CRIMINAL LAW TRANSCRIPTION

FIRST MEETING ENZO

#13 June 21, 2014

The social injury is repaired by the imposition of imprisonment in case of conviction. ON the
other hand, the personal injury against the private offended party or the victim is repaired by the
imposition of civil indemnities, in case of conviction. So whenever a case is cited by the judge,
there is both the penalty of imprisonment in case of conviction, and together with imprisonment
there is a so called civil liability or civil indemnity that goes and that is personal to the private
offended party.

A crime is an act or omission committed or omitted in violation of the public law forbidding or
compelling it. Crime is an encompassing word. It includes both a felony and an offense.
Likewise it includes an infraction of the law. Strictly speaking, a felony refers to acts or omission
punishable by the RPC. Strictly speaking, offense refers to an act or omission punishable by
special penal laws, and infractions of the law refers to acts and omission in violation of the
ordinances passed by the local sanggunian. But whether it be a felony, an offense, or an
infraction of the law, they are all under the umbrella word crimes. So they are all included in the
generic term crimes.

In the Philippines, it is the Philippine legislature congress, which is composed of the senate
and the house of representatives that has the power to enact penal laws. So only the Filipino
legislature, that is our congress, that has the power to pass, to enact penal laws.

How about the president? The president can also issue penal executive orders and penal
presidential review if there is a law passed by congress delegating to the president such power
in times of emergency. So still, there must be a law enacted by congress which delegates to the
president the power to issue penal executive orders or penal presidential review.

The sources of Philippine Criminal law are:
1) The revised penal code and its amendment;
2) Special penal laws enacted by congress
3) Penal presidential decrees or penal executive orders issued by the president.

I said that congress has the power to enact penal laws. However, this power is not absolute in
nature. There are limitations in the power of congress to enact penal laws, and some of these
limitations are:
1) Penal laws enacted by congress must be general in its application. Otherwise, it would
be violative of the equal protection clause of the constitution.
2) Penal laws enacted by congress must not partake the nature of an ex-post facto law a
law which makes an act criminal, although at the time it was committed, it was not yet
so.
3) Penal laws enacted by congress must not be in the nature of a bill of attainder. A bill of
attainder is a law which penalizes without due process, without giving the offender the
opportunity to air his side, to be heard.
4) Penal laws enacted by congress must not provide for impossible imprisonment or
unusual, cruel punishment, and excessive fines. Congress cannot enact penal laws
which will provide for cruel and unusual punishment, or which would impose excessive
fines.
These are the limitations of the power of congress to enact penal laws.

There are three characteristics of criminal law:
1) Generality refers to the persons covered by the criminal law
It is provided that our criminal law shall be applied to all persons who live, reside
or sojourn within the Philippine territory, whether he be a Filipino citizen or a foreigner,
regardless of sex, creed, race, religion and other personal circumstances. So as long as
he is living in the Philippines, he has to abide with our Philippine criminal law. Our penal
laws shall apply to him. If he commits a violation then he has to be penalized.
The generality principle of criminal law is not absolute in nature. An exception to
that is based on public international law, generally accepted principles of public
international law, the heads of states, the sovereigns, and other diplomatic
representatives are immune from the criminal jurisdiction of the country where they are
assigned. This is known as diplomatic immunity from suit. So heads of state, sovereigns,
they cannot be prosecuted, they cannot be punished, they cannot be arrested for acts
performed by them while they are in the host country for violation of the penal laws of the
said host country, PROVIDED that the said act done in the exercise of their official
function.
In the case of Liang v. People, the SC said that this diplomatic immunity from suit
is not absolute. It is subject to the exception that the said act must be performed when
engaged in the performance of his official duty.
Ex.
A foreign ambassador who is assigned to the Philippines, after office hours, went
to a bar. He met a woman, brought a woman to a hotel, check in inside the hotel, and
inside the room he raped the woman. Can he be prosecuted for the crime of rape?
YES, because the crime of rape has nothing to do with the exercise of his official
functions.
Again, diplomatic immunity from suit of sovereigns, heads of state, diplomatic
representatives like ambassadors and public ministers are only limited to acts performed
by them in their official capacity.
How about a consul? Although a consul is also a dimplomatic representative, it is
also settled in PIL that a consul is subject to the jurisdiction of the country where he is
assigned. Therefore, if it is a consul who commits a violation of the penal laws of the
host country, he can very well be prosecuted before the courts of the said host country.
Exception to the rule: If there is a treaty stipulation between the host country and the
other country of the said consul which provides that the said consul is immune from suit.
Another limitation to the generality characteristic of criminal law is the so called
laws of preferential applications. They are laws which exempt certain individuals from
criminal prosecution. The best example of this is section 11, Art. 6 of the 1987
Constitution members of congress cannot be prosecuted for libel, slander, oral
defamation for every privilege, speech or debate they make in the halls of congress
while congress is in its regular or special session. So you have seen in TV Sen. Mirriam
Defensor-Santiago stating defamatory remarks in a privileged speech against Sen.
Enrile. He called Sen. Enrile a sex addict, a sex maniac, and the head of smuggling in
Cagayan. Yet Sen. Enriled cannot file a case of libel or defamation against Sen.
Santiago because it is within the coverage of the so-called congressional privilege of
speech and debate. It is a law of preferential application which exempts members of
congress from criminal prosecution for libel, slander or defamation for every speech or
debate made in the halls of congress while congress is its regular or special session.
2) Territoriality refers to the place where the penal law may be enforced
Under the territoriality characteristic, our criminal laws shall be enforcecd only
within the Philippine archipelago, including its atmosphere, its interior waters, and
maritime zone. Therefore, for crimes committed outside the Philippine archipelago, our
penal laws cannot apply. They can only be imposed for crimes committed within the
Philippine territory.
Again, the territoriality principle is not absolute. Exceptions to that are provided
for under the second paragraph of Article 2 of the RPC.
3) Prospectivity refers to the time when the penal law may be applied
Our penal laws may only be applied prospectively, that is from the time of its
effectivity and henceforth. Our penal laws cannot be given retroactive application.
Again, that is only a general rule. Exception to the rule: Under Article 22 of the
RPC, penal laws shall be given retroactive application if they are favorable to the
accused. Exception to the exception: If the said offender, if the said accused is a
habitual delinquent. Even if the penal law is favorable to him, it cannot be given
retroactive application.

There are two philosophies underlying the criminal law system:
1) Classical or juristic philosophy
a. The basis of criminal liability is human free will. Man is a moral creature who can
distinguish right from wrong and good from evil. Therefore, when he commits a
wrong, he does so knowingly and voluntarily
b. The purpose of penalty is to exact retribution. This philosophy revolves around
the maxim an eye for an eye, a tooth for a tooth. The offender is punished
based on the injury inflicted by him on the victim
c. The determination of penalty is done mechanically. The penalty imposed on the
offender is always in direct proportion to the injury sustained by the group. If the
offender kills the victim, then death shall also be his penalty. So capital
punishment or death penalty is a product of the classical or juristic philosophy
d. The emphasis of the law is on the offense, not on the offender. The emphasis of
the law is on the crime, not on the criminal. This philosophy does not look into the
reason why the offender has committed the crime
i) Postivist or realistic
a. The basis of criminal liability is the social environment. The positivist theory
believes that man is inherently good. No man is born evil. What makes man do
evil things is the association that he gets with his fellow beings, with his social
environment.
b. The purpose of penalty is reformation. The positivist philosophy believes that
man is a socially sick individual who needs to be reformed, cured, rehabilitated,
corrected, not punished.
c. The determination of penalty is done individually on a case to case basis.
d. The emphasis of the law is on the offender (criminal), not the offense (crime). So
the positivist philosophy looks into the reason why the offender has committed
the crime.

The RPC is molded in the classical philosophy because it was copied from the Spanish Codigo
Penal, which in turn was copied from the French Penal Code of 1810 which espouse the
classical theory. Although RPC is founded on the classical theory, it is moving towards the
positivist or realistic philosophy.

There are new laws which affect the RPC. For example, we have the ISL Act 4123 as amended.
Under ISL, courts are mandated when imposing a penalty to provide for a minimum term of the
sentence and a maximum term of the sentence. The moment the convict has served the
minimum term of the sentence, the convict becomes eligible for parole. Once on parole, he
need not serve the sentence behind bars but already outside the prison cell. We also have the
Probation Law, 8968 as amended, where whenever a person is convicted of a crime where the
penalty imposed on him is 6 years or below, he can apply for probation. Once his application for
probation is granted, he need not serve his sentence behind bars but outside the prison cell. In
2006, congress enacted RA 9346, which prohibits the imposition of the Death Penalty. So now,
capital punishment or death penalty will never be imposed.

So these are just some example of laws which shows that we are geared towards the positivist
or realistic philosophy, towards the reformation of the convict rather than the punishment of the
crime.

There are some theories or doctrines which are important in criminal law.
Doctrine of Pro Reo: Penal laws are always construed liberally in favor of the accused
and strictly against the state. Reason? Because of the constitutional presumption of
innocence
Lenity Rule: Whenever a penal provision is susceptible of two interpretation one lenient
to the accused and the other one strict to the accused, the lenient interpretation shall
prevail over the strict implementation. Thats why it is called Lenity rule leniency
towards the accused. Again, the reason is the constitutional presumption of innocence.
Equipoise Rule: Whenever the evidence of the prosecution is equally balanced with the
evidence of the offense, the scale of justice shall be tilted in favor of the accused. There
would be an acquittal for two reasons: 1) constitutional presumption of innocence; and 2)
insofar as criminal cases are concerned, it is the prosecution that has the burden of
proving the guilt of the accused beyond reasonable. If the evidence of the prosecution is
equally balanced with the evidence of the defense, it only means that the prosecution
failed to prove the guilt of the accused beyond reasonable down.

Ex.
What if an act is so pervert but there is no law that punishes the said act. Can the doer of the
act be prosecuted? NO.
Nullum crimen nulla poena sine lege. There is no crime when there is no law which defines and
punishes the act. So unless and until an act is covered by a penal law, the doer of the act
cannot be prosecuted and punished for having done the same.

In the case of Magno v. CA, the SC discussed the so-called Utilitarian or protective theory the
purpose of punishment, penalty in criminal law is to protect society from actual and potential
wrongdoers. Hence in this case, the SC said that courts are mandated in imposing penalties
even if it involves violation of special penal laws, like in this case a violation of BP 22 that
penalties shall only be imposed on actual and potential wrongdoers. Otherwise it will provide for
opportunism and abuse.

Common law crimes are those which a certain society or community consider as contemptuous.
There are no common law crimes in the Philippines because the Philippines is a civil law
country. In Philippine jurisdiction, laws are enacted. They do not evolve through the passage of
time. Therefore, no matter how obnoxious or heinous a crime is, the passage of time will not
make it penal or criminal in nature unless and until a law has been enacted punishing the said
crime.

#14 June 21, 2014

The RPC took effect on January 1, 1932. It was actually passed by the Philippine legislature on
December 8, 1930 but it took effect only 2 years thereafter.

Under Article 2 of the RPC, it is provided that except as provided in treaties and laws of
preferential application, the provisions of the RPC 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 the following:

(NOTE: The first paragraph refers to the intra-territorial application of the RPC, whereas the 2
nd

paragraph for the extra-territorial application of the RPC. Under the 1
st
paragraph, the RPC shall
be enforced within the Philippine archipelago. EXCEPTION TO THE RULE: Except as provided
in treaties and laws of preferential application. Therefore, treaties and laws of preferential
application must always prevail over the provisions of the RPC. If based on a treaty agreement
entered by the Philippines with a foreign country certain individuals cannot be prosecuted in the
Philippines, then even if our RPC says that they shall be prosecuted here, they cannot be
prosecuted in the Philippines. The said treaties entered into by the Philippine government shall
prevail over the provisions of the RPC. Thats why except as provided in treaties and laws of
preferential application.

The second paragraph of Article 2 provides for the extra-territorial application of the RPC. These
are the instances when the RPC would still apply even if the crime is committed of the Philippine
Archipelago.)

1) Those who should commit an offense while on a Philippine ship or airship;

A Philippine ship or air ship is said to be a Philippine ship or air ship if it is registered and
licensed in the Philippines. Even if the ship or air ship is fully owned by a Filipino citizen
but it is not registered in the Philippines, it cannot be considered as a Philippine ship or
airship. It is the registration of the vessel that is the operative act which makes it a
Philippine ship or airship. Only then will it be able to fly the country flag of the
Philippines.

The extra-territorial application of the RPC on crimes committed on board a Philippine
ship or air ship refers to a situation wherein the Philippine ship or airship is outside the
Philippine archipelago but not in the territory of another country.

So what if while a Philippine vessel is in the waters of Manila Bay, a crime was
committed on board. Do Philippine courts have jurisdiction over the said crime and
criminal?
YES, and the reason is the first paragraph of Article 2, the intra-territorial application of
the RPC. The vessel is a Philippine ship and it is in the waters of the Philippines.
Therefore, it is the first paragraph Article 2 that will apply. Philippine courts will have
jurisdiction.

What if the Philippine vessel is on international waters, on the high seas, not owned by
any country, and while the Philippine vessel is on the high seas, a crime was committed
on board the said vessel. Do the Philippine courts have jurisdiction over the said
crime/criminal?
YES. Reason? Extra-territorial application of the RPC, second paragraph of Art. 2. The
Philippine vessel was outside the Philippine archipelago on international waters, on the
high seas, and a crime was committed on board the said vessel. The RPC still governs,
our Philippine courts still have jurisdiction based on the extra-territorial application of the
RPC.

But what if the Philippine vessel was on the waters of Sabah. While there, a crime was
committed on board the Philippine vessel. What country will have jurisdiction over the
said crime and criminal, is it still the Philippines?
This time it is NO, Malaysian laws will now govern over the said crime, over the said
criminal, because although the said vessel belongs to the Philippines, although it is a
Philippine vessel, the crime was committed while the said Philippine vessel was on the
waters of another country. The extra-territorial application of the RPC will not apply
anymore because the said Philippine vessel is already on the waters of another country.
Why is it that Malaysian courts, Malaysian laws that will govern? Reason is the
territoriality characteristic of criminal law. The only EXCEPTION TO THE RULE: In case
of Philippine war ship or plane. If a crime was committed on board a Philippine warship
or warplane, wherever said vessels are located, the Philippines will always have
jurisdiction over the crime committed onboard the said plane or ship. The reason is that
a Philippine warplane or warship is considered as extensions of the Philippine
sovereignty. The Philippine warplane is owned by the Philippine Air Force and the
Philippine war vessel is owned by the Philippine Naval Force. Hence, they are
extensions to the Philippine sovereignty. As such, wherever they may be located, any
crime committed on board, the Philippines will have jurisdiction.

If in your books there still the so-called French Rule and English Rule. Do not include
that anymore, that is no longer being observed under the UNCLOS, it is no longer being
considered. What now matters is the territoriality characteristic. So if the vessel is on the
waters of another country, even if it is a Philippine vessel, the laws of that country will
govern.

2) Those who should forge or counterfeit any coin or currency note of the Republic of the
Philippines or obligations and securities issued by the Government of the Philippines;
3) Those who should be liable with acts connected with the introduction into the Philippine
Islands of these forged or counterfeited coins or currency notes;

These two are connected. One is the act of counterfeiting outside the Philippine territory,
one is introduction into the Philippine Islands of these forged or counterfeited obligations
and securities or currency notes.

So what if X was an Indonesian, he was caught in the act of the counterfeiting Philippine
coins. He was arrested, can he be prosecuted before the Philippine courts? Y introduced
these counterfeited coins into the Philippine courts. He was arrested. Can Y be
prosecuted before the Philipine courts?
Both X and Y can be prosecuted before the Philippine courts, and the reason is the
extra-territorial application of the RPC, Article 2, second paragraph. It is necessary that
we prosecute these persons even if the crime is committed outside the Philippine
archipelago, in order to maintain the national credit and stability of the Philippines. No
other country will be interested in prosecuted him rather than the Philippines because it
is our currency, our crimes that are the subject of the said counterfeiting.

4) Those who while being public officers or employees should commit an offense in the
exercise of their funcitons; and lastly

The offenders here are public officers or employees of the Philippine government who
are working, assigned in another country, and while they are working or assigned in
another country, they commit a crime in that other country. If the crime committed by
these public officers or employees are connected with the exercise of their functions,
they can be prosecuted before the Philippine courts. But, if the crime they committed
while they are in another country has nothing to do with the exercise of their official
functions, they shall be prosecuted before the courts of that host country because
although they are public officers or employees, they acted in their private capacity.
Hence, it is the courts of the host country which will have jurisdiction over the crime
committed by them.

So for these public officers or employees to be prosecuted before the Philippine courts, it
is necessary that there must be a connection between the crime committed by them and
the exercise of their functions. Absent that connection, then the extra-territorial
application of the RPC will not apply.

So there was this war in Iraq and X an overseas Filipino worker wants to go back to the
Philippines. He went to the Philippine embassy in Iraq and he discovered that his name
was not among the list of the first batch to be brought back to the Philippines. He talked
to the Filipino Labor attache requesting that his name be included in the list, and so they
talked outside in a restaurant. In the said restaurant, the attache asked X I will easily
input your name in the list if you give me $1000. X, in desperate desire to go back to the
Philippines, immediately, gave the attache the money and indeed, his name was
included in the list. Once in the Philippines, can he file a case against the said Philippine
Labor attache? Will Philippine courts have jurisdiction over this public officer?
YES, because the crime he committed is in connection with the exercise of his functions.
It is the duty of the said Filipino Labor Attache to list the names of Filipino workers who
would be brought back to the Philippines. However, he would not due that duty, he
would not include Xs name on the list without bribe money. There fore in effect, in the
commission of the performance of his function, he committed bribery. He asked bribe
money. Hence, since the crime he committed is in connection with exercise of his
functions, he can be prosecuted before the Philippine courts.

Same problem. X wants to go back to the Philippines, he went to the Philippine
embassy. Could not find the labor attache, he talked to a janitor. He and the janitor
talked outside the Philippine embassy in a restaurant. The janitor said I can have your
name put in the list because I am very close to the labor attache, the public officer in
charge with the list. I can easily ask him to include you in the list, that is if you will give
me $500. Indeed, the X gave the amount however, his name was not included in the list.
X now wants to file a case against the Filipino Labor attache. Can he file a case before
the Philippine courts or should the case be filed before the courts of Iraq?
The case may only be filed before the courts of Iraq, it cannot be filed before the
Philippine courts. The said act performed by the Filipino janitor is in no way connected
with the act of cleaning the Philippine embassy. It is in no way connected with his
function as a janitor. Therefore, since it is in no way connected with the exercise of his
functions, he cannot be prosecuted before the Philippine courts because the said Filipino
janitor, a public employee, acted in his private capacity. As such, he shall not be
prosecuted, he cannot be prosecuted before the Philippine courts. In effect, the crime he
committed is estafa by means of deceit, he swindled money saying that he can bribe this
public official, a Filipino labor attache. Therefore, he becomes liable under the courts of
Iraq, not before the Philippine courts.

But what if in the same problem, when X went to the Philippine embassy he talked to the
janitor and the janitor asked him to go in his room. So inside the room of the janitor, he
invited the said Filipino worker X. The said room was inside the Philippine embassy and
there inside the room, the janitorial room, the said Filipino janitor demanded from X $500
in exchange for including his name in the list. The act committed by the Filipino janitor is
in no way connected with the exercise of his functions, but he can be prosecuted before
the Philippine courts. The reason is that although the crime committed by the Filipino
janitor is not connected with the exercise of his functions, it was committed inside the
Philippine Embassy. The Philippine Embassy is considered as an extension of the
Philippine sovereignty. Therefore it is as if the crime was committed within the Philippine
territory. What is applicable is the first paragraph, not the second paragraph of Article 2.

5) Those who should commit any of the crimes against national security and the law of
nations as defined in Title 1, Book 2 of the RPC.

What if there is a war in which the Philippines was involved and while there is an
ongoing war between the Philippines and a foreign country, X happens to be in a foreign
country. X is a Filipino citizen. He connived, he corroborated, he conspired with the
enemy troops to commit treasonable acts against the Filipinos. Can he be prosecuted
before the Philippine courts?
YES, because treason is a crime against national security. Wherever he may be, even if
he is outside the Philippine archipelago, he can be prosecuted before the Philippine
courts.

The crimes against national security under Title 1 Book 2 of the RPC includes treason,
conspiracy or proposal to commit treason, misprision of treason, espionage, inciting to
war giving motives for reprisals, violation of neutrality, correspondence with hostile
country, flight to enemy country.

How about crimes against the law of nations? We have piracy, qualified piracy, mutiny
and qualified mutiny.

So Art. 2 in effect provides for the application of the RPC.

We go to Article 3.

Under Article 3, acts or omissions punishable by law are considered as felonies. When you say
law, it refers to RPC. Therefore, felonies are acts or omissions punishable by RPC.

An act refers to a bodily movement which has a direct connection to the felony committed. It is
an external act, an overt act. It does not include internal acts. So when you say felonies are acts
or omissions, acts refer only to external or overt acts directly connected to the felony committed.
It does not include internal acts. Internal acts, no matter how evil, will never give rise to a crime.

A has a crush on his fellow employee, the fellow employee was so beautiful, so sexy. A has a
crush on her and the whole day inside the office he will think nothing but the said employee with
lust. No matter how lustful his thoughts are of the said employee, he cannot be prosecuted. But
the moment he performs an over act connected with acts of lasciviousness or an overt act that
is an attempt to rape, only then will he become criminally liable. So there must be an external
overt act performed by him before he becomes criminally liable. Mere internal criminal thoughts
will never give rise to a crime.

Felonies are acts or omissions. An omission is the failure of a person to do an act or to perform
a duty which is performed by law. So when a person fails to perform an act or to do a duty which
he is required by law to do, he becomes criminally liable. While walking on the street, A saw a
wallet. He picked the wallet, opened the wallet, he saw that is contains $1000. He also saw the
ID of the owner of the wallet but he did not return the wallet. He kept the wallet for his own
personal gain. Under Article 308, he becomes liable for theft for having omitted to return the
wallet to its owner.

Under Article 3 it is also stated that felonies may be committed not only by means of deceit or
dolo but also by means of fault or culpa. There is deceit when the said act is performed with
deliberate intent. There is fault or culpa when the wrongful act results from imprudence,
negligence, lack of foresight and lack of skill. Therefore, there are two kinds of felonies:
intentional felonies and culpable felonies.

The elements of intentional felonies are:
1) Criminal intent on the part of the offender;
2) Freedom of action in doing the act;
3) Intelligence on the part of the offender.

On the other hand, the elements of criminal negligence are:
1) Negligence on the part of the offender;
2) Freedom of action in the performance of the act; and lastly
3) Intelligence on the part of the said offender.

#15 June 21, 2014

Based on its own definition, intentional felonies are voluntary acts because intentional felonies
are committed by deliberate intent. Therefore, the offender performs the act voluntarily. Hence,
it is considered as a voluntary act.

Culpable felonies, although it is based on fault and culpa, are also considered as voluntary acts.
The reason is that under Article 365, negligence has been defined as that which is done
voluntarily but without malice or deliberate intent. Therefore, even negligence, negligent acts,
and culpable acts are also considered as voluntary in nature.

More than these definitions, insofar as criminal law is concerned, the voluntariness of an
intentional felony is the concurrence of criminal intent, freedom of action, and intelligence, and
the voluntariness of a culpable felony is the concurrence of criminal negligence, freedom of
action, and intelligence. Therefore, without voluntariness, there is neither intentional felony nor a
culpable felony. All these three requisites must concur. There must be voluntariness in order to
produce either a culpable felony or an intentional felony.

A common element of intentional felony is freedom of action. Freedom of action means the
offender performs the act without any duress, without any uncontrollable fear, without any force
employed, he performs the act of his own free will. Therefore, if a person performs the act
based on the impulse of an uncontrollable fear, or because there was an irresistible force
employed on him. Then, he is not criminally liable. He is only civilly liable, but not criminally
liable because these are exempting circumstances provided for in Article 12. There is no
freedom of action, an element of voluntariness in the doing of an act.

Intelligence on the other hand is the mental capacity, moral capacity of a person to distinguish
right from wrong and to appreciate consequences of his act. If the person acted without
intelligence, there is no criminal liability, because intelligence as an element of voluntariness is
absent. Therefore, when a person who commits the crime is an insane, an imbecile, a minor 15
years of age or under, he is totally exempted from criminal liability. No criminal liability is
incurred because he acted without intelligence, an element of voluntariness.

So for there to be intentional felony or culpable felony, the elements of voluntariness must
always be present.

An important element of intentional felony is criminal intent. Intent is the use of a particular
means to achieve a desire result. You cannot see intent, however, even if you cannot see intent,
intent is established. Intent is determined by the means employed by the offender in the
commission of the crime, or by the overt act of the offender in the execution of the crime.

For example, intent to kill is shown by the fact that the offender makes use of a bladed weapon,
he makes use of a gun. It shows that he has the intent to kill the victim. Or, if the person takes
the personal property of another without asking the permission of the owner or the possessor. It
shows intent to gain on the part of the said offender. So here, although you cannot see intent, it
is determined, it is established by the means employed in approaching the crime or by the overt
acts of the offender in the execution of the crime.

There are two kinds of intent:
1) General criminal intent;

As stated by the SC in the case of Recuerdo v. People, general criminal intent is
presumed by law from the mere doing of the act. Therefore, the prosecution does not
have the burden to prove general criminal intent because the law itself presumes the
presence of general criminal intent from the mere fact that the offender performs the
criminal intent.

So general criminal is presumed by law, therefore, the prosecution need not prove it, it is
the defense, it is the accused that has the burden of proving that he acted without
criminal intent.

2) Specific criminal intent

Specific criminal intent is never presumed by law, it must be proven by the prosecution,
just like any other elements or ingredients of the crime. If specific criminal intent is not
proven by the prosecution, then the conviction can only be for another crime or there
would be an acquittal, because specific criminal intent has to be proven by the
prosecution beyond reasonable doubt.

So what if A and B are fighting. A suddenly pulled out a knife, intending to hit the arm of B. And
so, he stabbed B, hitting B near the shoulder. Thereafter, A left. B was brought to the hospital.
The wound was a non-fatal wound. Later, B filed a case of attempted homicide against A. Since
the case filed is attempted homicide, it is the burden of the prosecution intent to kill on the part
of A when A stabbed B with the use of a knife. If the prosecution failed to prove intent to kill on
the part of A, then the conviction would only be for physical injuries because intent to kill has not
been proven.

But what if in the same problem, A intending to injure B in the course of their fight brought out a
knife and stabbed B, but since B lowered his head, it was the head of B that was stabbed by
him. As a result, B died. A is now prosecuted for the crime of homicide, A said he has no
intention to kill B. His defense will not lie in his favor, since B the victim died, intent to kill
becomes a general criminal intent which is presumed by law. Intent to kill is presumed by law
because the best evidence of intent to kill is the fact that the victim died. So here, the
prosecution does not need to prove intent to kill. The law presumes it, it is the defense that must
prove that he has no intention to kill the said victim.

In order to prove or establish intent to kill, as held by the SC in the case of Rivera v. People, the
following factors must be established:
1) Evidence of motive;
2) Nature and number of weapons used by the offender;
3) Nature number and location of wounds inflicted on the victim;
4) Manner of committing the crime; and
5) Statements made by the accused before, during, or after the commission of the crime.
These factors will establish intent to kill. Is there evidence of motive? What weapons were used
by the offender? What were the wounds inflicted? Are they fatal/non-fatal? Where are they
located? How was the crime committed? What statement was made by the accused at the time,
before, or during the commission of the crime? These factors would show if there was intent to
kill or no intent to kill on the part of the offender.

So in the case of River v. People, although the injuries sustained by the victim were merely
superficial injuries, which is slight physical injuries, SC said there is attempted murder because
of the presence of intent to kill.
First, evidence of motive. Prior to the said act of mauling the said victim, there was a heated
argument, an altercation between the victim and the accused.
Second, the nature and number of weapons. They have no little weapons, however, they have
their fists, arms, and feet that mauled the said victim. They even used hollow blocks in hitting
the said victim.
Third, nature number and location of the wounds inflicted on the victim. The wounds inflicted
were only superficial but on different parts of the body, the SC said. They were only superficial
because when they heard the siren of the police, they immediately scampered. So were it not
for the timing of the police officers, they would have killed the victim.
Fourth, manner of committing the crime. They acted in conspiracy with one another, the three
brothers simultaneously mauling the said victim even if he was already lying on the ground.
Last, the acts and statements made by the accused, they had motive at the same time and
when they heard the siren of the police, they ran away at the same time.
All of this will show SC said that there was intent to kill on the part of the said offenders.
Therefore, even if the wounds inflicted were merely superficial, the crime committed said the
court was attempted murder because of the presence of intent to kill.

One of the factors which is necessary to prove intent to kill is evidence of motive. Motive is the
moving power which impels the person to do an act to achieve the desired result. Motive is the
moving power, therefore, it is the reason behind intent. Therefore motive always comes before
intent. If intent is material in determining the criminal liability of the offender, motive, as a rule, is
not.
Motive as a rule is not important to determine the criminal liability of the offender
Motive is not important if the offender is identified
Motive is not important if there is direct evidence or eyewitness in the commission of the
crime
Motive is not important if the offender admits to the commission of the crime
Motive is not important if the crime committed is a culpable felony
Motive is not important if the crime committed is a violation of SPL
In all these instances, motive is not material. Hence, as a rule, motive is not material in
determining the criminal liability of the offender.

There are however instances wherein motive becomes material in determining the criminal
liability of the offender:
1) When the acts of the offender would result to violent acts;
2) When there is doubt on the identity of the offender;
3) When the prosecution has only circumstantial evidence to prove the commission of the
crime.
In these three instances, motive becomes material to determine the criminal liability of the
offender.

The mayor was jogging near the seashore. Here comes X, X went near the mayor and once he
was already side by side with the mayor, he stabbed the mayor repeatedly until the mayor died.
What crime is committed by X?
Motive becomes material, because the X of acts could either B plain murder or the complex
crime of direct assault with murder, depending on the motive on the part of X. If X killed the
mayor because of the mayors past performance of his office, the crime committed is direct
assault with murder. But if X killed the mayor because of a personal vendetta, the crime
committed is plain murder. So here, motive becomes material.

The victim was found on a vacant lot with ten fatal stab wounds. Nobody saw who killed the
victim, but the mother of the victim stated that it was X and Y who fetched her son from the
house at about 10PM in the evening. Another witness said that he saw X and Y onboard a
jeepney together with the victim. A third witness stated that he saw X and Y arguing with the
said victim just about five feet away where the deceaseds body was found. These
circumstantial evidence would show who would have the motive to kill the said victim. So if
motive becomes material in determining the criminal liability of the offender because there is no
direct evidence, no eyewitness in the commission of the crime, who would have the motive to
kill the victim? Although in these instances, motive becomes material to determine the criminal
liability of the offender, motive, no matter how strong, will never bring about conviction. BUT
motive + circumstantial evidence = conviction. Motive + supporting evidence = conviction. BUT
motive alone, no matter how strong, will never bring about conviction, because the law requires
an overt act, an external act.

Criminal intent as an element of an intentional felony may be negated by mistake of fact.
Mistake of fact is misapprehension of facts on the part of the person who caused injury to
another. Had the facts been as the facts believed them to be, he wouldnt have committed a
wrongful act. Therefore, mistake of fact negates criminal liability. It is an absolutory cause
because there was no criminal intent on the part of the offender in doing the said wrongful act,
in causing injury to another person. Yes, he performed the act but he did not do so with criminal
intent. Therefore, it negates, it absolves his criminal liability. Before one however may be
absolved of criminal liability based on mistake of fact, the following elements and requisites
must be present:
1) That the act done would have been lawful and justifiable as what the accused believed it
to be;
Had the facts had the accused believed them to be, the act of the accused would have
amounted to a justifying circumstance, to an exempting circumstance had the facts been
as he believed them to be.
2) The intention of the accused in performing the act must be lawful;
The offender must be ignited solely, only by a legitimate and lawful intent.
3) The mistake must be without fault, negligence or carelessness on the part of the
offender.
One cannot invoke mistake of fact and at the same time be negligent in determining the
true facts of the situation. Therefore mistake of fact is only a defense in intentional
felony, not in culpable felony. You cannot be negligent in determining the true facts of
the case and at the same time invoke mistake of fact. Mistake is only a defense in
intentional felonies.

In the case of US v. Ah Chong, the SC applied mistake of fact. But note that US v. Ah Chong
was decided years ago, a very very old case. Had the facts been in a present case, Im sure Ah
Chong would not be acquitted based on mistake of fact. Lets go by the requisites first: That the
act done would have been lawful and justifiable as what the accused believed it to be. Had the
facts been as Ah Chong believed that the person who tried to enter was an intruder, was it
justifiable for him to kill the said intruder? NO! Because the mere act of trying to enter does not
yet constitute lawful aggression. Therefore, the first element is absent. The second element and
third element is present, because he inquired who the person was and the said person did not
answer. But the first element is wanting, it is absent, therefore, had these same facts be given in
a present case, Im sure the SC would not say that the said offender is absolved from criminal
liability.

What if a police officer was eating in a restaurant, then he noticed three men on the other side
of the table and these three men were so noisy. So he took notice of them, and one of these
men A has a gun bulging on his waist. So the police officer went at the back of A and inquired if
he has a license. When A said that he has a license, he asked A to produce and to give to the
police officer the said license. A stood up and as he was trying to stand, A was about to face the
said police officer, he was pulling his wallet from his pocket in order to get the license and in
order to show it to the police officer. However, the moment he faced the police officer, the police
officer shot him. A died. Prosecuted for homicide, the police officer said that he acted based on
mistake of fact, therefore, he should be absolved of criminal liability. Is A liable, or should he be
acquitted based on his theory?
First element: that the act done would have been lawful and justifiable had the facts been as the
accused believed them to be. Granting for the sake of argument that thing A was trying to pick
up was the gun, still, he is not justified in killing A because the mere act of pulling a gun from the
waist does not yet constitute unlawful aggression.
Second: The intention of the offender must be lawful. It may be present. The intention of the
police officer was to preserve and save life.
Third: The mistake must be without fault, negligence, or carelessness. The third element is also
absent! There was negligence, carelessness, on the part of the police officer in ascertaining the
true facts of the case. Policeman was asking for a license and A said that he is about to give the
license. Therefore it is wrong for him to think that it was the gun that A was reaching for.
Therefor 2 elements out of 3 were absent, the said police officer must be convicted of the crime
charged and he should not be acquitted based on mistake of fact.

What if the security guard in the warehouse, about 12MN, he heard noise. He saw a man
wanting to enter the warehouse, he told the man to stop. Instead of stopping, the said man fired
a shot at the security guard, the security guard evaded the blow, and then he also returned the
shot however, the said man entered the warehouse and was not hit. And so the security guard
followed the man inside the said warehouse. There were no lights in the warehouse, and so
once inside, the security guard suddenly saw a man, the shadow of a man with a gun pointed at
the security guard. Since the gun was pointing at him, the security guard fired at the said
person. It turned out to be a worker at the same warehouse, who slept there without asking
permission. Nobody was allowed to sleep there but he slept there without asking permission. So
the said worker died, the security guard is now prosecuted for the crime of homicide. The
security guard invoked mistake of fact. Is there mistake of fact so as to absolve him from
criminal liability?
First element: That the act done would have been lawful and justifiable as what the accused
believed it to be. Had it been true that there was this man pointing a gun at him, he shot the said
man. Would his act amount to a self-defense?
YES. The gun was already pointed at him, therefore it already constituted unlawful aggression,
considering the fact that the said man already fired at him.
Second: That the intention of the offender in performing the act must be lawful. He intended to
preserve his own life.
Third: The mistake must be without fault, negligence, or carelessness on the part of the
offender. There was no fault, there was no carelessness on the part of the offender. Who would
have known that someone slept inside the said warehouse wherein it was prohibited, no one
was allowed to sleep there, it is totally an unlighted place and he saw that man enter that same
place.
Therefore, all the element are present, the said security guard should be absolved of criminal
liability based on mistake of fact.

These are the three elements of mistake of fact.

SECOND MEETING SEAN

CODAL PROVISION
Art. 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 an account of the employment of inadequate or
ineffectual means.

Under Art. 4 1
st
paragraph, aside from the proximate cause doctrine, there are 3 situations where the offender can be
held criminally liable although the act he committed be different from what he intended

1. Aberratio ictus mistake in the blow
2. Error in Personae mistake in the identity of the victim
3. Praeter Intentionem injury results in greater than that intended, went beyond the intention

A. Aberratio ictus or mistake in the blow is where the offender directed the blow to his intended victim but
because of poor aim, the blow landed on another person.
- the intended and the actual victim are present in the scene of the crime, however, the intended victim was
not him, but another (actual victim) because of the poor aim of the offender
- Generally result in the commission of 2 crimes, one against the intended victim and one against his actual
victim (Art. 48 on Complex Crime penalty for graver offense in its maximum period)

PROBLEM 1. A wanted to kill his enemy (B), he learned that B is attending a wedding. He boarded his motorcycle
and went to that place. Upon seeing B eating in the place, he brought out his pistol and shot B, with intent to kill, but
because of poor aim, the bullet landed on C, B was not killed but C died. What crimes are committed by A?

With B Attempted Murder
With C Murder

Both are grave felonies, and these were result of a single act of the offender. Since offenses are based on a single
act and produces 2 grave felonies, art. 48 or Complexity of crimes applies. Therefore there is only one crime
committed, MURDER with ATTEMPTED MURDER. (file 1 case against offender, because product of only of 1 act.

PROBLEM 2. Same problem, A shot B with intent to Kill, but it was C who was hit, C sustained a fatal wound (mortal
wound). C was immediately brought to the hospital and with the help of medical intervention, C survived. What crimes
did A commit?

With B Attempted Murder
With C Serious Physical Injuries (NOT FRUSTRATED NOT ATTEMPTED, NO INTENT)
(1 grave and less grave)

Since, these results from a single act of the offender, article 48 applies. Therefore there is only 1 crime of
ATTEMPTED MURDER with SERIOUS PHYSICAL INJURIES. (1 case only filed complex crime)

PROBLEM 3. Same Problem. , A shot B with intent to Kill, but it was C who was hit, C sustained a non fatal wound, a
non-serious wound. What crimes did A commit?

With B Attempted Murder
With C Less serious Physical injuries
(product of a single act, produces 1 grave and 1 less grave, article 48 applies, CRIME IS ATTEMPTED MURDER
with LESS SERIOUS PHYSICAL INJURIES, 1 case filed)

PROBLEM 4. . Same Problem. , A shot B with intent to Kill, but it was C who was hit, C sustained a slight wound and
it would heal from 1 to 2 days. What crimes are committed?

With B Attempted Murder
With C Slight Physical injuries
(1 grave and 1 light felony)

Art 48? NO, 2 cases would be filed. Art. 48 wont apply because a light felony is present and cant be complexed. 2
informations will be filed in court.

RECALL: Art. 48. Complex Crimes
2 grave
2 less grave
1 grave or 1 less grave
NO LIGHT FELONY

Thus, generally, aberratio ictus results into a complex crime if there are 2 grave
or 2 less grave or 1 grave or 1 less grave felonies committed. In effect, it would benefit the accused, since 1 complex
crime is committed.

B. Error in Personae mistake in the identity of the victim
- It is a situation, where the offender directed the blow into someone whom he thought it would be (but
different), thus the victim, the one whom he hit was not the intended victim. The intended victim is not in the
scene of the crime, only the actual victim.
- Art. 49 Penalty for the lesser crime in its maximum period would apply

PROBLEM 1: A and B are fighting. A boxed B in the stomach, and fell to the ground. A left since he though he
already defeated B. But B retaliated and used his knife and stabbed the person next to him, thinking it was A.
However, the person who was stabbed and killed was C, his FATHER, who saw the incident and helped.

- What was the intended crime? HOMICIDE (reclusion temporal) since he wanted to kill A. There was no
treachery.
- What was the actual crime committed? PARRICIDE (he killed father)
- What is the crime to be filed? PARRICIDE (reclusion perpetua to death)
- If you are the judge, what penalty would you apply? You will apply article 49, if there is a variance between
the crime intended to be committed and the actual crime, the lesser crime in its maximum period should be
imposed.
- Penalty? Penalty of Homicide, since it is lesser than Parricide, but in its maximum period. (LESSER
PENALTY MAX PERIOD ART 49)
- Variance in intended crime and the crime actual committed, art. 49 would apply and it would mitigate the
penalty because the less penalty would apply.

PROBLEM 2: Same problem. BUT When C retaliated, thinking of A actually stabbed D, his bestfriend.

What was the crime intended to be committed? HOMICIDE
What was the crime actually committed? HOMICDE
What is the crime to be filed/prosecuted? HOMICE

NO variance, thus art. 49 wont apply and error in persoae wont apply and it wont mitigate.

THUS ERROR IN PERSONAE will only mitigate if there is a variance with the intended crime and the crime actually
committed.

C. Praeter Intentionem injury results in greater than that intended, went beyond the intention , or when the
consequence went beyond the intention. (Art. 13 mitigating circumstance)

It is a situation where the offender directed the blow to the intended victim and the intended victim actually received
the blow. But the blow was greated than what was anticipated from the means employed.

REQUISITED
1. a felony was committed.
2. A notable disparity by the means employed by the offender and the resulting act (out of the means
employed, no could have seen or anticipated the resulting crime)

- It is always a mitigating circumstance, article 13.

PROBLEM 1: The husband arrived home, asked the wife if dinner was ready, because she failed to cook, they
argued and eventually the husband slapped with wife and the wife lost balanced and fell on the floor. The back of the
head of the wife hit the pointed edge of the table. The wife suffered from cerebral hemorrhage and died. The husband
is being persecuted for parricide.

Is the husband liable for Parricide? The husband is liable for parricide, even if he did not intend, art. 4 paragraph 1
will apply as long as the act is a felony.

Can the husband benefit from praeter intentionem? Yes he can benefit, there is a notable disparity between the
means employed and the resulting felony. The husband could not have seen that such slap would result to death,
thus there is a disparity. Thus, praeter intentionem , which would mitigate, would apply.

In the case, PEOPLE v. NOEL SALES, the SC cannot appreciate praeter intentionem. The SC said the act of the
father hitting is sons with a piece of wood while they were tied, it would produce the death. There is no disparity with
the act committed and the means employed. Therefore, praeter intentionem would not apply.

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 an account of the employment of inadequate or
ineffectual means.

Art. 4 1
st
paragraph proximate cause doctrine
Art. 4 2
nd
paragraph impossible crime doctrine.

- It is an act done that would be an offense against persons or property but which is not accomplished
because of the inherent impossibility or an account of the employment of inadequate or ineffectual
means.
- It is not really a crime, did not ripen into a crime because of the inherent impossibility
- BUT he is still be liable for the IMPOSSIBLE CRIME.

REQUISITES;
1. that the act performed would be an offense against persons or property
2. that the act was done with evil intent
3. that its accomplishment is inherently impossible or that the means employed is either inadequate or
ineffectual
4. that the act performed should not constitute a violation of another provision of the RPC

The 1
st
element requires that it should be an offense against persons or property. If the act is against public order ,
charity or others, impossible crime wont apply. EXCLUSIVE TO PERSONS and PROPERTY

The 2
nd
element requires evil intent.

The 3
rd
element requires the act was not committed because of inherent impossible, meaning under all
circumstances, the act will not ripen to a crime, because it is impossible.

In the CASE OF INTOD v. CA, there are 2 inherent impossibility.
A. Legal impossibility where the intended acts, even if committed would not amount to a crime no crime is
produced.
B. Physical Impossibility - factual when extraneous circumstances unknown to the actor or beyond his control
prevent the consummation of the intended crime. Beyond his control or extraneous circumstances prevented
the commission of the crime.

PROBLEM 1: A wanted to kill B, saw B lying on the bench, with eyes closed, thinking that he was fast asleep, he
brought out his gun and fired shots to B, but unknown to A, B was already dead for hours. What crime was
committed?

HE is liable to impossible crime.
he intended to commit murder but because B was already dead, the crime is impossible even if all the
elements were present.

PROBLEM 2: Same problem, A wanted to kill B, went to his house, entered through a window, and saw B sleeping,
and stabbed him, BUT unknown to him B was already dead.

IMPOSSIBLE crime wont apply because requisite 4 (no other felony committed) But in this case, trespass to dwelling
is committed. Thus, it is not an impossible crime.

BECAUSE OF THE REQUISITE 4, impossible crime is the crime of last resort, if no other crime or felony is
committed or the act would not constitute an offense.

INTOD v. CA INTOD fired shots at the house of palangpangan but palangpangan was not there. Only an
impossible crime, physical of factual impossibility. Extraneous circumstances prevented the commission of the crime.

JACINTO v. PEOPLE - Jacinto failed to remit the checks and so he was charged with qualified theft, SC held the
crime is impossible, inherently impossible to commit the crime because he cannot get the value of the said check,
there is physical or factual impossibility. Unknown to Jacinto, the check is unfunded.

Art. 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 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 or over acts, and
does not perform all the acts of execution which should produce the felony by reason of some cause or
accident other than this own spontaneous desistance.

(CUT PART or may MISSING PART SA RECORDING, so try to supply it with what I can)

FORMAL CRIME felonies which by a single act of the accused consummates the offense as a matter of law.
Always consummated. No attempted and frustrated stages of execution.

MATERIAL CRIMES involve 3 stages of execution. Consummated, frustrated and attempted.

The object and subjective phase.

Subjective phase it is that portion of the acts constituting the crime, starting from the point where the offender
begins the commission of the crime to that point where he has still control over his acts

Objective phase it is the result of the acts of the execution, that is, the accomplishment of the crime.

The moment the offender looses control of his acts, he is already in the objective phase. There are 2 stages in the
development of a crime, the internal acts (thoughts or ideas) and external acts. Internal acts or mere thoughts would
never rise into a crime. It is the external acts or overt acts that would give rise to a crime.

3 stages in the execution of the external acts.

Stages of execution (does not apply to crimes under special laws unless otherwise provided, crimes by omission and
formal crimes)

1. attempted

elements:
a. the offender commences the commission of the felony by overt acts (overt acts external acts will
naturally result into a felony)
- the overt acts must be DIRECTLY connected or related to the felony

b. he does not perform all the acts of execution which should produce the felony
c. the non-performance of all acts of execution was due to a cause or accident other than the offenders own
spontaneous desistance
- if spontaneous desistance he incurs no criminal liability, for it negated criminal liability (ONLY IN THE
ATTEMPTED STAGE!)
- if in the consummated and attempted, spontaneous desistance wont affect criminal liability
- the reason must be for some cause other than spontaneous desistance for ATTEMPTED.
- He still has control of the acts and if he preceded he is liable if not, by spontaneous desistance, he is not.

2. frustrated

elements:
a. the offender performs all the acts of execution,
b. all the acts performed would produce the felony as a consequence (belief of accused as to whether or not
he had performed all acts of execution is immaterial)
c. but the felony is not produced, by reason of causes independent of the will of the perpetrator

- offender in the objective phase, no more control over the acts ,the offender has already performed the acts
but it was not produced by reasons independent of the will of the perpetrator

PROBLEM 1: A wanted to robe the house of B, made an opening on the wall of the house of B to enter, to rob, when
he was about to enter, the baranggay offender saw him and arrested him. He is not liable for attempted robbery
because the 1
st
element that the offender commences the commission of the felony by DIRECTLY overt acts is
wanting. The making on the wall is not a direct act related to robbery, it is an overt act directly related to trespassing.
Thus, he is liable for attempted trespass to dwelling. Although he intended to rob, the acts was only trespass to
dwelling , because it is that overt acts directly related to trespass that was committed. (PEOPLE v. MANAHAN)

- VALEROS v. QUINTO Is it directly related? Putting of cloth with chemical on the face of the woman
directly connected to RAPE? NO! the overt acts is not connected to rape. SC said, the intention is to make
the woman unconscious, and after may rape, or may still, may kill, etc thus the putting of the cloth was not
directly related thus he is not liable for attempted rape. Liable of unjust vexation only.

INDETERMINATE OFFENSE it is one where the purpose of the offender in performing an act is not certain. Its
nature in relation to its objective is ambiguous.

ATTEMPTED FELONY THAT IS PUNNISHED OVERT ACT DIRECTLY RELATED TO THE FELONY

PROBLEM 2: Son wanted to kill father, bought poison, before going home, he told his friend his plan, the friend
informed the police, and went to the house of son and father and caught the son, who was unwrapping the poison, is
the son liable?

SON IS NOT LIABLE FOR ATTEMPTED PARRICIDE. Buying and unwrapping poison not directly related to the
felony of parricide. The poison may be used to any other purpose and they are only preparatory acts.

PROBLEM 2: What if the poison was mixed with the milk and it was given to the father. The father was about to drink
but it slipped from the hands. Is the son liable for attempted?

HE IS LIABLE. The act of mixing of poison with the Milk and giving it to the father. IT (overt acts) IS DIRECTLY
RELATED. (not all elements are present, not consummated)

PROBLEM 3: What if the poison was mixed with the milk and it was given to the father. When the father was about
to drink, son grabbed the milk and threw it in the garbage. Is the son liable for attempted?

SON IS NOT LIABLE OF ATTEMPTED PARRICIDE. The act of mixing and giving to father is an overt act directly
related but he was not able to consummate because of the spontaneous desistance. He has a change of heart thus it
negates criminal liability.

PROBLEM 4: What if the poison was mixed with the milk and it was given to the father. The father drank the poison.
When the father showed signs of poison, the son felt pitty and gave the antidote. HE then brought the father to the
hospital and the father was saved. Is the son liable for attempted?

HE IS NOT LIABLE FOR ATTEMPTED PARRICIDE. Here he has given the poison and the poison has already taken
effect. All the acts of execution were performed. BUT ALSO NOT LIABLE FRUSTRATED PARRICIDE, although all
acts performed, the requisite that but the felony is not produced, by reason of causes independent of the will of the
perpetrator the antidote was given by the son himself. Therefore he is not liable for frustrated. NOT LIABLE FOR
CONSUMMATED AS WELL.

BUT LIABLE FOR PHYSICAL INJURIES DEPENDING on medical days or intervention
Less than 10 light physical injuries
10-30 less serious physical injuries
30 + serious physical injuries

PROBLEM 5: A & B seated in the jeepney and seated beside each other. A wanted to steal the cellphone of B thus
inserted his hand inside the bag of B but the bag was empty, there was nothing inside. What crime?

IMPOSSIBLE: Physical impossibility

PROBLEM 6: same problem, A & B seated in the jeepney and seated beside each other. A wanted to steal the
cellphone of B thus inserted his hand inside the bag of B and B felt the bag became heavier thus he caught the
hands of A. A wasnt able to get the cellphone. What is the liability?

ATTEMTED THEFT because when he inserted the hand, he performed an overt act but he wasnt able to perform
all the acts due to causes independent.

IMPOSSIBLE CRIME DIFFERENT FROM ATTEMTED FELONY
- in an impossible crime, the intent of the offender is impossible to accomplish. In an attempted felony, the evil
intent is capable of being committed
- Reason for non accomplishment; for impossible crime impossibility of committing or executing the act. For
attempted felony

3. consummated when all the elements necessary for its execution and accomplishment are present wasnt
able to perform all the acts due to causes independent of his will, other than spontaneous desistance.

PROBLMEN 7: A shot B with intent to kill, B evaded the shot and wasnt killed. What is the criminal liability?

A is liable for attempted homicide, even if not hit, because hiding the gun and shooting B is directly related to
homicide. However, it wasnt accomplish due to accident.

PROBLMEN 7: A shot B with intent to kill, B was shot but didnt die because non fatal wound. What is the criminal
liability?

A is liable for attempted homicide

PROBLMEN 7: A shot B with intent to kill, B was shot, fatal wound, but didnt die due to medical intervention. What is
the criminal liability?

A is liable for FRUSTRATED HOMICIDE

in case of intentional killing, in order to amount into frustrated, it is necessary the wound sustained must be a
mortal wound or a wound that can bring about death but didnt come because of medical intervention.
If in the problem if non fatal wound attempted, if fatal but medical intervention Attempted.

VALENZUELA v. PEOPLE
- SC held there is no such thing as frustrated THEFT. (only attempted and consummated NO FRUSTRATED)
Only act of taking, it accomplished consummated, deemed complete when he gains in possession or takes
away the property, unlawful taking happens thus theft is committed.

RAPE HAS NO FRUSTRATED STAGE (only attempted and consummated)
- rape is consummated by the slight penile penetration of the genitalia of the woman
- Slightest penile penis touched the lips or labia of the womans genitalie, penetration and laceration not
needed, SLIGHT TOUCH IS ENOUGH!

IF OUTSER SURFACE ONLY IS TOUCHED naiidikit what the penis has touched is outer surface of the genitalia,
the crime is attempted or acts of lasciviousness.
- Acts of lasciviousness if no intent, acts of lasciviousness
- Attempted Rape if wanted or with intent to rape

When the crime admits the stages (attempted, consummated and frustrated) they are called material crimes

IF NO STAGES CONSUMMATED ONLY they are formal crimes. Based on results and consequences.

Art. 7. When light felonies are punishable. Light felonies are punishable only when they have been
consummated, with the exception of those committed against person or property.

PENALTY arresto menor is imposed.

GR: punishable only when they have been consummated
EXCEPTION: if committed against persons or property, punishable even if attempted or frustrated.

Art. 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.

THIRD MEETING A EDMEE

The penalty is reduced because the moment any mitigating circumstance is present it will show
the lesser perversity or lesser criminality on the part of the offender.
There is lesser perversity or lesser criminality or lesser dangerousness on the part of the
offender because there is a diminution, in any of the elements of voluntariness. There is
diminution in either criminal intent, in freedom of action or in intelligence.
There are two (2) kinds of mitigating circumstances, we have:
1. Ordinary mitigating circumstances (OMC)

May be off-set by a generic aggravating circumstance, or
If not off-set, it would reduce the impossible penalty to the minimum period of penalty
prescribed by the law.

2. Privileged mitigating circumstances (PMC)

Cannot be off-set by any aggravating circumstance.
The effect of the presence of PMC on the criminal liability of the offender is that it will
lower the imposable penalty by at least one (1) degree. NOT by periods, but by
degree.
PMC takes preference over all other things.
- If in the commission of a crime there are mitigating circumstances and
aggravating circumstances BEFORE you compute the penalty you LOWER first
the penalty based on the presence of the PMC.
- So before computing the penalty based on the provisions of Art. 64, you have to
apply first the PMC.
ARTICLE 13: MITIGATING CIRCUMSTANCES
FIRST par.:
Those justifying and exempting circumstances when all the requisites necessary to justify the
act or to exempt the offender from criminal liability, in their respective cases, are not attendant.
So, in other words, when all the requisites necessary to justify the act are not present, we have
INCOMPLETE justifying circumstance. When all the requisites necessary to exempt the
offender from criminal liability are not present, we have INCOMPLETE exempting circumstance.
How will you know if an incomplete justifying or incomplete exempting is to be considered as a
PMC or OMC?
The ff. are the REQUISITES:
1. If MAJORITY of the requisites necessary to justify the act, or exempt the offender, from
criminal liability are PRESENT. Then it is to be treated as a PMC.
2. If LESS than the necessary requisites to justify the act, or exempt the offender, from
criminal liability are present. Then to be treated as mere OMC.
3. If there are only two (2) requisites necessary to justify the act or exempt the offender
from the act, the presence of one (1) is already considered as MAJORITY. Therefore it is
to be treated as a PMC.
In cases of incomplete self-defense, incomplete defense of a relative and incomplete defense of
a stranger there must ALWAYS be UNLAWFUL AGGRESSION.
If only the element of unlawful aggression is present, it is to be treated as an OMC.
If aside from unlawful aggression another element, but not all, is present, it is to be treated as
PMC.
EXAMPLE:
A was running amok in a subdivision, he was armed with a bolo and he was hitting all the
passers-by. So the residents of the subdivision asked for police assistance, the police arrived,
the head of the police officers who arrived called on A to lay down his weapon and surrender.
However, instead of surrendering and laying down his weapon, A advanced towards the
police with the bolo raised, as if to hack the officers, and so the police fired at A. A fell on the
ground, the wounds sustained by him was not fatal, as he was lying on the ground the head of
the police came up to him took his bolo and thereafter fired two (2) shots upon his head, as a
result A died instantly. And so the police officer was prosecuted for the crime of murder, the
police officer, as a defense invoked the justifying circumstance of self-defense likewise he
invoked the justifying circumstance of fulfillment of duty.
ISSUE:
a. W/N there was self-defense or at least incomplete self-defense that would amount to a
mitigating circumstance
b. W/N there was fulfillment of duty or at least incomplete fulfillment of duty that would
amount to a mitigating circumstance?
ANSWER:
a. In this problem, there is no self-defense. Because when the police officer fired at A he
was already on the ground. A advanced at the police officers with a bolo raised in a
hacking position, that bolo constituted unlawful aggression, however when he was fired
at and he fell on the ground the police officer still came towards him, took his bolo and
fired the shots. At that precise moment the inceptive unlawful aggression commenced by
A already ceased. Since it already ceased to exist the police officer had no more right
to even kill him. Since unlawful aggression is the element that is absent, there is neither
justifying circumstance of self-defense nor a mitigating circumstance of incomplete self-
defense.
b. There are only two (2) requisites of fulfillment of duty as a justifying circumstance:
1.) That the accused acted in the performance of his duty or in the lawful exercise of his
office. This first element was present because the said police officer acted in the
fulfillment of his duty, he went there to maintain peace and order because the
residents of tha t place asked for police assistance.
2.) That the resulting felony or injury was the unavoidable or necessary consequence of
the due performance of duty. This 2
nd
element was absent. Killing A was not a
necessary consequence of his due performance of duty. They had already
immobilized him by shooting at him and he was already lying on the ground
therefore there was no need for the police officer to fire the shots. Since there are
only two (2) requisites and one (1) is present, the presence of one (1) is considered
majority, it shall be treated as a PMC. The penalty will be lowered by one (1) degree.
Convicted of homicide, not murder. (People vs. Ulep)
SECOND par.:
That the offender is under 18 years of age (minority) or over 70 years of age (seniority).
If minority is not exempting under Article 12, as amended by R.A. 9344, minority is ALWAYS a
PMC and NEVER a OMC.
So the fact that the offender is over 15 but below 18 and he acted with discernment, therefore
he shall be prosecuted before the courts, the court found him guilty beyond reasonable doubt,
what is the effect of his minority? It will be a PMC and the penalty will be lowered by at least one
(1) degree.
On the other hand seniority is a MERE OMC. Because now the death penalty cannot be
imposed. There are several articles in the RPC which provides that if the offender is 70 years of
age or above and the penalty prescribed by the law of the crime is death, it shall be commuted
to reclusion perpetua. So in that case, seniority before was a PMC but these articles are no
longer applicable, as of the moment. Not applicable since we now have R.A. 9346, which
prohibits the imposition of the death penalty. So because of R.A. 9346, whatever your age may
be as long as the penalty prescribed by law is death it shall always be commuted to reclusion
perpetua if a violation of RPC and life imprisonment if a violation of a special penal law (SPL).
So seniority is now merely an OMC.
THIRD par.:
Praeter intentionem that the offender had no intention to commit so grave a wrong as that
committed. (As discussed under Article 4. NOTE: People vs. Noel Sales - the father that tied his
children to a coconut tree while beating them and one (1) died. In this case the SC did not
appreciate praeter intentionem.)
In cases of praeter intentionem, it is always a mitigating circumstance, BUT for it to be
considered a mitigating circumstance there must be a NOTABLE DISPARITY between the
means employed by the offender and the resulting crime.
FOURTH par.:
That sufficient provocation or effect on the part of the offended party IMMEDIATELY
PRECEDED the act.
ELEMENTS:
1. The provocation must be sufficient
Provocation any improper or unjust conduct which is capable of inciting or exciting
a person to do a wrongful act.
For provocation to be considered as sufficient, it is necessary that it is ADEQUATE
to stir a person to commit a wrongful act AND it must also be PROPORTIONATE to
the gravity of the act. Only then will provocation be considered as sufficient.
2. The provocation must originate from the offended party
Provocation must come from the offended party.
3. The provocation must be immediate to the act, that is, the commission of the crime by
the person who is provoked.
Immediate here DOES NOT allow a lapse of time. Right after the provocation there
must be the commission of the crime.
There must be NO TIME that has lapsed between the commission of the act that
provoked the offender and the commission of the criminal act by the said offender.
In relation to the FIFTH par.
That the act was committed in the immediate vindication of a grave offense 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.
Otherwise known as immediate vindication of a grave offense.
ELEMENTS:
1. That there be a grave offense committed to the one who is committing the felony, or his
relatives
Requires that a grave offense must be done to the one committing felony/offender.
Grave offense need not be a punishable act. Grave offense may be any act which
caused the offender mental agony and because he had sleepless nights, it moved
him to vindicate himself/his family.
2. That the commission of this grave offense must be immediate to the commission of the
criminal act.
It be an immediate vindication, otherwise stated, the commission of the grave
offense must be the PROXIMATE CAUSE of the commission of the said criminal act.
The SC said, the word immediate here ALLOWS a lapse of time. According to them
there was an erroneous Spanish translation. In the Spanish codigo penal where the
RPC was copied, the word used was proxima, yet when it was translated to the RPC
the word used by the translator was immediate. Therefore the SC said it suffices that
the commission of the grave offense must be the proximate cause of the commission
of the act.
There may be a lapse of time, but not too long a time for the offender to have
REFLECTED upon the consequences of his acts.
Also in relation to the SIXTH par.:
That of having acted upon an impulse so powerful as naturally to have produced passion and
obfuscation.
Otherwise known as sudden impulse of passion and obfuscation.
ELEMENTS:
1. That there be an act both UNLAWFUL and SUFFICIENT to produce passion and
obfuscation
The passion and obfuscation coming from the offender must arise from LAWFUL
sentiments.
2. The commission of the act that produced the passion and obfuscation was not far
removed from the commission of the crime by a considerable length of time, during
which the offender might have recovered his normal equanimity.
In the case of People vs. Ignas the woman who had a paramour and two (2) weeks thereafter
the husband killed the paramour. The SC said that two (2) weeks is too long a time for it to be
considered as having been done in immediate vindication of a grave offense or sudden impulse
of passion and obfuscation. Within that period of the said husband has already recovered his
normal equanimity he has already reflected on the consequences of his act.
EXAMPLE:
There was so many victims of the recent Typhoon Glenda, what if the DSWD was distributing
relief goods to the victims, there were long lines of people, front liners are A, B and C. Here
comes X who placed himself in between B and C, of course C protested he told X to go
to the back of the line. But X said he was already very hungry and so he didnt want to go to
the back of the line. He remained where he was which angered C so much that he took an ice
pick and stabbed the neck of X repeatedly until X died. Prosecuted for homicide C invoked
the mitigating circumstance that there was sufficient provocation coming from the victim.
ISSUE: W/N there was sufficienct provocation
ANSWER: The act of X was enough to excite a person to do a wrongful act, it is enough to ,
make C do a wrongful act. But is it sufficient to the gravity of the act? NO. It is not sufficient to
the gravity of the act since by merely placing ones self in front of another in a line, it is not
sufficient to the act of killing that person. Therefore, although it is adequate to stir a person to do
a wrongful act it is not proportionate to the gravity of the act.
In the case of Romera vs. People (??) The SC said that in par. 4, 5 and 6 if ALL three of these
mitigating circumstances attended the commission of the crime they shall be treated only as one
(1) mitigating circumstance if they arose from the same facts and circumstances. Likewise if
any two (2) of them attended the commission of a crime they are to be considered only as one
(1) if they arose from the same facts and circumstance.
Take into consideration the facts of the questions, what if in the problem , the question was are
the mitigating circumstances of sufficient provocation, immediate vindication of a grave offense
and sudden impulse of passion and obfuscation present? And if your answer is yes, they are
present. Then you state why they are present, elements. Then the next question is if you are the
judge, how would you consider these mitigating circumstances? If you are the judge, you have
to consider them only as one (1) mitigating circumstance.
So theres a difference between the question are they present or if you were the judge how
would you consider/appreciate them. If you were to appreciate them as three (3), you will be
wrong in the period of the penalty. The importance is in the computation of the penalty.
SEVENTH par:
That the offender has voluntarily surrendered himself to a person in authority or his agent or that
he has voluntarily confessed his guilt before the court PRIOR to the presentation of evidence for
the prosecution.
Two mitigating circumstance under this paragraph:
A. Voluntary surrender
ELEMENTS:
1. That the offender has not been actually arrested
There may be a warrant of arrest but for as long as the police officers has not yet
gone to his/her house, or to any other place to look for him it is still considered
voluntary surrender if he goes to the police station to give himself up.
2. That the offender has surrendered to a person in authority or his agent
Person in authority Mayors, Governors
Agents of person in authority Police officers, MMDA officers
3. The said surrender is voluntary.
Surrender is voluntary if done SPONTANEOUSLY and UNCONDITIONALLY.
It is said to be done spontaneously and unconditionally when the offender
deliberately presented himself before the police or before the court either
because he wanted to plead guilty he wanted to acknowledge the commission of
the crime or he wanted to save the government that much needed funds and
efforts which will be spent the moment they look for him.
In the cases of Sen. Jinggoy Estrada, Sen. Enrile and Sen. Revilla, a warrant of
arrest has been issued, they surrendered , one (1) in the Sandiganbayan (SB),
one (1) with the police officers, after trial on the merits, should the SB consider
their voluntary surrender as mitigating? Can it be considered in Plunder? YES.
Their surrender is considered as voluntary and mitigating, in fact even before the
warrant they said they would surrender, the police did not look for them or spend
any effort to arrest them. Could it mitigate the criminal liability considering that
the crime they committed is plunder? YES. As held by the SC in Estrada vs.
Sandiganbayan, plunder although punished by an SPL, is a mala in se also
under the special law, it is expressly provided that in imposing the penalty the
presence of mitigating or extenuating circumstances shall be considered by the
court. Only mitigating or extenutating, not aggravating.
B. Voluntary plea of guilt
ELEMENTS
1. That the confession of guilt must be done SPONTANEOUSLY and
UNCONDITIONALLY
If the accused was charged with the crime of frustrated murder, during
arraignment he pleaded not guilty, during the pre-trial on plea bargaining, with
the consent of the judge, the consent of the public prosecutor and the consent of
the private complainant he was allowed to plead guilty for the lesser crime of
serious physical injuries. The judge rendered judgment convicting the said
accused, should the judge consider his voluntary plea of guilt as mitigating so as
to reduce the imposable penalty? NO. Even if he pleaded guilty to a crime, it was
to a lesser offense not the original crime charged.
To be considered to have been done spontaneously it should be to the original
crime charged and not to a lesser crime.
What if A was charged as a principal in the crime of robbery, during
arraignment he pleaded not guilty, on plea bargaining during pre-trial with the
consent of judge, public prosecutor and private offended party he was allowed to
plead guilty as a mere accomplice in the commission of the crime of robbery.
Judgment was rendered, should the judge consider his plea of guilt as voluntary
in nature so as to reduce the imposable penalty? NO. Because the plea of guilt
should be unconditional., in this case the plea of guilt was subject to the condition
that he was only an accomplice and not a principal to the crime.
2. The confession of guilt must be done in OPEN court.
Must be done in open court, so extrajudicial plea of guilt not considered
mitigating in nature.
3. The confession of guilt must be made before the presentation of evidence of the
prosecution.
Lets say the accused was arraigned, he pleaded not guilty, the prosecution then
presented overwhelming evidence, the accused knew it would be a conviction, so
suddenly the accused goes: Your Honor, may I be allowed to change my plea
from not guilty to guilty? He was allowed by the Judge and he was re-arraigned,
and he plead guilty to the crime charged. Is that plea of guilt mitigating in nature?
NO. Since it was no longer voluntary, it will no longer have an effect on his
criminal liability.
EIGHT par.:
That the offender is deaf and dumb, blind or otherwise suffering some physical defect which
restricts his means of action, defense or communication with his fellow being.
Otherwise known as physical defect.
For physical defect to mitigate the criminal liability of the offender, it is necessary that there is a
relation between the physical defect and the crime committed by the offender, such that the
physical defect has restricted his means of action, defense or communication with his fellow
being.
If the physical defect has nothing to do with the crime committed, it will not be considered as a
mitigating circumstance.
EXAMPLE: So a blind man was begging for alms outside the church. Here come s X his
enemy, when X passed by he hit the head of the blind man with a stone, and then after that
the blind man fell on the ground and he was in pain, but the blind man did not want to be
defeated, he immediately stood up, took his cane and hit a person who passed by, thinking that
person was still X, but that person was an innocent church goer. That innocent church goer
suffered less serious physical injuries. So the the blind man is now prosecuted in court for less
serious physical injuries, he invoked his physical defect so as to mitigate his criminal liability, will
his physical defect mitigate his criminal liability? YES. Because the fact that he was blind
restricted his means of action, defense and communication with his fellow being. He was not
able to hit and retaliate with the person who hit him because he was blind, there was a relation
with the crime he committed and his physical defect.
EXAMPLE: What if X was often seen outside of the church, X has no legs, he was only
onboard a skateboard, his business outside the church was to snatch the handbag of
churchgoers, and so, one time he was there, he noticed one lady churchgoer, suddenly, he
snatched the handbag of the lady and then onboard his skateboard he fled. He was later
arrested and prosecuted for the crime of theft, he invoked his physical defect of being lame
since he had no legs as a mitigating circumstance. Will his physical defect mitigate his criminal
liability? NO. His physical defect of being lame since he had no legs did not restrict his means of
action, defense and communication with his fellow being, it was not in any way related to the
crime committed, in fact it helped that he was on the skateboard so he was able to flee very
fast.
NINTH par.:
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.
If the illness of the offender would TOTALLY deprive him of the consciousness of his acts, it is
not merely a mitigating circumstance but already an exempting circumstance, because he is
unaware, unconscious of the crime he has committed.
So for it to be mitigating it must only DIMINISH the exercise of the will-power.
Common example given, a kleptomania, so a person has this urge to steal, he knows he has
this urge to steal he cannot control it, but he knows what he was doing. So it only diminishes the
exercise of his will-power but it did not deprive him of the consciousness of his acts.
Lastly, the TENTH par.:
Any other circumstance of a similar nature and analogous to those mentioned from paragraphs
one (1) to nine (9).
So any other circumstances similar in nature as those in 1-9 they are to be considered as only
to mitigate or extenuate the criminal liability of the offender.
EXAMPLE: So a public officer was charged with the crime of malversation of public funds. He
restituted the public funds he has malversed, what is the effect of such restitution with his
criminal liability? It will mitigate his criminal liability. Such restitution can be considered voluntary
surrender on the part of the said offender. Aside from the fact that there will be no civil liability
since he restituted the amount he malversed.
EXAMPLE: The offender is 65 years old and sickly, it may be considered so as to mitigate his
criminal liability it is akin to be 70 years of age.
ARTICLE 14: AGGRAVATING CIRCUMSTANCES
Aggravating circumstances those circumstances that, if present or attendant in the
commission of the penalty would serve to increase the imposable penalty, without ever going
beyond the maximum penalty prescribed by law.
In mitigating circumstances, you lower and lower it, based on the presence of mitigating
circumstances. But in the case of aggravating circumstances, even if in the commission of the
crime there are ten (10) aggravating circumstances, you cannot go beyond the maximum
penalty prescribed by law.
The presence of any aggravating circumstance would serve to increase the imposable penalty
because it shows the GREATER CRIMINALITY and PERVERSITY on the part of the said
individual.
There are different kinds of aggravating circumstances:
1. GENERIC
Those that apply to ALL kinds of crimes.
EXAMPLE: Nighttime, it applies to all kinds of crimes whether it be crimes against
chastity, honor or person.
2. SPECIFIC
Those circumstances that apply to certain or particular crimes.
EXAMPLE: Treachery, under paragraph 16 of Article 14, treachery only applies to
crimes against person. You cannot consider treachery in crimes against public
interest or crimes against public order, they are only applicable to crimes against
persons.
3. INHERENT
They are those that, of necessity, accompany the commission of the crime and they
are considered part and parcel of the commission of the crime, they are considered
elements or ingredients of the commission of the crime.
EXAMPLE: Dwelling, inherent in the crime of trespass to dwelling.
EXAMPLE: Evident premeditation, inherent in the commission of robbery or theft.
4. SPECIAL
Those, if present, would provide for the imposition of the maximum penalty
prescribed by law.
Cannot be off-set by any mitigating circumstance.
EXAMPLE: Taking advantage of ones position, under Article 62 of the RPC by virtue
of the amendment brought about by the R.A. 7659, taking advantage of ones public
position is not a mere generic aggravating circumstance, but is a special aggravating
circumstance, Article 62 says the maximum period prescribed by law should be
imposed.
EXAMPLE: Quasi-rescidivism, is a special aggravating circumstance.
5. QUALIFYING
Those, if present, would change the nature of the crime to a more serious crime,
which imposes a higher penalty or even without changing the nature of the crime, it
brings about the imposition of a higher penalty.
EXAMPLE: Article 248 (Murder), all those listed there are qualifying aggravating
circumstances, they would qualify a killing from homicide to murder. (ie. Treachery,
abuse of superior strength, with the aid or armed men, in consideration of a price,
reward or promise)
You only need one (1) qualifying so as to qualify a crime. If there are other qualifying
aggravating circumstances present, they will be treated merely as a generic
aggravating circumstance.
Based on the Rules of Court under the Revised rules on Criminal Procedure, whatever be the
kind of aggravating circumstance, it must be both ALLEGED in the information and PROVED
during trial.
If an aggravating circumstance was only proven during trial but not alleged in the information it
CANNOT BE considered or appreciated by the court.
FIRST par.:
That advantage be taken by the offender of his public position.
The offender must be a public officer.
A public officer is said to have taken advantage of his public position when he used, misused
and abused his public position in order to commit the crime.
The public officer takes advantage of the prestige, influence and ascendancy that his office
affords him in order to commit or facilitate the commission of the crime.
As mentioned earlier, brought about by the amendment of R.A. 7659, taking advantage of ones
public position, is not merely a generic aggravating circumstance, it is a SPECIAL aggravating
circumstance as provided for in Article 62.
EXAMPLE: What if a notary public issued a Deed of Absolute Sale stating that A had sold his
property to B, but in reality no such Deed was executed by A in favor of B. In other words,
the notary public falsified the Deed of Absolute Sale. So the notary public was charged with
falsification of a public document, since a Deed of Absolute Sale is a public document. In the
information it was alleged that in committing the crime of falsification the said notary public took
advantage of his public position in the commission of a crime. If you were the judge, would you
appreciate this aggravating circumstance? And if so, how would you consider this aggravating
circumstance.
ANSWER: Taking advantage of ones public position is present in the commission of the crime
of falsification of a public document and it is to be treated as an INHERENT aggravating
circumstance, therefore, it will no longer serve to increase the imposable penalty. Because
taking advantage of ones public position is an element of falsification of a public document
committed by a notary public or public officer. Looking at Article 171, taking advantage of ones
public position is an element of falsification.
EXAMPLE: A was arrested by the police, she was a female prisoner, she was incarcerated,
then the police officer raped the said woman. The police officer had carnal knowledge of A
against the will of A. The police officer is now prosecuted for the crime of rape, in the
information it was alleged that he committed the crime by taking advantage of his public
position. . If you were the judge, would you appreciate this aggravating circumstance? And if so,
what kind of aggravating circumstance?
ANSWER: Obviously, there was taking advantage of ones public position, the police officer
could not have raped the female prisoner had she not been arrested and placed behind bars. It
is a QUALIFYING aggravating circumstance, the crime committed by the police officer is
qualified rape. Under Article 266-B, if the offender in the crime of rape is a member of the
military, police or those in a penal institution and the crime was committed with taking
advantage of his public position the penalty is death. Therefore it is qualified rape.
EXAMPLE: What if the police officer came home, he saw garbage in front his gate, the garbage
was placed there by his neighbor, angered, he confronted his neighbor, in the course of their
argument the police officer got so pissed off that he took out his service pistol and then fired
shots at his neighbor, his neighbor died. In killing the said neighbor is the aggravating
circumstance of taking advantage of ones public position present?
ANSWER: NO. The said police officer could have killed the said neighbor even without being a
police officer, even without using his service pistol. There is no showing that the police officer
took advantage of the prestige, influence and ascendancy that his office affords him in order to
commit the crime or at least facilitate the commission of the crime.
SECOND par.:
That the crime be committed in contempt of or with insult to the public authorities.
ELEMENTS:
1. The public authority is engaged in the exercise of his functions
A public authority or a person in authority is one directly vested with jurisdiction,
whether as an individual or as a member of some court or governmental
commissioner. He has the power to govern the laws, he has jurisdiction. He is
considered as a public authority or a person in authority. (Mayors, Barangay
Chairman )
2. He is not the person against whom the crime is committed
Because if the public authority is the person against whom the crime is committed
the crime is DIRECT ASSAULT. And in case of direct assault, in contempt of or with
insult to public authority is an inherent element, no longer aggravating.
3. The offender knows him to be a public authority
4. His presence did not prevent, did not deter the said offender from committing the crime.
Relating the 3
rd
and 4
th
element, the basis of this aggravating circumstance is the
LACK OF RESPECT in contempt of the public authority.
Offender must know that the crime was being committed in the presence of a public
authority. He must know.

EXAMPLE: What if 2 persons was involved in a traffic altercation, they were having a heated
argument in front of the MMDA officer and the MMDA thought he already pacified the 2,
however, the first man A inflicted physical injuries on the second man. Is the commission of
the physical injuries attended by the aggravating circumstance of in contempt of or with insult to
public authorities?
ANSWER: NO. Just like a police officer, an member of an MMDA is ONLY AN AGENT of a
person with authority, he is not a person of public authority.
EXAMPLE: Same facts, but in this case, the altercation was in front of the Barangay Chairman
of the said locality who stopped these 2 men.
ANSWER: YES. A Barangay Chairman is a person in authority.
THIRD par.:
That the act be committed with insult or in disregard of the respect due to the offended party on
account of his rank, age or sex, or it be committed in the dwelling of the offended party, if the
latter has not given provocation.
Disregard of rank, disregard of age and disregard of sex can only be considered in crimes
against persons and crimes against chastity. You do not consider these in crimes against
property; you do not consider these in crimes against public order, public interest or crimes
against national security.
There are four aggravating circumstances under this paragraph:
1. Disregard of rank
Rank refers to a high social standing, a high position in the society. For this to be
considered as an aggravating circumstance, it is necessary that the offender be of
lower rank than that of the offended party.
2. Disregard of age
Refers to both minority and seniority.
However, there must be evidence showing that the said offender disregarded the
age. He has the intention to insult, to disregard, the age said party.
3. Disregard of sex
Refers to the female sex. The offender disregarded the female sex of the said victim
or the said offended party.
4. Crimes committed in dwelling of the offended party
An aggravating circumstance because of the privacy of ones abode, the sanctity of
the privacy of ones abode. No less than the Constitution grants that sanctity.
Therefore, if the offender commits the crime inside the dwelling of the offended party,
it shows his greater criminality rather than when he commits it on the streets, on the
road or any other place.
However, even if the crime was committed inside the dwelling of the offended party,
dwelling is not considered aggravating in the following instances:
1. When the offended party has given provocation
2. When both the offender and the offended party are living in the same dwelling.
3. When dwelling is inherent in the commission of the crime.
So in these three instances, even if the crime is committed inside the dwelling of the
offended party, dwelling is not considered as an aggravating circumstance.
Dwelling includes the dependencies, the staircase and the enclosures therein.
Ownership is immaterial. It need not be owned by the offended party, it suffices that
the offended party uses it for rest and comfort. (A room being rented by the lessee or
a lessee; room where a person is living as a bedspacer.)
EXAMPLE: What if, the woman was waiting for her mother at the ladder of their
house at around 6pm, here comes X, he abducted the woman and forcibly dragged
the said woman 10meters from their house and raped her. Is the aggravating
circumstance of dwelling present in this case?
ANSWER: YES. Because the aggression started in the dwelling of the offended
party, for as long as the aggression started at the dwelling of the offended party even
if it was consummated in another place, dwelling is still considered as an aggravating
circumstance. Because the said aggression cannot be broken and a ladder is
included in the meaning of dwelling.
FOURTH par.:
That the act be committed with abuse of confidence or obvious ungratefulness.
There are two aggravating circumstances:
1. Abuse of confidence
REQUISITES:
1. That the offended party has trusted the offender;
2. That the offender abused the trust and confidence reposed on him by the said
offended party;
3. That the abuse of trust and confidence FACILITATED the commission of the
crime.
2. Obvious ungratefulness
The ungratefulness that is aggravating must be OBVIOUS, mere ungratefulness will
not suffice, it must be obvious, evident, manifest ungratefulness on the part of the
offender.
Ungratefulness wanting in gratitude.
EXAMPLE: What if, X and Y have been living in Manila, there was knock on their
door, it was their neighbor from the province A. A informed them that he was in
Manila looking for a job, but unfortunately, he has not found one and his resources
are already out and he needed a place to stay. X and Y accommodated A and
they gave him a room. One time while the husband was out all day and the maids
were out to the market, only the wife was inside the bedroom and A entered the
said bedroom and had carnal knowledge of the wife against the will of the wife. Is the
aggravating circumstance of abuse of confidence present?
ANSWER: YES. All the elements are present.
FIFTH par.:
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.
There are four aggravating circumstances.
1. In the palace of the Chief Executive
2. In the presence of the Chief Executive
3. In the place where the Public Authorities are engaged in the discharge of their duties
4. In a place dedicated to religious worship
If the crime is committed in any of these places it is considered as an aggravating circumstance
because it shows on the part of the offender lack of respect on these places.
In order however for these aggravating circumstances to be considered, it is necessary that
there be evidence showing that the offender disrespected the said place, the offender
deliberately sought the said place to commit the crime because otherwise it cannot be said that
he disrespected the place.
EXAMPLE: A has been looking for B because he wanted to kill him and based on
surveillance, every Thursday B would go inside this church to pray. So one Thursday morning,
A went to the church and repeatedly stabbed B inside the church. Is the aggravating
circumstance present?
ANSWER: YES. It is not necessary that there be a religious ceremony or function, it suffices
that the crime was committed in the place devoted to religious worship and that when the
offender entered the place he had the commission of the crime in mind. It showed that he
deliberately disregarded the respect of the said place.
EXAMPLE: What if A and B are both clerks, they work inside Malacanang, the Palace of the
Chied Executive. One day they had an argument, as a result, A took out his pen and hit the
eye of B. B suffered serious physical injuries and lost sight in one eye. Is the aggravating
circumstance present?
ANSWER: NO. A did not deliberately go to the said place to commit the crime. It is necessary
that when the offender enters the said place he had the commission of the said crime in mind.
Here, both are employees in Malacanang and the said act of inflicting serious physical injuries
happened in the course of their argument, there was no deliberate intent on the part of the
offender.

THIRD MEETING B ALLAN

PAR 6. THAT THE CRIME BE COMMITTED IN THE NIGHTTIME, OR IN AN UNINHABITED PLACE, OR BY A
BAND.

So we are now on the sixth aggravating circumstance. Under the sixth aggravating
circumstance, that the crime be committed at the nighttime or in an uninhabited place, or by a
band, whenever such circumstances may facilitate the commission of a crime. So we have three
aggravating circumstances in par 6nighttime, uninhabited place, by a band.

Nighttime is considered as an aggravating circumstance, when the offender deliberately sought
the cover of darkness for any of the ff purposes:
1) to facilitate the commission of the crime;
2) to ensure or afford his impunity.

So the offender deliberately sought the darkness of the night, either because he wanted to
facilitate the commission of the crimethat is to commit the crime without any interference,
and therefore, definitely will be comsummated with certaintyor he wanted to conceal his
identity. Because of the darkness of the night, he deliberately sought the said darkness of the
night so that no one will be able to recognize him because of the darkness of the night. If he will
be not able to be recognized, therefore, he cannot be arrested, he cannot be prosecuted, he
cannot be chargedhis identity would be concealed.

So for nighttime to be considered to be an aggravating circumstance, it is necessary that the
offender use the cover of darkness either to facilitate the commission of the crime or to
insure or afford impunity. Even if the offender deliberately sought the cover of darkness, if at
the time of the commission of the crime, the scene of the crime, which used to be unlighted, was
suddenly illuminated, by any light, nighttime is no longer an aggravating circumstance. So the
moment the scene of the crime was illuminated by any lightwhether it be light coming from
parked vehicles; light coming from nearby houses; light coming from vehicles passing by; or
even the light coming from the moon, shining brightly (full moon)the moment all these lights
illuminated the scene of the crime, nighttime is no longer an aggravating circumstance.

An uninhabited placean uninhabited place is one which is far from other housesit is far from
the town, far from the city and other houses. But that is not the qualification for it to be
considered to be as an aggravating circumstance. For an uninhabited place to be considered as
an aggravating circumstance, there are two requisites:
1) first, it is necessary that in the place that where the crime was committed, there is very
little, or very remote possibility for the victim to receive some help; and
2) second, that the offender, took advantage of the said place to facilitate the commission
of the crime.

So to consider uninhabited place as an aggravating circumstance, it is not the nearness or the
farness of the said place from the other houses, but rather, in the place where the crime was
committedwas there little, was there a remote possibility for the victim to receive some
helpif so, then it is considered as an aggravating circumstance.

By a banda crime is considered to be committed by a band when more than three armed
malefactors shall have acted together in the commission of the crime. Therefore, there must be
at least four armed malefactors who altogether took part or participated in the
commission of the crime. They shall have acted together in the commission of the crime if
they are to be considered as by a band.

EXAMPLE:

Q: So what if A wanted to kill B. He knew that B would pass by a dark alley which is unlighted
every 12 midnight, coming home from work. And so, A waited for B. When B arrived, exactly 12
midnight, he passed via said dark alley. A appeared, he was at the point of stabbing B, when
suddenly, a tricycle passed by and parked in the area, illuminating the scene of the crime. Is
nighttime an aggravating circumstance in the commission of the crime?

A: Nighttime is not an aggravating circumstance in the commission of the crime. Although A
deliberately sought the cover of darkness in order to facilitate the commission of the crime of
killing B, the place was illuminated when the tricycle went to the place and parked in the area.
Therefore, nighttime is no longer to be considered as an aggravating circumstance. Nighttime, if
the crime is attended by nighttime and treachery, nighttime is absorbed by treachery as an
aggravating circumstance.


Q: What if A, B, and C are all fishermen, about 3 o clock early morning, they went to their boats
to go out fishing. So A was on board his boat and he was sailing ahead of B and CB and C
were also in their respective boats. B was about five meters away from A, when suddenly X
came out of the water and X stabbed A to death. Is the circumstance of uninhabited place
present in the commission of the crime?

A: Yes, it is present in the commission of the crime. First element, in the place where the crime
was committed, there was very little or very remote possibility for the victim, A, to receive some
help. Although B and C were also on their respective boats, it would take them five meters to
swim before they could render some help to A, by that time A is already dead by Xs act of
stabbing him. Therefore, the first element is present. There was very littlevery remote
possibility for the victim to receive some help. The second element is also present. Obviously, X
took advantage of the said place in order to facilitate the commission of the crime. Who could
possibly know that X would suddenly come out of the said water? Definitely, X took advantage
of the said place in order to facilitate the commission of the crime. So in this case, an
uninhabited place attended the commission of the crime as an aggravating circumstance.


Q: So what if A, B, C, and D, killed Xthey are all armed with knives and they repeatedly
stabbed X with their respective knives. So they were charged with information: A, B, C, and D,
in conspiracy with one another, they have killed X. And in the information, it was also stated that
the said killing was also attended by the aggravating circumstance of by a band. After crime on
the merits, the judge considered them as conspirators. And, not only that, the judge also
considered the aggravating circumstance of by a band. By reason thereof, the counsel of the
accused filed a motion for reconsideration, saying that, since the court already considered them
as conspirators, they can be no longer be considered as by a band. Is the contention of the
counsel correct?

A: The contention of the counsel is wrong. Conspiracy is a means to commit a crime; whereas,
by a band is an aggravating circumstance. One cannot absorb the other because they have
different elements. When you say that the crime was committed by the offenders, in conspiracy
with one another, it means that they will have the same penalty. The same penalty will be
imposed on all of themthey being conspirators. The fact that band was considered as an
aggravating circumstance, it means that the penalty would be increased. It will serve to increase
the imposable penalty. One cannot absorb the other because they have different penalties. One
is an aggravating circumstance, one is a mere means to commit.


PAR 7. THAT THE CRIME BE COMMITTED ON OCCASION OF A CONFLAGRATION, SHIPWRECK,
EARTHQUAKE, EPIDEMIC, OR ANY CALAMITY OR MISFORTUNE.

Then we have the seventh aggravating circumstance, that the crime be committed on occasion
of a conflagration, shipwreck, earthquake, epidemic, or any other calamity or misfortune. If the
crime is committed on the occasion of this calamity or misfortune, it is considered as an
aggravating circumstance because the offender took advantage of the calamities in order to
commit the said crime. If the crime that was committed on occasion of this calamities
earthquake, conflagrationhappens to be that of killing a person, this is considered not merely
as a generic aggravating circumstance, but also as a qualifying aggravating because this
aggravating circumstance is also found on Article 248. So if the said act of killing a person was
done on the occasion of an earthquake, then it would be considered as murdernot merely
homicide.


PAR 8. THAT THE CRIME BE COMMITTED WITH THE AID OF ARMED MEN OR PERSONS THAT INSURE OR
AFFORD IMPUNITY.

Then we have the eighth aggravating circumstance, that the crime be committed with the aid of
armed men or persons that insure or afford impunity. How is aid of armed men different from by
a band. So in the commission of the crime, armed men were present, and these armed men
helped in the commission of the crime. How would you know if the aggravating circumstance to
be considered is that of having been committed by a band or that having been committed with
the aid of armed men. In case of by a band, the law requires a specific number of armed
persons. There must be at least four, because the law says more than three armed malefactors.
Therefore, there must be at least four armed malefactors. Whereas, in case of aid of armed
men, there is no requisite numberit can be one, it can be two, three, etc. The second
distinction is that in case of by a band, the law requires that all four armed men must have acted
together in the commission of the crimethey all must have participated in the commission of
the crime. Whereas, in case of aid of armed men, these armed men may directly or indirectly
participate in the commission of the crime. Being merely aided the actual perpetrator in the
commission of the crime. So it is not necessary that they actually participated in the commission
of the crime. Their participation may be direct or indirect participation in the commission of the
crime.


PAR 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 THIS CODE.

Then we have the ninth aggravating circumstance that the accused is a recidivist. A recidivist is
one who, at the time of the trial of his crime, has been previously convicted by final judgment of
another crime embraced in the same title of the Code. For recidivism to lie as an aggravating
circumstance, the ff are the requisites:
1) first, that the offender is on trial for one crime;
2) second, at the time of the said trial, he has already been previously convicted by final
judgment of another crime;
3) third, both the second and first crimes are embraced in the same title of the Code; and
4) last, the offender is also convicted of the second crime for which he is on trial.

So in case of recidivism, there must be at least two convictions: one conviction for the first
crime, which must be a conviction by final judgment; the second conviction is for the crime for
which he is on trial at the moment. And it is on the second conviction, that he is a recidivist, shall
be considered final. The third element of recidivism requires that both crimesthe first and the
secondmust be embraced in the same title of the Code. So, there is no particular crime stated
but the law requires they must be of the same title of the Code.


EXAMPLE:

Q: So what if, A committed the crime of robbery, he was convicted of final judgment and he
served out his sentence. After service of sentence, he comes out of prison. He then committed
the crime of theft. He is now on trial for the crime of theft. The judge found him guilty beyond
reasonable doubt for theft. In imposing the penalty for theft, may the judge consider the
aggravating circumstance of recidivism?

A: First elementhe is on trial for one crimehe is on trial for theft. Second elementat the
time of his trial, he must be previously convicted of final judgment of another crimeat the time
of his trial, he has already been previously convicted by final judgment of robbery. Third
elementboth crimes must be embraced in the same title of the Coderobbery and theft are
both under Title X, crimes against property. Last elementhe must be convicted of the second
crimethe judge convicted him of theft, the second crime. All elements are present, therefore,
recidivism may be considered against the said accused.


Q: What if the same problem, but this time, A committed the crime of robbery, served out the
sentence, after being released, he led a good life. But 25 years thereafterbecause of the
inducement of his friendshe committed the crime of theft together with his friends. He was
arrested, together with his friends. So he is now on trial for the crime of theft. The judge found
him guilty. In imposing the penalty for theft, may the judge consider recidivism as an
aggravating circumstance?

A: The answer is still yesall the elements are still present, they only differ in that 25 years had
lapsed. But, no matter how many years had lapsed from the first crime, for which he has been
convicted of final judgment, up to the second crime, that is immaterial, because recidivism does
not prescribe. There is no requisite number of years between the first crime and the second
crime. Therefore, he is still a recidivist.


Q: How may the prosecution prove recidivism?

A: The prosecution must allege in the information, and to prove it during trial, the prosecution
must present a certified true copy of the conviction by final judgment as to the first crime that
had been committed by said criminal. The certified true copy of the conviction will be sufficient
so as to hold that he has already been convicted by final judgment of another crime embraced
in the same title of this Code.


PAR 10. THAT THE ACCUSED HAS BEEN PREVIOUSLY PUNISHED BY 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.

The tenth aggravating circumstancethat the accused has previously been punished of an
offense to which the law attaches an equal or greater penalty, or for two or more crime to which
the law attaches a lighter penalty. This is otherwise known as reiteracion or habituality. For
reiteracion or habituality to be considered, the ff are the requisites:
1) first, the accused is on trial for one crime;
2) second, at the time of said trial, he has already been punished and has already served
out sentence for another crime to which the law attaches an equal or greater penalty, or
for two or more crimes to which the law attaches a lighter penalty;
3) third, he is also convicted of the new crime that he is on trial for.

So just like recidivism, reiteracion requires also at least two convictions. But unlike recidivism
wherein conviction by final judgment as to the first crime committed will sufficeinsofar
reiteracion is concerned, what is required is that the first crime has already been served out
by the said offender. He has already served out the sentence, he has already been punished
for the first crime that he has committed.


EXAMPLE:

Q: So what if A, mad at his neighbor B, A slapped B. B filed a case of slight physical injuries
against A. The judge found A guilty beyond reasonable doubt of slight physical injuries. So,
convicting A, the judgment being final and executory, A served out his sentence. Once out of
prison, A, still so mad at B, went directly to B and he deliberately damaged the fence of B. B,
now filed a case of malicious mischief against A. He is now on trial for malicious mischief. The
judge found him guilty beyond reasonable doubt. In imposing the penalty for malicious mischief,
can the judge consider reiteracion?

A: The answer is no. The judge cannot consider reiteracion. In the second element of
reiteracion, it is necessary that the offender has been previously punished for a crime to which
the law attaches an equal or greater penalty, or for two or more crimes to which the law
attaches a lighter penalty. There are two situations, being referred to in the second element. If
there are only two crimes that had been committed, what the law requires is that the first crime
for which the offender had been previously punished must carry a penalty equal to, or greater
than, the second crime. The first crime is that which has a penalty equal to, or greater than, the
second crime. The second situationif there are three crimes committed, the law requires that
first two crimes must carry a lesser penaltylighter penaltiesthan that of the third crime.

Q: So in the problem that I gave, A is convicted of malicious mischief, is there reiteracion?

A: Reiteracion is not present because the first crime that he committedslight physical
injuriescarries lighter penalty than that of the second crime, that is malicious mischief
arresto menor. It is necessary that it is the first crime that must carry a greater penalty than that
of the second crime. Therefore, reiteracion cannot be considered in his conviction for malicious
mischief.

Q: Let us add facts to the problem, what if A is now convicted of final judgment of malicious
mischief, he served out his sentence, once out of prisonstill mad at Bhe executed a sworn
statement, stating falsities, imputing upon B a commission of a crime under oath. And so B now
files a case of purgery against Apenalty for purgery is prision correccional. A is now on trial for
the crime of purgery, the judge found him guilty beyond reasonable doubt for the crime of
purgery. In imposing the penalty for purgery, may the judge consider reiteracion?

A: This time, the answer is yes because the first two crimesslight physical injuries and
malicious mischiefcarry lighter penalties than the third one that he has committed. Therefore,
reiteracion may be considered as an aggravating circumstance in the penalty to be imposed in
purgery.


PAR 11. THAT THE CRIME BE COMMITTED IN CONSIDERATION OF A PRICE, REWARD, OR PROMISE.

Then we have the eleventh aggravating circumstancethat the crime be committed in
consideration of a price, reward, or promise. This is an aggravating circumstance which applies
both to the giver of the price, reward, or promise, and the receiver of the price, reward or
promise. It is applicable to both the principal by induction or by inducement and the principal by
direct participation.


EXAMPLE:

Q: A wanted to kill Bhe could not do it. He hired X, a hired killer, and he gave X P500,000 to
kill B. So indeed, X killed B after accepting the P500,000. Against whom should the aggravating
circumstance of price, reward, or promise be considered?

A: Against both of them. They will be held liable for the crime of murder as conspiratorsone,
principal by inducement, the other, principal by direct participationand this aggravating
circumstance, in consideration of price, reward, or promise, will be considered as a qualifying
aggravating circumstancethis is included in Article 248. So if the giving of a price, reward, or
promise is done in order to have a person be killed. Then it is not only a generic aggravating
circumstance, but it is considered as a qualifying aggravating circumstance under Article 248.


PAR 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.

Then we have the twelfth aggravating circumstancethat 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 or ruin. If the
crime is committed by any of these means, it is considered as an aggravating circumstance. But
if the crime committed is killing a person by any of these means, it is a qualified aggravating
circumstance. Again, it is provided for in Article 248, as one of the qualifying circumstances to
qualify the killing or homicide to murder.


EXAMPLE:

Q: A wanted to kill B. A placed poison on the drink of B. When B had taken the said drink, B
died because of the said act of poison. What crime is committed by A?

A: A is liable for murder qualified by the use of poison in the said act of. So its murder
qualified by the use of poison as a means to commit the act.


PAR 13. THAT THE ACT BE COMMITTED WITH EVIDENT PREMEDITATION.

Then we have the thirteenth aggravating circumstancethat the act be committed with evident
premeditation. Evident premeditation is the stubborn adherence to a decision to commit a crime.
It implies deliberate planning, before the actual execution of the crime. Before evident
premeditation may be considered as an aggravating circumstance, the ff are the requisites:
1) first, the time that the offender has determined to commit the crime;
2) second, a act manifestly indicating he has clung to his determination; and
3) last element, a sufficient lapse of time from the determination and the actual execution
of the crime for him to reflect upon the consequences of the crime

These are the three requisites of evident premeditation. The first element requires that the time
that the offender has determined to carry the time. When the offender decided to commit the
crime there is the time. Second element, an act manifestly indicating that he has clung to his
determination. There must be an evidence showing that he has performed an act to show that
hes still persistent with the idea, that he has clung to his determination to commit the crime.
Last element, a sufficient lapse of time between the determination and the actual execution of
the crime, time to reflect upon its consequences.


EXAMPLE:

Q: So what if A slapped B several times, before a number of people. B felt so humiliated. So B
told A, I will kill you the next time I see you. B went home full of shamehe could not sleep
he wanted to take revenge. So the following day, he went to a place that sells guns. He bought
a pistol, placed it under his bed. He would look at the pistol, waiting for the perfect time to kill A.
A month had passed, B was walking when he saw A buying something at the store, B hurriedly
went home and took his pistol, went directly to A and shot A, A died. Is the killing qualified by
evident premeditation?

A: Evident premeditation is present. First elementthe time when the offender decided to
commit the crimewhen A slapped B, B told A, I will kill you the next time I see you. That was
the time that he has determined to carry the crime. Second elementan overt act indicating that
he has clung to his determinationhe bought a pistol and waited for a sufficient time to kill A.
Last elementa sufficient lapse of timea month had passed. That is sufficient time for B to
reflect upon his intent to revenge upon A. All the elements are present, therefore, evident
premeditation is present in the commission of the crime. Evident premeditation is also a
qualifying circumstance in the crime of murder, under Article 248. Evident premeditation is
absorbed inherently in the crime of robbery and theft.


PAR 14. THAT THE CRAFT, FRAUD OR DISGUISE BE EMPLOYED.

Then the fourteenth aggravating circumstancethat craft, fraud or disguise be employed. Under
the paragraph fourteen, there are three aggravating circumstanceswe have craft; we have
fraud; we have disguise.

Craft refers to cunning or intellectual trickery resorted to by the accused in order to carry out his
evil design.

Fraud, on the other hand, means deceit, or is the use of insidious words or machinations
resorted to by the accused in order to induce the victim to do an act that will make the accused
carry out his evil intent.

Disguise, on the other hand, refers to the use of ways, means, methods for the offender to
conceal his identity so that he would not be recognized.


EXAMPLE:

A knocked on the door, knowing that only the maid was inside. And he informed the maid that
he was a relative of the master of the house. The maid believed him and allowed him to enter
the house. Once inside, A committed the crime of robbery. There was use of cunning or trickery
in order to facilitate the commission of the crime.


Q: A and B are neighbors, they are always sharing stories to each other. And so A learned from
B that B was keeping a diamond inside his house. So A wanted to get that diamond. So at night,
12 o clock, he placed a bonnet on his face and entered the house of B with only his eyes
visible. So only his eyes can be seen. And he took the diamond from Bs place but he made
some noise so the owner of the house was awoken. B was hysterical, A also panicked. And so
A shouts at B, do not shout, do not shout, otherwise Im going to shoot you. Because of A
saying these words repeatedly, B recognized the voice of Athat was the voice of his neighbor.
So although A was in disguise, B still recognized him because of his voice. Is the aggravating
circumstance of disguise present in the commission of the crime?

A: It is not present in the commission of the crime. Because despite disguise, the accused was
still recognized by the victim. Therefore, did not serve its purpose. Disguise will not be
considered as an aggravating circumstance in the commission of the crime. Aside from placing
a disguise on the face of a person, a person can also be identity by other meansby the noise;
by the moves; other things, like parts of the body. So there are other things for recognizing that
person. If despite the disguise, he was recognized through these other meansrule out
disguise as an aggravating circumstance.

FOURTH MEETING - VITO

Exempting Circumstance
The offender is absolved of Criminal Liability but not Civil liability.
When a exempting circumstance is present of a felony a crime is committed but the offender is
not criminally liable since he acted without voluntariness; any of the elements of voluntariness
Criminal Intent, freedom of action or Intelligence is absent thus being such is not hes act there
is no criminal liability. Thus as a rule there is a crime but there is no criminal
Under the 1
st
paragraph there are two exempting circumstance:
A. Imbecility refers to one who is already advanced in age but only have a thinking of a child
between two and seven years old. There is no intelligence, an element of voluntariness, thus
exempting under any and all circumstances
B. Insanity (unless he acted during a lucid interval.) - on the other hand refers to the mental
aberrational background or disease of the mind and must completely impair the intelligence of
the accused. It is not exempting because it must be proven that the felony was committed when
the offender was insane. There is lucid interval, and if an offender committed a crime during his
lucid interval, his insanity is not a defense, there still is criminal liability.
What if A killed B and stabbed him many times. A was prosecuted for murder. A tried to go for
insanity. To prove insanity, the defense presented the father of A, who testified that his son
would go out of their home naked and thereafter return. Second, his son was in and out of the
mental institution. Third, his son would steal the jewelries of his mother and would sell it at an
extreme low price. Is this enough to prove insanity that he be made acquitted of criminal
liability? NO. 1
st
the fact that he returns home shows he has lucid intervals, 2
nd
since he got out
of mental institution he is cured, and last insane person would not understand the value of
jewellery at whatever price. THUS son not insane.
In an old case, What if the accused killed while in a state of somnambulism (sleepwalking)? SC
considered such as akin to insanity. He did not know what he was doing at that time when he
killed the victim. Therefore, there is no criminal liability.
As to the 2 & 3 Paragraph what is controlling is the provision of RA 9344. Under section 6 of
the said act if a child committed a felony when he is 15 or below, he is exempted from criminal
liability, though must go under intervention. If he is over 15 but below 18, he is exempted from
criminal liability unless he acted with discernment. If the child in conflict with the law is over 15
but below 18 you must consider if he acted with discernment to determine if there is criminal
liability or not.
How do you determine the age of the child, under Sec 7. By his birth certificate, his baptismal
certificate or by any other documentary evidence. If no evidence, minority is always resolved in
favour of the said child, unless proven otherwise.
So, if the offender is 16, therefore he is over 15 but below 18, and he committed a crime and
acted with discernment. During the trial, it was established and proven that he is guilty beyond
reasonable doubt. There is already a pronouncement of a judgment of civil liability.
Under Sec. 38, once the child who is under 18 years of age at the time of the commission of
the crime was 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 the suspension
of the sentence shall still be applied even if the juvenile is already 18 years of age or more at
the time of the pronouncement of his guilt. Therefore, as long as he is 18 years and below at
the time of the commission of the crime, even if he is above 18 at the promulgation of the
judgment, he can still benefit from the suspended sentence.
Section 40 tempered though section 38. The Child here must be 21 years of age. If a child is
under suspended sentence, the court shall decide to discharge or to extend the sentence for a
specific period of time or until the child attains the maximum age of 21. Although there is
automatic suspension, it is tempered by Section 40. Therefore, the maximum limit is 21 years
old thus above 21 no more suspended sentence can be given.
In the case of People vs Sarcia and in People vs Mantalaba the SC had the same ruling
although the facts differ as to the facts committed, in both cases Sarcia and Mantalaba were
minors at the time of commission of the crime. Both were convicted but while case was pending
RA 9344 came into passing. The SC ruled that the law should be given a retroactive application
for under section 68 expressly provides that those already serving sentence or convicted
provided they were minor at the time of the commission of the crime shall be given retroactive
application of RA9344. The SC also ruled that although the crime committed is a heinous crime,
the accused can still be given a suspension of the sentence. Section 38 does not distinguish the
nature of the crime, be it heinous, capital, or light offense, the child is entitled to suspension of
sentence. However, the SC ruled that considering the age of Sarcia (already 31), he cannot be
given anymore the benefit of suspension. Although he committed the crime when he was 17
years old, the maximum age is 21. The only benefit that was available to him was under Sec51
which provides that he shall serve his sentence in an agricultural camp and other training
facilities.
In the case of Madali vs People, the 2 Madali brothers killed another teenager, Raymond was
14 and rodel was 16. Raymond being below 15 is total exempt but as to Rodel discernment is
now a factor. There is an act of discernment when the minor knows the consequences and
circumstances of his act. Discernment is that mental capacity of a minor to fully appreciate the
consequences of his unlawful act. Such capacity may be known and should be determined by
taking into consideration all the facts and circumstances. In this case, the accused who was 16
years old at the time of the commission of the crime, warned the witness not to reveal their
hideous act, otherwise, he (accused) and his co-accused would kill him. Therefore, he knew that
killing the victim was a condemnable act and should be kept in secrecy. He fully appreciated the
consequences for his unlawful act. Thus he was convicted but given suspended sentence.
The 4
th
paragraph refer to accident thus the elements of such are:
1. A person is performing a lawful act;
2. With due care;
3. He causes injury to another by mere accident; and
4. That there is no fault or Intent to cause such.
If not all these elements are present, he becomes criminally liable for his act.

What if A was caught by the police for crime that is in flagrante delicto, the police officer placed
hand cuff on A and police man brought to police station. A fearing a prison sentence A grabbed
the service pistol of the officer who was accompanying him to the police station. The police tried
to get back his pistol, and in the course of the fight, the pistol was fired accidentally and A was
hit. Thereafter, A died. The police officer was prosecuted for homicide. He invoked accident, is
it right? Yes, since he was performing a lawful act in trying to retrieve his assigned pistol, he
acted with due care since its the only way to get it back, and he caused the injury by accident,
which was the case, thus must be absolved of criminal and civil liability.
Though as a rule in exempting circumstance there is no criminal liability only civil, the exemption
to such is paragraph 4, where there is no civil liability since he was performing a lawful act.
What if A and B were fighting when a police officer passed by and blew his whistle to stop them.
The police tried to pacify the two men, but they wont stop. So what the police officer did was
that he fired shots to pacify the men. However, one of the stray bullets landed on the child.
Unfortunately the child died. The police officer was prosecuted for homicide. As a defense, the
police officer invoked accident will it carry? NO The second element is not present. Considering
that it was a community, he knew that a stray bullet would have landed on any person. He
should not have fired shots. The police officer is liable for reckless imprudence resulting to
homicide, a culpable felony, thus no due care.
The 5
th
and 6
th
paragraph is related to one another.
The 5
th
paragraph refers to any person who acts under the compulsion of an irresistible force.
The elements of such are as follows:
1.There must be Compulsion is by means of physical force;
2. Physical force must be irresistible; and
3. Physical force must come from a third person

In irresistible force, the offender must be reduced as a mere instrument, that he is not acting in
his will. Therefore, if he is acting against his will, voluntariness is absent.
The 6
th
paragraph refers to any person who acts under impulse of an uncontrollable fear of a
greater or equal injury. The elements are as follows:
1. Existence of an uncontrollable fear;
2. Fear must be real and imminent; and
3. Fear of an injury is greater than or equal to that committed.

For the 5
th
and 6
th
, the important factor here is the fact of a lack of choice in the matter.

So what if A and his carabao was on his way home. On his way home, he heard gun shots, so
he went to the place where he heard the gun shots. He hid behind a tree and saw two men
shooting X. X way already lying on the ground. The farmer was so shocked and afraid that he
tried to leave the place. However, when he was about to leave, he stepped on the dried leaves
and caused a noise. The two men saw him. One of the men pointed the gun at the farmer and
told him to come near them. Afraid for his life, the farmer obeyed. The men, pointing the gun at
the farmer told him to bury X lying on the ground. The farmer said, No, I dont want to. If you
will not bury X, we will shoot you, said one of the men. The farmer was so afraid and so he dug
the ground and buried X. Is the farmer criminally liable together with the two men? No he is not
for the elements of 5
th
is present.

SAME PROBLEM . If you will not bury X, we will shoot and kill your carabao. The farmer was
so afraid. His carabao was his only means of living. And so, he buried X. Is he criminally liable
together with the two men? Yes, the death of a carbao is not greater or equal to the life of a
person.

What if in the same problem, the two men told the farmer that if the farmer will not bury X, they
will go to his house, rape his wife, thereafter kill her and his children and burn his house. His
family is the most important people in his life. Therefore, he was constrained to bury X. is he
criminally liable? YES there fear is not imminent, thus liable.

In the case of Vicky Ty. She was accused of issuing bouncing checks. Vicky Tys defense was
that she feared that her ailing mother who was confined in the hospital would commit suicide
because of the hospitals ill treatment. So she was compelled to issue unfunded checks for her
mother to be discharged. In this case, yes there is an uncontrollable fear. However, her fear was
not real and imminent. It is mere imaginative, speculative. It is not now, or not present.
How about state of necessity? She might not have cash but she has jewelleries.

The 7
th
and last paragraph Refers to any person who fails to perform an act required by law,
when prevented by some lawful insuperable cause.

The law requires the person to require a lawful act, but was prevented because of an
insuperable cause. Under this paragraph such is exempt from both criminal and civil liability. It
is akin to a justifying circumstance because what prevented the offender from performing a
lawful act is a lawful cause.
Elements of are:
1. An act is required by law to be done;
2. A person fails to perform such act; and
3. Failure to perform such act was due to some lawful or insuperable cause.

How do you distinguish justifying circumstances from exempting circumstances
1. Justifying circumstance affect the act not the actor;
2. In exempting circumstance affect the actor not the act;
3. In JC the act done is within the bounds of law;
4. In EC the act done is a criminal act;
5. In JC there is no crime and there is no criminal;
6. In EC there is a crime but no criminal;
7. JC can be only invoked in intentional felonies
8. EC can be invoked in intentional and culpable felonies.