ARTICLE 13: MITIGATING CIRCUMSTANCES Circumstances that reduce the penalty but do not entirely free the actor

r from criminal liability Whether privileged or ordinary only serve to reduce the penalty but does not change the nature of the crime Ordinary May be offset by aggravating circumstances Effect is penalty in its minimum period 1. Privileged Cannot be offset by aggravating circumstances Effect is penalty lowered by one or two degree

ALL REQUISITES NECESSARY TO JUSTIFY OR TO EXEMPT FROM CRIMINAL LIABILITY ARE NOT ATTENDANT Not all the requisites are required The requisites attendant must not be a majority, otherwise it becomes a privileged mitigating circumstances (Art. 69) a. SELF-DEFENSE, DEFENSE OF RELATIVES OR STRANGERS Unlawful aggression being an indispensable requisite is the only one that is possible under this article The presence of another makes the circumstance a privileged mitigating b. STATE OF NECESSIT/AVOIDANCE OF GREATER EVIL OR INJURY That an evil actually exists must be present The presence of any of the two others (injury feared is greater, no other practical and less harmful means) would result in a privileged mitigating circumstance c. PERFORMANCE OF DUTY Since there are only two requisites, the presence of one is considered a privileged mitigating circumstance (refer to Oanis case) MINORITY AND OVER 70 YEARS OF AGE (RA 9344 & 9346) If 15 and below no criminal liability (intervention) If above 15 but below 18 If acted without discernment (presumption) no criminal liability (intervention) If acted with discernment (diversion barangay level, law enforcement level, prosecutors level, court) Over 70 years of age A generic or ordinary mitigating circumstance RA 9346 prohibits the imposition of the death penalty NO INTENTION TO COMMIT SO GRAVE A WRONG the facts proven show that there exists notable and evident disproportion between the means employed to execute the criminal act and its consequences notorious disproportion between the evil produced and the means employed to execute it (US vs Reyes, GR No 12635, Sept. 25, 1917) Intent is a state of mind

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the intention of the agent, as an internal act and of his own conscience, cannot be revealed in any other manner than by the external and overt acts which may accompany that intention, the only acts that can be appreciated by the judicial mind (Reyes) Baston and death remembering that the implement was a baston, the use of which with force on the head of a person would ordinarily fracture the cranium and cause death (Reyes) External acts may show intent The weapon used Nature of injury inflicted/where blow was directed Attitude of mind/manner of commission Pp vs Callet, GR No 135701, May 9, 2002 The lack of intent to commit a wrong so grave is an internal state. It is weighed based on the weapon used, the part of the body injured, the injury inflicted and the manner it is inflicted. The fact that the accused used a 9-inch hunting knife in attacking the victim from behind, without giving him an opportunity to defend himself, clearly shows that he intended to do what he actually did, and he must be held responsible therefor, without the benefit of this mitigating circumstance. Attendant facts and circumstances While intent to kill may be presumed from the fact of the death of the victim, this mitigating factor may still be considered when attendant facts and circumstances so warrant, as in the instant case. Consider: Petitioner tried to avoid the fight, being very much smaller than Tomelden. He tried to parry the blows of Tomelden, albeit he was able, during the scuffle, to connect a lucky punch that ended the fight. And lest it be overlooked, petitioner helped carry his unconscious co-worker to the office of the LIWADs general manager. (Urbano) Pp vs Gonzales, GR No 139542, June 21, 2001 This mitigating circumstance is obtaining when there is a notable disparity between the means employed by the accused to commit a wrong and the resulting crime committed. The appellants use of a gun, although not deliberately sought no r employed in the shooting, should have reasonably placed the appellant on guard of the possible consequences of his act. Not inconsistent with treachery The trial court gave all of the accused the benefit of the mitigating circumstance that the offenders had no intention to commit so grave a wrong. The estimation of this circumstance was proper, and its allowance was not inconsistent with the finding that the crime was murder. (Pp vs Enriquez, GR No 37408, October 10, 1933, see also Cagoco case) Attendant circumstances The record shows, however, that the offense committed was characterized by treachery and the appellants left the scene of the crime only after the victim had fallen down. Hence, the mitigating circumstance of lack of intention cannot be

appreciated in favour of the appellants. (Pp vs Pajenado, GR No L-26458, January 30, 1976) 4. SUFFICIENT PROVOCATION Provocation must be sufficient and immediately preceding the act Provocation must be sufficient The provocation, to constitute a mitigating circumstance, must, in the language of the law, be sufficient, that is, adequate to excite the person to commit the wrong and must accordingly to be proportionate to its gravity. (Pp vs Nabora, GR No 48101, Nov. 22, 1941) Sufficient provocation depends on: The act constituting the provocation Social standing of the person provoked Place and time of provocation Sufficient provocation, as illustrated: Forcing ones way into a line despite being told not to by a foreman (Carrero) Kicking and abusing the accused for not preparing the evening meal (Firmo) Asking for pardon from her husband after the latter saw a man jump from their window (Marquez) Urbano When the law speaks of provocation either as a mitigating circumstance or as an essential element of self-defense, the reference is to an unjust or improper conduct of the offended party capable of exciting, inciting, or irritating anyone; it is not enough that the provocation act be unreasonable or annoying; the provocation must be sufficient to excite one to commit the wrongful act and should immediately precede the act. immediately preceded the act. There should be no interval of time between the provocation made by the offended party and the commission of the crime by the accused Pp vs Macaso, GR No L-30489, June 30, 1975 I have no respect for this salamagan ignorant of traffic rules stupid What do you want? IMMEDIATE VINDICATION OF A GRAVE OFFENSE The grave offense is done to : One committing the offense Spouse Ascendants Descendants Legitimate, natural or adopted bro or sis Relatives by affinity within the same degrees Immediate = proximate

Although this offense, which engenders perturbation of mind, was not so immediate, this court is of the opinion that the influence thereof, by reason of its gravity and the circumstances under which it was inflicted, lasted until the moment the crime was committed. (Pp vs Parana, GR No 45373, Mar. 31, 1937) Time to regain composure or equanimity still this mitigating circumstance cannot be considered where sufficient time elapsed for the accused to regain his composure Without question, sufficient time had passed for appellants emotion to cool and for them to recover their equanimity. (Pp vs Ventura, GR Nos 148145-46, July 5, 2004) Grave offense NOT grave felony The gravity of the offense depends on: Social standing of the person subject of the grave offense Place, and Time when insult was made Grave offense, as illustrated: I will make a roast pig out of you (Ampar) You live at the expense of your wife (Rosel) You are a Japanese spy (Luna) PASSION OR OBFUSCATION The accused must have acted on an impulse so powerful that it naturally induced passion or obfuscation Requisites: That there be an act both unlawful and sufficient to produce such condition of mind and That said act which produces 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 (Pp vs Gravino, GR Nos L-3132729, May 16, 1983) Prior unjust or improper conduct This circumstance should not be taken into consideration as an extenuating circumstance unless it appears that it was provoked by prior unjust or improper acts. (US vs Taylor, GR No 2309, Apr 19, 1906) Pp vs Noynay, GR No 38715, September 15, 1933 In order to be entitled to this mitigating circumstance, it must appear that the obfuscation of the accused arose from lawful sentiments. The fact that an offense was committed in an uncontrollable burst of passion should not be taken into consideration as an extenuating circumstance unless it appears that it was provoked by prior unjust or improper acts. Pp vs Caliso, GR No 37271, July 1, 1933) the accused, in poisoning the child, was actuated more by a spirit of lawlessness and revenge than by any sudden impulse of natural and uncontrollable fury and

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because such sudden burst of passion was not provoked by prior unjust or improper acts US vs Sarikala, GR No L-12988, January 24, 1918 The mitigating circumstance of passion and obfuscation cannot be co nsidered when a long period of time has intervened between the impulse which produces it and the criminal act be not far removed For the circumstance to exist, it is necessary that the act which gave rise to the obfuscation be not removed from the commission of the offense by a considerable length of time, during which period the perpetrator might recover his normal equanimity. (Pp vs Layson, GR No L-25177, Oct. 31, 1969) Must arise from lawful sentiments the only causes which mitigate the criminal responsibility for the loss of selfcontrol are such as originate from legitimate feelings, not those which arise from vicious, unworthy, and immoral passions (US vs Hicks, GR No 4971, September 23, 1909) Hicks and de la Cruz distinguished In Hicks case, the cause of the alleged passion and obfuscation is the refusal of the woman to continue to live in illicit relations with him, which she had a perfect right to do; In the present case however, the impulse upon which defendant acted and which naturally produced passion and obfuscation was not that the woman declined to have illicit relations with him, but the sudden revelation that she was untrue to him, and his discovery of her in flagrante in the arms of another (US vs de la Cruz, GR No 7094, March 29, 1912) Legitimate and illegitimate In Engay, the natural feeling of despair in her after finding out that the man, she had been supporting and made many sacrifices for, abandoned him is the source of the passion/obfuscation In Yuman, the woman who stabbed her partner who after taking advantage of said woman abandoned her was considered by the SC as a legitimate source of passion or obfuscation In Belio, it was the refusal of the woman to go back to the accused and instead remain as a public hostess. It is curious that in this case, it was the accused who induced the victim to obtain employment as a public hostess in the first place Summary of rules The act producing the condition of mind/impulse must be unlawful while the sentiments of the accused from which the passion or obfuscation originate from must be lawful A single fact cannot be made the basis of different modifying circumstances Well-settled is the rule that if these two circumstances are based on the same facts, they should be treated together as one mitigating circumstances. From the facts established in this case, it is clear that both circumstances arose from the

same set of facts aforementioned. Hence, they should not be treated as two separate mitigating circumstances. (Romera vs Pp, GR No 151978, July 14, 2004) 7. VOLUNTARY SURRENDER AND CONFESSION For surrender to be appreciated as a mitigating circumstance it must be spontaneous and unconditional because he acknowledges his guilt or he wishes to save the authorities from the trouble and expenses in his search and capture Requisites: Offender has not been actually arrested The offender surrendered himself to a person in authority or his agent The surrender is voluntary Pp vs Concillado, GR No 181204, November 28, 2011 For the mitigating circumstance of voluntary surrender to be appreciated, the surrender must be spontaneous and in a manner that shows that the accused made an unconditional surrender to the authorities, either based on recognition of guilt or from the desire to save the authorities from the trouble and expenses that would be involved in the accuseds search and capture Pp vs Obligado, GR No 171735, Apr 16, 2009 Inasmuch as he was intercepted by the arresting officers there, appellant had no means of evading arrest. His surrender therefore was neither voluntary nor spontaneous Warrant of arrest; issuance different from service For while it is true that the warrant for his arrest was dated March 7, 1967 and the police authorities were able to take custody of the accused only on March 31, 1967 there is nothing on record to show that the warrant had actually been served on him, or that it had been returned unserved for failure of the server to locate said accused (Pp vs Brana, GR No L-29210, October 31, 1969) surrendered himself Suffice to say that we are not prepared to consider surrender of weapons as analogous to voluntary surrender to a person in authority or his agents (Pp vs Verges, GR No L-36882-84, July 24, 1981) Although Palo handed the gun to the barrio lieutenant upon the latters demand, there is no evidence that he willingly delivered himself to the authorities (Pp vs Palo, GR Nos L-9593-94, July 31, 1957) Person in authority or his agents Person in authority is one directly vested with jurisdiction or the power and authority to govern and execute laws e.g. mayors, barrio captain or barangay chairman An agent of a person in authority is one who by direct provision of law or by election or by appointment by competent authority is charged with the maintenance of public order and the protection and security of life and property and any person who comes to the aid of persons in authority e.g. policeman At the earliest opportunity

Thus, there can be no explanation why he surrendered only on April 16, 1998 or 14 days after the commission of the crime. To us, Florencios surrender was a mere afterthought underserving of any consideration (Pp vs Agacer, GR No 177751, Dec. 14, 2011) Plea of guilty, requisites: Spontaneous In open court before a court of competent jurisdiction Before the presumption of evidence for the prosecution At the earliest opportunity In the present case the appellant offered to enter a plea of guilty to the lesser offense of homicide only after some evidence of the prosecution had been presented. He reiterated his offer after the prosecution rested its case. this is certainly not mitigating. (Pp vs Crisostomo, GR No L-32243, April 15, 1988) Basis for the rule As a rule an accused should not be allowed to speculate . Otherwise an accused could deliberately plead not guilty at the trial court and upon conviction and on appeal plead guilty so he can avail of the mitigating circumstance Pp vs Ortiz, GR No L-19585, Nov. 29, 1965 That was an entirely new information and no evidence was presented in connection with the charges made therein before appellant entered his plea of guilty. We believe therefor that appellant was entitled to have the mitigating circumstance of plea of guilty considered in his favour in connection with the imposition of the corresponding penalty Capital offenses Rule 116 Sec. 3 of the Revised Rules on Criminal Procedure requires the prosecution to prove his guilt and the precise degree of cul pability DEAF, DUMB, BLIND OR OTHER PHYSICAL DEFECT The physical defect must restrict the offenders means of action, defense, or communication with fellow beings The restriction must, however, relate to the mode of committing the crime There is diminution of the element of voluntariness (freedom) Pp vs Francisco, GR No 118573-74, May 31, 2000 The limp allegedly suffered by Ricardo has not been shown to restrict his means of action, defense or communication with his fellow beings as required by Article 13(8) of the Revised Penal Code as no evidence was presented in relation thereto other than the bare allegation that he suffered from such a physical defect ILLNESS The illness must diminish the exercise of will power without depriving him of consciousness of his acts When the offender is deprived of consciousness it may be an exempting circumstance (insanity) Simple and feeble-minded

On the other hand, the fact that the accused is feebleminded warrants the finding in his favour of the mitigating circumstance provided for in either paragraph 8 or paragraph 9 of Article 13 of the RPC, namely, that the accused is suffering some physical defect which thus restricts his means of action, defense or communication with his fellow beings, or such illness as would diminish the exercise of his will power (Pp vs Formigones, GR No L-3246, Nov 29, 1950)

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ANALOGOUS CIRCUMSTANCES Owner of animal that is taken for ransom (vindication) Esprit de corps (passion or obfuscation) Voluntary restitution of stolen property (voluntary surrender) Extreme poverty and necessity (incomplete state of necessity) Testifying for the prosecution (plea of guilty) Circumstances that are not analogous Killing the wrong man Reputation of being a rascal and a bully Lack of irreparable damage Not resisting arrest Running amuck Being a battered husband? In this case it was established that petitioner and his wife had a violent altercation and that petitioner was mauled by his neighbors after he kicked some of them for laughing at him. These events and circumstances prior to the killing of Alfredo Gonzales could have caused unusual outbursts of passion and emotion on petitioners part. These resulted in the tragic stabbing of the victim thus entitling petitioner to the mitigating circumstance analogous to passion and obfuscation (Danafrata vs Pp, GR No 143010, Sept 30, 2003)

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ARTICLE 14: AGGRAVATING CIRCUMSTANCES Circumstances that, if attendant serve to increase the penalty without exceeding the maximum of the penalty provided by law Kinds: Generic is generally applicable to all kinds of crime e.g. dwelling, nighttime or recidivism Specific applicable to particular crimes e.g. ignominy in crimes against chastity and treachery in crimes against persons Qualifying changes the nature of the crime e.g. treachery qualifies killing to murder Inherent must of necessity accompany the commission of the crime. They cannot be taken into account for the purpose of increasing the penalty (Art. 62 Par. 2) Generic Increases penalty to be imposed without exceeding the maximum Can be offset by a mitigating circumstance Qualifying Places the offender in no other situation as to deserve any other penalty than that specifically provided for the law Cannot be offset by a mitigating circumstance

Rule 110 Sec. 8 Revised Rules of Criminal Procedure Designation of the offense the complaint or information shall state the designation of the offense given by the statute aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. Rule 110 Sec. 9 Revised Rules of Criminal Procedure Cause of the accusation the acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as it qualifying and aggravating circumstances and for the court to pronounce judgment ADVANTAGE BE TAKEN BY THE OFFENDER OF HIS PUBLIC POSITION What is important is that the offender is a public officer and he takes advantage of his public position to commit the crime using the influence, prestige or ascendancy which his office gives him as the means by which he realizes his purpose (US vs Rodriguez, 19 Phil 150) Pp vs Villamor, GR Nos 140407-08, Jan 15, 2002 To appreciate this aggravating circumstance, the public officer must use influence, prestige or ascendancy which his office gives him as a means by which he realizes his purpose. The essence of the matter is presented in the inquiry Did the accused abuse his office to commit the crime? Pablo vs Pp, GR No 152481, Apr 15, 2005

The mere fact that the three accused were all police officers at the time of the robbery placed them in a position to perpetrate the offense. If they were not police officers they could not have terrified the Montecillos into boarding the mobile patrol car and forced them to hand over their money. Precisely it was on account of their authority that the Montecillos believed that Mario had in fact committed a crime and would be brought to the police station for investigation unless they gave them what they demanded. Pp vs Magayac, GR No 126043, Apr 19, 2000 That accused-appellant was a member of the dreaded CAFGU and used his government issued M-14 rifle to kill Jimmy does not necessarily prove that he took advantage of his public position to commit the crime. Pp vs Fallorina, GR No 137347, Mar 4, 2004 There is no dispute that the appellant is a policeman and tha t he used his service firearm, the .45 caliber pistol, in shooting the victim. However, there is no evidence on record that the appellant took advantage of his position as a policeman when he shot the victim. The shooting occurred only when the appellant saw the victim on the rooftop playing with his knife. The trial court erred in appreciating abuse of public position against the appellant. Pp vs Herrera, GR Nos 140557-58, Dec 5, 2001 In other words, if the accused could have perpetrated the crime even w ithout occupying his position, there is no abuse of public position. The mere fact that accused-appellant is a policeman and used his government issued .38 caliber revolver to kill Ganan is not sufficient to establish that he misused his public position in the commission of the crime. But in Appellant, a member of the Philippine Constabulary, committed the crime with an armalite which was issued to him when he received the mission order. (Pp vs Gapasin, GR No 73489, Apr 25, 1994) IN CONTEMPT OF OR WITH INSULT TO THE PUBLIC AUTHORITIES Requisites: A public authority is engaged in the exercise of functions The public authority is not the person against whom the crime is committed The offender knows him to be a public authority The presence of the public authority does not prevent the commission of the crime by the offender Public authority Public authority should be construed as a person in authority i.e. one who is vested with jurisdiction, that is, one who has the power to govern and execute the laws An agent of a person in authority is not included in this circumstance (Art. 152, RPC) Public officer should not be the object of the offense Neither can the aggravating circumstance that the crime was committed with insult to public authority be appreciated as the crime was committed against the public authority himself (Pp vs Gutierrez, GR No 116281, Feb 8, 1999)

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DISREGARD OF RANK, AGE, SEX OR DWELLING OF OFFENDED PARTY Age may refer to the victims advanced age or very young age For this circumstance to be appreciated, there must be evidence that the accused deliberately intended to insult the rank, age or sex of the offended party Deliberate intent The aggravating circumstance of disregard of sex cannot be considered because it was neither been proved nor admitted by the defendant that in committing the crime he had intended to offend or insult the sex of the victim (Pp vs Mangsant, GR No 45704, May 25 1938) In this case the accused stabbed a 14-year old girl The alleged aggravating circumstance in this case, that is, disregard of respect due the offended party on account of age, cannot be appreciated since it was not shown that appellant deliberately intended to offend or insult the age of the offended party (Pp vs de la Cruz, GR Nos 154348-50, June 8, 2004) In this case the accused stabbed a sickly 81-year old man. Crimes against persons or honor With respect to disregard of age and sex, the Court has pronounced in the case of People vs Collado that the same may be appreciated only in crimes against person or honor (Pp vs Hernandez, GR No 139697, June 15 2004) Dwelling of offended party Dwelling means a building or structure exclusively used for rest and comfort. It may refer to the entire structure or a portion thereof Privacy and sanctity of home It is considered an aggravating circumstance primarily because of the sanctity of privacy that the law accords to the human abode. He who goes to anothers house to hurt him or do him wrong is more guilty than he who offends him elsewhere (Pp vs Evangelio, GR No 181902, Aug 31, 2011) Pp vs Alcala, GR No L-18988, December 29, 1922 As to whether the crime must be held to have been committed in the dwelling of the offended party, we take it that although the accused were found with the deceased at the foot of the staircase of the house, that place must be regarded as an integral part of the dwelling of the family. The porch of a house, not common to different neighbors, is a part of the dwelling Sufficient provocation by owner of the dwelling When there is sufficient provocation by the owner of the dwelling, this circumstance cannot be appreciated There must be a close relation between provocation and commission of crime in the dwelling of the person from who the provocation came. US vs Licarte, GR No 6784, Aug 15, 1912 In the case at bar the offended party, by calling Filomena vile names started the trouble. This vile language was not directed at the accused, but to her daughter. This was, however, a sufficient provocation to cause the accused to demand an explanation why her daughter was so grossly insulted. So under these facts, it was error to hold that the aggravating circumstance of morada existed. Pp vs Dequina, GR No 41040, Aug 9, 1934

The provocation was not given immediately prior to the commission of the crime and had no particular relation to the house of the deceased. If the defendant had entered the house of the deceased and surprised the deceased and the wife of the defendant in the act of adultery, the aggravating circumstance of morada would not exist When provocation negates dwelling Provocation must be immediately prior to the commission of the crime, and There must be a close relation between the provocation and the crime committed in the dwelling of the person from whom the provocation came Pp vs Agoncillo, GR No 138983, May 23, 2001 Dwelling is considered as an aggravating circumstance primarily because of the sanctity of privacy the law accords to the human abode. However, in the present case, Rosalyn was not raped therein. Although she was abducted therefrom, accused-appellant was not charged with forcible abduction with rape but only with rape. Considering that she was not raped in her home, dwelling cannot be appreciated ABUSE OF CONFIDENCE OR OBVIOUS UNGRATEFULNESS The offended party trusts the offender The offender abused such trust, and The abuse facilitated the commission of the crime Pp vs Caliso, GR No 37271, July 1, 1933 in the commission of the crime the aggravating circumstance of grave abuse of confidence was present since the appellant was the domestic servant of the family and was sometimes the deceased childs amah PALACE OF THE CHIEF EXECUTIVE, IN HIS PRESENCE, PUBLIC AUTHORITIES ARE ENGAGED IN THE DISCHARGE OF DUTIES OR IN A PLACE DEDICATED TO PUBLIC WORSHIP Palace of the Chief Executive and place dedicated to public worship official or religious functions need not be held Where public authorities are engaged in the discharge of their duties there must be some performance of public functions Intent to commit the crime There must be evidence that the accused had the intention to commit a crime when he entered the place NIGHTTIME, UNINHABITED PLACE, BY BAND it has been held that if the aggravating circumstances of nighttime, uninhabited place or band concur in the commission of the crime, all will constitute one aggravating circumstance only as a general rule although they can be considered separately if their elements are distinctly perceived and can subsist independently, revealing a greater degree of perversity (Pp vs Librando, GR No 132251, July 6, 2000) Pp vs Silva GR No 140871, Aug 8, 2002

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it becomes aggravating only when: (1) it is especially sought by the offender; or (2) it is taken advantage of by him; or (3) it facilitates the commission of the crime by ensuring the offenders immunity from capture The fact that they brought with them a flashlight clearly shows that they intended to commit the crime in darkness Darkness or obscurity The essence of this aggravating circumstance is the obscuridad afforder by, and not merely the chronological onset of, nighttime . Although the offense was committed at night, nocturnity does not become a modifying factor when the place is adequately lighted and, thus, could no longer insure the offenders immunity from identification or capture (Pp vs Carino, GR No 131117, June 15, 2004) Uninhabited place That there was a reasonable possibility for the victim to receive some help in the place of the commission of the crime Pp vs Rubia, GR No 28792, October 6, 1928 The aggravating circumstance of the crime having been committed in an uninhabited place must be considered, the incident having taken place at sea where it was difficult for the offended party to receive help, while the assailants could easily have escaped punishment Band This circumstance is present when more than three armed men acted together in the commission of the offense In other words the four armed men must directly participate in the execution of the act constituting the crime Pp vs Magdamit, GR No 118130, Sept 24, 1997 An offense is committed en cuadrilla when more than three armed malefactors shall have acted together in the commission thereof. In the present case, there were seven armed conspirators involved in the commission of the composite crime Pp vs Dinamling, GR No 134605, Mar 12, 2002 All four accused-appellants were armed, three with long firearms and the other with a short one. They all took part in the commission of the robbery with homicide, poking their guns at their victims heads, tying them up, ransacking the house, and killing the two victims. Pp vs Lozano. GR Nos 137370-71, Sept 29, 2003 The Code does not define or require any particular arms or weapons; any weapon which by reason of its intrinsic nature or the purpose for which it was made or used by the accused, is capable of inflicting serious or fatal injuries upon the victim of the crime may be considered as arms for purposes of the law on cuadrilla Guns and knives The trial court and the CA correctly appreciated the aggravating circumstance of the commission of a crime by a band. In the crime of robbery with rape, band is considered as an aggravating circumstance. The prosecution established that one of the accused was armed with a handgun, while the other three had knives when they committed the crime. (Pp vs Evangelio, GR No 181902, Aug 31, 2011)

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ON THE OCCASION OF A CONFLAGURATION, SHIPWRECK, EARTHQUAKE, EPIDEMIC OR OTHER CALAMITY OR MISFORTUNE The rule in here is that the offender must take advantage of the calamity or misfortune in the commission of the crime AID OF ARMED MEN OR PERSONS WHO UNSURE OR AFFORD IMPUNITY The armed men must not participate in the execution of the felony otherwise they are coprincipals Must be accomplices Aid of armed men or persons affording immunity requires that the a rmed men are accomplices who take part in minor capacity, directly or indirectly. We note that all four accused were charged as principals. The remaining suspects John Doe, Jane Doe and Peter Doe were never identified and charged. Neither was proof adduced as to the nature of their participation (Lozano) RECIDIVISM A recidivist is one who, at the time of the trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the RPC Requisites: That the offender is on trial for an offense That he was previously convicted by final judgment of another crime That both the first and second offense are embraced in the same title of the RPC That the offender is convicted of the second offense Criminal propensity There is no recidivism if the second conviction is for a crime committed before the commission of the crime involved in the first conviction Pp vs Rapisora, GR No 147855, May 28, 2004 Article 14(9) of the RPC defines a recidivist as 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 this Code To prove recidivism, it is necessary to allege the same in the information and to attach thereto certified copies of the sentences rendered against the accused

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10. REITERACION OR HABITUALITY Requisites: The accused is on trial He previously served sentence for another offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty than that for the new offense The accused is convicted for the new offense Recidivism and Habituality In recidivism, the important period to consider is: previously convicted by final judgment of another crime. In reiteracion, the accused had previously served

sentence. Both are similar in that the time of appreciating is at the time the offender is facing trial for another offense and that he be eventually convicted Recidivism Offender is convicted by final judgement The offenses are included in the same title of the RPC The offenses are embraced in the same title of the RPC, penalty is immaterial Habituality Offender serves out his sentence in the previous conviction The previous and subsequent offenses need not be embraced in the same title of the RPC Previously served sentence: Law attaches a greater penalty Two or more (lighter penalty)

instead of treachery which will then be relegated merely as a generic aggravating circumstance 13. EVIDENT PREMEDITATION Requisites: The time when the offender determined to commit the crime An act manifestly indicating the culprits determination to commit the crime A sufficient lapse of time between determination and execution Pp vs Tobechukwu, GR No 142044, Nov 23, 2001 The evidence of evident premeditation is that the execution of the criminal act is preceded by cool thought and reflection upon the resolution to carry out the criminal intent within a space of time sufficient to arrive at a calm judg ment US vs The Moro Manalinde, GR No 5292, Aug 28, 1909 As to the other circumstance it is also unquestionable that the accused, upon accepting the order and undertaking the journey in order to comply therewith, deliberately considered and carefully and thoughtfully meditated over the nature and the consequences of the acts which, under orders received from the said datto, he was about to carry out, and to that end provided himself with weapon, concealing it by wrapping it up, and started on a journey of a day and a night for the sole purpose of taking the life of two unfortunate persons Pp vs Duavis, GR No 190861, Dec 7, 2011 To the mind of the Court, the lapse of time between the decision and the execution is not sufficient to allow appellant to fully reflect upon the consequences of his act and to effectively and efficiently prepare and plan his actions prior to the commission of the crime. Although it may be argued that there was some kind of premeditation on the part of appellant Duavis, it was not proved to be evident. (Altercation 3:00 pm; assault 5:00 pm) Pp vs Concillado, GR No 181204, Nov 28, 2011 The evidence must show that the decision to kill prior to the moment of its execution was the result of meditation. Calculation, reflection or persistent attempts. Absent such evidence, mere presumptions and inferences are insufficient. Evident premeditation may not be appreciated where there is no proof as to how and when the plan to kill was hatched or the time that elapsed before it was carried out Pp vs Hilario, GR No 128083, Mar 16, 2001 Evident premeditation, however, may not properly be taken into account when the person whom the defendant proposed to kill was different from the one who became his victim. When the person decided to kill a different person and premeditated on the killing of the latter, but when he carried out his plan he actually killed another person, it cannot properly be said that he premeditated on the killing of the actual victim Differentiated from Manalinde The fact that the arrangement between the instigator and the tool considered the killing of unknown persons, the first encountered, does not bar the consideration of

11. IN CONSIDERATION OF A PRICE, REWARD OR PROMISE The price, reward or promise must be the primary consideration of the offender in committing the crime Includes the person who gives the reward In Pp vs Talledo, GR No L-1778, Feb 23, 1950, this circumstance was not considered primarily because there was no conclusive evidence and the circumstance was not alleged in the information Pp vs Alincastre, GR No L-29891, Aug 30, 1971 The Talledo case is not authority on this question Indeed, the established rule in the Spanish jurisprudence is to the effect that the aggravating circumstance of price, reward or promise thereof affects equally the offeror and the acceptor Greater moral depravity In fact, under certain conditions such as those obtaining in the case at bar the circumstance under consideration may evince even greater moral depravity in the offeror than in the acceptor (Alincastre) Pp vs Canete, GR No L-37945, May 28, 1984 Likewise, the aggravating circumstance of price was present in the commission of the crime and this affects not only the person who received the money or the reward but also the person who gave it. 12. BY MEANS OF INUNDATION, FIRE, POISON, EXPLOSION, STRANDING OF VESSEL OR INTENTIONAL DAMAGE THERETO, DERAILMENT OF LOCOMOTIVE, OR ANY OTHER ARTIFICE INVOLVING GREAT WASTE OR RUIN Any of the circumstances in this paragraph must be used by the offender to accomplish the crime, hence the phrase by means of Pp vs Comadre, GR No 153559, June 8, 2004 When the killing is perpetrated with treachery and by means of explosives, the latter shall be considered as a qualifying circumstance. Not only does jurisprudence support this view but also, since the use of explosives is the principal mode of attack, reason dictates that this attendant circumstance should qualify the offense

the circumstance of premeditation. The nature and the circumstances which characterize the crime, the perversity of the culprit, and the material and moral injury are the same, and the fact that the victim was not predetermined does not affect nor alter the nature of the crime 14. CRAFT, FRAUD OR DISGUISE Craft involves intellectual trickery and cunning Craft should also be appreciated as aggravating the crime of homicide since it was shown that the victims, particularly the unsuspecting Quillosa, were lured by the accused into coming with them on the pretext that the former would only accompany Rivera to accept the proceeds of the sale of a gun (Pp vs Michael Nunez, GR No 112429-30, July 23, 1997) Disguise It was also worth mentioning that while appellant reportedly had a sort of a mask and was using sunglasses, these clumsy accouterments could not constitute the aggravating circumstance of disguise. Legally, disfraz contemplates a superficial but somewhat effective dissembling to avoid identification (Pp vs Reyes, GR No 118649, Mar 9, 1998) Pp vs Cabato, GR No L-37400, Apr 15, 1988 Likewise, the Court considers disguise as another aggravating circumstance. The accused, together with two others, wore masks to cover their faces. There could have been no other purpose for this but to conceal their identities particularly for Cabato who was very much known to the offended parties. The fact that the mask subsequently fell down thus paving the way for Cabatos identification will no t render this aggravating circumstance inapplicable Pp vs Cunanan. GR No L-30103, Jan 20, 1977 The malefactors resorted to a disguise. That circumstance did not facilitate the consummation of the killing. Nor was it taken advantage of by the malefactors in the course of the assault. They announced their presence at the scene of the crime with shouts and gunshots. That mode of attack counteracted whatever deception might have arisen from their disguise Disguise Purpose of the offender is to conceal his identity To facilitate the commission of the crime Offender takes advantage of the disguise 15. ADVANTAGE BE TAKEN OF SUPERIOR STRENGTH OR MEANS BE EMPLOYED TO WEAKEN THE DEFENSE must show that the accused were physically stronger than the victim, and that they abused such superiority by taking advantage of their combined strength to consummate the offense (Pp vs Drew, GR No 127368, Dec 3, 2011) Pp vs Padilla, GR No 75508, June 10, 1994 Abuse of superior strength is present not only when the offenders enjo y numerical superiority, or there is a notorious inequality of forces between the victim and the

aggressor, but also when the offender uses a powerful weapon which is out of proportion to the defense available to the offended party Pp vs Amodia, GR No 177356, Nov 20, 2008 To appreciate the attendant circumstance of abuse of superior strength, what should be considered is whether the aggressors took advantage of their combined strength in order to consummate the offense. Mere superiority in number is not enough to constitute superior strength. There must be clear proof that the assailants purposely used excessive force out of proportion to the defense available to the person attacked Pp vs Ventura, GR Nos 148145-46, July 5, 2004 On the contrary, this Court in a very long line of cases has consistently held that an attack made by a man with a deadly weapon upon an unarmed and defenceless woman constitutes the circumstance of abuse of that superiority which his sex and the weapon used in the act afforded him, and from which the woman was unable to defend herself Means employed to weaken defense The means must not be of such a nature that the victim could not put up any sort of defense otherwise that would be a case of treachery Pp vs Ducusin, GR No 30724, Aug 8, 1929 The aggravating circumstance defined in Article 10 No. 9 of the RPC, that is, the employment of means to weaken the defense, consisting in this case, in having made the deceased intoxicated, must be taken into account

16. TREACHERY 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 insure its execution, without risk to himself arising from the defense which the offender might make (Pp vs Gidoc, GR No 185162, Apr 24, 2009) Essence of treachery The essence of treachery is a swift and unexpected attack on an unarmed victim without the slightest provocation on the latters part (Gidoc) Pp vs Yanson, GR No 179195. Oct 3, 2011 Verily appellant employed means which insured the killing of Magan and such means assured him from the risk of Magans defense had he made any. It must also be noted that Magan was stabbed four times in the back and two of these wounds were the proximate cause of his death. Stabbing from behind is a good indication of treachery Pp vs Regalado, GR No 177302, Apr 16, 2009 The essence of treachery is a deliberate and sudden attack that renders the victim unable and unprepared to defend himself by reason of the suddenness and severity of the attack. In the case at bar, Chu was caught off-guard when, after he was asking forgiveness from Regalado. The latter suddenly drew a curved knife and stabbed and pursued the following victim. And once Regalado and his co-appellants

cornered Chu, Aragon kicked and punched him while Lopez stabbed him several times to thus preclude Chua from defending himself Treachery cannot be presumed It is not only the central fact of a killing that must be shown bey ond reasonable doubt; every qualifying or aggravating circumstance alleged to have been present and to have attended such killing must similarly be shown by the same degree of proof (Pp vs Abdulah, GR No 182518, Jan 20, 2009) Elements of treachery There is treachery when the following essential elements are present, viz: (a) at the time of the attack, the victim was not in a position to defend himself; and (b) the accused consciously and deliberately adopted the particular means, methods or forms of attack employed by him (Velasco vs Pp, GR No 166479, Feb 28, 2006) Not in a position to defend himself In this case, the victim was unarmed; and was attacked from behind and at close range. The assailant further hid behind the window to mask his presence and identity (Pp vs Dela Pena, GR No 183567, Jan 19, 2009) Means must be consciously adopted The suddenness and unexpectedness of the appellants attack rendered inspector Barte defenceless and without means of escape. There is no doubt that appellants use of a calibre .45 pistol, as well as his act of waiting for inspector Barte to be seated first in the jeep before approaching him and of shooting inspector Barte several times on the head and chest, was adopted by him to prevent inspector Barte from retaliating or escaping (Pp vs Guevarra, GR No 182192, Oct 29, 2008) Baluyot and Canete If the aggression is continuous treachery must be present at the beginning of the assault If there is an interruption in the assault, it is sufficient that treachery be present at the moment the fatal blow was delivered. It is this interruption that gives the accused the time to consciously and deliberately adopt the means and method of execution with treachery That Juan Angel, and not his mother, was apparently, the intended victim is not incompatible with the existence of treachery. Treachery may be taken into account even if the victim of the attack was not the person whom the accused intended to kill (Pp vs Trinidad, GR No L-38930, June 28, 1988) Frontal assault Hence, it no longer matters that the assault was frontal since its swiftness and unexpectedness deprived Cesario of a chance to repel it or offer any resistance in defense of his person (Pp vs Agacer, GR No 177751, Dec 14, 2011)

Means are employed or circumstances surround the act that tend to make the effects of the crime more humiliating (US vs Abaigar, GR No 1255, Aug 17, 1903) US vs de Leon, GR No 522, Mar 10, 1902 There is present also the twelfth generic circumstance of Article 10, proved by the fact that the deceased, a land owner, was forced to kneel in front of his four servants drawn up in line before him Pp vs Acaya, GR No L-72998, July 29, 1988 The fact that the crime was committed in a public place and in the presence of many persons did not necessarily tend to make the effects of the crime more humiliating or put the offended party to shame Pp vs Siao, GR No 126021, Mar 3, 2000 It has been held that where the accused in committing the rape used not only the missionary position, i.e. male superior, female inferior but also the dog position as dogs do, i.e. entry from behind, as was proven like the crime itself in the instant case, the aggravating circumstance of ignominy attended the commission thereof

18. UNLAWFUL ENTRY When an entrance is effected by a way not intended for the purpose Entrance through the window (Pp vs Mendiona, GR No 129056, Feb 21, 2000) 19. BREAKING THE WALL, ROOF, FLOOR, DOOR OR WINDOW The breaking must be resorted as a means to the commission of the crime What distinguishes this from unlawful entry is that in the latter the window or point of ingress need not to be broken 20. AID OF PERSONS UNDER 15 OR BY MEANS OF MOTOR VEHICLE, AIRSHIPS OR OTHER SIMILAR MEANS The motor vehicle, airship, etc., must be deliberately used in the commission of the crime Besides, it has been established during the trial that the accused used the motor vehicle in going to the place of the crime in carrying away the effects thereof, and in facilitating their escape (Pp vs Espejo, GR No L-27708, Dec 19, 1970) 21. CRUELTY Cruelty refers to physical suffering as compared to ignominy which refers to moral suffering, i.e. disgrace and shame Test in appreciating cruelty whether the accused deliberately and sadistically augmented the wrong by causing another wrong not necessary for its commission, or inhumanly increased the victims suffering or outraged or scoffed at his person or corpse the culprit enjoys and delights in making his victim suffer slowly and gradually, causing him moral and physical pain which is unnecessary for the consummation of the criminal act which he intended to commit (Pp vs Sitchon, GR No 134362, Feb 27, 2002)

17. IGNOMINY Ignominy is a circumstance pertaining to the moral order, which adds disagree and obloquy to the material injury caused by the crime

ARTICLE 15: ALTERNATIVE CIRCUMSTANCES Alternative circumstances may be considered either as aggravating or mitigating circumstances according to the (1) nature and effects of the crime and (2) other conditions attending to its commission Relationship Intoxication Degree of instruction and education Relationship Spouse Ascendant Descendant Brother or sister (legitimate, natural or adopted) Relative by affinity in the same degree of the offender Other relatives by analogy Stepfather or stepmother and stepson or stepdaughter Adopted parent and adopted child Not included: Uncle and niece Cousins (Pp vs Calongui, Mar 3, 2006, GR No 170566) Relationship between a step-grandniece and her step-grandfather is not one of the relatives specifically enumerated therein (Pp vs Capareda, GR No 128363, May 27, 2004) Generally relationship is Mitigating (crimes against property) Aggravating (crimes against persons where offended party is of a higher degree than offender or of the same level) Exceptions In serious physical injuries relationship is aggravating no matter the degree of relationship In homicide or murder relationship is aggravating In crimes against chastity it is always aggravating Pp vs Orillosa, GR Nos 148716-18, July 7, 2004 The alternative circumstance of relationship under Article 15 of the RPC should be appreciated against appellant. In crimes of chastity such acts of lasciviousness, relationship is considered as aggravating. Inasmuch as it was expressly alleged in the information and duly proven during trial that the offended party is the daughter of appellant, relationship, therefore, aggravated the crime of acts of lasciviousness Pp vs Glodo, GR No 136085, July 7, 2004 The information alleges that Maricel was only 15 years old at the time the crime was committed and that she is the daughter of appellant. However, the prosecution merely presented the oral testimony and sworn statement of Maricel. It failed to present independent evidence proving the age of the victim and her relationship with appellant so as to warrant the imposition of death penalty Relationship as element of the offense

Parricide (victim is father, mother, child ascendant, descendant or spouse) Adultery (wife) Concubinage (husband) In these cases relationship is neither mitigating nor aggravating Intoxication Mitigating (1) Not habitual or (2) Unintentional/accidental/not subsequent to the plan to commit the felony Aggravating (1) Habitual or (2) Intentional/subsequent to the plan to commit the felony Mere proof that offender imbibed intoxicating liquor is not sufficient Although there is no hard and fast rule on the amount of liquor that the accused imbibed on that occasion, but the test is that it must have sufficed to affect his mental faculties, to the extent of blurring his reason and depriving him of selfcontrol Absent clear and convincing proof as to appellants state of intoxication, we are unable to agree that the alternative circumstance of intoxication was present to aggravate the offense (Pp vs Inggo, GR No 140872, June 23, 2003) Presumption When the accused is established to be drunk, the presumption is that it was not habitual but accidental and, therefore, mitigating. Degree of instruction or education Mitigating when there is lack of instruction or education. There must also be lack of sufficient intelligence Exceptions: Crimes against property Crimes against chastity Murder Aggravating when there is high degree of instruction or education when taken advantage of by offender Pp vs Bernal, GR Nos 132791 & 140465-66, Sept 2, 2002 Thus, in the absence of clear and convincing proof that the intoxication was habitual or intentional on the part of accused-appellant, it is improper to consider the same as an aggravating circumstance. But his intoxication cannot likewise be considered mitigating because accused-appellant failed to show that his intoxication impaired his will power or his capacity to understand the wrongful nature of his acts. The person pleading intoxication must prove that he took such quanitity of alcoholic beverage, prior to the commission of the crime, as would blur his reason Pp vs Mangsant, GR No 45704, May 25, 1938 Lack of instruction cannot apply to one who has studied in t he first grade in a public school, but only to him who really has not received any instruction Persons criminally liable

The general rule is that an offender is criminally liable for his own actions When there is only one felony, he alone is criminally liable In case of multiple offenders, criminal liability depends on the degree and nature of participation in the criminal act