehabilitation program, in coordination with the Barangay Council for the
Protection of Children (BCPC);
(c) Where the imposable penalty for the crime committed exceeds six (6) years
imprisonment
Diversion measures may be resorted to only by the court. So there shall be no
diversion before the Lupon, no diversion before the police investigation, no
diversion before the inquest or preliminary investigation, if the crime committed
by the minor is punishable by more than 6 years imprisonment.
The charge should be filed and it is only when the case is filed in court that
diversion proceedings may be resorted to.
Q: As to what stage of the proceedings? Can it be done before the
arraignment or after the arraignment?
We must qualify. If the penalty for the crime does not exceed 12 years, diversion
can be done before the arraignment of the child. But if the penalty is more than
12 years, diversion is still allowed but only after arraignment.
TN: A diversion proceeding should be completed within 45 days. In criminal
procedure, the prescription of a crime is only interrupted when the complaint is
already filed at the prosecutor's office.
Q: If the diversion is done at the barangay level, will it suspend the
prescription of the offense?
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Yes, but the diversion proceedings should not exceed 45 days. The prescriptive
period is suspended until the diversion proceedings are completed. After 45
days, prescription will commence to start again.
If the diversion proceeding was successful, a contract of diversion must be
made, entered into and signed by the:
1. Minor with the assistance of his parents
2. The offended party; and
3. The appropriate authorities.
For the implementation of the contract of diversion signed by the said persons,
the CICL must report to the social welfare and development officer at least once
a month for the evaluation of the appropriateness of the program for the child.
Q: What will happen if the CICL violated any of the conditions in the
contract of diversion?
The offended party shall have the right to institute the appropriate legal action
against the minor offender.
Q: During the trial, the minor was under 18, but since the trial went on for
3 years, the child reached the age of 21. Can he still avail of suspended
sentence despite the fact that he is already at the age of 19, 20 or 21?
Yes, but only up to 21 years old. If he is already 22 years old, the diversion
authority and the local social and development authority shall determine the
appropriate disposition measures.
JS: Do not use the word ”incorrigible or corrigible”. Before, under P.D. 603,
the law says, “The child shall be placed under suspended sentence. If the child
is still incorrigible, then he shall be brought to court for the promulgation of his
sentence. But if he became corrigible, upon recommendation of the social
welfare, the case will be dismissed.”
Now, use the words: If he complies with the objectives of the appropriate
disposition measures.
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VIP: If the child reaches the age of 18 while is undergoing suspended sentence
which is now mandatory under RA No 9344, three things can be done by the
Court:
1. Discharge the child if upon the recommendation of the DSWD, the child
has been complying with the objectives of the appropriate disposition;
2. Order execution of his sentence in case he always violates the objectives
of the appropriate dispositions measures; or
3. Extend the suspension for a certain period of time until he reaches the age
of 21.
If the minor has been violating the objectives of the appropriate disposition
measures, his sentence will be promulgated. However, he will always be granted
a privileged mitigating circumstance of minority.
Q: Can the minor avail or apply for Probation?
Yes. Even if the penalty is beyond 6 years, irrespective of what crime was
committed by the minor, he may apply for probation in lieu of imprisonment. Or,
he can serve his sentence in an agricultural camp, training facility or youth
rehabilitation center or training facility supervised by the Bureau of Corrections
in coordination with the DSWD.
4. Any person who, while performing a lawful act with due care, causes an injury by
mere accident without fault or intention of causing it.
TN: No criminal liability, no civil liability. Most important word: Accident.
Q: In the context of exempting circumstance number four, is this
synonymous with fortuitous event or force majeure in civil law?
Yes, and the exact opposite of accident is negligence.
Q: What is accident?
Accident is one which is outside the sway of human will. It is an event which
cannot be foreseen, or even if foreseen, is inevitable. If the act can be foreseen
and the accused did not do anything to prevent it from happening, that is now
negligence and it becomes a quasi-offense under Article 365.
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Q: Juan dela Cruz was driving his vehicle in downtown Tacloban. He
followed all traffic rules and regulations but unfortunately, he was caught
in a situation where if he will swerve to the right, he will kill himself, and if
he will swerve to the left, he will hit a bystander. He chose to swerve to the
left and killed the bystander. Is he criminally and civilly liable?
No. This is the perfect example by paragraph number four where a person who,
while performing a lawful act with due care, causes an injury by mere accident
without fault or intention of causing it.
Q: If Juan was driving his vehicle in downtown at a speed of 120 kph and
he is caught in the same situation, is he criminally and civilly liable?
Yes, because he was not performing a lawful act with due care. This is reckless
imprudence or negligence resulting to homicide.
5. Any person who act under the compulsion of irresistible force.
Q: What are the requisites?
1. The compulsion is by means of physical force
2. The physical force must be irresistible
3. The physical force must come from a third person
Q: When is force considered to be irresistible?
When the person is reduced to a mere instrument so that, because of that force,
that person not only acts without his will, but against his will.
6. Any person who acts under the impulse of an uncontrollable fear of an equal or
greater injury.
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Q: What are the requisites?
1. There must be an existence of uncontrollable fear
2. The fear must be real, and imminent
3. The fear of an injury is greater, or at least equal to that committed
TN: At the time that the accused acted, there must have been no opportunity for
him to escape, or for self-defense.
7. Any person who fails to perform an act required by law, when prevented by some
lawful insuperable cause.
TN: No criminal liability, no civil liability.
Example: Misprision of treason – a person who learns that a group of persons
is planning to commit treason against the government has the obligation to
inform the provincial prosecutor, or the governor of the province where he
resides. Otherwise, he can be sued for misprision of treason for his failure inform
the governor or the prosecutor.
Q: The priest learned about the plan to commit treason against the
government when one of the accused confessed to him. Under the seal of
confession, he did not inform the government and the provincial
prosecutor. Can the Priest be sued for misprision of treason?
No. He was prevented from doing so by a lawful cause. Penitent-priest
relationship is covered by the privileged communication rule.
Q: How is the word “insuperable cause” interpreted?
It means a fortuitous event or force majeure, or outside the human will.
Example: A police officer validly arrested a person without a warrant in an
island. From the island, the municipality wherein the court was located is
reachable by boat for a travel period of one week. Taking into account the police
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 CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.

officer’s obligation to bring the accused to the proper judicial authorities within
36 hours for afflicted felonies, 18 hours for correctional felonies, and 12 hours
for light felonies, can the police officer in this case be prosecuted for delay in the
delivery of detained persons to the proper judicial authority?
No. He was prevented from doing so by an insuperable cause. An insuperable
cause is equivalent to fortuitous event or force majeure or anything which is
outside or beyond the control of the person.
In entrapment, the idea to commit the crime originates from the accused and
the police officers trap and catch the criminal. Entrapment is not a defense
available to the accused. It is in the context of a buy-bust operation in cases
under RA No. 9165 which is considered valid because of the presumption that
those who are involved are in the performance of their official duties.
CIRCUMSTANCES WHICH MITIGATE CRIMINAL LIABILITY

TN: Add the absolutory causes in exempting circumstances. Relevant provision:

Article 13. Mitigating circumstances. — The following are mitigating
circumstances;
The following are absolutory causes:
1. Spontaneous desistance during attempted stage (Art. 6) and no crime
1. Those mentioned in the preceding chapter, when all the requisites
under another provision of the RPC or other penal law is committed;
necessary to justify the act or to exempt from criminal liability in the
2. Light felony is only attempted or frustrated and is not against persons or
respective cases are not attendant.
property (Art. 7);
2. That the offender is under eighteen years of age or over seventy years. In
3. The accessory is a relative of the principal (Art. 8);
the case of the minor, he shall be proceeded against in accordance with the
4. Legal grounds for arbitrary detention (Art. 124);
provisions of Article 80.
5. Legal grounds for trespass (Art. 280);
3. That the offender had no intention to commit so grave a wrong as that
6. The crime of theft, swindling or malicious mischief is committed against a
committed.
relative (Art. 332);
4. That sufficient provocation or threat on the part of the offended party
7. When only slight or less serious physical injuries are inflicted by the person
immediately preceded the act.
who surprised his spouse or daughter in the act of sexual intercourse with
5. That the act was committed in the immediate vindication of a grave offense
another (Art. 247);
to the one committing the felony (delito), his spouse, ascendants,
8. Marriage of the offender with the offended party when the crime committed
descendants, legitimate, natural, or adopted brothers or sisters or relatives
is rape, abduction, seduction, or acts of lasciviousness (Art. 344);
by affinity within the same degrees.
9. Instigation.
6. That of having acted upon an impulse so powerful as naturally to have
produced passion or obfuscation.
In instigation, a public officer or private detective induces an innocent person
7. That the offender had voluntarily surrendered himself to a person in authority
to commit a crime, and then arrests him upon or after the commission of such
or his agents, or that he had voluntarily confessed his guilt before the court
crime. The idea to commit the crime originates form the police officer, making
prior to the presentation of the evidence for the prosecution.
him a principal by inducement. This is an absolutory cause and the accused
8. That the offender is deaf and dumb, blind or otherwise suffering some
must be ACQUITTED.
physical defect which thus restricts his means of action, defense, or
communications with his fellow beings.
It is practically inducing another to commit a crime and in the process, that
9. Such illness of the offender as would diminish the exercise of the will-power
person becomes a principal by inducement.
of the offender without however depriving him of consciousness of his acts.

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10. And, finally, any other circumstances of a similar nature and analogous to
those above-mentioned.
——————————————————————————————————
Mitigating circumstances under Article 13 merely mitigate the liability of the
accused. They lower the imposable penalty because there is diminution of
intelligence, of voluntariness and of freedom of action.
There are two kinds of mitigating circumstances:
1. Ordinary mitigating circumstance.
2. Privileged mitigating circumstance.
ORDINARY PRIVILEGED
Lowers the imposable penalty to Lowers the imposable penalty to at
the minimum period least one degree
Can be offset by the presence of Cannot be offset by the presence
an aggravating circumstance of an aggravating circumstance
Q: What are the privileged mitigating circumstances?
1. If the act is not wholly excusable (incomplete justifying or exempting
circumstance)
This is in reference to Article 11 and 12, when not all of the elements are
present to make the act justified or exempted BUT the requisite of
unlawful aggression should always be present.
Example: Self-defense. When only the elements of unlawful aggression
and reasonable necessity of the means employed to prevent or repel it
are present, that becomes only a privileged mitigating circumstance.
Q: In self-defense, defense of relatives, defense of stranger, only
two requisites are present but what is missing is unlawful
aggression. Is it a privileged mitigating circumstance?
No. There must be at least UNLAWFUL AGGRESSION. So that when
there is unlawful aggression and the means is reasonable but there is
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
sufficient provocation, this is when it becomes a privileged mitigating
circumstance.
TN: When there is no unlawful aggression, it is not a justifying
circumstance and definitely not a privileged mitigating circumstance.
2. Minority (R.A. 9344)
Penalty is imposed upon a person over 15 and under 18 years of age
who acted with discernment.
TN: If the person involved is a minor, he is not called an accused, but a
child in conflict with the law (CICL).
3. When there are 2 or more ordinary mitigating circumstances and no
aggravating circumstances.
Q: The accused during trial was able to prove that when he
committed the offense, he acted with passion or obfuscation, and
it was in the immediate vindication of a grave offense to him or to
his relative. There was no aggravating circumstance. Can the
penalty for the accused be lowered by one degree?
No, because there is only one mitigating circumstance. The mitigating
circumstances present in the case are incompatible with one another –
they cannot co-exist. When vindication is present with passion or
obfuscation, these are treated as one mitigating circumstance. Thus, it
will not become a privileged mitigating circumstance.
Q: When the accused is over 70 years of age, is that an ordinary
mitigating or a privileged mitigating circumstance?
When the accused is over 70 years of age at the time of the commission
of the crime, it is only an ordinary mitigating circumstance. It only
becomes a privileged mitigating circumstance in the sense that now,
there is no death penalty. But basically, it is only an ordinary mitigating
circumstance.
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3. That the offender had no intention to commit so grave a wrong as that committed.
TN: This only applies to crimes involving injuries and physical/material harm
particularly, crimes against persons.
Q: How is the intention to commit so grave a wrong determined?
The weapon used, the part of the body injured, the nature of the injury inflicted,
and the manner of inflicting the injury may show that the accused intended the
wrong committed.
TN: Do not apply this in crimes committed by imprudence and negligence –
quasi offenses.
Q: Can this mitigating circumstance be applied in crimes where intent is
immaterial, like in unintentional abortion?
In the case of People vs. Cristobal, it was not considered. But in the case of
People vs. Flameño, the SC considered this as a mitigating circumstance in the
crime of unintentional abortion. The recent and therefore controlling decision is
People vs. Cristobal.
4. That sufficient provocation or threat on the part of the offended party immediately
preceded the act.
Requisites:
1. The provocation must be sufficient;
2. t must originate from the from the offended party;
3. The provocation must be immediate to the act.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Q: If this mitigating circumstance is proven and also in number 3 (lack of
intention to commit so grave a wrong), can they be considered as
separate?
Yes. There shall be two mitigating circumstances present and if there is no
aggravating circumstance present, they shall be treated as a privileged
mitigating circumstance.
JS: Provocation is sufficient – meaning adequate to steer the person to commit
the crime complained of. It is not necessary that for provocation to be sufficient
that there must be violence.
Example: The offended party kissed the sister of the accused. Because of this,
the accused stabbed the offended party, and was sued for frustrated murder.
The accused raised this as a defense. The SC ruled that there was sufficient
provocation.
JS: On threat, take note that it should not be offensive and positively strong.
Otherwise, it may amount to unlawful aggression and thus, may give rise to self-
defense.
Q: What does “provocation must be immediate to the act” mean?
It means that between the provocation by the offended party and the
commission of the crime by the person provoked, there should be no any interval
of time.
When there is an interval of time between the provocation and the commission
of the offense/crime, the conduct of the offended party could not have excited
the accused to the commission of the crime, he having had time to reflect on his
reason and self-control.
TN: There must be no opportunity on the part of the accused to have regained
his composure and self-control.
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5. That the act was committed in the immediate vindication of a grave offense to the
one committing the felony (delito), his spouse, ascendants, descendants, legitimate,
natural, or adopted brothers or sisters or relatives by affinity within the same degrees.
It does not mention relatives by consanguinity within the 4th civil degree. It only
mentions relatives by affinity within the same degree (mother-in-law, father-in
law, sister-in-law, and brother-in-law).
Requisites:
1. That there be a grave offense done to the one committing the felony, his
spouse, ascendants, descendants, legitimate, natural, adopted brother or
sister or relatives by affinity of the same degrees;
2. That the felony is committed in vindication of such grave offense.
Q: What are the factors to determine the gravity of the offense?
The vindication of whether or not a certain personal offense is grave must be
decided by the court in consideration of the social standing of the person, the
place and time when the crime was committed.
Q: In sufficient provocation or threat on the part of the offended party, it
does not allow interval of time. Is it the same in immediate vindication of
a grave offense?
No. Immediate here means proximate. It allows interval or lapse of time.
As long as the offender was not able to recover his reason or regain his
composure and self-control at the time of the commission of the offense, it can
be appreciated as a mitigating circumstance.
6. That of having acted upon an impulse so powerful as naturally to have produced
passion or obfuscation.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Passion or obfuscation may constitute a mitigating circumstance only when the
same arose from lawful sentiments.
Requisites:
1. That there be an act, both unlawful and sufficient to produce such condition
of mind;
2. That the said act which produced the obfuscation was not far removed
from the commission of the crime by a considerable length of time, during
which the perpetrator might recover his normal equanimity;
3. The act causing such obfuscation was committed by the victim.
● Sufficient provocation – the term “immediate” does not allow interval or lapse
of time.
● Vindication of a grave offense – immediate means proximate. Lapse of time
is allowed as long as the offender was not able to recover his reason or
regain his composure and self-control.
● Passion or obfuscation – interval of time is allowed as long as the accused,
at the time of the commission of the offense, has not recovered his normal
equanimity.
TN: Use the words “not able to recover his reason or regain his composure and self-
control” for vindication of a grave offense and “not recovered his normal
equanimity” for passion or obfuscation in the BRAIN-DAMAGING EXAM.
Q: H, a philandering husband, had an extra-marital relationship with his
secretary. The wife, W, and H had a date in the mall. The mistress saw and
because of jealousy, grabbed W. As a result, W suffered injuries. When W
sued the mistress, the latter raised as mitigating circumstance that she
acted under passion or obfuscation. Will it be appreciated?
No, because based on the first principle, passion or obfuscation must arise from
a lawful or legitimate sentiment. If it were the wife who claimed passion or
obfuscation, it can be appreciated because the relationship of the wife and her
husband is lawful or legitimate.
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Q: What if the situation involves two girlfriends and one boyfriend?
The mitigating circumstance can still be appreciated because the relationship is
not yet legitimate, there having no marriage yet. But if the situation involves a
married party, then it can be appreciated only to the spouse.
Passion or obfuscation should arise only from lawful sentiments, and not from
the spirit of lawlessness and spirit of revenge.
Case: The accused was sued for rape. In his defense, he claimed that when he
saw the victim bathing naked in the river, he did not know that he was moving
towards the victim, and he found himself actually raping the victim.
Ruling: The SC did not consider this as passion or obfuscation and castigated
the accused for his bestial act. Passion or obfuscation must not arise from the
spirit of revenge and spirit of lawlessness.
TN: Vindication and passion cannot be treated separately. They are treated as
one mitigating circumstance. But provocation can be taken separately from
vindication or from passion or obfuscation.
7. That the offender had voluntarily surrendered himself to a person in authority or
his agents, or that he had voluntarily confessed his guilt before the court prior to the
presentation of the evidence for the prosecution.
Here, there are two mitigating circumstances. In the absence of an aggravating
circumstance, it can be considered as privileged mitigating circumstance.
1. Voluntary surrender to a person in authority or his agents
2. Voluntary confession of guilt before the court prior to the presentation of
evidence for the prosecution.
Requisites:
1. That the surrender must be spontaneous or voluntary;
2. That the offender has not been actually arrested;
3. That the offender surrendered himself to a person in authority or the latter’s
agent.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Q: When is surrender voluntary?
For voluntary surrender to be appreciated, the same must be spontaneous in
such a manner that it shows the interest of the accused to surrender
unconditionally to the authorities, either because:
1. he acknowledges his guilt; or
2. he wishes to save the government the trouble and necessary expenses for
his search and capture.
Q: In relation to requisite #2, can the surrender of the accused be
considered voluntary if when he surrendered, the court already issued a
warrant for his arrest?
Yes. There are cases when a warrant of arrest was already issued, but could
not be served because the accused could not be found and thus, the warrant is
returned. It may still be considered as a voluntary surrender.
Q: Who are deemed persons in authority?
A person in authority is one directly vested with jurisdiction, i.e. a public officer
who has the power to govern and execute the laws whether as an individual or
as a member of some court or governmental corporation, board or commission.
A barrio captain and a barangay chairman are also considered as persons in
authority.
Q: Who are deemed agents?
An agent of person in authority is a person who, by direct provision of law or by
election or by appointment or by competent authority, is charged with the
maintenance of the public order and protection and security of life and property,
and any person who comes to the aid of the person in authority.
TN: policemen and barangay tanods are agents of persons in authority.
The plea of guilty must be on the offense charged.
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During arraignment, the presence of the private offended party and the arresting
officers are required because of the possibility that the accused may enter a plea
of guilty to a lesser offense as charged in the information.
General Rule: A plea of guilty to a lesser offense must be with the consent of
the private offended party and the prosecutor or the arresting officers in crimes
when there is no private offended party. Otherwise, there can be no plea
bargaining.
Exception: If the private offended party was informed at the pre-trial that the
accused intends to plead for a lesser offense and he fails to appear for an unjust
cause, the prosecutor’s consent is already sufficient.
Q: The accused was charged for murder, but he pleaded to homicide
because the prosecutor and the private offended party gave their consent.
Is the plea of guilty to a lesser offense mitigating?
No, because the plea was not to the offense charged.
Q: How can it be made into a mitigating circumstance?
The counsel for the accused must talk to the prosecutor to amend the
information. When the accused intends to plead guilty to a lesser offense, there
is no need to amend the information. He can do it immediately. But if he intends
that the plea of guilty be appreciated as a mitigating circumstance, move for the
prosecutor to amend the information in order to conform to the plea. Once the
crime charged is changed from murder to homicide, the accused can plead guilty
to homicide and such plea is appreciated as an ordinary mitigating
circumstance.
Situation: Before the prosecution presents it first witness, the accused informed
the court that he is willing to change his plea from not guilty to guilty – this can
be appreciated as a mitigating circumstance since it is made prior to the
presentation of the prosecution’s evidence.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Q: What does “prior to the presentation of the prosecution’s evidence”
mean?
Before the presentation of the first witness for the prosecution.
TN: The accused can still plead guilty to a lesser offense even after the
prosecution had already presented its first witness, or even after the prosecution
had rested its case. However, in these cases, the plea of guilty is no longer
treated as a mitigating circumstance. In order to appreciate the plea of guilty as
an ordinary mitigating circumstance, the plea must be made before the
prosecution presents its case.
Q: Is there still a chance that the accused’s plea of guilty to a lesser
offense, made after the prosecution has presented its witness, can be
considered as an ordinary mitigating circumstance?
Yes, this is not in the rule. Let the prosecutor file a motion to expunge the
testimony of its witness from the record. If the court grants it, then it is as if there
has been no presentation of evidence/witness. Thus, the accused can then
plead guilty to a lesser offense, and that will be considered as an ordinary
mitigating circumstance.
When the accused pleads guilty to an offense punishable by reclusion perpetua,
life imprisonment, and death, the court should not immediately mete a penalty.
The court must require the prosecution to present its evidence.
JS: Plea of guilty even in offenses punishable by special law is (for me, I will
disagree with Reyes) still an ordinary mitigating circumstance by virtue of Article
10 or the suppletory character of RPC to special penal laws.
8. That the offender is deaf and dumb, blind or otherwise suffering some physical
defect which thus restricts his means of action, defense, or communications with his
fellow beings.
9. Such illness of the offender as would diminish the exercise of the will-power of the
offender without however depriving him of the consciousness of his acts.
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 CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.

TN: In Article 13(8), the law says “deaf and dumb”. Meaning, these two should
CIRCUMSTANCES WHICH AGGRAVATE CRIMINAL LIABILITY
be present. The term “blind” must refer both eyes.

Relevant provision:
In Article 13(9), if the illness/disease is not settled as covered by the term
Article 14. Aggravating circumstances. — The following are aggravating
insanity, answer the question this way: circumstances:
1. That advantage be taken by the offender of his public position.
If, because of the illness/disease, the accused was completely deprived 2. That the crime be committed in contempt or with insult to the public
of his reason, it is EXEMPTING. If there is only diminution of intelligence, authorities.
it is MITIGATING under Art. 13(9). 3. That the act be committed with insult or in disregard of the respect due the
offended party on account of his rank, age, or sex, or that it be committed in
the dwelling of the offended party, if the latter has not given provocation.
4. That the act be committed with abuse of confidence or obvious
10. And, finally, any other circumstances of a similar nature and analogous to those
ungratefulness.
above mentioned.
5. That the crime be committed in the palace of the Chief Executive or in his
presence, or where public authorities are engaged in the discharge of their
duties, or in a place dedicated to religious worship.
SOME ANALOGOUS CIRCUMSTANCES: 6. That the crime be committed in the night time, or in an uninhabited place, or
by a band, whenever such circumstances may facilitate the commission of
the offense. Whenever more than three armed malefactors shall have acted
Voluntary Surrender Voluntary restitution of property together in the commission of an offense, it shall be deemed to have been
Jealousy Passion or obfuscation committed by a band.
7. That the crime be committed on the occasion of a conflagration, shipwreck,
Outrage towards a person who does Passion or obfuscation earthquake, epidemic or other calamity or misfortune.
not pay his monetary debt 8. That the crime be committed with the aid of armed men or persons who
insure or afford impunity.
Testifying for the prosecution Plea of guilty 9. That the accused is a recidivist. A recidivist is one who, at the time of his
trial for one crime, shall have been previously convicted by final judgment of
Accused who is a frail 65-year-old Accused over 70 years
another crime embraced in the same title of this Code.
Extreme poverty and necessity Incomplete justification based on state 10. That the offender has been previously punished by an offense to which the
of necessity law attaches an equal or greater penalty or for two or more crimes to which
it attaches a lighter penalty.
11. That the crime be committed in consideration of a price, reward, or promise.
TN: These are instances akin to those enumerated in paragraphs 1 – 9. 12. That the crime be committed by means of inundation, fire, poison, explosion,
stranding of a vessel or intentional damage thereto, derailment of a
locomotive, or by the use of any other artifice involving great waste and ruin.
13. That the act be committed with evident premeditation.
14. That craft, fraud or disguise be employed.
15. That advantage be taken of superior strength, or means be employed to
weaken the defense.

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16. That the act be committed with treachery (alevosia). There is treachery when
the offender commits any of the crimes against the person, employing
means, methods, or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from the
defense which the offended party might make.
17. That means be employed or circumstances brought about which add
ignominy to the natural effects of the act.
18. That the crime be committed after an unlawful entry. There is an unlawful
entry when an entrance is effected by a way not intended for the purpose.
19. That as a means to the commission of a crime a wall, roof, floor, door, or
window be broken.
20. That the crime be committed with the aid of persons under fifteen years of
age or by means of motor vehicles, motorized watercraft, airships, or other
similar means.
21. That the wrong done in the commission of the crime be deliberately
augmented by causing other wrong not necessary for its commission.
——————————————————————————————————
People vs. Solar, August 6, 2019: To change the nature of the crime, the
qualifying aggravating circumstance must be alleged in the information. If
the crime is committed with treachery, the information must specifically allege
the acts which constitute treachery; otherwise it will not change the nature of the
crime from homicide to murder.
The statement “A, by means of treachery, killed B” in the Information is not
sufficient because it is not an averment of fact, but rather, a conclusion of law.
This is a ground for a motion to quash.
TN: The motion to quash must be filed before the accused is arraigned.
Otherwise, it is deemed a waiver to question that allegation in the information.
Kinds of Aggravating Circumstances under Article 14:
1. Generic aggravating circumstance – generally applies to all crimes. It
raises the imposable penalty to the maximum period in the absence of an
ordinary mitigating circumstance. It is affected by the presence of an
ordinary mitigating circumstance, such that it can be offset with an ordinary
mitigating circumstance.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
2. Qualifying aggravating circumstance – changes the nature of the crime if
alleged in the Information. This is not affected by the presence of any
mitigating circumstance.
TN: Under the Rules on Criminal Procedure, whether generic or qualifying, an
aggravating circumstance must be alleged in the Information because anything
that is not alleged cannot be proved.
If the prosecution did not allege a generic aggravating circumstance in the
Information but was able to prove it during trial, and the accused does not object
to it, he is deemed to have waived his right to question the same. Therefore, the
court can appreciate the aggravating circumstance in the imposition of the
penalty. However, a qualifying aggravating circumstance must always be
alleged in the information. While a generic AC can be waived, a qualifying AC
cannot.
3. Inherent aggravating circumstance – forms part of the element of the
crime, without which, the crime will not be committed. This does not change
the nature of the crime, nor increase the imposable penalty.
4. Particular/specific aggravating circumstance – applies only to
specific/particular crimes. E.g. treachery in crimes against persons.
1. That advantage be taken by the offender of his public position.
Q: The treasurer of Tacloban City misappropriated the city’s money. She
was sued for malversation of public funds before the Ombudsman. Since
her salary grade was not SG 27, the case was filed before the RTC. The
judge convicted her with the aggravating circumstance of taking
advantage of her public position. Was the judge correct?
No. In malversation of public funds, taking advantage of official position is an
integral element. This crime is committed by a public officer who has the custody
or control of funds or property by reason of the duties of his office.
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TN: There are crimes in the RPC where this aggravating circumstance is
inherent, and thus must not be considered in the imposition of the penalty, e.g.
1. Falsification of documents committed by public officer – when the officer
took advantage of his public position; or
2. Malversation of public fund.
Q: When is this aggravating circumstance applied?
When the offender is a public officer who used the prestige, power, and
ascendancy of his office in committing the offense.
2. That the crime be committed in contempt or with insult to the public authorities.
Requisites:
1. That the public authority is engaged in the exercise of his function;
2. That he who is engaged in the exercise of said function is not the person
against whom the crime is committed;
3. The offender knows him to be a public authority;
4. His presence has not prevented the offender from committing the criminal
act.
TN: If the crime is committed against a public authority while he is in the
performance of his function/duty, the offender commits “direct assault” without
this aggravating circumstance.
Q: The word “public authorities” refer to whom?
Persons in authority and not to agents of a person in authority.
JS: It is important to distinguish a person in authority from an agent of a person
in authority because there some aggravating circumstances which apply only to
persons in authority and not to agents of persons in authority.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Q: Mayor X went to the Gallera of Tacloban. While thereat, Juan, who
knows X to be the mayor, stabbed B. Juan was prosecuted for frustrated
murder because B survived. The prosecution raised the presence of the
2nd aggravating circumstance, i.e. that it was in contempt or with insult to
public authorities. Was there an aggravating circumstance?
It depends. The requirement is that the public authority must be engaged in the
exercise of his function. If Mayor X was there because of an official function, like
to check the license of Gallera to operate, then it is an aggravating circumstance.
But if Mayor X went there for sabong only, then it is not an aggravating
circumstance.
3. That the act be committed with insult or in disregard of the respect due the
offended party on account of his rank, age, or sex, or that is be committed in the
dwelling of the offended party, if the latter has not given provocation.
Q: If rank, age, sex, and dwelling are all present, how many aggravating
circumstances can be considered? (The same applies to paragraph 6)
It depends.
General Rule: If all the circumstances are present, they have the weight of one
aggravating circumstance only.
Exception: In the case of People vs. Santos, where these circumstances are
distinctively perceived and can exist independently from one to the other, then
these can be treated as separate aggravating circumstances.
● Rank refers to a high social position or standing in the society.
● Age applies to old age as well as tender age.
● Sex refers only to female sex, not to male sex.
● Dwelling must be a building or structure exclusively used for rest or comfort.
It includes the foot of the stairs, garage and any enclosure attached to the
house.
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Q: Does it necessarily follow that by the mere fact that the victim is old or
of tender age, or is a female, then automatically, this aggravating
circumstance must be appreciated? What should the prosecution prove?
In order that it may be considered an aggravating circumstance, there must be
evidence that in the commission of the crime, the accused deliberately intended
to offend or insult on account of the rank, age, sex and dwelling of the offended
party. Rank, age, sex and dwelling are not aggravating per se.
Principles:
1. The accused deliberately intended to offend or insult on account of the rank,
age, sex and dwelling of the offended party.
2. These can only be committed in crimes against persons and honor.
3. This aggravating circumstance is not applicable in the following situations:
1) When the offender acted with passion or obfuscation;
2) When there exists a relationship between the offended party and the
offender;
3) When the condition of being a woman is indispensable in the
commission of the crime, e.g. rape, abduction, seduction
Dwelling is not considered aggravating in the following circumstances:
1. When both the offender and offended parties are occupants of the same
house;
2. When robbery is committed by use of force upon things – here, dwelling is
inherent;
3. If the crime is trespass to dwelling – dwelling is inherent;
4. When the owner of the dwelling gave sufficient and immediate provocation;
5. When the dwelling where the crime was committed did not belong to the
offended party except when the victim for example, was raped in the
boarding house where she is a bed spacer – her room constituted a dwelling.
TN: Almost all of the aggravating circumstances are absorbed in treachery such
that when treachery is alleged in the Information, the other aggravating
circumstances need not be alleged. Exception: DWELLING. Dwelling can be
considered as a separate aggravating circumstance from treachery.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
4. That the act be committed with abuse of confidence or obvious ungratefulness.
There is a need to determine whether this particular aggravating circumstance
is an element of the crime because if it is, then it will not be considered by the
court in imposing the penalty.
Example: In qualified theft, abuse of confidence is an element of the crime.
Being inherent, it will not be considered by the court in rendering the penalty.
For abuse of confidence in crimes committed by corporations to be appreciated
as an aggravating circumstance, it must be specifically present in the
commission of the crime.
Abuse of confidence per se is not aggravating; the prosecution has to prove that
the offender’s abuse of confidence facilitated the commission of the crime. In
obvious ungratefulness, it must be manifest and clear.
Q: What is the difference between abuse of confidence and obvious
ungratefulness?
According to the RPC, it is with the severity of the degree. Obvious
ungratefulness is much more severe.
Example 1: B saved A. Despite that, A still stabbed B. Incontestably, there is
obvious ungratefulness, and not abuse of confidence.
Example 2: A pretended to be a beggar. While B was handing alms to A, A
stabbed by B. It is not abuse of confidence but obvious ungratefulness. In terms
of the severity of the degree, obvious ungratefulness is more severe than abuse
of confidence.
5. That the crime be committed in the palace of the Chief Executive or in his
presence, or where public authorities are engaged in the discharge of their duties, or
in a place dedicated to religious worship.
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If the crime is committed in the palace of the Chief Executive, it does not matter
whether there is a performance of official function or not. It is only when the
crime is committed in other public offices where the rule requires that there must
be performance of official functions.
If it is committed in the presence of the Chief Executive, it is always aggravating.
The same rule applies if the crime is committed in a place dedicated for worship.
Q: The accused committed the crime inside the compound of DOLE. Is
there an aggravating circumstance under Art. 14(5)?
It depends. If there are employees who are working overtime, then it is
aggravating because the employees are in the discharge of their official
functions. Otherwise, if there are no employees working overtime, there is no
aggravating circumstance.
6. That the crime be committed in the night time or in an uninhabited place, or by
a band, whenever such circumstances may facilitate the commission of the
offense.
Whenever more than three armed malefactors shall have acted together in the
commission of an offense, it shall be deemed to have been committed by a band.
General Rule: If a crime is committed during nighttime, in an uninhabited place,
or by a band, it will be considered as one aggravating circumstance.
Exception: People vs. Santos, the same with aggravating circumstance par. 3,
if each of the aggravating circumstances of nighttime, uninhabited place, or by
the band can be distinctly perceived and can exist independently from one to
the other, it can be considered as separate aggravating circumstances.
Nighttime begins at the end of dusk, and ends at the beginning of dawn. “Sunset
to Sunrise” may also be used.
Q: If the crime was committed during daytime, for example at 5PM and it
ended at 9PM, would nighttime be still appreciated as an aggravating
circumstance?
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
It depends. If it was succession of acts which means that it was continuous, then
it will not be considered as an aggravating circumstance. However, if there is an
interval of time between daytime and nighttime, then it will be considered as an
aggravating circumstance.
Example: At 5pm, A saw his enemy B, and wanted to stab B. B ran as fast as
he could. The crime started in Tacloban City but it was only in Palo, Leyte at
7pm that A was able to catch up to B, and was able to stab B.
Q: Is there an aggravating circumstance of night time?
No, because the act was continuous. It was a succession of acts.
TN: When a crime is committed during nighttime but in a place which is well-lit,
it will be absurd to consider nighttime as an aggravating circumstance. Or even
if the crime is committed at nighttime but there was a full moon, it will not be
considered as an aggravating circumstance.
Uninhabited Place does not only mean that there are no houses or persons in
the place where the crime was committed. Rather, if in the place where the crime
was committed, there was no opportunity for the victim to ask for help, then the
crime was committed in an uninhabited place. Otherwise, if there was an
opportunity for the victim to ask for help, then it is not considered as an
uninhabited place.
By a band means that the crime is committed by more than three armed
malefactors.
TN: There are crimes in which by a band is inherent, like brigandage which is
committed by more than 3 armed malefactors. If it is an inherent aggravating
circumstance, it should not be considered in the imposition of the penalty.
JS: Familiarize the crimes in the RPC of which these aggravating circumstances
form part as an element. Take note that inherent aggravating circumstances are
not considered in the imposition of the penalty.
Nighttime, uninhabited place, or by a band per se is not aggravating. The
prosecution has to prove any one of the following: Memorize!
1. That it facilitated the commission of the crime;
2. That it was specially sought by the offender to afford the impunity;
3. That the offender took advantage thereof in the commission of the crime.
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Any one of these 3 circumstances must go with nighttime, uninhabited place,
and by a band, so that it will be considered as an aggravating circumstance.
7. That the crime be committed on the occasion of a conflagration, shipwreck,
earthquake, epidemic or other calamity or misfortune.
In the context of statutory construction when a specific word is followed by a
general term, a general term should be akin to those that is specifically provided.
Here, “other calamities or misfortune” should be interpreted akin to the occasion
of conflagration, shipwreck, earthquake, or epidemic which is specifically
mentioned. Therefore, “other calamity or misfortune” should be interpreted as
fortuitous event or force majeure.
A force majeure involves an intervention of man (e.g. fire) while a fortuitous
event involves purely an act of God (e.g. typhoon and earthquake).
8. That the crime be committed with the aid of armed men or persons who insure or
afford impunity.
By a band requires more than three armed malefactors. Therefore, if there are
only three armed men who participated in the commission of the crime either
directly or indirectly, this aggravating circumstance applies.
Requisites: (1) the armed men must take part in the commission of the crime;
and (2) the accused relied on these armed men when the crime was being
committed. The two must always come together.
9. That the accused is a recidivist. A recidivist is one who, at the time of his trial
for one crime, shall have been previously convicted by final judgment of another
crime embraced in the same title of the RPC.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
There are four forms of repetition:
1. Recidivism [Art. 14(9)];
2. Habitual Delinquency or Multi-recidivism [Art. 62(5)];
3. Reiteracion or habituality [Art. 14(10)];
4. Quasi-recidivism [Art. 160].
Q: B committed the crime of rape through sexual intercourse but the
information alleged that he was already convicted for the crime of
homicide. When B committed the crime of rape, he was only under parole.
Is B a recidivist?
Yes, the crime of rape is no longer a crime against chastity, nor a private crime.
The crime of rape is now a crime against persons. Homicide is also a crime
against persons. Therefore, the accused is a recidivist.
10. That the offender has been previously punished for an offense to which the law
attaches an equal or greater penalty or for two or more crimes to which it attaches a
lighter penalty.
This is habituality or reiteracion.
In habituality or reiteracion, the accused is on trial for an offense but he was
already previously sentenced to an offense to which the law attaches an
equal or greater penalty, or for two or more offenses for a lesser penalty to the
offense on which he is on trial.
To determine whether there is habituality or reiteracion, the basis is not the
imposed penalty by the court, but the penalty which is attached to the crime.
Recidivism and reiteracion are “generic” aggravating circumstances, while
Habitual delinquency is an “extraordinary” aggravating circumstance, and
Quasi-recidivism is a “special” aggravating circumstance.
11. That the crime be committed in consideration of a price, reward, or promise.
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The price, reward, or money must be the reason for committing the crime.
If there was no promise when the accused committed the crime, it will not be
treated as an aggravating circumstance.
TN: If this particular aggravating circumstance is proven, it applies not only to
the principal by direct participation but also to the principal by inducement. It
applies to both the giver and the receiver.
12. That the crime be committed by means of inundation, fire, poison, explosion,
stranding of a vessel or international damage thereto, derailment of a locomotive, or
by the use of any other artifice involving great waste and ruin.
JS: Be very careful with this one, because the presence of this aggravating
circumstance might give rise to a particular crime. The intent of the accused
must be determined first.
By means of fire: If fire is used to kill, the aggravating circumstance of “by
means of fire” cannot be appreciated separately because it qualifies the crime
to murder.
By means of explosion: If a hand grenade is thrown and used as a means to
kill and there was intent to kill, the aggravating circumstance of “by means of
explosion” cannot be appreciated separately. It qualifies the crime to murder.
It would depend on the intent of the accused. If there is no intent to kill, like when
the accused started a fire with the intention of burning the house of Juan Dela
Cruz but with no intent to kill, the crime committed is arson.
Q: What if someone died as a consequence of the arson? Is it a special
complex crime of arson with homicide?
No. Under Art. 48, there is no complex crime of arson with homicide nor a crime
of destruction with homicide.
Instead, the accused has committed the crime of arson, if to kill was not his
intention. The resulting death becomes an aggravating circumstance.
If the purpose is to blow up and to damage property, it would be a crime involving
destruction. If death resulted as a consequence thereof, it shall be treated as an
aggravating circumstance.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
When there is no actual design to kill a person in burning a house, it is plain
arson even if a person is killed.
By means of derailment of locomotive: Under Article 330, which defines and
penalizes the crime of damage to means of communication, derailment of cars,
collision, or accident must result from damage to a railway, telegraph or
telephone lines.
Q: What crime is committed if, as a result of the derailment of cars, only
property is damaged?
It is damage to means of communication under Art. 330.
Q: What is the crime if the death of a person also results without intent to
kill on the part of the offender?
It is a complex crime of damage to means of communication with homicide. (Art.
330 and 249 in relation to Arts. 4 and 48)
Q: What is the crime committed if the death of a person results and there
was intent to kill on the part of the offender?
It is murder, because the derailment of car or locomotive was the means used
to kill the victim. (Art. 248)
13. That the act be committed with evident premeditation.
JS: (Bar Question) If evident premeditation is present together with treachery, it
is already absorbed in treachery. If it was preceded by cool thought and a
reflection on the part of the accused before he committed the crime,
incontestably, there is evident premeditation. Simply put, there is evident
premeditation when there was deliberate planning on the part of the accused to
commit the crime.
Q: Can evident premeditation be appreciated as an aggravating
circumstance in the crime of robbery?
No, because robbery always requires cool thought and reflection. Evident
premeditation is inherent in the crime of robbery.
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However, if it is a crime of robbery with homicide, evident premedication can be
appreciated as an aggravating circumstance. Robbery is a crime against force
upon things, while robbery with homicide is crime against persons.
For it to become a special complex crime of robbery with homicide, the
intention of the accused must be to rob. If the intention is to kill and robbery was
only incidental after the commission of robbery, the accused will be charged for
two offenses – robbery and murder. But if the intent is to rob and death resulted
as a consequence thereof, then it is a special complex crime of robbery with
homicide.
Elements of evident premeditation: The prosecution must prove
1. The time when the offender determined to commit the crime;
2. An act manifestly indicating the culprit has clung to his determination; and
3. A sufficient lapse of time between determination and execution, to allow him
to reflect upon the consequences of his act and to allow his conscience to
overcome the resolution of his will.
Q: What is the test to determine whether there has been sufficient lapse of
time?
Time is considered sufficient if it is enough for the accused to coolly and
serenely reflect on the consequences of his felonious act. Then, there is evident
premeditation.
The offender must have an opportunity to coolly and serenely think
and deliberate on the meaning and the consequences of what he planned to do,
an interval long enough for his conscience and better judgment to overcome his
evil desire and scheme. (People vs. Mendoza, 91 Phil. 58, 64)
General Rule: Conspiracy presupposes premeditation.
Exception: If conspiracy is only implied, evident premeditation may not be
appreciated (US v. Cornejo; People v. Timbang)
Q: Is it aggravating if the accused planned to kill Juan, but the person
killed is Pedro?
No, except to the extent of the old case of People vs. Timbol where the intention
of the accused was not only to kill Juan Dela Cruz, but to kill anybody who comes
to the rescue of Juan Dela Cruz.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
14.That the craft, fraud or disguise be employed.
Disguise is resorting to any device to conceal identity. Here, the purpose of
the accused is to conceal his identity.
Craft involves intellectual trickery and cunning on the part of the accused. If a
person would not have a hint of idea that the accused would be committing a
crime, that is craft.
Fraud is direct inducement of insidious words or machinations to induce the
victim to act in a manner which would enable the offender to carry out his
design.
15. That (1) advantage be taken of superior strength, or (2) means be employed to
weaken the defense.
(1) advantage be taken of superior strength.
What is required is that there must be evidence of relative strength between the
victim and the accused; that the accused was physically stronger than the
victim. There are factors that have to be considered like the number of plaintiffs,
build, size, presence of weapon.
Superiority in number does not always mean that there is abuse of superior
strength. i.e. there is no abuse of superior strength even if there were
two accused to one victim where the victim is a karate expert and robust, while
the two accused are lean and lanky and have no experience in karate. It is a
case to case basis. There are indicias to determine whether there is presence
of relative physical strength between the accused and the offended party.
If the attack was done alternately, one after the other, there is no presence of
abuse of superior strength. The SC held that even there were several accused to
a victim but the act of stabbing was one after the other, then, there is no
presence of abuse of superior strength (People vs Narciso).
(2) Means be employed to weaken the defense.
Example: Throwing sand to the eyes of the victim to impair his vision.
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Q: A invited B to drink. When B was drunk, A stabbed him. Is it with the
presence of the aggravating circumstance of the means employed to
weaken B’s defense?
It depends. If because of intoxication, B could not put any resistance at all, it
becomes treachery. But if despite the intoxication, the victim can still put up
resistance, there is an aggravating circumstance of means employed to weaken
the defense.
16. That the act be committed with treachery (alevosia).
There is treachery when the offender commits any of the crimes against persons,
employing means, methods, or forms in the execution thereof which tend directly and
specially to ensure its execution, without risk to himself arising from the defense
which the offended party might make.
JS: This, including paragraphs 3 and 6, together with evident premeditation and
abuse of superior strength, are very important provisions.
General Rule: All crimes of murder come with an aggravating circumstance of
treachery or alevosia.
Exception: In the case of dwelling because it can never be absorbed with
treachery.
In evident premeditation, there was deliberate planning on the part of the
accused before the commission of the crime.
Q: What is it equivalent to treachery?
At the time of the attack, the victim was not in a position to defend himself. It
must be coupled with the second element that the mode of attack must be
consciously adapted by the offender. Precisely, evident premeditation is
inherent in the aggravating circumstance of treachery.
Requisites:
1. That at the time of the attack, the victim was not in a position to defend
himself; and
2. That the offender consciously adopted the particular means, method or form
of attack employed by him.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Important rules/principles in treachery:
1. It is only applicable to crimes against persons;
2. The means, method or form of attack employed did not ensure
accomplishment of the crime because what is needed is to ensure its
execution; and
3. The mode of attack must be consciously adapted by the offender.
Q: Must treachery be present at the beginning of the assault?
It depends on whether the aggression was continuous or not. If it is continuous,
treachery must be present at the beginning of the assault. However, if the
aggression is not continuous, it is not necessary that treachery must be present
at the beginning of the assault. What is required is that treachery must be
present at the time the fatal blow was made by the accused to the victim.
Q: What is a fatal blow?
That blow which caused the death of the victim.
It is not necessary that the attack must come from behind the victim for treachery
to be present.
17. That means be employed or circumstances brought about which add ignominy
to the natural effects of the act.
Ignominy is the circumstance pertaining to the moral order, which adds
disgrace and obloquy to the material injury caused by the crime. The purpose of
the accused is to put the offended party to shame.
IGNOMINY CRUELTY
Involves moral suffering Involves physical suffering
The purpose is to make the crime The purpose is to prolong the victim’s
more humiliating for the victim or to agony or suffering
put the victim to shame
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When the accused raped a woman after winding cogon grass around his genital
organ, he augmented the wrong done by increasing its pain and therefore
adding ignominy thereto. (People vs. Torrefiel, CA, 45 O.G. 803)
Q: Does it always follow that when the body of the victim is chopped
into pieces, there is cruelty?
No. The prosecution must prove that the chopping was done while the victim
was still alive. If it was done when the victim was already dead, it did not prolong
the suffering of the victim.
Q: Emman intended to rob Maria and killed her as an incident thereof.
When Maria was about to die, Emman raped her. What crime was
committed? JS: One of my favorite questions
The crime is robbery with homicide with rape as an aggravating circumstance.
Rape here may constitute as an ignominy.
18. That the crime be committed after an unlawful entry. There is an unlawful entry
when an entrance is effected by a way not intended for the purpose.
19. That as a means to the commission of a crime a wall, roof, floor, door, or window
be broken.
It must be used as a means of ingress (enter) not egress (exit). To effect
entrance only.
20. That the crime be committed with the aid of persons under fifteen years of age
or by means of motor vehicles, motorized watercraft, airships, or other similar means.
By means of motor vehicle will only be considered as an aggravating
circumstance if it was used by the accused in going to the place of the crime, in
carrying the effects of the crime, and in facilitating his escape. These three must
always go together. If the warship or motor vehicle was used only as a means
to facilitate his escape, it is not aggravating.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
21. That the wrong done in the commission of the crime be deliberately augmented
by causing other wrong not necessary for its commission.
There is cruelty when the culprit enjoys and delights in making his victim suffer
slowly and gradually, causing him unnecessary physical pain in the
consummation of the criminal act. (People vs. Dayug, 49 phil. 423, 427)
Requisites:
1. That the injury caused be deliberately increased by causing other wrong;
2. That the other wrong be unnecessary for the execution of the purpose of the
offender.
Q: If the victim suffered 50 stab wounds, would that always follow that
there is cruelty?
No. As a general rule, plurality of wounds does not always mean that there was
cruelty.
ALTERNATIVE CIRCUMSTANCES
Relevant provision:
Article 15. Their concept. — Alternative circumstances are those which must
be taken into consideration as aggravating or mitigating according to the nature
and effects of the crime and the other conditions attending its commission. They
are the relationship, intoxication and the degree of instruction and education of
the offender.
The alternative circumstance of relationship shall be taken into consideration
when the offended party is the spouse, ascendant, descendant, legitimate,
natural, or adopted brother or sister, or relative by affinity in the same degrees
of the offender.
The intoxication of the offender shall be taken into consideration as a mitigating
circumstance when the offender has committed a felony in a state of intoxication,
if the same is not habitual or subsequent to the plan to commit said felony but
when the intoxication is habitual or intentional, it shall be considered as an
aggravating circumstance.
——————————————————————————————————
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JS: I put emphasis again on treachery. In your brain damaging midterm
examinations I will include in a problem, let's say that the crime was committed
with the presence of treachery, abuse of superior strength, means to weaken
the defense, age, sex, rank, night time, uninhabited place, by a band. Here, only
one aggravating circumstance is present because all the rest is actually
absorbed in the aggravating circumstance of treachery. Almost all of the 21
aggravating circumstances are absorbed in treachery.
Dwelling is only exception. Dwelling can co-exist with treachery. So that if the
crime is committed with treachery and dwelling, these two can be appreciated.
Alternating circumstances may either mitigate or aggravate based on the
following 3 factors:
1. Relationship
2. Intoxication
3. Degree of instruction and education of the offender
1. Relationship
Take note of the persons included in the term relationship. They are the spouse,
ascendant, descendant, legitimate, natural, or adopted brother or sister, or
relative by affinity in the same degrees of the offender. It does not include
relatives by consanguinity within the 4th civil degree. The concept of relationship
here, pertains to that of the offender to the offended party. That would include
the father in law and mother in law.
But according to Reyes, the step son, step daughter, step mother and step sister
are actually likewise included by means of analogy in the context of relationship.
In determining whether relationship is aggravating or mitigating, it would always
depend on what crime was committed by the accused.
Example: In crimes against property, relationship there is always mitigating.
In Article 332, this is an absolutory cause, there is no criminal, but only civil
liability for crimes of estafa or malicious mischief and theft if committed by the
spouse, ascendant, descendant, legitimate, natural, or adopted brother or sister,
or relative by affinity within the same degree.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Basically, in crimes against property, relationship is always mitigating except to
the extent of those include in Article 332 where the law says there is no criminal
but only civil liability.
In crimes against chastity, relationship is always aggravating. Under RA 8353,
the Anti-Rape Law, in accordance with the provisions of the RPC, it is
considered as qualified rape, if there is a relationship between the victim and the
accused (relationship in terms that one is either the spouse, ascendant,
descendant, legitimate, natural, or adopted brother or sister, or relative by affinity
within the same degree). The relationship and the minority must both be alleged
in the information.
In crimes against persons, it depends if the offender is a relative of a higher
degree or a lesser degree to the victim.
Example: if the victim is the father of the accused, that’s a relative of a higher
degree. If it is the father who committed the crime against his son or daughter,
that is a relative of a lower degree.
REYES: In crimes against persons, it is aggravating:
1. when the offended party is a relative of a higher degree than the
offender
2. when the offender and the offended party are relatives of the same
level, as killing a brother.
Exception: When the crime against person is Homicide or Murder – relationship
is aggravating even if the victim of the crime is a relative of a lower decree.
TN: There are crimes of which relationship is an element - thus relationship is
neither mitigating nor aggravating. Examples are Parricide, adultery and
concubinage.
Example: Parricide. It is committed by any person who shall kill his father,
mother, or child, whether legitimate or illegitimate, or any of his ascendants, or
descendants, or his spouse. In this case, the relationship is not aggravating
because in parricide, relationship is an element of the crime. All others however,
whether it is, mitigating or aggravating, depends on what crime was committed.
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Q: In murder or homicide, is relationship always aggravating or
mitigating? Or would you consider whether the accused is a relative of a
higher or lesser degree? What is the rule?
Aggravating.
Q: What about in serious physical injuries?
It depends on whether it is serious, less serious, or slight physical injuries.
In serious physical injuries, even if the offended party is a descendant (lower
degree) of the offender, relationship is aggravating. But in less serious and slight
physical injuries, relationship is a mitigating circumstance if the offended party
is a relative of a lower degree of the offender. It is aggravating, if the offended
party is a relative of a higher degree of the offender.
2. Intoxication
The basis in determining whether intoxication is aggravating or mitigating is
whether the intoxication is habitual or such is subsequent to the plan to commit
the crime.
Q: The accused is a habitual drunkard, but the intoxication is not
subsequent to the plan to commit the crime. If he commits a crime, is
intoxication a mitigating or aggravating circumstance?
It depends. It is mitigating if intoxication is not habitual, or if intoxication is not
subsequent to the plan committed.
However, it is aggravating if intoxication is habitual, or if it was intentional –
meaning, subsequent to the plan to commit a felony.
Q: What does it mean by “subsequent to the plan to commit the crime”?
Intentional. Meaning, he purposely drowned himself with liquor to commit the
crime. In that case, that would become aggravating. If it is not subsequent to the
plan to commit the crime, meaning it’s not intentional on the part of the accused,
it may be that he was drunk and that it is was just accidental that he committed
the crime, then that would become mitigating.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Q: How do you determine whether one is a habitual drunkard? What is the
extent of drunkenness to make one a habitual drunkard? (Bar Question)
The basis of determining whether one is a habitual drunkard or not is when, as
a consequence of the intoxication, his reason is blurred and he loses self-
control.
If a non-habitual drunkard committed a crime, his intoxication will be considered
as a mitigating circumstance. The effect there is greater than one who is a
habitual drunkard since the latter, if he drinks 5 cases of beer, he would still be
fine. But if a person who does not drink often is given 10 bottles of beer, definitely
that would already affect his reasoning.
3. Degree of education of the offender
If the degree of education is high, it is aggravating.
TN: By lower degree, it is not simply on the context of lack of educational
attainment. It is more on whether, there is a diminution of his intelligence.
Illiteracy per se is not being referred to as a low degree of education. It must be
coupled with the degree of intelligence. Illiteracy must be coupled with lack of
intelligence.
PERSONS CRIMINALLY LIABLE FOR FELONIES
Relevant Provisions:
Article 16. Who are criminally liable. — The following are criminally liable for
grave and less grave felonies:
1. Principals.
2. Accomplices.
3. Accessories.
The following are criminally liable for light felonies:
1. Principals
2. Accomplices.
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Article 17. Principals. - The following are considered principals:
1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it;
3. Those who cooperate in the commission of the offense by another act without
which it would not have been accomplished.
——————————————————————————————————
There are three kinds of principals:
1. Principal by direct participation
2. Principal by inducement
3. Principal by indispensable cooperation
Q: A, by means of reward and money, induced B to kill C in an island. In
going to the island B has to use the motor boat owned by D. B was
successful in killing C. What is the liability of A, B and D?
A is a principal by inducement. B is a principal by direct participation. As to D, (It
depends) if his motorboat that was used in the commission of the crime was the
only motorboat that can be used in going to the island, then he is a principal by
indispensable cooperation. Otherwise, D is only an accomplice.
1. Principal by direct participation
Principal by direct participation is the material executor the crime.
Q: Must the principal by direct participation be present at the scene of the
crime?
Yes.
Q: Can there be an exception? That he was not present at the time of the
commission but can still be considered as principal by direct participation.
In the case of Kidnapping with Homicide, where A was the one who kidnapped
C. From Tacloban, A, together with the B, the accused, brought C to Ormoc City.
A left when the others killed C. A can now be held liable as a principal for
kidnapping with homicide because at the time of killing his participation was
already done.
2. Principal by inducement
There are two ways by which one would become a principal by inducement
1. By directly forcing another to commit a crime
2. By directly inducing another to commit a crime
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
By directly forcing another to commit a crime
By the means of irresistible force or uncontrollable fear imposed on another.
Here, only the one who induced another is criminally liable.
The actor is exempt from criminal liability under Article 12 of the RPC for acting
under the compulsion of irresistible force or acting under the impulse of an
uncontrollable fear of an equal or greater injury.
By directly inducing another to commit a crime
TN: A principal by inducement can only be held liable if the person induced
proceeded to commit the crime.
By inducing a person to commit a crime
1. By giving promise reward or money
2. By words of command
Memorize: 5 rules as to whether one would become a principal by inducement
by means of words of command. (if one is missing he cannot be considered a
principal by inducement by means of words of command)
1. The one uttering the words of command must have the intention of
procuring the crime
2. The one who made the words of command must have an ascendancy
or influence over the person who acted
3. The words used must be so direct, so efficacious, so powerful to amount
of physical or moral coercion
4. The words of command must be uttered prior to the commission of the
crime
5. The material executor of the crime has no personal reason to commit
the crime
3. Principal by indispensable cooperation
A principal by indispensable cooperation means, without his participation, the
crime would not have been committed.
Example: In going to the island, B needs to use the motorboat owned by D. In
that case there might be other motorboat owners who can bring B to the island.
Here, D is not a principal by indispensable cooperation but an accomplice.
To be a principal by indispensable cooperation, the cooperation must be
indispensable. If the cooperation is only necessary, he is an accomplice.
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 CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.

Q: Who is the active subject, is it the injured party or the accused? outside the polling place are examples of violations of the Omnibus Election
The accused is the active subject. The offended party is the passive subject. Code of the Philippines. These are examples of what we call mala prohibita but
in terms of application are mala in se.
In grave or less grave felonies, the following are criminally liable:
1. Principals Q: Can a natural person be held liable?
2. Accomplices
Yes.
3. Accessories
Q: Can a juridical person like corporations or partnerships be held
In light felonies the following are criminally liable: criminally liable?
1. Principals
2. Accomplices It depends. The answer as to whether a juridical person may be held criminally
liable, is found in the case of in the case of Sia vs. People. The Supreme Court
held that if the crime committed is mala in se, juridical persons cannot be liable.
Q: Why is an accessory not held liable in light felonies?
But if the crime committed is mala prohibita, and mala prohibita (or special law)
When it is a light felony, being very low, holding the accessory liable is absurd. specifically mentions and includes a juridical person, then it can be criminally
liable; otherwise it is not.
General Rule: In Article 7, light felonies are only punishable if the light felonies
are consummated. In the case of a juridical person, if there is a criminal liability, it is the officers or
Exception: Light felonies against persons and property the board of trustees who participated in the commission of the act who shall be
held criminally liable.
JS: Know for a fact that crimes are classified into mala in se and mala prohibita.
Q: If Juan and Jose killed Pedro, what is the extent of the criminal liability
of Juan and Jose? Are both of them principals, would one be a principal,
Mala in se are those crimes which are inherently wrong. All crimes committed in
would one be an accomplice, or would one be an accessory?
the Revised Penal Code are crimes mala in se. In mala in se, intent to commit
the crime is an element of the crime. When there is no intent to commit the crime,
It depends if they acted in conspiracy. If conspiracy is proven by the prosecution,
it means that no crime was committed. In mala in se, lack of intent to commit a
the act of one is the act of all, so all of them will become principals in the
crime is a good defense.
commission of the crime.
In mala prohibita, it is one punishable by special laws. In mala prohibita, what
Q: A crime was committed by 3 persons and it was proven by the
needs to be determined is whether there is intent to perpetuate the act
prosecution that there was indeed conspiracy. Supposedly if conspiracy
committed in answer to the question, “did the accused commit a crime?” Good
is proven, the effect is the act of one is the act of all, such that all of the
faith and lack of intent are not valid defenses but there are crimes which are
three are principals in the commission of the crime. Can there be an
(mala prohibita) punishable by special laws but in terms of application, they are
exception?
mala in se.
Yes.In the case of People vs Nierra, the court held that if the participation of the
Example is illegal possession of firearms under RA 10591 or “Comprehensive
accused is minor only in character, he is not considered as a principal. Again,
Firearms and Ammunition Regulation Act” and sexual harassment under RA
even if it was proven by the prosecution that all of the accused conspired to
7877 or the “Anti-Sexual Harassment Act of 1995”. The act of tampering with,
commit the crime, one was not considered as a principal but only an accomplice
or changing without authority any date or entry in any voter’s application for
because it was found out by the court that his participation was only minor in
registration or that act of maliciously omitting, tampering or transferring to
character.
another list the name of a registered voter from the official list of voters posted

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Q: When in doubt whether there is indeed conspiracy between A, B and C,
how should the court resolve the case?
Always resolve that in favor of an accomplice because in criminal law it is always
resolved in favor of the accused. Remember the Pro Reo Principle? Remember
the Equipoise Rule, that if the evidence of the prosecution is equal on the
defense, it should be tilted in favor of the accused and therefore the accused
must be acquitted. Here, if the court is not convinced yet to the degree of
participation committed by the accused, the doubt is always resolved in favor of
the accused. He should not be considered as a principal, rather he should be
considered as an accomplice.
Q: Is it required in proving conspiracy, to consider whether there was an
agreement to commit the crime, or whether there is an appreciable length
of time from the time that they conspired to commit a crime to the
commission of the crime itself?
No. The presence of conspiracy can be appreciated even from the moment that
the accused met, and immediately decided to commit the crime. Just take note
of their acts before, during and after the commission of a crime to determine
whether there is conspiracy between the accused.
Q: How is conspiracy proved?
There must be proof of unity of purpose, unity of design and unity of
intention. These can be inferred from the acts of the accused before, after and
during the commission of the crime.
There is no need to consider the lapse of time because it is settled that from the
moment the accused meet and decide to kill a common enemy, there is
conspiracy.
If there is no conspiracy, then it must be determined whether one is a principal,
an accomplice and accessory.
Q: A, B and C conspired to rob Sophia. A and B were the one who went
inside the house of Sophia, while C acted as a lookout. A and B after
robbing Sophia, also killed Sophia and raped her. The crime is Robbery
with Homicide with Rape as an aggravating circumstance. Is C liable?
If the conspiracy is to commit only this crime but what was committed was
not that crime but another crime, the question is can the one who only
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
served as lookout be held criminally liable? (There is no question that A
and B are principals.) (Their only agreement was to rob Sophia but what
was committed was not only robbery, but Robbery with Homicide with
Rape as an aggravating circumstance.)
The rule is one would not be held criminally liable if what was committed was
not the object of conspiracy or a logical or necessary consequence of what was
agreed upon. C is not liable for Robbery with Homicide with Rape as an
aggravating circumstance. C cannot be held liable because robbery can be
committed without homicide and rape. Rape and homicide are not a necessary
or a logical consequence of the crime of robbery.
Relevant Provision:
Article 18. Accomplices. - Accomplices are the persons who, not being included
in Article 17, cooperate in the execution of the offense by previous or
simultaneous acts.
——————————————————————————————————
Accomplice – One who has no anterior conspiracy with the principals but,
knowing the commission of the crime, he cooperates by means of previous or
simultaneous acts.
Q: Juan knows that B has a bolo. Juan borrowed the bolo. The following
day Juan used the bolo to kill C. Would that make B an accomplice?
No. To be an accomplice, one must know that the crime will be committed.
How will one obtain knowledge?
a) the principal informs him b) he saw the principal commit the crime
The liability of an accomplice is 1 degree lower
The liability of an accessory is 2 degrees lower
For example, in the crime of murder
● Principal - Reclusion Perpetua
● Accomplice - Reclusion Temporal
● Accessory - Prision Mayor
Accomplice by “Previous act”: (1) the principal informed him, or (2) he saw the
principal commit the crime, or (3) he knew that an instrument will be used to kill
Pedro, and he allowed the act to be committed.
Accomplice by “Simultaneous Act”: He saw Juan stabbing Pedro, he went there
to help Juan kill Pedro by holding Pedro so Juan could kill him.
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Q: There was a case where one is claiming only as an accomplice then it
was found out that he was the one who stabbed the fatal wound which
caused the death of the victim. Is it fair to only make him an accomplice
when at the end of the day, it was the wound which he inflicted that caused
the death of the victim?
No. He should be considered a principal.
RECAP: To become a principal by indispensable cooperation, the cooperation
must be indispensable without which the crime would not have been committed.
If the cooperation is only necessary, the person is an accomplice. An accomplice
is one who is not in anterior conspiracy with the principals and, knowing the
commission of the crime cooperates by means of previous or simultaneous act.
Q: How would the accomplice know about the commission of the act?
By two ways either by first, the principal informed or told him that a crime will be
committed and second, when he saw the principal commit the crime.
Relevant Provisions:
Article 19. Accessories. - Accessories are those who, having knowledge of the
commission of the crime, and without having participated therein, either as
principals or accomplices, take part subsequent to its commission in any of the
following manners:
1. By profiting themselves or assisting the offender to profit by the effects of
the crime.
2. By concealing or destroying the body of the crime, or the effects or
instruments thereof, in order to prevent its discovery.
3. By harboring, concealing, or assisting in the escape of the principal of the
crime, provided the accessory acts with abuse of his public functions or
whenever the author of the crime is guilty of treason, parricide, murder, or
an attempt to take the life of the Chief Executive, or is known to be
habitually guilty of some other crime.
Article 20. Accessories who are exempt from criminal liability. — The penalties
prescribed for accessories shall not be imposed upon those who are such with
respect to their spouses, ascendants, descendants, legitimate, natural, and
adopted brothers and sisters, or relatives by affinity within the same degrees,
with the single exception of accessories falling within the provisions of paragraph
1 of the next preceding.
——————————————————————————————————
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CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Q: Juan killed Pedro. When Pedro was already dead, Mario helped in
digging to bury the dead body of Pedro. He also helped in concealing the
crime. What is Mario’s liability?
Mario is liable as an accessory.
An accessory’s liability comes subsequent to the commission of the crime.
Q: Mario did not participate, but he was there. Upon knowing that Juan
killed Pedro, he assisted Juan to escape. Is Mario an accessory?
Yes.
TN: Article 19 must also be taken in accord with Article 20.
Article 20 just like Article 332 is an absolutory cause.
Q: Presuming Mario does not fall on Article 20, is he an accessory?
It depends if Pedro is a public officer or a private individual.
If he is a public officer it does not matter what crime was committed by the
principal as long as in harboring, concealing or assisting, he abuses his public
functions, he is always an accessory.
But if he is a private person who assisted in the escape of the principal, he can
only be held as an accessory if the principal has committed the crime of treason,
parricide, murder, or attempted to take the life of the Chief Executive or is a
habitual delinquent. Otherwise if the principal did not commit any one of those
crimes mentioned, even if he assisted in the escape, he will not be held
criminally liable.
TN: In accessory No. 3 the one who harbors, conceals or assists in the escape
of the offender, take note as to whether he is a public officer or a private person.
Article 19 is subject to Article 20 because Article 20 mentions that accessories
No. 2 and 3 who is either a spouse, descendant, ascendant legitimate or natural
or adopted brothers or sisters or relatives by affinity within the same degree of
the person whom he helped escape, is NOT criminally liable. Article 20 is
likewise an absolutory cause. But if the accessory is either a spouse,
descendant, ascendant legitimate or natural or adopted brothers or sisters or
relatives by affinity within the same degree of the offender and the accessory
gained profit or assisted the offender to gain profit by the effects of the crime,
such accessory is not exempt from criminal liability.
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Example: If A is a private person but he is the brother of the B, the accused
whom he helped escape, there is no criminal liability.
TN: Article 20 will only be an absolutory cause to accessories No. 2, the one by
destroying the body of the crime, and to No. 3, by harboring, concealing or
assisting the escape of the principal. It would NOT exempt a person from
criminal liability under No. 1, if he profits from the proceeds of the crime or
assists the offender to profit from the proceeds of the crime.
Example: Going back to No. 1, D knows that the mangoes were stolen by his
friend. Yet, D also ate the mangoes. D is an accessory because he assisted the
offender to profit from the crime.
Another Example: A stole 1 kilo of mangoes and B told A to sell the mangoes.
After it was sold, C also benefited from the proceeds of the crime. C is an
accessory by profiting from the proceeds of the crime.
Simply put, the participation of an accessory is subsequent to the commission
of the crime, but he must have knowledge that the crime was committed, and he
must have participated, not as a principal or an accomplice, but as any one of
the three enumerated instances under Article 19.
RECAP: Accessories are those who, having knowledge of the commission of
the crime, and without having participated therein, either as principals or
accomplices, take part subsequent to its commission in any of the following
manners:
1. By profiting themselves or assisting the offender to profit by the effects
of the crime.
2. By concealing or destroying the body of the crime, or the effects or
instruments thereof, in order to prevent its discovery.
3. By harboring, concealing, or assisting in the escape of the principals of
the crime, provided the accessory acts with abuse of his public functions
or whenever the author of the crime is guilty of treason, parricide,
murder, or an attempt to take the life of the Chief Executive, or is known
to be habitually guilty of some other crime.
Q: Can one be an accessory No. 2 if he dug a hole to bury the body of the
victim but since he was in a haste, he did not notice that the face of the
victim can still be seen?
No, because the discovery is not prevented when the face of the victim can still
be seen.
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CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
JS: When it comes to the body of the crime, it is not with reference to the body
of the dead person. Rather, it is the concept of corpus delicti. It is on the specific
fact that the crime was committed.
Corpus delicti does not refer to the body of the person killed. Corpus delicti is
the specific act that a crime was committed. That's why it does not follow that
simply because the body of the victim was not seen anymore, a person cannot
be sued for murder. As long as there are witnesses who can testify that after
killing, the accused threw away the body of the victim to the sea, the accused
can still be sued. Because corpus delicti does not refer to the body of the dead
person it refers to the specific fact that a crime was committed.
Procedurally speaking, can an accessory or accomplice be convicted first
ahead of the principal? The principal was not yet arrested but the
accomplice and the accessory were already arrested. Can trial proceed
and can they be convicted?
Yes. Although it is better if all of them will be arrested altogether, as long as the
prosecution can prove their individual participation, then they can still be
convicted.
Case: There is one case, where the Supreme Court said that B cannot be
convicted as an accessory for the death of C because it was not proven yet
whether the crime committed by A was murder or homicide. In this case B was
convicted as an accessory for murder but the principal, A, was not yet arrested.
Ruling: B’s conviction was nullified by the Supreme Court because the Supreme
Court said that how can he be convicted as an accessory for the death of C
when at the outset, the principal was not yet arrested or convicted of the crime
of murder subject to that particular qualification.
The liability of a principal, accomplice and accessories are distinct from the
other. One can be convicted ahead from the other or later, as long as the
prosecution can prove their respective participation.
Although in reality being a judge that would become very difficult because you
really have to prove that there was a principal who committed the crime.
Remember that an accessory’s participation only comes after the commission
of the crime by the principal.
An accomplice is not quite difficult to prove because he is also there when the
crime was committed. But the accessory is very difficult because his
participation is only subsequent to the commission of the crime.
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RECAP: In the context of Article 19, Article 20 enumerates the persons who are
exempted as accessories except No. 1 of Art. 19 (one who profits from the
proceeds of the crime or assists the offender to profit from the proceeds of
crime). In Art. 19(1) even if there is relationship, he can still be held criminally
liable.
Q: Can a public officer who assisted in the escape of an offender charged
for murder claim exemption from criminal liability?
No, because what is important is that the public officer abused his official
function. But if the offender is the public officer’s relative, he is still exempted
because relationship by blood is thicker than call of duty.
If a person puts a gun on the hand of a victim who is already dead to make it
appear as if the victim fought back, such person is an accomplice.
If a person serves the sentence in lieu of the real culprit, such person is an
accessory.
In the context of an accessory we talk about the Anti-Fencing law.
Q: A Louis Vuitton bag was stolen. Without knowing it was stolen, E
bought it at a price below the actual value. Can E be held liable?
Yes, E may be an accessory, but he is liable as a principal under the anti-fencing
law.
Section 2 of PD 1612 states that fencing is " is the act of any person who, with
intent to gain for himself or for another, shall buy, receive, possess, keep,
acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner
deal in any article, item, object or anything of value which he knows, or should
be known to him, to have been derived from the proceeds of the crime of robbery
or theft.
JS: That’s the defense there. The defense there would be that the accused did
not know, or should not have known that the property of value was derived from
the proceeds of the crimes of robbery or theft.
The accused is an accessory under Article 19 of the RPC but he can be sued
as a principal under PD 1612 or the Anti-Fencing Law. But the crux of the
matter therein, to become liable, the accused must know or should ought to
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CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
know or should have known that the property was derived from the proceeds of
the crime of robbery or theft.
If the contrary can be proven by the prosecution, then the accused is a principal
of the crime under the Anti-Fencing Law.
Q: Can a person be sued both as an accessory under article 19 and as
principal under P.D. 1612?
No, it becomes double jeopardy. Double jeopardy comes in even if the other act
is punished by the special law as long as the other elements are likewise
present.
PENALTIES
PENALTIES IN GENERAL
Relevant Provisions:
Article 21. Penalties that may be imposed. - No felony shall be punishable by
any penalty not prescribed by law prior to its commission.
Article 22. Retroactive effect of penal laws. - Penal Laws shall have a retroactive
effect insofar as they favor the persons guilty of a felony, who is not a habitual
criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at
the time of the publication of such laws a final sentence has been pronounced
and the convict is serving the same.
Article 23. Effect of pardon by the offended party. - A pardon of the offended
party does not extinguish criminal action except as provided in Article 344 of this
Code; but civil liability with regard to the interest of the injured party is
extinguished by his express waiver.
——————————————————————————————————
Penalties in the Philippines are personal in nature. If the accused dies before or
after final judgment, his death always extinguishes his criminal liability.
Retroactivity of penal laws do not apply to civil liability. There is no retroactivity
in so far as civil liability is concerned.
Q: Can there be an accessory if the principal was already convicted? The
participation of an accessory is subsequent to the commission of the
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 CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.

crime. In this situation, the principal was already convicted. Can there be Example for No. 3: When a government employee is sued for graft and
an instance where one can become an accessory? corruption. The preventive suspension of the government employee is not a
penalty.
Yes. If one pretends to be the accused and goes to jail to serve the sentence in
lieu of the real accused, he is an accessory.
CLASSIFICATION OF PENALTIES
Article 23 states the grounds for extinguishment of criminal liability.
Relevant Provisions:
Q: Is the pardon of the private offended party a ground for extinguishment
Article 25. Penalties which may be imposed. — The penalties which may be
of criminal liability?
imposed according to this Code, and their different classes, are those included
No. A pardon given by the president of the Republic of the Philippines is the only in the following:
pardon given to an accused which has the effect of extinguishing his criminal SCALE
liability. PRINCIPAL PENALTIES
Capital Punishment: Death
General Rule: The pardon of the private offended party is not a ground for
extinguishment of criminal liability. However, it may extinguish the civil liability.
Afflictive Penalties: Reclusion Perpetua
Remember, our crimes are against the people of the Philippines and the victim
is only a witness. But there are exceptions. Reclusion temporal
Perpetual or temporary absolute disqualification
Exceptions: Adultery and concubinage. Perpetual or temporary special disqualification
Prisión mayor
To extinguish the criminal liability of the accused, both of the offenders must be
pardoned if both are alive, and the pardon should be given before the institution
Correctional Penalties: Prisión correccional
of the criminal case in court. If the husband only pardons the wife and not the
paramour, such cannot be a valid pardon. Arresto mayor
Suspension
Relevant Provision: Destierro
Article 24. Measures of prevention or safety which are nor considered penalties.
– The following shall not be considered as penalties: Light penalties: Arresto menor
1. The arrest and temporary detention of accused persons, as well as their Public censure
detention by reason of insanity or imbecility, or illness requiring their
Penalties common to the three preceding classes: Fine, and
confinement in a hospital.
2. The commitment of a minor to any of the institutions mentioned in Article Bond to keep the peace.
80 and for the purposes specified therein.
3. Suspension from the employment of public office during the trial or in order ACCESSORY PENALTIES
to institute proceedings.
4. Fines and other corrective measures which, in the exercise of their Perpetual or temporary absolute disqualification,
administrative disciplinary powers, superior officials may impose upon Perpetual or temporary special disqualification,
their subordinates.
5. Deprivation of rights and the reparations which the civil laws may establish Suspension from public office, the right to vote and be voted for, the profession
in penal form. or calling,
___________________________________________________________ Civil interdiction,

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 CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.

Indemnification, The penalties that are indivisible are:

Forfeiture or confiscation of instruments and proceeds of the offense, Payment 1. death,
of costs. 2. reclusion perpetua,
3. perpetual absolute or special disqualification, and
Article 26. When afflictive, correctional, or light penalty. — A fine, whether 4. public censure.
imposed as a single or as an alternative penalty, shall be considered an afflictive
penalty, if it exceeds 1,200,000 pesos; a correctional penalty, if it does not JS: Meaning, there are no maximum, medium or minimum periods. All the rest
exceed 1,200,000 pesos but is not less than 40,000 pesos; and a light penalty are divisible.
if it less than 40,000 pesos.
————————————————————————————————— TN: Public censure (reprimand) is a penalty, such that if the court has acquitted
Classifications of crime according to: the accused, it cannot censure him. However, the court is allowed to criticize the
GRAVITY FINE act of the accused even if it acquits the accused.

1. Afflictive 1. Afflictive - more than P1,200,000.00

DURATION AND EFFECTS OF PENALTIES
2. Correctional 2. Correctional - P40,000.00 to P1,200,000.00
Duration of Penalties
3. Light 3. Light - below P40,000.00

Reclusion Perpetua vs. Life Imprisonment
RECLUSION PERPETUA
Equivalent to a period of 20 years
and one day to 40 years
Relevant Provisions:
Article 27. Reclusion perpetua. — The penalty of reclusion perpetua shall be
from twenty years and one day to forty years.
LIFE IMPRISONMENT
Reclusion temporal. — The penalty of reclusion temporal shall be from twelve
No period
years and one day to twenty years.

Term used for crimes punishable Term used for offenses punishable
under the RPC by a special law
Under Article 10 of the RPC, the provisions of the RPC will apply suppletorily to
crimes that are punishable by a special law if the penalty imposed by the special
law is that of the penalty of the RPC; e.g. if the penalty imposed by the special
law is reclusion perpetua. Otherwise, Article 10 is inapplicable.
Example: If the special law provides that its penalty is reclusion perpetua, then,
Article 19 of the RPC on accessories who are exempted from criminal liability is
applicable. But if the special law applies the penalty of life imprisonment, the
provisions of the RPC cannot be applied.
COLLEGE OF 4B | 2021
Prision mayor and temporary disqualification. — The duration of the penalties of
prision mayor and temporary disqualification shall be from six years and one day
to twelve years, except when the penalty of disqualification is imposed as an
accessory penalty, in which case its duration shall be that of the principal
penalty.
Prision correccional, suspension, and destierro. — The duration of the penalties
of prision correccional, suspension and destierro shall be from six months and
one day to six years, except when suspension is imposed as an accessory
penalty, in which case, its duration shall be that of the principal penalty.
Arresto mayor. — The duration of the penalty of arresto mayor shall be from one
month and one day to six months.
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Arresto menor. — The duration of the penalty of arresto menor shall be from one
day to thirty days.
Bond to keep the peace. — The bond to keep the peace shall be required to
cover such period of time as the court may determine.
Article 28. Computation of penalties. — If the offender shall be in prison, the
term of the duration of the temporary penalties shall be computed from the day
on which the judgment of conviction shall have become final.
If the offender be not in prison, the term of the duration of the penalty consisting
of deprivation of liberty shall be computed from the day that the offender is
placed at the disposal of the judicial authorities for the enforcement of the
penalty. The duration of the other penalties shall be computed only from the day
on which the defendant commences to serve his sentence.
—————————————————————————————————
JS: Just take note of the duration of penalties.
Destierro - when a person is not allowed to enter a particular place designated
by the court in its decision, which should not be less than 25 kilometers and not
more than 250 kilometers from the place where the crime was committed.
Destierro is a correctional penalty.
The crimes that are punishable by destierro are:
1. serious physical injuries or death under exceptional circumstances;
2. failure to give a bond for good behavior in the crime of threats; and
3. in the case of a concubine.
Relevant Provision:
Article 29. Period of preventive imprisonment deducted from term of
imprisonment. — Offenders or accused who have undergone preventive
imprisonment shall be credited in the service of their sentence consisting of
deprivation of liberty, with the full time during which they have undergone
preventive imprisonment, if the detention prisoner agrees voluntarily in writing
after being informed of the effects thereof and with the assistance of counsel to
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CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
abide by the same disciplinary rules imposed upon convicted prisoners, except
in the following cases:
1. When they are recidivists or have been convicted previously twice or
more times of any crime; and
2. When upon being summoned for the execution of their sentence they
have failed to surrender voluntarily.
If the detention prisoner does not agree to abide by the same disciplinary rules
imposed upon convicted prisoners, he shall do so in writing with the assistance
of counsel and he shall be credited in the service of his sentence with four-fifths
of the time during which he has undergone preventive imprisonment.
Credit for preventive imprisonment for the penalty of reclusion perpetua shall be
deducted from thirty (30) years.
Whenever an accused has undergone preventive imprisonment for a period
equal to the possible maximum imprisonment of the offense charged to which
he may be sentenced and his case is not yet terminated, he shall be released
immediately without prejudice to the continuation of the trial thereof or the
proceeding on appeal, if the same is under review. Computation of preventive
imprisonment for purposes of immediate release under this paragraph shall be
the actual period of detention with good conduct time allowance: Provided,
however, That of the accused is absent without justifiable cause at any stage of
the trial, the court may motu proprio order the rearrest of the accused; Provided,
finally, That recidivists, habitual delinquents, escapees and persons charged
with heinous crimes are excluded from the coverage of this Act. In case the
maximum penalty to which the accused may be sentenced is destierro, he shall
be released after thirty (30) days of preventive imprisonment. (As amended by
R.A. No. 10592, May 29, 2013).
—————————————————————————————————
Preventive Imprisonment is the time spent by a person deprived of liberty. This
occurs when a person is charged for a non-bailable offense, or a bailable offense
but cannot put up a bond.
General Rule: As long as the accused abides by the rules in jail, he is entitled
to a deduction of the full period of his preventive imprisonment from the period
of his sentence, if convicted.
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Exceptions: if the accused is a recidivist, habitual delinquent, or upon being
summoned for the execution of the sentence, he has failed to surrender
voluntarily.
If the prisoner does not abide by the rules/disciplinary measures imposed by the
prison, he shall be credited only 4/5 of the time he has undergone preventive
imprisonment.
TN: Do not use the term “detention prisoners”. Instead, use “persons deprived
of liberty” (PDL).
Effects of the penalties according to their respective nature
Relevant Provisions:
Article 30. Effects of the penalties of perpetual or temporary absolute
disqualification. — The penalties of perpetual or temporary absolute
disqualification for public office shall produce the following effects:
1. The deprivation of the public offices and employments which the
offender may have held even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular
elective office or to be elected to such office.
3. The disqualification for the offices or public employments and for the
exercise of any of the rights mentioned.
In case of temporary disqualification, such disqualification as is
comprised in paragraphs 2 and 3 of this article shall last during the term
of the sentence.
4. The loss of all rights to retirement pay or other pension for any office
formerly held.
Article 31. Effects of the penalties of perpetual or temporary special
disqualification. — The penalties of perpetual or temporal special disqualification
for public office, profession or calling shall produce the following effects:
1. The deprivation of the office, employment, profession or calling affected;
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CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
2. The disqualification for holding similar offices or employments either
perpetually or during the term of the sentence according to the extent of
such disqualification.
Article 32. Effect of the penalties of perpetual or temporary special
disqualification for the exercise of the right of suffrage. — The perpetual or
temporary special disqualification for the exercise of the right of suffrage shall
deprive the offender perpetually or during the term of the sentence, according
to the nature of said penalty, of the right to vote in any popular election for any
public office or to be elected to such office. Moreover, the offender shall not be
permitted to hold any public office during the period of his disqualification.
Article 33. Effects of the penalties of suspension from any public office,
profession or calling, or the right of suffrage. — The suspension from public
office, profession or calling, and the exercise of the right of suffrage shall
disqualify the offender from holding such office or exercising such profession or
calling or right of suffrage during the term of the sentence.
The person suspended from holding public office shall not hold another having
similar functions during the period of his suspension.
Article 34. Civil interdiction. — Civil interdiction shall deprive the offender during
the time of his sentence of the rights of parental authority, or guardianship, either
as to the person or property of any ward, of marital authority, of the right to
manage his property and of the right to dispose of such property by any act or
any conveyance inter vivos.
Article 35. Effects of bond to keep the peace. — It shall be the duty of any
person sentenced to give bond to keep the peace, to present two sufficient
sureties who shall undertake that such person will not commit the offense sought
to be prevented, and that in case such offense be committed they will pay the
amount determined by the court in its judgment, or otherwise to deposit such
amount in the office of the clerk of the court to guarantee said undertaking.
The court shall determine, according to its discretion, the period of duration of
the bond.
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 CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.

Should the person sentenced fail to give the bond as required he shall be 1. The reparation of the damage caused.
detained for a period which shall in no case exceed six months, if he shall have 2. Indemnification of consequential damages.
been prosecuted for a grave or less grave felony, and shall not exceed thirty 3. The fine.
days, if for a light felony. 4. The costs of the proceedings.

Article 36. Pardon; its effects. — A pardon shall not work the restoration of the Article 39. Subsidiary penalty. — If the convict has no property with which to
right to hold public office, or the right of suffrage, unless such rights be expressly meet the fine mentioned in the paragraph 3 of the next preceding article, he shall
restored by the terms of the pardon. be subject to a subsidiary personal liability at the rate of one day for each eight
pesos, subject to the following rules:
A pardon shall in no case exempt the culprit from the payment of the civil
1. If the principal penalty imposed be prision correccional or arresto and
indemnity imposed upon him by the sentence.
fine, he shall remain under confinement until his fine referred to in the
—————————————————————————————————
preceding paragraph is satisfied, but his subsidiary imprisonment shall
Civil interdiction under Article 34 is death in law.
not exceed one- third of the term of the sentence, and in no case shall it
continue for more than one year, and no fraction or part of a day shall
Pardon by the President extinguishes the criminal liability of the accused.
be counted against the prisoner.
Pardon by the private offended party will not extinguish the criminal liability of
2. When the principal penalty imposed be only a fine, the subsidiary
the accused except in the crimes of adultery and concubinage where the law
imprisonment shall not exceed six months, if the culprit shall have been
requires that the pardon shall be given to both offenders as long as both are
prosecuted for a grave or less grave felony, and shall not exceed fifteen
alive, and should be given by the offended spouse before the institution of the
days, if for a light felony.
criminal action in court.
3. When the principal imposed is higher than prision correccional, no
subsidiary imprisonment shall be imposed upon the culprit.
In marital rape, the pardon of the offended wife may also extinguish the criminal
4. If the principal penalty imposed is not to be executed by confinement in
liability of the accused.
a penal institution, but such penalty is of fixed duration, the convict,
during the period of time established in the preceding rules, shall
The pardoning power of the President can only be granted by him after final
continue to suffer the same deprivations as those of which the principal
conviction and does not extend to cases of impeachment.
penalty consists.
5. The subsidiary personal liability which the convict may have suffered by
Relevant Provisions:
reason of his insolvency shall not relieve him, from the fine in case his
Article 37. Cost; What are included. — Costs shall include fees and indemnities
financial circumstances should improve.
in the course of the judicial proceedings, whether they be fixed or unalterable
—————————————————————————————————
amounts previously determined by law or regulations in force, or amounts not
Article 38 is only applicable if the property of the accused is not sufficient to
subject to schedule.
cover his liability.
Article 38. Pecuniary liabilities; Order of payment. — In case the property of the
JS: Article 39 is very important and has been amended by R.A. 10159 in 2012.
offender should not be sufficient for the payment of all his pecuniary liabilities,
the same shall be met in the following order:

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In subsidiary penalty, if an accused has insufficient money to pay off the fine
imposed under article 38(3), he shall serve an imprisonment of one (1) day for
each P8.00 of the fine. Simply put, days of imprisonment = fine imposed/P8.00
Under RA 10159, if the convict has no property with which to meet the fine
mentioned in Article 38(3), he shall be subject to a subsidiary personal liability
at the rate of one day for each amount equivalent to the highest minimum wage
rate prevailing in the Philippines at the time of rendition of the judgment of
conviction of the trial court subject to the following rules:
1. If the principal penalty imposed be prision correctional or arresto and
fine, he shall remain under confinement until his fine referred in the
preceding paragraph is satisfied, but his subsidiary imprisonment shall
not exceed one-third of the term of the sentence, and in no case shall it
continue for more than one year, and no fraction or part of a day shall
be counted against the prisoner.
2. When the principal penalty imposed be only a fine, the subsidiary
imprisonment shall not exceed six months, if the culprit shall have been
prosecuted for a grave or less grave felony, and shall not exceed fifteen
days, if for a fight felony.
3. When the principal penalty imposed is higher than prision correctional,
no subsidiary imprisonment shall be imposed upon the culprit.
4. If the principal penalty imposed is not to be executed by confinement in
a penal institution, but such penalty is of fixed duration, the convict,
during the period of time established in the preceding rules, shall
continue to suffer the same deprivations as those of which the principal
penalty consists.
5. The subsidiary personal liability which the convict may have suffered by
reason of his insolvency shall not relieve him from the fine in case his
financial circumstances should improve." (As amended by Republic Act
No. 5465, which lapsed into law on April 21, 1969.)
JS: So it's no longer an additional day of imprisonment for every P8.00, but it is
now based on the highest minimum wage in the country prevailing at the time of
the conviction of the accused.
The court can only impose subsidiary imprisonment in case of failure to pay a
fine if the penalty imposed does not exceed prision correccional.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Instances when there is no subsidiary penalty of imprisonment:
1. If the penalty imposed is prision mayor or higher;
2. In case of failure to pay the reparation of the damage caused,
indemnification of the consequential damages, and the costs of the
proceedings;
3. When the penalty imposed is not to be executed by confinement in a
penal institution and has no fixed duration. Example: if the penalty
imposed is a fine not exceeding 200 pesos and censure.
There can only be a subsidiary penalty if it is imposed by the court in its judgment
of conviction. If the judgment of conviction does not provide for subsidiary
imprisonment, there can be no such imprisonment.
Penalties in which other accessory penalties are inherent
Relevant Provisions:
Article 40. Death; Its accessory penalties. — The death penalty, when it is not
executed by reason of commutation or pardon shall carry with it that of perpetual
absolute disqualification and that of civil interdiction during thirty years following
the date of sentence, unless such accessory penalties have been expressly
remitted in the pardon.
Article 41. Reclusion perpetua and reclusion temporal; Their accessory
penalties. — The penalties of reclusion perpetua and reclusion temporal shall
carry with them that of civil interdiction for life or during the period of the sentence
as the case may be, and that of perpetual absolute disqualification which the
offender shall suffer even though pardoned as to the principal penalty, unless
the same shall have been expressly remitted in the pardon.
Article 42. Prision mayor; Its accessory penalties. — The penalty of prision
mayor, shall carry with it that of temporary absolute disqualification and that of
perpetual special disqualification from the right of suffrage which the offender
shall suffer although pardoned as to the principal penalty, unless the same shall
have been expressly remitted in the pardon.
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Article 43. Prision correccional; Its accessory penalties. — The penalty of
prision correccional shall carry with it that of suspension from public office, from
the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, if the duration of said imprisonment
shall exceed eighteen months. The offender shall suffer the disqualification
provided in the article although pardoned as to the principal penalty, unless the
same shall have been expressly remitted in the pardon.
Article 44. Arresto; Its accessory penalties. — The penalty of arresto shall carry
with it that of suspension of the right to hold office and the right of suffrage during
the term of the sentence.
—————————————————————————————————
There is an accessory penalty for every penalty except for death. But if death is
reduced to reclusion perpetua, there can be an accessory penalty like civil
interdiction.
Q: Is the marriage between the parties, where one of whom is an accused
who is due for lethal injection, valid?
People vs. Echegaray: It depends. If after the marriage, Echegaray was
subjected to lethal injection which caused his death, the marriage is valid. But if
his sentence was commuted because the president granted executive clemency
on him, then the marriage is null and void because Echegaray now suffers from
the penalty of civil interdiction.
Relevant Provision:
Article 45. Confiscation and forfeiture of the proceeds or instruments of the
crime. — Every penalty imposed for the commission of a felony shall carry with
it the forfeiture of the proceeds of the crime and the instruments or tools with
which it was committed.
Such proceeds and instruments or tools shall be confiscated and forfeited in
favor of the Government, unless they be property of a third person not liable for
the offense, but those articles which are not subject of lawful commerce shall be
destroyed.
—————————————————————————————————
JS: This is an important provision
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
General Rule: In case of conviction, the proceeds of the crime are confiscated
and forfeited.
Exception: if the proceeds or effects of the crime are owned by a third person
who has no participation in the commission of the crime.
But even if the third person files for the release of the article, under R.A. 9165,
the court is not allowed to release any effects or articles used in the commission
of the crime while the case is still ongoing.
APPLICATION OF PENALTIES
Rules for the application of penalties to the persons criminally liable
and for the graduation of the same
Relevant Provision:
Article 46. Penalty to be imposed upon principals in general. — The penalty
prescribed by law for the commission of a felony shall be imposed upon the
principals in the commission of such felony.
Whenever the law prescribes a penalty for a felony in general terms, it shall be
understood as applicable to the consummated felony.
—————————————————————————————————
Penalties to be imposed based on:
Persons liable:
1. Principal - prescribed by law
2. Accomplice - 1 degree lower from principal
3. Accessory - 2 degrees lower from principal
Stages of execution:
1. Consummated - prescribed by law
2. Frustrated - 1 degree lower from consummated
3. Attempted - 2 degrees lower from consummated
Page 47 | 77

Relevant Provisions:
Article 47. In what cases the death penalty shall not be imposed; Automatic
Review of Death Penalty Cases — The death penalty shall be imposed in all
cases in which it must be imposed under existing laws, except when the guilty
person is below eighteen years of age at the time of the commission of the crime,
or is more than seventy years of age, or when upon appeal or automatic review
of the case by the Supreme Court, the required majority vote is not obtained for
the imposition of the death penalty in which cases the penalty shall be reclusion
perpetua. In all cases where the death penalty is imposed by the trial court, the
records shall be forwarded to the Supreme Court for automatic review and
judgment by the court en band within twenty days but not earlier than fifteen
days after promulgation of the judgment or notice of denial of any motion for new
trial or reconsideration. The transcript shall also be forwarded within ten days
after the filing thereof by the stenographic recorded. (This provision is rendered
inoperative by R.A. 9346, which prohibits the imposition of the death penalty.)
Article 48. Penalty for complex crimes. — When a single act constitutes two or
more grave or less grave felonies, or when an offense is a necessary means for
committing the other, the penalty for the most serious crime shall be imposed,
the same to be applied in its maximum period. (As amended by Commonwealth
Act No. 4000, December 5, 1932)
—————————————————————————————————
Compound complex crime - a single act constitutes two or more grave or less
grave felonies.
Complex crime proper - one crime is a necessary means to commit the other.
In case of a complex crime, the accused shall be meted a penalty based on the
most serious offense to be applied in its maximum period.
JS: This is favorable to the accused because instead of being sued for as many
crimes as are committed, he is only sued for one crime although the penalty is
to be based on the most serious offense in its maximum period. This is because
there is a single intention only on the part of the accused. There is even one
comment that if the application of article 48 is not favorable to the accused, it
should not be applied by the court.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Example: The single act of throwing a hand grenade which caused the
destruction of buildings and death is a complex crime.
Exceptions: There is no complex crime in the following instances:
1. If one act is grave or less grave and the other one is light.
In this case, the light felony is either absorbed in the grave or less grave
felony, or it will be punished as a separate offense.
2. If the crime is committed to conceal the other.
3. If one crime is punishable by the RPC and the other is punishable by
special law.
Example: In the case of illegal possession of firearms in R.A. 10591, if
murder or homicide was committed with the use of an unlicensed
firearm, the accused should not be sued for murder and illegal
possession of firearms. The accused should only be sued for murder,
and the illegal possession of firearms becomes a special aggravating
circumstance which puts the penalty in its maximum period.
4. In cases where the doctrine of absorption apply.
People vs. Hernandez: If in furtherance of the crime of rebellion,
common crimes are committed, the accused should not be sued for the
complex crime of rebellion with murder, or cannot be sued for as many
crime as are committed because these common crimes are absorbed in
the crime of rebellion. The accused should only be sued for rebellion as
long as the common crimes are committed in furtherance of it.
Otherwise, the rebels who committed the common crimes shall be sued
for each of the common crimes that they have committed.
People vs. Geronimo: The individual rebels who committed crimes which
are not in furtherance of the crime of rebellion may be sued for each
common crime committed.
The doctrine is also applicable to the crime of coup d’etat.
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5. In cases where the doctrine of common element apply.
Q: Can there be a complex crime of estafa through falsification of
private documents?
No. There is no complex crime because of the doctrine of common
element. The damage which is punished in estafa is the same damage
which is punished in falsification of private documents. Hence, there is
no complex crime.
There is a complex crime, however, if it is estafa through falsification of
public documents because falsification might be a necessary means to
commit estafa. In the crime of falsification of public documents, what is
punished is the violation of the public trust reposed on the fact that that
is a public document.
6. In cases of special complex crimes.
For robbery and homicide to become the special complex crime of
robbery with homicide, the intention of the accused must be to rob. If the
intention is to kill, the accused committed two separate crimes.
Plurality of crimes - the successive execution by the same individual of
different criminal acts upon any of which no conviction has yet been declared.
Continuing crime - a single crime consisting of a series of acts all arising from
one criminal resolution.
Examples: (1) a collector misappropriated the money which was received from
several customers in a day; (2) stealing from the yard of Juan 3 roosters which
belong to Juan, Pedro, and Maria.
A continuous crime should be distinguished from a transitory crime. Transitory
crimes are more for purposes of venue, wherein the accused can be sued in
any place wherein any of the elements of the crime was committed.
Other Relevant Provisions:
Article 49. Penalty to be imposed upon the principals when the crime committed
is different from that intended. — In cases in which the felony committed is
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
different from that which the offender intended to commit, the following rules
shall be observed:
1. If the penalty prescribed for the felony committed be higher than that
corresponding to the offense which the accused intended to commit, the
penalty corresponding to the latter shall be imposed in its maximum
period.
2. If the penalty prescribed for the felony committed be lower than that
corresponding to the one which the accused intended to commit, the
penalty for the former shall be imposed in its maximum period.
3. The rule established by the next preceding paragraph shall not be
applicable if the acts committed by the guilty person shall also constitute
an attempt or frustration of another crime, if the law prescribes a higher
penalty for either of the latter offenses, in which case the penalty
provided for the attempted or the frustrated crime shall be imposed in its
maximum period.
Article 50. Penalty to be imposed upon principals of a frustrated crime. — The
penalty next lower in degree than that prescribed by law for the consummated
felony shall be imposed upon the principals of a frustrated felony.
Article 51. Penalty to be imposed upon principals of an attempted crime. — A
penalty lower by two degrees than that prescribed by law for the consummated
felony shall be imposed upon the principals in an attempt to commit a felony.
Article 52. Penalty to be imposed upon accomplices in a consummated crime.
— The penalty next lower in degree than that prescribed by law for the
consummated felony shall be imposed upon the accomplices in the commission
of a consummated felony.
Article 53. Penalty to be imposed upon accessories to the commission of a
consummated felony. — The penalty lower by two degrees than that prescribed
by law for the consummated felony shall be imposed upon the accessories to
the commission of a consummated felony.
Article 54. Penalty to imposed upon accomplices in a frustrated crime. — The
penalty next lower in degree than prescribed by law for the frustrated felony shall
be imposed upon the accomplices in the commission of a frustrated felony.
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Article 55. Penalty to be imposed upon accessories of a frustrated crime. —
The penalty lower by two degrees than that prescribed by law for the frustrated
felony shall be imposed upon the accessories to the commission of a frustrated
felony.
Article 56. Penalty to be imposed upon accomplices in an attempted crime. —
The penalty next lower in degree than that prescribed by law for an attempt to
commit a felony shall be imposed upon the accomplices in an attempt to commit
the felony.
Article 57. Penalty to be imposed upon accessories of an attempted crime. —
The penalty lower by two degrees than that prescribed by law for the attempted
shall be imposed upon the accessories to the attempt to commit a felony.
Article 58. Additional penalty to be imposed upon certain accessories. — Those
accessories falling within the terms of paragraphs 3 of Article 19 of this Code
who should act with abuse of their public functions, shall suffer the additional
penalty of absolute perpetual disqualification if the principal offender shall be
guilty of a grave felony, and that of absolute temporary disqualification if he shall
be guilty of a less grave felony.
—————————————————————————————————
In the case of a public officer who is liable as an accessory, if there is an abuse
of public functions, there can be an added penalty of absolute perpetual
disqualification if the principal offender is guilty of a grave felony; or a penalty of
absolute temporary disqualification if the principal is guilty of a less grave felony.
Relevant Provision:
Article 60. Exception to the rules established in Articles 50 to 57. — The
provisions contained in Articles 50 to 57, inclusive, of this Code shall not be
applicable to a case in which the law expressly prescribes the penalty provided
for a frustrated or attempted felony, or to be imposed upon accomplices or
accessories.
—————————————————————————————————
Consummated, Frustrated, Attempted. For example, murder is punishable by
reclusion perpetua; frustrated murder is punishable by reclusion temporal; and
attempted murder is punishable by prision mayor. This is what applies in Articles
50-57 unless the law specifically provides for a penalty by itself.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Other Relevant Provisions:
Article 59. Penalty to be imposed in case of failure to commit the crime because
the means employed or the aims sought are impossible. — When the person
intending to commit an offense has already performed the acts for the execution
of the same but nevertheless the crime was not produced by reason of the fact
that the act intended was by its nature one of impossible accomplishment or
because the means employed by such person are essentially inadequate to
produce the result desired by him, the court, having in mind the social danger
and the degree of criminality shown by the offender, shall impose upon him the
penalty of arresto mayor or a fine from 200 to 500 pesos.
Article 61. Rules of graduating penalties. — For the purpose of graduating the
penalties which, according to the provisions of Articles 50 to 57, inclusive, of this
Code, are to be imposed upon persons guilty as principals of any frustrated or
attempted felony, or as accomplices or accessories, the following rules shall be
observed:
1. When the penalty prescribed for the felony is single and indivisible, the
penalty next lower in degree shall be that immediately following that
indivisible penalty in the respective graduated scale prescribed in Article 71
of this Code.
2. When the penalty prescribed for the crime is composed of two indivisible
penalties, or of one or more divisible penalties to be imposed to their full
extent, the penalty next lower in degree shall be that immediately following
the lesser of the penalties prescribed in the respective graduated scale.
3. When the penalty prescribed for the crime is composed of one or two
indivisible penalties and the maximum period of another divisible penalty,
the penalty next lower in degree shall be composed of the medium and
minimum periods of the proper divisible penalty and the maximum periods
of that immediately following in said respective graduated scale.
4. When the penalty prescribed for the crime is composed of several periods,
corresponding to different divisible penalties, the penalty next lower in
degree shall be composed of the period immediately following the minimum
prescribed and of the two next following, which shall be taken from the
penalty prescribed, if possible; otherwise from the penalty immediately
following in the above mentioned respective graduated scale.
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5. When the law prescribes a penalty for a crime in some manner not specially
provided for in the four preceding rules, the courts, proceeding by analogy,
shall impose the corresponding penalties upon those guilty as principals of
the frustrated felony, or of attempt to commit the same, and upon
accomplices and accessories.
Rules for the application of penalties with regard to the mitigating and
aggravating circumstances, and habitual delinquency
Relevant Provision:
Article 62. Effects of the attendance of mitigating or aggravating circumstances
and of habitual delinquency. — Mitigating or aggravating circumstances and
habitual delinquency shall be taken into account for the purpose of diminishing
or increasing the penalty in conformity with the following rules:
1. Aggravating circumstances which in themselves constitute a crime specially
punishable by law or which are included by law in defining a crime and
prescribing the penalty therefor shall not be taken into account for the
purpose of increasing the penalty.
a. When in the commission of a crime, advantage is taken by the
offender of his public position, the penalty to be imposed shall be in
its maximum regardless of mitigating circumstances.
The maximum penalty shall be imposed if the offense was
committed by any person who belongs to an organized/syndicated
crime group.
An organized/syndicated crime group means a group of two or more
persons collaborating, confederating, or mutually helping one
another for purposes of gain in the commission of any crime. (As
amended by R.A. No. 7659, December 30, 1993)
2. The same rule shall apply with respect to any aggravating circumstance
inherent in the crime to such a degree that it must of necessity accompany
the commission thereof.
3. Aggravating or mitigating circumstances which arise from the moral
attributes of the offender, or from his private relations with the offended
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
party, or from any other personal cause, shall only serve to aggravate or
mitigate the liability of the principals, accomplices and accessories as to
whom each circumstances are attendant.
4. The circumstances which consist in the material execution of the act, or in
the means employed to accomplish it, shall serve to aggravate or mitigate
the liability of those persons only who had knowledge of them at the time of
the execution of the act or their cooperation therein.
5. Habitual delinquency shall have the following effects:
a. Upon a third conviction the culprit shall be sentenced to the penalty
provided by law for the last crime of which he be found guilty and to
the additional penalty of prision correccional in its medium and
maximum periods;
b. Upon a fourth conviction, the culprit shall be sentenced to the
penalty provided for the last crime of which he be found guilty and to
the additional penalty of prision mayor in its minimum and medium
periods; and
c. Upon a fifth or additional conviction, the culprit shall be sentenced to
the penalty provided for the last crime of which he be found guilty
and to the additional penalty of prision mayor in its maximum period
to reclusion temporal in its minimum period.
Notwithstanding the provisions of this article, the total of the two penalties to be
imposed upon the offender, in conformity herewith, shall in no case exceed 30
years.
For the purpose of this article, a person shall be deemed to be habitual
delinquent, if within a period of ten years from the date of his release or last
conviction of the crimes of serious or less serious physical injuries, robo, hurto,
estafa or falsification, he is found guilty of any of said crimes a third time or
oftener. (As amended by R.A. No. 7659, December 30, 1993)
—————————————————————————————————
Habitual delinquency is one of the four forms of repetition:
1. Recidivism
2. Habitual delinquent
3. Reiteracion or habituality
4. Quasi-recidivist
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One is a habitual delinquent if, within a period of 10 years from the date of his
release or last conviction of a crime of serious or less serious physical injuries,
robbery, theft, estafa, or falsification, is found guilty of any of the said crimes for
a third time or oftener.
This is an exception to the exception of the rule that criminal law shall not be
given a retroactive application except if it is favorable to the accused.
Exception to the exception in the sense that even if it is favorable to the accused,
it will not be applied retroactively if the accused is (1) a habitual delinquent in
the concept of habitual delinquent under Article 62, or (2) the law itself expressly
provides.
Relevant Provision:
Article 63. Rules for the application of indivisible penalties. — In all cases in
which the law prescribes a single indivisible penalty, it shall be applied by the
courts regardless of any mitigating or aggravating circumstances that may have
attended the commission of the deed.
In all cases in which the law prescribes a penalty composed of two indivisible
penalties, the following rules shall be observed in the application thereof:
1. When in the commission of the deed there is present only one aggravating
circumstance, the greater penalty shall be applied.
2. When there are neither mitigating nor aggravating circumstances in the
commission of the deed, the lesser penalty shall be applied.
3. When the commission of the act is attended by some mitigating
circumstances and there is no aggravating circumstance, the lesser
penalty shall be applied.
4. When both mitigating and aggravating circumstances attended the
commission of the act, the court shall reasonably allow them to offset one
another in consideration of their number and importance, for the purpose
of applying the penalty in accordance with the preceding rules, according
to the result of such compensation.
—————————————————————————————————
The indivisible penalties are:
1. Death
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
2. Reclusion perpetua
3. Perpetual or absolute disqualification, and
4. Public censure
Before R.A. 9346, murder was punished by a penalty of reclusion temporal to
death. Now, the penalty for murder is reclusion perpetua.
Q: What is the effect of the abolition of the death penalty?
There is no eligibility for parole for crimes originally punished by reclusion
perpetua to death. But if the penalty is only reclusion perpetua, there is still
eligibility for parole.
Example: Before, murder is punishable by (to make it easier) reclusion perpetua
to death. If there is 1 aggravating and no mitigating circumstance, the greater
penalty shall be imposed, which is death.
If there is no aggravating and 1 mitigating circumstance, the lesser penalty shall
be imposed, which is reclusion perpetua.
If the circumstances are balanced, the penalty is reclusion perpetua.
There are cases when the presence of the mitigating or aggravating
circumstances will not be considered in the imposition of penalty:
1. When the penalty is single and indivisible (the only exception is
minority);
2. In felonies through negligence;
3. When the penalty is to be imposed on a moro or another non-christian
inhabitant;
4. When the penalty is only a fine imposed by an ordinance;
5. When the penalties are prescribed by special laws (Except if the penalty
in the special law is that provided for by the RPC).
TN: If the special law provides the penalty of reclusion perpetua, not life
imprisonment, the provisions of the RPC apply suppletorily as per Article 10.
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Relevant Provision:
Article 64. Rules for the application of penalties which contain three periods. —
In cases in which the penalties prescribed by the law contain three periods,
whether it be a single divisible penalty or composed of three different penalties,
each one of which forms a period in accordance with the provisions of Articles
76 and 77, the court shall observe for the application of the penalty the following
rules, according to whether there are or are no mitigating or aggravating
circumstances:
1. When there are neither aggravating nor mitigating circumstances, they shall
impose the penalty prescribed by law in its medium period.
2. When only a mitigating circumstance is present in the commission of the act,
they shall impose the penalty in its minimum period.
3. When only an aggravating circumstance is present in the commission of the
act, they shall impose the penalty in its maximum period.
4. When both mitigating and aggravating circumstances are present, the court
shall reasonably offset those of one class against the other according to their
relative weight.
5. When there are two or more mitigating circumstances and no aggravating
circumstances are present, the court shall impose the penalty next lower to
that prescribed by law, in the period that it may deem applicable, according
to the number and nature of such circumstances.
6. Whatever may be the number and nature of the aggravating circumstances,
the courts shall not impose a greater penalty than that prescribed by law, in
its maximum period.
7. Within the limits of each period, the court shall determine the extent of the
penalty according to the number and nature of the aggravating and
mitigating circumstances and the greater and lesser extent of the evil
produced by the crime.
—————————————————————————————————
Q: B was convicted of the crime of homicide, which is punishable by a
divisible penalty. In the commission of the crime there was one
aggravating circumstance and no mitigating circumstance. What is the
penalty?
Reclusion temporal in its maximum period.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
JS: In IS Law, the maximum and the minimum penalty must be determined. In
applying the IS Law, the court is not allowed to impose a straight penalty unless
it will fall under the exceptions. If the maximum penalty is not correctly
determined, the minimum penalty will definitely be wrong.
In IS Law, the minimum penalty is just one degree lower from the maximum
penalty.
In the case above:
Q. 1 aggravating, No mitigating: Temporal in its maximum period.
Q. 1 mitigating, No aggravating: Temporal in its minimum period.
Q. No mitigating, No aggravating: Temporal in its medium period.
Q. 3 aggravating, 2 mitigating: Temporal in its maximum. Offset the number
of the aggravating to the mitigating circumstances.
Q. 3 mitigating, 2 aggravating: Temporal in its minimum.
TN: There can only be a privileged mitigating circumstance from two or more
ordinary mitigating circumstances if there is no aggravating circumstance.
Hence, if there are two or more mitigating circumstances and an aggravating
circumstance, offset the numbers to each other.
Q: Juan was convicted of the crime of homicide. The court appreciated
two ordinary mitigating circumstances of spontaneous plea of guilty and
voluntary surrender. Using the IS Law, what is the maximum penalty for
Juan?
Prision mayor in its medium period. The penalty is lowered by one degree
because of the presence of a privileged mitigating circumstance.
JS: If there are 3 mitigating circumstances and no aggravating circumstance,
the penalty will be prision mayor in its minimum period. if there are 4, lower the
penalty by two degrees, but a penalty can be lowered only up to two degrees. It
cannot be lowered anymore, otherwise there is no penalty.
Q: In the complex crime of estafa through falsification of public
documents, which is the more serious offense?
Falsification of public documents which is punishable by prision mayor.
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Q: Jose was convicted of the crime of estafa through falsification of public
document, no mitigating, no aggravating, what is the penalty?
Prision mayor in its maximum period.
It is always based on the most serious offense in its maximum period in
accordance with Article 48 which provides that the penalties for complex crimes
shall always be imposed in the maximum period.
TN: The penalties are already amended by R.A. 10951.
Q: If Jose is a minor, a 17-year-old who acted with discernment, what is
the penalty?
Prision correccional in its maximum period, or one degree lower to be imposed
in its maximum period.
Privileged mitigating circumstances lower the penalty to a degree, even in case
of a complex crime. However, in accordance with Article 48, the same shall be
imposed in its maximum period.
TN: Above 15, below 18 requires discernment for there to be criminal liability.
Otherwise, minority (who acted without discernment) is an exempting
circumstance where there is no criminal liability.
RECAP: There are only three (3) privileged mitigating circumstances:
1. If the act is not wholly excusable in reference to justifying and exempting
circumstances when not all of the elements are present;
2. Minority, under R.A. 9344; and
3. When there are two or more ordinary mitigating circumstances and no
aggravating circumstance.
JS: In case of homicide where there are 3 mitigating, no aggravating
circumstances, the penalty is prision mayor in its minimum. But if there are 4
mitigating circumstances, and no aggravating, lower that by two degrees in the
medium period. If there are 5 mitigating circumstances, use the fifth one to place
the penalty in the minimum period.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
The penalty can only be lowered up to two degrees; otherwise, it will be absurd
that the accused may not suffer any penalty after graduating the penalties.
TN: But JS disclaimed the following meeting that the penalty can only be lowered
up to two degrees. He said that the penalty can be lowered up to 3 degrees.
Other Relevant Provisions:
Article 65. Rule in cases in which the penalty is not composed of three periods.
— In cases in which the penalty prescribed by law is not composed of three
periods, the courts shall apply the rules contained in the foregoing articles,
dividing into three equal portions the time included in the penalty prescribed, and
forming one period of each of the three portions.
Article 66. Imposition of fines. — In imposing fines the courts may fix any
amount within the limits established by law; in fixing the amount in each case
attention shall be given, not only to the mitigating and aggravating
circumstances, but more particularly to the wealth or means of the culprit.
Article 67. Penalty to be imposed when not all the requisites of exemption of
the fourth circumstance of Article 12 are present. — When all the conditions
required in circumstances Number 4 of Article 12 of this Code to exempt from
criminal liability are not present, the penalty of arresto mayor in its maximum
period to prision correccional in its minimum period shall be imposed upon the
culprit if he shall have been guilty of a grave felony, and arresto mayor in its
minimum and medium periods, if of a less grave felony.
Article 68. Penalty to be imposed upon a person under eighteen years of age.
— When the offender is a minor under eighteen years and his case is one
coming under the provisions of the paragraph next to the last of Article 80 of this
Code, the following rules shall be observed:
1. Upon a person under fifteen but over nine years of age, who is not
exempted from liability by reason of the court having declared that he
acted with discernment, a discretionary penalty shall be imposed, but
always lower by two degrees at least than that prescribed by law for the
crime which he committed. (This provision is rendered inoperative by
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 CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.

Section 6 of R.A. 9344 since a child 15 years or under is exempt from
criminal liability.)
2. Upon a person over fifteen and under eighteen years of age the penalty
next lower than that prescribed by law shall be imposed, but always in
the proper period.
Article 69. Penalty to be imposed when the crime committed is not wholly
excusable. — A penalty lower by one or two degrees than that prescribed by
law shall be imposed if the deed is not wholly excusable by reason of the lack
of some of the conditions required to justify the same or to exempt from criminal
liability in the several cases mentioned in Article 11 and 12, provided that the
majority of such conditions be present. The courts shall impose the penalty in
the period which may be deemed proper, in view of the number and nature of
the conditions of exemption present or lacking.
Relevant Provision:
Article 70. Successive service of sentences. — When the culprit has to serve
two or more penalties, he shall serve them simultaneously if the nature of the
penalties will so permit; otherwise, the following rules shall be observed:
In the imposition of the penalties, the order of their respective severity shall be
followed so that they may be executed successively or as nearly as may be
possible, should a pardon have been granted as to the penalty or penalties first
imposed, or should they have been served out.
10. Temporary absolute disqualification
11. Suspension from public office, the right to vote and be voted for, the right
to follow a profession or calling, and
12. Public censure.
Notwithstanding the provisions of the rule next preceding, the maximum duration
of the convict's sentence shall not be more than three-fold the length of time
corresponding to the most severe of the penalties imposed upon him. No other
penalty to which he may be liable shall be inflicted after the sum total of those
imposed equals the said maximum period.
Such maximum period shall in no case exceed forty years.
In applying the provisions of this rule, the duration of perpetual penalties (pena
perpetua) shall be computed at thirty years. (As amended by Com. Act. No. 217,
November 24, 1936)
——————————————————————————————————
Q: What will happen if the accused was convicted for two or more offenses
and how will he serve his penalty?
If he was convicted for two or more offenses and the conviction consists of
deprivation of liberty, he shall serve his penalty successively under Art. 70 of the
RPC, according to the most severe penalty but not to exceed 40 years.
If the penalties imposed do not consist of deprivation of liberty, the accused shall
serve it simultaneously.

For the purpose of applying the provisions of the next preceding paragraph the TN: If the accused already served his penalty for at least 30 years, he shall be
respective severity of the penalties shall be determined in accordance with the eligible for pardon by the President.
following scale:
Q: What are the penalties that can be served simultaneously?
1. Death
1. Perpetual absolute disqualification
2. Reclusion perpetua 2. Perpetual special disqualification
3. Reclusion temporal 3. Temporary absolute disqualification
4. Prision mayor 4. Temporary special disqualification
5. Prision correccional 5. Suspension
6. Arresto mayor 6. Destierro
7. Arresto menor 7. Public censure
8. Fine and bond to keep the peace
8. Destierro
9. Civil interdiction, and
9. Perpetual absolute disqualification 10. Confiscation and payment of costs

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 CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.

Other Relevant Provisions:
Article 71. Graduated scales. — In the case in which the law prescribed a
penalty lower or higher by one or more degrees than another given penalty, the
rules prescribed in Article 61 shall be observed in graduating such penalty.
The lower or higher penalty shall be taken from the graduated scale in which is
comprised the given penalty.
The courts, in applying such lower or higher penalty, shall observe the following
graduated scales:
Q: How will the civil liabilities be enforced in cases where the money of the
accused is not sufficient to pay off the civil liability?
Art. 72 of the RPC provides that there will be a preference in the order of
payment of civil liabilities, and it shall be satisfied by following the chronological
order of the dates of the final judgment rendered against him beginning with the
first in the order of time.
Q: What about if the accused is insolvent?
Nothing can be done.

SCALE NO. 1 INDETERMINATE SENTENCE LAW

1. Death
2. Reclusion perpetua IS LAW is mandatory not only for offenses punishable by RPC but also for
3. Reclusion temporal offenses punishable by special laws unless it falls under the exceptions. This
4. Prision mayor means that the court must determine the maximum penalty and minimum
5. Prision correccional penalty.
6. Arresto mayor
7. Destierro Q: Why is it important to determine the maximum penalty and minimum
8. Arresto menor penalty?
9. Public censure
Because it is favorable to the accused. If the accused has already served the
10. Fine.
minimum of his penalty, then he is already eligible for parole. If he is granted
parole, there are certain conditions imposed upon him.
SCALE NO. 2
1. Perpetual absolute disqualification Q: What will happen if the accused violates any condition of his parole?
2. Temporary absolute disqualification
3. Suspension from public office, the right to vote and be voted for, and the He will be re-arrested but he will only serve the unexpired portion of his penalty.
right to follow a profession or calling
General Rule: IS LAW is mandatory not only for offenses punishable by RPC
4. Public censure
but also for offenses punishable by special laws.
5. Fine.
Exceptions:
Article 72. Preference in the payment of the civil liabilities. — The civil liabilities 1. If the maximum term of imprisonment does not exceed one year
of a person found guilty of two or more offenses shall be satisfied by following 2. Those convicted of offenses punishable by death penalty, reclusion
the chronological order of the dates of the judgments rendered against him, perpetua or life imprisonment
beginning with the first in order of time. 3. Those convicted of treason, conspiracy or proposal to commit treason
4. Those convicted of misprision of treason, sedition, rebellion or espionage
5. Those convicted of piracy
6. Those who are habitual delinquents

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7. Those who have escaped from confinement or evaded service of sentence
8. Those who violated the terms of conditional pardon granted to them
9. Those who are already sentenced by final judgment at the time of effectivity
of Act. 4103 (ISLAW)
10. Those penalized with suspension or destierro
Q: What is the most important exception where indeterminate sentence
law must not be applied?
If the maximum term of imprisonment does not exceed one year.
Art. 64 provides for the effects of the presence of aggravating and mitigating
circumstances. To get the minimum penalty, lower the maximum penalty by one
degree.
1 aggravating + 1 mitigating = Medium
1 aggravating + no mitigating = Maximum
1 mitigating + no aggravating = Minimum
2 aggravating + 2 mitigating = Medium
3 aggravating + 2 mitigating = Maximum
3 mitigating + 2 aggravating = Minimum
2 mitigating + no aggravating = One degree lower
Q: A was convicted of homicide with the penalty of reclusion temporal.
Using the ISLAW what is the maximum penalty?
Reclusion temporal in its medium period because there were no aggravating or
mitigating circumstances.
Q: What is the minimum penalty?
Lowered by one degree = prision mayor. The period is discretionary upon the
court.
Q: Same facts. The court appreciated 1 mitigating circumstance of
voluntary surrender. What is the maximum penalty of A?
Reclusion temporal in its minimum period.
Q: What is the minimum penalty?
One degree lower, period is discretionary upon the court.
Q: Same facts. There is one aggravating circumstance, no mitigating. What
is the maximum penalty?
Reclusion temporal in its maximum period.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Q: What is the minimum penalty?
One degree lower, the period is discretionary upon the court.
Q: A was 17 years old and acted with discernment when the crime of
homicide was committed. What is the maximum penalty?
Prision mayor in its medium.
Q: What is the minimum penalty?
Lowered by one degree, prision correccional; the period is discretionary on the
part of the court.
Q: A who was a child in conflict with the law spontaneously pleaded guilty
and voluntarily surrendered. What is the maximum penalty?
Lowered by two degrees, prision correccional in its medium period.
Q: What is the minimum penalty?
One degree lower, arresto mayor; period discretionary upon the court.
Q: Same facts. There were 3 mitigating circumstances plus minority. What
is the maximum penalty of A?
Prison correctional in its minimum period.
Q: What is the minimum penalty?
Arresto mayor, the period is discretionary upon the court.
Q: There is lack of sufficient provocation or threat on the part of the
offended party and the accused acted with passion obfuscation. Can one
absorb the other?
No, both can co-exist. Two ordinary mitigating circumstances can be
appreciated.
TN:
● Passion or obfuscation and vindication can only be treated as one
mitigating circumstance because they cannot co-exist with each other.
● Provocation to vindication = 2 mitigating circumstances
● Provocation to passion = 2 mitigating circumstances
● Voluntary surrender and plea of guilty can be appreciated as two
ordinary mitigating circumstances
Q: How is ISLAW applied in crimes that are punishable by special law?
The maximum penalty should not be beyond the maximum period of the penalty
provided for by the special law, and the minimum penalty should not be lowered
than that provided.
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R.A. No. 10707 | PROBATION LAW
Probation is not mandatory, unlike ISLAW, because it is only a privilege and not
a right. It is discretionary on the part of the court.
Relevant Provision:
Section 1, RA 10707. Section 4 of Presidential Decree No. 968, as amended,
is hereby further amended to read as follows:
“SEC. 4. Grant of Probation. — Subject to the provisions of this Decree, the
trial court may, after it shall have convicted and sentenced a defendant for
a probationable penalty and upon application by said defendant within the
period for perfecting an appeal, suspend the execution of the sentence and
place the defendant on probation for such period and upon such terms and
conditions as it may deem best. No application for probation shall be
entertained or granted if the defendant has perfected the appeal from the
judgment of conviction: Provided, That when a judgment of conviction
imposing a non-probationable penalty is appealed or reviewed, and such
judgment is modified through the imposition of a probationable penalty, the
defendant shall be allowed to apply for probation based on the modified
decision before such decision becomes final. The application for probation
based on the modified decision shall be filed in the trial court where the
judgment of conviction imposing a non-probationable penalty was rendered,
or in the trial court where such case has since been re-raffled. In a case
involving several defendants where some have taken further appeal, the
other defendants may apply for probation by submitting a written application
and attaching thereto a certified true copy of the judgment of conviction.
“The trial court shall, upon receipt of the application filed, suspend the
execution of the sentence imposed in the judgment.
“This notwithstanding, the accused shall lose the benefit of probation should
he seek a review of the modified decision which already imposes a
probationable penalty.
“Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. The filing of the application shall be deemed a
waiver of the right to appeal.
“An order granting or denying probation shall not be appealable.”
——————————————————————————————————
Q: Where is an application for probation filed?
In the court which rendered judgement.
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CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
The court, upon receipt of the application for probation, shall issue an order
directing the parole officer and probation office to conduct an investigation
relative to the application and submit to court its report within 60 days from
receipt of the court’s order. Upon receipt of the recommendation of the probation
office, the court has 15 days to act on it.
TN: Probation office is only recommendatory.
One of the requirements for the application for probation is that the maximum
term of imprisonment must not exceed six years. Probation should be filed
within the period of perfecting an appeal. An application for probation is deemed
a waiver to the accused’s right to appeal.
Q: If the accused appealed his case and the appellate court modified the
penalty such that the maximum does not exceed six years, can he still
apply for probation?
Yes, but if he questions the decision of the probation again, i.e. if he goes to the
Supreme Court, he is no longer allowed to question the decision.
TN: Probation can be applied for even if the penalty is only a fine.
Relevant Provision:
Section 2, RA 10707. Section 9 of the same Decree, as amended, is hereby
further amended to read as follows:
“SEC. 9. Disqualified Offenders. — The benefits of this Decree shall not be
extended to those:
“a. sentenced to serve a maximum term of imprisonment of more than six
(6) years;
“b. convicted of any crime against the national security;
“c. who have previously been convicted by final judgment of an offense
punished by imprisonment of more than six (6) months and one (1) day
and/or a fine of more than one thousand pesos (P1,000.00);
“d. who have been once on probation under the provisions of this Decree;
and
“e. who are already serving sentence at the time the substantive provisions
of this Decree became applicable pursuant to Section 33 hereof.”
——————————————————————————————————
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Q: What are the exceptions to probation?
1. Disqualified offenders. If the penalty is more than 6 years, the accused
is not eligible for probation
2. Convicted of any crime against national security
3. Previously convicted of final judgement with an offense of imprisonment
of not less than six months and 1 day, and a fine not less than P1,000.
Relevant Provision:
Section 3, RA 10707. Section 16 of the same Decree, as amended, is hereby
further amended to read as follows:
“SEC. 16. Termination of Probation. — After the period of probation and
upon consideration of the report and recommendation of the probation
officer, the court may order the final discharge of the probationer upon
finding that he has fulfilled the terms and conditions of his probation and
thereupon the case is deemed terminated.
“The final discharge of the probationer shall operate to restore to him all civil
rights lost or suspended as a result of his conviction and to totally extinguish
his criminal liability as to the offense for which probation was granted.
“The probationer and the probation officer shall each be furnished with a
copy of such order.”
——————————————————————————————————
Sec 16 of RA 10707 states that once the accused has complied with the
conditions of his probation, the court will issue a certificate of final discharge
which means that there is a total extinguishment of criminal liability.
Q: What about if the court imposed a condition that the accused, during
the period of probation will not work, is it valid?
No. The conditions must not deprive the accused of his rights under the Art. III
of the Constitution.
Q: During the period of probation, the accused violated one of the
conditions imposed upon him. The court rearrested the accused, and
immediately ordered him to serve the sentence originally imposed upon
him. Is the Court correct?
No. The Court must conduct a summary hearing to determine whether there was
a valid justification of the violation of the accused. During such period of
summary hearing, the accused is allowed to use the bond which he posted.
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CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
TN: In Probation Law, the accused who violated one of the conditions of his
probation will serve the original sentence imposed upon him. In ISLAW, the
accused will only serve the unexpired portion of the sentence.
Q: What will happen to the accused during the period of application for
probation?
He can make use of his bond; or if there is no bond, he can post a bond while
waiting for his application for probation; or the court may release him on
recognizance.
JS: Always attach a certificate of indigency in the bond application.
TN: The application for probation only affects the criminal aspects of the case,
and not the civil aspect. The civil aspect can be executed while waiting for the
application for probation. An application for probation suspends the accessory
penalty, but not civil liability. This is similar to ISLAW where civil liability is not
extinguished.
Other Relevant Provisions:
Section 4, RA 10707. Section 24 of the same Decree is hereby amended to
read as follows:
“SEC. 24. Miscellaneous Powers of Regional, Provincial and City Probation
Officers. — Regional, Provincial or City Probation Officers shall have the
authority within their territorial jurisdiction to administer oaths and
acknowledgments and to take depositions in connection with their duties and
functions under this Decree. They shall also have, with respect to
probationers under their care, the powers of a police officer. They shall be
considered as persons in authority.”
Section 5, RA 10707. Section 27 of the same Decree is hereby amended to
read as follows:
“SEC. 27. Field Assistants, Subordinate Personnel. – Regional, Provincial
or City Probation Officers shall be assisted by such field assistants and
subordinate personnel as may be necessary to enable them to carry out their
duties effectively.”
Section 6, RA 10707. Section 28 of the same Decree is hereby amended to
read as follows:
“SEC. 28. Volunteer Probation Assistants (VPAs). — To assist the Chief
Probation and Parole Officers in the supervised treatment program of the
probationers, the Probation Administrator may appoint citizens of good
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 CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.

repute and probity, who have the willingness, aptitude, and capability to act The same rules shall be observed with regard to fines that do not consist of a
as VPAs. fixed amount, but are made proportional.
“VPAs shall not receive any regular compensation except for reasonable
transportation and meal allowances, as may be determined by the Probation Article 76. Legal period of duration of divisible penalties. — The legal period of
Administrator, for services rendered as VPAs. duration of divisible penalties shall be considered as divided into three parts,
“They shall hold office for a two (2)-year term which may be renewed or forming three periods, the minimum, the medium, and the maximum in the
recalled anytime for a just cause. Their functions, qualifications, continuance manner shown in the following table:
in office and maximum case loads shall be further
prescribed under the implementing rules and regulations of this Act. TABLE SHOWING THE DURATION OF DIVISIBLE PENALTIES AND THE
“There shall be a reasonable number of VPAs in every regional, provincial, TIME INCLUDED IN EACH OF THEIR PERIODS
and city probation office. In order to strengthen the functional relationship of
VPAs and the Probation Administrator, the latter shall encourage and
support the former to organize themselves in the national, regional,
provincial, and city levels for effective utilization, coordination, and
sustainability of the volunteer program.”

Provisions common in the last two preceding sections

Article 73. Presumption in regard to the imposition of accessory penalties. —

Whenever the courts shall impose a penalty which, by provision of law, carries
with it other penalties, according to the provisions of Articles 40, 41, 42, 43, 44
and 45 of this Code, it must be understood that the accessory penalties are
also imposed upon the convict.

Article 74. Penalty higher than reclusion perpetua in certain cases. — In cases
in which the law prescribes a penalty higher than another given penalty, without
specifically designating the name of the former, if such higher penalty should be
that of death, the same penalty and the accessory penalties of Article 40, shall
be considered as the higher penalty. Article 77. When the penalty is a complex one composed of three distinct
penalties. — In cases in which the law prescribes a penalty composed of three
Article 75. Increasing or reducing the penalty of fine by one or more degrees. distinct penalties, each one shall form a period; the lightest of them shall be the
— Whenever it may be necessary to increase or reduce the penalty of fine by minimum, the next the medium, and the most severe the maximum period.
one or more degrees, it shall be increased or reduced, respectively, for each
degree, by one-fourth of the maximum amount prescribed by law, without Whenever the penalty prescribed does not have one of the forms specially
however, changing the minimum. provided for in this Code, the periods shall be distributed, applying by analogy
the prescribed rules.

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EXECUTION AND SERVICE OF PENALTIES
General provisions
Relevant Provisions:
Article 78. When and how a penalty is to be executed. — No penalty shall be
executed except by virtue of a final judgment.
A penalty shall not be executed in any other form than that prescribed by law,
nor with any other circumstances or incidents than those expressly authorized
thereby.
In addition to the provisions of the law, the special regulations prescribed for the
government of the institutions in which the penalties are to be suffered shall be
observed with regard to the character of the work to be performed, the time of
its performance, and other incidents connected therewith, the relations of the
convicts among themselves and other persons, the relief which they may
receive, and their diet.
The regulations shall make provision for the separation of the sexes in different
institutions, or at least into different departments and also for the correction and
reform of the convicts.
Article 79. Suspension of the execution and service of the penalties in case of
insanity. — When a convict shall become insane or an imbecile after final
sentence has been pronounced, the execution of said sentence shall be
suspended only with regard to the personal penalty, the provisions of the second
paragraph of circumstance number 1 of Article 12 being observed in the
corresponding cases.
If at any time the convict shall recover his reason, his sentence shall be
executed, unless the penalty shall have prescribed in accordance with the
provisions of this Code.
The respective provisions of this section shall also be observed if the insanity or
imbecility occurs while the convict is serving his sentence.
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Penalties cannot be executed unless there is a final judgment.
Q: When is conviction deemed final and executory?
1. When no appeal is filed within 15 days from the promulgation;
2. When one waives his right to appeal;
3. When one applies for probation;
4. When, even before the lapse of the 15-day period to appeal, the accused
has already commenced to serve his sentence.
TN: Judgment of acquittal cannot be appealed.
Q: What is the effect if the accused was insane at the time of the
commission of a crime?
It is an exempting circumstance.
Q: What will happen if he was sane but became insane during trial because
of stress?
The proceeding becomes suspended and he will be brought to the National
Center for Mental Health in Mandaluyong City for mental health examination.
(Art. 79 RPC)
Execution of principal penalties
Article 80. Suspension of sentence of minor delinquents. — Whenever a minor
of either sex, under sixteen years of age at the date of the commission of a grave
or less grave felony, is accused thereof, the court, after hearing the evidence in
the proper proceedings, instead of pronouncing judgment of conviction, shall
suspend all further proceedings and shall commit such minor to the custody or
care of a public or private, benevolent or charitable institution, established under
the law of the care, correction or education of orphaned, homeless, defective,
and delinquent children, or to the custody or care of any other responsible
person in any other place subject to visitation and supervision by the Director of
Public Welfare or any of his agents or representatives, if there be any, or
otherwise by the superintendent of public schools or his representatives, subject
to such conditions as are prescribed hereinbelow until such minor shall have
reached his majority age or for such less period as the court may deem proper.
Page 61 | 77

The court, in committing said minor as provided above, shall take into
consideration the religion of such minor, his parents or next of kin, in order to
avoid his commitment to any private institution not under the control and
supervision of the religious sect or denomination to which they belong.
The Director of Public Welfare or his duly authorized representatives or agents,
the superintendent of public schools or his representatives, or the person to
whose custody or care the minor has been committed, shall submit to the court
every four months and as often as required in special cases, a written report on
the good or bad conduct of said minor and the moral and intellectual progress
made by him.
The suspension of the proceedings against a minor may be extended or
shortened by the court on the recommendation of the Director of Public Welfare
or his authorized representative or agents, or the superintendent of public
schools or his representatives, according as to whether the conduct of such
minor has been good or not and whether he has complied with the conditions
imposed upon him, or not. The provisions of the first paragraph of this article
shall not, however, be affected by those contained herein.
If the minor has been committed to the custody or care of any of the institutions
mentioned in the first paragraph of this article, with the approval of the Director
of Public Welfare and subject to such conditions as this official in accordance
with law may deem proper to impose, such minor may be allowed to stay
elsewhere under the care of a responsible person.
If the minor has behaved properly and has complied with the conditions imposed
upon him during his confinement, in accordance with the provisions of this
article, he shall be returned to the court in order that the same may order his
final release.
In case the minor fails to behave properly or to comply with the regulations of
the institution to which he has been committed or with the conditions imposed
upon him when he was committed to the care of a responsible person, or in case
he should be found incorrigible or his continued stay in such institution should
be inadvisable, he shall be returned to the court in order that the same may
render the judgment corresponding to the crime committed by him.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
The expenses for the maintenance of a minor delinquent confined in the
institution to which he has been committed, shall be borne totally or partially by
his parents or relatives or those persons liable to support him, if they are able to
do so, in the discretion of the court; Provided, That in case his parents or
relatives or those persons liable to support him have not been ordered to pay
said expenses or are found indigent and cannot pay said expenses, the
municipality in which the offense was committed shall pay one-third of said
expenses; the province to which the municipality belongs shall pay one-third;
and the remaining one-third shall be borne by the National Government:
Provided, however, That whenever the Secretary of Finance certifies that a
municipality is not able to pay its share in the expenses above mentioned, such
share which is not paid by said municipality shall be borne by the National
Government. Chartered cities shall pay two-thirds of said expenses; and in case
a chartered city cannot pay said expenses, the internal revenue allotments
which may be due to said city shall be withheld and applied in settlement of said
indebtedness in accordance with section five hundred and eighty-eight of the
Administrative Code.
Execution and principal penalties
Other Relevant Provisions:
Article 81. When and how the death penalty is to be executed. — The death
sentence shall be executed with reference to any other and shall consist in
putting the person under sentence to death by electrocution. The death
sentence shall be executed under the authority of the Director of Prisons,
endeavoring so far as possible to mitigate the sufferings of the person under
sentence during electrocution as well as during the proceedings prior to the
execution.
If the person under sentence so desires, he shall be anaesthetized at the
moment of the electrocution.
Article 82. Notification and execution of the sentence and assistance to the
culprit. — The court shall designate a working day for the execution but not the
hour thereof; and such designation shall not be communicated to the offender
before sunrise of said day, and the execution shall not take place until after the
expiration of at least eight hours following the notification, but before sunset.
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During the interval between the notification and the execution, the culprit shall,
in so far as possible, be furnished such assistance as he may request in order
to be attended in his last moments by priests or ministers of the religion he
professes and to consult lawyers, as well as in order to make a will and confer
with members of his family or persons in charge of the management of his
business, of the administration of his property, or of the care of his descendants.
Article 83. Suspension of the execution of the death sentence. — The death
sentence shall not be inflicted upon a woman within the three years next
following the date of the sentence or while she is pregnant, nor upon any person
over seventy years of age. In this last case, the death sentence shall be
commuted to the penalty of reclusion perpetua with the accessory penalties
provided in Article 40.
——————————————————————————————————
Death penalty: RA 8177 repealed by RA 9346.
The following shall not be sentenced to death, or death sentence is suspended if
the convict is a:
1. Woman while pregnant
2. Woman within 1 year after delivery
3. Convict who became insane after final sentence
4. Person over 70 years old
Other Relevant Provisions:
Article 84. Place of execution and persons who may witness the same. — The
execution shall take place in the penitentiary of Bilibid in a space closed to the
public view and shall be witnessed only by the priests assisting the offender and
by his lawyers, and by his relatives, not exceeding six, if he so request, by the
physician and the necessary personnel of the penal establishment, and by such
persons as the Director of Prisons may authorize.
Article 85. Provisions relative to the corpse of the person executed and its
burial. — Unless claimed by his family, the corpse of the culprit shall, upon the
completion of the legal proceedings subsequent to the execution, be turned over
to the institute of learning or scientific research first applying for it, for the
purpose of study and investigation, provided that such institute shall take charge
of the decent burial of the remains. Otherwise, the Director of Prisons shall order
the burial of the body of the culprit at government expense, granting permission
to be present thereat to the members of the family of the culprit and the friends
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
of the latter. In no case shall the burial of the body of a person sentenced to
death be held with pomp.
——————————————————————————————————
Q: Before he was subjected to lethal injection, Juan Dela Cruz made a
donation to a friend who took care of him while he was in jail. Is the
donation valid?
It depends. If it is a donation inter vivos and Juan dies from the lethal injection,
the donation is valid. If he did not die, it is invalid because of the accessory
penalty of civil interdiction.
Q: Is there a criminal liability for burying a person who died from lethal
injection with a pomp?
Yes, Art. 85 of the RPC states that “in no case shall the burial of the body of a
person sentenced to death be held with pomp”.
TN: To “bury with pomp the body of a person who has been legally executed” is
to hold a hero's burial for a person legally executed. This is a violation of public
order.
Other Relevant Provisions:
Article 86. Reclusion perpetua, reclusion temporal, prision mayor, prision
correccional and arresto mayor. — The penalties of reclusion perpetua,
reclusion temporal, prision mayor, prision correccional and arresto mayor, shall
be executed and served in the places and penal establishments provided by the
Administrative Code in force or which may be provided by law in the future.
Article 87. Destierro. — Any person sentenced to destierro shall not be
permitted to enter the place or places designated in the sentence, nor within the
radius therein specified, which shall be not more than 250 and not less than 25
kilometers from the place designated.
Article 88. Arresto menor. — The penalty of arresto menor shall be served in
the municipal jail, or in the house of the defendant himself under the surveillance
of an officer of the law, when the court so provides in its decision, taking into
consideration the health of the offender and other reasons which may seem
satisfactory to it.
——————————————————————————————————
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The Supreme Court issued AM 20-06-14-SC (that will take effect on November
2, 2020) pursuant to RA 13362 where the accused was convicted of a penalty
of arresto menor and arresto mayor.
Process:
The accused can file a Motion to Render Community Service
(this is only allowed when he did not appeal his conviction)
>> the Court will notify the representatives of Barangay, Probation office,
Municipal Social Welfare and Development Office
>> the Court will conduct a hearing in the presence of the representatives
>> the Court will resolve the motion within 5 days
EXTINCTION OF CRIMINAL LIABILITY
TOTAL EXTINCTION OF CRIMINAL LIABILITY
Relevant Provision:
Article 89. How criminal liability is totally extinguished. — Criminal liability is
totally extinguished:
1. By the death of the convict, as to the personal penalties; and as to
pecuniary penalties, liability therefor is extinguished only when the death
of the offender occurs before final judgment.
2. By service of the sentence;
3. By amnesty, which completely extinguishes the penalty and all its effects;
4. By absolute pardon;
5. By prescription of the crime;
6. By prescription of the penalty;
7. By the marriage of the offended woman, as provided in Article 344 of this
Code.
See additional modes of extinction under R.A. No. 8353 and P.D. No. 968 as
amended by R.A. No. 10707, November 26, 2015.
—————————————————————————————————
Grounds for Extinguishment of Criminal Liability:
1. Marriage of the offended woman
This is applicable in cases of rape, seduction, abduction, and acts of
lasciviousness. (This did not change even if rape is now classified as a public
offense.)
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
To be a ground for extinguishment of criminal liability, the marriage must have
been entered into in GOOD FAITH. If the accused merely married the private
offended party because he wants to evade criminal liability, that is not marriage
in good faith which will be a ground for extinguishment of criminal liability.
2. Absolute Pardon and Amnesty
Absolute Pardon
It is granted by the President of the Republic of the Philippines after there is a
final conviction.
TN: Pardon on the part of the private offended party in Art. 23 of the RPC is not
a ground for the extinguishment of criminal liability.
Q: Will the pardon granted by the President also extinguish the accessory
penalties?
It depends. If the pardon expressly provides that the accessory penalties are
also included, the accessory penalties are also extinguished; otherwise, they will
subsist.
Amnesty
It is granted to a class of individuals (political offenders) with political offenses.
It wipes out the vestiges of the act as if the act was never committed. It must be
with the concurrence of the Congress of the Philippines.
TN: Both amnesty and absolute pardon will not extinguish the civil liability of the
accused.
1. Death
Q: What is the effect of death?
It depends.
General Rule: If it is the private offended party who died, it will not extinguish
the criminal liability because the private offended party is only a witness to the
government.
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Exception: In private offenses of seduction, abduction, and acts of
lasciviousness which requires that the filing of the complaint be preceded by the
complaint of the private offended party.
If it is the accused who died, determine whether the accused died before final
judgment or after final judgment has been rendered.
In connection to the accused’s criminal liability. The death of the accused
extinguishes the criminal liability whether he died before or after final judgment
because one of the characteristics of penalty is that it is personal in nature.
In connection with the accused’s civil liability.
If the accused dies before final judgment – the civil liability is totally
extinguished.
If the accused dies after final judgment – the civil liability survives.
Q: When does judgment become final?
1. When there is no appeal within 15 days from promulgation of judgment
2. When there is a waiver of one’s right to appeal
3. When the accused filed an application for probation because it is deemed
waiver of one’s right to appeal.
4. When even before the lapse of the 15-day period to appeal, the accused
has already commenced to serve his sentence.
Q: Is there an exception to the rule that if the accused dies before final
judgment, both his civil liability and criminal liability are extinguished?
People vs. Bayotas: if the civil liability is predicated on other sources of obligation
(e.g. law, contracts, quasi-contracts, quasi-delicts), the civil liability will survive.
Example of a law is Art. 33 of the Civil Code on independent civil actions.
Examples of quasi-contracts are negotiorum gestio and solutio indebiti. In these
cases, the civil liability will survive.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Q: In these cases, since the accused is already dead, against whom should
the case be filed?
It depends on the source of obligation. If it is based on a quasi-delict or results
to injury to person or property, it may be filed against the executor or
administrator of the accused’s estate. If it arose out of a contract, it may be filed
against the estate of the accused or his legal representatives.
If the accused died while on appeal, the decision is not yet final and executory,
therefore, the rule that both the criminal and civil liability is extinguished applies,
except in instances discussed in People vs. Bayotas.
Relevant Provisions:
Article 90. Prescription of Crimes. — Crimes punishable by death, reclusión
perpetua or reclusion temporal shall prescribe in twenty years.
Crimes punishable by other afflictive penalties shall prescribe in fifteen years.
Those punishable by a correctional penalty shall prescribe in ten years; with the
exception of those punishable by arresto mayor, which shall prescribe in five
years.
The crime of libel or other similar offenses shall prescribe in one years.
The offenses of oral defamation and slander by deed shall prescribe in six
months.
Light offenses prescribe in two months.
When the penalty fixed by law is a compound one, the highest penalty shall be
made the basis of the application of the rules contained in the first, second, and
third paragraphs of this article. (As amended by R.A. No. 4661).
Article 91. Computation of Prescription of Offenses. — The period of
prescription shall commence to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents, and shall be
interrupted by the filing of the complaint or information, and shall commence to
run again when such proceedings terminate without the accused being
convicted or acquitted, or are unjustifiably stopped for any reason not imputable
to him.
The term of prescription shall not run when the offender is absent from the
Philippine Archipelago.
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Prescription of Crimes is the forfeiture or loss of the right of the State to
prosecute the offender after the lapse of a certain time.
Prescriptive Periods:
1. Death, reclusion perpetua, reclusion temporal – 20 years
2. Afflictive Penalties – 15 years
3. Correctional Penalties (except arresto mayor) – 10 years
4. Arresto mayor – 5 years
5. Libel and other similar offenses – 1 year
6. Grave Oral Defamation and Grave Slander by Deed – 6 months
7. Light Offenses – 2 months
TN: For complex crimes, the prescriptive period is based on the most serious
offense.
Prescriptive Periods Under Special Laws (based on Act No. 3326)
If the special law provides for a prescriptive period, that period must be followed;
otherwise, the following periods must be followed:
1. Only fine or imprisonment not more than 1 month or both – 1 year
2. Imprisonment for more than 1 month but less than 2 years – 4 years
3. Imprisonment for 2 years or more but less than 6 years – 8 years
4. Imprisonment for 6 years or more – 12 years
5. Offenses under Internal Revenue Laws – 5 years
6. Violations of municipal ordinances – 2 months
7. Violations of the regulations or conditions of certificate of convenience by
the Public Service Commission – 2 months
Q: When will the counting of prescriptive period commence?
It depends. If the crime is known, start counting from the day when the crime
was committed. In counting, exclude the first day and include the last day.
If the crime is unknown, the prescriptive period will only commence upon
discovery of the crime (not discovery of the offender) by:
a. Persons in authority;
b. Agent of persons in authority; or
c. Private offended party.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Q: If A killed B through treachery and A threw the dead body of B into the
sea (his body was not seen anymore), and there was only one witness who
reported on the 19th year already, has the crime prescribed?
Not. The counting of the 20-year prescriptive period commenced on the day the
witness informed the authorities of what he saw.
TN: In prescription of crimes, if the last day falls on a holiday or a non-working
day, the complaint must be filed the day before the holiday or non-working day;
otherwise, if it is filed on the next working day, the crime has already prescribed.
This is the only exception to the rule that when the last day set by law falls on a
holiday or non-working day, the complaint may be filed on the next working day.
(Yapdiangco vs. Buencamino)
TN: The filing of complaint before the prosecutor’s office for the purpose of
preliminary investigation already interrupts the running of the prescriptive period.
(2000 Revised Rules of Criminal Procedure)
The prescriptive period will commence to run again, if:
a. the accused was acquitted; or
b. the accused was convicted; or
c. the case was dismissed without the consent of the accused.
Exception: When the dismissal is tantamount to double jeopardy. In such a
case, prescription is immaterial because the case cannot be refiled.
Q: What is the effect if the case was dismissed without the express
consent of the accused?
The case cannot be refiled because that will place the accused in double
jeopardy.
If the case was dismissed WITH the express consent and conformity of the
accused, the principle of PROVISIONAL DISMISSAL shall be applied. The case
can be refiled within 2 years if the crime is punishable by more than 6 years
imprisonment, and within 1 year if the penalty does not exceed 6 years;
otherwise, it is barred forever.
TN: The term of prescription shall not run if the offender is absent from the
Philippines.
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Q: What is an example of an instance when the case is unjustifiably
stopped for a reason imputable to the accused?
If the accused succeeded in escaping from jail while his case was pending, there
will be no prescription there because that is imputable to him.
TN: Not imputable to the accused – if the accused escaped from jail and his
sentence is already final – then the prescription will start to run again.
Relevant Provisions:
Article 92. When and How Penalties Prescribe. — The penalties imposed by
final sentence prescribe as follows:
1. Death and reclusión perpetua, in twenty years;
2. Other afflictive penalties, in fifteen years;
3. Correctional penalties, in ten years; with the exception of the penalty of
arresto mayor, which prescribes in five years;
4. Light penalties, in one year.
Article 93. Computation of the Prescription of Penalties. — The period of
prescription of penalties shall commence to run from the date when the culprit
should evade the service of his sentence, and it shall be interrupted if the
defendant should give himself up, be captured, should go to some foreign
country with which this Government has no extradition treaty, or should commit
another crime before the expiration of the period of prescription.
——————————————————————————————————
Prescription of Penalties is the loss or forfeiture of the right of the Government
to execute the final sentence after the lapse of a certain time.
Prescriptive Periods
1. Death and reclusion perpetua – 20 years
2. Other afflictive Penalties – 15 years
3. Correctional Penalties (except arresto mayor) – 10 years
4. Arresto mayor – 5 years
5. Light Penalties – 1 year
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
The most important element in prescription of penalties is that the escape of the
prisoner must be after final judgment. If he will escape before final judgment,
prescription of penalties will not start to run.
Q: A was sued for murder. While in jail, together with other prisoners, they
were able to escape. They hid in the mountains for 20 years, and on the
21st year, they came to the city and were arrested. They question their
arrest, contending that their penalty has already prescribed. Is the
contention correct?
It depends. If they escaped after there was already conviction by final judgment,
their stay in the mountain may be credited in their favor. If they escaped before
final judgment, there is no prescription yet.
Infante vs. Provincial Warden: if one was able to escape, he lives a life of misery
in constant fear of being caught, he is like a vagabond. In itself, it is already like
a punishment.
TN: Prescription commences to run from the date when the culprit evades the
service of his sentence, and it shall be interrupted if the defendant:
1. gives himself up;
2. is captured;
3. goes to a foreign country where this Government has no extradition
treaty; or
4. commits another crime before the expiration of the period of prescription.
PARTIAL EXTINCTION OF CRIMINAL LIABILITY
Article 94. Partial Extinction of Criminal Liability. — Criminal liability is
extinguished partially:
1. By conditional pardon;
2. By commutation of the sentence; and
3. For good conduct allowances which the culprit may earn while he is
undergoing preventive imprisonment or serving his sentence. (As amended
by R.A. No. 10592)
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Article 95. Obligation Incurred by Person Granted Conditional Pardon. — Any
person who has been granted conditional pardon shall incur the obligation of
complying strictly with the conditions imposed therein, otherwise, his non-
compliance with any of the conditions specified shall result in the revocation of
the pardon and the provisions of Article 159 shall be applied to him.
Article 96. Effect of Commutation of Sentence. — The commutation of the
original sentence for another of a different length and nature shall have the legal
effect of substituting the latter in the place of the former.
Article 97. Allowance for Good Conduct. — The good conduct of any offender
qualified for credit for preventive imprisonment pursuant to Article 29 of this
Code, or any convicted prisoner in any penal institution, rehabilitation or
detention center or any other local jail shall entitle him to the following deductions
from the period of his sentence:
1. During the first two years of his imprisonment, he shall be allowed a
deduction of twenty days for each month of good behavior during
detention;
2. During the third to the fifth year, inclusive, of his imprisonment, he shall be
allowed a deduction of twenty-three days for each month of good behavior
during detention;
3. During the following years until the tenth year, inclusive, of his
imprisonment, he shall be allowed a deduction of twenty-five days for each
month of good behavior during detention;
4. During the eleventh and successive years of his imprisonment, he shall be
allowed a deduction of thirty days for each month of good behavior during
detention; and
5. At any time during the period of imprisonment, he shall be allowed another
deduction of fifteen days, in addition to numbers one to four hereof, for
each month of study, teaching or mentoring service time rendered.
An appeal by the accused shall not deprive him of entitlement to the above
allowances for good conduct. (As amended by R.A. No. 10952, approved May
23, 2013)
Article 98. Special Time Allowance for Loyalty. — A deduction of one fifth of the
period of his sentence shall be granted to any prisoner who, having evaded his
preventive imprisonment or the service of his sentence under the circumstances
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
mentioned in Article 158 of this Code, gives himself up to the authorities within
48 hours following the issuance of a proclamation announcing the passing away
of the calamity or catastrophe referred to in said article. A deduction of two-fifths
of the period of his sentence shall be granted in case said prisoner chose to stay
in the place of his confinement notwithstanding the existence of a calamity or
catastrophe enumerated in Article 158 of this Code.
This Article shall apply to any prisoner weather undergoing preventive
imprisonment of serving sentence. (As amended by R.A. No. 10952, approved
May 23, 2013)
Article 99. Who Grants Time Allowances. — Whenever lawfully justified, the
Director of Bureau of Corrections, the Chief of the Bureau of Jail Management
and Penology and/or the Warden of a provincial district, municipal or city jail
shall grant allowances for good conduct. Such allowances once granted shall
not be revoked. (As amended by R.A. No. 10952, approved May 23, 2013)
——————————————————————————————————
Grounds for Partial Extinction of Criminal Liability
1. Conditional Pardon
Conditional pardon is like a contract entered into with the government. There
are conditions set, and if these are violated, the accused can be re-arrested.
Example: other cases of evasion in Art. 159, RPC.
2. Commutation of the Sentence
Example: If the accused is over 70 years old or when the SC cannot get a
majority vote of all the Justices, instead of death, the penalty shall be commuted
to reclusion perpetua.
3. Good Conduct Allowances
Good conduct allowances have already been increased by RA 10592. Art. 97
has already been amended.
4. Parole
JS: According to Reyes, this must be included.
Under the ISLaw, if the accused already served the minimum of his penalty, he
is already eligible for parole. Parole has certain conditions. If the accused
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 CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.

violates any condition, he will be re-arrested but he will only serve the unexpired (b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed
portion of his penalty, unlike in probation where violation of the conditions would to include the corresponding civil action. No reservation to file such civil action
result to the accused serving the original sentence imposed upon him. separately shall be allowed.

Upon filing of the aforesaid joint criminal and civil actions, the offended party
CIVIL LIABILITY
shall pay in full the filing fees based on the amount of the check involved, which
PERSONS CIVILLY LIABLE FOR FELONIES shall be considered as the actual damages claimed. Where the complaint or
information also seeks to recover liquidated, moral, nominal, temperate or
exemplary damages, the offended party shall pay the filing fees based on the
Relevant Provision:
amounts alleged therein. If the amounts are not so alleged but any of these
Article 100. Civil Liability of Person Guilty of Felony. — Every person criminally
damages are subsequently awarded by the court, the filing fees based on the
liable for a felony is also civilly liable.
amount awarded shall constitute a first lien on the judgment.

Other Provisions:
Where the civil action has been filed separately and trial thereof has not yet
Section 1, Rule 111 (RoC). Institution of criminal and civil actions. – (a) When
commenced, it may be consolidated with the criminal action upon application
a criminal action is instituted, the civil action for the recovery of civil liability
with the court trying the latter case. If the application is granted, the trial of both
arising from the offense charged shall be deemed instituted with the criminal
actions shall proceed in accordance with Section 2 of this Rule governing
action unless the offended party waives the civil action, reserves the right to
consolidation of the civil and criminal actions.
institute it separately or institutes the civil action prior to the criminal action.
——————————————————————————————————
Article 100 is the substantial law and Rule 111 is the procedural law.
The reservation of the right to institute separately the civil action shall be made
before the prosecution starts presenting its evidence and under circumstances
The commission of the crime creates two injuries:
affording the offended party a reasonable opportunity to make such reservation.
1. Social injury against the state; and
When the offended party seeks to enforce civil liability against the accused by
2. Personal injury against the private complainant
way of moral, nominal, temperate, or exemplary damages without specifying the
amount thereof in the complaint or information, the filing fees therefor shall
Exceptions: crimes against national security and law of nations, crimes of
constitute a first lien on the judgment awarding such damages.
public order, violations of municipal and city ordinances (no private offended
party).
Where the amount of damages, other than actual, is specified in the complaint
or information, the corresponding filing feels shall be paid by the offended party
TN: While the Rule allows a private lawyer to act as a private prosecutor in a
upon the filing thereof in court.
criminal case, this can only be done if there is a private offended party. Also, if
the filing of a civil case was reserved, a private lawyer cannot act as a private
Except as otherwise provided in these Rules, no filing fees shall be required for
prosecutor.
actual damages.
General Rule: When a case is filed, it is deemed to include both the criminal
No counter-claim, cross-claim or third-party complaint may be filed by the
and the civil actions.
accused in the criminal case, but any cause of action which could have been the
subject thereof may be litigated in a separate civil action.

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Exceptions:
1. When the offended party waives the civil action
2. The offended party expressly reserves his right to file a separate civil action
3. When the civil action was filed ahead of the criminal action
Q: Until when can the private offended party reserve his right to institute
a separate civil action?
Before the prosecution starts presenting its evidence, i.e. before the prosecution
presents its first witness.
TN: The law does not allow reservation in violations of BP 22. Once a criminal
case is filed, it already includes the civil liability. This is why when a case is filed
for violation of BP 22, the payment of a filing fee is required not only at the
prosecutor’s office but also once a case is filed in court.
Q: If the filing of the civil action was reserved, can it be filed while the
criminal case is pending?
No. The reserved civil action cannot be filed until there is final judgment in the
criminal action. While waiting for finality of judgment in the criminal case, the
period for prescription for the filing of the civil case shall be tolled or interrupted.
Q: The private complainant was waiting for 10 years for the criminal case
to finish. Originally, the accused was sentenced for conviction in the MTC
but it was appealed up to the SC. After 10 years, the final decision of the
SC was to acquit the accused. Will the reserved civil action prosper?
It depends on the basis of acquittal.
The reserved civil action will NOT prosper if:
a. the acquittal is based on a declaration that the crime did not exist (it was
found out that the accused did not commit the crime at all); or
b. the acquittal was based on justifying circumstances.
The reserved civil action will still prosper:
a. If the basis of acquittal is failure to prove beyond reasonable doubt; or
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
b. If the basis of acquittal is the application of Doctrine of Non-imputability
(minors); or
c. If the basis of acquittal is application of exempting circumstances.
Exceptions: Paragraph 4 and 7, Art, 12 (Mere accident without fault or
intention, and lawful or insuperable cause)
INDEPENDENT CIVIL ACTIONS
Relevant Provisions:
Section 3, Rule 111 (RoC). When civil action may proceed independently. —
In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of
the Philippines, the independent civil action may be brought by the offended
party. It shall proceed independently of the criminal action and shall require
only a preponderance of evidence. In no case, however, may the offended
party recover damages twice for the same act or omission charged in the
criminal action.
Article 32, NCC. – Any public officer or employee or any private individual who
directly or indirectly obstructs, defeats, violates in any manner, impedes or
impairs any of the rights or liberties of another person shall be liable to the
latter for damages:
1. Freedom of religion;
2. Freedom of speech;
3. Freedom to write for the press or to maintain a periodical publication;
4. Freedom from arbitrary or illegal detention;
5. Freedom of suffrage;
6. The right against deprivation of property without due process of law;
7. The right to a just compensation when private property is taken for public
use;
8. The right to the equal protection of the laws;
9. The right to be secure in one's person, house, papers, and effects against
unreasonable searches and seizures;
10. The liberty of abode and of changing the same;
11. The privacy of communication and correspondence;
12. The right to become a member of associations or societies for purposes
not contrary to law;
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13. The right to take part in a peaceable assembly to petition the Government
for redress of grievances;
14. The right to be a free from involuntary servitude in any form;
15. The right of the accused against excessive bail;
16. The right of the accused to be heard by himself and counsel, to be informed
of the nature and cause of the accusation against him, to have a speedy
and public trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witness in his behalf;
17. Freedom from being compelled to be a witness against one's self, or from
being forced to confess guilt, or from being induced by a promise of
immunity or reward to make such confession, except when the person
confessing becomes a State witness;
18. Freedom from excessive fines, or cruel and unusual punishment, unless
the same is imposed or inflicted in accordance with a statute which has not
been judicially declared unconstitutional; and
19. Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the defendant's act
or omission constitutes a criminal offense, the aggrieved party has a right to
commence an entirely separate and distinct civil action for damages, and for
other relief. Such civil action shall proceed independently of any criminal
prosecution (if the latter be instituted), and may be proved by a preponderance
of evidence.
The indemnity shall include moral damages. Exemplary damages may also be
adjudicated.
The responsibility herein set forth is not demandable from a judge unless his
act or omission constitutes a violation of the Penal Code or other penal statute.
Article 33, NCC. - In cases of defamation, fraud, and physical injuries a civil
action for damages, entirely separate and distinct from the criminal action, may
be brought by the injured party. Such civil action shall proceed independently of
the criminal prosecution, and shall require only a preponderance of evidence.
Article 34, NCC. When a member of a city or municipal police force refuses or
fails to render aid or protection to any person in case of danger to life or property,
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
such peace officer shall be primarily liable for damages, and the city or
municipality shall be subsidiarily responsible therefor. The civil action herein
recognized shall be independent of any criminal proceedings, and a
preponderance of evidence shall suffice to support such action.
Article 2176, NCC. - Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done. Such
fault or negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the provisions of this Chapter.
——————————————————————————————————
Independent civil actions can be filed at any time, even while the criminal case
is pending. There is no need for reservation. However, the offended party
cannot recover damages arising from the same act or omission twice. He may
choose that which is higher.
Examples of cases where independent civil actions may be filed:
1. Art. 32, NCC
2. Art. 33, NCC – fraud, defamation, physical injuries
3. Art. 2176, NCC – quasi-delicts
TN: The term “physical injuries” in Article 33 has already been construed in its
generic sense to include bodily injuries causing death. (Carandang vs. Santiago)
It is not the crime of physical injuries defined in the RPC. It includes not only
physical injuries but also consummated, frustrated, and attempted homicide.
(Dulay vs. CA)
TN: In so far as damages are concerned, the SC has already issued guidelines
in the case of People vs Ireneo Jugueta. In this case, if the heirs of the victim
could not present any proof of the expenses incurred during the burial, the Court
is allowed to grant temperate damages.
JS: That’s why in actual case hearings, I always tell the prosecutor, there is no
need to present the private complainant because we already have rules on how
much should be granted to private complainant by way of civil liability.
JS: What you have read in any author, just forget them. Focus on the case of
People vs Ireneo Jugueta insofar as damages are concerned (moral, exemplary,
temperate, actual, nominal, liquidated).
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WHEN CIVIL ACTION IS FILED AHEAD OF THE CRIMINAL ACTION
Relevant Provision:
Section 2, Rule 111 (RoC). When separate civil action is suspended. - After the
criminal action has been commenced, the separate civil action arising therefrom
cannot be instituted until final judgment has been entered in the criminal action.
If the criminal action is filed after the said civil action has already been instituted,
the latter shall be suspended in whatever stage it may be found before judgment
on the merits. The suspension shall last until final judgment is rendered in the
criminal action. Nevertheless, before judgment on the merits is rendered in the
civil action, the same may, upon motion of the offended party, be consolidated
with the criminal action in the court trying the criminal action. In case of
consolidation, the evidence already adduced in the civil action shall be deemed
automatically reproduced in the criminal action without prejudice to the right of
the prosecution to cross-examine the witnesses presented by the offended party
in the criminal case and of the parties to present additional evidence. The
consolidated criminal and civil actions shall be tried and decided jointly.
During the pendency of the criminal action, the running of the period of
prescription of the civil action which cannot be instituted separately or whose
proceeding has been suspended shall be tolled.
The extinction of the penal action does not carry with it extinction of the civil
action. However, the civil action based on delict shall be deemed extinguished
if there is a finding in a final judgment in the criminal action that the act or
omission from which the civil liability may arise did not exist.
——————————————————————————————————
Q: If the civil case was filed ahead of the criminal case, would that mean
that the criminal case can no longer be filed?
No. Even if the civil case was filed ahead of the criminal case, the criminal case
may still be filed. Once the criminal case is filed, the civil case shall be
suspended in whatever stage of the proceedings.
However, if both the criminal case and the civil case are filed within the same
jurisdiction and venue, it may be consolidated and the witnesses and evidence
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
presented in the civil case shall be automatically adapted to the criminal case
subject to further cross-examination.
TN: The consolidation presupposes that both the criminal and civil cases are
filed within the same jurisdiction and venue.
Example: if the civil case was filed in the MCTC of Tacloban City, and the
criminal case was filed with the RTC of Tacloban City, there can be no
consolidation. However, if both the criminal case and the civil case is filed with
the RTC of Tacloban City, consolidation is possible.
ATTACHMENT
Relevant Provisions:
Section 2, Rule 127 (RoC). Attachment. — When the civil action is properly
instituted in the criminal action as provided in Rule 111, the offended party may
have the property of the accused attached as security for the satisfaction of any
judgment that may be recovered from the accused in the following cases:
(a) When the accused is about to abscond from the Philippines;
(b) When the criminal action is based on a claim for money or property
embezzled or fraudulently misapplied or converted to the use of the
accused who is a public officer, officer of a corporation, attorney, factor,
broker, agent, or clerk, in the course of his employment as such, or by
any other person in a fiduciary capacity, or for a willful violation of duty;
(c) When the accused has concealed, removed, or disposed of his property,
or is about to do so; and
(d) When the accused resides outside the Philippines
—————————————————————————————————
Attachment is only allowed in criminal cases if the civil action is deemed
instituted with the criminal action. A motion for issuance of writ of attachment
cannot be filed if the filing of the separate civil action is reserved because the
writ of attachment is on the civil liability which might be awarded by the court.
PREJUDICIAL QUESTION
Relevant Provisions:
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Section 6, Rule 111 (RoC). Suspension by reason of prejudicial question. - A
petition for suspension of the criminal action based upon the pendency of a
prejudicial question in a civil action may be filed in the office of the prosecutor or
the court conducting the preliminary investigation. When the criminal action has
been filed in court for trial, the petition to suspend shall be filed in the same
criminal action at any time before the prosecution rests.
Section 7, Rule 111 (RoC). Elements of prejudicial question. — The elements
of a prejudicial question are: (a) the previously instituted civil action involves an
issue similar or intimately related to the issue raised in the subsequent criminal
action, and (b) the resolution of such issue determines whether or not the
criminal action may proceed.
—————————————————————————————————
To become a prejudicial question, the civil case must be filed AHEAD of the
criminal case. If the criminal case was filed ahead of the civil case, it will never
be a prejudicial question.
Q: A is married to B. While their marriage was subsisting, B contracted
another marriage to C. A filed a case for bigamy against B. While the
bigamy case was pending in court, B filed before the court a petition for
declaration of nullity of his marriage with A on the ground of psychological
incapacity. B’s lawyer in the criminal case for bigamy filed a motion to
suspend hearing on the criminal case on the ground that there is
prejudicial question. Should it be granted?
No because the criminal case was filed ahead of the civil case.
Relevant Provision:
Article 101. Rules Regarding Civil Liability in Certain Cases. — The exemption
from criminal liability established in subdivisions 1, 2, 3, 5, and 6 of article 12
and in subdivision 4 of Article 11 of this Code does not include exemption from
civil liability, which shall be enforced subject to the following rules:
First. In cases of subdivisions 1, 2, and 3 of article 12, the civil liability for acts
committed by an imbecile or insane person, and by a person under nine years
of age, or by one over nine but under fifteen years of age, who has acted without
discernment, shall devolve upon those having such person under their legal
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
authority or control, unless it appears that there was no fault or negligence on
their part.
Should there be no person having such insane, imbecile or minor under his
authority, legal guardianship, or control, or if such person be insolvent, said
insane, imbecile, or minor shall respond with their own property, excepting
property exempt from execution, in accordance with the civil law.
Second. In cases falling within subdivision 4 of Article 11, the persons for whose
benefit the harm has been prevented shall be civilly liable in proportion to the
benefit which they may have received.
The courts shall determine, in their sound discretion, the proportionate amount
for which each one shall be liable.
When the respective shares cannot be equitably determined, even
approximately, or when the liability also attaches to the Government, or to the
majority of the inhabitants of the town, and, in all events, whenever the damage
has been caused with the consent of the authorities or their agents,
indemnification shall be made in the manner prescribed by special laws or
regulations.
Third. In cases falling within subdivisions 5 and 6 of Article 12, the persons using
violence or causing the fear shall be primarily liable and secondarily, or, if there
be no such persons, those doing the act shall be liable, saving always to the
latter that part of their property exempt from execution.
Other Provision:
Art. 201, PD 603. Civil Liability of Youthful Offenders. – The civil liability for acts
committed by a youthful offender shall devolve upon the offender’s father and,
in case of his death or incapacity, upon the mother, or in case of her death or
incapacity, upon the guardian. Civil liability may also be voluntarily assumed by
a relative or family friend of the youthful offender.
——————————————————————————————————
For minors, over 16 and under 18, who acted with discernment, there is criminal
liability subject to a suspended sentence, but it will not include exemption from
civil liability.
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Under Art. 201 of PD 603, the civil liability committed by minors shall devolve
upon:
1. the father;
2. the mother;
3. the guardian.
However, the civil liability may also be voluntarily assumed by a relative or family
friend of the youthful offender.
Relevant Provisions:
Article 102. Subsidiary Civil Liability of Innkeepers, Tavernkeepers and
Proprietors of Establishments. — In default of the persons criminally liable,
innkeepers, tavern-keepers, and any other persons or corporations shall be
civilly liable for crimes committed in their establishments, in all cases where a
violation of municipal ordinances or some general or special police regulation
shall have been committed by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods taken by
robbery or theft within their houses from guests lodging therein, or for the
payment of the value thereof, provided that such guests shall have notified in
advance the innkeeper himself, or the person representing him, of the deposit
of such goods within the inn; and shall furthermore have followed the directions
which such innkeeper or his representative may have given them with respect
to the care of and vigilance over such goods. No liability shall attach in case of
robbery with violence against or intimidation of persons unless committed by the
innkeeper's employees.
Article 103. Subsidiary Civil Liability of Other Persons. — The subsidiary liability
established in the next preceding article shall also apply to employers, teachers,
persons, and corporations engaged in any kind of industry for felonies
committed by their servants, pupils, workmen, apprentices, or employees in the
discharge of their duties.
—————————————————————————————————
Q: There is an ordinance that restaurants are not allowed to open on a
particular day. A restaurant opened in violation of the ordinance. Two
customers fought each other. Customer A killed customer B on said fight.
A case was filed against customer A. After the hearing, the court awarded
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
civil liability. However, after exhaustion of all of the assets of A, it turned
out that he is insolvent. Can the private complainant run after the
subsidiary liability of the restaurant owner?
Yes. In accordance with Art. 102 of the RPC.
TN: Subsidiary liability is different from primary liability. In subsidiary liability,
there should first be exhaustion of the assets of the person who is principally
obliged to pay. It is only when it is found out that the person who is principally
liable is insolvent that one can run after the subsidiary liability of the innkeeper,
restaurant owner, etc.
JS: In subsidiary liability, the owner of the establishment is allowed to participate
in the hearing of the case to protect his interests should it turn out later that the
person convicted is insolvent.
Even in the execution stage, as long as the person primarily liable was
convicted, there is no need to file a separate civil action to enforce the subsidiary
liability of the tavernkeeper, innkeeper, etc. A mere motion on the very criminal
case upon which the person liable was convicted is sufficient.
TN: In Art. 103, what is important is that the employer, teacher, or person or
corporation is engaged in any kind of industry. It is the first element before one
can run after the subsidiary liability in Art. 103.
Q: Is RTR engaged in industry?
No. On the other hand, vocational schools are engaged in the industry.
Industry – any department or branch of art, occupation or business; especially,
one which employs so much labor and capital and is a distinct branch of trade.
JS: If one is engaged in trucking business, one is engaged in industry.
The employee must commit the act while in the discharge of his official function,
and that employee must turn out to be insolvent.
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JS: It is also unfair for the employer to be held automatically subsidiarily liable
only because his employee raped a woman who was just passing by. It is
therefore required that the employee, in the commission of the act, was in the
discharge of his official function.
Q: Civil law mentions some defenses like diligence of a good father of a
family. Can that be used by the employer to escape subsidiary liability (e.g.
the employer exercised diligence of a good father in the selection and
supervision of the employees)?
No. According to settled jurisprudence, the defense of proper selection and
supervision of the employees cannot be used as a valid defense of an employer
who wants to escape from his subsidiary liability under Art. 103, RPC.
WHAT CIVIL LIABILITY INCLUDES
Relevant Provisions:
Article 104. What is Included in Civil Liability. — The civil liability established in
Articles 100, 101, 102, and 103, of this Code includes:
1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.
Article 105. Restitution — How Made. — The restitution of the thing itself must
be made whenever possible, with allowance for any deterioration or diminution
of value as determined by the court.
The thing itself shall be restored, even though it be found in the possession of a
third person who has acquired it by lawful means, saving to the latter his action
against the proper person, who may be liable to him.
This provision is not applicable in cases in which the thing has been acquired by
the third person in the manner and under the requirements which, by law, bar
an action for its recovery.
——————————————————————————————————
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
Q: Distinguish civil liabilities from pecuniary liabilities. (Memorize! This is
always asked in the bar)
1. Both include:
a. Reparation of the damage caused; and
b. Indemnification for consequential damages
2. While civil liability includes restitution, pecuniary liability does not include
restitution, because pecuniary liability refers to liabilities to be paid out of the
property of the offender. In restitution, there is nothing to pay in terms of money,
as the property unlawfully taken is returned;
3. Pecuniary liabilities include (a) fine, and (b) the costs of the proceedings. Civil
liabilities do not include them.
Art. 38, RPC talks about pecuniary liabilities. This is applicable in cases when
the property of the offender is not sufficient to pay off his liabilities. In such cases,
the following order must be followed:
1. The reparation of the damage caused.
2. Indemnification of consequential damages.
3. The fine.
4. The costs of the proceedings.
Relevant Provision:
Article 106. Reparation — How Made. — The court shall determine the amount
of damage, taking into consideration the price of the thing, whenever possible,
and its special sentimental value to the injured party, and reparation shall be
made accordingly.
—————————————————————————————————
Reparation of the damage caused is usually applied in the crimes of robbery,
and theft. First, the accused returns the item if it can still be returned (restitution).
The court must first order the return of the stolen property. If the item cannot be
returned to the private complainant because it was already sold to another
person, reparation for damages should be made. In this case, the court will
determine the value of the property.
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In either restitution or reparation, there is always a corresponding
indemnification of consequential damages.
Q: If the one who bought the stolen property knew that it was stolen, is he
also criminally liable?
Yes. He may be a principal in Anti-Fencing Law or accessory in the crime of
robbery or theft under Art. 19 of the RPC.
Q: The stolen property is now in the possession of a third person. Can the
court order the third person to return the property to the private
complainant?
It depends.
General Rule: The court can order the third person to return the stolen property.
Exception: If the property was acquired by the third person in a public sale, and
in good faith, there must be reimbursement first before that person may be
required to return the property,
Exceptions to the Exception:
1. Under the Law on Sales, when the third person acquired the thing in the
manner and under the requirements which, by law, bars an action for its
recovery. Remember, the right of an innocent purchaser for value of a real
property under the Torrens System should be respected.
2. When the sale was authorized, the property cannot be recovered anymore.
This is in reference to auction sales of properties done by the court.
Relevant Provisions:
Article 107. Indemnification — What is Included. — Indemnification for
consequential damages shall include not only those caused the injured party,
but also those suffered by his family or by a third person by reason of the crime.
Article 108. Obligation to Make Restoration, Reparation for Damages, or
Indemnification for Consequential Damages and Action to Demand the Same —
Upon Whom it Devolves. — The obligation to make restoration or reparation for
damages and indemnification for consequential damages devolves upon the
heirs of the person liable.
COLLEGE OF 4B | 2021
CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.
The action to demand restoration, reparation, and indemnification likewise
descends to the heirs of the person injured.
Article 109. Share of Each Person Civilly Liable. — If there are two or more
persons civilly liable for a felony, the courts shall determine the amount for which
each must respond.
Article 110. Several and Subsidiary Liability of Principals, Accomplices, and
Accessories of a Felony — Preference in Payment. — Notwithstanding the
provisions of the next preceding article, the principals, accomplices, and
accessories, each within their respective class, shall be liable severally (in
solidum) among themselves for their quotas, and subsidiarily for those of the
other persons liable.
The subsidiary liability shall be enforced, first against the property of the
principals; next, against that of the accomplices, and, lastly, against that of the
accessories.
Whenever the liability in solidum or the subsidiary liability has been enforced,
the person by whom payment has been made shall have a right of action against
the others for the amount of their respective shares.
Article 111. Obligation to make restitution in a certain case. — Any person who
has participated gratuitously in the proceeds of a felony shall be bound to make
restitution in an amount equivalent to the extent of such participation.
—————————————————————————————————
JS: When we talk about indemnification, we talk about MENTAL.
M – Moral
E – Exemplary
N – Nominal
T – Temperate
A – Actual
L – Liquidated
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 CRIMINAL LAW REVIEW | JUDGE T. A. SABARRE, JR.

Q: For civil liability arising from a crime, what is the liability if two or more
are convicted of a crime charged? Is it joint or solidary?

Solidary liability (Art. 108, 109, 110). Anything which arose from a criminal case
is not joint liability, it is solidary liability. One can be made to pay the entire
amount but subject to reimbursement as far as the others are concerned.

This includes the obligation of accomplices, accessories, and principals.

This is one of the exceptions to the rule that if there are two or more obligors,
the obligation is joint.

EXTINCTION OF CIVIL LIABILITY

Relevant Provisions:
Article 112. Extinction of Civil Liability. — Civil liability established in Articles
100, 101, 102, and 103 of this Code shall be extinguished in the same manner
as other obligations, in accordance with the provisions of the Civil Law.

Article 113. Obligation to Satisfy Civil Liability. — Except in case of extinction

of his civil liability as provided in the next preceding article, the offender shall
continue to be obliged to satisfy the civil liability resulting from the crime
committed by him, notwithstanding the fact that he has served his sentence
consisting of deprivation of liberty or other rights, or has not been required to
serve the same by reason of amnesty, pardon, commutation of sentence, or any
other reasons.
—————————————————————————————————
This is more on obligations and contracts. Extinguishment of contracts is the
same with extinguishment of civil liability.

Civil liability is extinguished by:

1. Payment
2. Loss
3. Condonation or remission
4. Confusion or merger
5. Compensation
6. Novation

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