1. Essential elements of the crime were not proved by the prosecution 2. Justifying Circumstances (Art. 11) 3.

Exempting Circumstances (Art. 12) 4. Case is covered by any absolutory cases (Articles 6, 7, 20, 124, 280, 332, 247, 344 & Instigation) 5. Guilt of the accused is not proved beyond reasonable doubt 6. Prescription of crimes (Art. 89) 7. Pardon by the offended party before the institution of criminal action in crime against chastity (Art. 344)

[The Revised Penal Code, Luis Reyes, 2012 ed.; pp260-261)

Mitigating Circumstance

- the offender commits a crime - there is criminal liability - if present, the effect is to reduce penalty - does not change the nature of the crime

Basis: Diminution of either freedom of action, intelligence, or intent, or on the lesser perversity of the offender

Classes of Mitigating Circumstances

1. Ordinary Mitigating

- those enumerated in Article 13 of RPC (3-10)

2. Privileged Mitigating

a. Art. 68 Penalty to be imposed upon a person under eighteen years of age - Person over 15 but under 18 years of age who acted with discernment (penalty shall be decreased by one period - amended by R.A. 9344)

b. Art. 69 Penalty to be imposed when the crime committed is not wholly excusable

- Lack of the conditions required in justifying and exempting circumstances (penalty lower by
one or two degrees than what is provided by law)

c. Art. 64 Rules on the application of penalties which contain three periods - Two mitigating circumstances are present and no aggravating circumstances (penalty next lower to what is prescribed by law)

1 and 2 of Article 13 - PM

Specific Privileged Mitigating Circumstance [PM applicable only to certain crimes] - Slight Illegal Detention: Voluntary release of a person detained within 3 days before the institution of a criminal actions (Art. 268 (3)) - Abandonment in Adultery (Art. 333 (3) - Intent to Conceal the Dishonor in Infanticide (Art. 255)

Art. 64 Special Mitigating Circumstance

(presence of two mitigating circumstances without the presence of aggravating circumstance effect: reduces the penalty to one degree lower)

Distinction: Ordinary Mitigating - CAN be offset by any aggravating circumstance - produces the effect of lowering the penalty to its minimum (when not offset by aggravating circumstance)

Privileged Mitigating - CANNOT be offset by any aggravating circumstance - produces the effect of lowering the penalty by one or two degrees

1. Incomplete Justifying or Exempting Circumstances

Justifying and Exempting Circumstances (may give place to motivation) - Self-defense - Defense of relatives - Defense of stranger - State of necessity - Performance of duty - Obedience to order of superior - Minority over 9 and under 15 years of age - Causing injury

Requisites necessary to justify the act are not attendant:

a. Incomplete self-defense, defense of relatives and defense of strangers - applies only when there is unlawful aggression (indispensable) and other two requisites are absent

b. Incomplete justifying circumstance of avoidance of greater evil or injury - first requisite (evil sought to be avoided actually exist) but other two requisites are absent

c. Incomplete justifying circumstance of performance of duty - Landmark case: People vs. Oanis (Balagtas was killed by the accused. They latter acted in performance of a duty *to arrest Balagtas* but they exceeded in the fulfillment of such duty)

d. Incomplete justifying circumstance of obedience to an order

2. Under Eighteen or Over Seventy Years Old

- impliedly repealed by R.A. 9344

Elements: a. the minor is above 15 but under 18 years of age b. such minor acted with discernment

Penalty: Diversion program (program that a child in conflict with the law is required to undergo after he or she is found responsible for an offense)

Contract of diversion entered into during conferencing, mediation and conciliation

Over 70 years of age ordinary mitigating circumstance Basis: Diminution of intelligence (condition of voluntariness)

3. No Intention to Commit So Grave a Wrong

Intention an internal state; must be judged by external acts; may be judged by the weapon used, the injury inflicted and the manner inflicted

Notes: - When the offender uses brute force, there is intent to kill. - Lack of intent to kill in physical injuries is not mitigating.

Not applicable to: a. culpable felonies b. felonies where intention is not material c. felonies not resulting to physical injuries or material harm d. anti-hazing law

4. Provocation or Threat
Provocation unjust or improper conduct or act of the offended party, capable of exciting, inciting or irritating any one

Requisites: a. sufficient provocation adequate to excite a person to commit the wrong

b. must originate from the offended party c. the provocation was immediate to the act (no time interval)

Note: There is no mitigating circumstance when the deceased was killed after he had fled. (Two stages) Basis: Diminution of intelligence and intent

Requisites of sufficient threat: a. there must be a threat on the part of the offended party b. must be sufficient c. must immediately precede the criminal act committed by the offender

5. Vindication of Grave Offense

Requisites: a. there be a grave offense done to the one committing the felony, his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by affinity within the same degree b. felony is committed in the vindication of the grave offense

Note: A lapse of time is allowed between the vindication and the doing of the grave wrong (proxima). It must be shown that there was no interruption from the time the offense was committed to the vindication thereof. If the person has sufficient time to recover his or her serenity, then there is no mitigating circumstance of vindication of grave offense.

Distinction between provocation and vindication: Provocation - made directly to the person committing the felony

- the cause that brought the provocation need not to be a grave offense - must immediately precede the act Vindication - may be committed also against offenders relatives - offended party must have done a grave offense to the person committing the felony or his relatives - may be proximate (time interval allowed)

Grave offenses (concerns the honor of the person) - killing of a relative - sarcastic remark (calling the offender as tyrant)

Landmark case: U.S. vs. Ampar (G.R. No. 12883 / p. 283, 2008 ed.)

Basis: Diminution of the conditions of voluntariness

Note: - Vindication of a grave offense and passion or obfuscation cannot be counted separately and independently

6. Passion or Obfuscation
- the accused acted upon an impulse -impulse must be so powerful that it naturally produced passion or obfuscation in him

Reason why it is mitigating: Passion and obfuscation make a person lose his self-control which diminishes the exercise of his will power

Requisites: a. the victim committed an unlawful and unjust act which produced passion or obfuscation b. passion must arise from lawful sentiments (not from spirit of lawlessness or revenge) c. passion and obfuscation caused lost of control and reason on the part of the person who committed the felony (offender) d. there is no sufficient time for the offender to recover his normal equanimity

Note: - There is no passion or obfuscation if half an hour, twenty four hours or several hours have passed. - Vengeance is not a lawful sentiment. - Vindication of grave offense cannot co-exist with passion and obfuscation. - Passion and obfuscation cannot co-exist with: treachery, evident pre-meditation

Landmark case: - U.S. vs Hicks (14 Phil. 217 / p. 290, 2008 ed.) The accused killed the deceased (common-law wife) because of jealousy. There is no mitigating circumstance because the lose of self-control did not arise from legitimate feelings. Basis: The offender suffers a diminution of his intelligence and intent. Distinction between passion or obfuscation and irresistible force: Passion or obfuscation - mitigating circumstance - cannot give rise to irresistible force

- is in the offender himself - arise from lawful sentiments

Irresistible force - exempting circumstance - requires physical force - must come from a third person - unlawful

Distinction between passion or obfuscation and provocation: Passion or obfuscation - produced by an impulse which may be caused by provocation - must immediately precede the commission of the crime Provocation - comes from the injured party - the office which engenders perturbation of mind need not be immediate

7. Surrender and Confession of Guilt

Two mitigating circumstances: a. voluntary surrender to a person in authority or his agents b. voluntary confession before the court prior to the presentation of evidence for the prosecution

Requisites of voluntary surrender:

a. offender had not been actually arrested b. offender surrendered himself to a person in authority or to latters agent c. surrender was voluntary

Voluntariness - spontaneous (acting without stimulus) - the accused surrendered unconditionally to the authorities or their agents because a. he acknowledges his guilt; or b. he wishes to save the authorities and their agents the trouble and expenses necessarily incurred in the search and capture Note: - Surrender of weapon cannot be equated with voluntary surrender.

Person in authority - a public officer who has the power to govern and execute the laws (see Art, 152 of RPC)

Requisites of plea of guilty: a. offender spontaneously confessed his guilt b. confession of guilt was made in an open court (extrajudicial confession not allowed) c. confession of guilt was made prior to the presentation of evidence for the prosecution (court of first instance: municipal court)

Basis: Lesser perversity of the offender

When is plea of guilty not mitigating? When the three requisites are not complete, in culpable felonies and in crimes punished by special laws.

8. Physical Defect
- deaf and dumb; blind - must restrict means of action, defense or communication with fellow beings

Basis: Diminution of that element of voluntariness

9. Illness of the Offender

- refers only to disease of pathological state that trouble the conscience or will - includes to illness of the mind and disorders

Requisites: a. illness of the offender must diminish the exercise of his will-power b. such illness should not deprive the offender of consciousness of his acts

Basis: Diminution of intelligence and intent

10. Similar and Analogous Circumstances

- Over 60 years old with failing eyesight similar to over 70 years of age mentioned in par. 2 - Impulse of jealous feeling similar to passion and obfuscation - Outraged feeling of creditor similar to passion and obfuscation - Manifestations of Battered Woman Syndrome analogous to an illness that diminishes the exercise of will power

- Esprit de corps similar to passion or obfuscation - Voluntary restitution of stolen property similar to voluntary surrender - Extreme poverty and necessity similar to incomplete justification based on state of necessity

What are NOT mitigating: - killing the wrong man - not resisting arrest or yielding to arrest without the slightest attempt to resist Circumstances which are neither exempting nor mitigating: a. mistake in the blow (aberratio ictus) b. mistake in the identity of the victim c. entrapment of the accused d. accused is over 18 years of age e. performance of a righteous action