AGGRAVATING CIRCUMSTANCES

1. CONCEPT:

a). They are modifying circumstances which when present will produce the effect of the divisible penalty
being imposed in its maximum period, or which will change the nature of the crime as to make it more
serious as to call for the imposition of a higher penalty.

b). They indicate a greater perversity on the part of the accused, an unusual criminality and dangerousness
as shown by his motives, his choice of the time and place of the commission of the crime, or in the manner
of its commission, or in the choice of the victim.

c). They arise either prior to or simultaneous with the commission of the crime

II. CLASSIFICATION

A. Generic or those applicable to all crimes such as habituality

B). Specific or those applicable only to certain crimes such as cruelty, ignominy and treachery which
apply only to crimes against persons

C). Ordinary or those which may be offset by a mitigating circumstance and which if not offset, will result
to the divisible penalty being imposed in its maximum period

D.) Qualifying or those which will change the nature of the offense by making it more serious

E) Special: those which arise under special conditions and cannot be offset by a mitigating circumstance
such that it is mandatory that the penalty is to be imposed in the maximum period.

1. If there be a Mitigating circumstance it will affect the range of the maximum period

2. They are as follows:

a) That the act resulted to a complex crime (Art. 48)

b).That there was error in personae or mistake in the identity of the victim (Article 49)

c). That the accused took advantage of his official position( Article 62)

d). That the crime was committed by an organized syndicated crime group i.e by at least 2 persons
organized to commit a crime for profit (Article 62)

e). That the accused is a quasi-recidivist under Art. 160.

f). That an unlicensed firearm was used in a killing pursuant to P.D. 1866 as amended by R.A.
8294. (Palaganas vs. PP., Sept. 12, 2006)
III. SOURCES

A). The revised Penal Code

1. The basic source is Article 14 which enumerates the ordinary and generic aggravating
circumstances

2. As to the qualifying, special or specific aggravating, they are found in certain specific articles in
Book II under the respective titles covering the crimes to which they apply

For example: (i). In Art. 125 as to those which qualify piracy, (ii) Art. 248 as to those which qualify
homicide to murder,(iii) Art. 310 as to those which qualify theft (iv) article 338 as to those which
qualify seduction

B). Special Laws

i). The Dangerous Drugs Law of 2002 provides the circumstance of having been found positive for
the use of dangerous drugs

ii). The Heinous Crime Law such that Reclusion Perpetua (death) shall be imposed in the crime of
carnapping if murder, homicide or physical injuries were committed; or in the crime of Kidnapping

iii). RA 8294 which provides the circumstance of “use of unlicensed firearm in the commission of
murder or homicide”

iv). The Anti Rape Law enumerates several qualifying circumstances of rape

v). R.A. 7610 “ The Special Protection of children Against Abuse, Exploitation and Discrimination
Act” ( 1992) which provides that if the victim is below 12 years of age, the penalty for the crimes of
murder, homicide, intentional mutilation, and serious physical injuries shall be reclusion perpetua ;
and incase of qualified seduction, acts of lasciviousness, corruption of minors and white slave trade,
the penalty shall be one degree higher than that imposed by the Revised Penal Code.

IV. PRINCIPLES IN THE APPRECIATION

A. Those which are inherent in the crime i.e those which must of necessity accompany the crime have
no effect, such as dwelling in trespass, disregard f respect due to the sex in crimes against chastity

B. All aggravating must be alleged in the Information in such a manner as to including a statement of
the facts which support their existence. A general allegation is not sufficient.

C. If there are several aggravating circumstances present:

1. If they are based on separate and distinct facts, all will be appreciated.

2. If they are based on the same circumstance or set of facts, then the Principle of Absorption
applies such that only one will be appreciated.. In crimes against persons for example, treachery is
preferred and it will absorb the other circumstances relating to the mode of the commission, but it
 will not absorb the circumstance that the crime was committed in consideration of a price, promise
or reward.

3. In case of qualifying circumstances, those which are not absorbed will be considered as ordinary
aggravating

Those under Article 14

1. That the accused took advantage of his official position

1. This is now a special aggravating under R.A. 7659 ( Heinous Crime Law) amending Article 62. If the
crime is Violation of the Child Abuse Law, the penalty shall be in the maximum.

2. Applies only to an offender who is a public officer who used the influence, prestige, or ascendancy of his
office as a means to realize his purposes or to commit eh crime. Did he abuse his office to commit the
crime?

3. Does not apply where being a public officer is inherent in the crime like those under the Title “Crimes By
Public Officers”

4. Examples: (a) A Jail Warden who orders the guard to beat up an inmate (b) A Police officer who orders
his subordinates to steal or rob or maul (c) a Judge who detained his debtor for contempt of Court for
refusing to obey the Judge Order for the debtor to appear in the sala of the Judge

2. In Contempt of, or with Insult to Public Authorities

1. Public Authorities refer to persons in authorities and not to their agents. Note that teachers and lawyers
are persons in authority for purposes of direct assault but not under this article. What about Chiefs of Police?
Yes, in places where they are allowed to prosecute in the absence of a public prosecutor.

2. The public authorities are not the victims of the crime but that the crime was committed in the presence,
view or hearing of the public authorities, and the accused knows them to be such.

3. Disregard of Respect due the offended party by reason of

(a) Rank (b) Age (c) Sex or that the crime was committed in the

(d) Dwelling of the offended party

1. There must be a conscious or deliberate disregard of the respect due to the offended party so that these
are incompatible when offender acted under passion, vindication or diminished will power, or was
intoxicated.
2. Age, sex and rank apply only to crimes against persons or honor

a). Age: the victim is either advanced in age or is relatively young, in relation to the accused.

i).There must be a disparity in their age, not when both are in the same age level

ii). This is inherent if the accused is charged with Child Abuse under R.A. 7610 but in cases where
the victim of death is a child below 12 years, the penalty shall be in the maximum, or one degree
higher in cases of qualified seduction, acts of lasciviousness with the consent of the minor,
corruption of minors and white slave trade

b). Sex. The victim is a female and the accused is a male but this does not apply to crimes where sex
is inherent as in abuses against women under R.A. 9262.

Under R.A. 7610 and RA 9262, there is an aggravating circumstance consisting of the fact that the victim
is a “Child” who is either (i). below 18 years of age, or (ii). is over 18 but is unable to fully take care of
himself or protect himself from abuse, neglect, cruelty, exploitation or discrimination because of a
physical or mental disability or condition.”

c). Rank: the victim is entitled to respect due to his social standing, high position or station in life, or
employment, from one who is aware thereof and is lower in rank or position. Examples:

i). Assault on the Company President by an employee thereof

ii). Attacking the head of a church by a member

N.B.: Should there be not be abuse of rank on the part of the accused if he is higher in station and he
uses this to commit a crime against one lower in rank?

3. Dwelling: refers to any structure habitually used by a person as his place of rest, comfort, privacy and
peace of mind. It may be man-made or a natural habitat, as a cave used as residence. What is emphasized
is not the appearance but the purpose or use thereof.

a) This includes the basic structure and the dependencies which are either (i) those so continued with it
as to be considered integral parts thereof such as the roof, stairways, balcony or (ii) any structure
attached to the main structure with a connecting door. Example: store, garage, restaurant, internet –
café

b) A person may have several dwellings such as (i) residential dwellings (ii) business dwellings (iii) social
dwellings (iv) dwellings for educational purposes (v) recreational dwellings. For example: the dwelling
of a mistress; hotel rooms or suites reserved for business or social functions; dormitories and boarding
houses of students; a vacation cottage
 c). The victim may be the owner, the lessee, a boarder, a stay-in employee, or a temporary visitor

d). This is present in the following:

i). when the accused actually entered the dwelling and committed a crime therein, whether the
commission was previously intended or not

ii). When the accused was outside, the act was committed outside but the effect or crime was
produced inside the dwelling

iii). When the crime was started outside but it continued and was consumated inside the dwelling

iv). When the crime started in the dwelling even if continued and consumated outside the dwelling.

v). When the victim was taken from inside the dwelling and then brought outside where the crime
was committed on his person

e) This is not present when :

i). The victim gave sufficient provocation

ii).The accused is also an occupant of the same dwelling

iii). Dwelling is inherent in the crime as in robbery with force upon things, trespass to dwelling,
violation of domicile

4. With Abuse of Confidence or Obvious Ungratefulness

1. Abuse of confidence requires the existence of a relationship between the accused and victim by reason
of which the victim reposed trust and had confidence on the accused, but which the accused abused or
took advantage of in order to commit the crime.

2. The relationship which involved trust may be:

a). Created by contract such as employment: as in the case of a body guard, baby sitter, secretary,
house help and domestic helps, a lawyer

b). Created by law as an appointed Guardian, an adoptive parent

c). By Blood, such as between close relatives

d) By Affinity as between in-laws

e) By close association and membership in some common organization or group as fraternal group,
teacher-pupil, church leaders-members,

f) By Human relationships such as between lovers, friends, roommates

3. Obvious ungratefulness or ingratitude presupposes that the accused was the recipient of some gratuitous
act or benevolence or liberality from the victim for which he ought to have been grateful, but instead he
committed a crime against the said victim.

Examples: the accused pick pocketed the doctor who save his life; a guest attacked his host; the
accused stole from one who loaned money to pay off a debt; boxing the finder of one’s lost property or who
protected a missing relative.

5. Commission of a Crime in Certain Places

1. The specified places are : (a) palace of the chief executive even if absent, i.e malacanang and the
mansion, These represent the seat of sovereign authority and must therefore be respected (b) any other
place where the president is present, provided that the crime was committed within his view or hearing or
so near as to disrupt or disturb the president; like when the president is making the rounds in the market
to check on prices ,or where he goes to cut ribbons, or even play golf (c) where public authorities are in
the actual performance of their functions, as in their offices, (d) in a place dedicated to religious worship,
even if no religious ceremony is going on.

2. Any of these places must have been purposely sought for or they were deliberately chosen. Example:
a thief who plies his trade inside church while victims are busy with their prayers

6. (a) Nocturnity (b( Uninhabited place and (c) band

1. Nocturnity or nighttime: refers to the period of darkness between sunset and sunrise or from dawn to
dusk

a). The crime must be wholly committed at night and not when it started at daytime and ended at night
time or that it began at night time and was consummated at daytime. In short it began and ended at
night.

b). The emphasis is the absence of day light hence night time is not appreciated if the place is well
lighted or illuminated, or it takes place inside a public establishment, even if dimly lighted as in nite
clubs

c). That the crime was at night time should not be an accidental fact.

d). The two test to determine its presence :

(i) The Subjective Test: that the accused purposely sought the night. He could have committed
the crime during day time but he waited for night time
 (ii) The Objective Test: the accused took advantage of it in order to (a) facilitate the commission
of the crime (b) hide his identity (c) prevent aid from coming to the victim (d) minimize the defenses
of the victim or (e) facilitate his escape

e). Maybe absorbed in treachery if it forms part of the attack.

2. Uninhabited Place or Solitude (despoblador): may mean either:

(a) Uninhabited in that there are no persons habitually staying thereat such as the sea, a forest or the
stretch of the beach

(b) the place is isolated in that it is far from where people reside, or if there are houses, they are few and
distant to one another. Thus help to the victims difficult to come by. Examples: athletic bowl; the road
from the gate of Club John Hay to EPZA; Kennon Road; long stretches of highway; the farms in the
provinces

© As in night time the place must have been purposely sought for

3. Band (cuadrilla) it exist when more than three armed malefactors (bad elements) shall have acted
together in the commission of the crime

(a) Armed means all of the accused, not just some, are provided with weapons or means of violence
or instruments or tools capable of causing injury to a person. E.g. bladed weapons, stones, sticks

(b) This is considered in crimes against persons, chastity and even property. But this is inherent in
Robbery By a Band and in Brigandage

© It is distinguished from Organized Syndicated Crime Group which was a creation of R.A. 7659 and
placed under Article 62. The latter refers to a group of two or more persons collaborating, confederating
or mutually helping one another for purposes of gain in the commission of the crime

7. On the Occasion of a Calamity or Misfortune

1. The calamity or misfortune must be serious such as conflagration, shipwreck, earthquake, epidemic,
tsunami, volcanic eruption, resulting to widespread panic, chaos, confusion and a break down of discipline
due to actual or impending danger to lives or to property.

2. May be due to an action of nature or to the action of man. Example: looting stores abandoned due to
flood

8. With the Aid of Armed Men or

 Persons Who Insure or Afford Impunity

1. There is no conspiracy between the accused and the armed men. He merely calls upon them to
intimidate, threaten cow or break the resistance of the victim. The armed men participate in some minor
capacity.

(REPETITION OF CRIMES)

The four forms of repetition of crimes, or those which involve at least two convictions, are:

1. Recidivism: this is ordinary or generic aggravating and is treated under Paragraph 9 of Article 14

2. Habituality: this is also ordinary or generic and is treated under paragraph 10 of article 14

3. Habitual Delinquency: this is an extraordinary aggravating circumstance and is covered under Article
62. An additional penalty is added o the penalty for the crime committed

4. Quasi Recidivism: a special aggravating in that it cannot be offset by mitigating circumstances and is
covered under Article 160

9. Recidivism

1. A recidivist is one who, at the time of his trial for one offense, shall have been previously convicted by
final judgment of another crime embraced under the same title of the Revised peal Code.

2. It is important that: (a) there be two separate convictions so that it can not be considered in
contemporaneous convictions (b) both be felonies and are found in the same title i.e. Crimes against
persons, against property, against chastity and (c) the convictions must follow the chronology of the
commission of the crimes

3. It does not prescribe no matter how far ago was the first conviction

4. The accused need not serve the penalty of his first conviction as he may have been pardoned or placed
under probation because what matters is the fact of conviction and not service of sentence. The first penalty
may be a fine

5. Once alleged and proven the court must appreciate it

6. The purpose is to prevent specialization of crimes

 10. Habituality or reiteracion

1. Concept: the accused has previously been punished for an offense to which the law attaches an equal
or greater penalty, or for two or more offenses to which the law attaches a lighter penalty.

2. The accused must have served sentence on his previous penalties

3. The prior offenses may be violations of special laws

4. Its appreciation is discretionary with the court

(NOTE: THE CIRCUMSTANCES COVERED UNDER PARAGRAPHS 11 TO 18 ARE LIKEWISE

THE QUALIFYING CIRCUMSTANCES OF MURDER UNDER ARTICLE 148)

11. In consideration of a Price, Promise or Reward

1. This deals with the motive. It involves the giver of the price, promise or reward known as the Principal by
Inducement and the actor as Principal by Direct Participation.

2. “In consideration” means the PPR was the sole reason for the commission of the crime. Had it not been
for the PPR the accused would not have committed the crime. The actor should not have his own reasons
for committing the crime. Thus motive is essential.

3. The PPR may be in any form: money, chattels, material services. The recipient may be the actor himself
or a person closely associated with him such as: promise of a promotion or employment of a family member

12. By Means of Innundation, Fire, Poison, Explosion etc

1. These artifices used involve great waste, destruction and ruin

2. These may be (a) inherent in the crime as in Crimes Involving Destruction under Article 332 or (b) they
constitute the crimes in themselves, as in Arson

3. In cases where both burning and death occurs, in order to determine what crime/crimes was/were
perpetrated- whether arson, murder, or arson and homicide/murder, it is de rigueur to ascertain the main
objective of the malefactor, thus:

a). If the main objective is the burning of the building or edifice, ( or enclosure for that matter) but death
results by reason or on the occasion of arson, the crime is simply arson, and the resulting homicide is
absorbed
 b). if the main objective is to kill a particular person who may be in a building or edifice ( or enclosure)
when fire is resorted to as a means to accomplish such goal, the use of fire becomes a qualifying
aggravating circumstance and the crime is murder only even if a property is burned

c). if the objective is to kill particular person, and in fact the offender has already done so, but fire is
resorted as a means to cover up the killing, then there are two separate and distinct crimes committed-
homicide/murder and arson ( PP. vs. Malngan 503 SCRA 294, Sept. 26, 2006)

d) If a person is killed, then the corpse is burned, the burning constitutes the qualifying circumstance of
scoffing or ignominy and the crime would be murder

d) If the body of the dead is placed in an enclosure as a car or a house,

4. Examples: opening the irrigation canal to flood the crops or to drown animals; placing a bomb under a
bus; parricide/infanticide by poison

13. With Evident Premeditation

1. Concept (pre is prior, meditate is to think or to reflect) this means the commission of the crime was the
result of cool thought and reflection. The accused carefully planned and deliberated on the crime. The
commission is not the result of a reflex action or an-on-the-spur of the moment decision.

2. It must however be shown that the crime was intentionally planned hence there must be clear, positive
and convincing evidence on the following elements:

a) the time when the accused decided to commit the crime

b). an act manifestly indicting the accused clung to his determination

c) the lapse of a sufficient time between the decision and the actual commission of the crime, such that
the accused could have desisted from continuing with his plan but he did not

3. This is however inherent in crimes against property, such as in theft, robbery and estafa. But in Robbery
with Homicide, the premeditation must be to cause death in the course of the robbery

4. In cases of aberration ictus, it does not apply unless the accused determined to kill not only the intended
victim but others who might help or interpose a resistance

5. Examples: Assassinations, ambuscades, assaults due to a desire for vengeance

14. Craft, Fraud or Disguises

1. These are referred to as the intellectual means of committing a crime

because they involve cunning, deception and the use of the intellect

2. Both craft (trickery) and fraud (deception) are intended to catch the victim unaware and to throw him off
guard

3. Examples of craft: luring the victim to the killing place; pretending to be relatives or employees of the
Post Office to gain entry; pretending to be collecting agents; pretending to be legitimate passengers of
taxicabs and thereafter the driver is robbed and killed; pretending a person needs help and thereby vehicles
are stopped in the highway only to be robbed; the modus operandi of carnappers of telling the driver to stop
due to a defect and then taking over the car when the driver stops

4. Examples of fraud: inducing a victim to sleep in one’s house; sending a letter purportedly written by a
friend of the victim to lure the victim to come to the place where he is robbed. Telling a maid to give money
and valuables as his employer met an accident and needs money for hospitalization; courting a lady and
pretending to be an ardent suitor

5. Fraud is inherent in estafa by means of deceit

6. Disguise includes all attempt to hide one’s identity in the commission of a crime. It is not limited to wearing
mask, moustaches, false glasses but also hiding one’s identity in crimes of libel as hiding under the name”
concerned citizen” ;or muffling one’s voice.

7. Disguise is not aggravating if the accused was nevertheless identified.

15. Taking Advantage of Superior Strength

1.Concept: the use of excessive force out of proportion to the means of defense available to the victim. It
connotes inequality of forces based on factors such as: (a) superiority in numbers (b) weapons used (c)
physique, body built, age, sex (d) others such as the weakened condition of the victim on account of illness,
physical defect ort diminished reasoning (e) skill of the accused in unarmed combat or martial arts

16. Means Used to Weaken Defense

1. Example: Throwing sand in the face of the victim; covering him with sack; pulling down his pants; putting
a sleeping pill to get him drowsy

17. Treachery

1. Concept: When the offender commits any of the crimes against persons employing means, methods, or
forms in the execution thereof which tend directly and specially to ensure the execution thereof without risk
to himself arising from the defenses which the victim might make.

The attack comes without warning and in a swift, deliberate and unexpected manner, affording the hapless,
unarmed, and unsuspecting victim no chance to resist or escape.

2. The elements to be proved are

a) that the means, methods or forms of execution are such that the victim was rendered defenseless or
was in no position to make a defense and
 b). that the method of attack was consciously or deliberately adopted and not an on- the spur-of-the-
moment decision

3. This is the qualifying circumstance of murder which is preferred over the others and it usually absorbs
the other circumstances which have relation to the means or method of attack such as nighttime,
uninhabited place, use of poison or explosion, fire or evident premeditation. If they are not absorbed they
are appreciated as ordinary aggravating

4. Applies even if the crime against persons is complexed with other crimes, such as direct assault

5. Killing a child is always treacherous

6. Rule as to Frontal Attacks: generally there is no treachery as the victim cannot be said to be unaware as
he is face-to-face with his attacker. But not (a) if the attack was so sudden, deliberate and unexpected and
consciously adopted or (b) if the victim was forced into a position where he is defenseless, as in the
Teehankee case

7. In case the attack was preceded by a quarrel: there is no treachery

8. In case of Attack from Behind: Generally considered as treacherous if this mode was consciously
adopted.

9. Rule in case of a continuous attack or if there was a break in the attack. Applies to situations where, at
the time of the infliction of the wound, the victim was defenseless

a). There is no treachery if there was no treachery at the inception of the attack

b) Even if there be no treachery at the inception of the attack but there was a break in the attack, then
treachery is to be appreciated

10. Other situations where victim is said to be defenseless:

a) where he was preoccupied: as when he was busy studying or eating or watching an ongoing activity
or was answering the call of nature, or was working

b) victim was asleep or resting

c) body was found with hands tied

11. In case of several accused, treachery affects only those who had prior knowledge of or were aware of
it
 18. Ignominy

1. Concept: adding mental torture or insult to the injury. The time, place, and other circumstances in the
commission of the crime are such that they caused unnecessary humiliation or embarrassment either to
the victim or to the surviving relatives

2. This is appreciated in crimes against persons, chastity, honor, coercion, unjust vexation

3. Examples: kissing a girl in public; hanging the victim in a tree; throwing the body in a urinal or garbage
pit; removing the pants; boxing the priest who is saying mass; committing rape dog style

4. This is the only aggravating which may arise after the commission of the crime; as chopping off the arms
and legs or sex organ of the victim after killing him.

19. Unlawful Entry

1. The entrance is effected by a way not intended for entrance into a dwelling or in an uninhabited place.
The passage is other than the door.

2. The entry must be to commit a crime and not just to violate the dwelling else the unlawful entry becomes
trespass

3. This is inherent in crimes of trespass to dwelling, robbery with force upon things

20. Breaking of a Wall, Roof, Floor, Window

1. These pertains to the wall, roof, floor of a dwelling and the breaking is for the purpose of gaining entry in
order to commit a crime inside. Else it is attempted trespass or malicious mischief

2. It is inherent in Robbery With Force Upon Things

21. (a) With the Aid of a Minor and (b) Use of a Motor Vehicle

1. The minor is one below 15.

a). Suppose the accused is a minor over 15 but below 18?

b). The purpose is to prevent the corruption of minors

3. Motor vehicle refers to modes of transporting people and goods ran by motor energy not muscle effort.
A bicycle to which is attached a motor is a motor vehicle

a) Must be used to commit, or to facilitate the commission of the crime

 b) If used to kill a person as by hitting running over him, this may qualify the killing to murder

c). Examples: (i) transporting the victim on board a car as in abduction or kidnapping (ii) widespread
robbery using a vehicle to go around the neighborhood

22. By Inflicting Another Wrong Not Necessary

to the Commission

1. May refer either to:

a). Cruelty: making the victim suffer slowly and deliberately. It is synonymous to torture or slow death or
acts of sadism. It is usually done by inflicting wounds on the victim while the victim is still alive and at
intervals of time to cause maximum pain. Or that the method of killing involves lingering pain or suffering.
Example: death by skinning him alive, or by slow fire. ( Memory Aid: Pinikpikan)

b). Other crimes such as rape, unnecessary deaths or physical injuries are appreciated as aggravating
the crimes of robbery with homicide

ARTICLE 15. ALTERNATIVE CIRCUMSTANCES

1. Concept: Those which may be considered either as mitigating or aggravating according to the nature
and effects of the crime and other conditions attendant to the crime. They must affect the commission of
the crime. They are: (i) relationship (2) intoxication and (3) degree of instruction.

2. Relationship: This is taken into account when the offended party is the spouse, ascendant, descendant,
legitimate or natural , or adopted brother or sister, or relative by affinity in the same degree of the offender.

A. Effect of Relationship In general:

i). As basis for a justifying circumstance

ii).As an absolutory cause under Articles 20, 247 and 332

iii). As an alternative circumstance under Article 15

B. Under Article 15, relatives by consanguinity within the 4 th civil degree are not included. However step
parents and step children are included.
 C. When relationship is appreciated as Aggravating:

i). Where the offense is a grave felony

ii). In crimes against chastity

iii) If the offense is a less grave or light felony, it is aggravating if the victim is a relative of an equal
or higher degree

D. When it is mitigating

i) In less grave or light offenses where the victim is a relative of a lower degree

ii) In crimes against property as in case by a mother- in- law who stole from his son-in -law

3. Intoxication: Presupposes that when the accused committed the crime, he had taken in alcohol in such
quantity as to have affected his mental faculties, blurred his reasoning and diminished his self control.

A. There is no fixed rule as to the minimum quantity of alcohol in- take required before it is said that a
person’s mental faculties had been affected. This is dependent on several factors such as the type or
kind of liquor taken in i.e. hard vs. soft liquor or wine, brandy vs. gin vs. scotch vs. beer; manner of in-
take e.g. straight or on the rocks or food is taken; as well as the personal factors such as sex, age, state
of health and other factors affecting the alcohol tolerance of a person.

B. Test: (i) external conduct of a person (ii) breathalyzer to determine if a person was driving under the
influence of liquor (iii) Rhomberg test and tandem gait, etc

C. It is Mitigating if intoxication is not habitual or intentional such that the crime is said to be the result
of an impulse or urge or delusion due to the effects of alcohol

D. It is aggravating when the intoxication is intentional i.e. to strengthen the resolve or to use as shield
or excuse or habitual i.e the accused is used to taking in alcohol as to be alcoholic. However the drinking
of wine as an appetizer is not included.

E. When it is proven that the accused was intoxicated when he committed the crime, the presumption
is in favor of mitigation and it is for the prosecution to prove it was intentional or habitual.

4. Degree of Instruction and Education.

A. What is involved is whether or not the accused finished formal education or schooling. However what
is considered is not so much the illiteracy but the level of intelligence. The emphasis is the lack of
sufficient intelligence and knowledge of the full significance of one’s actions

i) Some are naturally intelligent and mentally alert though illiterate while some literates are densely
ignorant

ii). Note that the rule does not apply to persons 15 years of age or below even if naturally intelligent
or gifted in secondary school because they are presumed ot be incapable of forming criminal intent
B. Generally it is mitigating, especially to crimes mala prohibita, but not to crimes universally condemned
as evil or those which are mala in se

C. Aggravating: when the accused has a high degree of education which he used or availed of to commit
or facilitate the commission of the crime

i) A law student who used his knowledge to defraud another

ii) Physician who kills his patients

iii) A handwriting expert who falsifies using his knowledge

iv). A Financial Analyst defrauding a business entity

v) Computer expert who hacks