Criminal Law Review Lectures by Judge Tarcelo A. Sabarre Jr.

Lecture 5 June 28, 2013 37:17 Art. 13 Mitigating Circumstances Pars. 8 10 Art. 14 Aggravating Circumstances Pars. 1 3 We ended up with a very important and interesting discussion last meeting on voluntary surrender and plea of guilty. In fact, my lecture was not criminal in nature. My lecture was more on procedure. We will discuss the 3 remaining mitigating circumstances which are actually very easy already. Quite not very interesting but we will make it very interesting tonight. Tiozon, you select one. I think she will finish all the mitigating circumstances. Too easy and so cheap a question. Number 8? Par. 8 That the offender is deaf and dumb, blind or otherwise suffering from physical defect which thus restricts his means of action, defense, or communication with his fellow beings. Dapat deaf and dumb. Very easy na. No need to explain. Number 9? Par. 9 Such illness of the offender as would diminish the exercise of the will-power of the offender without however depriving him of consciousness of his acts. Di ba this was the one I was telling you in reference to the term insanity, Mr. Robio, di ba? If the deceased was not yet fully settled as whether it was covered by the term insanity, your answer would be: Because of that act, he was completely deprived of his reason, it becomes exempting. If there is only diminution of intelligence as a consequence of the particular act, that is mitigating under paragraph no. 9. Whether he was completely deprived or there is completely a diminution of intelligence, that will be number 9. Number 10? Par. 10 And finally, any other circumstances of a similar nature and analogous to those abovementioned. The analogous cases here are those which are in reference to those enumerated for those numbers 1 to 9 with a difference between entrapment and instigation. Q: Entrapment is allowed, legal. Instigation is not. Where lies the difference? (pg. 247)
Transcribed by: Joahna C. Bulanadi LLB IV-A

1st Sem AY 2013-2014 A: In instigation, a public officer or a private detective induces an innocent person to commit a crime and would arrest him upon or after the commission of the crime by the latter. It is an absolutory cause. Sirs ad lib: practically inducing another to commit a crime. In the process he becomes a principal by inducement.

In entrapment, a person has planned, or is about to commit, a crime and ways and means are resorted to by a public officer to trap and catch the criminal. Entrapment is not a defense. I told you that entrapment is more or less in the context of buy-bust operation because you were told by Judge Caloy in Political Law that the concept of buy-bust operation is actually considered as valid because of the presumption that those who are involved are in the performance of their official duties. Tapos you take note nalang like analogous. (pgs. 322-325) Analogous to voluntary surrender voluntary restitution of stolen property Analogous to plea of guilty testifying for the prosecution Extreme poverty and necessity similar to incomplete justification based on state of necessity Sirs ad lib: You would agree with me that analogous cases mentioned in par. 10 is not only limited in pars. 1-9 of Art. 13 but it has also made reference to justifying and exempting circumstances. So to speak.

Art. 14 Aggravating Circumstances In aggravating circumstances, I would put emphasis again that you would always remember for purposes of your BRAIN-DAMAGING midterm examinations and finals on whether one mitigating can co-exist or cannot co-exist with another. I know that since you are under me in the first year, you are really prepared to memorize all the elements. And why would I ask on those? I better ask on points where you cannot answer right away and I think that point is good for me to ask the BRAIN-DAMAGING question. But I already told you last meeting in what to do on whether a mitigating circumstances can be coexist or co-exist with another or can be treated independently or separately or not separately, my
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Criminal Law Review Lectures by Judge Tarcelo A. Sabarre Jr.

dear students. That is the one that you have to know in Article 13. Ms. Tiozon, you have at the onset to memorize the classification of aggravating circumstances because the effect on the presence of these circumstances depends on what kind or what qualification that aggravating circumstance is. 100% agree? Number 1? (pg. 328) 1. Generic aggravating circumstances generally applies to all crimes.

1st Sem AY 2013-2014 The effect of that would mean: It will not increase the penalty. Yah. You will not consider that in the imposition of the penalty because it becomes an essential element or ingredient of the felony without which the felony or the crime would not be committed. Clear na? I put emphasis na although in the rules of criminal procedure, dont worry. Youll be under me. We will give more lectures on that. That you cannot prove what is not alleged in information but I still feel that it will be applicable because in cases I repeat where the prosecution adduce an evidence an aggravating circumstance, even if not alleged in the information pero if it is generic, it can constitute as a waiver. But that would not apply definitely in a qualifying aggravating circumstance. Give me aggravating circumstance no.1. (pg. 335) Par. 1. That advantage be taken by the offender of his public position. Q: This aggravating circumstance is only applied when? A: When the offender is a public officer. Q: How do you determine whether the public officer in committing the crime took advantage of his official position? (pg. 336) A: The public officer must use the influence, prestige or ascendancy which his office gives him as a means by which he realizes his purpose. Q: Give me 3 crimes punished by the Revised Penal Code where this one is inherent and you will not consider this in the imposition of the penalty. (Book mentioned only 2.) A: 1. malversation of public funds (Art. 217) Sub-question: What is one element in malversation of public funds which will justify your answer correctly that taking advantage of his position is inherent? A: The crime was committed by reason of his office. Coupled with the fact that in malversation he must be in control or in custody of his funds. 2. falsification of documents committed by a public officer (Art. 171) Di ba falsification of an officer who took advantage of his official position. Punished under Art. 171. Jurisdiction is within the RTC.
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It is affected by the presence of an ordinary mitigating circumstance. Just like an ordinary mitigating circumstance, a generic aggravating circumstance, there can be an offset if there is the presence of an ordinary mitigating circumstance. You know that already. (Not in the book.) 2. Specific aggravating circumstance applies only to particular crimes like treachery in crimes against persons. Qualifying aggravating circumstance those that change the nature of the crime

3.

This is not affected by the presence of any mitigating circumstance. It places the penalty to the crime itself committed. But to be such, it must be alleged in the information. But that rule has become moot and academic. Kasi in the Rules of Criminal Procedure, whether generic or qualifying, that must be alleged in the information because you cannot prove those which are not alleged. Thats a basic elementary rule. Just like in civil cases, you are not allowed to prove those which are not alleged in the complaint or in your answer. Although there can still be an effect on this. Because if the prosecution is presenting a generic aggravating circumstance but it was not objected to by the accuseds counsel because the accused because the accused is not a graduate of DVOREF. Di ba, it can be considered as a waiver and therefore in the instance, the court may appreciate that in the imposition of the penalty but that one would definitely be not applicable in a qualifying because that must really be alleged in the information. That is one effect though. Because that can be waived but not in a qualifying aggravating. Did you get me there? (cross-refer to pg. 329) And last? 4. Inherent aggravating circumstance those that must of necessity accompany the commission of the crime. (Art. 62, par.2)

Transcribed by: Joahna C. Bulanadi LLB IV-A

Criminal Law Review Lectures by Judge Tarcelo A. Sabarre Jr.

This one is better. Atip. Number 2? Par. 2. That the crime be committed in contempt of or with insult to the public authorities. Q: The word, public authorities refer to whom? A: person in authority That is why I was telling you before that you have to know the difference between a person in authority or agent of a person in authority because there are some aggravating circumstances which are only applicable to each. One of which aggravating circumstance number 2 because the law says, contempt of refers to person in authority. I get a little naughty here. Q: Can you give me a principle in the application of this aggravating circumstance which you would like to share to your classmates tonight? Always be ready with that kind of question. (Found in other pages of the book which does not fall under par. 2) A: The contempt or insult must be deliberate. There must be a deliberate intent to insult another. This is the most important principle which I may say in this particular aggravating circumstance aside from that fact, I repeat, that as you said earlier, the word public authority refers only to a person in authority. Q: Give the requisites. A: Requisites: 1. 2. That the public authority is engaged in the exercise of his functions. That he who is engaged in the exercise of said functions is not the person against whom the crime is committed. The offender knows him to be a public authority. His presence has not prevented the offender from committing the criminal act.

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on the account of his (a) rank, (b) age, or (c) sex, or (2) that it be committed in the dwelling of the offended party, if the latter has not given provocation. Q: Along with aggravating circumstance number 6, if you look at these aggravating circumstances, apparently, there are 4: rank, age, sex, and dwelling. If all are these are present, what did I tell you in the first year? 4 separate or only 1? This the same principle with aggravating circumstance no. 6 which we will lecture tonight. A: Four circumstances are enumerated in this paragraph, which can be considered single or together. If all the circumstances are present, they have the weight of one aggravating circumstance only. (pg. 342) Except in the case of People vs. Santos. (pg. 363) Unless these are distinctly perceived and can exist independently from one to the other, then these can be treated as separate aggravating circumstances. That is the same in paragraph 6. Q: In one sentence, rank means? A: Rank refers to a high social position or standing in the society. Q: Age? A: Age applies to old age as well as tender age. I love it! Q: Sex? A: Sex refers only to the female sex, not to the male sex. Q: What is the rule Does it necessarily follow Mr. Atip na just because the victim is old or tender or a female that automatically, it is in the presence of these aggravating circumstance? What should the prosecution prove here? Pg. 343 A: 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 the sex or age of the offended party. Q: Definition of dwelling A: Dwelling must be a building or structure exclusively used for rest and comfort. It includes dependencies, the foot of the staircase and enclosure of the house. Q: There are instances wherein the offended party being a female are not considered aggravating circumstances.
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3. 4.

* If the crime is committed against a public authority while he is in the performance of his official duty, the offender commits direct assault (Art. 48) without this aggravating circumstance, because it is not a crime in contempt of or with insult to him, but a crime directly committed against him. Give me no. 3 aggravating circumstance. Par. 3 That the act be committed (1) with insult or in disregard of the respect due the offended party
Transcribed by: Joahna C. Bulanadi LLB IV-A

Criminal Law Review Lectures by Judge Tarcelo A. Sabarre Jr.

A: pg. 348 1. 2. 3. When the offender acted with passion and obfuscation. When there exist a relationship between the offended party and the offender. When the condition of being a woman is indispensable in the commission of the crime.

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Crimes: parricide, rape, abduction, seduction Holasca. I move on to dwelling. Q: Dwelling is not considered aggravating in the following instances. (pg. 354) 1. 2. When both the offender and offended party are occupants of the same house. When the robbery is committed by the use of force upon things, dwelling is not aggravating because it is inherent. In the crimes of trespass to dwelling, it is inherent or included by law in defining the crime. When the owner of the dwelling gave sufficient and immediate provocation. When the dwelling where the crime was committed did not belong to the offended party.

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4. 5.

Where the victim was raped in the boarding house where she was a bedspacer her room constituted a dwelling. Q: Is it necessary that the crime be committed inside the dwelling? (pg. 353) A: No. Even if the killing took place outside the dwelling, it is aggravating provided that the commission of the crime was begun in the dwelling.

Transcribed by: Joahna C. Bulanadi LLB IV-A

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