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REVIEW NOTES* IN CRIMINAL LAW 1

ATENEO BAR REVIEW CENTER (2017)

I. FUNDAMENTAL PRINCIPLES:

Criminal Law – A branch of municipal law which 1) defines crimes, 2) treats of

their nature and 3) provides for their punishment.

Crime defined – it is an act committed or omitted in violation of a public law

forbidding or commanding it.

How is Criminal Law distinguished from Criminal Procedure?

Criminal Law is substantive and defines crimes, treats of their nature and
provides for their punishment.

Criminal Procedure is remedial. It regulates the judicial steps for the arrest,
prosecution, trial and conviction of violators of criminal law.

PRINCIPLE: NULLUM CRIMEN, NULLA POENA SINE LEGE

There is no crime when there is no law punishing the same. This is true to
civil law countries, but not to common law countries.

Because of this maxim, there is no common law crime in the Philippines.

No matter how wrongful, evil or bad the act is, if there is no law defining the act,
the same is not considered a crime.

CONCEPTS OF MALA IN SE AND MALA PROHIBITA

Violations of the Revised Penal Code are referred to as malum in se, which
literally means, that the act is inherently evil or bad or per se wrongful. On the
other hand, violations of special laws are generally referred to as malum
prohibitum.

Mala in se vs. Mala prohibita

Mala in se Mala Prohibita

1.Those so serious in their effects on 1. Those violations of mere rules of

society as to call for almost a convenience designed to secure a
unanimous condemnation of its more orderly regulation of the affairs
members. of society.

2. Criminal intent is necessary. 2. Criminal intent is not necessary

Good faith is a valid defense. Good faith is not a valid defense. It
is enough that the prohibition is
voluntarily violated.

3. Refers generally to felonies defined 3. Refers generally to acts made

and penalized by the RPC. criminal by special laws.
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4. Criminal liability is incurred even 4. Criminal liability is generally

when the crime is attempted or incurred only when the crime is
frustrated. consummated.

5. Mitigating & Aggravating circums- 5. Such circumstances are not

tances are appreciated in imposing the appreciated unless the special
penalties. law has adopted the scheme or
scale of penalties under the RPC.

Note: Not all violations of special laws are mala prohibita. While intentional
felonies are always mala in se, it does not follow that prohibited acts done in
violation of special laws are always mala prohibita. Even if the crime is punished
under a special law, if the act punished is one which is inherently wrong, the
same is malum in se, and, therefore, good faith and the lack of criminal intent is
a valid defense; unless it is the product of criminal negligence or culpa.

Examples of violation of special laws which are considered mala in se.

1. Violations of PD 532 (a) piracy in Philippine waters (b) Brigandage in the

highways.

2. Plunder – inasmuch as the predicate crimes are mala in se.

Note: Even if the special law uses the nomenclature of penalties under the
RPC, that alone will not make the act or omission a crime mala in se. The special
law may only intend the Code to apply in a supplementary character. (People
vs Simon, July 29, 2014)

Distinction between crimes punished under the Revised Penal Code and crimes
punished under special laws

1. As to moral trait of the offender

In crimes punished under the Revised Penal Code, the moral trait of
the offender is considered. This is why liability would only arise when
there is dolo or culpa in the commission of the punishable act.

In crimes punished under special laws, the moral trait of the

offender is not considered; it is enough that the prohibited act was
voluntarily done.

2. As to use of good faith as defense

In crimes punished under the Revised Penal Code, good faith or

lack of criminal intent is a valid defense; unless the crime is the result
of culpa.

In crimes punished under special laws, good faith is not a defense

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3. As to degree of accomplishment of the crime

In crimes punished under the Revised Penal Code, the degree of

accomplishment of the crime is taken into account in punishing the
offender; thus, there are attempted, frustrated, and consummated
stages in the commission of the crime.

In crimes punished under special laws, the act gives rise to a crime
only when it is consummated; there are no attempted or frustrated
stages, unless the special law expressly penalize the mere attempt
or frustration of the crime.

4. As to mitigating and aggravating circumstances

In crimes punished under the Revised Penal Code, mitigating and

aggravating circumstances are taken into account in imposing the
penalty since the moral trait of the offender is considered.

In crimes punished under special laws, mitigating and aggravating

circumstances are not taken into account in imposing the penalty.

5. As to degree of participation

In crimes punished under the Revised Penal Code, when there is

more than one offender, the degree of participation of each in the
commission of the crime is taken into account in imposing the
penalty; thus, the offenders are classified as principals,
accomplices and accessories.

In crimes punished under special laws, the degree of participation

of the offenders is not considered. All who perpetrated the
prohibited act are penalized to the same extent. There is no
principal or accomplice or accessory to consider unless specifically
provided in the law.

II. CONSTRUCTION OF PENAL LAWS

Q: What is the general rule with respect to the construction of penal

laws?

A: Criminal laws are to be strictly construed against the Government

and liberally construed in favor of the accused. (People vs. Yu Hai, 99
Phil. 725)

Penal statutes, substantive and remedial or procedural, are, by the

consecrated rule, construed liberally in favor of the accused. (People vs.
Elkanish, 90 Phil. 53)

Q: Why are Criminal Laws strictly construed against the Government

and liberally construed in favor of an accused?
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A: Because a man's right to liberty is primordial and a penal law

operates to the contrary by restraining such human liberty.

Q: Is the rule of strict construction of penal laws against the

Government applied all the time? When can the rule of strict
construction be invoked?
A: Strict construction is invoked only when the criminal law in question is
ambiguous. It cannot apply if the law is clear.

The rule that penal statutes should be strictly construed against the State may
be invoked only where the law is ambiguous and there is doubt as to their
interpretation. Where the law is clear and unambiguous, there is no room for the
application of the rule.( People vs. Gatchalian, 104 Phil. 664)

III. GENERAL CHARACTERISCTICS OF CRIMINAL LAW - GTP

1. GENERAL – the law is binding to all persons who live or sojourn in the
Philippines regardless of their race, belief, sex, or creed. It applies to every
person within the territory of the Philippines.
EXCEPTIONS to the rule of “Generality” in the Philippines

EXCEPTIONS:

a) Treaty Stipulations or International Agreements e.g. RP-US VFA;

b) Laws of Preferential Application e.g. RA 75-diplomatic

representative-it penalizes acts which would impair the proper
observance by the RP and its inhabitants of the immunities, rights, &
privileges of duly accredited foreign diplomatic representatives in
the Philippines;

c) The Principles of Public International Law e.g. Sovereigns and

other Chief of States, Ambassadors, ministers, charges d’ affairs etc.;

d) Members of Congress are not liable for libel or slander in

connection with any speech delivered on the floor of the house
during a regular or special session (Art. IV, Sec. 11, 1987 Constitution)

Note: The doctrine of state immunity from suit will not apply and may not be
invoked where the public is being sued in his private and personal capacity as
an ordinary citizen (Shauf vs CA, 191 SCRA 713)

Note: Only the heads of the diplomatic mission, as well as members of the
diplomatic staff, excluding the members of the administrative, technical and
service staff, are accorded diplomatic rank. Consuls, vice-consuls and other
commercial representatives of foreign nation are not diplomatic officers.
Consuls are subject to the penal laws of the country where they are assigned.
(Minucher vs CA, February 11, 2003)

The key word in “generality” is “person”. It refers to the word “who”. Exemptions
are based and dependent on “who committed the crime?”
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Q: What is the counterpart Civil Code provision pertaining to

“generality”?
A: Article 14 of the NCC provides: “Penal laws and those of public
security & safety shall be obligatory upon all who live or sojourn in
Philippine territory, subject to the principles of PIL and treaty
stipulations”.

Problem:

Q: Ando, an Indonesian national who just visited the Philippines,

purchased a ticket for a passenger vessel bound for Hong Kong.
While on board the vessel, he saw his mortal enemy Jason, also an
Indonesian national, seated at the back portion of the cabin and
who was busy reading a newspaper. Ando stealthily approached
Jason and when he was near him, Ando stabbed and killed Iason.
The vessel is registered in Malaysia. The killing happened just a few
moments after the vessel left the port of Manila. Operatives from the
PNP Maritime Command arrested Ando. Presented for the killing of
Jason, Ando contended that he did not incur criminal liability
because both he and the victim were Indonesians. He likewise
argued that he could not be prosecuted in Manila because the
vessel is a Malaysian-registered ship. Discuss the merits of
Ando's contentions.

A: Both contentions of Ando lack merit. The argument of Ando that

he did not incur criminal liability because both he and the victim
were Indonesians is not tenable. Under the generality principle, penal
laws shall be obligatory upon all who live or sojourn in the Philippine
territory (Article 14 of the Civil Code). The foreign characteristic of an
offender and offended party does not exclude him from operation of
penal laws (People v. Galacgac, C.A., 54 O.G. 1027). Under the
Revised Penal Code, except as provided in treaties and laws of
preferential application, penal laws of the Philippines shall have force
and effect within its territory. Here, since the killing took place within
the Philippine territory, our penal laws applies and Ando may be held
criminally responsible despite his being and Indonesian citizen.
Likewise, the contention of Ando that he could not be prosecuted in
Manila because the vessel is a Malaysian registered ship is without
merit. Under the English Rule, which our jurisdiction recognizes and
follows, crimes committed aboard a vessel within the territorial waters
of a country are triable in the courts of such country except when
crimes merely affect things within the vessel or when they only refer to
the internal management thereof. Here, since the crime was
committed within the Philippine waters and neither exception
applies, Ando may be prosecuted in Manila.

2. TERRITORIAL – the law is binding to all crimes committed within the

National Territory of the Philippines. Meaning, penal laws only have effect
“within” or “inside” the Philippine territorial jurisdiction. It cannot penalize crimes
committed outside the same. The extent of the enforcement or effect of a
penal law is only within the Philippine territory. Beyond such, the law has no
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effect to the person or his act. Otherwise, it would result to territorial

encroachment.

Note: This is subject to certain exceptions brought about by international

agreements and practice.

Q: What comprises the Philippine Archipelago? Or What is the

Archipelagic Rule?

A: The national territory comprises the Philippine Archipelago, with

all the islands and waters embraced therein, and all other territories
over which the Philippines has sovereignty or jurisdiction, consisting
of its terrestrial, fluvial, and aerial domains, including its territorial
sea, the seabed, the subsoil, the insular shelves, and other
submarine areas. The waters Around, Between, and Connecting
the islands of the archipelago regardless of their Breadth and
Dimensions, form part of the internal waters of the Philippines. (ABC-
BD — ARCHIPELAGIC DOCTRINE; Article 1, 1987 Constitution)

Note: The key word in “territoriality” is “location”. It refers to the word “where”.
Exemptions are based & dependent on “where was the crime committed?”

Q: What is the principle of territoriality?

A: General Rule --- penal laws can only be enforced within the Phil
territory. They cannot be enforced outside.

Territorial application of the RPC:

(1) Intra-territorial – refers to the application of the RPC within the

Philippine territory (Art. I, 1987 Constitution)

(2) Extra-territorial – refers to the application of the RPC outside of the

Philippine territory

Q: What are the instances where the provisions of the RPC

shall have EXTRA-TERRITORIAL APPLICATION (Art. 2, RPC):
A:
1. Should commit an offense while on a Philippine ship or airship;

2. Should forge or counterfeit any coin or currency note of the

Philippine Islands or obligations and securities issued by the
Government of the Philippine Islands;

3. Should be liable for acts connected with the introduction into these
islands of the obligations and securities mentioned in the preceding
number;

4. While being public officers or employees, should commit an offense

in the exercise of their functions; or (Some of these crimes are bribery,
fraud against national treasury, malversation of public funds or
property, and illegal use of public funds)
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5. Should commit any crimes against the national security and the law
of nations, defined in Title One of Book Two of this Code. (These crimes
include treason, espionage, piracy, mutiny, inciting to war or giving
motives for reprisals, correspondence with hostile country, flight to
enemy’s country and violation of neutrality)

In addition to the above-enumerated exceptions, the following shall

have extra-territorial application by express provision of the law:

6. Should commit an offense within any embassy, consulate,

diplomatic premises belonging to or occupied by the Philippine
government in an official capacity (Section 58 of Republic Act No.
9372-Human Security Act of 2007 more popularly known as the ANTI-
TERRORISM LAW)

7. Should commit any crime even if committed outside the Philippines

and whether or not such act or acts constitute an offense at the place
of commission, the crime being a continuing offense, having been
commenced in the Philippines and other elements having been
committed in another country, if the suspect or accused (a) is a Filipino
citizen; or (b) is a permanent resident of the Philippines; or (c) Has
committed the act against a citizen of the Philippines (Section 26-A of
RA 10364 amending RA 9208-Anti-Human Trafficking Law).

Rules on jurisdiction in case of a merchant vessel:

(1) The French Rule recognizes the jurisdiction of the flag of the country for
crimes committed on board the vessel except if the crime disturbs the
peace and order and security of the host country.

(2) The English Rule recognizes that the host country has jurisdiction over
crimes committed on board the vessel unless they involve the internal
management of the vessel.

3. PROSPECTIVE (Prospectivity) – penal laws do not have any retroactive

effect.

Q: When we say penal laws cannot have any retroactive effect, what does this
mean?
A: What is meant is whether or not a law can apply: (1) which makes an action
done before the passing of the law and which was innocent when done,
criminal, and punishes such action; (2) which aggravates a crime or makes it
greater than when it was committed; (3) which changes the punishment and
inflicts a greater punishment than the law annexed to the crime when it was
committed.

Q: What Articles in the RPC that deal on the characteristics of “prospectivity”?

A: Arts. 21 & 22
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Art. 21 states: “ No felony shall be punishable by

any penalty not prescribed by law prior to its
commission”.

Art. 22 states: “Penal laws shall have a

retroactive effect insofar as they favor the persons
guilty of a felony, etc.”

Exception to Prospective Application: when the new law is favorable to the

accused.

Whenever a new statute dealing with crime establishes conditions more lenient
or favorable to the accused, it can be given a retroactive effect.

Case: Jerwin Dorado vs People, G.R. No. 216671, October 3, 2016

Dorado was only 16 years old at the time of the commission of the crime in 2002.
RA 9344 came into law in 2006. Since it is favorable to the accused, it should be given a
retroactive application. xxxxxx favorabilia sunt amplianda adiosa restrigenda - penal
laws which are favorable to the accused are given retroactive effect.

But this exception has no application:

1. Where the new law is expressly made inapplicable to

pending actions or existing causes of action. (Tavera v.
Valdez, 1 Phil. 463, 470-471)
2. Where the offender is a habitual criminal under Rule 5,
Article 62, Revised Penal Code. (Art. 22, RPC)

IV. REPEAL/AMENDMENT OF PENAL LAWS

EFFECTS OF REPEAL/AMENDMENTS OF PENAL LAWS

(1) When the repeal makes the penalty lighter in the new law, the new law
shall be applied, except when:

a) The new law is expressly made inapplicable to pending actions or

existing causes of actions, or

b) Where the offender is a habitual criminal.

(2) When repeal imposes a heavier penalty, the law in force at the time of
the commission shall be applied.

(3) When repeal totally repeals the existing law so that the act is no longer
punishable, the crime is therefore obliterated. All existing actions are to
be dismissed. (Example: The repeal of par. 2 of Art. 202 – vagrancy is no
longer a crime – RA 10158-An Act Decriminalizing Vagrancy.)
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(4) An absolute repeal of a penal law has the effect of depriving the court of
its authority to punish a person charged with violation of the old law prior
to its repeal except: (a) there is a saving clause in the repealing law that
provides that the repeal shall have no effect on pending actions (2)
where the repealing law reenacts the former law and punishes the cat
previously penalized under the old law.

(5) If there is an implied repeal, the pending criminal action at the time of the
effectivity of the second law impliedly repealing the first law is not
dismissed because the act punished in the first law is still punishable in the
second law. Hence, implied repeals are also called “repeals by re-
enactment”, that is both laws refer to the same subject and to the same
object. Implied repeals are not favored. It requires a competent court to
declare an implied repeal.

(6) When the law which expressly repeals a prior law is itself repealed, the law
first repealed shall not be thereby revived unless expressly so provided. But
when a law which repeals by implication a prior law is itself repealed, the
repeal of the repealing law revives the prior law unless the repealing law
provides otherwise.

V. LIMITATIONS ON THE POWER OF CONGRESS TO ENACT PENAL LAWS

Q: What are the limitations on the power of Congress to enact penal laws?
A: (1) Must be general in application; (2) Must not partake of the nature of an ex
post facto law; (3) Must not partake of the nature of a bill of attainder; ( 4) Must
not impose cruel and unusual punishment or excessive fines; (5) No person shall
be held to answer for a criminal offense without due process of law.

Q: What is an ex post facto law?

A: An ex post facto law has been defined as one: (1) which makes an action
done before the passing of the law and which was innocent when done,
criminal, and punishes such action; (2) which aggravates a crime or makes it
greater than when it was committed; (3) which changes the punishment and
inflicts a greater punishment than the law annexed to the crime when it was
committed. (Article III, Sec. 1, par. 12 of the Constitution)

Q: What is a Bill of Attainder?

A: It is a legislative act which inflicts punishment without trial. Its essence is the
substitution of a legislative act for a judicial determination of guilt.

Q: What is the due process clause as applied to penal laws?

A: It is the right of any person to be given notice and be heard before he is
condemned for an act or omission defined and penalized by law.

Problem:

A criminal and an administrative case was filed against X. In the

course of the proceeding, the trial court denied X an opportunity to
present as evidence the decision in the administrative case, which was
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earlier dismissed. X contends that there was violation of due process. Is

X contention correct?

Ans: No. There is no denial of due process when the trial court did not
allow X to introduce as evidence the decision. It is well within the
court’s discretion to reject the presentation of evidence which it
judiciously believes irrelevant and impertinent to the proceeding on
hand. This is especially true when the evidence sought to be presented
in a criminal proceeding concerns an administrative matter. The
findings in administrative cases are not binding upon the court trying a
criminal case, even if the criminal proceedings are based on the same
facts and incidents which gave rise to the administrative matter. The
dismissal of a criminal case does not foreclose administrative action or
necessarily gives the accused a clean bill of health in all respects. In
the same way, the dismissal of an administrative case does not
operate to terminate a criminal proceeding with the same subject
matter (Catacutan vs People, August 31, 2011)

Q: What is the DOCTRINE OF PRO REO?

A: Whenever a penal law is to be construed or applied and the law
admits of two interpretations – one lenient to the offender and one
strict to the offender – that interpretation which is lenient or favorable
to the offender will be adopted.

Note: This is in consonance with the fundamental rule that all doubts shall be
construed in favor of the accused and consistent with presumption of
innocence of the accused. This is peculiar only to criminal law.

Q: What do you mean by “Equipoise rule”?

A: Where the evidence in a criminal case is evenly balanced, the
constitutional presumption of innocence tilts the scale in favor of the
accused.51 Thus, where the inculpatory facts and circumstances are
capable of two or more explanations, one of which is consistent with
the innocence of the accused and the other consistent with his guilt,
then the evidence does not fulfill the test of moral certainty and is not
sufficient to support a conviction. (People vs Ronnie Librias, G.R. No.
208067, September 14, 2016)

Q: What do you mean by the doctrine of ACTUS NON FACIT REUM, NISI
MENS SIT REA?
A: The act cannot be criminal where the mind is not criminal.

Note: This is true to a felony characterized by dolo, but not a felony resulting
from culpa. This maxim is not an absolute one because it is not applied to
culpable felonies, or those that result from negligence.
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VI. FELONIES (Art. 3)

Q: What are felonies?

A: Felonies (delitos) are acts or omissions punishable under the Revised
Penal Code. Crimes involving special laws are properly called offenses
while those acts violating municipal or city ordinances are called
felonies.
Q: How are felonies committed?
A: Felonies (delitos) are committed either by means of deceit (dolo) or
by means of fault (culpa). There is deceit when the act is performed
with deliberate intent. There is fault when the wrongful act results from
imprudence, negligence, lack of foresight or lack of skills.

Elements of Felonies

1. There is an act or omission;

2. IT must be punishable by the RPC;
3. The act is performed or the omission incurred by means of dolo or culpa

Felonies - acts and omissions punishable by the Revised Penal Code

Offense- crimes punished under special law
Crime - acts and omissions punishable by any law

Q: Is there a difference between a crime and a felony?

A: The word crime is generic, because it refers to all acts or omissions
punishable by any law. The acts or omissions punished by the RPC are
called felonies. Those punished by special laws are called crimes or
offenses.

Q: If there are many crimes where there is no deceit, how come the
law says that felonies are committed by means of deceit or fault?
A: Because “deceit” is a wrong translation of the word “dolo”. Deceit
is a form of dolo but not every dolo constitutes deceit. The better
translation for the Spanish word “dolo” is INTENT. So there must be
intent, instead of deceit.

Kinds of Felonies:

(1) INTENTIONAL FELONIES (dolo)

(2) CULPABLE FELONIES (culpa)

Requisites of Dolo:

(1) Criminal Intent – the purpose to use a particular means to effect such
result. Intent to commit an act with malice being purely a mental process
is presumed. Such presumption arises from the proof of commission of an
unlawful act. A mental state, hence, its existence is shown by overt acts.
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But if there is no criminal intent, the act is justified, hence the accused is
not liable.

Intent - refers to the use of a particular means to effect the desired result. It is a
mental state, the existence of which is demonstrated by the overt acts of a
person.

(2) Freedom of Action – voluntariness on the part of the person to commit the
act or omission. But if there is lack of freedom, the offender is exempt from
liability.

(3) Intelligence – the capacity to know and understand the consequence of

one’s act. But if there is lack of intelligence, the offender is exempt from
liability.

Requisites of Culpa:

(1) Criminal Negligence on the part of the offender, the crime was the result
of negligence, reckless imprudence, lack of foresight or lack of skill.

(2) Freedom of Action on the part of the offender. He was not acting under
duress.

(3) Intelligence on the part of the offender in performing the negligent act.

In criminal law, intent is categorized into two:

(1) General criminal intent; and

(2) Specific criminal intent.

GENERAL CRIMINAL INTENT is presumed from the mere doing of a wrong act. This
does not require proof. The burden is upon the wrong doer to prove that he
acted without such criminal intent.

SPECIFIC CRIMINAL INTENT is not presumed because it is an ingredient or

element of a crime, like intent to kill in the crimes of attempted or frustrated
homicide/parricide/murder. The prosecution has the burden of proving the
same.

Q: What is motive? Is it determinant of criminal liability?

A: Motive is the moving power or force which impels a person to a
desired result. Generally, motive is immaterial in the commission of a
felony; it is intent which is material.

Motive alone will not bring about criminal liability because the RPC requires that
there must be an overt act or an omission. When there is motive in the
commission of a crime, it always comes before the intent.

Motive may be illustrated in this manner: in a case of homicide, the intent to kill is
demonstrated by the use of a lethal weapon against the victim by the offender;
whereas, the motive may be vengeance or the desire to vindicate a wrong committed
against the accused.
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Distinguish Motive from Intent

Motive Intent
> in the mind >in the mind
> moving power that impels a person > the purpose to use a particular
to commit a crime means to achieve a particular r
result
>Not an element of a felony > an element of a felony

Q: When is motive material in determining the criminal agency?

A: Motive becomes material when:

a) The act brings about variant crimes (People vs. Puno, February
1993);
b) There is doubt whether the accused committed the crime, or the
identity of the accused is doubtful (People vs. Salamat, August 1993);
c) The evidence on the commission of the crime is purely
circumstantial;

Motive alone will not bring about criminal liability because under the Code,
there must be an overt act or an omission. No matter how evil the internal act is,
as long as there are no overt acts, there is no crime committed. The rule is that
proof of motive is unnecessary to impute a crime to the accused if the
evidence concerning his identification is convincing. A converso, if the
evidence of identification is unclear, then the jurisprudential doctrine is that
proof of motive is a paramount necessity. (People vs. Bautista, May 1998)

Note: "It has been held that where the identity of the assailant is in dispute,
motive becomes relevant, and when it is supported w i t h sufficient evidence, for
a conclusion of guilt, conviction is sustainable." (People vs. Macoy, July 1997)

Q: Is motive an essential ingredient for conviction in a felony?

A: The SC speaking thru CJ Narvasa said: “Motive is immaterial when
the evidence otherwise persuasively demonstrates who is the killer and
the acts by which he has carried out his nefarious intent. For purposes
of conviction, it is completely immaterial for as long as there is
evidence to prove that the crime was committed and it was the
accused who committed it.” (People vs Mosende, 228 SCRA 341)

Q: Can a person be held criminally liable under the RPC even if he has
no criminal intent?
A: Yes, if it is committed by means of fault or culpa.

Fault can either be: 1) imprudence –(deficiency of action or lack of skill) or 2)

negligence – (deficiency of perception or lack of foresight)

Q: Why does the law penalize people who commit culpable felonies,
when actually there was no criminal intent on the part of the offender?
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A: SC said it is very dangerous if a person can get away with a criminal

act simply because he did not have the intent. Society will be at great
risk if people can be careless at anytime. Here, he is penalized for his
lack of foresight/lack of skill.

In the commission of an intentional or culpable felony - it means that the act

must be committed VOLUNTARILY.

Elements of voluntariness in intentional felonies: (a) freedom

(b) Intelligence (c) Intent

Elements of voluntariness in culpable felonies: (a) freedom (b)

Intelligence (c) Fault or Negligence

Q: What do you mean by “voluntary act in a felony”?

A: It is an act which is free, there is intelligence and it intentional

Note: Pars. 5 & 6 of Art. 12. –one who acts under compulsion of an irresistible
force or one who acts under the impulse of an uncontrollable fear of an equal
or greater injury---- here the offender acts with intelligence and intent, but there
is no freedom of action, as he is only forced, or intimidated to commit the crime.
So, he is exempt from criminal liability because it ceases to be voluntary.

“Actus me invite, factus non est

meus actus” – an act done by me
against my will is not my act.

If there is freedom, there is intent but no intelligence – the act ceases to be

voluntary – it has the same effect.

Q: What happen if there is freedom, there is intelligence but no intent.

A: The person is free from any criminal liability. Criminal intent is
presumed, but such presumption is not conclusive – it is rebuttable.

Q: Is there an exception to the general rule that criminal intent can be

presumed?
A: yes.

Example: US vs Ah Chong, 15 Phil 488

Facts: On the night of August 14, 1908, at about 10 p.m., the defendant, was
suddenly awakened by someone trying to force open the door of the room. The
door of the room was not furnished with a permanent lock, and the occupants,
as a measure of security, were in the habit of reinforcing the door by placing
against it a chair. He sat up and called out twice "who is there?" He heard no
answer and was convinced by the noise the door that it was being pushed
open by someone bent upon forcing his way into the room. Due to the heavy
growth of the vines along the front of the porch, the room was very dark, and
the defendant, fearing that the intruder was a robber or a thief, leaped to his
feet and called out "if you enter the room I will kill you." At that moment, he was
struck just above the knee by the edge of the chair which was placed against
the door. In the darkness and confusion, the defendant thought that the blow
had been inflicted by the person who had forced the door open, whom he
supposed to be a burglar. Believing that he was being attacked, he seized a
 15

kitchen knife and fatally wounded the intruder who turned out to be his
roommate, a house boy.

Held: The question then squarely presents itself, whether in this jurisdiction one
can be held criminally liable who, by reason of a mistake as to the facts, does
an act for which he would be exempt from criminal liability if the facts were as
he supposed them to be. To this question we think there can be but one
answer, and we hold that under such circumstances there is no criminal liability,
provided always that the alleged ignorance or mistake of fact was not due to
negligence or bad faith.

A careful examination of the facts as disclosed in the case at bar convinces

us that the defendant Chinaman struck the fatal blow in the firm belief that the
intruder who forced the door open of his room was a thief, from whose assault
he was in imminent peril, both of his life and of his property and of the property
committed to his charge; that in view of all the circumstances, as they must
have presented themselves to the defendant at the time, he acted in good
faith, without malice, or criminal intent, in the belief that he was doing no more
than exercising a legitimate right of self-defense; that had the facts been as he
believed them to be he would have been wholly exempt from criminal liability
on account of his act; and that he cannot be said to have been guilty of
negligence or recklessness or even carelessness in falling into his mistake as to
the facts, or in the means adopted by him to defend himself from the imminent
danger which he believe threatened his person and his property and the
property under his charge. Defendant was acquitted because of mistake of
fact.

MISTAKE OF FACT - is a misapprehension of fact on the part of the person who

caused injury to another. He is not criminally liable.

Requisites:

1. that the act done would have been lawful had the facts been as the
accused believed them to be;
2. intention of the accused is lawful;
3. mistake must be without fault of carelessness.

Note: Mistake of fact would be relevant only when the felony would have been
intentional or through dolo, but not when the felony is a result of culpa. When the felony
is a product of culpa, do not discuss mistake of fact

Let us analyze the requisite according to the Ah Chong Case:

VI. ELEMENTS OF CRIMINAL LIABILITY (ART. 4)

Q: Can a person be held criminally liable even if there is no criminal

intent?
A: Yes in 2 instances: (1) when the felony is classified as culpable felony
(2) crimes malum prohibitum.

Q: What do you understand by the so called “extra-ordinary manner”

of incurring criminal liability?
A: This is covered under Article 4, RPC.
 16

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.

Problem:

A kills B. A aims his gun at B and shoots B. A’s intent is to kill B and B is
killed. Does A incur criminal liability?

Ans: Yes.---but this is not what is contemplated under par. 1 because

the law says “although the wrongful act done be different from that
which he intended”. Here, it was really the intention of A to kill B.

Q: What is the relevance of this problem to Art. 4?

A: This section covers only the EXTRA-ORDINARY MEANS of committing
a crime or incurring criminal liability.

Ordinarily, you commit a felony & the wrongful act done was precisely what you
intended. But in par. 1, the wrongful act done is different from you have
intended-unsual.

NOTE: Article 4 refers only to the EXTRA-ORDINARY manner of incurring criminal

liability

Q: How many clauses are there in paragraph 1?

A: There are two clauses in this paragraph:

1) "By any person committing a felony (delito)," and

2) "Although the wrongful act done be different from that which he in-
tended."

Q: Does the first clause refer only to intentional felony?

A: No, because the provision specified "delito" and under Article 3,

delitos are committed either by dolo or by culpa. Therefore, even if the
wrongful act done be different from what should have been the result
of the culpable or negligent act committed, a felony is still committed.
Thus, the first clause refers to both dolo and culpa.

PRINCIPLE: A person committing a felony is liable for the DIRECT, LOGICAL AND
NATURAL CONSEQUENCE OF HIS CRIMINAL ACT.

DOCTRINE OF PROXIMATE CAUSE: The cause which in the natural and continuous
sequence of event, unbroken by any efficient intervening cause, results in a
particular felony and without which the result would not have occurred.
 17

Requisites:

a. the direct, natural, and logical cause

b. produces the injury or damage
c. unbroken by any sufficient intervening cause
d. without which the result would not have occurred

Let’s take the Cagoco Case: --- the victim did not die because of the punch but
because his head hit the pavement.

Q: Does the hitting of the head on the pavement which caused his death was
something absolutely foreign which broke the relation between the cause and
effect between the punching and death?

A: No. The immediate cause of death was the fractured skull, but the punching
was the proximate cause --- without the punching ---there is no falling down---
without falling down, there is no head hitting the pavement --- if it did not
happen then there will be no death.

Principle: He who is the cause of the cause is the cause of the evil caused

Case: Garcia vs. People. G.R.# 171951, August 28, 2009, 597 SCRA 392

Facts: Amado Garcia and his friends were having a drinking spree adjacent to
the house of Manuel Chy. Chy appealed to the group to quiet down as the
noise was blaring. Amado suddenly punched Chy on the face and continuously
assaulted him. Chy escaped by running home and told his wife about the
mauling. Wife went to the police and when they arrived they found Chy lying
unconscious on the kitchen floor. He was pronounced dead on arrival at the
hospital. The autopsy report disclosed that Chy suffered a heart attack.

During trial, the doctor testified that the immediate cause of Chy's myocardial
infarction was the occlusion of the blood vessels. In short, because of the
emotional crisis brought about by the mauling, Chy's heart palpitated so fast
such that there was less oxygen being pumped by the heart.

Convicted of Homicide, Amado appealed, contending that he could be held

liable only for slight physical injuries because none of the blows he inflicted on
Chy was fatal.

Issue: Is Amado criminally liable for the death of Chy?

Held: YES. It can be reasonably inferred from the foregoing statements that the
emotional strain from the beating aggravated Chy's delicate constitution and
led to his death. The inevitable conclusion then surfaces that the myocardial
infarction suffered by the victim was the direct, natural and logical
consequence of the felony that petitioner had intended-to commit.
Read also: Bringan vs People, 125 SCRA 687; PP vs Iligan, 191 SCRA 643

Q: In an act to discipline his child, the father claims that the death of
his child was not intended by him. Is his contention correct?
A: No. He is liable under Art. 4(1) of the RPC. In order that a person may
be criminally liable for a felony different from that which he intended
to commit, it is indispensable (a) that a felony was committed and (b)
that the wrong done to the aggrieved person be the direct
 18

consequence of the crime committed by the perpetrator. In beating

his son and inflicting upon him physical injuries, he committed a felony.
As a direct consequence of the beating suffered by the child, he
expired. His criminal liability for the death of his son, is thus clear
(People v. Sales, G.R. No. 177218, October3, 2011).

Q: What do you mean by “efficient intervening cause”?

A: An “efficient intervening cause” is something absolutely foreign and
totally unexpected which intervened and which broke the relation of
cause and effect, between the original felonious act and the result.

Generally, infections are all considered as continuations or natural effects of

what happened to the victim. They are not efficient intervening cause.

The rule is: you are not liable if there is an efficient intervening cause ..
meaning, there is something which happened in between which is absolutely
foreign between the victim’s death and the original act. There is a break in
the relation of cause and effect then one is liable only up to that point.
Beyond that, there is no liability.

Rule: You are liable for all the DIRECT, LOGICAL and NATURAL CONSEQUENCES
of the criminal act. The SC decisions do not tell us that you are liable for all the
possible & probable consequences of his act.

Case: US vs Cagoco, 58 Phil. 524

Facts: A had the intention of inflicting physical injuries upon the person of B. A
approached B and hit him with his fist. Because of A’s fist blows, B fell down and
B’s head hit the pavement. It fractured his skull and thus caused his death. Here,
A had no intention of killing B. His intention was merely to inflict physical injuries
upon. But B died.

Issue: Is A liable for the death of B when his intention was only to inflict physical
injuries?

Held: Yes. A is liable for homicide, although his intention was merely to inflict
upon B physical injuries, though under Art. 13, A is entitled to the mitigating
circumstance that the offender did not intend to commit so grave a wrong as
that committed.
Case: US vs Valdez, 41 Phil 497

The deceased is a member of the crew of a vessel. Accused is in charge of the

crew members engaged in the loading of cargo in a vessel. Because the
offended party was slow in his work, the accused shouted at him. The victim
replied that they would be better if he would not insult them. The accused
resented this, and rising in rage, he moved towards the victim with a big knife in
hand threatening to kill him. The victim believing to be in immediate peril threw
himself to the water. The victim died of drowning. The accused was prosecuted
for homicide. His contention is that his liability should only for grave threats since
he did not even stab the victim, that the victim died of drowning and this can
be considered as a supervening cause.
SC: The deceased in throwing himself to the water, acted solely in obedience to
the basic, instinct of self-preservation & was in no sense legally responsible for his
 19

own death. The accused must therefore, be considered as the author of the
death of the victim.
Note: This case illustrates that proximate cause does not require that the
offender needs to actually touch the body of the offended party. It is enough
that the offender generated in the mind of the offended party the belief that
made him risk himself.

Case: PP vs Quiamson, 62 Phil. 162

Facts: The accused inflicted wounds upon B because the accused stabbed B.
So, B was brought to the hospital so he was saved. In the hospital, there were
many instruments attached to him, B was restless while in bed. B removed the
bandages on his wounds. Eventually, B died. The accused was prosecuted for
the death of B. He said that B’s death was not due to his fault but it was the fault
of B.

Held: No, the accused is liable—the wrong done was the direct, natural &
logical consequence of the felony committed.

Case: US vs Marasigan, 27 Phil. 504

Facts: A stabbed B. Because of B’s refusal to submit to medical treatment, the

wound infected and the injury became worse. So, slight physical injuries lang
nagging serious physical injuries na. A was charged for Serious Physical Injuries. A
claimed that he should be liable only for slight physical injuries because B’s
serious physical injuries arose from B’s refusal to see a doctor.
/
Issue: Is A liable for Serious Physical Injuries?

Held: Yes. The accused is still liable for Serious Physical Injuries although it was
not intended. The victim was not obliged to submit to medical treatment to
relieve the accused from the natural and ordinary result of his crime.

Case: People vs Martin, 98 Phil 18

Facts: The husband strangled his wife – who has a disease. While being
strangled, the wife suffered heart attack-died. So, the cause of wife’s death was
not suffocation but heart attack.

Held: Husband is liable for the death of his wife.

Case: Urbano v. Intermediate Appellate Court, G.R. No. 7296, January 7,1988).

Facts: A and B had a quarrel and started hacking each other. B was wounded
at the back. Cooler heads Intervened and they were separated. Somehow,
their differences were patched up. A agreed to shoulder all the expenses for the
treatment of the wound of B, and to pay him also whatever lost of income B
may have failed to receive. B, on the other hand, signed a forgiveness in favor
of A and on that condition, he withdrew the complaint that he filed against A.
After so many weeks of treatment in a clinic, the doctor pronounced the wound
already healed. Thereafter, B went back to his farm. Two months later, B came
home and he was chilling. Before midnight, he died out of tetanus poisoning.
The heirs of B filed a case of homicide against A. Is A liable?
 20

Held: No. Taking into account the incubation period of tetanus toxic, medical
evidence were presented that tetanus toxic is good only for two weeks. That if,
indeed, the victim had incurred tetanus poisoning out Of the wound inflicted by
A, he would not have lasted two months. What brought about tetanus to infect
the body of 8 was his working in his farm using his bare hands. Because of this,
the SC ruled that the act of B of working in his farm where the soil is filthy, using
his own hands, is an efficient supervening cause which relieves A of any liability
for the death of B. A, if at all, is only liable for physical injuries inflicted upon B.

Case: People v. Villacorta, G.R. No. 186412, September 7, 2011

Facts: Cruz and Villacorta were regular customers at Mendeja's store. At around
two o'clock in the morning of January 23, 2002, while Cruz was ordering bread at
Mendeja's store, Villacorta suddenly appeared and, without uttering a word,
stabbed Cruz on the left side of Cruz's body using a sharpened bamboo stick,
When Villacorta fled, Mendeja followed chased but failed to catch him. When
Mendeja returned to her store, she saw Aran removing the broken bamboo stick
from Cruz's body. Mendeja and Aron then brought Cruz to Tondo Medical
Center and was treated as an outpatient. Cruz was later brought to the San
Lazaro Hospital on February 14, 2002, where he died the following day of tetanus
infection secondary to stab wound. What is the proximate cause for the death
of Cruz?

Held: The proximate cause of Cruz's death is the tetanus infection, and not the
stab wound. There had been an interval of 22 days between the date of the
stabbing and the date when Cruz was rushed to San Lazaro Hospital, exhibiting
symptoms of severe tetanus infection. If Cruz acquired severe tetanus infection
from the stabbing, then the symptoms would have appeared a lot sooner than
22 days later. Cruz's stab wound was merely the remote cause, and its
subsequent infection with tetanus might have been the proximate cause of
Cruz's death. The infection of Cruz's stab wound by tetanus was an efficient
intervening cause later or between the time Cruz was stabbed to the time of his
death.

Circumstances which are considered as inefficient intervening causes:

(1) The weak physical condition of the victim

(2) The nervousness or temperament of the victim
(3) Causes which are inherent in the victim, such as the victim's inability to
swim
(4) Refusal of the injured party of medical attendance
(5) Erroneous or unskillful medical treatment

NOTE: Although the above-enumerated circumstances may have intervened in

the commission of the crime, the offender is still liable for the resulting crime
because the proximate cause is caused by him, and they are inefficient.

IMPOSSIBLE CRIME

Q: What is an impossible crime?

 21

A: An impossible crime is one where the acts performed would have

been a crime against persons or property but which is not
accomplished because of its inherent impossibility or because of the
employment of inadequate or ineffectual means.

There is intent (subjective) to commit a crime but actually no crime is committed

(objective).

Q: Why is it that in Art. 4 (2), it states: “performing an act”, whereas Art.

4(1), it says, “committing a felony”?
A: Because in Art. 4 (2), there is no known felony. Unlike in Art. 4 (1)
where there is a known felony which he committed. In par 2, the
offender did not actually commit a felony as defined in the RPC, but
he performed an act which would be an offense against person or
property. In other words: There is no such thing as impossible crime by
omission

Under Article 4(2), the act performed by the offender cannot produce an
offense against persons or property because: (1) the commission of the offense
is inherently impossible of accomplishment; or (2) the means employed is either
(a) inadequate or (b) ineffectual. (Intod vs. CA, October 1992)

Q: Are all impossible attempts to commit a crime punishable?

A: No. To be considered an impossible crime, it would have been an
offense against person or property.

Problem:

A wanted to kill B. A plan to stab him in his room at 12:00 midnite while
B would be sleeping --- A saw B lying on bed, then A started stabbing B
without him knowing that B is already dead 1 hour ago.

Q: Is A liable for crime of murder?

A: No. Impossible. You cannot kill somebody who is already dead.
There is a physical impossibility. But had B been alive, then it would
have been murder. Impossible crime.

Problem:
Example: A wants to steal B’s sunglasses. A stole it. It turned out pala
that the sunglasses was his. Did A commit the crime of theft? Ans: No---
in theft, the personal property taken belongs to another but here
sunglasses was his. There is legal impossibility

Q: Is there a crime committed?

A: Yes, impossible crime

Requisites of impossible crime:

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.
 22

4. That the act performed should not constitute a violation of

another provision of the RPC.

PRINCIPLE: There is no frustrated or attempted felony in impossible crime. It is

always consummated and applies only to grave or less grave felonies.

PRINCIPLE: There must be criminal intent on the part of the offender.----the

offender believes that he was committing a crime at that very moment.

PRINCIPLE: A person could be liable for an impossible crime only if the act
performed does not constitute a violation of another provision of the RPC. ---
crime of last resort. Impossible crime is a provision of last resort, if there is no
other provision under which a certain set of facts may be prosecuted.

Read: People us. Domasian, 219 SCRA 245, March 1, 1993

Case: Intod vs CA, 215 SCRA 52, October 21, 1992

Facts: Due to a land dispute, Intod and several companions, all armed with
firearms, went to Palangpangan's house at 10 PM and fired at the latter's room.
It turned out, however, that Palangpangan was in another city and her home
was then occupied by her son-in-law and his family. No one was in the room
when the accused fired the shots. No one was hit by the gun fire. Intod and his
companions were positively identified by witnesses. After trial, Intod was
convicted by I ho RTC of attempted murder. The decision was affirmed by the
CA. Before the SC, Intod seeks a modification of the judgment by claiming
liability only for an impossible crime, citing Art. 4(2) of the RPC. He contends that
Palangpangan's absence from her room on the night lie and his companions
riddled it with bullets made the crime inherently impossible. The People, on the
other hand, argues that I he crime was not impossible. Instead, the facts were
sufficient to constitute an attempt and to convict Intod for attempted murder. It
pointed out that the crime of murder was not consummated, not because of
the inherent impossibility of its accomplishment, but due to a cause or accident
other than Intod's and his co-accused's own spontaneous desistance.
Palangpangan did not sleep at her house at that time. Had it not been for this
fact, the crime is possible, not impossible. In upholding Intod's contention that
what was committed was an impossible crime, the SC ruled:

The factual situation in the case at bar presents a physical

impossibility which rendered the intended crime impossible of
accomplishment. And under Art. 4, par. 2 of the RPC, such is
Hufficient to make the act an impossible crime.
To uphold the contention of respondent that the offense was
Attempted Murder because the absence of Palangpangan was
a upervening cause independent of the actor's will, will render
useless the provision in Art. 4, which makes a person criminally
liable for an act "which would be an offense against persons or
property, were it not for the inherent impossibility of its
accomplishment xxx."

Q: If there is no crime committed, why is impossible crime punished?

A: Impossible crime is resorted to only if the acts committed will not fall
under paragraph 1 of Article 4. The purpose is to suppress lawlessness.
 23

Subjectively, the offender is a criminal although objectively no crime

has been committed.

Case: Gemma Jacinto v. People, G.R. No. 162540, July 2009, J. Peralta)

Facts: A, a collector of Mega Foam failed to remit to the company a

check which was given to him as payment for a merchandise. She
tried to deposit the check, but she found out that the check bounced.
What crime was committed?

Held: The crime committed is an impossible crime of theft. The evil

intent cannot be denied, as the mere act of unlawfully taking the
check meant for Mega Foam showed her intent to gain or be unjustly
enriched. Were it not for the fact that the check bounced, she would
have received the face value thereof, which was not rightfully hers.
Therefore, it was only due to the extraneous circumstance of the check
being unfunded, a fact unknown to the accused at the time, that
prevented the crime from being produced. The thing unlawfully taken
by the accused turned out to be absolutely worthless, because the
check was eventually dishonored, and Mega Foam had received the
cash to replace the value of said dishonored check

Q: Buddy always resented his classmate, Jun. One day, Buddy planned
to kill Jun by mixing poison in his lunch. Not knowing where he can get
poison, he approached another classmate Jerry to whom he disclosed
his evil plan. Because he himself harbored resentment towards Jun,
Jerry gave Buddy a poison, which Buddy placed on Jun's food.
However, Jun did not die because, unknown to both Buddy and Jerry,
the poison was actually a powdered milk. What crime or crimes, if any,
did Jerry and Buddy commit?

A: Jerry and Buddy are liable for the so-called impossible crime
because, with intent to kill, they tried to poison Jun and thus perpetrate
murder, a crime against persons. Jun was not poisoned only because
the would-be killers were unaware that what they mixed with the food
of Jun was powdered milk, not poison. Criminal liability is incurred by
them although no crime resulted, because their act of trying to poison
Jun is criminal.

Q: A, B, C and D, all armed with armalites, proceeded to the house of

X. Y, a neighbor of X, who happened to be passing by, pointed to the
four culprits the room that X occupied. The four culprits peppered the
room with bullets. Unsatisfied, A even threw a hand grenade that
totally destroyed X's room. However, unknown to the four culprits, X
was not inside the room and nobody was hit or injured during the
Incident. Are A, B, C and D liable for any crime? Explain. (2000)

A: Yes. A, B, C and D are liable for destructive arson because of the

destruction of the room of X with the use of an explosive, the hand
grenade. Liability for an impossible crime is to be imposed only if the
act committed would not constitute any other crime under the RPC.
Although the facts involved are parallel to the case of Intod v. CA,
(G.R. No. 103119, October 21, 1992), where it was ruled that the liability
 24

of the offender was for an impossible crime, no hand grenade was

used in said case, which constitutes a more serious crime though
different from what was intended.

Q: Can there be an impossible crime of adultery? (2015)

A: There is no impossible crime of adultery since this is a crime against
chastity, and not against person or property as required by Art. 4(2) of
the RPC.

Q: What is the penalty for an Impossible Crime?

A: Art. 59 --- arresto mayor or a fine ranging from 200 to 500 pesos.

Q: How can a person commit a felony and the wrongful done is different from
that which he intended?

A: There are 3 situations contemplated under Art. 4 (1). They are:

1. Error in personae (error in identity)

2. Aberratio Ictus (mistake in the blow)
3. Praeter Intentionem (the result exceeded the intention)

Note: The three enumerated situations are always the result of an intentional
felony or dolo. These situations do not arise out of criminal negligence.

1.Error in personae (error in identity)

— there is only one offended party but the offender committed a mistake in
ascertaining the identity of the victim.

2. ABERRATIO ICTUS

Q: What is aberratio ictus? How does it affect the offender's criminal liability?
A: In aberratio ictus, there is no mistake in the identity of the victim but mistake
in the blow. The offender intends the injury on one person but the harm fell on
another. There are three persons present: the offender, the intended victim and
the actual victim. Consequently, the act may result in a complex crime (Article
48) or in two felonies, but there is only one intent that characterized the crimes.

In error in personae, there is a correct aim but the actual

victim turned out to be a person different from the intended
victim.

In aberratio ictus, on the other hand, because of faulty aim,

the intended victim is not the person hit.

Q: May treachery be appreciated in aberratio ictus?

A: Yes. When the offender fired at his adversary but missed, the victims
were helpless to defend themselves. Their deaths were murders not
simply homicide since the acts were qualified by treachery. (People vs.
Flora, June 2000)
 25

3. Praeter Intentionem (the result exceeded the intention)

In praeter intentionem, the injury is on the intended victim but the resulting
consequence is so grave a wrong than what was intended. There should be a
great disparity between the intended felony and the actual felony committed.

Q: Explain and illustrate aberratio ictus. (2015, 1993) What do you

understand by aberration ictus, error in personae, and praeter
intentionem? Do they alter the criminal liability of an accused? Explain.
(1999, 1994, 1989) A: Aberatio ictus, error in personae and praeter
intentionem are the three ways by which a person may commit a
felony although the wrongful act done is different from that which he
intended.

A: In aberratio ictus, there is a mistake in blow whereby an offender

intending to cause an injury to one person actually inflicts it on another
because of lack of precision. Illustration: A, intending to kill B, fires his
gun at the latter but because of poor aim or lack of precision, he hits C
instead, who suffers serious physical injury.

In error in personae, there is a mistake in the identity of the victim. The

offender intends the injury on one person but the harm fell on another.
The intended victim was not at the scene of the crime. Illustration: A
intending to kill B, his enemy, lay in ambush for the latter to pass along
a dark alley. Because of the darkness, A fired his gun at a person
passing by, thinking him to be B. It turned out that the person shot was
C, A's father.

In praeter intentionem, the injurious result is greater than that intended

by the offender. Here, there is a notable disparity between the means
employed or the
act of the offender and the felony which resulted. Illustration: A,
without intent to kill, struck the victim on the back, causing the victim to
fall down and hit his head on the pavement.

Yes, the presence of these circumstances will alter the criminal liability
of the accused. Thus:

1. In aberratio ictus, two offenses are actually committed by the

offender, that which he intended to commit and that which he
actually committed. But if these two offenses are both either grave or
less grave, since they are produced by one single act, a complex
crime will result upon which the penalty for the most serious crime shall
be imposed in its maximum period;

2. In the case of error in personae, the offender shall be guilty of the

crime actually committed by him, but the penalty to be imposed shall
either be the penalty for the crime actually committed or that for the
crime intended to be committed whichever is lower, but the same will
be imposed in its maximum period;

3. In praeter intentionem, the offender, will incur criminal liability for the
felony actually committed by him, but he will be entitled to the
mitigating circumstance of not having intended to commit so grave a
 26

wrong as that which he committed under Art. 13 [3] of the Revised

Penal Code.

VII. STAGES IN THE EXECUTION OF A FELONY – Art. 6

Q: What are the stages in the execution of a felony?

A: Consummated, frustrated, and attempted felonies

Q: What is a consummated felony?

A: A felony is consummated when all the elements necessary for its
execution and accomplishment are present.

Q: What is a frustrated felony?

A: 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.

Q: What is an attempted felony?

A: There is an attempt when the offender commences the commission
of a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause
or accident other than his own spontaneous desistance.

PREPARATORY ACTS

Q: Are preparatory acts punishable?

A: Generally, No, because the act of buying a knife is not the act of
killing your wife or the act of practicing shooting is not preparatory to
the act of shooting your enemy.

PRINCIPLE: Preparatory external acts are not punishable EXCEPT when the law
specifically provides for a penalty for such preparatory acts.

Example: Art. 304 – possession of picklocks – these are gadgets used to open
doors, robbers possessed this kind of instrument. But the possession of a false key
or pick lock is not the actual act of robbery. It is only in preparation of robbery.
Preparatory acts to commit robbery is not punishable but Art. 304 states that
mere possession of these objects which are preparatory to the crime of robbery
with force upon things is also punishable.

ACTS OF EXECUTION: ---this is the implementation of the plan. The offender now
executes the commission of the act and there are 3 possibilities: It could either
be ATTEMPTED, FRUSTRATED & CONSUMMATED.

Attempted Stage - There is an attempt when the offender commences the

commission of a felony directly by overt acts ------ overt acts: therefore, there is
no attempted stage in felony by omission. Take note: the attempted stage
refers only to “felony by act”.
 27

"Overt acts" or external acts — those which if allowed to continue will logically
result in a felony; it is the start of criminal liability.

"Directly" — The attempted felony is that directly linked to the overt act no
matter what the intention is.

PRINCIPLE: in order to convict a person for an attempted felony, the overt act
must have a direct relation to the felony for which he is charged.

Case: Pp vs Lamahong, 61 Phil. 707

Facts: One night a group of policemen while patrolling saw a figure in the dark.
They stopped and observed what the guy was doing. The guy did not know that
he was being watched by the policemen. What the guy did was he was trying
to create an opening to enter the house. When he was able to create an
opening and the accused was already in the act of entering the house, that
was the time when the policemen caught him. The guy was charged for the
crime of Attempted Robbery because according to the prosecution, the guy
commenced the commission of robbery directly by overt acts by trying to enter
the house in the middle of the night.

SC: No attempted robbery – there is no connection on what he was doing and

the elements of robbery. How do you commit the crime of robbery? – it is
committed by taking personal property belonging to another by violence
against or intimidation of person. In this case, he has not yet commenced the
act of taking anything. They caught him in the act of entering but robbery is not
committed by entering but by taking. There is no connection between the act
& the crime for which he is charged. So it was premature to charge him with
attempted robbery. He was in the act of entering a house while all occupants
are asleep. When one enters a house against the will of the occupants, he
commits the crime of trespass to dwelling – the crime that is committed is
attempted trespass to dwelling and not attempted robbery. But he may be
charged with attempted trespass because that act is directly related to the
purpose of entering the store or consummated malicious mischief because of
the destruction of property.
PRINCIPLE: One must commence the felony by overt act and the overt act must
be related to the crime for which he is charged.

Q: A person enters the dwelling of another. However, at the very

moment of his entry and before he could do anything, he is already
apprehended by the household members, can he be charged with
attempted robbery?

A: No. The act of entering alone is not yet indicative of robbery

although that may be what he may have planned to commit. He may
be held liable for trespassing.

Criteria involved in determining the stage (whether it be in attempted, frustrated

or consummated stage) of the commission of a felony:

(1) The manner of committing the crime

(2) The elements of the crime
(3) The nature of the crime itself
 28

In attempted – you started to commit a felony but you failed to finish – halfway
or less than halfway but failed to finish because you failed to perform all the
acts of execution which should have produced the felony. Why? Because of a
CAUSE or because of an ACCIDENT other than his own spontaneous desistance.

PRINCIPLE: The desistance must come before the commission of the crime. The
desistance must not come after you have executed all the acts of execution on
the theory that you cannot desist something that you have already
accomplished.

Problem

A stole the wallet of B. He went out but came back and return the
wallet.

Q: Is there an attempted theft or there is no theft because A desisted?

A: No. There is no attempted theft here but a consummated theft---the
moment A took the wallet and left --- the crime of theft has already
been accomplished. When A return the wallet ---- we cannot say that
there is desistance – you cannot desist when the crime is already
consummated --- but you may avail yourself in Art. 13, mitigating
circumstance.

Kinds of desistance:
a. Legal desistance — the desistance referred to in law which would
obviate criminal liability unless the overt or preparatory acts
already committed in themselves constitute a felony other than
what the actor intended.
b. Factual desistance — actual desistance of the actor which if made
after the attempted stage would not amount to legal desistance.

Read: PP vs Pareja, December 1996

Desistance on the part of the offender negates criminal liability in the attempted
stage.

Desistance is true only in the attempted stage of the felony. If under the
definition of the felony, the act done is already in the frustrated stage, no
amount of desistance will negate criminal liability.

>>>>The spontaneous desistance of the offender negates only the attempted

stage but not necessarily all criminal liability. Even though there was desistance
on the part of the offender, if the desistance was made when acts done by him
already resulted to a felony, that offender will still be criminally liable for the
felony brought about his act. What is negated is only the attempted stage, but
there may be other felony
constituting his act.

FRUSTRATED STAGE: 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.
 29

Distinguish between the attempted and frustrated felonies.

a. As to acts of execution, in attempted, not all acts of execution had

been done whereas in frustrated, all acts of execution had been
performed.

b. As to causes of non-accomplishment, in attempted, the felony was

not produced by reason of cause or accident other than the
offender's own spontaneous desistance; in frustrated the reason for
the frustration is some cause independent of the will of the
perpetrator.

c. In attempted stage, the offender is still in the subjective phase as he

still has control of his acts; whereas in the frustrated stage, he is
already in the objective phase because all the acts of execution
are already there and the cause of its non-accomplishment is other
than the offender's own will. Hence, if the felony was not produced
by the will of the offender, such as his giving the antidote for the
poison he administered on the victim, there is no frustrated
homicide, but some other crime, e.g., physical injuries. Example: In
attempted homicide, the wound is not mortal, hence, the offender
should still need to deal another blow on the victim which he was
not able to do because of some cause or accident like his being
apprehended. In frustrated homicide, the wound is mortal, already
sufficient to bring about death, hence, there is no more need of
another blow from the offender. But death nevertheless did not
supervene because of timely medical attendance.

Note: The similarity of these stages is that the felony is not accomplished, it is not
produced or consummated but the reason for the non-accomplishment of the
crime is different.

PRINCIPLE: In Crimes Against Persons which involve intent to kill, before a person
can be convicted of frustrated murder, the prosecution must establish that the
victim sustained an injury which would normally kill a person.( Pp vs Borinaga, 55
Phil. 433)

> there must be a fatal wound inflicted upon the victim

> if the wound is not fatal --- the crime committed is only attempted.

The SC held that in case of killing, whether parricide, homicide or murder, in

order to amount in the frustrated stage, it is necessary that the injury sustained is
fatal, sufficient to bring about death but death did not supervene because of
the immediate medical intervention. If the wound inflicted was not fatal, the
crime is only in attempted stage because the offender still has to perform
another act in order to consummate the crime (People v. Gutierrez, G.R. No.
188602, February 4, 2010).

What crimes that do not admit of frustrated stage?

They are those which, by the definition of a frustrated felony, the offender
cannot possibly perform all the acts of execution to bring the desired result
without consummating the offense. Examples:
 30

(1) Rape, since the gravamen of the offense is carnal knowledge, hence, no
matter how slight is the penetration, the felony is consummated. If the
male organ failed to touch the pudenda, by some causes or accident
other than his own spontaneous desistance, the felony is merely
attempted. If he desisted spontaneously, he is not liable for attempted
rape, following Article 6, but he is liable for some other crime such as acts
of lasciviousness. (PP vs Orande, November 12, 2003)
(2) Arson, because this is punished as to its result, hence, the moment burning
of the property occurs, even if slight, the offense is consummated.
(3) Corruption of public officers, because the offense requires the
concurrence of the will of both parties, such that when the offer is
accepted, the offense is consummated. But when the offer is rejected,
the offense is merely attempted.
(4) Adultery because the essence of the crime is sexual congress.
(5) Physical injury since it cannot be determined whether the injury will be
slight, less serious, or serious unless and until consummated.
(6) Indirect Bribery because it is committed by accepting gifts offered to the
public officer by reason of his office. If he does not accept, he does not
commit the crime. If he accepts, it is consummated.
(7) Theft because the unlawful taking immediately consummates the offense
and the disposition of the thing is not an element of the crime.

Read: Araneta, Jr. vs CA, 187 SCRA 123 and Pp vs Revalo, 202 SCRA 655,
October 15, 1991; Valenzuela vs People, June 21, 2007, 525 SCRA 306

Instances wherein the stages of a crime will not apply

(1) Offenses punishable by Special Penal Laws, unless otherwise provided for.
(2) Formal crimes (e.g., slander adultery, etc.)
(3) Impossible crimes
(4) Crimes consummated by mere attempt (e.g., attempt to flee to an
enemy country, treason, corruption of minors)
(5) Felonies by omission
(6) Crimes committed by mere agreement (e.g., betting in sports, corruption
of public officers

CONSUMMATED STAGE: when all the elements necessary for its execution and
accomplishment are present.

To convict a person of a particular crime, you have to prove all the elements to
establish the crime. If all the elements of a crime are present, then the felony is
consummated.

But suppose some elements are present & some elements are absent. Suppose
a crime is composed of several elements, then the prosecution has established
only some of the elements but not the others. What will now happen?

Principle No. 1: The accused can be found guilty only of frustrated or attempted
felony:
 31

Principle No. 2: The accused cannot be convicted of the felony charged in its
consummated stage but he can be found guilty of another felony in its
consummated stage.

Principle No. 3: If the crime is consists of 2 or more elements, some elements are
proven, some are not --- what was established is purely a civil obligation --- the
accused should be acquitted.

Problem:

A charged X for the crime of Estafa. The elements of Estafa are (a)
misappropriation (b) deceit or abuse of confidence (c) pecuniary damage
suffered by the plaintiff. --- During trial, it was proven that X was able to get the
money from A. X did not return the money --- there is pecuniary damage--- but
there is no deceit nor abuse of confidence. What was proven was a simple loan
---- there is no estafa --- civil obligation ---, then the case will be dismissed.

Is there an instance that there is difficulty in determining the stage of execution?

YES.

>there is no distinction between Attempted and Frustrated Felony --- special

crimes. --- where you attempt to do it, but your attempt constitutes the
consummation of the crime. Example: Crimes against National Security --Art.
121. Flight to Enemy’s Country. The penalty of arresto mayor shall be inflicted
upon any person who, owing allegiance to the government, attempts to flee or
to go an enemy country when prohibited by competent authority.

>consummated or nothing --- there are crimes where there is no attempted

or frustrated. It is either consummated or nothing.

a) Felony by omission --- you failed to perform an act which the law
commands you to do as a duty.----- If you do the act --- you don’t
commit the crime. But if you do not do it ---- there is a crime, So it is
either you do or you do not do.
b) False testimony in court
c) Slander or Oral Defamation ---
d) Arson ----

Q: Can there be a frustrated stage in Arson?

A: No. Arson can either be committed in Attempted or Consummated.
No frustrated stage.

Case: Valenzuela vs People, June 21, 2007 (en banc)

Facts: An Information was filed charging petitioner Aristotle Valenzuela

(petitioner) and Jovy Calderon (Calderon) with the crime of theft. On 19 May
1994, at around 4:30 p.m., petitioner and Calderon were sighted outside the
Super Sale Club, a supermarket within the SM complex along North EDSA, by
Lorenzo Lago (Lago), a security guard who was then manning his post at the
open parking area of the supermarket. Lago saw petitioner, who was wearing
an identification card with the mark "Receiving Dispatching Unit (RDU)," hauling
a push cart with cases of detergent of the well-known "Tide" brand. Petitioner
unloaded these cases in an open parking space, where Calderon was waiting.
 32

Petitioner then returned inside the supermarket and after five (5) minutes,
emerged with more cartons of Tide Ultramatic and again unloaded these boxes
to the same area in the open parking space.

Thereafter, petitioner left the parking area and haled a taxi. He boarded the
cab and directed it towards the parking space where Calderon was waiting.
Calderon loaded the cartons of Tide Ultramatic inside the taxi, then boarded
the vehicle. All these acts were eyed by Lago, who proceeded to stop the taxi
as it was leaving the open parking area. When Lago asked petitioner for a
receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot,
but Lago fired a warning shot to alert his fellow security guards of the incident.
Petitioner and Calderon were apprehended at the scene, and the stolen
merchandise recovered. They were charged and convicted of consummated
theft.

Petitioner argued that he should only be convicted of frustrated theft since at

the time he was apprehended, he was never in a position to freely dispose of
the articles stolen.

Issue: The only question to consider is whether under the given facts, the theft
should be deemed as consummated or merely frustrated.

Held: “xxxx in order to ascertain whether the theft is consummated or frustrated,

it is necessary to inquire as to how exactly is the felony of theft "produced."
Parsing through the statutory definition of theft under Article 308, there is one
apparent answer provided in the language of the law – that theft is already
"produced" upon the "tak[ing of] personal property of another without the
latter's consent. “xXxx We thus conclude that under the Revised Penal Code,
there is no crime of frustrated theft.”

Case: Jovito Canceran vs People, G.R. No. 206442, July 1, 2015

Facts: Canceran et.al. were charged for the crime of Frustrated Theft for
unlawfully taking boxes of Ponds White Beauty Cream from Ororama Grocery in
Cagayan de Oro City. Canceran went to the cashier bringing with him a box of
Magicflakes and paid it. The security guard asked Canceran whether or not the
box has been checked. When the security guard checked it, it was found out
that the contents of the box is not Magicflakes but 14 boxes of Ponds White
Beauty Cream. When confronted the accused ran away leaving the boxes in
the grocery store. The information charged him of frustrated theft “xxxx
performing all the acts of execution which would produce the crime of theft as a
consequence, but nevertheless, did not produce it by reason of some cause
independent of accused’s willxxx.” After trial, the RTC convicted Canceran for
Consummated Theft in line with the decision on Valenzuela vs People (2007).

On appeal with the CA, Canceran contended that he could not be guilty of
consummated theft because that was not alleged in the Information. The CA
affirmed the conviction.

Issue: Whether or not Canceran may be convicted of Consummated Theft

when the Information merely charged him of Frustrated Theft as the accused
did not produce the crime of theft by reason of some cause independent of the
will of the accused.
 33

SC: Under Article 308 of the RPC, the essential elements of theft are (1) the
taking of personal property; (2) the property belongs to another; (3) the taking
away was done with intent of gain; (4) the taking away was done without the
consent of the owner; and (5) the taking away is accomplished without
violence or intimidation against person or force upon things. “Unlawful taking,
which is the deprivation of one’s personal property, is the element which
produces the felony in its consummated stage. At the same time, without
unlawful taking as an act of execution, the offense could only be attempted
theft, if at all.”

“It might be argued, that the ability of the offender to freely dispose of the
property stolen delves into the concept of ‘taking’ itself, in that there could be
no true taking until the actor obtains such degree of control over the stolen
item. But even if this were correct, the effect would be to downgrade the crime
to its attempted, and not frustrated stage, for it would mean that not all the acts
of execution have not been completed, the "taking not having been
accomplished.”

Case: People v. Rolando Laylo y Cepres, G.R. No. 192235, July 6, 2011

Q: Two police dressed as civilians were conducting surveillance in Binangonan,

Rizal. They went near a store when suddenly Rolando and his wife arrived and
approached the police officers not knowing their real identity. Rolando spoke to
one of the officers and asked "gusto mo bang umi-score ng shabu?" The officer
replied, "bakit, meron ka ba?" Rolando answered in the affirmative and then he
took a sachet of shabu and showed it. When the officer asked how much the
shabu was, Rolando replied P200. Upon seeing the sachet, the police officers
immediately introduced themselves and arrested Rolando and his wife. They
were charged of attempted Illegal sale of dangerous drugs which is found
under Sec 26 of RA 9165. Can there be an attempted stage in the illegal sale of
dangerous drugs?

A: According to the SC, the identity of the buyer and seller are present. The seller
was Rolando while the buyers would be the officers. The corpus delicti was also
established however, there was no delivery because they immediately
introduced themselves as police officers therefore, the consummated sale of
the drugs was aborted by the act of the police introducing themselves and
arresting Rolando. Hence, the crime committed is only attempted illegal sale of
dangerous drugs

NOTE: Under Sec. 26 (b) of R.A. 9165, the penalty for attempted sale is the same
as that for a consummated sale.

Q: What is an Indeterminate Offense?

A: An indeterminate Offense is one where the purpose of the offender
in performing an act is not certain. Its nature in relation to the objective
is ambiguous. (People vs Lamahong case)

IX. CONSPIRACY/PROPOSAL - Art. 8.

Q: When is there proposal to commit a felony?

 34

A: There is proposal when the person who has decided to commit a

felony
proposes its execution to some other person or persons.

Q: When is there conspiracy to commit a felony?

A: A conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to
commit it.

Q: How do we define conspiracy?

A: when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it.

Q: Is conspiracy a felony?
A: As a general rule, a conspiracy does not constitute a felony; it is
merely a preparatory act in the execution of a felony. And as we
already learned from Art. 6, a preparatory act is generally not
punishable.

Q: When is conspiracy punishable as a felony?

A: A conspiracy, as expressly stated in par. 1, is punishable only in cases
where the law specially provides a penalty therefore. In other words, a
conspiracy is not a felony. Conspiracy only becomes a felony if it is
made so by specific provision of law.

Note: Once the proposal is accepted –------ it now reaches the stage of
conspiracy.

GEN. RULE: Proposal or conspiracy to commit a felony is not

punishable.
EXCEPT: when the law specifically provides a penalty
therefore.

PRINCIPLE: Proposal or conspiracy to commit a felony is not punishable unless

the law makes the proposal or conspiracy punishable.

Two kinds of conspiracy

1) Conspiracy as a crime - The mere conspiracy is the crime itself. This is only
true when the law expressly punishes the mere conspiracy, otherwise, the
conspiracy does not bring about the commission of the crime because
conspiracy is not an overt act but a mere preparatory act.

2) Conspiracy as a basis of incurring criminal liability - When the conspiracy

is only a basis of incurring criminal liability, there must be an overt act
done before the co-conspirators become criminal liable.
 35

“Conspiracy must be proven on the same quantum of evidence as the felony

subject of the agreement of the parties. It may be proved by direct or
circumstantial evidence consisting of acts, words, or conduct of the alleged
conspirators prior to, during and after the commission of the felony to achieve a
common design or purpose." (Franco v. People, G.R. No. 171328, February 16,
2011).

Q: Example of Proposal or Conspiracy as a Crime or are there

instances when mere conspiracy or mere proposal becomes a crime?
A: Yes, when the law specifically provides a penalty therefore. There
are many crimes in the RPC which can be consummated by mere
proposal or conspiracy:

a) machinations in public auctions

b) monopoly or combination in restraint of trade
c) when a public officer or a warden makes unchaste proposal to
a woman prisoner who is under his custody --- abuse against chastity
d) conspiracy to commit treason – Art. 115
e) conspiracy to commit rebellion or insurrection – Art. 136
f) conspiracy to commit coup d’ etat – Art. 136 as amended by RA
6968
g) conspiracy to commit sedition – Art. 141

How about Proposals?

a) Proposal to commit treason – Art. 115

b) Proposal to commit rebellion or insurrection –Art 136
c) Proposal to commit coup d’ etat – Art. 136-A


Under Conspiracy as a manner of incurring criminal liability, there are Two ways
for conspiracy to exist:

(1) There is an agreement.

(2) The participants acted in concert or simultaneously which is

indicative of a meeting of the minds towards a common criminal
goal or criminal objective. When several offenders act in a
synchronized, coordinated manner, the fact that their acts
complimented each other is indicative of the meeting of the minds.
There is an implied agreement.

When conspiracy itself is a crime, no overt act is necessary to bring about the
criminal liability. The mere conspiracy is the crime itself. This is only true when the
law expressly punishes the mere conspiracy; otherwise, the conspiracy does not
bring about the commission of the crime because conspiracy is not an overt act
but a mere preparatory act. Treason, rebellion, sedition, and coup d’etat are
the only crimes where the conspiracy and proposal to commit them are
punishable.

When the conspiracy is only a basis of incurring criminal liability, there must be
an overt act done before the co-conspirators become criminally liable.
 36

When the conspiracy itself is a crime, this cannot be inferred or deduced

because there is no overt act. All that there is the agreement. On the other
hand, if the co-conspirator or any of them would execute an overt act, the
crime would no longer be the conspiracy but the overt act itself.

If the conspiracy is only a basis of criminal liability, none of the co-conspirators

would be liable, unless there is an overt act. So, for as long as anyone shall desist
before an overt act in furtherance of the crime was committed, such a
desistance would negate criminal liability. For as long as none of the
conspirators has committed an overt act, there is no crime yet. But when one of
them commits any overt act, all of them shall be held liable, unless 1)a co-
conspirator was absent from the scene of the crime or 2) he showed up, but he
tried to prevent the commission of the crime

Read: People v. Laurio, 200 SCRA 489 , Taer v. CA, 186 SCRA 598, Pp vs Magallanes
et.al., January 16, 1997, Pp vs Dinglasa et.al., G.R. No. 101312, January 28, 1997,
People vs. Nardo, et al., G.R. No. 100197, April 4, 1997

Q: What is the effect of a conspiracy?

A: A conspiracy merely creates co-responsibility between or among
the accused. Once a conspiracy has been established, then each
and everyone accused of being a conspirator, who joined in the
conspiracy, becomes liable as a principal for the crime committed. As
the saying goes, the act of one becomes the act of all. (Pp vs Gallo,
318 SCRA 157 and Pp vs Recones, 310 SCRA 809)

Principle: As long as he appeared in the scene of the crime, he is liable as a co-

conspirator.

Exceptions: (1) If he is a mastermind, he does not have to be at the scene of

the crime to be a co-conspirator; (2) If he performs an overt act in the
performance of the conspiracy, even if he is not at the scene of the crime per
se (like the driver of a get-away car who planned the crime as well, or the man
who pressed the button of a remote control bomb and the bomb exploded a
few streets away).

Problem:

Q: X and Y devised a plan to murder Joel. In a narrow alley near Z’s

house, X will hide behind the big lamppost and shoot Z when the latter
passes through on his way to work. Y will come from the other end of
the alley and simultaneously shoot Z from behind. On the appointed
day, Y was apprehended by the authorities before reaching the alley.
When X shot Z as planned, he was unaware that Y was arrested earlier.
Discuss the criminal liability of Y, if any. (1998 BQ)

A: Y being one of the two who devised the plan to murder Z, thereby
becomes co-principal by direct conspiracy. What is needed only is an
overt act and both will incur criminal liability. Y’s liability as a
conspirator arose from his participation in jointly devising the criminal
plan with X, to kill Z and it was pursuant to that conspiracy that X killed
Z. There being a conspiracy, the act of one is the act of all. Y,
therefore, should be liable as a coconspirator but the penalty on him
 37

may be that of an accomplice only because he was not able to

actually participate in the shooting of Z, having been apprehended
before reaching the place where the crime was committed.

Two Ways in committing conspiracy

1) Express Conspiracy - There is an express agreement.

2) Implied Conspiracy - The offenders acted in concert in the commission of the
crime. Their acts are coordinated or synchronized in a way indicative that they
are pursuing a common criminal objective, and they shall be deemed to be
acting in conspiracy arid their criminal liability shall be collective, not individual.

Q: What is an Overlapping conspiracy?

A: It depicts a picture of a conspirator in the first level of conspiracy
performing acts which implement, or in furtherance of, another
conspiracy in the next level of which the actor is not an active party
(People v. Sandiganbayan, G.R. No. 158754, August 10, 2007)

Q: What is a wheel or circle conspiracy on plunder?

A: There is a single person or group called the "hub," dealing
individually with two or more other persons or groups known as the
"spoke" and the rim that encloses the spokes is the common goal in the
overall conspiracy (Estrada v. Sandiganbayan, G.R. No. 148965,
February 26, 2002

Q: What is the effect on the presence of Evident Premeditation in

conspiracy?
A: Evident premeditation is not automatic in conspiracy. It shall
depend on the kind of conspiracy. If prearranged conspiracy or
express, it can be appreciated. If implied conspiracy, generally, it
cannot be appreciated, absent any proof showing how and when the
plan to kill the victim was hatched or the time that elapsed when it was
carried out

Case: People vs Olazo et.al., G.R. No. 220761, October 3, 2016

Q: What are legal effects of implied conspiracy? {2003 BQ)

A: (1) Not all those who are present at the scene will be considered as
conspirators; (2) Only those who participated by criminal acts in the
commission of the crime will be considered as co-conspirators (3) Mere
acquiescence to or approval of the commission of the crime, without
any act of criminal participation, shall not render one criminally liable
as a co-conspirator.

NOTE: In order to hold someone criminally liable, in addition to mere presence,

there should be overt acts that are closely-related and coordinated to establish
the presence of common criminal design and community of purpose in the
commission of the crime.

Principle: In conspiracy, it is not necessary to adduce direct evidence of a

previous agreement to commit a crime. Proof of a previous agreement and
decision to commit the crime is not essential but the fact that the malefactors
 38

acted in unison pursuant to the same objective suffices (People v. Agacer et al.,
G.R. No. 177751, December 14, 2011).

Q: Does conspiracy exist when the acts of the accused were caused
by their being frightened by the police officers who were allegedly in
full battle gear and the fortuitous and unexpected character of the
encounter and the rapid turn of events?
A: Yes, the rapid turn of events cannot be considered to negate a
finding of conspiracy. Unlike evident premeditation, there is no
requirement for conspiracy to exist that there be a sufficient period of
time to elapse to afford full opportunity for meditation and reflection.
Instead, conspiracy arises on the very moment the plotters agree,
expressly or impliedly, to commit the subject felony (People v.
Carandang et al., G.R. No. 175926, July 6, 2011).

Q: Can a head of office be held criminally liable as conspirator on the

basis of command responsibility?
A: No. A head or chief of office cannot be held criminally liable as a
conspirator simply on the basis of command responsibility. All heads of
offices have to rely to a reasonable extent 'on their subordinates and
on the good faith of those prepare bids, purchase supplies, or enter
into negotiations. It would be a bad precedent if a head of office
plagued by all too common problems - dishonest or negligent
subordinates, overwork, multiple assignments or positions, or plain
incompetence - is suddenly swept into a conspiracy conviction simply
because he did not personally examine every single detail,
painstakingly trace every step from Inception, and investigate the
motives of every person involved in a transaction before affixing his
signature as the final approving authority (Arias v. Sandiganbayan,
G.R. No. 81563 December 19,1989).

Q: What do you understand by CONSPIRACY BY SILENCE AND

INACTION under RA 3019?

A: “When the accused are all heads of their respective offices that
perform interdependent functions in the processing of cash advances
and, exhibit an attitude of “BUCK-PASSING” (the practice of shifting
the responsibility for something to someone else) in the face of the
irregularities. Their indifference to their individual and collective duties
to ensure the laws and regulations are observed in the disbursement of
the funds of the LGU lead to a finding of conspiracy of silence and
inaction.” (JACA, ET.AL. VS PEOPLE, January 28, 2013)

X. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY (Articles 11, 12, 13, 14

& 15)

There are five circumstances affecting criminal liability:

1. Justifying circumstances under Article 11;

2. Exempting circumstances provided for under Article 12;
3. Mitigating circumstances prescribed in Article 13;
4. Aggravating circumstances enumerated in Article 14;
 39

5. Alternative circumstances classified under Article 15 as either mitigating or

aggravating.

Offenders falling under either Article 11 or 12 are without criminal liability;

those benefited by the circumstances in Article 13 have reduced criminal
liability; those proved to be more perverse by committing the felony with any
of the circumstances in Article 14 have increased criminal liability; and those
who act while under the circumstances stated in Article 15 will have their
liability either increased or reduced depending upon the situation obtaining
in the commission of the felony.

There are two others which are found elsewhere in the provisions of the Revised
Penal Code:

1. Absolutory circumstances which refer to exempting circumstances

outside Article 12 such as certain relatives who acted as accessories to the
offenders as stated in Article 20 in relation to Article 19, and those covered by
Article 332 for crimes and relatives enumerated therein, among others.

2. Extenuating circumstances which are mitigating circumstances not

found in Article 13, such as paragraph 3 of Article 333 and the mother in the
crime of infanticide in Article 255. The effect of this is to mitigate the criminal
liability of the offender. In other words, this has the same effect as mitigating
circumstances, only you do not call it mitigating because this is not found in
Article 13.

The following are exempting/absolutory circumstances:

1. Instigation by reason of public policy;

2. Art. 6(3) — spontaneous desistance in the attempted stage unless the
overt act committed already constitutes another crime than that
intended;
3. Art. 7 — attempted/frustrated light felonies except those against persons
or property;
4. Art. 16 — accessories in light felonies;
5. Art. 20 — certain accessories;
6. Art. 247 — physical injuries except serious physical injuries inflicted under
exceptional circumstances;
7. Art. 332 — certain persons in theft, estafa, and malicious mischief;
8. Somnambulism;
9. Mistake of fact; and
10. Absolute repeal of a penal law

JUSTIFYING CIRCUMSTANCES

The act of the person is said to be in accordance with law --- he is considered
not to have transgressed the law thus, he incurs no criminal liability.

Important Points:

Self-defense applies only to crimes against persons --- like homicide or murder or
physical injuries
 40

Note: Art. 11 is a matter of defense. The defense of self-defense should be

proved by clear & convincing evidence which is approximately proof beyond
reasonable doubt --- the burden of proof rest on the accused.

Why? --- because when one invokes self-defense – the accused automatically
admit that he killed the victim.

Rule: Since there is no crime, necessarily there is no civil liability ex delicto.

Except: In paragraph 4, wherein civil liability may be adjudged against those
who benefited from the act which caused damage to the property of the
victim but spared their own properties from consequent damages. The civil
liability in Par. 4 is provided for in Art. 101, and is commendably in line with the
rule against unjust enrichment.

Q: What are the rights included in self-defense?

A: Self-defense includes not only the defense of the person or body of the one
assaulted but also that of his rights, the enjoyment of which is protected by law.
Thus, it includes:

(1) Defense of the person's home

(2) Defense of rights protected by law
(3) The right to honor (Hence, a slap on the face is considered as unlawful
aggression since the face represents a person and his dignity. It is a
serious, personal attack (Rugas v. People, G.R. No. 147789, Jan. 14, 2004).
(4) The defense of property rights can be invoked if there is an attack upon
the property although it is not coupled with an attack upon the person of
the owner of the premises. All the elements for justification must however
be present (People v. Narvaez, G.R. Nos. L- 33466-67, Apr. 20,1983).

Requisites of self-defense

1) Unlawful aggression - U
2) Reasonable necessity of the means employed to
prevent or repel it - R
3) Lack of sufficient provocation on the part of the
person defending himself-L

Q: What are the effects of self-defense?

A: (1) When all the elements are present - the person defending himself
is free from criminal liability and civil liability and (2) When only a
majority of the elements are present - privileged mitigating
circumstance provided there is unlawful aggression.

Q: What is the nature of an unlawful aggression?

A: For unlawful aggression to be appreciated, there must be an
"actual, sudden and unexpected attack, or imminent danger thereof,
not merely a threatening or intimidating attitude" and the accused
must present proof of positively strong act of real aggression.
 41

Elements of unlawful aggression

(1) There must be a physical or material attack or assault;

(2) The attack or assault must be actual, or, at least, imminent; and
(3) The attack or assault must be unlawful

Two kinds of unlawful aggression

(1) Actual or material unlawful aggression which means an attack with

physical force or with a weapon, an offensive act that positively
determines the intent of the aggressor to cause the injury;

(2) Imminent unlawful aggression which is an attack that is impending or at

the point of happening; it must not consist in a mere threatening attitude
(People v. Mapait, G.R. No. 172606, November 23, 2011

Q: What kind of threat that will amount to unlawful aggression?

A: In case of threat, it must be offensive and strong, positively showing
the wrongful intent to cause injury. It presupposes actual, sudden,
unexpected or imminent danger—not merely threatening and
intimidating action. It is present only when the one attacked faces real
and immediate threat to one's life (People v Maningding, G.R. No.
195665, September 14, 2011)

Q: What is the test for unlawful aggression in self-defense

A: The test for the presence of unlawful aggression under the
circumstances is whether the aggression from the victim put in real peril
the life or personal safety of the person defending himself.

Case: Rustia vs People, G.R. No. 208351, October 5, 2016

Facts: X went to the barangay hall to attend a conciliation meeting over a land
dispute with A. A was accompanied by B and C. Since the barangay captain
was not around, X proceeded to go home but outside the barangay hall
heated argument ensued involving X and A. X was carrying at the time a gun
which was tucked on his waist. B and C grappled with X. When A saw X reached
for his gun, X wrested it from X’s possession, shot and killed X. A invoked the
justifying circumstance of incomplete self defense.

SC: According to them, unlawful aggression manifested itself when Ambrocio reached
for the gun tucked in his waist. Yet, they did not thereby establish that Ambrocio had
really reached for his gun and actually taken it out. xxxxx It is remarkable at least that
none of the three disinterested eyewitnesses saw Ambrocio reaching for the gun first.
Thus, the claim of incomplete self-defense is rejected.

Q: What is the effect if there was a mistake of fact on the part of the
accused?
A: In relation to mistake of fact, the belief of the accused may be
considered in determining the existence of unlawful aggression. There
is self- defense even if the aggressor used a toy gun provided that the
accused believed it to be a real gun
 42

Q: May a person act in defense of his property?

Example: A, thief, tries to run away with your wallet. In order to stop him
from running. You shoot him. Can you claim self-defense by invoking
that there was an unlawful aggression on your property right because
he was taking your wallet. Are you justified in saying: “I have to shoot
him because there was an unlawful aggression on my property rights.

A: NO. Defense of property can give rise to self-defense only if the

attack on one’s property is coupled with an attack on his person.

Q: Can there be self-defense when what is involved is property?

A: If what is to be saved is property ONLY, killing is not justified. To justify
killing, it must be necessary to do it in order to save another life.
If the aggression is on the property, even if there was no attack on
the defender or owner or possessor, defense is proper but not to the
extent of taking life. Killing the aggressor will not be justified because
the means used to repel or prevent the aggression will not then be
reasonable.

REASON: The value of property can never be equated to human life which is
supposed to be priceless.

DOCTRINE OF SELF-HELP – under Art. 429, the law justifies the act of the owner or
lawful possessor of a thing in using such force as necessary to protect his
proprietary or possessory rights, but not to the extent of taking the offender’s life
UNLESS there is danger posed on the person defending himself.

Read: People vs Annibong, 403 SCRA 92; Pp vs Geneblazo, 361 SCRA 572; Pp vs
Gallego, 406 SCRA 6

SECOND ELEMENT: Reasonable necessity of the means employed to prevent or

repel the aggression.

“prevent” --- actual aggression

“repel” ------ a threatened aggression

Note: In preventing or repelling --- you must use reasonable means.

Q: What do you mean by “reasonable means”?

A: (1) the course of action taken is reasonable and (2) the weapon
used to defend must also be reasonable.

Q: What is “course of action taken is reasonable?

A: The offender’s conduct and response to the occasion

Q: When is there reasonable necessity of the means employed?

 43

A: It depends upon the circumstances surrounding the aggression, the

state of mind of the aggressor and the available weapon at the
defender’s disposal. IT CANNOT BE MEASURED BY MATHEMATICAL
EQUATION.

Factors taken into consideration in determining the reasonableness of means

employed by the person defending himself:

(1) Nature and quality of the weapon used by the aggressor.

(2) Physical condition, character, size and other circumstances of both the
offender and defender.
(3) Place and occasion of the assault.

Rule: When a person is attacked – a person will instinctively used the first
available means at his disposal to defend himself – when a person is under
attack --- he is not expected to think cooly and to choose what kind of weapon
he is going to use.

“Reasonableness of the weapon” ---- is not only measured by using a knife

against a fist; a club as against a chaco.

Note: “Reasonable necessity of the means employed does not imply material
commensurability between the means of attack & defense. What the law
requires is “rational equivalence” (Pp vs Gutual, 254 SCRA 37).

Note: you have to consider the 1) size or power of the weapon, 2) the character
of the parties & 3) their relative standing.

THIRD ELEMENT: Lack of sufficient provocation on the part of the person

defending himself.

If you were the one who cause the aggression – no self defense because you
gave provocation. You cannot say that you are totally faultless because you
are partly to be blamed.

Ex: A provokes B, by reason of the provocation, B attacks A, a defends himself

with reasonable means. A cannot claim self-defense.

PRINCIPLES TO REMEMBER:

1. No provocation at all was given to aggressor by person defending himself.

2. Even if provocation was given, it was not sufficient.
3. Even if provocation was sufficient, it was not given by the person
defending himself.
4. Even if provocation was given by person defending himself, it was not the
proximate and immediate to the act of aggression.
5. Sufficient means proportionate to the damage caused by the act, and
adequate to stir one to its commission.

Q: How do you determine whether or not the provocation is sufficient?

 44

A: The provocation that was given in such that it is normal and natural
for a person to react by becoming an unlawful aggressor. For
provocation to be considered serious by the court, the degree must be
sufficient and must at all times be immediate to the unlawful
aggression. (Castanares vs. Court of Appeals, 92 SCRA 567)

Q: A, unlawfully attacked B with a knife. B then took out his gun which
caused A to run away. B, after treating his wounds, pursued A and shot
him. Can B invoke self-defense?

A: No. The unlawful aggression which has begun no longer exists. When
the aggressor runs away, the one making a defense has no more right
to kill or even to wound the former aggressor. In order to justify
homicide on the ground of self-defense, it is essential that the killing of
the deceased by the defendant be simultaneous with the attack
made by the deceased, or at least both acts succeeded each other
without appreciable interval of time.

RULE: The person defending himself cannot be expected to think clearly so as to

control his blow. The killing of the unlawful aggressor may still be justified as long
as the mortal wounds are inflicted at a time when the elements of complete self-
defense are still present

NOTE: The aggression ceases except when retreat is made to take a more
advantageous position to insure the success of the attack begun, unlawful
aggression continues.

Problem:

Q: One night, Ana, a young married woman, was sound asleep in her
bedroom when she felt a man on top of her. Thinking it was her
husband Arman, who came home a day early from his business trip,
Ana let him have sex with her. After the act, the man said, "I hope you
enjoyed it as much as I did." Not recognizing the voice, it dawned
upon Ana that the man was not Arman, her husband. Furious, Ana
took out Arman’s gun and shot the man. Charged with homicide,
Ana denies culpability on the ground of defense of honor, is her claim
tenable? (1998 BQ)

A: No, Lina’s claim that she acted in defense of honor is not tenable
because the unlawful aggression on her honor had already ceased.
Defense of honor as included in self-defense, must have been done to
prevent or repel an unlawful aggression. There is no defense to speak
of where the unlawful aggression no longer exists.

Q: May self-defense be belied and negated by the nature and

number of wounds found on the victim?
A: Yes. the nature and number of wounds on the victim belie the claim
of self-defense.

SC: The victim sustained no less than six (6) stab wounds; two of the
stab wounds were elliptical, on the right side of the chest, severing the
upper lobe of the right lung and the descending aorta, while the other
 45

four (4) stab wounds were located at the right side of the interscapular
area. The number, locations and depth of the wounds sustained by the
victim belie appellant Alfredo's pretension that he killed the victim in
self-defense; the same are proof that Alfredo intended to kill the victim
and not merely to defend himself. (People vs. Gallego, 406 SCRA 6
(2003)

Q: What else would belie self-defense?

A: The flight of the accused negates self-defense. People vs.
Geneblazo, 361 SCRA 572 (2001) - the flight of the accused belies the
claim of self-defense. The accused-appellant admitted that he
recognized SPOl Quiogue after he had stabbed the victim for the
second time. His taking flight and going into hiding instead of
surrendering to SPO1 Quiogue on the spot was highly evidentiary of
guilt, and incompatible with his claim of self-defense. Flight negates
self-defense and indicates guilt. (People vs. Gregorio, 255 SCRA 380
[1996].

Q: May the justifying circumstance of self-defense be invoked at the

same time with the exempting circumstance of accident?
A: No. Self-defense is a defense inconsistent with the exempting
circumstance of accident, in which there is no intent to kill. On the
other hand, self-defense necessarily contemplates a premeditated
intent to kill in order to defend oneself from imminent danger. (Pomoy
vs People, September 29, 2004)

The Anti-Violence Against Women and Their Children Act of 2004 – RA 9262

Q: Battered Woman defined?

A: A battered woman has been defined as a woman "who is
repeatedly subjected to any forceful physical or psychological
behavior by a man in order to coerce her to do something he wants
her to do without concern for her rights."

NOTE: In order to be classified as a battered woman, the couple must go

through the battering cycle at least twice. Any woman may find herself in an
abusive relationship with a man once. If it occurs a second time, and she
remains in the situation, she is defined as a battered woman. (People vs. Marivic
Genosa, 341 SCRA 493 (2000) and 419 SCRA 537 (2004).

Q: Must the battered woman be married to the man?

A: No. Battered women include wives or women in any form of
intimate relationship with men.

Q: How many times must the woman be "battered"?

A: In order to be classified as a battered woman, the couple must go
through the battering cycle at least twice.

Q: What are the 4 characteristics of the battered woman syndrome?

A: The 4 characteristics of the battered woman syndrome are:
1st — The woman believes that the violence was her fault;
 46

2nd — She has an inability to place the responsibility for the violence
elsewhere;
3rd — She fears for her life and/or her children's lives; and
4th — She has an irrational belief that the abuser is omnipresent and
omniscient.

Q: What are the common personality traits of a battered woman?

A: Battered women exhibit common personality traits, such as low self-
esteem, traditional beliefs about the home, the family and the female
sex role; emotional dependence upon the dominant male; the
tendency to accept responsibility for the batterer's actions; and false
hopes that the relationship will improve.

Q: Is the battered woman syndrome characterized by the "cycle of

violence"?
A: Yes. The battered woman syndrome is characterized by the so-
called "cycle of violence."

Q: What are the 3 phases of the "cycle of violence"?

A: The "cycle of violence" has 3 phases, namely:
1st — The tension-building phase;
2nd — The acute battering incident;
and 3rd — The tranquil, loving (or, at least, non-violent) phase.

Q: What is the effect of battery on a woman?

A: Because of the recurring cycles of violence experienced by the
abused woman, her state of mind metamorphoses. Thus, just as the
battered woman believes that she is somehow responsible for the
violent behavior of her partner, she also believes that he is capable of
killing her, and that there is no escape. Battered women feel unsafe,
suffer from pervasive anxiety, and usually fail to leave the relationship.
Unless a shelter is available, she stays with her husband, not only
because she typically lacks a means of self-support, but also because
she fears that if she leaves she would be found and hurt even more.

Note: As a general rule, under Section 26 of the Act, the Battered Woman
Syndrome is a valid defense.

It reads "victim-survivors who are found by the courts to be suffering from

battered woman syndrome do not incur any criminal and civil liability
notwithstanding the absence of any of the elements for justifying circumstances
of self-defense under the RPC. In determination of the state of mind of the
woman who was suffering from battered woman syndrome at the time of the
commission of the crime, the courts shall be assisted by expert
psychiatrists/psychologists."

Rule: In other words, the Battered Woman Syndrome is a valid justifying

circumstance.
 47

Except: As an exception to the general rule, under Section 27 of the Act, the
Battered Woman Syndrome shall not be a valid defense when the woman is
under the influence of alcohol, any illicit drug, or any other mind-altering
substance.

Q: Who are those women who can avail of BWS as a defense?

A: (1) Wife; (2) Former wife; (3) Against a woman with whom the person
has or had a sexual or dating relationship; or (4) With whom he has a
common child, or against her child whether legitimate or illegitimate,
within or without the family abode

NOTE: The "dating relationship" that the law contemplates can exist even
without a sexual intercourse taking place between those involved.

DEFENSE OF RELATIVES

Requisites of defense of relatives

1. Unlawful aggression.
2. Reasonable necessity of the means employed to prevent or repel it.
3. Relative being defended gave no provocation.

NOTE: The law gives a leeway on the third requisite, even if the relative being
defended gave the provocation, if the relative making the defense had no part
therein, he can successfully invoke the defense of relative.

Relatives covered under defense of relatives:

1) Spouse;
2) Ascendants;
3) Descendants;
4) Legitimate, adopted brothers or sisters or relatives by affinity in the same
degrees (namely: ascendants-in-law; descendants-in-law, and siblings-in-
law)
5) Relatives by consanguinity within the 4th civil degree.

DEFENSE OF STRANGER

Requisites of defense of strangers:

(1) Unlawful aggression

(2) Reasonable necessity of the means employed to prevent or repel it
(3) Person defending be not induced by revenge, resentment or other evil
motive
 48

DEFENSE OF RELATIVES DEFENSE OF STRANGERS

In defense of relatives, even
though the person making
the defense acted out of
some evil motive, he can still
invoke the justifying
circumstance, as long as he
did not contribute to the
unlawful aggression
In defense of strangers, if the
person making the defense
acted out of revenge,
resentment or some evil
motive in killing the
aggressor, he cannot invoke
the justifying circumstance.

AVOIDANCE OF GREATER EVIL OR INJURY

Requisites of state of necessity (El-PC)

a) Evil sought to be avoided actually exists.

b) Injury feared be greater than that done to avoid it.
c) There be no other Practical and less harmful means of
preventing it, and
d) There must be no Contribution on the part of the accused
what caused the evil to arise.

NOTE: The state of necessity must not have been brought about by the
negligence or imprudence by the one invoking the justifying circumstances.

NOTE: Generally, there is no civil liability in justifying circumstances. The civil

liability referred to herein is based not on the act committed but on the benefit
derived from the state of necessity. So the accused will not be civilly liable if he
did not receive any benefit out of the state of necessity. On the other hand,
persons who did not participate in the damage or injury would be civilly liable if
they derived benefit out of the state of necessity.

Case: People vs Punzalan, December 10, 2012

FULFILLMENT OF DUTY

Requisites of fulfillment of duty

1) Accused acted in the performance of a duty or in the lawful

exercise of a right or office.
2) Injury caused or offense committed be the necessary
consequence of the due performance of duty or the lawful exercise
of such right or office.

Problem:

A: Lucresia was robbed of her bracelet in her home. The following day,
Lucresia, while in her store, noticed her bracelet wound around the
right arm of Jun-iun. As soon as the latter left, Lucresia went to a
nearby police station and sought the help of Pat. Willie Reyes. He went
with Lucresia to the house of Jun-Jun to confront the latter. Pat. Reyes
 49

introduced himself as a policeman and tried to get hold of Jun-jun who

resisted and ran away. Pat. Reyes chased him and fired two warning
shots in the air but Jun-Jun continued to run. Pat. Reyes shot him in the
right leg. Jun-Jun was hit and he fell down but he crawled towards a
fence, intending to pass through an opening underneath. When Pat.
Reyes was about 5 meters away, he fired another shot at Jun-Jun
hitting him at the right lower hip. Pat. Reyes brought Jun-Jun to the
hospital, but because of profuse bleeding, he eventually died. Pat.
Reyes was subsequently charged with homicide. During the trial, Pat.
Reyes raised the defense, by way of exoneration, that he acted in the
fulfillment of a duty. Is the defense tenable? (2000 BQ)

A: No. The defense of having acted in the fulfillment of a duty requires

as a condition, inter alia, that the injury or offense committed be the
unavoidable or necessary consequence of the due performance of
the duty (People v. Oanis, G.R. No. L-47722, July 27, 1943). It is not
enough that the accused acted in fulfillment of a duty. After Jun-Jun
was shot In the right leg and was already crawling, there was no need
for Pat Reyes to shoot him further. Clearly, Pat. Reyes acted beyond
the call of duty, which brought about the cause of death of the victim.

OBEDIENCE TO AN ORDER ISSUED FOR SOME LAWFUL PURPOSE

Requisites of obedience to an order issued for some lawful purpose

(OLM)

1) An Order has been issued by a superior

2) Such order must be for some Lawful purpose
3) Means used by the subordinate to carry out said order is
lawful

NOTE: Both the person who gives the order, and the person who executes it,
must be acting within the limitations prescribed by law.

Q: What is the effect if there is good faith on the part of the

subordinate?
A: If he obeyed an order in good faith, not being aware of its illegality,
ha is not liable. However, the order must not be patently illegal. If the
order is patently illegal, this circumstance cannot be validly invoked.

NOTE: Even if the order is patently illegal, the subordinate may still be able to
invoke an exempting circumstance: having acted upon the compulsion of an
irresistible force, or under the impulse of an uncontrollable fear

EXEMPTING CIRCUMSTANCES

Exempted from criminal liability

1. An imbecile or an insane person, unless the latter has acted during a lucid
interval.
 50

2. A child fifteen years of age or under is exempt from criminal liability under R.A.
9344.

3. A person over fifteen years of age and under eighteen, unless he has acted
with discernment in which case, such child shall be subject to appropriate
proceedings in accordance with R.A. 9344.

4. Any person who, while performing a lawful act with due care, causes an injury
by mere accident without the fault or intention causing it.

5. Any person who acts under the compulsion of an irresistible force.

6. Any person who acts under the impulse of an uncontrollable fear of an equal
or greater injury.

7. Any person who fails to perform an act required by law, when prevented by
some lawful or insuperable cause.

Q: In case of exempting circumstances, is there a crime committed?

A: Yes. There is a crime committed but no criminal liability arises from it
because of the complete absence any of the conditions which
constitute free will or voluntariness of the act.

Distinctions between Justifying & Exempting:

Justifying Exempting

>the act is within the bound of the law >the act is criminal

>there is no crime, hence no criminal >there is a crime & a criminal

>since there is no crime, there is no >since there is a crime, there is

Criminal liability & no civil liability a criminal (but exempted) &
Except par. 4 there is a civil liability

>the emphasis of the law is on the >the emphasis is on the actor.

act

Basis: Complete absence of intelligence

Q: What is imbecility? What is insanity?

A: It is a condition of the mind where the offender might be advance
in age but the mental development is comparable to that of a child
between two to seven years old.

Insanity – exists when there is a complete deprivation of intelligence in

committing the act, that is, the accused is deprived of reason, he acts
without the least discernment because there is a complete absence of
power to discern, or there is a total deprivation of freedom of the will.
Mere abnormality of the mental faculties will not exclude imputability
(Pp vs Danao, November 1992)
 51

Note: The burden rests on the accused to establish that fact, for the law
presumes every man to be sane. Hence, in the absence of sufficient evidence
to prove insanity, the legal presumption of one’s sanity stands. (Zosa vs CA,
March 1994)

Note: Art. 800 NCC – presumes every person to be of sound mind, in the
absence of proof to the contrary.

Presumption is in favor of sanity --- The defense must prove that the accused was
insane at the time of the commission of the crime.

NOTE: Mere abnormalities of the mental facilities are not enough.

Problem:

Q: Rosalino stabbed Mrs. Sigua to death in her office. During trial, he

pleaded insanity and presented several witnesses, including doctors
from the National Mental Hospital, who all said that he was suffering
from organic mental disorder secondary to cerebro-vascular accident
or stroke. It appears that he was working in Lebanon a few years back,
and in Riyadh a few months after. While he was in Riyadh, he suffered
a stroke. According to the doctors, this event triggered the mental
disability since when he returned to the Philippines, his attitude had
changed considerably. The prosecution claimed that during the
commission of the crime, it was a lucid interval for Rosalino because
when he was being treated in the mental hospital, he was shouting
that he killed Mrs. Sigua. Can defense of insanity be appreciated?

A: No. Insanity in our law exists when there is a complete deprivation of

intelligence. The statement of one of the witnesses that the accused
knew the nature of what he had done makes it highly doubtful that he
was insane when he committed the act charged. xxxxx Insanity is a
defense in a confession and avoidance and as such must be proved
beyond reasonable doubt. Insanity must be clearly and satisfactorily
proved in order to acquit the accused. In this case, Rosalino has not
successfully discharged the burden of overcoming the presumption
that. he committed the crime as charged freely, knowingly, and
intelligently (People v. Dungo, 199 SCRA 860 and Pp vs Rafanan,
November 1991

Under our jurisdiction, there has been no case that lays down a definite test or
criterion for insanity

Two Test:

1. Cognition test or complete deprivation in committing the act

2. Volition test or a total deprivation of the freedom of the will

Q: What is the nature of insanity as a defense?

A: Insanity is a defense in nature of confession and avoidance and as

such must be adequately proved. The law presumes that all persons
are of sound mind, and that acts are done consciously. xxxxx In the
 52

eyes of the law, insanity exists when there is a complete deprivation of

intelligence in committing the act. Proof of the existence of some
abnormality of the mental faculties will not exclude imputability, if it
can be shown that the offender was not completely deprived of
freedom and intelligence (People vs Belonio, May 27, 2004)

Q: What are effects of insanity of the accused?

A: The following are the effects:

(1) At the time of the commission of the crime - exempted

(2) During trial - proceedings suspended until the mental capacity

of the accused is restored to afford him fair trial, accused is committed
to a hospital.

(3) After judgment or while serving sentence - execution of

judgment is suspended, the accused is committed to a hospital. The
period of confinement in the hospital is counted for the purpose of the
prescription of the penalty.

MINORITY

Note: Paragraphs 2 and 3 of Art. 12 of the Revised Penal Code have been
amended by RA 9344 (a consolidation of Senate Bill No. 1402 and House Bill No.
5065) which was finally passed by the Senate and House of Representatives on
March 22, 2006. RA 9344 took effect on May 21, 2006. Hence, the amendments
above stated.

Q: What is discernment?
A: Discernment is the mental capacity to understand the difference
between right and wrong including the capacity to fully appreciate
the consequences of his unlawful act. Such capacity may be known
and be determined by taking into consideration all the facts and
circumstances afforded by the records in each case, the manner the
crime was committed, and the conduct of the offender after its
commission.

JUVENILE JUSTICE AND WELFARE ACT OF 2006 - RA 9344

Child in conflict with the law — refers to a child who is alleged as, accused of, or
adjudged as, having committed an offense under Philippine laws.

NOTE: The child in conflict with the law shall enjoy the presumption of minority.
He/she shall enjoy all the rights of a child in conflict with the law until he/she is
proven to be 18 years old or older.
 53

MINIMUM AGE OF CRIMINAL RESPONSIBILITY AND TREATMENT OF CHILD BELOW AGE OF

RESPONSIBILITY

AGE BRACKET CRIMINAL LIABILITY TREATMENT

15 years old or below Exempt The child shall be subjected to an

intervention program.

Above 15 but blow 18, who acted Exempt The child shall be subjected to an
without discernment intervention program.

Above 15 but below 18, who Not exempted Such child shall be subjected to the
acted with discernment. appropriate proceedings in accordance with
RA 9344.

Note: The exemption from criminal liability in the cases describe above does not include exemption from civil liability
, which shall be enforced in accordance with existing laws.

Note: Age of criminal responsibility is the age when a child, fifteen (15) years
and one (1) day old or above but below eighteen (18) years of age, commits
an offense with discernment (Revised Rules on Children in Conflict with the Law
–A.M. No. 02-1-18-SC)

Note: The child in conflict with the law shall enjoy the presumption of minority
until he/she is proven to be 18 years old or older. (Section 7, par. 1)

Automatic Suspension of Sentence — Once the child who is under 18 years of

age at the time of commission of the offense is 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 law
under suspended sentence, without need of application; Provided, however,
that the suspension of 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/her
guilt. (Sec. 38)

Discernment — mental capacity to fully appreciate the consequences of an

unlawful act. It can be shown by the manner the crime was committed and the
conduct or utterances of the offender after the commission of the offense.

Status Offenses — Any conduct not considered an offense or not penalized if

committed by an adult shall not be considered an offense and shall not be
punished if committed by a child. (Sec. 57, RA 9344)

Exemption from the Application of Death Penalty — The provisions of the

Revised Penal code, as amended, Republic Act No. 9165, otherwise known as
 54

the Comprehensive Dangerous Drugs Act of 2002, and other special laws
notwithstanding, no death penalty shall be imposed upon children in conflict
with the law. (Sec. 59, RA 9344)

Automatic suspension of sentence as provided for in Sec. 38 of R.A. 9344

Once the child who is under 18 years of age at the time of the commission of
the offense is 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 suspension of 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/her guilt.

Upon suspension of sentence and after considering the various circumstances of

the child, the court shall impose the appropriate disposition measures as
provided in the Supreme Court Rule on Juveniles in Conflict with the Law [A.M.
No. 02-1-18-SC, Nov. 24, 2009).

No suspension of sentence when the accused was a minor during the

commission of the crime and was already beyond the age of 21yrs. old at the
time of pronouncement of his guilt.

While Sec. 38 of R.A. No. 9344 provides that suspension of sentence can still be
applied even if the child in conflict with the law is already eighteen (18) years of
age or more at the time of the pronouncement of his/her guilt, Section 40 of the
same law limits the said suspension of sentence until the child reaches the
maximum age of 21. Hence, the accused, who is now beyond the age of
twenty-one (21) years can no longer avail of the provisions of Sections 38 and 40
of R.A. 9344 as to his suspension of sentence, because such is already moot and
academic (People v. Mantalaba, G.R. No. 186227, July 20, 2011 reiterating
People v. Sarcia).

Q: How do you establish that the minor acted with discernment?

A: The manner of committing the crime and the conduct of the
offender before, during and after.

A minor who acts without discernment acts by impulse – no plans. But if

it appears that everything is well coordinated and pre-meditated, it
indicates that there is discernment.

Q: How is age of a child determined?

A: SEC. 7. Determination of Age. — The child in conflict with the law
shall enjoy the presumption of minority. He/She shall enjoy all the rights
of a child in conflict with the law until he/she is proven to be eighteen
(18) years of age or older. The age of a child may be determined from
the child's birth certificate, baptismal certificate or any other pertinent
documents. In the absence of these documents, age may be based
on information from the child himself/herself, testimonies of other
persons, the physical appearance of the child and other relevant
 55

evidence. In case of doubt as to the age of the child, it shall be

resolved in his/her favor.

In Sierra v. People, SC clarified that testimonial evidence of the accused

who claimed the privilege of the mitigating circumstance of minority may be
considered sufficient provided the following conditions concur, namely: “(1) the
absence of any other satisfactory evidence such as the birth certificate,
baptismal certificate, or similar documents that would prove the date of birth of
the accused; (2) the presence of testimony from accused and/or a relative on
the age and minority of the accused at the time of the complained incident
without any objection on the part of the prosecution; and (3) lack of any
contrary evidence showing that the accused's and/or his relatives' testimonies
are untrue.” ( People vs Henry Arpon, December 14, 2011)

EXEMPTION FROM CRIMINAL LIABILITY: STATUS OFFENSES AND OFFENSES NOT

APPLICABLE TO CHILDREN

Exempting provisions under this act

1) Status offenses (Sec. 57) - Any conduct not considered an offense or not
penalized if committed by an adult shall not be considered an offense
and shall not be punished if committed by a child. Example: Curfews for
minors

2) Offenses not applicable to children (Sec. 58) - Persons below eighteen

(18) years of age shall be exempt from prosecution for the crime of:

Vagrancy and prostitution under Sec. 202 of RPC

Sniffing of rugby under Presidential Decree No. 1619

NOTE: Under R.A. 10158, Vagrancy has been

decriminalized but prostitution is still a crime.

3) Under Sec 59 with regard to exemption from the application of death

penalty.

NOTE: R.A. 9346 prohibits the imposition of the death

penalty in the Philippines

Case: Jerwin Dorado vs People, G.R.No. 216671, October 3, 2016

In 2004, Dorado and two others were charged for the crime of Frustrated
Murder for wounding X during a gang war. Dorado was only 16 years old at that
time. In 2006, RA 9344 came into effect. RTC convicted Dorado. CA affirmed it.
No determination was made whether Dorado acted with discernment.

Issue: Whether or not accused Dorado is liable in view of his minority.

SC: Consequently, under R.A. No. 9344, only a child above fifteen (15) years but
below eighteen ( 18) years of age who acted with discernment shall not be
exempted from criminal responsibility. 15 Nevertheless, the said child does not
 56

immediately proceed to trial. Instead, he or she may undergo a diversion, which

refers to an alternative, child-appropriate process of determining the
responsibility and treatment of the CICL without resorting to formal court
proceedings. If the diversion is unsuccessful or if the other grounds provided by
law16 are present, then the CICL shall undergo the appropriate preliminary
investigation of his or her criminal case, and trial before the courts may proceed.

Once the CICL is found guilty of the offense charged, the court shall not
immediately execute its judgment; rather, it shall place the CICL under
suspended sentence. Notably, the suspension shall still be applied even if the
juvenile is already eighteen ( 18) years of age or more at the time of the
pronouncement of his or her guilt. During the suspension, the court shall impose
the appropriate disposition measures as provided in the Supreme Court Rule on
Juveniles in Conflict with the Law. If the disposition measures are successful, then
the court shall discharge the CICL. Conversely, if unsuccessful, then the court
has the following options: (1) to discharge the child, (2) to order execution of
sentence, or (3) to extend the suspended sentence for a certain specified
period or until the child reaches the maximum age of twenty-one (21) years.

xxxxxx

Discernment cannot be presumed. xxxxx Considering that there was no

determination of discernment by the trial court, the Court cannot rule with
certainty that Dorado was criminally responsible. As earlier stated, there can be
no presumption of discernment on the part of the CICL. In the absence of such
determination, it should be presumed that the CICL acted without discernment.

ACCIDENT WITHOUT FAULT OR

INTENTION OF CAUSING IT (DAMNUM
ABSQUE INJURIA.

Conditions necessary to exempt a person from liability under subsection 4 of

Article 12 of RPC
1. That the act causing the injury be lawful; that is, permitted not only by law
but also by regulations.
2. That it be performed with due care.
3. That the injury be caused by mere accident, i.e., by an unforeseen event.
4. That there be no fault or intention to cause the injury.

Note: If not all the conditions necessary are present to exempt from liability, the
act should be considered as: Reckless imprudence, if the act is executed
without taking those precautions of measures which the most common
prudence would require; or Simple imprudence, if it is a mere lack of precaution
in those cases where either the threatened harm is not imminent or the danger is
not openly visible.

Accident

An accident is something that happens outside the sway of our will, and
although it comes about through some act of our will, lies beyond the bounds of
humanly foreseeable consequences. It presupposes a lack of intention to
commit the wrong done.
 57

Problem:

Q: A and B are both security guards. A turned-over to 3 a service

firearm who held it with both hands, with the muzzle pointed at A and
the butt towards B. At that moment, B held opposite the muzzle of the
gun where the trigger is, and almost slip with it while in the act of
gripping and then immediately the gun went off and accidentally
shot A. A was able to recover from the shot. B was then charged with
frustrated homicide. Can B raised the defense of accident to mitigate
his liability?

A: No. It is axiomatic that a person who invokes accident must prove

that he acted with due care. This was belied by the conduct of the
accused when he allegedly received the shotgun from the private
complainant. As he himself admitted, he received the shotgun by
placing his pointer finger, also known as trigger finger because it is
used to squeeze the trigger, inside the trigger guard and over the
trigger itself. Worse, he did so while the barrel of the gun was pointed
at the private complainant. According to him, he knew that it was not
proper for a person to receive a firearm from another by immediately
inserting a finger inside the trigger guard. Likewise, he knew that the
hand-over of a firearm with its barrel pointed the giver or any other
person was not proper. That he did these improper acts despite his
training and experience as a security guard undermines any notion
that he had acted with due c a r e d u r i n g t h e subject incident
(People v. Lanuza G. R. No. 188562, August 17, 2011)

COMPULSION OF IRRISTIBLE FORCE

Irresistible Force - It is a degree of force which is external or physical which

reduces the person to a mere instrument and the acts produced are done
without and against his will.

Requisites of compulsion of irresistible force

1. Compulsion is by means of physical force
2. Physical force must be irresistible
3. Physical force must come from a third person

Nature of physical force required by par. 5

The force must be irresistible to reduce the actor to a mere instrument who acts
not only without will but against his will. The duress, force, fear or intimidation
must be present, imminent and impending and of such a nature as to induce a
well-grounded apprehension of death or serious bodily harm if the act is done. A
threat of future injury is not enough. The compulsion must be of such a character
as to leave no opportunity to the accused for escape or self-defense in equal
combat (People of the Philippines v. Loreno, 130 SCRA 311).

UNCONTROLLABLE FEAR

Requisites of uncontrollable fear

 58

(1) Threat, which causes the fear, is of an evil greater than or at least
equal to that which he is required to commit.

(2) It promises an evil of such gravity and imminence that the

ordinary man would have succumbed to it.

Elements of uncontrollable fear

1) Existence of an uncontrollable fear

2) Fear must be real and imminent
3) Fear of an injury is greater than or equal to that committed

NOTE: A threat of future injury is not enough. The compulsion must be of such
character as to leave no opportunity to the accused for escape or self-defense
in equal combat.

In case of uncontrollable fear, it is necessary that the threat that caused the
uncontrollable fear on the offender must be present, clear and personal. It must
not only be/merely an imagined threat or court Interfered threat.

IRRESISTIBLE UNCONTROLLABLE FEAR

FORCE
A person is A person is compelled by another to
compelled by commit a crime by means of intimidation
another to commit or threat.
a crime by means
of violence or
physical force.
The irresistible The uncontrollable fear may be
force must have generated by a threatened act directed to
been made to a third person such as the wife of the
operate directly accused who was kidnapped, but the evil
upon the person of feared must be greater or at least equal
the accused and to the damage caused to avoid it.
the injury feared
may be of a lesser
degree than the
damage caused by
the accused.

NOTE: The person who used the force or created the fear is criminally and primarily civilly liable, but the
accused who performed the act involuntarily and under duress is still secondarily civilly liable (Art. 101).

Distinction between Irresistible force vs Uncontrollable fear.

PREVENTED BY SOME LAWFUL OR INSUPERABLE CAUSE

Insuperable cause ---- Some motive which has lawfully, morally, or physically
prevented a person to do what the law commands.

Requisites under this exempting circumstance

1. An act is required by law to be done.

2. A person fails to perform such act.
3. Failure to perform such act was due to some lawful or insuperable cause.
 59

XI. MITIGATING CIRCUMSTANCES

Q: What are mitigating circumstances?

A: They are those which if present in the commission of a crime, do not
entirely free the actor from criminal liability but serve only to reduce the
penalty.

Note: Mitigating circumstances serve to reduce the penalty in terms of degree

or period. But, does not erase criminal liability nor change the nature of the
crime

NOTE: Mitigating circumstances must be present prior to or simultaneously with

the commission of the offense, except voluntary surrender or confession of guilt
by the accused (Par. 7)

Classes of Mitigating Circumstances:

a) Ordinary mitigating
b) Privileged mitigating

Distinctions between Ordinary and Privileged Mitigating circumstances.

Ordinary mitigating circumstances can be offset by a

generic aggravating circumstance. A privileged mitigating
circumstance cannot be offset by any aggravating
circumstance;

One ordinary mitigating circumstance if not offset by a

generic aggravating circumstance has the effect of
imposing the minimum penalty. A privileged mitigating
circumstance has the effect of lowering the penalty by one
or two degrees lower than that prescribed by law.

The presence of two or more ordinary mitigating

circumstances without any aggravating circumstance
partake of the nature of a privileged mitigating as the
penalty to be imposed is one degree lower to that
prescribed by law. The rule applies only if the penalty
imposable is divisible. (Art. 64, par, 5, RPC)

Ordinary and privileged mitigating circumstances are

generally applicable to all felonies

Read: Pp vs Geronimo, 290 SCRA 146, Pp vs Lising, 285 SCRA 595, Pp vs Valles,
267 SCRA 103 (Gensan case)

Privileged mitigating circumstances under the RPC

1) When the offender is a minor under 18 years of age (Art. 68)

2) When the crime committed is not wholly excusable {Art. 69)
3) When there are two or more mitigating circumstances and no
aggravating circumstance, the court shall impose the penalty next lower to that
 60

prescribed by law, in the period that it may deem applicable, according the
number and nature of such circumstances (Art. 64, par. 5)
4) Voluntary release of the person illegally detained within 3 days without the
offender attaining his purpose and before the institution of the criminal action
[Art. 268, par. 3)
5) Abandonment without justification by the offended spouse in case of
adultery (Art. 333, par. 3)
6) Concealing dishonor in case of infanticide (Art. 255, par. 2)

INCOMPLETE JUSTIFYING OR EXEMPTING CIRCUMSTANCE

Incomplete justifying/ exempting circumstance means that not all the requisites
to justify the act are present or not all the requisites to exempt from criminal
liability are present.

Effect on criminal liability of the offender of

incomplete justifying circumstances or
incomplete exempting circumstances

If less than a majority of the requisites necessary to justify the act or exempt from
criminal liability are present, the offender shall only be entitled to an ordinary
mitigating circumstance.

If a majority of the requisites needed to justify the act or exempt from criminal
liability are present, the offender shall be given the benefit of a privileged
mitigating circumstance. The penalty shall be lowered by one or two degrees.
When there are only two conditions to justify the act or to exempt from criminal
liability, the presence of one shall be regarded as the majority.

Condition necessary before incomplete

self-defense, defense of relative, or
defense of stranger may be invoked

The offended party must be guilty of unlawful aggression. Without unlawful

aggression, there can be no incomplete self-defense, defense of relatives, or
defense of stranger.

Effect on the criminal liability of the

offender of incomplete self-defense,
defense of relative, or defense of stranger

If only the element of unlawful aggression is present, the other requisites being
absent, the offender shall be given only the benefit of an ordinary mitigating
circumstance.

However, if aside from the element of unlawful aggression another requisite, but
not all, is present, the offender shall be given the benefit of a privileged
mitigating circumstance. In such a case, the imposable penalty shall be
reduced by one or two degrees depending upon how the court regards the
importance of the requisites present or absent.
 61

Not applicable to exempting circumstance of accident

Under Art. 12, par. 4, there are four requisites for the exempting circumstance of
accident. First, a person must be performing a lawful act. Second, such must be
done with due care. Third, an injury was caused to another by mere accident.
Fourth, there is no fault or intention of causing such injury.

If the act was performed with due care but there was fault in causing an injury,
the case will fall under Article 365, felonies by negligence or imprudence. The
effect would be like a mitigating circumstance since said article states that the
penalty will be lower than if the felony was committed intentionally.

If the person is performing a lawful act but has the intention to cause an injury, it
will be an intentional felony, the second and third requisite will no longer apply.

Legal effects of the various age brackets of the offender with respect
to his criminal liability
AGE EFFECT ON CRIMINAL LIABILITY
BRACKET

15 and
under Exempting circumstance
Over 15 Exempting circumstance, if he acted
under 18 without discernment. Mitigating
circumstance, if he acted with discernment

18 to 70 Full criminal responsibility

Over 70 Mitigating circumstance; no imposition of
death penalty; execution of death
sentence if already imposed is suspended
and commuted.

NO INTENTION TO COMMIT SO GRAVE A WRONG

(PRAETER INTENTIONEM)

Application if the resulting felony could be

expected from the means employed

It is necessary that there be a notable and evident disproportion between the

means employed by the offender compared to that of the resulting felony, if the
resulting felony could be expected from the means employed, the
circumstance of praeter intentionem cannot be availed.

Not applicable to felonies by negligence

It Is not applicable because the offender acts without intent The intent in
intentional felonies is replaced by negligence or imprudence.

Factors in order to ascertain the intention

1) The weapon used

2) The part of the body injured
 62

3) The injury inflicted

4) The manner it is inflicted

Not applicable when the offender employed brute force

Example: If the rapist choked the victim, the choking contradicts the claim that
he had no intention to kill the girl.

Mitigating circumstance of lack of intent to

commit so grave a wrong cannot be
appreciated

The mitigating circumstance of lack of intent to commit so grave a wrong as

that actually perpetrated cannot be appreciated where the acts employed by
the accused were reasonably sufficient to produce and did actually produce
the death of the victim

NOTE: Lack of intention to commit so grave a wrong cannot be raised as a

mitigating circumstance under the Anti-Hazing Law.

SUFFICIENT THREAT OR PROVOCATION

Threat need not be offensive and positively strong

Threat should not be offensive and positively strong because if it was, the threat
to inflict real injury is an unlawful aggression which may give rise to self-defense
and thus, no longer a mitigating circumstance.

Provocation

Provocation is any unjust or improper conduct or act of the offended party,

capable of exciting, inciting or irritating anyone.

Requisites of sufficient threat or provocation

1) Provocation must be sufficient.

2) It must originate from the offended party.
3) It must be immediate to the act.

Sufficient threat or provocation as a mitigating

circumstance v. Threat or provocation as an element
of self- defense

As an element of self-defense it pertains to its absence on the part of the person

defending himself while as a mitigating circumstance, it pertains to its presence
on the part of the offended party (People v. CA, G.R No. 103613, Feb. 23, 2001).

Sufficiency depends on:

(1) The act constituting the provocation

(2) The social standing of the person provoked
(3) Time and place provocation took place
 63

Q: L's mother insulted M. M kills N because of the insults. Can M avail of

the mitigating circumstance?
A: No. There is no mitigating circumstance because it was the mother
who insulted her, not L.

NOTE: The liability of the accused is mitigated only insofar as it concerns the
harm Inflicted on the person who made the provocation, but not with regard to
the other victims who did not participate in the provocation (US v. Malabanan,
9 Phil 262).

Reason why the law require that "provocation must be

immediate to the act” (i.e., to the commission of the crime by
the person who is provoked)

If there was an interval of time, the conduct of the offended party could not
have excited the accused to the commission of the crime, he having had time
to regain his reason and to exercise self-control. Moreover, the law presupposes
that during that interval, whatever anger or diminished self-control may have
emerged from the offender had already vanished or diminished.

NOTE: As long as the offender at the time he committed the felony was still
under the influence of the outrage caused by the provocation or threat, he is
acting under a diminished self-control. This is the reason why it is mitigating.
However, there are two criteria that must be taken into consideration:

(1) If from the element of time, there is a material lapse of time stated in
the problem and there is nothing stated in the problem that the effect
of the threat or provocation had prolonged and affected the offender
at the time he committed the crime, then the criterion to be used is
based on time element.

(2) However, if there is that time element and at the same time, facts are
given indicating that at the time the offender committed the crime, he
is still suffering from outrage of the threat or provocation done to him,
then, he will still get the benefit of this mitigating circumstance.

VINDICATION OF A GRAVE OFFENSE

NOTE: This has reference to the honor of a person. It concerns the good names
and reputation of the individual (People v. Ampar, 37 Phil. 201).

Requisites of vindication of a grave offense

1) Grave offense has been done to the one committing the

felony, his spouse, ascendants, descendants, legitimate, natural or
adopted brothers or sisters, or relatives by affinity within the same
degree.
2) A felony is committed in vindication of such grave offense.
 64

NOTE: The vindication need not be done by the person upon whom the grave
offense was committed or who was offended by the wrong done by the
offended party.

"Offense" contemplated

The word offense should not be construed as equivalent to crime. It is enough

that what was done was wrong.

Factors to be considered in determining whether the wrong is grave or not

1. Age
2. Education
3. Social status

Lapse of time allowed between the

vindication and the doing of the grave
offense

The word "immediate" in par. 5 is not an accurate translation of the Spanish text
which uses the term "proximo." A lapse of time is allowed between the
vindication and the doing of the grave offense. It is enough that:

(1) The offender committed the crime;

(2) The grave offense was done to him, his spouse, his ascendant or
descendant or to his brother or sister, whether natural, adopted or
legitimate
(3) The grave offense is the proximate cause of the commission of the
crime

SUFFICIENT VINDICATION OF GRAVE OFFENSE

THREAT OR
PROVOCATION
It is made directly The grave offense may be committed also against the
only to the person offender's relatives mentioned in the law.
committing the
felony.
The cause that The offended party must have done a grave offense
brought about the against the offender or his relatives mentioned in the law.
provocation need
not be a grave
offense.
It is necessary that The vindication of the grave offense may be proximate
the provocation or which admits of interval of time between the grave offense
threat immediately committed by the offended party and the commission of
preceded the act. the crime of the accused.
There must be no
interval of time
between the
provocation and the
commission of the
crime.

PASSION OR OBFUSCATION
Passion and obfuscation refer to emotional feeling which produces excitement
so powerful as to overcome reason and self-control. It must come from prior
 65

unjust or improper acts. The passion and obfuscation must emanate from
legitimate sentiments.

Elements of passion or obfuscation as a mitigating circumstance

(1) Accused acted upon an impulse

(2) Impulse must be so powerful that it naturally produced passion or
obfuscation in him.

NOTE: The passion or obfuscation should arise from lawful sentiments in order to
be mitigating.

Requisites of passion or obfuscation

1) That there is an act, both unlawful and sufficient to produce

such a condition of mind.

2) That the said act which produced the obfuscation was not
far removed from the commission of the crime by a considerable
length of time, during which the perpetrator might recover his
natural equanimity.

Applicable rule when the three mitigating circumstances of

sufficient threat or provocation (par. 4), vindication of a grave
wrong (par. 5} and passion or obfuscatlon (par. 6} are present

Rule: If the offender is given the benefit of paragraph 4, he cannot be given the
benefit of paragraph 5 or 6, or vice-versa. Only one of the three mitigating
circumstances should be given in favor of the offender.

Except: If the mitigating circumstances under paragraphs 4, 5 and 6 arise from

different sets of facts, they may be appreciated together, although they may
have arisen from one and the same case.

Circumstance where passion or obfuscation is not a mitigating circumstance – if

act is committed in the spirit of: Lawlessness or Revenge

Appreciation of passion and obfuscation as a litigating circumstance

It may be appreciated even if the reported acts causing obfuscation was not
true, as long as it was honestly and reasonably believed by the accused to be
true (People v. Guhiting, 88 Phil. 672)

PASSION/OBFUSCATION PROVOCATION
The provocation comes from the injured
It is produced by an party
impulse which may cause
provocation
It must immediately precede the
The offense need not be commission of the crime.
immediate. It is only
required that the influence
thereof lasts until the
moment the crime is
committed
 66

PASSION IRRESISTIBLE FORCE

OBFUSCATION
Mitigating Exempting circumstance
circumstance
- ...
It cannot give rise to It requires physical force.
irresistible force
because passion or
obfuscation has no
physical force.
The passion or It must come from a third person.
obfuscation is on the
offender himself

It must arise from The force used is unlawful

lawful sentiments.

Invocation of passion or obfuscation

As a rule, passion or obfuscation can only be used as a mitigating circumstance.

However, under Art. 247 (Death or Physical Injuries under Exceptional
Circumstances), it may be used as an exempting circumstance, if an injury is
inflicted other than serious physical injuries and killing.

VOLUNTARY SURRENDER

Q: What are the elements of voluntary surrender?

A: For voluntary surrender to be appreciated, as a mitigating
circumstance, the following elements should be present:

a)The offender has not been actually arrested whether or not a

warrant of arrest had been issued;
b)He surrendered himself to a person in authority; and,
c)The surrender must be voluntary, i.e., spontaneous and not forced by
circumstances. There must be an intent to submit oneself to the
authorities, either because he wishes to save them from the trouble
and expense necessarily incurred in his search or capture or to show
remorse on his part.

Surrender must be spontaneous – shows his interest to surrender unconditionally

to the authorities.

Spontaneous – emphasizes the idea of inner impulse, acting without external

stimulus. The conduct of the accused, not his intention alone, after the
commission of the offense, determines the spontaneity of the surrender.

Example: Surrendered after 5 years, not spontaneous anymore.

Case: The policemen looked for him. When the police saw him, he did not resist
arrest or deny his criminal act SC: this cannot be equated to VS (Pp vs
Rebamonta, en banc, April 1999)
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The mitigating circumstance of voluntary surrender cannot be considered in

favor of the accused where he was actually arrested by the police and he
merely submitted himself to their authority. (People vs. Ospig, 416 SCRA 32) If the
accused gave himself up to the police when he was served the warrant of
arrest, such surrender is not mitigating.

Note: Voluntary surrender cannot be appreciated where the accused fled

immediately after the killing and took him more than a month- and-a-half to
surrender to the authorities. (People vs. Almendras, 372 SCRA 737)

TO WHOM VOLUNTARY SURRENDER SHOULD BE MADE:

Person in authority — one who is directly vested with jurisdiction which is the
power to govern and to execute the laws, whether as an individual or a
member of some court or governmental corporation, board or commission. (Art.
152 RPC)

Agent of a person in authority — one who by direct provision of the law or by

election or by appointment by competent authority is charged with the
maintenance of public order and the protection and security of life and
property and any private person who comes to the aid of a person in authority
(art. 152 as amended by RA 1978)

Q: A killed a man. A sent the murder weapon to the police. Is this

surrender?
A: No. A should surrender himself not the weapon.

Q: A committed a crime. The relatives of the victim were out there

looking for him. No warrant of arrest was issued. He surrendered to a
kagawad who in turn turned over to him the police.
A: SC: Whether the accused’ reason for surrendering either for fear of
reprisal from victim’s relatives or his knowledge that he was already a
suspect does not gainsay the spontaneity of the surrender nor alter the
fact that by giving himself up, he saved the State the time & trouble of
searching for him until arrested. ---SB Members, kagawads and even
members of the Lupong Tagapamayapa are now considered as
person in authority not merely agents of persons in authority.
(Pp vs Sion, 277 SCRA 127)

Case: Ruben del Castillo vs People, January 30, 2013

Voluntary surrender may be done in another municipality

The law does not require that the perpetrator of an offense, to be entitled to the
mitigating circumstances of voluntary surrender, must give himself up to the
authorities in the municipality where the offense was committed. (People vs.
Magallanes, July 9, 1997, 275 SCRA 222)
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Read: Pp vs Basite, October 2, 2003; Ladiana vs People, 393 SCRA 419 – the
accused who had gone to the police station to report the shooting incident did
not evince any desire to admit responsibility for the killing – no VS

Q: Supposing that after the accused met a vehicular accident causing

multiple homicide because of reckless imprudence, he surrenders to
the authorities immediately thereafter, will his surrender mitigate his
liability because of Art. 13?

A: No. In cases involving felonies committed by means of culpa, the

court is authorized under Art. 365 to impose a penalty upon the
offender without regard to the rules on mitigating and aggravating
circumstances.

Case: Rosario de Vera vs Geren de Vera, April 6, 2009

VOLUNTARY PLEA OF GUILT

Q: What are the elements of voluntary plea of guilt? It must be:

A: (1) Made in open court; (2) spontaneously and unconditionally; and
(3) prior to the presentation of the evidence of the prosecution.

Q: Why mitigating?
A: Voluntary plea of guilt is mitigating because it is an act of
repentance and respect for the law. It indicates a moral disposition in
the accused favorable to his reform.

The accused must be acquitted if the only evidence of his guilt is his improvident
plea due to the prodding of his PAO lawyer. (People vs. Mendoza, March 1994)

Q: May voluntary plea of guilt and voluntary surrender be both

considered in one case?
A: Yes. These two circumstances are separate and distinct from each
other. They do not arise out of the same facts and circumstances,
hence, will entitle the offender to two mitigating circumstances when
both are present.
Read: (People vs. Montinola, 360 SCRA 631)

Q: If the accused escapes from the scene of the crime in order to seek
advice from a lawyer, and the latter ordered him to surrender
voluntarily to the authorities, which the accused followed by
surrendering himself to the municipal mayor, will his surrender be
considered mitigating?
A: The answer is yes, because he fled to the scene of a crime not to
escape but to seek legal advice.

Plea of guilty not applicable to all crimes ----- A plea of guilty is not mitigating in
culpable felonies and in crimes punished by special laws.
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Conditional plea of guilty ------ To be mitigating, the plea of guilty must be

without conditions. But conditional plea of guilty may still be mitigating if the
conditions imposed by the accused are found to be meritorious.

Q: Upon learning that the police wanted him for the killing of Polistico,
Jeprox decided to visit the police station to make inquiries. On his way,
he met a policeman who immediately served upon him the warrant for
his arrest. During the trial, in the course of the presentation of the
prosecution's evidence, Jeprox withdrew his plea of not guilty. Can he
invoke the mitigating circumstances of voluntary surrender and plea of
guilty? (1992 BQ)

A: Jeprox is not entitled to the mitigating circumstance of voluntary

surrender as his going to the police station was only for the purpose of
verification of the news that he is wanted by the authorities. In order to
be mitigating, surrender must be spontaneous and that he
acknowledges his guilt.

Neither is plea of guilty a mitigating circumstance because it was a

qualified plea. Besides, Art. 13(7) provides that confession of guilt must
be done before the prosecution had started to present evidence.

PHYSICAL DEFEECT

Physical defect --- A person's physical condition, such as being deaf and dumb,
blind, armless, cripple, or stutterer, whereby his means of action, defense or
communication with others are restricted or limited. The physical defect a
person may have must have a relation to the mission of the crime.

Requisites of physical defect

(1) The offender is deaf and dumb, blind or otherwise suffering

from some physical defect
(2) Such physical defect restricts his means of action, defense, or
communication with his fellow beings

Problem:

Q: Supposed X is deaf and dumb and he has been angered, he

cannot talk so what he did was, he got a piece of wood and struck
the fellow on the head. X was charged with physical injuries. Is X
entitled to a mitigating circumstance by reason of his physical defect?

A: Yes, the Supreme Court held that being a deaf and dumb is
mitigating because the only way to vindicate himself is to use his force
because he cannot strike back by words.

ILLNESS OF THE OFFENDER

Requisites of illness of the offender

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(1) Illness of the offender must diminish the exercise of will power;
(2) Such illness should not deprive the offender the : consciousness of his
acts.

Note: If the illness not only diminishes the exercise of the offender’s will power
but deprives him of the consciousness of his acts, it becomes an exempting
circumstance to be classified as insanity or imbecility.

SIMILAR AND ANALOGOUS CIRCUMSTANCE

Examples of analogous circumstances

1) The act of the offender of leading the law enforcers to the place
where he buried the instrument of the crime has been considered as
equivalent to voluntary surrender.

2) Stealing by a person who is driven to do so out of extreme poverty is

considered as analogous to incomplete state of necessity (People v.
Macbul, 74 Phil. 436), unless he became impoverished because of his own
way of living his life, i.e. he had so many vices.

3) Defendant who is 60 years old with failing eyesight is similar to a case of a

person over 70 years of age (People v. Reantillo and Ruiz, C.A. G.R. No.
301, July 27,1938).

4) Impulse of jealous feeling, similar to passion and obfuscation.

5) Voluntary restitution of property, similar to voluntary surrender.

6) Outraged feeling of the owner of animal taken for ransom is analogous to

vindication of grave offense.

7) Esprit de corps is similar to passion and obfuscation.

8) Wartime state of confusion resulting in illegal possession of firearm after
the liberation (People v. Quemuel, 76 Phil 135), as being similar to lack of
intent to commit so grave a wrong.

9) Testifying for the prosecution without being discharged from the

information (People v. Narvasca, et al., G.R. No. L-28107, March 15, 1977],
as being like a plea of guilty.

10)Acting out of embarrassment and fear caused by the victim because of

gambling debts of the accused (People v. Ong, et a!., G.R. No. L-34497,
Jan. 30,1975), as akin to passion or obfuscation.

11)Retaliating for having been assaulted during a public dance where the
accused was well known and respected (People v. Libria, 95 Phil. 398), as
similar to vindication.

The significance of Art. 13, Par. 10 (similar and analogous circumstances) is that
even though a particular circumstance does not fall under any of the
enumerated circumstances in Art. 13, the court is authorized to consider in favor
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of the accused "any other circumstance of a similar nature and analogous to

those mentioned.

XII. AGGRAVATING CIRCUMSTANCES

Q: What are AGGRAVATING CIRCUMSTANCES?

A: They are those which, if attendant in the commission of the crime,
serve to increase the penalty without, however, exceeding the
maximum of the penalty provided by law for the offense.

Basis of aggravating circumstances.

In contrast to mitigating circumstances which are based on the diminution of

the elements of dolo or the lesser degree of perversity of the offender,
aggravating circumstances are based on the greater perversity of the offender
as manifested by the time of the commission of the offense, the place, the
means, ways or methods used in the commission of the felony, his relationship
with the offended party or other personal circumstances.

Four kinds of aggravating circumstances.

1) Generic — Those that can generally apply to all crimes. Example —

Dwelling, nighttime, or recidivism.

In Article 14, the circumstances in paragraphs NOS. 1, 2, 3 (dwelling), 4, 5, 6, 9, 10,

14, 18, 19, and 20, except "by means of motor vehicles," are generic
aggravating circumstances.

2) Specific — Those that apply only to particular crimes. Example —

Ignominy in crimes against chastity or cruelty and treachery in crimes
against persons.

In Article 14, the circumstances in paragraphs Nos. 3 (except dwelling), 15,16,17

and 21 are specific aggravating circumstances.

3) Qualifying — Those that change the nature of the crime. Example —

Alevosia (treachery) or evident premeditation qualifies the killing of a
person to murder or abuse of confidence (par 4) makes the crime of theft
qualified (Art. 310)

Article 248 enumerates the qualifying aggravating circumstances which qualify

the killing of person to murder.

4) Inherent — Those that must of necessity accompany the commission of

the crime or those that are already a part of the commission of the felony
and do not have the effect of increasing the penalty. Example: Abuse of
public office (par. 1) in crime of bribery in Art. 210; breaking a wall (par 19)
or unlawful entry (par 18) in robbery committed by force upon things (Art.
299 and Art. 302); evident premeditation in robbery, theft, estafa, adultery
and concubinage.
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5) Special or those that cannot be offset by an ordinary mitigating

circumstance and has the result of imposing the penalty in the maximum
period.

Examples: Quasi-recidivism (Art. 160); Complex crime (Art. 48); Error in

personae (Art. 49); Taking advantage of public position and membership in an
organized or syndicated crime group

NOTE: Under Sec. 8 and 9, Rule 110 of the Revised Rules of Criminal Procedure,
aggravating circumstances must be alleged in the information or complaint;
otherwise, they cannot be properly appreciated

Qualifying aggravating circumstance distinguished from generic aggravating

circumstance.

1) The effect of a generic aggravating circumstance, not offset by any

mitigating circumstance, is to increase the penalty which should be
imposed upon the accused to the maximum period, but without
exceeding the limit prescribed by law; while that of a qualifying
circumstance is not only to give the crime its proper and exclusive name
but also to place the author thereof in such a situation as to deserve no
other penalty than that specially prescribed by law for said crime. (People
v. Bayot, 64 Phil. 269, 273)

2) A qualifying aggravating circumstance cannot be offset by a mitigating

circumstance; a generic aggravating circumstance may be
compensated by a mitigating circumstance.

Aggravating circumstances which do not have the effect of increasing the

penalty.

1. Aggravating circumstances (a) which in themselves constitute a crime

specially punishable by law, or (b) which are included by the law in defining a
crime and prescribing the penalty therefor shall not be taken into account for
the purpose of increasing the penalty. (Art. 62, par. 1)

Examples: "That the crime be committed by means of x x x fire, x xx explosion"

(Art. 14, par. 12) is in itself a crime of arson (Art. 321) or crime involving
destruction. (Art. 324) It is not to be considered to increase the penalty for the
crime of arson or for the crime involving destruction.

"That the act x x x be committed in the dwelling of the offended party"

(Art. 14, par. 3) or "that the crime be committed after an unlawful entry" (Art. 14,
par. 18), or "that as a means to the commission of a crime a wall, roof, floor,
door, or window be broken (Art. 14, par. 19) is included by Article 299 in defining
robbery in an inhabited house. It shall not be taken into account for the purpose
of increasing the penalty for that kind of robbery.

2. The same rule shall apply with respect to any aggravating

circumstance inherent in the crime to such a degree that it must of necessity
accompany the commission thereof. (Art. 62, par. 2)
 73

Examples: Evident premeditation is inherent in theft, robbery, estafa,

adultery and concubinage.

Taking advantage of public position is inherent in crimes where the

offenders, who are public officers, committed the crime in the exercise of their
functions, such as in bribery, malversation, etc.

Aggravating circumstances which are

personal to the offenders:

Aggravating circumstances which arise: (a) from the moral attributes of the
offender; or (b) from his private relations with the offended party; or (c) from any
other personal cause, shall only serve to aggravate the liability of the principals,
accomplices, and accessories as to whom such circumstances are attendant.
(Art. 62, par. 3)

Examples:
1) A, with evident premeditation, gave B PI,000 to kill C. B immediately killed
C. Evident premeditation is an aggravating circumstance which arises
from the moral attribute of A. It shall serve to aggravate only the liability of
A, but not that of B.

2) A, stepson of B, killed the latter. C, knowing that A killed B without

justification, buried the dead body of B to prevent the discovery of the
crime. The private relation of A with B shall serve to aggravate only the
liability of A. It shall not serve to aggravate the liability of C, the accessory.
(Art. 19, par. 2)

DISREGARD OF RANK, SEX, AGE OR DWELLING

Par. 3 provides for four aggravating circumstances which, if present in the same
case, should be considered independently of each other and numerically
reckoned accordingly (People v. Santos, et al., 91 Phil. 320).

Ways in committing the aggravating circumstance under this paragraph

The act be committed:

(1) With insult or In disregard of the respect due to the offended party on
account of his: Rank, Age, Sex (RAS)

(2) That it be committed in the dwelling of the offended party, if the latter has
not given sufficient provocation.

"With insult or in disregard "

In the commission of the crime, the accused deliberately intended to offend or

insult the sex or age of the offended party.

Rank
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It refers to official, civil, or social position or standing. The designation or title of

distinction used to fix the relative position of the offended party in reference to
others. There must be a difference in the social condition of the offender and
the offended party.

Age

Age applies in cases where the victim is of tender age or is of old age. It applies
when the offender is the father, mother, son or daughter of the offended party.

Sex

Sex refers to female sex, not to male sex.

When aggravating circumstance of disregard of

rank, age, sex not considered for the purpose of
increasing penalty

1. When the offender acted with passion or obfuscation (All three

circumstances)

2. When there exists a relationship between the offended party and the
offender (circumstance of sex only), e.g. parricide, rape, abduction and
seduction

3. When the condition of being a woman is indispensable in the commission

of the crime.

NOTE: Disregard of rank, age or sex is essentially applicable only to crimes

against honor or persons. They are not taken into account in crimes against
property. They do not apply to the special complex crime of robbery with
homicide which is classified as crime against property.

DWELLING

Dwelling is a building or structure exclusively used for rest or comfort includes

temporary dwelling, dependencies, foot of the staircase and enclosure of the
house. It does not mean the permanent residence or domicile of the offended
party or that he must be owner thereof. He must, however, be actually living or
dwelling therein even for a temporary duration or purpose.

When dwelling is not aggravating

1. When the owner of the dwelling gave sufficient and immediate

provocation.

2. When the offender and the offended party are occupants of the same
house.

4. In the crime of robbery by use of force upon things.

5. In the crime of trespass to dwelling.

6. The victim is not a dweller of the house.

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7. When both the offender and the offended party are occupants of the
same house except in case of adultery in the conjugal dwelling, the same is
aggravating; however, if one of the dwellers therein becomes a paramour, the
applicable aggravating circumstance is abuse of confidence.

ABUSE OF CONFIDENCE OR OBVIOUS UNGRATEFULNESS

NOTE: These are two separate aggravating circumstances.

Abuse of confidence

This circumstance exists only when the offended party has trusted the offender
who later abuses such trust by committing the crime.

Requisites of abuse of confidence

(1) The offended party had trusted the offender.

(2) The offender abused such trust by committing a crime
against the offended party
(3) The abuse of confidence facilitated the commission of the
crime

NOTE: The confidence between the parties must be immediate and personal, as
would give the accused the advantage or make it easier for him to commit the
crime. The confidence must be a means of facilitating the commission of a
crime.

Abuse of confidence is inherent in the following crimes

(1) Malversation (Art. 217)

(2) Qualified Theft (Art. 310)
(3) Estafa by conversion or misappropriation (Art 315)
(4) Qualified Seduction (Art. 337)

NOTE: The ungratefulness must be such clear and manifest ingratitude on the
part of the accused.

NIGHTTIME, UNINHABITED PLACE OR BY A BAND

Consideration of the circumstances

These circumstances should be considered separately.

Instances when nighttime, uninhabited place or band are considered

aggravating

When:

1) It facilitated the commission of the crime.

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2) It especially sought for by the offender to ensure the commission of the

crime or for the purpose of impunity.
3) The offender took advantage thereof for the purpose of impunity.

NOTE: "Especially sought" means that the offender sought it in order to realize the
crime with more ease.

"Impunity" means to prevent the offender from being recognized or to secure

himself against detection and punishment.

Night time

Nigh time or nocturnity is a period from after sunset to sunrise, from dusk to
dawn. It is necessary that the commission of the crime was commenced and
completed at night time.

Darkness of the night makes nighttime an aggravating circumstance. Hence

when the place of the crime is illuminated or sufficiently lighted, nighttime is not
aggravating. It is also necessary that the commission of the crime was begun
and completed at nighttime. Hence, where the series of acts necessary for its
commission was begun at daytime and was completed that night (People v.
Luchico, 49 Phil. 689), or was begun at night and consummated the following
day (U.S. v. Dowdell, Jr., et a!., 11 Phil 4), the aggravating circumstance of
nighttime was not applied.

NOTE: Lighting of a matchstick or use of flashlights does not negate the

aggravating circumstance of night time. It must be shown that the offender
purposely sought the cover of the darkness to commit the crime, or that the
nighttime facilitated the commission of the crime.

Reasons why night time is considered aggravating:

(1) During night time, recognition of the accused is harder.

(2) Harder for the victim to defend himself.
(3) Night time provides security for the accused.
(4) Mere presence of darkness gives others anxiety or fear.

Rule: Nighttime is absorbed in treachery

Except: Where both the treacherous mode of attack and nocturnity were
deliberately decided upon, they can be considered separately If such
circumstances have different factual bases.

Uninhabited place (despoblado)

It is where there are no houses at all, a place at a considerable distance from

town or where the houses are scattered at a great distance from each other. It
is not determined by the distance of the nearest house to the scene of the
crime but whether or not in the place of the commission of the offense there
was a reasonable possibility of the victim receiving some help.

Instances when uninhabited place is aggravating

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To be aggravating, it is necessary that the offender took advantage of the

place and purposely availed of it as to make it easier to commit the crime. The
offender must choose the place as an aid either:

1) To an easy and uninterrupted accomplishment of their criminal designs; or

2) To insure concealment of the offense

BAND

It means that there are at least four armed malefactors acting together in the
commission of the offense.

The RPC does not require any particular arms or weapons, so any instrument or
implement which, by reason of intrinsic nature or the purpose for which it was
made or used by the accused, is capable of inflicting serious injuries.

The aggravating circumstance of by a band is considered in crimes against

property and in crimes against persons. This aggravating circumstance is not
applicable in crimes against chastity.

AID OF ARMED MEN

When such circumstance is present

It is present when the crime it is attached to is committed with the aid of:

1) Armed men , or
2) Persons who insure or afford impunity

Requisites

1) That armed men or persons took part in the commission of the crime,
directly or indirectly

2) That the accused availed himself of their aid or relied upon them when
the crime is committed,

NOTE: Arms is not limited to firearms. Bolos, knives, sticks and stones are included.
Aid of armed men includes armed women.

Circumstances when aid of armed men is

not considered as an aggravating
circumstance

(1) When both the attacking party and the party attacked were equally armed

(2) When the accused as well as those who cooperated with him in the
commission of the crime acted under the same plan and for the same
purpose.
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(3) The casual presence of the armed men near the place where the crime was
committed when the accused did not avail himself of their aid or relied upon
them to commit the crime.

Q: What aggravating circumstance will be considered if there are four

armed men?

A: If there are four armed men, aid of armed men is absorbed in

employment of a band. If there are three armed men or less, aid of
armed men may be the aggravating circumstance.

RECIDIVISM

Q: What are the different forms of Habituality?

A: (1) Recidivism (Par. 9); (2) Reiteracion (Par. 10); (3) Habitual
Delinquency (Par. 5, Art. 62); and, (4) Quasi-Recidivism (Art. 160)

Q: Who is a recidivist?
A: 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.

Requisites:

1. That the offender is on trial for an offense;

2. That he was previously convicted by final judgment of
another crime;
2. That both the first and the second offenses are embraced in
the same title of the Code;
3. That the offender is convicted of the new offense.

“At the time of his trial for one crime."

What is controlling is the time of trial, not the time of the commission of the
crime. It is not required that at the time of the commission of the crime, the
accused should have been previously convicted by final judgment of another
crime.

Meaning of "at the time of his trial for one crime." The phrase "at the time of his
trial" should not be restrictively construed as to mean the date of arraignment. It
is employed in its general sense, including the rendering of the judgment. It is
meant to include everything that is done in the course of the trial, from
arraignment until after sentence is announced by the judge in open court.
 79

Take note that the law uses the term “convicted by final judgment” --- so if A
was convicted of homicide but his case was appealed to the CA, and now he
is found guilty of the crime of homicide, he cannot be deemed as a recidivist
because his first case has not attained finality in view of the appeal made. – no
final convicted yet.

Q: Supposing, A was convicted by final judgment of the crime of

physical injuries twenty (20) years ago. In 2012, A is facing the crime of
homicide. Can A be considered as a recidivist?
A: Yes. It is imprescriptible because the law requires only prior
conviction without any time limitation prescribed and hence, is taken
into account no matter how long a time had lapsed between the first
and second convictions.

Q: Suppose A is found guilty of homicide and the judgment has

become final & executory in 2002. But A was granted absolute pardon
by the President. A never spent a day in jail. In 2011, A committed
another crime of physical injuries. Is A considered as a recidivist?
A: Yes, the law does not require service of sentence.---even if he was
pardoned, the pardon may erase the penalty but it will not erase the
fact of conviction.

Q: What is required for recidivism to be appreciated?

A: Recidivism cannot be appreciated where the prosecution failed to
present certified true copies of the judgment of conviction. It is not
cured by the failure of the accused to object to such lack of presen-
tation. Recidivism is an affirmative allegation whenever alleged in the
information and when the accused enters a plea of not guilty to such
information, there is a joinder of issues not only as to his guilt or
innocence but also as to the presence or absence of the modifying
circumstances so alleged. (People vs. Compendio, Jr., 71 SCAD or 259
SCRA)

Effect of pardon to recidivism

Rule: Pardon does not obliterate recidivism, even if it is absolute because it only
excuse the service of the penalty not the conviction.

Except: If the offender had already served out his sentence and was
subsequently extended pardon.

NOTE: If The President extends pardon to someone who already served out the
principal penalty, there is a presumed intention to remove recidivism.

Effect of amnesty to recidivism

Amnesty extinguishes the penalty and its effects, thus it obliterates recidivism.

Recidivism not subject to prescription

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No matter how long ago the offender was convicted, if he is subsequently

convicted of a crime embraced in the same title of the RPC, it is taken into
account as aggravating in imposing the penalty.

REITERACION

Q: What is reiteracion?
A: It is a circumstance where the offender has been previously
punished (has served sentence). The first offense must have been
punished with an equal or greater penalty; or he has committed two or
more crimes previously to which the law attaches a lighter penalty. It
does not require that the offenses be covered under the same title of
the Code.

Requisites of reiteracion or habituality:

1. That the accused is on trial for an offense.

2. That the accused previously served sentence for another
offense to which the law attaches an: equal, or greater penalty, or
for two or more crimes to which the law attaches a lighter penalty
than that for the new offense.

Problem:

Q: A was convicted before & punished for theft (a crime against

property) for which he was sentenced to the penalty of Reclusion
Temporal. Now, A is found guilty of homicide ( a crime against person--
-- it is not embraced in the same title of the RPC). Is there reiteracion?

A: Here Reiteracion applies because he has been previously punished

for another crime for which the law attaches a higher penalty.

Q: Suppose the penalty for the first felony is prision mayor and the
penalty for the new felony is prision mayor also. Is there reiteracion?

A: Reiteracion applies because the law says he has been punished for
a crime to which the law attaches an equal penalty. Either higher or
the same.

Problem:

Q: X in some years ago was found guilty of slight physical injuries – a

light felony and he was sentenced to One day of Arresto Menor. Two
Years later, X was found guilty of Slight Oral Defamation (Crimes
Against Honor). He was sentenced to a penalty of Arresto Menor also.
Now, he is found guilty of Estafa (crimes against property) and he is
punished with the penalty of Reclusion Temporal. Is there reiteracion?

A: Absolutely, he is not a recidivist because the crimes are not

embraced in the same title of the RPC. But is there Reiteracion here?
Ans: Yes, because he has been previously punished for 2 offenses to
which the law attaches a lesser penalty.
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Note: The accused must have been previously punished. If pardon, there is no
reiteracion.

Distinguish between recidivism and reiteracion.

RECIDIVISM REITERACION

Antecedent: Previous conviction by final Service of sentence.

judgment.

Offenses: Under the same title of the Code Need not be under the
same Title

Q: What is QUASI RECIDIVISM?

A: It takes place when a person before serving sentence or while
serving sentence, shall commit another felony.

This is a special aggravating circumstance which imposes the

maximum of the penalty for the new offense. It cannot be offset by
any mitigating circumstance.

Do not be misled by the word "another" felony.

It makes no difference for the purpose of the effect of quasi- recidivism under
Art. 160 of the RPC, whether the crime for which the accused is serving
sentence or about to serve sentence at the time of the commission of the
offense charged, falls under the Code or under a special law.

What is important is that before serving or while serving sentence, the convict
commits a felony (not a crime).

Problem:

Q: X was charged and convicted of Theft. Before serving sentence, he

was arrested for Illegal Possession of Firearms. Is he a quasi-recidivist?
A: He is not a quasi-recidivist because the offense that he committed
before serving sentence is not a felony but a crime. Illegal Possession of
Firearm is a crime punished by PD. 1866 as amended by RA 8294, a
special law. If instead, he committed Falsification, he is a quasi-
recidivist because he committed a felony before serving sentence.

Q: X was charged and convicted of Theft. While serving sentence, he

killed an inmate and was charged with Homicide. Is he a quasi-
recidivist?
A: He is a quasi-recidivist because while serving sentence, he
committed a felony.

Q: What is habitual delinquency?

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a.
A: Habitual delinquency is a special aggravating circumstance for
which is imposed an additional penalty which escalates with the
increase in the number of convictions.

A person is a habitual delinquent if:

a. Within a period of ten (10) years from the date of his release or
last conviction;
b Of the crimes of Falsification, Robbery, Estafa, Theft, SErious or
Less Serious Physical Injuries (FRETSeL),
c. He is found guilty of said crimes a third time or oftener.

The law requires a third conviction. The 2nd conviction must be

committed within 10 years from the last conviction or release from prison; from
the 2nd to the 3rd conviction, the period must not be more than 10 years and so
on. The 10-year period is counted from the date of release if he had been
released when again convicted.

This is a special aggravating circumstance because it is not included in

Article 14 of the Code. It is not an "ordinary" special aggravating circumstance
because its effect is to impose an incremental penalty, that is, an additional
penalty to that imposed for the crime actually committed. But it is not also a
qualifying circumstance because although the increase in the penalty is
significant, it does not change the nature of the offense committed. Therefore, it
must be alleged, otherwise, no additional penalty can be imposed.

An offender can be a recidivist and a habitual delinquent at the same

time if he were convicted for the third time of the crimes of estafa, robbery and
theft which are all within the same title of the Code.

Distinguish between Recidivism and Habitual Delinquency

Recidivism Habitual Delinquency

Convictions: Two are enough Three convictions are necessary.

Crimes: Must be both under Only FRETSEL

the same title of the
RPC

Prescriptions: None as no time limit Prescribes if the 10-year

given between the 1st limit between convictions
& 2nd convictions. exceeded.

Nature: Generic; can be offset Special circumstance; cannot

by any ordinary mitiga- be offset.
ting circumstance.

Information: All must be alleged in the information

IN CONSIDERATION OF A PRICE REWARD OR PROMISE

Basis
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The greater perversity of the offender, as shown by the motivating power itself.
Requisites of "in consideration of a price, reward, or promise"

1. There are at least two principals

a. Principal by inducement
b. Principal by direct participation
2. The price, reward, or promise should be previous to and in
consideration of the commission of the criminal act.

NOTE: The price, reward or promise need not consist of or refer to material
things, or that the same were actually delivered, it being sufficient that the offer
made by the principal by inducement be accepted by the principal by direct
participation before the commission of the offense.

Note: It is appreciated against both the principal by inducement and principal

by direct participation.

BY MEANS OF INNUNDATION, FIRE, POISON, EXPLOSION ETC.

Rules as to the use of fire

1. Intent was only to burn but somebody died - The crime is arson,
the penalty is higher because somebody, died.
2. If fire was used as means to kill - the crime is murder not arson
and fire cannot be appreciated as aggravating circumstance.
3. There was an intention to kill and fire was used to conceal the
crime -there are two separate crimes: arson and murder.

EVIDENT PREMIDITATION

The essence of premeditation is that the execution of the criminal act must be
preceded by cool thought and upon reflection to carry out the criminal intent
during the space of time sufficient to arrive at a calm judgment.

Requisites

1) Determination - the time when the offender determined to

commit the crime.

2) Preparation - an act manifestly indicating that the culprit has

clung to his determination; and

3) Time - a sufficient lapse of time between the determination

and execution, to allow him to reflect upon the consequences of
his act and to allow his conscience to overcome the resolution of
his will.

Reason for requiring sufficient time

The offender must have an opportunity to coolly and serenely think and
deliberate on the meaning and the consequences what he planned to do, an
interval long enough for his conscience and better judgment to overcome his
evil desire.
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Appreciation of evident premeditation in error In personae and aberratio ictus

General Rule: Evident premeditation is not appreciated in error in personae and

aberratio ictus.

NOTE: However, it is not necessary to have the intent to kill a particular

person.

Except:

1) When there is no particular intended victim or particular person to kill.

2) Where the victim belonged to the same class or family designated by the
accused.

GR: Conspiracy generally denotes premeditation.

Except: In implied conspiracy, evident premeditation may not be appreciated,

in the absence of proof as to how and when the plan to kill the victim was
hatched or what time had elapsed before it was carried out

Problem:

A, B, C, D, E, F and G conspired to rob and kill the owner of the house.

F is the stay out house help who paved the way to the others to be
able to enter the house. G is the driver hired and paid to be the get
away vehicle. Several meetings have been made to discuss in detail
how the crime should be perpetrated assigning each role in the
conspiracy. Their first attempt was foiled but in their second attempt
that they consummate the conspiracy.

Q: Can evident premeditation be appreciated?

A: YES. Evident premeditation is INHERENT in Robbery but it may be
appreciated in the special complex crime of Robbery with Homicide.
“Their persistent attempts sufficiently demonstrates how determined
they were to adhere to their agreement despite sufficient lapse of
time. Moreover, that Charito and his cohorts went to great lengths to
hire Joseph to ferry them back and forth to the scene of the crime
shows the sobriety and circumspection surrounding their decision. Such
circumstances therefore show that the crime committed was a
product of intent and coordination among the accused. Hence, the
aggravating circumstance of evident premeditation is present in this
case.” (People vs Olazo et.al. G.R. No. 220761, October 3, 2016)

CRAFT, FRAUD OR DISGUISE

To be appreciated, these circumstances must have facilitated or be taken

advantage of by the offender in the commission of a crime

Craft involves intellectual trickery and cunning on the part of the accused in
order not to arouse the suspicion of the victim.
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Fraud is insidious words or machinations used to induce the victim to act in a

manner which enables the offender to carry out his design.

NOTE: Craft and fraud may be absorbed in treachery if they have been
deliberately adopted as means, methods or forms for the treacherous strategy,
or they may co-exist independently where they are adopted for a different
purpose in the commission of the crime.

Disguise means resorting to any device to conceal identity.

NOTE: The test of disguise is whether the device or contrivance, or even the
assumed name resorted to by the offender was intended to make identification
more difficult.

Necessity that the accused be able to hide

his identity all throughout the commission
of the crime

It is not necessary that the accused be able to hide his identity all throughout
the commission of the crime. The accused must be able to hide his identity
during the initial stage if not all throughout the commission of the crime and his
identity must have been discovered only later on to consider this aggravating
circumstance.

Q: What is the test in order to determine if disguise exist?

A: Whether the device or contrivance resorted to by the offender was

intended to or did make identification more difficult, such as the use
of a mask or false hair or beard. If in spite of the disguise, the offender
was recognized, disguise cannot be aggravating.

ABUSE OF SUPERIOR STRENGTH OR MEANS EMPLOYED TO WEAKEN THE DEFENSE.

Abuse of superior strength is considered whenever there is a notorious inequality

of forces between the victim and the aggressor, assessing a superiority of
strength notoriously advantageous for the aggressor which is selected or taken
advantage of in the commission of the crime (People vs. Bongadillo, 234
SCRA233 [1994]).

Case: People vs Olazo et.al., G.R. No. 220761, October 3, 2016

SC: Meanwhile, to appreciate the qualifying circumstance of abuse of superior

strength, what is to be considered is whether the aggressors took advantage of
their combined strength in order to consummate the offense, e.g., that
excessive force out of proportion to the means of defense available to the
victim was used. 36 In the case at bench, the records disclose that during the
commission of the offense, Nicanor Vallecera was hogtied by three (3) of the
perpetrators, while Erlinda Vallecera, a woman, was successively and fatally
injured using a samurai sword and a long knife. Clearly, the means employed by
the culprits were patently excessive, there being no indication of retaliation from
the spouses Vallecera as their means of defense were greatly, if not absolutely,
diminished. In this regard, the aggravating circumstance of "superior strength" is
properly cognizable.
 86

Abuse of superior strength

considered as aggravating

The aggravating circumstance of abuse of superior strength depends on the

age, size, and strength of the parties. It is considered whenever there is a
notorious inequality of forces between the victim and the aggressor.

NOTE: For abuse of superior strength, the test is the relative strength of the
offender and his victim, and whether or not he took advantage of his greater
strength. Superiority in number does not necessarily mean superiority in strength.
The accused must have cooperated and intended to use or secure advantage
from their superiority in strength (People v. Basas, G.R. No. L-34251, Jan. 30,1982)

Determination of the presence of abuse of

superiority

Abuse of superiority is determined by the excess of the aggressor's natural

strength over that of the victim, considering the position of both and the
employment of means to weaken the defense, although not annulling it. The
aggressor must have taken advantage of his natural strength to insure the
commission of the crime (People v. Salcedo, G.R. No. 178272, March 14, 2011).

"Means to weaken the defense"

It exists when the offended party's resisting power is materially weakened

NOTE: Means to weaken the defense may be absorbed in treachery.

TREACHERY

Treachery (aleviosa) refers to the employment of means, method, or form in the

commission of the crime which tend directly and specially to insure its execution
without risk to himself arising from the defense which the offended party might
make. It means that the offended party was not given the opportunity to
defend himself.

The essence of the qualifying circumstance is the suddenness, surprise and the
lack of expectation that the attack will take place, thus, depriving the victim of
any real opportunity for self-defense while ensuring the commission of the crime
without risk to the aggressor. Likewise, even when the victim was forewarned of
the danger to his person, treachery may still be appreciated since what is
decisive is that the execution of the attack made it impossible for the victim to
defend himself or to retaliate (People v. Villacorta, G.R. No. 186412, September
7, 2011)

Elements of treachery

a) The employment of means of execution that would insure the safety of

the accused from retaliatory acts of the intended victim and leaving the
latter without an opportunity to defend himself
 87

b) The means employed were deliberately or consciously adopted by the

offender (People of the Philippines v. Wenceslao Nelmida, et al, G.R. No.
184500, September 11, 2012)

Test of treachery : The test of treachery is not only the relative position of the
parties but more specifically whether or not the victim was forewarned or
afforded the opportunity to make a defense or to ward off the attack.

Rules regarding treachery

(1) Applicable only to crimes against persons.

(2) Means, methods, or forms insure its execution but need not insure
accomplishment of crime.
(3) The mode of attack must be thought of by the offender, and must not
spring from the unexpected turns of events

NOTE: Treachery cannot co-exist with passion or obfuscation (People v.

Pansensoy, G.R. No. 140634, Sept. 12, 2002).

Q: Is there treachery when the attack is frontal?

A: Although frontal, if the attack was unexpected, and the
unarmed victim was in no position to repel the attack, treachery
can still be appreciated (People v. Pelis, G.R. No. 189328, February
21, 2011).

Appreciation of treachery in error in

personae and aberratio ictus

Treachery is appreciated in error in personae and aberratio ictus, provided that

the offender consciously employed treacherous means to insure the execution
of the crime and to render the victim defenseless.

Appreciation of both evident

premeditation and treachery

Evident premeditation and treachery can co-exist because evident

premeditation refers to the commission of the crime while treachery refers to
the manner employed.

Appreciation of treachery in robbery

with homicide

Treachery can be appreciated in Robbery with homicide even though it is a

crime against property because one of its components is a crime against
person.

Instances that may be absorbed by treachery

1) Abuse of superior strength

2) Aid of armed men
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3) By a band
4) Means to weaken the defense
5) Craft
6) Nighttime

Time when the element of treachery must be present

1) When the aggression is continuous -treachery must be present at the

beginning of the assault.
2) When the assault was not continuous- it is sufficient that treachery was
present when the fatal blow was given.

Q: A followed the unsuspecting victim, B, when he was going home

and thereafter, deliberately stabbed him at the back which
resulted in the falling of B to the ground and thereby was further
attacked by A. Was there treachery?

A: Yes. B was defenseless . He had no opportunity to resist the

attack or defend himself. A employed means which insured the
killing of B and such means assured him from the risk of B's defense.
Stabbing from behind is a good indication of treachery (People v
Yanson, G.R. No. 179195, October 3, 2011)

Case: Rustia vs People, G.R. No. 208351, October 5, 2016

SC: “Thus, it is not sufficient that the victim was unable to defend himself. The
Prosecution must show that the accused consciously adopted such mode of
attack to facilitate the perpetration of the killing without risk to himself.”

IGNOMINY

Ignominy --- It pertains to the moral order, which adds disgrace to the material
injury caused by the crime. Ignominy adds insult to injury or adds shame to the
natural effects of :he crime. Ignominy shocks the moral conscience of man.

Application

Ignominy is applicable in:

a) Crimes against chastity,

b) Less serious physical injuries,
c) Light or grave coercion, and
d) Murder.

No ignominy when a man is killed in the presence of his wife

The circumstance of ignominy was not present because no means employed

nor did any circumstance surround the act tending to make the effects of
crime more humiliating.

Ignominy when a woman is raped in the presence of her husband

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Ignominy can be appreciated. Rape is now a crime is now a crime against

persons (R.A. 8353). Presence of the husband qualifies the crime of rape under
Art. 266.

Ignominy vs Cruelty

IGNOMINY CRUELTY
ignominy refers to Refers to the physical suffering of the
the moral effect of victim purposely intended by the
a crime and it offender
pertains to the
moral order,
whether or not the
victim is dead or
alive.

UNLAWFUL ENTRY

Unlawful entry is aggravating when one who acts, not respecting the walls
erected by men to guard their property and provided for their personal safety,
shows greater perversity, a greater audacity and hence the law punishes him
with more severity.

There is unlawful entry when an entrance is effected by a way not intended for
the purpose.

NOTE: This circumstance is inherent in the crimes of trespass to dwelling and

robbery with force upon things. But it is aggravating in the crime of robbery with
violence against or intimidation of persons.

BREAKING WALL
Requisites
1. A wall, roof, window, or door was broken
2. They were broken to effect entrance

NOTE: It is aggravating only where the offender resorted to any of said means to
enter the house..

Instances where breaking is lawful

1) An officer in order to make an arrest may break open door or window of

any building in which the person to be arrested is or is reasonably believed
to be (Sec. 11, Rule 133 of Rules of Court);
2) An officer if refused admittance may break open any door or window to
execute the search warrant or liberate himself (Sec. 7, Rule 126 of Rules of
Court);
3) Replevin {Sec. 4, Rule 60 of Rules of Court)

Aid of minors

The use of a minor in the commission of the crime shows the greater perversity of
the offender because he is educating the innocent minor in committing a
crime. It is intended to discourage the exploitation of minors by criminals taking
 90

advantage of their irresponsibility and the leniency of the law for the youthful
offender.

Use of motor vehicle considered

The use of motor vehicles in the commission of a crime poses difficulties to the
authorities in apprehending the offenders. This circumstance is aggravating only
when used to facilitate the commission of the offense.

NOTE; If motor vehicle is used only in the escape of the offender, motor vehicle is
not aggravating as the law says that "the crime was committed by means of
motor vehicle."

"Other similar means"

it should be understood as referring to motorized vehicles or other efficient

means of transportation similar to automobile or airplane.

CRUELTY

Q: When is there cruelty?

A: There is cruelty when the wrong done was intended to prolong the
suffering of the victim, causing him unnecessary moral and physical
pain.

Requisites:

(1) The injury caused be deliberately increased by causing other

wrong.
(2) The other wrong be unnecessary for the execution of the
purpose of the offender.

Cruelty not inherent in crimes against persons

In order for it to be appreciated, there must be positive proof that the wounds
found on the body of the victim were inflicted while he was still alive to
unnecessarily prolong physical suffering.

NOTE: In mutilation, outraging 6f a corpse is considered as an aggravating

circumstance, if the victim was already dead when the acts of mutilation were
being performed, this would qualify the killing to murder due to outraging of his
corpse.

Other aggravating circumstances

1) Organized or syndicated crime group

2) Under influence of dangerous drugs

3) Use of unlicensed firearm

ILLEGAL POSSESSION OF FIREARMS AND AMMUNITION

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NOTE; P.D. 1866 was amended by RA 8294 has been superseded by the new
Firearms law (RA 10591).

Use of unlicensed firearm

If homicide or murder is committed with the use of unlicensed firearm, such use
of unlicensed firearm shall be considered as an aggravating circumstance. If an
unlicensed firearm is used to commit a crime other than homicide or murder,
such as direct assault with attempted homicide, the use of unlicensed firearm is
neither an aggravating nor a separate offense (People v. Walpan Ladjaamlam,
GR 136149-51, September 19, 2000).

Q: When is use of unlicensed firearm considered absorbed as an

element of the crime committed?
A: If the use of unlicensed firearm is in furtherance of or incident to, or
in connection with the crime of rebellion or insurrection, sedition or
attempted coup d'etat, such shall be absorbed as an element of the
crimes mentioned (Sec. 1).

Q: If an unlicensed firearm was used to kill a person, can he be held

guilty for a separate offense of illegal possession of firearms aside from
murder or homicide?
A: No. Where murder or homicide results from the use of an unlicensed
firearm, the crime is no longer qualified illegal possession, but murder or
homicide, as the case may be. In such a case, the use of the
unlicensed firearm is not considered as a separate crime but shall be
appreciated as an aggravating circumstance, in view of the
amendments introduced by Republic Act. 8294 to Presidential Decree
no. 1866, separate prosecutions for homicide and illegal possession are
no longer in order, instead; illegal possession of firearms is merely to be
taken as an aggravating circumstance in the homicide case (People
v. Avecilla, G.R. No. 117033, Feb. 15, 2001).

NOTE: Same ruling will be applicable in the new firearms law. In Section 29 of RA
10591, the use of a loose firearm, when inherent in the commission of a crime
punishable under the RPC or other special laws, shall be considered as an
aggravating circumstance. Otherwise, the use or possession of loose firearms
and violation of other penal law shall be treated as distinct crimes and will thus
be punished separately.

Necessity to present the firearm to consider

illegal possession of firearm as an
aggravating circumstance

It is not necessary to present the firearm before the court in order for illegal
possession of firearm as aggravating circumstance. The aggravating
circumstance of illegal possession of firearm can be appreciated even though
the firearm used was not recovered. The actual firearm itself need not be
resented if its existence can be proved by the testimonies of witnesses or by
other evidence presented (People v Agcanas, G.R. No. 174476, October 11,
2011)
 92

Good faith is not a valid defense against

prosecution for illegal possession of firearm

Illegal Possession of Firearm is malum prohibitum.

Illustration: Accused who was apprehended for carrying a cal. 9mm firearm and
ammunitions without the proper license to possess the same, claimed to be a
confidential agent of the AFP and in that capacity received the said firearm
and ammunitions which is government property duly licensed to the Intelligence
Security Group (ISG) of the AFP and so could not be licensed under his name.
Although the accused had a Memorandum Receipt and A Mission Order issued
by ISG, whereby he was entrusted with such firearm and ammunitions which he
was authorized to carry around, he was nevertheless convicted for the subject
violation in as much as a Memorandum Receipt and Mission Order cannot take
the place of a duly issued firearm license. The accused cannot invoke good
faith as a defense against a prosecution for illegal possession of firearm, as this is
a malum prohibitum (Sayco v. People, G.R. 159703, March 3, 2008).

Penalty

The use of a loose firearm when inherent in the commission of a crime

punishable by the Revised Penal Code or other special laws shall be considered
as an aggravating circumstance. Provided, that if the crime committed with the
use of a loose firearm is penalized by the law with a maximum penalty which is
lower than that prescribed in the preceding sections for illegal possession of
firearms, the penalty for illegal possession of firearms shall be imposed in lieu of
the penalty for the crime charged. Provided further, that if the crime committed
with the use of a loose firearm is penalized by the law with maximum penalty
which is equal to that imposed under the preceding sections for illegal
possession of firearms, the penalty of prision mayor in its minimum period shall be
imposed in addition to the penalty for the crime punishable under the RPC or
other special laws of which he/she is found guilty.

NOTE: If the crime is committed by the person without using the loose firearm,
the violation of this Act shall be considered as a distinct and separate offense
{Sec. 29, R.A. 10591)

DANGEROUS DRUGS LAW – RA 9165

Notwithstanding the provisions of any law to the contrary, a positive finding for
the use of dangerous drugs shall be a qualifying aggravating circumstance in
the commission of a crime by an offender, and the application of the penalty
provided for in the Revised Penal Code shall be applicable (Sec. 25).

XIII. ALTERNATIVE CIRCUMSTANCES

Q: What are ALTERNATIVE CIRCUMSTANCES?

A: Alternative circumstances are those which must be taken into
consideration as aggravating or mitigating according to the nature
and effects of the crime and the other conditions attending its
commission. They are the relationship, intoxication and the degree
of instruction and education of the offender.
 93

RELATIONSHIP – taken into consideration when offended party is the spouse,

ascendant, descendant, legitimate, natural or adopted brother or sister, or
relative by affinity in the same degree (2nd)of the offender

* The relationship of step-daughter and step father is included (Pp vs. Tan, 264
SCRA425) But not of uncle and niece. (People vs. Cabresos, 244 SCRA 362)

But if relationship is already inherent in the crime or that relationship is part of the
element of the crime, Art. 15 will not apply. Example: Parricide, adultery and
concubinage.

In crimes of Rape or acts of lasciviousness --- relationship is always aggravating.

In crimes against Persons..brother killing his own brother – the crime here is either
murder or homicide aggravated by relationship.

INTOXICATION – mitigating when the offender has committed a felony in the

state of intoxication, if the same is not habitual or subsequent to the plan to
commit the said felony. Aggravating if habitual or intentional

It is mitigating if it is not habitual or not intentional. It is aggravating if it is habitual

or subsequent to the plan to commit a crime or intentional.

When we say “habitual” it means a confirmed habit, like he is drunk everyday.

Drinking has already become part of his system---habit ba.

PP vs Fontillas, G.R. No. 184177, December 15, 2010, the accused raped his own
daughter—he drank 8 bottles of gin.

“Accused appellant did not present any evidence that his intoxication
was not habitual or subsequent to the plan to commit the rape. The person
pleading intoxication must likewise prove that he took such quantity of alcoholic
beverage, prior to the commission of the crime, as would blur his reason.1[24]
Accused-appellant utterly failed to present clear and convincing proof of the
extent of his intoxication on the night of December 8, 2001 and that the amount
of liquor he had taken was of such quantity as to affect his mental faculties. Not
one of accused-appellant’s drinking buddies testified that they, in fact,
consumed eight bottles of gin prior to the rape incident.”

Read: Pp vs Patelan, et.al. 182918, June 6, 2011

Read: People vs Victoriano dela Cruz, G.R. No. 187683, February 11, 2010.

DEGREE OF INSTRUCTION AND EDUCATION OF THE OFFENDER

GR: Lack or low degree of instruction is mitigating in all crimes.

XPN: Not mitigating in:

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1) Crimes against property (e.g. arson, estafa, threat)

2) Theft and robbery (P. Macatanda, 109 SCRA 40) or assault upon the
persons of another (P. v. Enot, 6 SCRA 325).
3) Crimes against chastity
4) Murder or homicide
5) Rape
6) Treason - because love of country should be a natural feeling of every
citizen, however unlettered or uncultured he may be. (People v.
Lansanas, 82 Phil. 193)

NOTE: Test of Lack of Instruction as a mitigating circumstance is not illiteracy

alone, but rather lack of sufficient intelligence.

If the offender is a lawyer who committed rape, the fact that he has knowledge
of the law will not aggravate his liability. But if a lawyer committed falsification,
that will aggravate his criminal liability because he used his special knowledge
as a lawyer. He took advantage of his learning in committing the crime.

Degree of instruction and education

are two distinct circumstances

One may not have any degree of instruction but is nevertheless educated.

Except for the circumstance of intoxication, the other circumstances in Article 15

may not be taken into account at all when the circumstance has no bearing on
the crime committed. So the court will not consider this as aggravating or
mitigating simply because the circumstance has no relevance to the crime that
was committed.

* It is only the circumstance of intoxication which if not mitigating, is

automatically aggravating. But the other circumstances, even if they are
present, but if they do not influence the crime, the court will not consider it at all.
Relationship may not be considered at all, especially if it is not inherent in the
commission of the crime. Degree of instruction also will not be considered if the
crime is something which does not require an educated person to understand.

ABSOLUTORY CAUSE

Absolutory causes are those where the act committee is a crime but for reasons
of public policy and sentiment there is no penalty imposed.

Examples of absolutory causes

1) Spontaneous desistance in attempted felonies (Art. 6, par. 3).

2) Light felonies in the attempted or frustrated stage except in crimes against

persons or property (Art. 7).

3) Accessories in light felonies (Art. 16).

4) Accessory is a relative of the principal (Art. 20).

5) Discovering secrets of ward through seizure of correspondence by their guardian

(Art. 290).
 95

6) When only slight or less serious physical injuries are inflicted by the person who
surprised his/her spouse or daughter in the act of sexual intercourse with another
person (Art. 247).

NOTE: If death or serious physical injuries were inflicted by the accused under the
situation subject of Art. 247, no absolutory cause can be involved but in effect a
mitigating circumstance is present, since the accused s criminally liable but he is
punished with the reduced penalty of destierro.

7) Crime of theft, swindling or malicious mischief committed against as spouse,

ascendant, or descendant or if the offender is a brother or sister or brother-in-law
or sister-in-law of the offended party and they are living together (Art. 332).

8) Instigation

9) Trespass to dwelling when the purpose of entering another's dwelling against the
latter's will is to prevent some serious harm to himself, the occupants of the
dwelling or a third person, or for the purposes of rendering some services to
humanity or justice, or when entering cafes taverns, inns and other public houses,
while the same are open (Art. 280 par. 2)

INSTIGATION

Instigation happens when a public officer induces an innocent person to

commit a crime and would arrest i upon or after the commission.

Instigation absolve the offender from criminal liability

In Instigation, the offender simply acts as a tool of the law enforcers and,
therefore, he is acting without criminal intent because without the instigation,
he would have not have done the criminal act which he did upon instigation
of the law enforcers.

NOTE: This is based on the rule that a person cannot be a criminal if his mind is
not criminal.

Persons who may commit instigation

Only public officers or private detectives may commit instigation. If the one who
made the Instigation is a private individual, not performing a public function,
both he and the one induced are criminally liable, the former as principal by
inducement and the latter as principal by direct participation

ENTRAPMENT

Entrapment is not an absolutory cause. It does not exempt the offender, nor
mitigate his criminal liability.

Distinguish Entrapment from Instigation

As to Intent:

E-The criminal design originates from and is already in the mind of the
lawbreaker even before entrapment
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I – The idea and design to bring about the commission of the crime
originated & developed in mind of the law enforcers.

Means and Ways:

E – The law enforcer resorts to ways & means for the purpose of capturing
the lawbreaker in flagranti delicto

I – The law enforcers induce, lure, or incite a person who is not minded to
commit a crime & would not otherwise commit it, into committing the crime.

As to Criminal Liability:

E – The circumstance is no bar to prosecution & conviction of the

lawbreaker

I – The circumstance absolves the accused from criminal liability.

XV-PERSONS CRIMINALLY LIABLE – Art. 16

Art 16. Who are criminally liable. — The following are criminally liable for grave
and less grave felonies:

1. Principals.
2. Accomplices.
3. Accessories.

The following are criminally liable for light felonies:

1. Principals
2. Accomplices.

What are the principles:

Principle 1 – For Grave or Less Grave Felonies --- all participants are liable

Principle 2 – For Light Felonies – only the principals and accomplices are liable

Principle 3 – Accessories are EXEMPT from criminal liability in Light Felonies –

remember Art. 7 -- what is the general rule in Art. 7 – light felonies are only
punishable when they are consummated –why? Because the role of the
accessories in light felonies are very minor. ---- not liable for light felonies
because the individual prejudice is so small that penal sanction is not necessary

PRINCIPALS

Q: Who are considered as Principals?

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A: The following are considered principals:

1. Those who take a direct part in the execution of the act;

2. Those who directly force or induce others to commit it;
3. Those who cooperate in the commission of the offense by
another act
without which it would not have been accomplished. (Article 17,
RPC)

Take note: If there is no principal by direct participation, there would be no

principal by inducement and principal by indispensable cooperation.

Important: When 2 or more persons commit a crime together each performing

an act in harmony w/ each other & everything is veered towards the same
criminal objective, then their action betrays conspiracy. The conspiracy is
proven by their own actions.

What is the importance of establishing the presence of conspiracy?

A: When there is conspiracy, the act of one is the act of all. All of
them are equally liable for the crime. This is what we call
COLLECTIVE CRIMINAL RESPONSIBILITY.

Different classification of criminal responsibility

(1) INDIVIDUAL CRIMINAL RESPONSIBILITY - when there is no conspiracy,

each of the offenders is liable only for his personal act.

(2) QUASI - COLLECTIVE CRIMINAL RESPONSIBILITY - some offenders in the

crime are principals and the others are accomplices.

(3) COLLECTIVE CRIMINAL RESPONSIBILITY - Where there is conspiracy, the

act of one is the act of all. All conspirators are liable as co-principals
regardless of the extent and character of their participation.

INDIVIDUAL CRIMINAL RESPONSIBILITY

Problem:

A has an enemy Y. B has an enemy Y. A decided to kill Y. B decided

to maul Y. One day, both of them, acting independently started
looking for Y. B saw Y, immediately approached Y and started to
maul Y. At that precise moment, A arrived. During the fray, A stabbed
Y and Y died.

Q: Is there a conspiracy?
A: Based on the evidence established, there is no conspiracy. Since B
intention was to inflict physical injuries and he merely mauled Y, B is
only liable as a principal by direct participation for Physical Injuries. A
who stabbed Y is liable as principal by direct participation for the
crime of Homicide. --- 2 separate crimes---2 criminals acting
independently – this is what we call independent criminal
responsibility.
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Problem:

A, B, C and D conspired to commit robbery. At the point of a gun

they divested Y of his belongings. And then A stabbed Y who died
(robbery with homicide).

Q: Who is liable for the crime of robbery with homicide?

A: All of them are liable because according. to Art. 296, in Robbery in Band,
all of them are liable for any result committed by their companions UNLESS
one can show that he TRIED TO PREVENT it.

Problem:

Q: A, B and C are robbers & they conspired to commit robbery only and
then A killed Y. Will all of them be liable for the assault that A made on Y?

A: Here the conspirators are only liable for the crime contemplated in the
conspiracy if there is no direct provision on that. Therefore, B and C are
liable for robbery only and A would be liable for Robbery with Homicide.
This is the ruling in Pp vs Federico, 247 SCRA 246.

Note: Art. 296 applies only when the robbery is committed by a “band”.

What are the principles:

>in conspiracy, the act of one is the act of all.

>the conspirators are NOT liable for any act of another conspirator NOT
contemplated in the conspiracy EXCEPT (all of them are liable) when: (a) there is a
particular provision of the law that says so (b) the acts done outside the contemplation
of the co-conspirators are necessary and logical consequences of the intended act.

Problem:

Q: A, B and C conspired to inflict physical injuries to Y. In the course of the

mauling, A killed Y. Are they liable? Why?
A: Here the contemplated victim is Y and the one who was killed was also Y
(same victim). In crimes against persons, when the victim is killed, the physical
injuries are absorbed. The conspirators are not separately liable. The physical
injuries are absorbed in the killing.

Q: A, B and C conspired to kill X. But in the course of the killing, A also killed Y.
Who are liable for the death of Y?
A: Only A is liable for the death of Y. There are 2 crimes here because there
are 2 victims. The killing of X is separate from the killing of Y. It cannot be said
that the killing of Y is absorbed in the killing of X.

PRINCIPALS BY DIRECT PARTICIPATION

Q: Who are principals by direct participation?

A: They are those who materially execute the crime.

Example: One who with intent to kill, personally shoots another is liable as principal by
direct participation.

Q: What do you mean by the phrase: "personally took part in the

execution"?
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A: That the principal by direct participation must be at the scene of

the commission of the crime personally taking part in its execution.

Two or more persons may take direct part in the execution of the act, in which
case they may be principals by direct participation, provided, the following
requisites are present:

(1) That they participated in the criminal resolution. Absent, this requisite,
the offender cannot be made liable as principal.

(2) That they carried out their plan and personally took part in its execution
by acts, which directly tended to the same end.

They must appear at the scene of the crime and perform acts necessary in the
commission of the offense to be liable.

Thus, a conspirator who does not appear at the scene of the crime is not liable.
His non-appearance is deemed a desistance on his part.

In the conspiracy by prior agreement, if the principal by direct participation

does not appear at the scene of the crime, they are not liable because:

a) Their non-appearance is deemed desistance which is favored and

encouraged;

b) Conspiracy is generally not a crime unless the law specially provides a

penalty therefor. (Article 8) Thus, by merely conspiring, the would be
participator has not yet committed any crime unless he would appear at
the scene of the crime and perform any act directly or indirectly in the
accomplishment of the conspiracy;

c) There is no basis for criminal liability because there is no criminal

participation.

Q: A, B, C and D conspired to kill Y. Then, while the crime was on

progress, A left the scene of the crime. Is A liable?
A: Yes. To extricate him from criminal liability, A must have performed
an overt act to disassociate or detach himself from the unlawful plant
to commit the crime. While A left the scene of the crime while it was
on progress, such abandonment came too late. In legal
contemplation, there was no longer a conspiracy to be repudiated
because A had already participated in it (Pp vs delos Reyes, 215
SCRA 680)

PRINCIPAL BY INDUCTION

Q: Who is a PRINCIPAL BY INDUCTION?

A: He directly (1) induces, or (2) forces another to commit a criminal
act.
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The inducement may come in the form of giving price, reward or promise. It
may also be through words constitutive of command.

For inducement to spell criminal liability, it must be made directly for the
purpose of procuring the commission of the crime or be the determinative
cause of the commission of the crime by the one induced. (People vs. de la
Cruz, 97 SCRA 985)

Note: The inducement should precede the commission.

Q: A induced B to kill X by giving him Php 500,000. For his part, B

induced C to kill for Php300,000. C induced D to kill X for Php200,000. D
killed X. Are A, B and C principals by inducement?

A: A and B are not principals by inducement because they did not

directly induce D to kill X. However, C is a principal by inducement
because he directly induced D to kill X.

Inducement must be strong enough that the person induced could hardly resist.
This is tantamount to an irresistible force compelling the person induced to carry
out the execution of the crime. Thoughtless expression without intention to
produce the result is not an inducement to commit a crime.

He becomes liable only as such when the principal by direct participation

committed the act induced.
Two ways of becoming a Principal by Induction:
1. by directly forcing another to commit a crime, either
1. by using irresistible force, or
2. by causing uncontrollable fear.
2. by directly inducing another to commit a crime, either
1. by giving price, or offering reward or promise, or
2. by using words of command.

One cannot be held guilty as principal by induction without first being shown
that the crime was actually committed (or attempted) by another.

Thus, there can be no principal by inducement (or by indispensable

cooperation) unless there is a principal by direct participation. But there can be
a principal by direct participation without a principal by inducement (or by
indispensable cooperation).

Discussion on “by directly forcing another to commit a crime” which can either
be: (1) by using irresistible force, or (2) by causing uncontrollable fear

When one is forced by another to commit a crime through the use of irresistible
force or causing an uncontrollable fear, only the person from whom such force
or fear came from is criminally liable and not the executor.

The executor acts against his will hence, the act is involuntary.
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Problem:

Q: A and his gang of robbers threatened to kill all the bank employees if the
bank manager refuses to open the vault of the bank. The manager was
constrained to open the vault and the robbers emptied the vault. Is manager
liable?
A: The bank manager is not criminally liable because he acted under the
compulsion of an uncontrollable fear. A and company are liable.

Q: How do you induce others or convince others to commit a crime?

A: By words of inducement or by promise of price or reward.

Q: How do you become a PBI?

A: (1) The PBI made the inducement with the intention of procuring the
commission of the crime. (2) The inducement was the determining cause of the
commission of the crime without which the crime would not have been
committed.

Q: Maria confided to her friend Petra that her marital life had been miserable
because she married an irresponsible and philandering husband. Petra
remarked: "A husband like that deserves to be killed." Maria killed her husband.
Is Petra a principal by inducement?
A: No. A thoughtless expression is not an inducement to kill.

The inducement must precede the act induced and must be so influential in
producing the criminal act that without it the act would not have been
performed.

Case: Guillergan vs People, February 2, 2011

In a prosecution for falsification of public document in the Information alleged

that Ltc. Guillergan of the Armed Forces of the Philippines committed the
offense charged by "causing it to appear that persons participated in an act or
a proceeding when they did not In fact so participate." Ltc. Guillergan ordered
Technical Sergeant Butcon to sign the "received" portion of the payrolls as
payee to make it appear that persons whose names appeared on the same
had signed the document when they in fact did not.

Q: A asked B to kill C because of grave Injustice done to A by C. A promised B a

reward. B was willing to kill C, not so much because of the reward promised to
him but because he also had his own long-standing grudge against C, who had
wronged him in the past. If C is killed by B, would A be liable as a principal by
inducement? (2002 BQ)

A: No, A would not be liable as principal by inducement because the reward he

promised B is not the sole impelling reason which made B to kill C. To bring about
criminal liability of a co-principal, the inducement made by the inducer must be
the sole consideration which caused the person induced to commit the crime
and without which the crime would not have been committed. The facts of the
case indicate that B, the killer supposedly induced by A, had his own reason to
kill C out of a long standing grudge.
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Q: While in training, Asali and others were told that their mission was to plant
bombs in malls, the LRT, and other parts of Metro Manila. Rohmat called Asali to
confirm that Trinidad would get two kilos of TNT from him, as they were "about to
commence" their "first mission." They made two separate attempts to bomb a
bus in Metro Manila, but to no avail. The day before the Valentine's Day
bombing, Trinidad got another two kilos of TNT from Asali. On Valentine's Day,
the Abu Sayyaf Group announced that they had a gift for the former President,
Gloria Macapagal-Arroyo. On their third try, their plan finally succeeded. Right
after the bomb exploded, the Abu Sayyaf Group declared that there would be
more bombings in the future. Asali then received a call from Rohmat, praising
the former: "Sa wakas nag success din yung tinuro ko sayo". What is the liability
of Rohmat?

A: Rohmat is criminally responsible as "principal by inducement." The instructions

and training he had given Asali on how to make bombs - coupled with their
careful planning and persistent attempts to bomb different areas in Metro
Manila and Rohmat's confirmation that Trinidad would be getting TNT from Asali
as part of their mission - prove the finding that Rohmat's co-inducement was the
determining cause of the commission of the crime. Such "command or advice
[was] of such nature that, without it, the crime would not have materialized"
(People v. Janjalani et.al., Janruary 10, 2011).

When the criminal liability of the

principal by inducement arise

The criminal liability of the principal by inducement arises only when the crime is
committed by the principal by direct participation.

Effect of the acquittal of the principal by direct participation

on the liability of the principal by inducement

1) Conspiracy is negated by the acquittal of co- defendant.

2) One cannot be held guilty of having instigated the commission of a

crime without first being shown that the crime has been actually
committed by another

PRINCIPAL BY INDISPENSABLE COOPERATION

Cooperates with the principal by direct participation and without whose

participation the crime would not have been committed. He cooperates after
coming to know the criminal intent of the principal by direct participation.

Cooperation in the commission of the offense

Cooperation in the commission of the offense means to desire or wish a

common thing. But that common will or purpose does not necessarily mean
previous understanding, for it can be explained or inferred from the
circumstances of each case.

NOTE: A principal by indispensable cooperation may be a co-conspirator under

the doctrine of implied conspiracy. He becomes a co-conspirator by
indispensable cooperation, although the common design or purpose was not
previously agreed upon.
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Requisites:
1. Participation in the criminal resolution by way of conspiracy; or
2. Cooperation in the commission of the offense by performing another act
without which the crime would not have been accomplished.

Note: What binds a PDP with a PIC is that there is again the existence of a
conspiracy.

Q: X wanted to kill Y who resides in an island. The only means to reach the
island is to ride on the motorboat owned by A. X told A to bring him to the island
because he is going to kill Y. A brought X to the island where X killed Y. What is
the liability of A?
A: A is a principal by indispensable cooperation. His motorboat is the only
means to reach the island where Y resides. Without his cooperation X would not
have killed Y.

Principal by indispensable cooperation distinguished from an accomplice

The point is not just on participation but on the importance of participation in

committing the crime. The basis is the importance of the cooperation to the
consummation of the crime. If the crime could hardly be committed without
such cooperation, then such cooperation would bring about a principal. But if
the cooperation merely facilitated or hastened the consummation of the crime,
this would make the cooperator merely an accomplice.

* Where both accused conspired and confederated to commit rape, and one
had sex with the offended party while the other was holding her hands, and
thereafter the latter was the one who raped the victim, both are principals by
direct participation and by indispensable cooperation in the two (2) crimes of
rape committed. (People vs. Fernandez, 183 SCRA 511)

An accused may be a principal by direct participation

and a principal by indispensable cooperation at the
same time

Illustration: When Sergio had sexual intercourse with the complainant against her will
by employing force and intimidation, the crime committed is rape through direct
participation. When he aided Berto and made it possible for the latter to have carnal
knowledge of complainant also against her will and through force and intimidation,
accused committed another crime of rape through indispensable cooperation. Thus,
Sergio is guilty of two crimes of consummated rape (People v. Simba, 117 SCR A 243

ACCOMPLICES

Q: Who are Accomplices.

A: Accomplices are those persons who, not being included in Article 17,
cooperate in the execution of the offense by previous or simultaneous acts.
(Article 18)

Requisites:

a. there be a community of design (principal originates the design, accomplice

only concurs)
 104

b. he cooperates in the execution by previous or simultaneous acts, intending to

give material and moral aid (cooperation must be knowingly done, it must also
be necessary and not indispensable.

c. There be a relation between the acts of the principal and the alleged
accomplice


* The accomplice does not conspire with the principal although he cooperated
in the execution of the criminal act.

There must be a relation between the acts done by the principal and those
attributed to the person charged as an accomplice.

Note: In homicide or murder, the accomplice must not have inflicted the mortal
wound.

Before there could be an accomplice, there must be a principal by direct

participation.

Other examples of cooperation by an Accomplice

1. By previous act — Lending of a knife or a gun to the murderer, knowing the
latter's criminal purpose.
2. By simultaneous act — The defendant who held one of the hands of the
victim and tried to take away the latter's revolver, while his co-defendant
was attacking him, is an accomplice for he cooperates in the execution of
the crime by simultaneous act without any previous agreement or
understanding.

Note: An accomplice is not a part of the plan or conspiracy.

An accomplice is neither a principal nor an accessory but who cooperates with
the principal by direct participation after coming to know about the conspiracy
or after witnessing the commission of the crime by previous or simultaneous acts.
An accomplice concurs or approves the act of the principal by direct
participation and performs other acts showing his conformity to the act of the
principal by direct participation.

The act or acts of the accomplice must be lesser than the act or acts done by
the principal by direct participation, that is, they must not be equal to or graver
than the act or acts of the principal by direct participation.

The cooperation of the accomplice is only necessary, not indispensable.

Problem:

Q: A stabbed C. Upon seeing what A did, B also attacked C and stabbed him.
C died because of the stab wounds. What are the criminal liabilities of A and B?
A: A and B are both liable as principals by direct participation. While it is true
that B concurred and cooperated in the execution of the crime, his act was
 105

equal to the act performed by A. This makes him equally liable as principal by
direct participation. He cannot be an accomplice because under the law, the
participation of an accomplice should be lesser than the act of the principal by
direct participation.
Problem:

Q: A stabbed C. Upon seeing what A did, B rained C with fist blows. C died
because of the stab wound. What are the liabilities of A and B?

A: A is liable as principal by direct participation in the crime of Homicide. B

concurred with the act of A by boxing C. B is liable as accomplice because he
performed a lesser act.

Problem:

Q: A boxed C. Upon seeing what A did, B attacked C and stabbed him. C

suffered contusion and died because of the stab wound. What are the liabilities
of A and B?

A: A is liable as principal by direct participation in the crime of Slight Physical

Injuries for inflicting contusion on C. B is also liable as a principal by direct
participation for the crime of Homicide. While B concurred with the act of A, B's
participation was greater than the act performed by A. Thus, B cannot be liable
only as an accomplice.

Q: A and B agreed and decided to commit Robbery at the house of X on May

5, 2007. On the following day, A and B told C about their plan and asked C to
drive for them. C drove A and B to the house of X where the two committed
Robbery. What are the liabilities of A, B, and C?

A: A and B are liable as principals by direct participation in the crime of

Robbery. C is liable as an accomplice. He cooperated by a previous act of
showing his concurrence to the conspiracy.

Quasi-collective responsibility is one where some offenders in the crime are

principals and the others are accomplices.

>In case of doubt as to the responsibility of the offender as a principal or

accomplice, the court should apply the milder form of liability. (People vs.
Medrano, 114 SCRA 335)

>The wound inflicted by the accomplice in crimes against persons should not
have caused the death of the victim as then he becomes a principal by direct
participation.

How does an accomplice acquire knowledge of the criminal design of the

principal?
1. When the principal informs or tells the accomplice of his (former's) criminal
purpose.
2. When the accomplice saw the criminal acts of the principal and concurs
with it.
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Q: A, wanting to kidnap B while playing at a park, forced B to come with him at

a nearby wharf. There, he saw C and D ready to leave, with their boats. C,
without putting any resistance and fully acquiescing to the acts of A allowed
him, to transport the kidnapped victim, thereby facilitating the commission of
the crime. Is C liable as an accomplice or a principal by indispensable
cooperation?

A: C is liable as an accomplice. His act was not indispensable to the commission

of the crime because A may also use the boat of D in order to accomplish his
criminal design. His simultaneous act cooperated in the execution of the crime.
If C was the only one who is present in the wharf, and A could not have
accomplished the crime except with the participation of C, then C would be a
principal by indispensable cooperation.

NOTE: In determining whether the offender is a principal or accomplice, the

basis is the importance of the cooperation to the consummation of the crime .

Case: Rustia et.al. vs People, G.R. No. 208351, October 5, 2016

X went to the barangay hall to attend a conciliation meeting over a land

dispute with A. A was accompanied by B and C. Since the barangay captain
was not around, X proceeded to go home but outside the barangay hall
heated argument ensued involving X and A. X was carrying at the time a gun
which was tucked on his waist. B and C grappled with X. When A saw X reached
for his gun, X wrested it from X’s possession, shot and killed X. The trial court
considered

SC: The cooperation that the law punishes is the assistance knowingly or
intentionally rendered that cannot exist without previous cognizance of the
criminal act intended to be executed. 15 But it cannot be said that Benjamin, Sr.
and Faustino knew that Benjamin, Jr. would shoot the victim. As earlier observed,
the fatal shooting was done in the heat of the moment, not premeditated or
preconceived. Their group was making its way out of the barangay hall when
Benjamin, Jr. suddenly grabbed Ambrocio around the waist, and the two of
them started to wrestle with each other. Up to that point, nothing indicated that
Benjamin, Jr. intended to grab Ambrocio's gun and use it against him. From their
point of view, Benjamin, Sr. and Faustino were witnessing their closest of kin
suddenly engaged in the physical struggle with Ambrocio whom they knew was
armed with a gun. Going to the aid of Benjamin, Jr. was but their most natural
reaction. That their going to the latter's aid might have enhanced the changes
of Benjamin, Jr. in gaining control of the victim's firearm, but such did not
unavoidably mean that they had themselves intended such outcome. Nor did
they contemplate such outcome in the absence of any clear showing that they
deliberately went to his aid to ensure his seizure of the firearm from Ambrocio. As
things stood, their acts could also mean that they were only trying to stop the
grappling from escalating into violence. Until the time when Benjamin, Jr.'s
intention became known to them - that is, when he finally had full control of the
gun, he cocked it and pointed it at the victim - nothing in the records
established that Benjamin, Sr. and Faustino continued to provide material and
moral aid to Benjamin, Jr.
 107

ACCESSORIES

Q: Who are Accessories?

A: Accessories are those who, having knowledge of the commission of the
crime, and without having participated therein, either as principals or
accomplices, take part subsequent to its commission in any of the following
manners:

1. By profiting themselves or assisting the offender to profit by the effects

of the crime.

2. By concealing or destroying the body of the crime, or the effects or

instruments thereof, in order to prevent its discovery.

3. By harboring, concealing, or assisting in the escape of the principals of

the crime, provided the accessory acts with abuse of his public functions or
whenever the author of the crime is guilty of treason, parricide, murder, or an
attempt to take the life of the Chief Executive, or is known to be habitually guilty
of some other crime.

The accessory comes into the picture when the crime is already consummated,
not before the consummation of the crime.

NOTE: One cannot be an accessory unless he knew of the commission of the

crime; however, he must not have participated in its commission.

If the offender has already involved himself as a principal or accomplice, he

cannot be an accessory any further even though he performs acts pertaining to
an accessory

Note: (1) To be liable as an accessory, the felony committed by the principal

should be LESS GRAVE or GRAVE FELONY; (2) The felony is NOT a LIGHT FELONY
because under Art. 16, accessories are NOT LIABLE for a light felony.

Requisites:

4) He has KNOWLEDGE of the commission of the crime

5) He did not PARTICIPATE therein, either as principals or accomplices
6) He took part SUBSEQUENT to the commission of the crime.

Instances when accessories are not criminally liable

1) When the felony committed is a light felony.

2) When the accessory is related to the principal as spouse, or as an

ascendant, or descendant or as brother or sister whether legitimate,
natural or adopted or where the accessory is a relative by affinity
within the same degree, unless the accessory himself profited from the
effects or proceeds of the crime or assisted the offender to profit
therefrom (Art. 20, RPC)
 108

By PROFITING himself or ASSISTING the offender to PROFIT by the effects of the

crime.

Problem:

Q: A stole the money of B. A later gave X Php 5,000 pesos out of the stolen
money. Is X an accessory?
A: No, because he did not know that the money given to him by A was stolen.

Q: Suppose A told X that the Php5,000 is part of the money he stole from B, is X
an accessory?
A: Yes, because he knew that the money was stolen and he profited from it.

Q: A stole the cellphone of B. A went to X and told him that he stole the
cellphone because he is in dire need of money. A asked X to pawn the
cellphone for him which X did and gave the proceeds to A. Is X an accessory?
A: Yes, X is an accessory. Despite his knowledge that the cellphone was stolen
he assisted A to profit from it.

Note: If the act of an accessory however is punished as a principal by another

law, then he may be charged as a principal.

Q: When will an accessory in a crime be liable as a principal in another crime?

A: When he is an accessory whose act or omission is also penalized in a special
law. In crimes under special laws or crimes mala prohibita, the offenders
generally are penalized as principals unless otherwise provided.

Illustration: If a person not having participated as principal or accomplice in

robbery or theft but knowing that the property being offered to him is the
proceeds or subject matter of the said crime, bought or purchased or dealt in
any manner with which such property, obtaining benefit from said transaction or
helping the thief or robber to profit therefrom.

NOTE: The accessory must receive the property from the principal. He should not
take it without the consent of the principal. If he took it without the consent of
the principal, he is not an accessory but a principal in the crime of theft

FENCING

Q: What is Fencing?
A: "Fencing" is the act of any person who, with intent to gain for himself or for
another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or
shall buy and sell, or in any other manner deal in any article, item, object or
anything of value which he knows, or should be known to him, to have been
derived from the proceeds of the crime of robbery or theft. (PD 1612)

Elements of Fencing:

1) The crimes of robbery or theft has been committed;

2) The accused, who is not the principal or accomplice in the crime of

robbery or theft, buys, receives, possesses, acquires, conceals, sells or
disposes, or buys and sells, or in any manner deals in any article, item,
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object or anything of value which has been derived from the proceeds
of the crime.

3) The accused knows or should have known that said article, item,
object or anything of value has been derived from the proceeds of the
crime of robbery or theft;

4) There is, on the part of the accused, intent to gain for himself or for
another.

Distinctions:

Accessory PD 1612

> To be held liable, he must know that To be held liable, it is enough that he
the property is stolen should have known that the property is
stolen

>Penalty is lower than the principal Punished as a principal – so penalty is

higher than accessory

Q: Can a person be considered as an accessory thus liable under the RPC and
at the same time, he is also a fence? Can there be double jeopardy?
A: One person can be liable both as an accessory under the RPC and as a
Fence under PD 1612. There is no double jeopardy.

Note: The crime of fencing involves moral turpitude.

Presumption of Fencing: (Sec. 5, PD 1612)

MERE POSSESSION of any goods, article, item or anything of value, which has
been the subject of robbery or thievery, shall be PRIMA FACIE evidence of
fencing.
---this presumption can be rebutted --- that you did not know or it could
not have been known. The presumption here is that you are liable for fencing in
that you have in your possession the stolen property.

One who is charged as an accessory

under Art. 19(1) may be likewise charged
under P.D. 1612 for the same act

What is prohibited under the Constitution is the prosecution of the accused

twice for the same offense.

NOTE: The State may choose to prosecute the offender either under the RPC or
P.D. 1612 although preference for the latter would seem inevitable considering
that fencing is a crime malum prohibitum, and P.D. 1612 creates a presumption
of fencing and prescribes a higher penalty based on the value of the property
(Dizon-Pamintuan v. People,).

Case: Mariano Lim vs People, 211977, October 12, 2016

Facts: Engr. Gulmatico, the project engineer of the Second Rural Road
Improvement Project (SRRIP) PMO-DPWH of Isulan, Sultan Kudarat went to
 110

Talomo Police Station and sought assistance from SPO4 Santillana (Investigator)
for the recovery of a Komatsu Grader. SPO4 Santillana was informed by
Gulmatico that said heavy equipment could be found at Basco Metal Supply
along Mc Arthur Highway, Davao City. Finding out that the information was
accurate, a search warrant was applied for and served on Basco Metal Supply
where the Grader was located. This resulted in the filing of an Anti-Fencing case
against Mariano Lim, the owner. The Grader was brought for repair in South
Cotabato but was sold by a certain Petronilo Banosing to Mariano Lim for
P400,000.00. This resulted in the filing of an Anti-Fencing case against Mariano
Lim, the owner in RTC 8-Davao City while a case for theft was also filed against
Banosing in RTC of Kidapawan City.

The accused contended that he bought the heavy equipment from Banosing
for P400,000.00. Banosing showed him a Certificate of Ownership evidencing
that the heavy' equipment is his. He checked with the DPWH in Manila and
found out that the subject heavy equipment is not included in the inventory of
equipment of the DPWH.

The trial court convicted Mariano Lim which was affirmed by the CA. Both
Courts are in unison in saying that all the elements of fencing are present.

SC: The first element was not established: The crimes of robbery or theft has
been committed;

Accordingly, Engr. Gulmatico failed to establish his office’ ownership of the

Komatsu Grader.

By CONCEALING or DESTROYING the (a) body of the crime or (b) effect or

instruments thereof. (the murder weapon or instruments used in the commission
of the crime)

Q: What is the "body of the crime"?

A: The body of the crime refers to the corpus delicti and not necessarily to the
corpse. Corpus delicti means the body or substance of the crime and in its
primary sense refers to the fact that a crime has actually been committed. As
applied to a particular offense, it means the actual commission by someone of
the particular crime charged. It is a compound fact made up of two things: (1)
the existence of a certain act or result forming the basis of the criminal charge;
and (2) the existence of a criminal agency as the cause of this act or result.
Otherwise stated, its elements are: a) the proof of the occurrence of a certain
event; and b) some person's criminal responsibility. (People vs. Boco, June 1999)
For instance, in the case of a prosecution for drug sale, it must be established
that an illegal sale of the regulated drug took place; and the accused were the
authors thereof.

Elements of corpus delicti

a) The existence of a certain act or result forming the basis of the criminal
charge

b) The existence of a criminal agency as the cause of the act or result.

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NOTE: The corpus delicti is the body of the crime, not necessarily the corpse.
Thus, even if the corpse is not recovered, as long as that killing is established
beyond reasonable doubt, criminal liability will arise and if there is someone who
destroys the corpus delicti to prevent discovery, he becomes an accessory

Misleading the investigating police officer to prevent the discovery of the crime
or to help the offender escape is also to destroy the corpus delicti.

Example:

A killed B with a .45 caliber gun. A was pursued by the authorities. A went to his
friend C and after telling him about the crime that he committed asked C to
hide the gun that he used in the commission thereof. C hid the gun. C is liable as
an accessory. He concealed the instrument of the crime.

Example:

A stole the laptop computer of B. Thereafter, A went to his friend C and after
informing him that he stole the item, asked C to hide the laptop computer for
him which C did. C is liable as an accessory because he concealed the effects
of the crime.

Case: Pp vs Ortega, 276 SCRA 166

Case: Padiernos et.al. vs People, G.R. No. 181111, August 17, 2015

By HARBORING, CONCEALING or ASSISTING in the ESCAPE of the principal of the

crime by a) providing the accessory act with abuse of his public functions (b)
whenever the author of the crime is guilty of 1) treason, 2) parricide, 3) murder or
4) an attempt to take the life of the Chief Executive.

Two kinds of accessories under par. 3 of Art. 19

1. Public officer who harbors, conceals or assists in the escape of the principal
of any crime (except for light felony) with abuse of his public functions.

Requisites:
(a) The accessory is a public officer;
(b) He harbors, conceals, or assists in the escape of the principal;
(c) The public officer acts with abuse of his public functions;
(d) The crime committed by the principal is any crime, provided it is not a
light felony.

Q: X with intent to kill stabbed Y. The latter was medically attended for 5 days. X
was pursued by policemen. X went to SPO 2 Joseph and after apprising him of
the crime that he has just committed, asked his policeman friend to assist in his
escape. SP02 Joseph assisted in the escape of Y. Is SP02 Joseph an accessory?

A: Yes, SP02 Joseph is an accessory. The crime committed by X is Attempted

Homicide because there was intent to kill and no mortal wound was inflicted.
Medical attendance for 5 days indicates that the wound inflicted is slight.
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Attempted Homicide is not a light felony because it is punishable with Prision

Correccional (6 months and 1 day to 6 years).

Q: What if the crime committed by X is Slight Physical Injuries, will your answer be
the same?
A: No. If that were the case, SP02 Joseph is not an accessory. Slight Physical
Injuries is a light felony. He can be an accessory only if the crime committed by
the principal is not a light felony.

2. Private persons who harbor, conceal or assist in the escape of the author
of the crime or the principal:

a. Who is guilty of treason, (b) parricide, (c) murder, or (d) an attempt

against the life of the Chief Executive;
Keyword: (TPMA-H)
b. Who is known to be habitually guilty of some other crimes.

Q: For accessories by assisting the principal to escape, who should be the

offender assisted to escape?
A: The offender to be assisted must be a principal; assisting an accomplice is not
included.

Those who assist the principal to escape may be prosecuted under P.D. No.
1829 on obstruction of justice not as accessory but as a principal, provided that
a separate Information shall be prepared for the crime of obstruction. When he
is convicted thereunder, the penalty to be imposed is the higher penalty under
P.D. No. 1829 or any other law, including the Revised Penal Code. (Sec. 1, last
paragraph)

If the principal committed robbery — which is not one of the offenses

enumerated in Art. 19 par. 3 — the private person is not an accessory.

A civilian who harbors a principal who committed kidnapping may not be held
as an accessory because kidnapping is not one of the crimes enumerated by
law.

Q: A and B had an altercation which resulted in a fight between them. In the

course of the fight, A killed B. A was chased by the responding policemen. A
went to his friend C and sought his help to prevent his arrest. Despite knowing
that A killed B, C harbored, concealed and assisted in the escape of A. Is C an
accessory?

A: No, C is not an accessory. The crime committed by the principal A is

Homicide. The killing of B was not attended by any qualifying aggravating
circumstance that would elevate the crime to Murder. Homicide is not included
in the enumeration. What the law excludes, it does not include. "Inclusio unios
est exclusio alterius."

But he is not entirely free from criminal liability. He can be charged for
Obstruction of Justice under PD 1829. This law penalizes any person who
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knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of

suspects and the investigation and prosecution of a person who committed any
crime.

Problem:

Q: A killed B with treachery. A was chased by policemen. A went to his friend X

and sought refuge in the latter's house. X kept him from the authorities. Is X an
accessory?

A: It depends. If X knew that A committed a crime then he is an accessory. The

crime committed by A is Murder, the killing being attended by the qualifying
aggravating circumstance of treachery. However, if X did not know that A
committed a crime then he is not liable.

Q: What if X knew that A committed the crime of murder and yet he assisted in
his escape, is X an accessory?
A: Yes, X is an accessory. The law uses the word "guilty" which implies conviction
first of the principal before the accessory could be adjudged guilty as such.

This ambivalent expression had been settled with the ruling that the Spanish text
shall prevail. The English text requiring the principal to be guilty is no longer
controlling. (People vs. Tabora, CA-GR No. 00604, Oct. 29,1963)

In other words, an accessory may be held liable without the principal having
been arrested and convicted first so long as the crime is shown to have been
committed. (People vs. Billon, CA 48 O.G. 1391)

EFFECT OF ACQUITTAL OF PRINCIPAL

If the principal is acquitted, it is not proper to convict the accused as an

accessory. The liability of an accessory is subordinate to that of the principal. But
conviction of an accessory is proper if the basis of the acquittal of the principal
is because of an exempting circumstance like insanity.

Q: MUST THE PRINCIPAL BE CONVICTED BEFORE AN ACCESSORY MAY ALSO BE

CONVICTED?

A: No. The law does not require that the principal be convicted before one may
be punished as an accessory. As long as the corpus delicti is proved and the
participation of the accessory is shown, he can be criminally liable.

However, conviction of an accessory is possible notwithstanding the acquittal of

the principal if the crime was in fact committed but the principal was not held
liable because of an exempting circumstance such as insanity or minority under
Art. 12 of the code.

Presidential Decree No. 1829, which penalizes obstruction of apprehension and

prosecution of criminal offenders, effective January 16, 1981, punishes acts
commonly referred to as “obstructions of justice”. This Decree penalizes under
Section 1(c) thereof, the act, inter alia, of “(c) Harboring or concealing, or
facilitating the escape of any person he knows or has reasonable ground to
believe or suspect, has committed any offense under existing penal laws in
order to prevent his arrest, prosecution and conviction.” Here, there is no
 114

specification of the crime to be committed by the offender for criminal liability to

be incurred for harboring, concealing, or facilitating the escape of the offender,
and the offender need not be the principal – unlike paragraph 3, Article 19 of
the Code. The subject acts may not bring about criminal liability under the
Code, but under this decree. Such an offender if violating Presidential Decree
No. 1829 is no longer an accessory. He is simply an offender without regard to
the crime committed by the person assisted to escape. So in the problem, the
standard of the Revised Penal Code, aunt is not criminally liable because crime
is kidnapping, but under Presidential Decree No. 1829, the aunt is criminally
liable but not as an accessory.

Trial of accessory may proceed without awaiting the result of the separate
charge against the principal because the criminal responsibilities are distinct from
each other

*Even if the principal is convicted, if the evidence presented against a supposed

accomplice or a supposed accessory does not meet the required proof beyond
reasonable doubt, then said accused will be acquitted. So the criminal liability
of an accomplice or accessory does not depend on the criminal liability of the
principal but depends on the quantum of evidence. But if the evidence shows
that the act done does not constitute a crime and the principal is acquitted,
then the supposed accomplice and accessory should also be acquitted. If
there is no crime, then there is no criminal liability, whether principal,
accomplice, or accessory.

Liability of the accessory – the responsibility of the accessory is subordinate to

that of a principal in a crime because the accessory’s participation therein is
subsequent to its commission, and his guilt is directly related to the principal. If
the principal was acquitted by an exempting circumstance the accessory may
still be held liable.

* But not Presidential Decree No. 1829. This special law does not require that
there be prior conviction. It is a malum prohibitum, no need for guilt, or
knowledge of the crime.

Q: Senator Juan Ponce Enrile was charged under P.D. 1829, for allegedly
accommodating Col. Gregorio Honasan by giving him food and comfort in
1989. The complaint states that "knowing that Col. Honasan is a fugitive from
justice, Sen. Enrile did not do anything to have Honasan arrested and
apprehended." While the complaint was filed, a charge of rebellion against Sen.
Enrile was already instituted. Is Sen. Juan Ponce Enrile liable under P.D. 1829?

A: No. Sen. Enrile could not be separately charged under P.D. 1829, as this is
absorbed in the charge of rebellion already filed against Sen. Enrile (Enrile v.
Hon. Admin., 6.R. No. 93335, September 13,1990)

Two situations where accessories are not criminally liable:

(1) When the felony committed is a light felony;

(2) When the accessory is related to the principal as spouse, or as an ascendant,
or descendant or as brother or sister whether legitimate, natural or adopted or
where the accessory is a relative by affinity within the same degree, unless the
accessory himself profited from the effects or proceeds of the crime or assisted
the offender to profit therefrom.
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Accessories who are exempt from criminal liability – Art. 20

Basis: Ties of blood and the preservation of the cleanliness of one’s name which
compels one to conceal crimes committed by relatives so near as those
mentioned. Nephew and niece are not included

Rule: A n accessory is exempt from criminal liability, when the principal is his:
1) Spouse
2) Ascendant
3) Descendant
4) Legitimate, natural, or adopted brother, sister or relative by affinity within
the same degree.

Except: Accessory is not exempt from criminal liability even if the principal is
related to him, if such accessory:

(1) Profited by the effects of the crime; or

(2) Assisted the offender to profit from the effects of the crime.

Q: DCB, the daughter of MSB, stole the earrings of a stranger. MCB pawned the
earrings with TBI Pawnshop as a pledge for PhpSOO loan. During the trial, MCB
raised the defense that being the mother of DCB, she cannot be held liable as
an accessory. Will MCB's defense prosper? (2004 BQ)

A: No, MCB's defense will not prosper because the exemption from criminal
liability of an accessory by virtue of relationship with the principal does not cover
accessories who themselves profited from or assisted the offender to profit by
the effects or proceeds of the crime. This non-exemption of an accessory,
though related to the principal of the crime, is expressly provided in Art. 20 of the
RPC

Q: Immediately after murdering Bob, Jake went to his mother to seek refuge. His
mother told him to hide in the maid's quarter until she finds a better place for
him to hide. After two days, Jake transferred to his aunf s house. A week later,
Jake was apprehended by the police. Can Jake's mother and aunt be made
criminally liable as accessories to the crime of murder? (2010 Bar Question)

A: The mother is exempt from criminal liability under Art. 20 of the RPC as a result
of her relationship to her son; however, the aunt is liable as accessory under Art.
19 paragraph 3 of the RPC if the author of the crime is guilty of murder. The
relationship between an aunt and a nephew does not fall within the
classification for exemption

Q: The wife of AAA predeceased his mother-in-law. AAA was accused of

defrauding his mother-in-law under a criminal information for estafa, but the
actual recital of facts of the offense charged therein, if proven, would constitute
not only the crime of estafa, but also falsification of public document as a
necessary means for committing estafa. AAA invokes the absolutory cause of
relationship by affinity. Which statement is most accurate?
 116

a) The relationship by affinity created between AAA and the blood relatives of
his wife is dissolved by the death of his wife and the absolutory cause of
relationship by affinity is therefore no longer available to AAA.

b) The death of spouse does not severe the relationship by affinity which is an
absolutory cause available to AAA for estafa through falsification of public
document.

c) If AAA commits in a public document the act of falsification as a necessary

means to commit estafa, the relationship by affinity still subsists as an absolutory
cause for estafa which should be considered separately from the liability for
falsification of public document because there is no specific penalty prescribed
for the complex crime of estafa through falsification of public document.

d) Considering that under the given situation, the two (2) crimes of estafa and
falsification of public document are not separate crimes but component crimes
of the single complex crime of estafa and falsification of public document, the
absolutory cause of relationship by affinity is not available to AAA.

(Intestate Estate of Manolita Gonzales vda de Carungcong vs People February

11, 2010)

XVI - PENALTY

Penalty — is the suffering that is inflicted by the State for the transgression of the law.

Purpose of punishment:
The law is a rule or norm of conduct prescribed by the State for in orderly management
of its affairs and for the protection of the rights of its inhabitants. It is meant to be
followed and obeyed, not o be violated. Transgression of the law is an affront or
defiance to the State. To enforce the law, penal sanctions must be imposed in
accordance with the police power of the State.

THEORIES JUSTIFYING PENALTY:

1. Justice — a crime must be punished to vindicate the right violated by the
offender.
2. Exemplarity — to serve as an example for the public good and to deter others
from violating the law.
3. Reformation — Man is basically good. Penalty is imposed upon him to correct
and reform him.
4. Prevention — Criminal acts pose danger to the State. Penalty is inflicted to
suppress this danger.
5. Self-defense — The State has a right to exist. This existence is imperiled by
lawlessness. It must impose penalties to protect itself from the threat and wrong
caused by criminals.

The three-fold purpose of penalties under the Revised Penal Code:

1) Retribution or Expiation — the penalty is commensurate with the nature and

gravity of the crime.
2) Correction or reformation — penalties are imposed to reform a criminal.
3) Social defense — A society has an existence to maintain and assert.
 117

Retroactive effect of penal laws. — Penal laws shall have a retroactive effect
insofar as they favor the person guilty of a felony, who is not a habitual
criminal, as this term is defined in Rule 5 of article 62 of this code, although at
the time of the publication of such laws a final sentence has been pronounced
and the convict is serving the same.( ART. 22)

General Rule: Penal laws shall have no retroactive effect

Exception: Penal laws may be given retroactive effect when FAVORABLE to the
accused. ------Whenever a new statute dealing with crime establishes conditions more
lenient or favorable to the accused, it can be given a proactive effect.

Examples:
1. When the act is decriminalized (e.g. PD 827, Anti-Squatting Law)
2. When the law is favorable to the accused who is not a habitual criminal.

Problem:

Q: In l992, X was charged with Murder. The aggravating circumstances of night time
and dwelling were not alleged in the information but were proven during the trial.
Conformably with the prevailing rules then, said aggravating circumstances were
appreciated by the court inasmuch as they were proved even if not alleged. The court
a quo imposed the death penalty taking into consideration the two aggravating
circumstances.

While the case was pending appeal before the Supreme Court, the 2000 Rules of
Criminal Procedure took effect. Among others, it provides that all aggravating
circumstances should be alleged in the information otherwise, they cannot be
appreciated by the courts.

Thus, the Supreme Court was confronted with the noble issue of whether or not the 2000
Rules of Criminal Procedure can be given a retroactive application.

A: In the latest case of People vs. Gano, G.R. No.134373, Feb. 28, 2001, 363 SCRA 126,
the SC held:

"Be it procedural, substantive or remedial for as long as the law is

favorable to the accused who is not a habitual delinquent, the law
must be given a retroactive application." (People vs. Ramirez, G.R.
No. 135094, 357 SCRA 222)

With this latest pronouncement, even procedural laws can now be given a
retroactive application. The Supreme Court gave the 2000 Rules of Criminal Procedure
a retroactive application. It is a cardinal rule that rules of criminal procedure are given
retroactive application insofar as they benefit the accused. (People vs. Buayaban, 400
SCRA 48)

Exception to the exception: No retroactive effect when favorable to the accused if:

a) He is a habitual delinquent
b) The law makes itself inapplicable to pending suits.

Q: What about if the accused is a recidivist? Can there be a retroactive application?

A: Yes. The new law can still be given a retroactive application even if the accused is
a recidivist. A recidivist is not necessarily a habitual delinquent.
 118

Q: What is the effect of pardon by the offended party?

A: A pardon of the offended party does not extinguish criminal action except as
provided in Article 344 of this Code; but civil liability with regard to the interest of the
injured party is extinguished by his express waiver.

As a general rule, an offended party cannot pardon an accused, because the case is
not against him but against the People of the Philippines. --- he is only a witness.

Q: What are the effects of Pardon by Offended Party:

A: General Rule: Civil liabilities are extinguished by his express waiver BUT criminal liability
is not extinguished.

Exception: Art. 344 par (3) of the RPC

These are: Abduction, seduction, Acts of lasciviousness, Adultery and Concubinage

These are the crimes which cannot be prosecuted de officio. –if the victim does not
want to testify, the law gives respect to her wishes because she may opt to suffer in
silence rather than go public..----in these crimes…pardon is a BAR to criminal liability.

Q: When must pardon be given?

A: BEFORE the institution of the action.

Q: What if the case has already been filed in Court and in the middle of the trial, the
complainant says I have already pardoned the accused. What is the effect of her
pardon given to the accused?
A: No, more, because the criminal action has already been instituted and it is no longer
within her control. (PP vs Lim, 206 SCRA 176)

Note: That pardon by the offended party under Art. 344 DOES NOT EXTINGUISH
criminal liability. It merely constitutes A BAR TO CRIMINAL PROSECUTION

Q: Why does the law specify that the preventive measures are not considered penalties
under Article 29?
A: It is because if they are considered penalties, they will violate the constitutional
provision on presumption of innocence. However, Article 29 provides that the period of
preventive imprisonment will be deducted from the term of imprisonment which seems
to negate the above rationale. It appears that upon conviction and commitment to
prison, the preventive detention in prison of the accused is immediately transformed
into a penalty.

CORRELATING ARTICLE 24 WITH ARTICLE 29

Although under Article 24, the detention of a person accused of a crime while the case
against him is being tried does not amount to a penalty, yet the law considers this as
part of the imprisonment and generally deductible from the sentence.

When will this credit apply? If the penalty imposed consists of a deprivation of liberty.
Not all who have undergone preventive imprisonment shall be given a credit

Under Article 24, preventive imprisonment of an accused who is not yet convicted is
not a penalty. Yet Article 29, if ultimately the accused is convicted and the penalty
imposed involves deprivation of liberty, provides that the period during which he had
undergone preventive detention will be deducted from the sentence, unless he is one of
those disqualified under the law.

If the offender is not disqualified from the credit or deduction provided for in
Article 29 of the Revised Penal Code, then the next thing to determine is whether he
signed an undertaking to abide by the same rules and regulations governing convicts.
 119

If he signed an undertaking to abide by the same rules and regulations governing

convicts, then it means that while he is suffering from preventive imprisonment, he is
suffering like a convict, that is why the credit is full.

But if the offender did not sign an undertaking, then he will only be subjected to
the rules and regulations governing detention prisoners. As such, he will only be given
80% or 4/5 of the period of his preventive detention.

Q: What is now the status of the death penalty?

A: RA 9346 PROHIBITS THE IMPOSITION OF DEATH PENALTY.

Distinctions between Reclusion Perpetua and Life Imprisonment:

1. Life imprisonment is not the same as Reclusion Perpetua. Hence, they

cannot be used interchangeably;

2. Life imprisonment does not have accessory penalties. Reclusion Perpetua

has accessory penalties.

3. Life imprisonment is a penalty under special laws. Reclusion Perpetua is a

penalty under the Revised Penal Code.

4. Life imprisonment has no fixed duration. After serving 30 years, the convict
may be pardoned.

Q: What is the legal duration of Reclusion Perpetual?

A: Under RA 7659, the legal duration of Reclusion Perpetua is 20 years and 1
day to 40 years.

Q: When the law fixed the duration of reclusion perpetua, has it become a divisible
penalty?
A: Although Section 17 of R.A. No. 7659 has fixed the duration of reclusion perpetua
from 20 years and 1 day to 40 years, there was no clear legislative intent to alter its origi-
nal classification as an indivisible penalty. Verily, if reclusion perpetua were reclassified
as a divisible penalty, then Article 63 of the Revised Penal Code would lose its reason
and the basis for its existence. If Congress had intended to do so, then it should have
amended Article 63 and Article 76. There are as well other provisions of the Revised
Penal Code involving reclusion perpetua, such as Article 41 on the accessory penalties
thereof and paragraphs 2 and 3 of Article 61, which have not been touched by a
corresponding amendment. (People vs. Lucas, January 1995)

Q:Is Reclusion Perpetua a divisible or indivisible penalty?

A: RA 7659 reclassified Reclusion Perpetua as a divisible penalty. It amended
Art. 27 of the RPC by giving it a legal duration of 20 years and 1 day to 40 years.

However, in its resolution promulgated on January 9,1995 the Supreme

Court, en banc held that it is still an indivisible penalty. In the case of People vs.
Lucas, 232 SCRA 537, the Supreme Court said that RA 7659 did not make explicit
its intention to convert it into a divisible penalty. In People vs. Villanueva, 254
SCRA 202, the Supreme Court reconsidered People vs. Lucas and modified the
decision deleting therefrom disquisitions on whether Reclusion Perpetua is a
divisible penalty and set aside its division into 3 periods. The penalty shall be
imposed regardless of any mitigating or aggravating circumstances that may
have attended the commission of the crime.
 120

In the case of People vs. Alvarado, 275 SCRA 727, the Supreme reiterated
that Reclusion Perpetua is still an indivisible penalty.
The penalty of Reclusion Perpetua must be applied regardless of any
mitigating or aggravating circumstances that may have attended the
commission of the crime. (People vs. Gumayao, 414 SCRA 539)

* Reclusion perpetua, despite its “defined duration” in R.A. 7659 – 20 years and one
day to 40 years – is still to be classified as an indivisible penalty (People vs. Lucas, 232
SCRA 537), and should be imposed in its entire duration in accordance with Art. 63 of
the Revised Penal Code. (People vs. Magallano, 266 SCRA 305)

Q: What is the purpose of preventive imprisonment?

A: It is to prevent the flight of the accused and his going into hiding. The accused is
detained if the offense is not bailable, or if bailable he cannot post bail and he is not
qualified for recognizance. The offense is not bailable if it is punishable with death or
reclusion perpetua AND the evidence of guilt is strong. The mere fact that the offense is
punishable with death or reclusion perpetua does not per se make the offense not
bailable. There is the other requirement that the evidence of guilt is strong.

Q: How will the time spent in prison by the detention prisoner be credited?
A: Full credit if the detention prisoner agrees voluntarily in writing to abide by the same
disciplinary rules imposed on convicts unless: (1) they are recidivists or (2) when upon
being summoned for the execution of their sentence they have failed to surrender
voluntarily. Four-fifths (4/5) credit when he does not so agree. In case the maximum
penalty imposable is destierro, the accused shall be released after 30 days of
preventive imprisonment because arresto menor (1-30 days) is a more severe penalty
than destierro under Article 70.

Q: If the penalty imposed on the convict is destierro, will he be credited of the time of
his preventive imprisonment?
A:Yes. Article 29 of the Code on the deduction of the period of preventive
imprisonment applies where the accused is sentenced to destierro because destierro
also constitutes deprivation of liberty. (People vs. Bastasa, February 1979)

Q: May the period of preventive imprisonment be deducted when the penalty imposed
is reclusion perpetua?
A: Yes. Under Article 29 of the Revised Penal Code, "offenders who have undergone
preventive imprisonment shall be credited in the service of their sentence consisting of
deprivation of liberty, with the full time during which they have undergone preventive
imprisonment, if the detention prisoner agrees voluntarily in writing to abide by the
same disciplinary rules imposed upon convicted prisoners." Otherwise, he shall only be
credited in the service of his sentence with four-fifths of the time during which he has
undergone preventive imprisonment. (As amended by R.A. No. 6127 and B.R Big. 85)
This allowance should be made even if the case where the penalty imposed is reclusion
perpetua because it does not make any distinction between temporal and perpetual
penalties. (People vs. Corpuz, March 1994) More so, since reclusion perpetua now has a
fixed period although still indivisible. (R.A. No. 7659; People vs. Lucas; People vs. Reyes,
August 1992)

Q: Who are not entitled to be credited with the full time or four-fifths of the time
of preventive imprisonment?
A: The following offenders are not entitled to be credited either with the full time
or four-fifths of the time of preventive imprisonment;
Recidivists or those convicted previously twice or more times of any crime;
(includes habitual delinquents) and those who, upon being summoned for the
execution of their sentence have failed to surrender voluntarily.
 121

Q: What is the rule when preventive imprisonment is for a period equal to or more than
the possible maximum imprisonment?
A: Whenever the accused has undergone preventive imprisonment for a period equal
to or more than the possible maximum imprisonment of the offense charged to which
he may be sentenced and his case is not yet terminated, he shall be released
immediately without prejudice to the continuation of the trial there-to or the
proceeding on appeal, if the same is under review (Art. 29, RPC as amended by EO
214, July 10, 1987).

REPUBLIC ACT NO. 10592-AN ACT AMENDING ARTICLES 29, 94, 97, 98 AND 99 OF
ACT NO. 3815, AS AMENDED, OTHERWISE KNOWN AS THE REVISED PENAL CODE

SECTION 1. Article 29 of Act No. 3815, as amended, otherwise known as the

Revised Penal Code, is hereby further amended to read as follows:

“ART. 29. Period of preventive imprisonment deducted from

term of imprisonment. – Offenders or accused who have
undergone preventive imprisonment shall be credited in the
service of their sentence consisting of deprivation of liberty,
with the full time during which they have undergone
preventive imprisonment if the detention prisoner agrees
voluntarily in writing after being informed of the effects
thereof and with the assistance of counsel to abide by the
same disciplinary rules imposed upon convicted prisoners,
except in the following cases:

“1. When they are recidivists, or have been convicted

previously twice or more times of any crime; and

“2. When upon being summoned for the execution of their

sentence they have failed to surrender voluntarily.

“If the detention prisoner does not agree to abide by the

same disciplinary rules imposed upon convicted prisoners, he
shall do so in writing with the assistance of a counsel and shall
be credited in the service of his sentence with four-fifths of the
time during which he has undergone preventive
imprisonment.

“Credit for preventive imprisonment for the penalty of

reclusion perpetua shall be deducted from thirty (30) years.

“Whenever an accused has undergone preventive

imprisonment for a period equal to the possible maximum
imprisonment of the offense charged to which he may be
sentenced and his case is not yet terminated, he shall be
released immediately without prejudice to the continuation
of the trial thereof or the proceeding on appeal, if the same is
under review. Computation of preventive imprisonment for
purposes of immediate release under this paragraph shall be
the actual period of detention with good conduct time
allowance: Provided, however, That if the accused is absent
without justifiable cause at any stage of the trial, the court
may motu proprio order the rearrest of the accused:
 122

Provided, finally, That recidivists, habitual delinquents,

escapees and persons charged with heinous crimes are
excluded from the coverage of this Act. In case the
maximum penalty to which the accused may be sentenced
is destierro, he shall be released after thirty (30) days of
preventive imprisonment.”

FINE –ART. 26

Imposition of fines

Fines are imposed either as single or as an alternative penalty.

When is a fine considered afflictive, correctional, or light penalty

FINE

Afflictive over P6,000.00

Correctional P200.00 to P6,000.00

Light less than P200.00

Light felony under Art. 9 versus. Classification of fine under Art. 26

Art. 9 (3) Art. 26

A felony punishable by arresto menor If the amount of fine imposed is less than
or a fine NOT exceeding P200 is a P200, it is a light penalty.
light felony

NOTE: If the fine prescribed by the law for a felony is exactly P200, it is a light felony
because Art. 9 (3), which defines light felony should prevail

Considerations by the court in Imposing the amount of fine

1) The mitigating and aggravating circumstances; and

NOTE: Modifying circumstances are only of secondary importance. There is

subsidiary imprisonment if the penalty of fine is not paid.

2) More particularly, the wealth or means of the culprit.

Note: This is the main consideration in the imposition of fines.

Q: E and M are convicted of a penal law that imposes a penalty of fine or

imprisonment or both fine and imprisonment. The judge sentenced them to pay
the fine, jointly and severally, with subsidiary imprisonment in case of insolvency.
(2005 BQ)
 123

a) Is the penalty proper? Explain.

b) May the judge impose an alternative penalty of fine or imprisonment?

Explain.
A:

1) Imposing the penalty of fine jointly and severally on the two convicted
accused is not proper. The penalty should be imposed individually on
every person accused of the crime. Any of the convicted accused
who is insolvent and unable to pay the fine, shall serve the subsidiary
imprisonment.

2) The judge may not validly impose an alternative penalty. Although the
law may prescribe an alternative penalty for a crime, It does not mean
that the court may impose the alternative penalties at the same time.
The sentence must be definite, otherwise, the judgment cannot attain
finality

DURATION AND EFFECT OF PENALTIES

Q: What is civil interdiction?

A: Under Article 38 of the New Civil Code, civil interdiction is one of the restrictions on
capacity to act but does not exempt the offender from certain obligations, as when
the latter arise from his act or from property relations. It is an accessory penalty imposed
upon person sentenced to the principal penalties of reclusion perpetua and reclusion
temporal.

Q: What are the effects of civil interdiction?

A: Civil interdiction shall deprive the offender during the time of his sentence of the
rights of:
1. parental authority
2. guardianship, either as to the person or property of the ward
3. marital authority
4. the right to manage his property and;
5. the right to dispose of such property by any act or any conveyance inter
vivos.

Civil interdiction is imposable when the penalty is: a) Death when not executed;
b)Reclusion Perpetua and c) Reclusion Temporal

Q: May a person civilly interdicted appoint an agent to manage his property?

A: No, because the act of the agent is also the act of the principal. Through the acting
agent, the civilly interdicted person is doing indirectly what the law prohibits to be done
directly.

Q: Can he prepare a Last Will and Testament?

A: Yes, for what the law prohibits is the disposition of property by an act inter vivos. A
last will and testament does not dispose of the property at the time of its making but at
the time of death.

Q: What are the effects of pardon given by the President in the exercise of his
pardoning power?
 124

A: It shall not work the restoration of the right to hold public office, or the right of
suffrage except when such rights were expressly restored by the terms of the
pardon; and it shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence (Art 36, RPC).

Limitations: 1)That the power can be exercised only after conviction by final
judgment; 2)It does not extend to cases of impeachment.

Distinctions between pardon granted by

the offended party and pardon granted
by the President

Pardon by the offended party applies only to crimes against

chastity under the RPC and rape, while pardon by the Chief
Executive applies to any crime.

Pardon by the offended party in seduction, abduction, acts of

lasciviousness benefits the co-principals, accomplices and
accessories. In adultery and concubinage, the pardon must
include both offenders. Pardon by the Chief Executive can be
granted to any or all of the accused.

Pardon by the offended party cannot be made subject to a

condition while pardon by the Chief Executive may be absolute or
conditional.

General rule: Pardon granted in general terms does not include accessory penalties.

Exceptions:

a. If the absolute pardon is granted after the term of imprisonment has expired, it
removes all that is left of the consequences of conviction. However, if the penalty is life
imprisonment and after the service of 30 years, a pardon is granted, the pardon does
not remove the accessory penalty of absolute perpetual disqualification

b. if the facts and circumstances of the case show that the purpose of the President is
to precisely restore the rights i.e., granting absolute pardon after election to a post
(mayor) but before the date fixed by law for assuming office to enable him to assume
the position in deference to the popular will

Pardon must be accepted

Pardon is an act of grace, proceeding from the Chief Executive, which exempts
the individual upon whom it is bestowed from the punishment which the law
inflicts for the crime he has committed. It is a private, though official, act of the
Chief Executive delivered to the individual for whose benefit it is not intended. It
is a deed, to the validity of which delivery is essential, and delivery is not
complete without acceptance. Until delivery, all that may have been done is a
matter of intended favor, and the pardon may be cancelled to accord with the
change of intention. If cancelled before acceptance, it has no effect.

Effects of Pardon

There are two kinds of pardon that may be extended by the President.
The first one is known as conditional pardon. This pardon contemplates of a
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situation wherein the offender is granted temporary liberty under certain

conditions. If he violates the conditions of this pardon, he commits a crime
known as evasion of service of sentence.

Absolute pardon – when an absolute pardon is granted, it releases the

offender from the punishment imposed by the court on him, so that in the eyes
of the law, the offender is innocent as if he had never committed the offense. It
removes the penalties and disabilities and restores him to all his civil rights. It
makes him a new man and gives him a new credit and capacity.

* Pardon relieves the offender from the consequences of an offense for which he has
been convicted, that is, it abolishes or forgives the punishment, subject to exceptions
mentioned in Art. 36.

Q: What is subsidiary penalty?

A: It is a penalty that takes the place of the fine for insolvent convicts. It is neither a
principal nor accessory penalty, but a substitute penalty for fine only. The subsidiary
penalty may be in the form of imprisonment or deprivation of right depending upon the
principal penalty imposed on the convict. (Article 39)

Q: When is subsidiary penalty served?

A: Subsidiary penalty is proper when the penalty imposed upon the convict includes
fine but he cannot pay the same. The court must expressly state that subsidiary penalty
shall be served in case of insolvency because this is not an accessory penalty that
follows the principal penalty as a matter of course. Also, the penalty imposed must be
susceptible of subsidiary penalty.

Note: Subsidiary penalty is proper only if the accused has no property with which to
pay the fine and not as a matter of choice on his part by opting to go to jail instead of
paying.

Q: Is subsidiary penalty deemed imposed in case the convict could not pay the
fine imposed by reason of insolvency? Explain.
A: No. Subsidiary penalty must be expressly imposed by the Court in order that
the convict may be required to serve it. It is not an accessory penalty. It is
imposed upon the accused and served by him in lieu of the fine which he fails
to pay on account of insolvency.

Problem:

RTC convicted A for the violation of Section 11 of RA 9165 and imposed the
following sentence:

“WHEREFORE, this Court finds accused Yolanda Luy y Ganuelas

guilty beyond reasonable doubt of violation of Section 11, Article II,
R.A. 9165 and is hereby sentenced to suffer the penalty of
imprisonment of twelve (12) years and one (1) day and to pay a
fine of P.300,000.00 with subsidiary imprisonment in case of inability
to pay the fine.xxxx”

Q: Is the penalty correct?

A: No. ISL is required and subsidiary penalty is not applicable. “The penalty of
imprisonment thus imposed was a straight penalty, which was contrary to
Section 1 of the Indeterminate Sentence Law; and, two, mandating the
 126

subsidiary imprisonment was legally invalid and unenforceable. (Yolanda Luy vs

People, G.R. No. 200087, October 12, 2016)


Q: What are the rules relative to subsidiary penalty?
A: The rules are:

1. If the penalty imposed is Prision Correccional or Arresto and fine —

subsidiary imprisonment shall not exceed 1/3 of the term of the sentence,
and in no case to continue for more than one year, and no fraction or part
of a day shall be counted against the prisoner.
2. When the penalty imposed is fine only — the subsidiary imprisonment shall
not exceed 6 months, if the offense is grave or less grave felony; and not to
exceed 15 days, if light felony.
3. When the penalty imposed is higher than Prision Correccional no subsidiary
imprisonment.
4. If the penalty imposed is not by confinement, but of fixed duration — the
nature of the subsidiary penalty is the same as that of the principal penalty
under the same rules in number 1, 2, and 3 above.
5. In case the financial circumstances of the convict should improve he shall
pay the fine (Art. 39, RPC as amended by RA 5465, April 21, 1969).

Republic Act No. 10159-An Act Amending Article 39 of ACT NO. 3815. Etc.

Section l. Article 39 of Act No. 3815, as amended, is hereby further amended to

read as follows:

"Art. 39. Subsidiary Penalty. - If the convict has no property

with which to meet the fine mentioned m paragraph 3 of
the next preceding article, he shall be subject to a
subsidiary personal liability at the rate of one day for each
amount equivalent to the highest minimum wage rate
prevailing in the Philippines at the time of rendition of
judgment of conviction by the trial court.xxxx”

Q: In what cases are there no subsidiary penalties even if the offender cannot pay the
pecuniary liabilities by reason of insolvency?
A: Even if the offender cannot pay the pecuniary liabilities by reason of insolvency, the
offender cannot be required to undergo subsidiary penalty in the following instances:
1. When the penalty imposed is higher than Prision Correccional, such as
Prision Mayor, Reclusion Temporal and Reclusion Perpetua. In this case, there is no
subsidiary penalty.
2. For failure to pay the costs of the proceedings there is no subsidiary
penalty.
3. When the penalty imposed is fine and a penalty not to be executed by
confinement in a penal institution and has no fixed duration, there is no subsidiary
penalty.
4. When subsidiary imprisonment is not stated in the decision.

Subsidiary penalty is possible only when any of the following penalties is imposed.
 127

(1) prision correccional;

(2) suspension and fine;
(3) destierro;
(4) arresto mayor;
(5) arresto menor; and
(6) fine only.

Note: When the penalty prescribed for the offense is imprisonment, it is the penalty
actually imposed by the court not the penalty provided for by the Code which shall be
considered in determining whether or not subsidiary penalty should be imposed.

Q: In what cases does the subsidiary penalty not consist of imprisonment?

A: Subsidiary penalty does not always consist of imprisonment. If the penalty
imposed is prision correccional or arresto mayor and fine, the subsidiary penalty
shall consist in imprisonment. If the penalty imposed is destierro, the subsidiary
penalty is also destierro.

Q: If the penalty imposed is suspension, the subsidiary penalty is also suspension.

After the culprit has served subsidiary penalty and his finances improved, is he
still liable to pay the fine?
A: Yes. Art. 39, Par. (5) states that the subsidiary personal liability which the
convict may have suffered shall not relieve him from paying the fine in case his
financial circumstance improve.

EFFECTS OF THE PENALTIES ACCORDING TO THEIR RESPECTIVE NATURE

Effects produced by the penalties of

perpetual or temporary absolute
disqualification for public office

1. Deprivation of public offices and employments, even if by election.

2. Deprivation of right to vote or be elected to such office.
3. Disqualification for the offices or public employments and for the exercise
of any of the rights mentioned.
4. Loss of right to retirement pay or pension for any office formerly held (Art.
30).

Perpetual absolute disqualification v. Temporary absolute disqualification

Perpetual Absolute Temporary Absolute Disqualification

Disqualification

Effective during the Disqualification lasts during the term of the

lifetime of the convict sentence, and is removed after the service of
and even the same, except:
after the service of (1) Deprivation of the public
the sentence. office/employment;
(2) Loss of all rights to retirement pay or other
pension for any office formerly held.

Effects produced by the penalties of perpetual or temporary

special disqualification for public office, profession or calling
 128

1) Deprivation of the office, employment, profession or calling affected.

2) Disqualification for holding similar offices or employments perpetually or

during the term of the sentence.

Effects produced by the penalties of perpetual or temporary

special disqualification for the exercise of suffrage

1) Deprivation of right to vote or to be elected to any public office.

2) Cannot hold any public office during the period of disqualification (Art. 32

Effects produced by the penalties of suspension from public

office, profession or calling or the right of suffrage.

1) Disqualification from holding such office or exercising such profession or

calling or right of suffrage during the term of the sentence.
2) If suspended from public office, the offender cannot hold another office
having similar functions during the period of suspension (Art. 33).

Q: Cataquiz argues that his removal has rendered the imposition of the principal
penalty of dismissal Impossible. Consequently, citing the rule that the accessory follows
the principal, he insists that the accessory penalties may no longer be Imposed on him.
is he correct?

A: No. The accessory penalties of disqualification from re-employment in public service

and forfeiture of government retirement benefits can still be imposed on him,
notwithstanding the impossibility of effecting the principal penalty of dismissal because
of his removal from office. Even if the most severe of administrative sanctions - that of
separation from service - may no longer be imposed, there are other penalties which
may be imposed on her if she Is later found guilty of administrative offenses charged
against her, namely, the disqualification to hold any government office and the
forfeiture of benefits (O.P. v. Cataquiz, G.R. No. 183445, September 14, 2011)

BOND TO KEEP THE PEACE

Duties of a person sentenced to give bond to keep the peace

It shall be the duty of the offender to:

1. Present two sufficient sureties who shall undertake that the offender will not
commit the offense sought to be prevented, and that in case such offense be
committed they will pay the amount determined by the court; or
2. Deposit such amount with the clerk of court to guarantee said undertaking; or
3. The offender may be detained, if he cannot give the bond, for a period not to
exceed 6 months if prosecuted for grave or less grave felony, or for a period not
to exceed 30 days, if for a light felony (Art. 35).

Bond to keep the peace v. Bail bond

BOND TO KEEP PEACE BAIL BOND

 129

It is imposed as a It is posted for the provisional release of an accused person after his
distinct penalty (Art. 284) arrest or during trial but before final judgment of conviction (Rule
114, Revised Rules of Criminal Procedure).

Bond to keep peace v. Bond for good behavior

BOND TO KEEP PEACE BOND FOR GOOD BEHAVIOR

Failure to post a bond to keep The legal effect of failure to post a bond for good behavior is
the peace results to not imprisonment but destierro under Article 284
imprisonment either for 6
months or 30 days, depending
on whether the felony
committed is grave or less
grave on one hand, or it is light
only

It is not applicable to any It is applicable only to cases of grave threats and light threats
particular case

CONFISCATION & FORFEITURE OF THE PROCEEDS OR

INSTRUMENTS OF THE CRIME

Every penalty imposed shall carry with it the confiscation of the proceeds of the
crime and the instruments or tools with which it was committed.

Such proceeds, instruments or tools would be confiscated and forfeited in favor

of the Government:

(1) Unless they are properties belonging to a third person who is not liable for
the offense.

(2) Articles which are not subject to lawful commerce shall be destroyed.

Q: Can a third person invoke the provision of Article 45 of the Revised Penal
Code or Section 20 of R.A. 9165 (which provides that every penalty imposed
therein shall carry with it forfeiture and confiscation in favor of the government
unless they are property of a third person not liable for the unlawful act) to
recover his property which has been taken by the authorities while the main
case is going on?

A: No. The status of any article confiscated in relation to the unlawful act for the
duration of the trial in the RTC as being in custodia legis is primarily intended to
preserve it as evidence and to ensure its availability as such. To release it before
the judgment is rendered is to deprive the trial court and the parties access to it
as evidence. Forfeiture, if warranted pursuant to either Article 45 of the Revised
Penal Code and Section 20 of R.A. No. 9165, would be a part of the penalty to
be prescribed. The determination of whether or not any article confiscated in
relation to the unlawful act would be subject of forfeiture could be made only
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when the judgment was to be rendered in the proceedings (PDEA v Brodett,

G.R. No. 196390, September 28, 2011

WHAT ARE THE DIFFERENT KINDS OF CRIMES:

1. Simple crimes — These are the simple crimes which the Revised Penal Code
defines and prescribes the penalty in a single article.
Example: Art. 249, Homicide, is punished with Reclusion Temporal.
2. Plurality of crimes — when an offender commits many crimes, each with a
corresponding penalty distinct and separate from those of the others.

3. Special complex crimes — these are two simple crimes but which the RPC
has defined as a single offense with a single penalty.
Examples: Rape with Homicide, Kidnapping with Homicide, Robbery
with Homicide, Robbery with Rape, Kidnapping with Rape and Robbery
with Arson.

4. Complex crimes — although more than one (1) crime has been committed,
they constitute only one crime not explicitly prescribed by the RPC and only
one penalty is imposed pursuant to Art. 48.

Two types of plurality of crimes:

a) Real or material plurality — when each act arises from distinct criminal
impulses, in which case, there will be as many crimes as there are acts.

b) Ideal plurality — where the acts arise from a single criminal impulse, in
which case, they would form a series of acts constituting a single
continuing crime.

In crime against persons, each act constitutes a distinct act of execution and thus is
a distinct offense. There is no continuing crime against several persons.

Q: What is a COMPLEX CRIME?
A: A complex crime is one where a single act constitutes two or more grave or
less grave felonies or where an offense is a necessary means for committing the
other.

Two Kinds of Complex Crimes:

Art. 48 speaks of two (2) kinds of plurality of crimes:

(1) Compound Crime (Delito Compuesto) — when a single act constitutes two
or more grave or less grave felonies.
(2) Complex Crime Proper (Delito Complejo) — when an offense is a necessary
means for committing another offense.

A complex crime is only one crime as contemplated by law because the

offender has only one criminal intent.

RULE: Both or all the offenses must be punished under the Revised Penal Code.

There is no complex crime of Estafa with Violation of BP 22

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Q: Cain purchased roofing materials worth P20,000 from PY and Sons Company owned
by Abel and paid the latter a check in the said amount. The following day, Abel
deposited the check, but it was returned dishonored because it was drawn against a
closed account. Notwithstanding written demands, Cain failed to make good said
check. Counsel for Abel filed two complaints against Cain: Estafa under Article 315 of
the RPC and another for Violation of Batas Pambansa Big. 22 Counsel for Cain claimed
that if his client was at all liable, he could only be liable for B.P. Blg. 22 because it is
more favorable to the accused as it carries a lighter penalty. The Fiscal filed a complex
crime of Estafa with Violation of BP 22. The estafa under Article 315 of the RPC and
Violation of B.P. Big. 22 because the single act of issuing the bounding check constitutes
two offenses. (1987 Bar)

Is the information filed by the Fiscal correct? Answer:

A: The resolution of the Investigating prosecutor is erroneous. There is no complex crime

of estafa under the RPC with violation of B.P. Big. 22. A complex crime refers only to
felonies which are punished in the Revised Penal Code. BP Big. 22 which punishes the
offense of issuing a worthless check is a special law. The contention of Cain that he is
only liable for B.P. Big. 22 because one precludes the other and because B.P. Big. 22 is
more favorable to the accused as it carries a lighter penalty cannot also be sustained.
B.P. Big. 22 specifically provides that liability under said act is without prejudice to any
liability for Estafa under the Revised Penal Code. The check issued by Cain in payment
of roofing materials from PY and Sons was worthless. Said bouncing check having been
issued in payment of a simultaneous obligation constitutes Estafa under the RPC and
also the offense punished under B.P. Big. 22. There is no identity of offenses. Damage is
not an element of the offense punished in B.P. Big. 22 whereas in Estafa damage is an
element. Estafa is an act mala in se which requires intent as an element while the
offense punished in B.P. Big 22 is an act mala prohibita where intent is not an element.

Compound Crime (Delito Compuesto) - There is compound crime when a single
act constitutes two or more grave or less grave felonies.

Requisites: (1) That only a single act is performed by the offender and (2) That
the single act produces two or more grave or less grave felonies.

Examples:
Double Homicide/Murder, Multiple Homicide, Homicide with Frustrated
Homicide and Homicide with Attempted Homicide.
Illustrations:

1. A with intent to kill, fired his gun at B. The bullet hit B. After hitting B,
the same bullet hit C. Both B and C died.

Although two (2) Homicide resulted from the act, A cannot be charged with 2
separate crimes of Homicide. He is liable for the single offense of Double
Homicide because the 2 Homicide resulted from a single act. Homicide is a
grave offense. The single act resulted in 2 grave felonies.

Q: A throws a hand grenade. 10 people were killed and 10 almost got killed.
Question: Are there 10 crimes of murder and 10 crimes of frustrated murder?

A: No., there is only one complex crime of multiple murder with multiple
frustrated murder. ---Why? – there is only one act of throwing the hand grenade,
although as a result of that act, several grave or less grave felonies result.
 132

Q: Suppose in the same problem, the same bullet hit B, C, and D who all died as
a result. What crime or crimes did A commit?
A: He is liable for the complex crime of Multiple Homicide. There is no such crime
as Triple Homicide, Quadruple Homicide or Quintuple Homicide. If a single act
causes 3 or more deaths, it is Multiple Homicide or Multiple Murder as the case
may be.

Q: In the same problem, suppose B and C were hit by the same bullet. B was
seriously wounded but survived. C died as a result of the gun shot wound.
A: In this case, A is liable for the complex crime of Homicide with Frustrated
Homicide. The single act resulted in 2 grave felonies of Homicide and Frustrated
Homicide. In complex crimes, the designation of the offense always starts with
the more serious felony.

Q: What if B was hit but was only slightly injured but C died as a result, what
crime or crimes did A commit?
A: A is liable for Homicide with Attempted Homicide. The single act resulted to
one grave felony of Homicide and one less grave felony of Attempted
Homicide. Although B sustained a slight injury, it is still Attempted Homicide
because there was intent to kill on the part of A.

RULE: in order for complex crime to exist, a single must must constitute either grave or
less grave felonies or 2 grave felonies or 2 less grave felonies.

Rule: A light felony cannot be complexed with a Grave or Less Grave felony

What happens of a single act produces a LESS GRAVE and a LIGHT FELONY? There are
2 possibilities: (1) the light felony will be ABSORBED by the less grave felony and (2) there
are as many light felonies as there are victims --- they are to be prosecuted separately.

Absorbed:

Q: A, policeman was engaged in the discharge of his functions. X approached A and

hit him in his face. It caused A, slight physical injury (light felony). Under Art. 148, the
crime is Direct Assault. But what happens to the slight physical injuries (light felony) that
A sustained when X hit A?
A: It is absorbed by the element of attacking or employing force. We cannot say that
the crime is Direct Assault with Slight Physical Injuries.

As many light felonies: A threw stone at B. The stone hit C. The same stone hit D, E and F.
We cannot say that the slight physical injuries committed against B is absorbed in the
crime of C and so on and so forth----Art. 49 does not apply to light felonies. Here----there
will be as many slight physical injuries cases as there are victims.

In the case of Reodica vs. Court of Appeals, 292 SCRA 87, a grave or less grave
felony cannot be complexed with a light felony. The light felony should be separated,
no to be complexed.

Thus, it is wrong for the prosecutor to file a criminal case if Reckless Imprudence
Resulting in Homicide and Slight Physical Injuries. He should file a complaint for Reckless
Imprudence Resulting to Homicide and another complaint for reckless Imprudence
Resulting in Slight Physical Injuries.

2. Complex Crime Proper (Delito Complejo)---- RULE: ONE OFFENSE IS A NECESSARY
MEANS FOR COMMITTING ANOTHER OFFENSE.
 133

----there are 2 acts—you commit the crimes one after the other – the 1st felony is not the
ultimate objective, it is only a stepping stone to commit another offense…you commit
one in order to commit the other—one is the means to commit the other.

Requisites:

a) That at least two offenses are committed.

b) That one of the offenses must be a necessary means for committing the other.
c) That both of the offenses must be punished under the same statute.

Examples: Estafa through falsification of commercial documents and

Malversation through falsification of a public document.
Problem:

Q: A found a lost check payable to B. He endorsed the check by falsifying the

signature of B. The drawee bank gave him the equivalent of the check. What
crime/crimes did A commit? Why?

A: A committed Estafa as regards the bank because it was deceived by A into

believing that he was B. He was able to commit Estafa because of his act of
falsifying the signature of B. The falsification was a necessary means of
committing Estafa. Therefore, A committed the complex crime of Estafa through
Falsification.

Note: One offense is a NECESSARY mean to commit the other. The law does not
say one offense is committed as: an INDISPENSABLE means to commit another; a
means to CONCEAL the other; a DIRECT means to commit the other.

INDISPENSABLE: What happens if the 1st offense is indispensable to commit the

second? Is there a complex crime? Ans: NO. The 2nd crime is the real crime. The
1st crime which is indispensable, is only an element of the 2nd crime. This is what
we call the doctrine of ABSORPTION.

Problem:

Hernandez and others were charged with the crime of rebellion with
multiple murder, arsons and robberies. Can they be guilty of the complex crime
of rebellion with murder? Was the charge correct?

Issue: Can rebellion be complexed with common crimes?

Held: No. "Murder, arson and robbery are mere ingredients of the crime of
rebellion, as a means 'necessary' for the perpetration of the offense. Such
common offenses are absorbed or inherent in the crime of rebellion. Inasmuch
as the acts specified in Art. 135 constitute one single crime, it follows that said
acts offer no occasion for the application of Art. 48, which requires therefore the
commission of at least two crimes."
That both purpose and overt acts are essential components of one crime, and
that without either of them the crime of rebellion legally does not exist, is shown
by the absence of any penalty attached to Art. 134. It follows therefore that any
or all of the acts described in Art. 135, when committed as a means to or in
furtherance of the subversive ends become absorbed in the crimes in
themselves. Not every act of violence is to be deemed absorbed in the crime of
rebellion solely because it happens to be committed simultaneously with
rebellion. But a rebel who for some independent or personal motives, commits
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murder or other motives, is liable for murder or other common offenses. (People
vs. Geronimo); PP vs Hernandez 99 Phil. 515)

CONCEAL: RULE: No complex crime when one of the offenses was committed for
the purpose of concealing the commission of the other.

Example:

After committing homicide the accused in order to conceal the crime, set fire to
the house where it had been perpetrated. Setting fire to the house is Arson (Art
321). But in this case, neither homicide nor arson was necessary to commit the
other. The arson was not a necessary means of committing Homicide. The Arson
was resorted to conceal the crime of Homicide already committed. Hence, the
offender committed two separate crimes of Homicide and Arson.

DIRECT MEANS:

Example: A in order to kill B who inside his house, forcibly entered the house of B
& once inside, A killed B.

Q: Is the crime murder with trespass to dwelling because A had to enter the
house of B first by forcing himself in & once inside killed B?

Ans: Trespass to dwelling was the primary objective of A. The primary intent was to kill B.
The trespass was only incidental. It was the direct means to kill B. So the crime here is
MURDER aggravated by unlawful entry or murder aggravated by dwelling.

Q: What is necessary before the accused can be sentenced for a complex

crime?
A: It is a condition precedent that there is one information charging a complex
felony. Although a single act resulted to two deaths, one murder and one
homicide, giving rise to a complex crime under Article 48 of the Revised Penal
Code, the accused cannot be validly sentenced for a complex crime with one
penalty where two separate informations were filed for said killings. This is true
even though a joint trial of the two criminal cases were held and a consolidated
decision rendered. Accordingly, the accused should be meted a separate
penalty for each of the crime charged in each Information. (People vs. De Vera,
June 1999)

Q: What is the penalty for complex crimes under Article 48? Why is there such a
provision?
A: It is the penalty for the most serious crime in the maximum period. Such
penalty is beneficial to the accused because of the fact that he is given a single
penalty, whereas if the crime is considered separate, the offender shall be given
as many penalties as there are crimes committed. The reason for the single
penalty is that the basis of the felony is the singularity of the act. For instance, in
the single act of pulling the trigger of a machine gun where 3 persons are killed,
without Article 48, the offender would have been penalized with 3 reclusion
temporal in the proper period. But with the provision on complex crimes, the
penalty would be 1 reclusion temporal in the maximum period.

In effect, Article 48 is a beneficent provision for the convict.

Example: A commits the crime of complex crime of homicide and frustrated

homicide. So what is the penalty? The penalty for Homicide is RT but it should be
 135

imposed in its MAXIMUM PERIOD. What about the penalty for frustrated
homicide----just forget it.

What are the other kinds of Plurality of Crimes where a single penalty is
imposed?
Answer:

a) Composite crimes or special complex crimes;

b) Continued crime or delito continuado; and
c) Continuing crimes or transitory crimes.

Q: What are composite crimes?

A: These are crimes which in the eyes of the law are treated as single individual
offenses although in reality are made up of more than one crime. They are also
called special complex crimes or single indivisible offense.

Examples:

Robbery with Homicide, Rape with Homicide and Kidnapping with Homicide.
This is not a complex crime but one crime made up of several violations and is
deemed a product of one criminal intent.

Ordinary complex crime and special complex crime distinguished:

1. An ordinary complex crime is composed of 2 or more crimes punished in
different provisions of the Revised Penal Code brought about by a single
act or where one offense is a necessary means of committing another
offense. A special complex crime or composite crime is made up of 2 or
more crimes which are considered as components of a single indivisible
offense.
2. The penalty imposable in ordinary complex crime is the penalty for the most
serious crime in its maximum period. In special complex crime or composite
crime the penalty imposable is the penalty specifically provided by law.

Q: What is delito continuado?

A: Delito continuado or continued crime is one where the accused is impelled

by a single criminal impulse but commits a series of overt acts at about the same
time in about the same place and said acts violate the same offense.

The reason is that neither the criminal act nor the intention is susceptible of
division.

Example:

A, B and C agreed and decided to rob all the occupants of the 5 houses
located within the same compound. By a series of acts they robbed the
occupants of the 5 houses one after the other. They are liable for the single
offense of Robbery. While they committed a series of acts against several
victims, the said acts were impelled by a single criminal intent.

Q: What is the Single Larceny doctrine?

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A: It is a doctrine in Theft or Robbery cases which is very popular in the United

States and other countries where the taking of a property or properties
belonging to the same or different persons by a series of acts or acts arising from
a single criminal intent or resolution constitutes only one crime.

Q: saw two (2) goats in his backyard. He decided to get both of them regardless
of who is the owner. With the left hand, he got one goat and with the right
hand, he took the other goat. How many crimes did A commit?
A: A committed two acts of getting the 2 goats. But he took them as a result of
a single intent or criminal resolution. Hence, he is liable for the single offense of
Theft applying the single larceny doctrine.

Q: A and B peeped through the glass window of a classroom. They saw 30

students inside. They resolved to rob them all of their belongings. By a series of
acts, they divested the students of their personal properties by means of threat
and intimidation. How many crimes did A and B commit?
A: A and B are liable for the single offense of Multiple Robbery. The series of acts
of dispossession of the personal properties of the 30 students arose from a single
criminal intent.

Note: The single larceny doctrine can be applied in other offenses like Estafa,
Violation of B.P. 22 or in Violation of RA 3019 (Anti-Graft and Corrupt Practices
Act).

This was enunciated by the Supreme Court when it ordered the consolidation of
the 32 separate informations filed against Miriam Defensor Santiago in one
information for alleged Violation of Sec. 3(e) of RA 3019 when she was still the
Commissioner of the Bureau of Immigration and Deportation. Her acts of signing
the 32 release orders of overstaying aliens proceeded from the belief that there
was no legal basis for their continued detention. (Santiago vs. Garchitorena, 228
SCRA 214)

Exception to the Single Larceny doctrine.

USE OF SUBMACHINE GUN: NOT A COMPLEX CRIME

Does the number of the crimes committed depend upon how many times the
trigger of an automatic gun was pressed or does it depend how many bullets
are emitted? In People v. Mario Tabaco, 270 SCRA 32, our Supreme Court
declared that it is not the act of pressing the trigger which should produce the
several felonies, but the number of bullets which actually produced them.
Hence, where the accused pressed the trigger of a submachine gun
(Thompson) and the gun fired continually and several persons were killed or
injured, there are as many crimes as are persons killed or injured. (People v.
Sanchez, G. R. No. 131116, August 29, 1999)


Distinctions between Complex Crime and Delito Continuado:

a) CC is governed by Art. 48-penalty is maximized

DC not governed by Art. 48 – penalty is not maximized
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b) CC – there is only 1 single act, which produces 2 or more grave or less

grave felonies.
DC-the offender performs series of acts.

c) CC-If there are 2 acts, one offense is a necessary means to commit the
other.
DC-one offense is not necessary to commit the other.

Q: What is a continuing crime?
A: It is one where any of the elements of the offense is committed in different
localities such that the accused may be charged in any place where an
essential element of the crime was committed. It is not a complex crime
because the offender does not perform a single act but a series of acts and one
offense is not a necessary means of committing the other.
Examples:
1. Conrado kidnapped Jenna and illegally detained her in Baguio City. On the
following day he brought her to Dagupan City. The next day, he brought her to
Tarlac and then to Manila. All the while, Jenna was deprived of her liberty.
Conrado cannot be charged for four (4) separate crimes of illegal detention. His
bringing of Jenna to four (4) different places does not constitute separate
crimes of illegal detention. He committed the continuing offense of Illegal
Detention.

2. X negotiated with Y regarding the purchase of the latter's car in Manila. After
the conclusion of the contract X and Y met in Angeles City where X paid Y a
post dated check. The check was deposited by Y in his account at the Banco
de Oro bank in Baguio City. The drawee bank dishonored the check for the
reason "drawn against insufficient funds." Where can Y file a complaint for
Violation of BP 22 against X? Why explain?

Answer: Y can file a case for Violation of BP 22 in Angeles City, or Baguio City.
Under the law, a person can be charged in any place where an essential part
of the offense was committed. Violation of BP 22 is a continuing crime. Venue in
a continuing crime is determined by the place where any of the elements of the
crime was committed.

No complex crime in the following:

1. In case of continuing crimes.

2. When one offense is committed to conceal the other.

3. When the other crime is an indispensable part or an element of other

offenses.
4. Where one of the offenses is penalized by a special law.
5. In case of special complex crimes.
6. When the law provides for a two-tiered penalty.

Q: What is a two-tiered penalty? Give examples.

A: A two-tiered penalty is that which occurs when the law provides that a
penalty to a particular crime is in addition to the penalty imposable for another
crime which results from the commission of such particular crime.
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Examples:

(1) Maltreatment of Prisoners (Art.235). — The penalty of prision correccional in its

medium period to prison mayor in its minimum period, in addition to his liability for the
physical injuries shall be imposed upon any public officer or employee who shall overdo
himself in the correction or handling of a prisoner or detention officer under his charge.

2. Direct Bribery (Art. 210) — Any public officer who shall agree to perform an act
constituting a crime, in connection with the performance of his official duties, in
consideration of any offer, promise, gift or present received by such officer, personally
or through the mediation of another, shall suffer the penalty of prision mayor in its
minimum and medium periods and a fine of not less than three times the value of the
gift, in addition to the penalty corresponding to the crime agreed upon, if the same
shall have been committed.

(3) Occupation of real property or usurpation of real rights in property (Art. 312). —
Any person who, by means of violence against or intimidation or persons, shall take
possession of any real property or shall usurp any real rights in property belonging to
another, in addition to the penalty incurred for the acts of violence executed by him,
shall be punished by a fine from 50 to 100 per centum of the gain which he shall have
obtained, but not less than 75 pesos.

RULE: When a complex crime is charged and one offense is not proven, the accused
can be convicted of the other.

Q: What is the penalty to be imposed in case of Complex Crimes.

A: The penalty for the more or most serious crime shall be imposed, the same to
be applied in its maximum period notwithstanding the presence of mitigating
circumstances. The maximum period cannot be offset by any mitigating
circumstance.

Example:
A with intent to kill fired his gun at B. The bullet hit B and C. B sustained a mortal wound
which caused his death. C sustained a mortal wound but he was saved due to timely
medical attendance. A is liable for the complex crime of

Homicide with Frustrated Homicide. It being a complex crime, A shall be punished with
reclusion temporal, the penalty imposable to homicide which is the graver of the two
offenses, to be imposed in its maximum period.

In the same problem, what if A surrendered to the police after the commission of the
crime, what is the penalty imposable? Still Reclusion Temporal in its maximum period.
The maximum period cannot be offset by the mitigating circumstance of voluntary
surrender.

Q: Does the Indeterminate Sentence Law apply to complex crimes?

A: Yes, the Indeterminate Sentence Law applies to complex crimes. However, in
fixing the maximum penalty imposable to the offender, the maximum period
shall be imposed regardless of the presence of any mitigating circumstance.

Rules on the Service of Sentence

1) When there are 2 or more penalties, the convict shall serve them simultaneously
if their nature so permits as in the following:
 139

a) Perpetual Absolute Disqualification

b) Perpetual Special Disqualification
c) Temporary Absolute Disqualification
d) Temporary Special Disqualification
e) Suspension
f) Destierro
g) Public Censure
h) Fine and Bond to keep the peace
i) Civil Interdiction
j) Confiscation and Payment of Costs

Penalties in the form of imprisonment cannot be served simultaneously but only

successively.

When an offender has to serve two or more penalties, he should serve them
simultaneously if the nature of the penalties will so permit, otherwise said penalties shall
be executed successively, following the order of their severity, in which case, the
second sentence will not commence to run until the expiration of the first. (Rigor vs.
Superintendent, New Bilibid Prisons, 411 SCRA 646)

2) If the first rule cannot be observed, the penalties shall be served successively in the
order of their severity as follows:

a) Death
b) RP
c) RT
d) PM
e) PC
f) A. Mayor
g) A. Menor
h) Destierro
i) Perpetual Absolute Disqualification
j) Temporary Absolute Disqualification
k) Suspension from public office; the right to vote & be voted for, the right to follow
profession or calling
l) Public Censure

Example of penalties that can be served simultaneously:

1. The court imposed upon the accused imprisonment of 2 years, 4

months and one day to 4 years and 2 months and to pay a fine of 2,000 pesos.
These 2 penalties can be served simultaneously.
2. Congressman A1 Goze was sentenced to suffer Prision Mayor and
disqualification to hold public office. These 2 penalties can be served
simultaneously.

Q: What if the convict was sentenced to suffer Arresto Mayor and Prision
Correctional?
A: These 2 penalties cannot be served simultaneously. They should be served
successively according to the order of severity.

Q: Problem: A was sentenced to suffer the following penalties: Arresto Menor,

Prision Correctional, Arresto Mayor and Destierro. State the sequence of
penalties to be served by A.
A: A is going to serve the penalties in this order:

Prision Correctional,
 140

Arresto Mayor,
Arresto Menor, and
Destierro.

Under the scale of penalties in Art. 70, Arresto Menor is more severe than
Destierro.

Q: What is the three-fold rule?

A: It means that if the convict were to suffer several penalties, the maximum
duration of his sentence shall not be more than three times the length of time
corresponding to the most severe penalty.

Art. 70 refers to service of sentence. It is therefore addressed to the jail warden

or to the director of prisons. The court or the judge has no power to implement
Article 70 because the provision is not for the imposition of penalties. If the
penalty by their very nature can be served simultaneously, then it must be so
served.

Illustration: A was sentenced to suffer four penalties; 6 yrs, 5 yrs, 5 yrs and 7 yrs.
The total of the penalties is 23 years. Applying the 3fold rule, multiply 7 yrs. by 3
and we have 21 yrs. A shall serve a total of 21 years only.

The three fold rule applies only if the convict were to suffer at least four (4)
penalties. If the convict were to suffer three (3) penalties only, the three fold rule
doesn't apply

Maximum duration of the convict’s sentence: 3 times the most severe penalty

Max period shall not exceed 40 years

Subsidiary imprisonment – this shall be excluded in computing for the maximum

duration

Example: Juan has 10 sentences of 6 months and 1 day each and a fine of 1000.
He was not able to pay the fine. Therefore, he must serve subsidiary penalty
after 18 months and 3 days in jail.

Under this rule, when a convict is to serve successive penalties, he will not
actually serve the penalties imposed by law. Instead, the most severe of the
penalties imposed on him shall be multiplied by three and the period will be the
only term of the penalty to be served by him. However, in no case should the
penalty exceed 40 years.

>>> If the sentences would be served simultaneously, the Three-Fold rule does not
govern.

>>> Although this rule is known as the Three-Fold rule, you cannot actually apply this if
the convict is to serve only three successive penalties. The Three-Fold Rule can only be
applied if the convict is to serve four or more sentences successively.

>>> The chronology of the penalties as provided in Article 70 of the Revised Penal Code
shall be followed.

>>> It is in the service of the penalty, not in the imposition of the penalty, that
the Three-Fold rule is to be applied. The three-Fold rule will apply whether the
 141

sentences are the product of one information in one court, whether the
sentences are promulgated in one day or whether the sentences are
promulgated by different courts on different days. What is material is that the
convict shall serve more than three successive sentences.

For purposes of the Three-Fold Rule, even perpetual penalties are taken into
account. So not only penalties with fixed duration, even penalties without any
fixed duration or indivisible penalties are taken into account. For purposes of the
Three-Fold rule, indivisible penalties are given equivalent of 30 years. If the
penalty is perpetual disqualification, it will be given and equivalent duration of
30 years, so that if he will have to suffer several perpetual disqualification, under
the Three-Fold rule, you take the most severe and multiply it by three. The Three-
Fold rule does not apply to the penalty prescribed but to the penalty imposed
as determined by the court.

>>> Never apply the Three-Fold rule when there are only three sentences. Even if
you add the penalties, you can never arrive at a sum higher than the product of
the most severe multiplied by three.

>>> The common mistake is, if given a situation, whether the Three-Fold Rule
could be applied. If asked, if you were the judge, what penalty would you
impose, for purposes of imposing the penalty, the court is not at liberty to apply
the Three-Fold Rule, whatever the sum total of penalty for each crime
committed, even if it would amount to 1,000 years or more. It is only when the
convict is serving sentence that the prison authorities should determine how long
he should stay in jail.

Q: When and how a penalty is to be executed?

A: No penalty shall be executed except by virtue of a final judgment. A penalty
shall not be executed in any other form than that prescribed by law, nor with
any other circumstances or incidents than those expressly authorized thereby.
(Article 78)

Q: What are the effects of insanity?

A: If the offender was insane during the commission of the offense, he is exempt
from criminal liability. If the accused becomes insane during the trial, insanity
shall suspend the proceedings. (Article 79)

If the convict becomes insane after final sentence has been pronounced,
the execution of the sentence shall be suspended only with regard to his
personal liability.

The execution of his pecuniary liabilities shall not be suspended.

If the convict recovers his reason, the sentence is to be executed except

if the penalty has already prescribed

INDETERMINATE SENTENCE LAW

Is a sentence with a minimum term and a maximum term which the court is
mandated to impose for the benefit of a guilty person who is not disqualified
therefore, when the maximum imprisonment exceeds 1 year.
 142

The purpose of the indeterminate sentence law is to avoid prolonged

imprisonment because it is proven to be more destructive than constructive to
offenders.

In imposing a prison sentence for an offense punished by the RPC or special

penal laws, the court shall sentence the accused to an indeterminate sentence,
which has a maximum and a minimum term based on the penalty actually
imposed.

NOTE: The term minimum refers to the duration of the sentence which the convict shall
serve as a minimum to be eligible for parole. The term maximum refers to the maximum
limit of the duration that the convict may be held in jail. For special laws, it is anything
within the inclusive range of prescribed penalty. Courts are given discretion in the
imposition of the indeterminate penalty.

Application of Indeterminate Sentence

Indeterminate sentence applies mandatorily to violations of both the RPC and

special laws where imprisonment would exceed one (1) year, and where the
penalty is divisible (Sec.1)

Application of the indeterminate Sentence Law must be considered WHEN

required to solve penalties under Article 64 (Rules for the APPLICATION of penalties
which contain three periods).

ISL as a rule: (1) its application is mandatory (2) it applies to all crimes in general

Procedure under the RPC

First, determine the MAXIMUM taking into consideration: (stages in the execution
of the crime, degree of participation of the accused, Mit/Aggra circumstance.

Second, determine the MINIMUM, --- it should be within the range of the penalty
next lower in degree.

Second: Set the minimum: it should be within the range of the penalty next lower
in degree

Third: Apply the ISL

Best possible sentence: 6y 1d to 14 y 8m & 1day

Worst possible sentence: 12 y to 17y 4m

Q: X was convicted of a complex crime of direct assault with homicide

aggravated by the commission of the crime in a place where public authorities
are engaged in the discharge of their duties. The penalty for direct assault is
prision correctional in its medium and maximum period. What is the correct
indeterminate penalty? (2012 BQ)

A: 10 years of prision mayor as minimum to 17 years & 4 months of reclusion

temporal as maximum

Explanation: 17 years and 4 months is the commencement of the duration of the

maximum period of reclusion temporal while 10 years is part of prision mayor, the
penalty next lower in degree to reclusion temporal
 143

NOTE: In determining penalties for a complex crime, the graver penalty shall be
considered thus direct assault is there to confuse the examinee. What should be
considered is the penalty for homicide since it is more grave. The maximum
should not exceed what is prescribed by the penalty. The minimum should be A
period less than what is prescribed as a minimum for the penalty.

Note: Art. 48 mandates the imposition of the penalty in its maximum period.

When penalty is imposed by Special Penal Law

1. Maximum Term - must not exceed the maximum term fixed by said law.
2. Minimum Term- must not be less than the minimum term prescribed by the
same.

WHO ARE DISQUALIED

The Indeterminate sentence law shall NOT apply to persons:

1) Convicted of:

a) An offense punishable with death penalty, reclusion perpetua or

life imprisonment
b) Treason, conspiracy or proposal to commit treason
c) Misprision of treason, rebellion, sedition, espionage
d) Piracy

2) Habitual delinquents

3) Those who shall have escaped from confinement or evaded sentence

4) Granted conditional pardon by the Chief Executive and shall have

violated the term (condition) thereto

5) Whose maximum term of imprisonment does not exceed one year

6) Sentenced to the penalty of destierro or suspension only; any person

convicted of a crime but the penalty imposed upon him does not
involve imprisonment

7) Who are already serving final judgment upon the approval of the
Indeterminate Sentence Law (Sec. 2

NOTE: Although THE penalty prescribed for the felony committed IS DEATH or
reclusion perpetua, if after considering THE attendant circumstances, the
imposable penalty IS RECLUSION temporal or less, the Indeterminate Sentence LAW
APPLIES.

In the case OF People v. Jaranilla, recidivists, who are not habitual DELINQUENTS,
are entitled to the benefit of the Indeterminate Sentence Law

What is the effect of applying ISL:

Q: A was sentenced to an indeterminate sentence of 6y 1d to 14 y 8m & 1day.

After serving the minimum 6y&1day. A demanded that he be released. Is his
contention tenable?
 144

A: No. Because what was served by A was only the minimum pa…wala pa ang
maximum. The real penalty there is 14 years 8mos and 1 day.

But upon reaching 6 y and 1 day, after having served the minimum
sentence, A is now qualified to apply for Parole. A may now be released under
Parole but he has to comply certain conditions. If he violates the conditions, he
will be arrested to finish his sentence.

Note: (1) Parole is not automatic, you have to qualify (2) After having served the
minimum sentence, you are only a candidate (3) the grant of parole depends
on his behavior during his stay while serving his sentence.

Purpose of ISL: (1) to uplift and redeem valuable human material and (2) to
prevent unnecessary and excessive deprivation of personal liberty and
economic usefulness.

Section 2 --- when ISL does not apply

Problem: A, a minor committed a crime punished by RP to death. But since A

was a minor when he committed the crime, he is entitled to the privilege MC.
The penalty will be lowered by one degree ---magiging RT nalang.

Q: Is A entitled to the benefit of ISL?

A: Yes.. because despite the fact that A committed a capital offense, the
penalty will be lowered by one degree, so the imposable penalty is RT, Since the
penalty now is RT, then ISL is applicable. (People vs Allen Udtojan, July 20, 2011.

If the penalty is 6 mos 1 to 6 years… is ISL applicable?

>>>It defends. If the penalty imposed is 6 mos 1 day to 1 year---ISL will not
apply. More than 1 year, ISL will apply.

Q: Macky, a security guard, arrived home late one night after rendering
overtime. He was shocked to see Joy, his wife, and Ken, his best friend in the act
of having sexual intercourse. Macky pulled out his service gun and shot and
killed Ken. The court found that Ken died under exceptional circumstances and
exonerated Macky of murder but sentenced him to destierro, conformably with
Article 247 of the Revised Penal Code. The court also ordered Macky to pay
indemnity to the heirs of the victim in the amount of P50,000. While serving his
sentence, Macky entered the prohibited area and had a pot session with Ivy
(Joy’s sister). Is Macky entitled to an indeterminate sentence in case he is found
guilty of the use of prohibited substances? Explain your answer. (2007)

A: No, Macky is not entitled to the benefit of the Indeterminate Sentence Law
(R.A. 4103, as amended) for having evaded the sentence which banished or
placed him on destierrro. Sec. 2 of the said law expressly provides that the law
shall not apply to those who shall have "evaded sentence".

ALTERNATIVE ANSWER:

No, because the penalty for use of any dangerous drug

by a first offender is not imprisonment but rehabilitation in a government center
for a minimum period of six (6) months (Sec. 15, R.A. 9165). The Indeterminate
 145

Sentence Law does not apply when the penalty is imprisonment not exceeding
one year.

Q: Homer was convicted of homicide. The trial court appreciated the following
modifying circumstances: the aggravating circumstance of nocturnity, and the
mitigating circumstances of passion and obfuscation, no intent to commit so
grave a wrong, illiteracy and voluntary surrender. The imposable penalty for
homicide is reclusion temporal the range of which is twelve (12) years and one
(1) day to twenty (20) years. Taking into account the attendant aggravating
and mitigating circumstances, and applying the Indeterminate Sentence Law,
determine the proper penalty to be imposed on the accused. (1997)

A: It appears that there is one aggravating circumstance (nocturnity), and four

mitigating circumstances (passion and obfuscation, no intent to commit so
grave a wrong as that committed and voluntary surrender). Par. 4, Art. 64 should
be applied. Hence there will be off-setting of modifying circumstances, which
will now result in the excess of three mitigating circumstances. This will therefore
justify in reducing the penalty to the minimum period. The existence of an
aggravating circumstance, albeit there are four aggravating, will not justify the
lowering of the penalty to the next lower degree under par. 5 of said Article, as
this is applicable only if there is no aggravating circumstance present. Since the
crime committed is Homicide and the penalty therefor is reclusion temporal, the
MAXIMUM sentence under the Indeterminate Sentence Law should be the
minimum of the penalty, which is 12 years and 1 day to 14 years and 8 months.
The MINIMUM penalty will thus be the penalty next lower in degree, which is
prision mayor in its full extent (6 years and 1 day to 12 years). Therefore, the
proper penalty would be 6 years and 1 day, as minimum, to 12 years and 1 day,
as maximum. I believe that because of the remaining mitigating circumstances
after the off-setting it would be very logical to impose the minimum of the
MINIMUM sentence under the ISL and the minimum of the MAXIMUM sentence.

Q: Assume in the preceding problem that there were two mitigating

circumstances and no aggravating circumstance. Impose the proper prison
penalty.

A: There being two (2) mitigating circumstances without any aggravating

circumstance, the proper prison penalty is arresto mayor (in any of its periods,
ie. ranging from one (1) month and one (1) day to six (6) months) as MINIMUM to
prision correccional in its maximum period four (4) years, two (2) months, and
one (1) day to six (6) years as MAXIMUM. Under Art. 64, par. 5 of the Revised
Penal Code, when a penalty contains three periods, each one of which forms a
period in accordance with Art. 76 and 77 of the same Code, and there are two
or more mitigating circumstances and no aggravating circumstances, the
penalty next lower in degree should be imposed. For purposes of the ISL, the
penalty next lower in degree should be determined without regard as to
whether the basic penalty provided by the RPC should be applied in its
maximum or minimum period as circumstances modifying liability may require.
The penalty next lower in degree to prision correccional. Therefore, as previously
stated, the minimum should be within the range of arresto mayor and the
maximum is within the range of prision correctional in its maximum period.

ISL ON SPECIAL LAW

 146

Q: Itos was convicted of an offense penalized by a special law. The penalty

prescribed is not less than six years but not more than twelve years. No
modifying circumstance attended the commission of the crime. If you were the
judge, will you apply the Indeterminate Sentence Law? If so, how will you apply
it? (1999, 1994)

A: If I were the judge, I will apply the provisions of the Indeterminate Sentence
Law, as the last sentence of Section 1 Act 4103, specifically provides the
application thereof for violations of special laws. Under the same provision, the
minimum must not be less than the minimum provided therein (six years and one
day) and the maximum shall not be more than the maximum provided therein,
i.e. twelve years.

Prisoner is qualified for release on parole whenever he shall:

1) Have served the minimum penalty imposed upon him

2) Appear to the board of indeterminate sentence, from the reports of

the prisoner's work and conduct, and from the study and investigation
made by the board itself that:

a) Fitted by his training for release;

b) Reasonable probability that such prisoner will live and remain at
liberty without violating the law;
c) Release will not be incompatible with the welfare of society (Sec. 5
of the Indeterminate Sentence Law

Prisoner on parole is entitled to final release and discharge

Prisoner on parole is entitled to final release and discharge if during the period of
surveillance such paroled prisoner shall:

1) Show himself to be a law abiding citizen and;

2) Not violate any law (Section 6 of the indeterminate Sentence Law).

NOTE: The Board may issue a final certification in his favor, for his final release
and discharge (Sec; 6).

Consequences when the prisoner violates

any of the conditions of his parole

When the paroled prisoner shall violate any of the conditions of his parole, he
may be:

1) Rearrested; and
2) Thereafter, he shall serve the remaining unexpired portion of the
maximum sentence for which he was originally committed to prison
(Sec. 8 of the Indeterminate Sentence Law

PD 968 AS AMENDED BY PD 1257, BP 76 AND PD 19&0 - PROBATION

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Q: What is Probation?
A: It is a disposition under which the accused after conviction and sentence is
released subject to the conditions imposed by the court and to the supervision
of a probation officer.

Purposes of the Probation Law:

1. Promote the correction and rehabilitation of the accused.
2. Provide an opportunity for the reformation of an offender.
3. Prevent the commission of crimes.

Q: When may application for probation be filed?

A: Application for probation must be filed within the 15 day period to perfect an
appeal from a judgment of conviction. Pending resolution of his petition,
accused-applicant may be released under his bail in the criminal case.

Requisites before an offender can be placed on Probation:

1. A post sentence investigation report by the probation officer.
2. A determination by the court that the best interest of the public and
the offender and the ends of justice will be served.

Q: WHO ARE THE OFFENDERS WHO ARE NOT ENTITLED TO PROBATION?

A: (1) Those sentenced to serve imprisonment for more than 6 years; (2) Those
convicted of subversion or any crime against the national security or public
order; (3) Those previously convicted by final judgment of an offense punished
by imprisonment of not less than one month and one day and/or a fine of not
more than 200 pesos; (4) Those who have been once on probation; and (5)
Those already serving sentence at the time of the approval of PD 968.

CONDITIONS OF PROBATION: Two (2) kinds of conditions imposable:

Mandatory or general — once violated, the probation is cancelled.

They are:
(a) Probationer must present himself to the probation
officer designated to undertake his supervision within
72 hours from receipt of the probation order at such
place as may be specified in the order;
(b) He reports to the probation officer at least once a month.

Discretionary or special — conditions which the courts may additionally impose

on the probationer. Probation statutes are liberal in character and the court
may impose any term it chooses, as long as the probationer's constitutional
rights are not violated.

Q: What is the nature of Probation? Is it a mere privilege? Or a right?

A: The grant of probation is not automatic or ministerial. It is a privilege the grant
of which is discretionary to the court. (Amandy vs. People, 161 SCRA 436)

Note: Probation is a mere privilege and its grant rests solely upon the discretion
of the court and is to be exercised primarily for the benefit of society and only
incidentally for the benefit of the accused
 148

Denial of probation without giving the applicant an adequate opportunity to

controvert the inaccurate Post Sentence Investigation Report of the Probation
Officer or prove his entitlement to probation constitutes grave abuse of
discretion correctible by certiorari.

Case: CABATINGAN VS. THE HON. SANDIGANBAYAN 102 SCRA 187

In this case, the Sandiganbayan denied the application for probation of the
accused by relying mainly, if not totally, on the report of the Probation Officer
who recommended for the disapproval of the application for probation on the
ground that there is undue risk that she will again commit another crime and
that the probation will depreciate the seriousness of the offense committed.

Held: There is ample evidence showing that the petitioner is entitled to the
benefits of probation. She does not appear to be a hardened criminal who is
beyond correction or redemption. She has shown repentance for the offense
she has committed. The Sandiganbayan merely relied on a report of the
probation officer which in itself, is mostly hearsay and is controverted. The case
was remanded to the Sandiganbayan to conduct further hearings on the
application for probation

Principle: The Court may not impose as a special condition that the probationer
give up her only means of livelihood.

Problem: Petitioner was convicted of the crime of Grave Oral Defamation. She
was convicted. She applied for probation. The court granted her application for
probation. The judge however modified the Probation Officer's
recommendations by including the condition, "To refrain from continuing her
teaching profession."

Is the judge correct? Held:

Held: "While it is true that probation is a mere privilege and its grant rests solely
upon the discretion of the court, this discretion is to be exercised primarily for the
benefit of the accused. Equal regard to the demands of justice and public
interest must be observed. In this case, teaching has been the lifetime and only
calling and profession of the petitioner. The law re-quires that she devote herself
to a lawful calling and occupation during the probation. Yet, to inhibit her from
engaging to teaching would practically prevent her from complying with the
terms of the probation."

Case: Francisco vs CA, April 6, 1995

A was sentenced by the court to suffer imprisonment of 4 years and 1 day to 8

years. He appealed the decision to the Court of Appeals. The appellate court
reduced the penalty to 2 years and 1 day to 4 years. He applied for probation.
The court denied his application for probation on the ground that he opted to
appeal and therefore has waived his right to apply for probation. His counsel
argued that he could not have applied for probation at the earliest instance
because the lower court sentenced him to the maximum penalty of 8 years
which is not probationable. Is counsel correct?
 149

Answer: No, counsel is not correct. The remedies of appeal and probation are
exclusive. The exercise of one forecloses the other. Thus, when A appealed, he
had waived his right to apply for probation.
On the issue of whether an accused, who originally is not qualified for probation
because the penalty imposed on him by a court a quo exceeds six (6) years,
should be denied the benefit of probation if on appeal the sentence is
ultimately reduced to within the prescribed limit, the Court voted 8 against 7 in
favor of the denial of the application for probation.

According to the majority opinion an appeal is simply contrary to the clear

and express mandate of Sec. 4 of the Probation Law, as amended, which opens
with a negative clause, "no application for probation shall be entertained or
granted if the defendant has perfected the appeal from the judgment of
conviction." The accused is not entitled for probation.

Problem:

The accused was found guilty of grave oral defamation in 16 informations which
were tried jointly and was sentenced in one decision to suffer in each case a
prison term of 1 year and 1 day to 1 year and 8 months of prision correccional.
Within the period to appeal, he filed an application for probation under the
Probation Law of 1976, as amended.

Can he qualify for probation?

Answer:
Yes. In Francisco vs. Court of Appeals, 243 SCRA 384, the Supreme Court held
that the case of one decision imposing multiple prison terms should not be taken
into account for the purpose of determining the eligibility of the accused for the
probation. The law uses word "maximum term" and not total term. It is enough
that each of the prison terms does not exceed 6 years. The number of offenses is
immaterial for as long as the penalties imposed, when taken individually and
separately, are within the probationable period.

Bail or recognizance pending resolution of petition for probation. ----- Pending

resolution of the Post Sentence Investigation Report and the resolution of the
petition for probation, the defendant may be allowed temporary liberty under
his bail filed in the criminal case where he was convicted

Period of Probation:

1. If the offender is sentenced to a term of imprisonment of not more than

1 year — period shall not exceed 2 years.
2. In all other cases if sentence is more than 1 year, the probation period
shall not exceed 6 years.
3. If sentence is fine only with subsidiary imprisonment in case of
insolvency, the probation period shall be twice the total number of
days of subsidiary imprisonment.

Problem:
A was charged and convicted of a crime. He applied for and was granted
probation. He was placed on probation for 2 years. One of the conditions was
that he shall not commit a crime within the period of probation of 2 years. After
4 years, he committed Attempted Homicide. Can the probation be revoked?
 150

Answer: Yes, the probation can be revoked. Although 4 years have elapsed, his
probation has not yet been terminated. There has to be an order from the court
finally terminating his probation. Mere lapse of 4 years did not terminate his
probation. (Bala vs. Judge Antonio M. Martinez, et al., 181 SCRA 459.

Case: Dimakuta vs People G.R. No. 206513, October 20, 2015 (en banc)

Facts: Mustapha Dimakuta was indicted for Violation of Section 5 (b) of R.A. 7610. He
was found guilty of committing a lascivious conduct upon a 16 year old victim by
touching her breast and private part against her will. The RTC sentenced him to suffer
an indeterminate penalty of imprisonment ranging from ten (10) years of prision mayor,
as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal, as maximum.

He appealed it to the CA and argued among other things, that even assuming he
committed the acts imputed, still there is no evidence showing that the same were
done without the victim’s consent or through force, duress, intimidation or violence
upon her. Surprisingly, when asked to comment on the appeal, the Office of the
Solicitor General (OSG), relying heavily on People v. Abello, opined that the accused
should have been convicted only of Acts of Lasciviousness under Article 336 of the RPC
in view of the prosecution’s failure to establish that the lascivious acts were attended by
force or coercion because the victim was asleep at the time the alleged acts were
committed.

The CA adopted the observation of the OSG and modified the conviction by
convicting the accused only of Acts of Lasciviousness under Art. 336 of the RPC. The CA
sentenced him to suffer the indeterminate penalty of six (6) months of arresto mayor, as
minimum, to four (4) years and two (2) months of prision correccional, as maximum.
Instead of further appealing the case, he filed on July 23, 2012 before the CA a
manifestation with motion to allow him to apply for probation upon remand of the case
to the RTC. Petitioner invoked the case of Colinares v. People (2011) which allowed
petitioner therein to apply for probation after his sentence was later reduced on
appeal by the Supreme Court.

The CA issued a Resolution on September 3, 2012 denying his motion. It ruled that
Colinares is inapplicable since petitioner therein raised as sole issue the correctness of
the penalty imposed and claimed that the evidence presented warranted only a
conviction for the lesser offense. Instead, the appellate court viewed as appropriate
the case of Lagrosa v. People(, wherein the application for probation was denied
because petitioners therein put in issue on appeal the merits of their conviction and did
not simply assail the propriety of the penalties imposed.

SC: In view of the latest amendment to Section 4 of the Probation Law that “no
application for probation shall be entertained or granted if the defendant has
perfected an appeal from the judgment of conviction,” prevailing jurisprudence35
treats appeal and probation as mutually exclusive remedies because the law is
unmistakable about it. Indeed, the law is very clear and a contrary interpretation would
counter its envisioned mandate. Courts have no authority to invoke "liberal
interpretation” or "the spirit of the law" where the words of the statute themselves, and
as illuminated by the history of that statute, leave no room for doubt or interpretation.
To be sure, the remedy of convicted felons who want to avail of the benefits of
probation even after the remedy of an appeal is to go to the Congress and ask for the
amendment of the law. To surmise a converse construal of the provision would be
dangerously encroaching on the power of the legislature to enact laws and is
tantamount to judicial legislation.
With due respect, however, to the ponente and the majority opinion in Colinares, the
application of the Probation Law in the said case deserves a second hard look so as to
 151

correct the mistake in the application of the law in that particular case and in similar
cases which will be filed before the courts and inevitably elevated to Us like this petition.
To refresh, Colinares concluded that since the trial court imposed a penalty beyond
what is allowed by the Probation Law, albeit erroneously, the accused was deprived of
his choice to apply for probation and instead was compelled to appeal the case. The
reprehensible practice intended to be avoided by the law was, therefore, not present
when he appealed the trial court’s decision. Taking into account that the accused
argued in his appeal that the evidence presented against him warranted his conviction
only for attempted, not frustrated, homicide, the majority of the Court opined that the
accused had purposely sought to bring down the impossible penalty in order to allow
him to apply for probation.
It was obvious then, as it is now, that the accused in Colinares should not have been
allowed the benefit of probation. As I have previously stated and insisted upon,
probation is not a right granted to a convicted offender; it is a special privilege granted
by the State to a penitent qualified offender, who does not possess the disqualifications
under Section 9 of P.D. No. 968, as amended. Likewise, the Probation Law is not a
penal law for it to be liberally construed to favor the accused.

If allowed, the notice of appeal should contain the following averments:

(1) that an earlier motion for reconsideration was filed but was denied by the trial court;

(2) that the appeal is only for reviewing the penalty imposed by the lower court or the
conviction should only be for a lesser crime necessarily included in the crime charged in
the information; and

(3) that the accused-appellant is not seeking acquittal of the conviction.

To note, what Section 4 of the Probation Law prohibits is an appeal from the judgment
of conviction, which involves a review of the merits of the case and the determination
of whether the accused is entitled to acquittal. However, under the recommended
grounds for appeal which were enumerated earlier, the purpose of the appeal is not to
assail the judgment of conviction but to question only the propriety of the sentence,
particularly the penalty imposed or the crime for which the accused was convicted, as
the accused intends to apply for probation upon correction of the penalty or
conviction for the lesser offense.

On the other hand, probation should not be granted to the accused in the following
instances:

1. When the accused is convicted by the trial court of a crime where the penalty
imposed is within the probationable period or a fine, and the accused files a notice of
appeal; and

2. When the accused files a notice of appeal which puts the merits of his conviction in
issue, even if there is an alternative prayer for the correction of the penalty imposed by
the trial court or for a conviction to a lesser crime, which is necessarily included in the
crime in which he was convicted where the penalty is within the probationable period.

In this case, petitioner appealed the trial court’s judgment of conviction before the CA
alleging that it was error on the part of the RTC to have found him guilty of violating
Section 5(b), of R.A. 7610. He argued that the RTC should not have given much faith
and credence to the testimony of the victim because it was tainted with
inconsistencies. Moreover, he went on to assert that even assuming he committed the
acts imputed on him, still there was no evidence showing that the lascivious acts were
committed without consent or through force, duress, intimidation or violence because
the victim at that time was in deep slumber. It is apparent that petitioner anchored his
appeal on a claim of innocence and/or lack of sufficient evidence to support his
 152

conviction of the offense charged, which is clearly inconsistent with the tenor of the
Probation Law that only qualified penitent offender are allowed to apply for probation.
The CA, therefore, did not err in applying the similar case of Lagrosa v. People46
wherein the protestations of petitioners therein did not simply assail the propriety of the
penalties imposed but meant a profession of guiltlessness, if not complete innocence.

PROBATION LAW – RA 10707; Salient Points

“SEC. 4. Grant of Probation. — Subject to the provisions of this Decree, the trial
court may, after it shall have convicted and sentenced a defendant for a
probationable penalty and upon application by said defendant within the
period for perfecting an appeal, suspend the execution of the sentence and
place the defendant on probation for such period and upon such terms and
conditions as it may deem best. No application for probation shall be
entertained or granted if the defendant has perfected the appeal from the
judgment of conviction: Provided, That when a judgment of conviction imposing
a non-probationable penalty is appealed or reviewed, and such judgment is
modified through the imposition of a probationable penalty, the defendant shall
be allowed to apply for probation based on the modified decision before such
decision becomes final. The application for probation based on the modified
decision shall be filed in the trial court where the judgment of conviction
imposing a non-probationable penalty was rendered, or in the trial court where
such case has since been re-raffled. In a case involving several defendants
where some have taken further appeal, the other defendants may apply for
probation by submitting a written application and attaching thereto a certified
true copy of the judgment of conviction.

“The trial court shall, upon receipt of the application filed, suspend the
execution of the sentence imposed in the judgment.

“This notwithstanding, the accused shall lose the benefit of probation should
he seek a review of the modified decision which already imposes a
probationable penalty.

“Probation may be granted whether the sentence imposes a term of

imprisonment or a fine only. The filing of the application shall be deemed a
waiver of the right to appeal.

“An order granting or denying probation shall not be appealable.”

xxxxxx

“SEC. 9. Disqualified Offenders. — The benefits of this Decree shall not be

extended to those:

“a. sentenced to serve a maximum term of imprisonment of more than six (6)
years;

“b. convicted of any crime against the national security;

“c. who have previously been convicted by final judgment of an offense

punished by imprisonment of more than six (6) months and one (1) day and/or
a fine of more than one thousand pesos (P1,000.00); (old law: by imprisonment
of not less than one month and one day and/or fine of not more than P200)

“d. who have been once on probation under the provisions of this Decree; and
 153

“e. who are already serving sentence at the time the substantive provisions of
this Decree became applicable pursuant to Section 33 hereof.”

xxxxxxx

“SEC. 16. Termination of Probation. — After the period of probation and upon
consideration of the report and recommendation of the probation officer, the
court may order the final discharge of the probationer upon finding that he has
fulfilled the terms and conditions of his probation and thereupon the case is
deemed terminated.

“The final discharge of the probationer shall operate to restore to him all civil
rights lost or suspended as a result of his conviction and to totally extinguish
his criminal liability as to the offense for which probation was granted.

“The probationer and the probation officer shall each be furnished with a copy
of such order.”

ARREST OF PROBATIONER

Court may issue a warrant of arrest against a probationer

The court may issue the warrant for violations of any condition of the
probation.

Effect after the arrest of the probationer

He shall be immediately brought before the court for hearing, which may
be informal and summary, of the violation charged. If the violation is established,
the court may rpvoke or continue his probation and modify the conditions
thereof. If revoked, the court shall order the probationer to serve the sentence
originally imposed. The order revoking the grant of probation or modifying the
terms and conditions thereof shall not be appealable.
TERMINATION OF PROBATION

The court may order the final discharge of the probationer upon finding that, he has
fulfilled the terms and conditions of probation

NOTE: The mere expiration of the period for probation does not, ipso facto, terminate
the probation. Probation is not co- terminus with its period, there must be an order from
the Court of final discharge, terminating the probation. If the accused violates the
condition of the probation before the issuance of said order, the probation may be
revoked by the Court (Manuel Bala v. Martinez, 181SCRA 459)

Effects of termination of probation

1. Case is deemed terminated.

2. Restoration of all civil rights lost or suspended.
3. Fully discharges liability for any fine imposed.

Persons disqualified to avail the benefits of

probation under RA 9165 and other special
laws
 154

Any person convicted for drug trafficking or pushing under the Comprehensive
Dangerous Drugs Act of 2002, regardless of the penalty imposed by the Court,
cannot avail of the privilege granted by the Probation Law or Presidential
Decree No. 968 as amended (Sec. 24 of RA 9165 or CODA of2002). Also, those
convicted of violation of Election Code, and those who appealed the decision
(but see Colinares v. People, G.R. No. 182748, December 13,2011).

PECUNIARY LIABILITIES

Pecuniary liabilities of persons criminally liable

1. Reparation of damage caused
2. indemnification of the consequential damages
3. Fine

4. Costs of proceedings

NOTE: The court CANNOT disregard the order of payment, pecuniary liabilities in
this article must be observed.

Q: Pecuniary penalties v. Pecuniary liabilities (2005 BQ)

A: Pecuniary penalties are those which a convicted offender may be required
to pay in money to the Government. These are fines and costs of proceedings.
Pecuniary liabilities on the other hand are those which a convicted offender is
required to pay in money to the offended party and to the government. They
consist of: reparation of the damage caused, indemnification of consequential
damages, fine, and costs of the proceedings.

EXTINCTION OF CRIMINAL LIABILITY

Art. 89. How criminal liability is totally extinguished. — Criminal liability is

totally extinguished:
1. By the death of the convict, as to the personal penalties and as to
pecuniary penalties, liability therefor is extinguished only when the death
of the offender occurs before final judgment.

2. By service of the sentence;

3. By amnesty, which completely extinguishes the penalty and all its

effects;

4. By absolute pardon;

5. By prescription of the crime;

6. By prescription of the penalty;

7. By the marriage of the offended woman, as provided in Article 344 of

this Code.

Q: What is the effect of death on the criminal liabilities of a convict?

A: Death extinguishes the criminal liability of the convict. With respect to his pecuniary
liabilities the answer is it depends. If the convict dies before final judgment, his
pecuniary liability is extinguished. If he dies after final judgment, his pecuniary liability
survives.
 155

If the accused dies while the case is pending trial, the case will be dismissed. No
substitution. Or where the accused is serving his sentence, no substitution. There is
no such a thing as criminal liability by substitution. ------ THE DEATH OF THE
CONVICT EXTINGUISHES HIS CRIMINAL LIABILIITIES AS TO THE PECUNIARY
PENALTIES,

Personal Penalties versus Pecuniary Penalties

Personal penalties which consists of imprisonment, lossof rights like

disqualification or suspension, or civil interdiction.

Pecuniary – refers to fines

Example: A is convicted by the RTC and was sentenced to pay the fine of
P50,000.00. A dies. What happens to his obligation to pay the fine?
Ans: The RPC distinguishes whether he died BEFORE the judgment became final
or AFTER the judgment became final.

Rule: If the judgment has not become final and the accused dies, the
obligation to pay the fine is extinguished. But if the judgment has become final
and executor and then he dies, the obligation to pay the fine is not
extinguished because the fine can be collected by the State through his assets.
If he has assets, then the government can enforce payment of the fine.

How about the accused’ civil liability?

Example: A is convicted for the crime of murder and was sentenced to

imprisonment and to pay the civil indemnity in the amount of P50,000,00. After
his conviction A appealed his case and while the appeal is pending, A dies.
What will happen to his civil liability? Will his obligation continue or not?
-----the old rules says that from the moment the convict dies, the case will
be dismissed and the civil liability is also extinguished.---the case cannot
continue as to both his criminal and civil liability.
----- Torrejos vs CA, 67 SCRA 349 and Pp vs Sendaydiego, 81 SCRA 120, Pp
vs Badeo, 204 SCRA 182 reversed the old ruling --- the criminal liability is
extinguished BUT not the civil liability

How can the civil liability proceed? --- by substitution of party defendant --- the
criminal case will now be converted into a civil case.

What is the basis? Art.30 of the Civil Code and Sec. 20 Rule 3 of the 1997 Rules of
Court. ---- if there is already a judgment but not yet final because of the appeal,
the case should not be dismissed but you substitute with the heir or legal
representative of the decedent.

Art. 30 of the Civil Code: When a separate civil action is brought to demand civil
liability arising from criminal offense; and no criminal proceedings are instituted
during the pendency of the civil case, a preponderance of evidence shall
likewise be sufficient to prove the act complained of.

Section 20, Rule 3, Rules of Court: Where claim does not survive. When the
action is for recovery of money, debt or interest thereon, and the defendant
dies before final judgment in the RTC, it shall be dismissed to be prosecuted in
the manner especially provided in these rules.
 156

This was the rule: Until the case of Pp vs Bayotas, 236 SCRA 239---does the death
of the accused pending appeal of his conviction extinguished his civil liability?
Does such death affects his criminal responsibility and civil liabilities which are
the consequences of the crime? Ans: Under the Bayotas case, the SC said we
go back to the old ruling. Our ruling in Torrejos vs CA and PP vs Sendaydiego-----
was a mistake.

Q: Does Article 30 of the Civil Code authorize the appellate court to continue
exercising appellate jurisdiction over the accused's civil liability ex-delicto
when his death supervenes during appeal?

A: No. What Article 30 recognizes is an alternative and separate civil action

which may be brought to demand civil liability arising from a criminal offense
independently of any criminal action. In the event that no criminal proceedings
are instituted during the pendency of the civil case, the quantum of evidence
needed to prove the criminal act will have to be that which is compatible with
civil liability and that is preponderance of evidence and not guilt beyond
reasonable doubt. Whether asserted in a criminal action or in a separate civil
action, civil liability ex-delicto is extinguished by the death of the accused while
his conviction is on appeal. In recovering civil liability ex-delicto, the same has to
be determined in a criminal action rooted as it is in the court's pronouncement
of the guilt or innocence of the accused. (People vs. Bayotas, September 1994)

What is the intendment of Article 100 on civil liability?

It is that civil liability ex-delicto is rooted in the court's pronouncement of the guilt
or innocence of the accused. In such cases, extinction of the criminal action
due to the death of the accused pending appeal inevitably signifies the con-
comitant extinction of the civil liability. Mors omnia solvi. Death dissolves all
things. In sum, in pursuing recovery of civil liability arising from crime, the final
determination of the criminal liability is a condition precedent to the prosecution
of the civil action such that when the criminal action is extinguished by the
death of the accused pending appeal thereof, said civil action cannot survive.

Article 30 of the Civil Code refers to the institution of a separate civil action that
does not draw its life from a criminal proceeding. The claim for civil action
survives notwithstanding the death of the accused if the same may also be
predicated on a source of obligation other than delict (e.g., quasi-delict, law,
contract, quasi-contract).

Accused Elmer Paglinawan died on April 3,1990 while under detention. The fact
of his death was reported by the provincial warden to the trial court, which
should have dismissed the case against said accused. Under Art. 89(1) of the
RPC, the criminal liability of an offender is totally extinguished by his death as to
the personal penalties; while the pecuniary liability therefor is extinguished when
the offender dies before final judgment. (People vs. Villagracia, September
1993)

If you are a victim of the crime of ESTAFA. The accused was convicted and
while he appealed, he died. Based on the above ruling of the Bayotas case, the
case will be dismissed as to the personal penalty as well as his pecuniary liability.
Likewise, his civil liability is extinguished. Now, do you think it is fair?
 157

What is the rationale behind that ruling of PP vs Bayotas? --- we go back to Art.
1157 of the Civil Code.

Art. 1157 states: Obligations arise from law, contract, quasi-contract, act or
omission punished by law; and quasi-delicts.

“acts or omission punished by law” – this includes civil liability arising from crimes.
This is a source of obligation. But obligations arise not only from crimes; they also
arise from quasi-delict (culpa aquiliana) quasi-contracts, or contracts or the law
itself.

The SC said in this case of Bayotas – if the obligation to recover is extinguished,

with the case is only coming from the crime – the only source of the obligation is
the crime, the death of the convict also extinguishes it. However, it is also
possible that the obligations to pay arises also from the crime and from other
sources.

Example: A is charged for the crime of Estafa --- swindle, abuse of confidence.
Does A have the obligation to return to the victim the money? Yes. Why? As a
civil liability for the crime of estafa. But even if there is no estafa, A is obliged to
return to the victim because of the contract of AGENCY eh. So, the obligation
arises from 2 sources: Law (art. 315) and contract (Art. 1157).

Another Example: A bumped a pedestrian while driving recklessly. A is charged

for RIR to homicide. A is convicted and the decision says that A is going to
indemnify the heirs of the victim. A’s obligation here arises from a criminal act.
But, even without the criminal act, you are still liable under another source of
obligation under Art. 1157 --- quasi-delict. Meaning, the civil liability here can
arise from 2 possible sources: (1) criminal act and (2) contract – contract of
carriage

Rule: If the source of the liability is only the crime, then death extinguishes
everything. But, if aside from the crime, the civil liability can be recovered from
any other source (like contract), then you can still recover despite the death of
the accused.
---- then what would be the procedure: the procedure is not to continue
with the criminal case but to file a separate civil action. Or, if it arose from a
contract, you can file a claim against the estate of the deceased under Rule 86
---you cannot ask the criminal case to continue and convert it into a civil case.

Summary of the Bayotas ruling:

1) The death of the accused pending appeal of his conviction extinguishes

his criminal as well as the civil liability based solely thereon. Meaning, the
source of the obligation is only the crime.

2) Corollarily, the claim for civil liability survives notwithstanding the death of
the accused if the same may also be predicated on a source of
obligation other than the crime under art. 1157.

3) Where the civil liability survives under the above condition, an action for
recovery thereof may be pursued but only by way of filing a separate
civil action and subject to Section 1 of Rule 111 of the Rules on Criminal
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Procedure. This separate civil action or claim may be enforced against

the executor or administrator of the estate of the deceased, depending
on the source of obligation upon which the same is based. If the claim is
arising from contract, claim it against the estate. If it arises from quasi-
delict, claim by civil action against the executor.

4) The private offended part need not fear forfeiture of his rights to file a
separate civil action by prescription.---because the statute of limitation
does not run. The liability is deemed interrupted during the pendency of
the criminal case.

Effect of the Death of the Accused Pending

Appeal of the Case Before the Supreme
Court.

“xx Given the foregoing, it is clear that the death of the accused pending
appeal of his conviction extinguishes his criminal liability, as well as his civil
liability ex delicto. Since the criminal action is extinguished inasmuch as there is
no longer a defendant to stand as the accused, the civil action instituted
therein for recovery of civil liability ex delicto is ipso facto extinguished,
grounded as it is on the criminal casexxx” (People vs Soria, G.R. No. 179031,
February 24, 2014 citing People vs Amistoso, G.R. No. 201447, August 25, 2013;
People vs Ariel Layag, G.R. No. 214875, October 17, 2016)

Case: People vs Ariel Layag, G.R. No. 214875, October 17, 2016 reiterating the
pronouncement in People vs Egagamao, G.R. No. 218809, August 3, 2016

Effects of Death Pending Appeal:

1. Death of the accused pending appeal of his conviction extinguishes his

criminal liability[,] as well as the civil liability[,] based solely thereon. As opined by
Justice Regalado, in this regard, "the death of the accused prior to final
judgment terminates his criminal liability and only the civil liability directly arising
from and based solely on the offense committed, i.e., civil liability ex delicto in
senso strictiore."

2. Corollarily, the claim for civil liability survives notwithstanding the death of
accused, if the same may also be predicated on a source of obligation other
than delict. Article 1157 of the Civil Code enumerates these other sources of
obligation from which the civil liability may arise as a result of the same act or
omission:

a) Law
b) Contracts
c) Quasi-contracts
d) xx x
e) Quasi-delicts

3.Where the civil liability survives, as explained in Number 2 above, an action for
recovery therefor may be pursued but only by way of filing a separate civil
action and subject to Section 1, Rule 111 of the 1985 Rules on Criminal
Procedure as amended. This separate civil action may be enforced either
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against the executor/administrator or the estate of the accused, depending on

the source of obligation upon which the same is based as explained above.

4. Finally, the private offended party need not fear a forfeiture of his right to file
this separate civil action by prescription, in cases where during the prosecution
of the criminal action and prior to its extinction, the private-offended party
instituted together therewith the civil action. In such case, the statute of
limitations on the civil liability is deemed interrupted during the pendency of the
criminal case, conformably with provisions of Article 1155 of the Civil Code, that
should thereby avoid any apprehension on a possible privation of right by
prescription.

Service of sentence is a ground for extinction of criminal liability. It does not

extinguish civil liability. It has been held that if the accused escapes from prison
where he was serving sentence, the period during which he was not in
confinement shall be deducted in the computation of his total service of
sentence.

Amnesty is an act of the sovereign power granting oblivion or general pardon

for a past offense, and is usually granted to a certain class of persons who are
subject to trial but have not yet been convicted.

Amnesty wipes out not only the penalty but also the effects of the criminal
liability. But it does not extinguish civil liability.

Pardon is an act of grace proceeding from the power entrusted with the
President which exempts the offender from punishment the law inflicts for the
crime he has committed.

Absolute pardon grants oblivion to all the effects of conviction. It shall restore all
the civil rights. Under Art. 36, pardon by the Chief Executive shall not work the
restoration of the right to hold public office, or the right of suffrage, unless such
rights are expressly restored by the terms of the pardon. Absolute pardon must
therefore expressly restore the right to

But if absolute pardon is granted after the convict had served his sentence, the
rights to vote and to hold public office are deemed restored. (Pelobello vs.
Palatino, 72 Phil. 441)

Pardon distinguished from amnesty.

(1) Pardon includes any common crime; amnesty generally, includes political
offenses.

(2) Pardon is given after conviction; amnesty is given even before conviction
or institution of the action.

(3) Pardon as a defense must be proved; the court may take judicial notice
of amnesty (it is an official act of the President, there is no need to present
evidence on the amnesty proclamation)
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(4) Pardon looks forward and forgives the punishment; amnesty looks
backward and abolishes the offense.

(5) Pardon is given individually; Amnesty is given to a group of people.

Q: What are the limitations on the pardoning power of the Chief Executive?
A: That the power be exercised after final conviction, and That such power does
not extend to cases of impeachment.

When does a judgment of conviction become final?

1) When no appeal is seasonably perfected;

2) When the accused commences to serve the sentence;
3) When the right to appeal is expressly waived in writing, except where the
death penalty was imposed by the trial court; and
4) When the accused applies for probation, thereby waiving his right to
appeal. (People vs. Salle, Jr., December 1995, en banc)

Case: People vs Bacang, 260 SCRA 44

Issue: May pardon be granted to an accused during the pendency of his

appeal from his conviction by the trial court?

Ans: No. if pardon is extended during the pendency of the appeal, such pardon
is VOID.

What are the effects of pardon by the offended party?

It does not extinguish criminal liability. The only exception is in Article 266-C
of the Code (amendment in the Anti-Rape Law) which requires a valid marriage
between the rapist and the victim to effect an extinguishment of criminal
liability. But civil liability is extinguished by express waiver of the offended.

In rape cases, will the pardon of the parents of the victim without the
concurrence of the minor victim herself be effective?

Ans: No. There are authorities holding that pardon must be granted not only by
the parents of an offended minor but also by the minor herself to be effective as
an express pardon under Article 344 of the Revised Penal Code, (now Article
266-C, R. A. No. 8353) Thus, in the case of People vs. Lacson, Jr., (CA) 55 OG
9460, we find the following words: 'Neither must we be understood as supporting
the view that the parents alone can extend a valid pardon. Far from it, for we
too are of the belief that the pardon by the parents, standing alone, is
inefficacious.' It was also held in another case that: 'The express pardon of a
person guilty of attempted abduction of a minor, granted by the latter's parents,
is not sufficient to remove criminal responsibility, but must be accompanied by
the express pardon of the girl herself.' (US vs. Luna, 1 Phil. 360) In the present
case, the supposed pardon of the accused was allegedly granted by the
mother without the concurrence of the offended minor. Hence, even if it be as-
sumed for the sake of argument that the initial desistance of the mother from
taking any action against the accused, constitutes pardon, it is clear from the
 161

authorities cited above, such pardon is ineffective without the express

concurrence of the minor herself. (People vs. Tadulan, April 1997)

In Monsanto v. Factoran, Jr., 170 SCRA 191, it was held that absolute pardon does
not ipso facto entitle the convict to reinstatement to the public office forfeited by
reason of his conviction. Although pardon restores his eligibility for appointment to that
office, the pardoned convict must reapply for the new appointment

Prescription of crime — refers to the loss or forfeiture of the right of the State to
prosecute the offender because of the lapse of time.

Prescription of penalty — refers to the loss or forfeiture of the right to the State to
execute the penalty because of the lapse of time.

Marriage -- between the accused and the victim extinguishes criminal liability.
The law contemplates a valid marriage. There must be no legal impediment to
the marriage.

Note: by marriage – this only applies to crimes of rape and crimes against
Chastity like seduction, abduction, acts of lasciviousness. The victim of rape
marries the accused, the criminal liability is extinguished.

Problem:

A, B and C raped Susan. The 3 were arrested and charged with rape. B who is
single, offered to marry Susan. The latter accepted the offer and they got
married. What is the effect of the marriage to the criminal liabilities of A, B and
C? Explain.

Answer:

This is a case of multiple rape. The marriage shall extinguish the criminal
liability of B alone. The marriage shall not extinguish the criminal liability of A and
C because the rape that they committed are separate and distinct from the
rape committed by B.

>>>>Marriage as a ground for extinguishing civil liability must have been

contracted in good faith. The offender who marries the offended woman must
be sincere in the marriage and therefore must actually perform the duties of a
husband after the marriage, otherwise, notwithstanding such marriage, the
offended woman, although already his wife can still prosecute him again,
although the marriage remains a valid marriage. Do not think that the marriage
is avoided or annulled. The marriage still subsists although the offended woman
may re-file the complaint. The Supreme Court ruled that marriage
contemplated must be a real marriage and not one entered to and not just to
evade punishment for the crime committed because the offender will be
compounding the wrong he has committed.

Art. 90. Prescription of crime. — Crimes punishable by death, reclusion perpetua

or reclusion temporal shall prescribe in twenty years.

Crimes punishable by other afflictive penalties shall prescribe in fifteen years.

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Those punishable by a correctional penalty shall prescribe in ten years; with the
exception of those punishable by arresto mayor, which shall prescribe in five
years.

The crime of libel or other similar offenses shall prescribe in one year.

The crime of oral defamation and slander by deed shall prescribe in six months.

Light offenses prescribe in two months.

When the penalty fixed by law is a compound one, the highest penalty shall be
made the basis of the application of the rules contained in the first, second and
third paragraphs of this article. (As amended by RA 4661, approved June 19,
1966).

>>> the case should be filed within a certain period of time. When should you
file it?

Period of Prescription of Crimes:

1) Death, reclusion perpetua and reclusion temporal — 20 years.
2) Other afflictive penalties — 15 years.
3) Correctional penalties — 10 years except arresto mayor which prescribes in 5
years.
4) Libel or similar offense — 1 year.
5) Grave oral defamation and slander by deed — 6 months. Light offenses — 2
months.

Period of prescription of false testimony — from the time the principal case is
decided. (People vs. Manajo, 56 Phil. 109)

What do we mean by months? By months, we mean 30 days. Note that March

has 31 days. So, March 15 to April 14 is ONE month. April has only 30 days – April
14 to May 14 – ONE month. So, the deadline was supposed to be in May 14 but
the information was only filed on May 15---prescribed na.

Rule WHEN THE LAST DAY OF PRESCRIPTIVE PERIOD FALLS ON A SUNDAY OR A

LEGAL HOLIDAY

When the last day of the prescriptive period for filing of the information falls on a
Sunday or legal holiday, the information can no longer be filed on the next day
as the crime has already presribed. (People vs. Buencamino, 122 SCRA 713)

Q: Does the prescriptive period provided under Art. 90 applies also to crimes
punished under special laws?

A: NO. It only applies to crimes punished under the RPC. The special laws have
their own prescriptive period.

Art. 91. Computation of prescription of offenses. — The period of prescription

shall commence to run from the day on which the crime is discovered by the
offended party, the authorities, or their agents, and shall be interrupted by the
filing of the complaint or information, and shall commence to run again when
 163

such proceedings terminate without the accused being convicted or acquitted, or

are unjustifiably stopped for any reason not imputable to him.

The term of prescription shall not run when the offender is absent from the
Philippine Archipelago.

Q: When does the period of prescription of a felony begin and when is it

suspended?
A:
Rule 1 ----- Prescription commences to run from the day following commission of
the offense or discovery of the crime by the offended party, the authorities or
their agents.

Rule 2 ---The period is interrupted by the filing of the complaint or information.

Rule 3 ---- The period commences to run again when such proceedings
terminate: (a) without the accused being convicted or acquitted; or (b) are
unjustifiably stopped for any reason not imputable to the offender.

Rule 4 ---- Prescription shall not run when the offender is outside of the
Philippines, except when there is an extradition treaty.

Note: The period begins to run from the date of the discovery of the crime.
“Discovery” of the crime is used and not commission of the crime.

Prescription begins to run from discovery of the crime if its commission is

unknown but its commencement can be reckoned from date of commission of
crime if it is known as when the series of transaction was by public instruments,
duly recorded, and with the transaction being known to the offended. (Dinsay
vs. CA 40 O.G. 12th Supp. 50)

Example: Grave Oral Defamation. A defamed you today. A said so many

derogatory remarks against you. B your friend heard it and told you 2 months
after. A, you know, B said this and that. You are defamed. When shall we start
computing the prescription of the crime. --- it is not on the day of the
commission of the crime but it was on the day of the discovery.

Example: If a victim is killed and his cadaver was buried to prevent its discovery in
20010– the victim is missing…no one knows where his cadaver is. But in 2011 after one
year the cadaver was discovered. So, here the discovery came after one year of its
commission. --- the reckoning point is on the date of discovery in 2011 and not on 2010,
the year the crime was committed.

Discovered by whom? --- it is discovered by the offended party, the authorities or his
agents.

Problem:

One fateful night in January 1990, while a five-year old Polo was urinating at the back
of their house, he heard a strange noise coming from the kitchen of their neighbor and
playmate, Ara. When he peeped inside, he saw Mina, Ara's stepmother, very angry and
strangling the 5-year old Ara to death. Polo saw Mina carry the dead body of Ara,
placed it inside the trunk of her car and drove away. The dead body of Ara was never
found. Mina spread the news in the neighborhood that Ara went to live with her
grandparents in Ormoc City. For fear of his life, Polo did not tell anyone, even his
parents and relatives about what he witnessed. Twenty and a half years after the
 164

incident, and right after his graduation in Criminology, Polo reported the crime to NBI
authorities. The crime of homicide prescribes in 20 years. Can the State still prosecute
Mina for the death of Ara despite the lapse of 20 & 1/2 years? Explain. (Bar Question)

Answer:

Yes, the State can still prosecute Mina for the death of Ara despite the lapse of
20 & 1/2 years. Under Article 91, RPC, the period of prescription commences to
run from the day on which the crime is discovered by the offended party, the
authorities or their agents. In the case at bar, the commission of the crime was
known only by Polo, who was not the offended party nor an authority or an
agent of an authority. It was discovered by the NBI authorities only when Polo
revealed to them the commission of the crime. Hence, the period of prescription
of 20 years for homicide commenced to run only from the time Polo revealed
the same to the NBI authorities.

Supposing, the crime of murder was committed in 1985. It was discovered and
was in fact investigated by the police authorities and the found out that it was X
who committed it. No case was filed because X went to Sulu. In 2011, X
returned. When he returned, a case was filed against him for the crime of
murder that he committed in 1985. Has the crime prescribed? Ans: YES. The law
says discovery of the crime not discovery of the criminal.

When does the running of the prescriptive period stop to run? --- by filing of a
complaint or Information--- where? Section 1 of Rule 110 now states: “Criminal
action shall be instituted as follows: xxxxx The institution of the criminal action
shall interrupt the running of the period of prescription of the offense charged
unless otherwise provided in the special rules.

Sermonia vs CA, 233 SCRA 155

---- prosecution for Bigamy --- 2 marriages.

Issue: Whether in computing the prescriptive period for the crime of bigamy,
should discovery ne deemed to have taken place from the time the offended
party actually knew of the subsequent marriage OR from the time the second
marriage was registered in the Local Civil Registry consistent with the
“constructive notice rule”?

Held: The computation starts from the time the offended party actually knew
and not from the time of its registration. While the rules on constructive notice in
civil cases may be applied in criminal cases if the actual and legal
circumstance so warrants. However, it will not apply in the crime of Bigamy
notwithstanding its being more favorable to the accused.

>>>> the difference with the Puno case is that in the Puno case, that
involves property in Sermonia, what is involved is marriage & marriage is not a
property. Aside from this, Section 52 of the Property Registration Acts states of
the rule on constructive notice but there is no counterpart under the Civil
Registry Act. --- there is no legal basis on the constructive rule as regards to
marriages.

Will the principle of constructive notice by registration be applicable to the

crime of bigamy?
 165

The principle of constructive notice should not be applied in regard to the

crime of bigamy as judicial notice may be taken of the fact that a bigamous
marriage is generally entered into by the offender in secrecy from the
spouse of the previous subsisting marriage. Also, a bigamous marriage is
generally entered into in a place where the offender is not known to be still a
married person, in order to conceal his legal impediment to contract another
marriage. (People vs. Reyes, July 1989)

When does the period of prescription start to run?

The running of the period starts from the discovery of the crime by the offended
or the authorities or their agents This list is exclusive; hence, discovery by other
than them will not make the period start to run. For instance, the dis covery of
the crime by a neighbor of the victim, not being an agent of the offended party
will not commence the running of the period.

What causes the interruption and the resumption of the running of the period?

The running of the period is interrupted by the filing of the complaint or

information or when the offender is out of the country. The period runs again
when the proceedings are terminated without acquittal or conviction for
reasons not attributable to the offender.

What is the effect of the delay in the reporting of crimes in its prosecution?

None. The law on prescription would be meaningless if we were to yield to the

proposition that delay in the prosecution of crimes would be fatal to the State
and the offended parties. In fixing the different prescriptive periods on the basis
of the gravity of the penalty prescribed therefor, the law takes into account or
allows reasonable delays in the prosecution thereof. In a number of cases, we
have held that a delay of 17 days, 35 days or even 6 months by a victim of rape
in reporting the attack on her honor does not detract from the veracity of her
charge.

Who is the offended party in Article 91 ?

It is true that bigamy is a public offense. But, it is entirely incorrect to state that
only the State is the offended party in such case, as well as in other public
offenses, and therefore, only the State's discovery of the crime could effectively
commence the running of the period of prescription therefor. Article 91 of the
Revised Penal Code provides that the period of prescription shall commence to
run from the day on which the crime is discovered by the offended party, the
authorities, or their agents. This rule makes no distinction between a public crime
and a private crime, in both cases then, the discovery may be by the offended
party, the authorities, or their agents. --- Garcia vs CA, 266 SCRA 678

Art. 92. When and how penalties prescribe. — The penalties imposed by final
sentence prescribe as follows:

1. Death and reclusion perpetua, in twenty years;

2. Other afflictive penalties, in fifteen years;

 166

3. Correctional penalties, in ten years; with the exception of the penalty of

arresto mayor, which prescribes in five years;

4. Light penalties, in one year.

Art. 93. Computation of the prescription of penalties. — The period of prescription

of penalties shall commence to run from the date when the culprit should evade
the service of his sentence, and it shall be interrupted if the defendant should
give himself up, be captured, should go to some foreign country with which this
Government has no extradition treaty, or should commit another crime before
the expiration of the period of prescription.

>>>>it is the loss or forfeiture of the right of the government to execute the final
sentence after the lapse of a certain time fixed by law.

>>>if the sentence is not yet final, the period of prescription will not run because Art. 93
refers to the accused who shall “evade the service of sentence.” It does not start to run
where despite his final conviction the accused is not arrested to serve his sentence.

>>>>>Prescription of the penalty presupposes that the accused has been convicted by
final judgment and he evades the service of the penalty. From that time on, the
prescriptive period of the penalty commences to run.

With reference to the last clause, "the commission of another me before the expiration
of the period of prescription" should be interpreted to mean that the convict is found
guilty of a crime committed before the expiration of the prescriptive period.

Prescription of penalty begins to run from the date the culprit evades the service of
sentence. It is interrupted:

1. If the accused surrenders.

2. if he is captured.
3. If he should go to a foreign country with which the Philippines has no
extradition treaty.
4. If he should commit another crime before the expiration of the prescriptive
period.

>>>Acceptance of a conditional pardon interrupts the prescriptive period because it is

similar to a case of one fleeing from this jurisdiction. (People vs. Puntilos, L-45296, June
15, 1938)

>>>>>There must be evasion of the sentence before the prescriptive period begins to
run. (Infante vs. Warden, 48 O.G. 5228) Period of prescription commences to run from
the date the accused evades the service of the sentence.

Problems:
A was charged with Homicide. In 1980, he was convicted and was sentenced to
suffer Reclusion Temporal. After serving 6 months in prison, he escaped. He was
arrested in 2002. Can he be made to suffer the penalty imposed upon him?

Answer:

No, because the penalty has prescribed. The prescriptive period of Reclusion Temporal,
being an afflictive penalty is 20 years. When A was arrested, more than 20 years have
elapsed. The State has lost its right to execute the penalty.
 167

Problem: A was charged with Homicide. In 1980, the case was set for promulgation of
decision. A absconded and did not appear on judgment day. As a consequence, the
court ordered for his arrest and the confiscation of his bond. In 2001, A was arrested.
The court ordered his commitment in jail to serve the penalty imposed upon him. The
lawyer for A argued that A shall not serve the penalty anymore because the penalty
has prescribed inasmuch as 21 years have elapsed when he was arrested. Is counsel
correct? If you were the Judge, how will you decide?

Answer:

Counsel is not correct. I will rule that counsel's argument is untenable. This is so because
prescription of penalty is applicable only if the convict has served a portion or fraction
of the penalty imposed upon him. In the case at bench, A jumped bail and did not
appear during the promulgation of decision. He did not serve a portion or fraction of
the penalty imposed. He has not evaded service of his sentence hence, there is no
prescriptive period to speak of. (Tanega vs. Masakayan, GR No. L-27191, Feb. 28, 1967)

>>>>>If the culprit is captured and then evades again the service of his sentence, the
period of prescription that has ran in his favor should be taken into account.

Suppose A is convicted of a crime where the penalty prescribes in 10 years. Then A

evaded. After 5 years, A was captured. Then A evaded again. How long should A
remain at large? Ans: 5 years nalang kay may deposit naman sya.

Note: The law says “interrupted”---when does interruption occur….when you go to

another country where the Philippines has no extradition treaty or when you commit
another offense while in hiding….you must behave well…

Q: Is this not tantamount to encouraging convicted prisoners of escaping? ---kasi it

seems na may reward pa ka if you escape from prison ---
A: If a convict under confinement, at the risk of being killed, succeeds in breaking jail
and also succeeds in evading his re-arrest for a certain period of time and note…you
evaded the long arm of the law… the government is stronger than you are and despite
that fact you were able to evade arrest, you outwitted the government ---na “eat my
dust” ---the government will give you some sort of amnesty. But take note….during the
period where you evaded arrest, the escaped convict lives a life of a hunted animal,
hiding mostly in the mountains in constant fear of being caught ---especially if there is a
bounty for your head ---, his life is far from happy, comfortable and peaceful. Your life is
full of misery---- a convict who evades sentence is punished for his voluntary and self-
imposed banishment, and at times that voluntary exile is more grievous than the
sentence he was trying to avoid. And at all times he has to utilize every ingenuity and
means to outwit the government agencies bent on recapturing him. For all this, the
government extends to him some sort of condonation or amnesty.

Chapter Two
PARTIAL EXTINCTION OF CRIMINAL LIABILITY

Art. 94. Partial Extinction of criminal liability. — Criminal liability is

extinguished partially:

1. By conditional pardon;

2. By commutation of the sentence; and

3. For good conduct allowances which the culprit may earn while he is
serving his sentence.
 168

What cause the partial extinction of criminal liabilities?

a. Conditional pardon;
b. Commutation of sentence;
c. Good conduct allowance;
d. Parole under the Indeterminate Sentence
Law;
e. Probation under P.D. No. 968; (Note: Under
the new law, probation now constitutes
total extinction)
f. Partial repeal of penal law. (supra)

What are the nature and effects of a conditional pardon?

A conditional pardon is in the nature of a contract between the sovereign

power or the Chief Executive and the convicted criminal to the effect that the
former will release the latter subject to the condition that if he does not comply
with the terms of the pardon, he will be recommitted to prison to serve the
unexpired portion of the sentence or an additional one. (Alvarez vs. Dir. of
Prison, 80 Phil. 50) By the pardonee's consent to the terms stipulated in this
contract, the pardonee has thereby placed himself under the supervision of the
Chief Executive or his delegate who is duty-bound to see to it that the pardonee
complies with the terms and conditions of the pardon. Under Sec. 64(1) of the
Revised Administrative Code, the Chief Executive is authorized to order "the
arrest and re-incarceration of any such person who, in his judgment, shall fail to
comply with the condition, or conditions of his pardon, parole, or suspension of
sentence." (Torres vs. Dir. of Bureau of Corrections, December 1995)

Q: May the grant of pardon be subject to the review of the courts?

A: No. It is now a well-entrenched rule in this jurisdiction that this exercise of

presidential judgment is beyond judicial scrutiny. The determination of the
violation of the conditional pardon rests exclusively in the sound judgment of the
Chief Executive. The pardonee, having consented to place his liberty on
conditional pardon upon the judgment of the power that has granted it cannot
invoke the aid of the courts, however erroneous the findings may be upon
which his recommitment was ordered. (Tesoro vs. Dir. of Prisons, 68 Phil. 154)

Q: What are the effects of conditional pardon as to the civil liability?

A: A conditional pardon, when granted does not extinguish the civil liability
arising from the crime. (Art. 36, Revised Penal Code) (Monsanto vs. Factoran, Jr.,
170 SCRA [1989]; People vs. Nacional, September 1995)

Q: What is the consequence of a violation of the conditions of conditional

pardon?
A: The offender shall be rearrested and incarcerated by order of the President
under the Revised Administrative Code; OR he shall be prosecuted under Art.
159 of the Revised Penal Code. It has been our fortified ruling that a final judicial
pronouncement as to the guilt of a pardonee is not a requirement for the
President to determine whether or not there has been a breach of the terms of
a conditional pardon. There is likewise nil a basis for the courts to effectuate the
reinstatement of a conditional pardon revoked by the President in the exercise
of powers undisputedly solely and absolutely lodged in his office. (In the matter
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of the petition for habeas corpus of Wilfredo Sumulong Torres [Torres vs. Dir. of
Bureau of Corrections, December 1995])

Parole — consists in the suspension of sentence of a convict after serving the

minimum of the sentence imposed without granting a pardon, prescribing the
terms upon which the sentence shall be suspended.

If the convict fails to abide by the conditions of the parole, the Board of Pardons
and Parole may:
1. order his arrest and return to custody;
2. to execute his sentence without deduction of the time
that has elapsed between the date of the grant of parole
and the subsequent arrest.

Parole and Conditional Pardon distinguished:

1. Conditional Pardon is extended by the Chief Executive; parole by the Parole

Board;
2. For violation of the conditional pardon, the convict is rearrested to serve the
remitted penalty or prosecuted under Art. 159; in violation of parole, the
convict is rearrested to serve the unexpired portion of the penalty.

Q: May a person convicted of a crime and punished to suffer the penalty of

reclusion perpetua be eligible for parole?
A: “It must be emphasized, however, that [appellant is] not eligible for parole pursuant
to Section 3 of Republic Act No. 9346 which states that ‘persons convicted of offenses
punished with reclusion perpetua, or whose sentence will be reduced to reclusion
perpetua by reason of this Act, shall not be eligible for parole under Act No. 4180,
otherwise known as the Indeterminate Sentence Law, as amended (People vs Bacatan,
G.R. No. 203315, February 2, 2014)

Pendency of another case may be a

ground for disqualification of parole

Case: Lex Adonis vs Tesoro-DAPECOL, G.R. No. 182855, June 5, 2013

While it is true that a convict may be released from prison on parole when
he had served the minimum period of his sentence; the pendency of another
criminal case, however, is a ground for the disqualification of such convict from
being released on parole

ART. 95. Obligation incurred by person granted conditional pardon. — Any

person who has been granted conditional pardon shall incur the obligation of
complying strictly with the conditions imposed therein; otherwise, his non-
compliance with any of the conditions specified shall result in the revocation of
the pardon and the provisions of Article 159 shall be applied to him.

Conditional pardon — The grant of Conditional Pardon is a silent contract, a

covenant between the President and the convict. To be effective, the
conditional Pardon must be accepted in writing by the accused.

It is subject to a condition which, if complied with by the convict could result in

his final release but which, if not complied with or violated, may result to the
revocation of the conditional pardon.
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In case the convict violates any of the conditions of the conditional pardon, the
President has the power to order his recommitment and the courts will not
inquire into the validity of such recommitment. (Espuelas vs. Prov. Warden of
Bohol, 108 Phil. 353)

Aside from recommitment, the convict is also criminally liable under Art. 159 of
the RPC (Other cases of Evasion of Service of Sentence)

Q: X, a convict, was granted Conditional Pardon. One of the conditions in the

pardon was that he should not commit a crime within 2 years. After one year, he
was charged with Attempted Homicide. Can the Conditional Pardon be
revoked so that he will serve the remaining penalty remitted by the pardon?

A: Yes. The condition in the pardon that the convict should not commit a crime
is violated by the mere commission of an offense, hence conviction therefore
was not necessary. (Tesoro vs. Director of Prisons, 68 Phil. 154)

ART. 96. Effect of the commutation of sentence. — The commutation of the

original sentence for another of a different length and nature shall have the
legal effect of substituting the latter in the place of the former.

Commutation of sentence---- is an act where the Chief Executive reduces the

degree of the penalty inflicted upon the convict or by decreasing the length of
imprisonment or the amount of the fine.

Cases where commutation takes place:

1. When the convict sentenced to death is over 70 years of age.

(Art. 83)
2. When 8 justices of the Supreme Court fail to reach a decision for
the affirmance of the death penalty.

ART. 97. Allowance for good conduct. — The good conduct of any prisoner
in any penal institution shall entitle him to the following deductions from the
period of his sentence:

(1) During the first two years of his imprisonment, he shall be allowed a
deduction of five days for each month of good behavior;

(2) During the third to the fifth year, inclusive, of his imprisonment, he shall be
allowed a deduction of eight days for each month of good behavior;
(3) During the following years until the tenth year inclusive of his imprisonment,
he shall be allowed a deduction of ten days for each month of good behavior;
and;
(4) During the eleventh and successive years of his imprisonment, he shall be
allowed a deduction of fifteen days for each month of good behavior.

Good Conduct Allowance

For good behavior, a convict earns good conduct allowances deductible
from his sentence. It can be given only to prisoners by final conviction and not
to detention prisoners. It cannot be granted to those on conditional pardon,
parole, or those sentenced to destierro.
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>>>>It should be remembered that good conduct allowance may be earned

only while the accused is serving sentence.

Art. 98. Special time allowance for loyalty. — A deduction of one-fifth of the
period of his sentence shall be granted to any prisoner who, having evaded the
service of his sentence under the circumstances mentioned in Article 58 of this
Code, gives himself up to the authorities within 48 hours following the issuance of
a proclamation announcing the passing away of the calamity or catastrophe to
in said article. (Note: affected by the new amendatory law)

Art. 99. Who grants time allowances. — Whenever lawfully justified, the Director
of Prisons shall grant allowances for good conduct. Such allowances once
granted shall not be revoked

Q: When is good conduct allowance given?

A: There must be the following requisites:
1. The occurrence of disorder resulting from a conflagration,
earthquake, explosion or similar catastrophe or a mutiny in which
the prisoner did not participate;
2. The convict must evade the service of his sentence;
3. He must give himself up within 48 hours after the issuance of a
proclamation by the Chief Executive announcing the passing
away of such calamity.

The offender who shall give himself up under the conditions specified above
shall be given a loyalty award equivalent to 1/5 of the period of his sentence by
the Director of Prisons.

The provisions of this article apply only to cases falling under Article 158 of the
Code, that is to say, to convicts who, during any of the calamities mentioned in
Article 158, leave the penal institution but give themselves up to the authorities
within 48 hours after the proclamation announcing the passing away of the
calamity.

In Summary, the following circumstances reduce the sentence being served by

the convict:

1) Conditional pardon (Art. 95)

2) Commutation of sentence (Art. 96)
3) Good conduct allowances (Art. 97)
4) Special conduct
5) Loyalty allowance (Art. 98)

What is the basic principle in civil liability ex-delicto?

That every person criminally liable is also civilly liable, crime being one of the five
sources of obligation under the Civil Code. However, if a person is acquitted
from a criminal charge, it does not mean that he is civilly free also because the
quantum of proof required in criminal prosecution is proof beyond reasonable
doubt whereas, in civil liability the quantum of proof required is merely
preponderance of evidence. When a person is acquitted therefor, his acquittal
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must be based on the fact that he did not commit the offense to be free from
liability. For, if his acquittal is based merely on reasonable doubt, he may still be
liable. In this case, it does not mean that he did not do the act complained of. It
may only be that the facts proved did not constitute the offense charged.

Note: Civil liability may be expressly waived by the offended

General rule: When a criminal action is instituted, the civil aspect arising from the
crime is deemed instituted. ---that is why there are 2 aggrieved parties in a
criminal action, the state and offended party.

DUAL CHARACTER OF A CRIME:

1. As an offense against the State; and

2. As an offense against the person injured by the crime. –given the right
to recover damages
How do you separate the two?

Ans: (1) By waiving it (2) reserving the right to file separate civil action (3) when
the civil action is instituted ahead of the criminal action.

Q: Supposing, the civil case is segregated or reserved…. Which of the 2 shall be

decided first?
A: Gen. rule: the criminal case must precede the civil case. The civil case should await
the outcome of the criminal case---the civil case is suspended until the criminal case is
decided. ---what happen if the accused is acquitted in the criminal case---what would
happen to the civil case? – Rule 111 says extinction of the criminal liability does not
extinguish civil liability.

Effect of Dismissal of Case:

The dismissal of the information does not preclude the complainant to institute a civil
action arising from the crime. Dismissal of the criminal action does not carry with it
extinction of the civil action.

Effect of Acquittal of the accused:

Acquittal of the accused does not mean extinction of his civil liability unless there is a
declaration in the decision that the fact from which the civil liability might arise did not
exist. (Sec. 1, Rule 111, 2000 Rules on Criminal Procedure).

As a rule, if the offender in a criminal case is acquitted, his civil liability is also
extinguished.

What are the exceptions?

The exceptions to the rule that acquittal from a criminal case extinguishes civil
liability are:

1. When the civil action is based on obligations not arising from the act
complained of as felony;
2. When acquittal is based on reasonable doubt or acquittal is on the
ground that guilt has not been proven beyond reasonable doubt. (Art.
29, New Civil Code);
3. Acquittal due to an exempting circumstance, like insanity;
4. Where the court states in its judgment that the case merely involves a
civil obligation;
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5. Where there was a proper reservation for the filing of a separate civil
obligation;
6. In cases of independent civil actions provided for in Arts. 31, 32, 22, and
34 of the New Civil Code;
7. Where the civil liability is not derived or based on the criminal act of
which the accused is acquitted. (Sapiera vs. CA, 314 SCRA 370)

When the accused is acquitted on the ground of reasonable doubt, the court
may award civil damages proved in the same case without need for separate
civil action. With the accused having been accorded due process, to require a
separate civil action would needlessly clog the court dockets. (Maximo vs.
Gerochi, 144 SCRA 326)

Two kinds of acquittal:

First: an acquittal on the ground that the accused is not the author of the act or
omission complained of. This closes the door to civil liability for a person who has
been found to be not the perpetrator of the crime and can never be held liable
for such act or omission. There being no delict, civil liability ex delicto is out of the
question and the civil action, if any, which may be instituted must be based on
ground other than the delict complained of.

Second: an acquittal based on reasonable doubt on the guilt of the accused. In this
instance, even if the guilt of the accused has not been satisfactorily established,
he is not exempted from civil liability which may be proved by preponderance
of evidence only ( Daluraya vs Olica, G.R. No. 210148, December 8, 2014)

Q: What is a prejudicial question?

A: Prejudicial question is one which arises in a case whereby the resolution of a
civil case so closely intertwined with the criminal action is determinative of the
acquittal or innocence of the accused.

It arises in a civil case which must first be decided before ; a criminal case in
which it is involved is tried. This is so because the guilt or innocence of the
accused in the criminal case can be determined in the civil case.

Elements of a prejudicial question:

1. Civil case involving an issue similar or intimately related to the issue in

the criminal case;
2. The resolution of such issue determines whether or not the criminal
action shall proceed.
Civil liability of persons exempt from criminal liability:

Persons who have legal authority, custody or control of an imbecile or insane

person or minor (under 9 or over 9 but below 15 years of age who acted without
discernment) are primarily liable to pay the civil liability for acts committed by
the latter if said persons are at fault or negligent.

NOTE: RA 9344 provides that a minor 15 years of age and below is exempt from
criminal liability whether he acted with or without discernment.
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If there was no fault or negligence on their part, or if there was fault or

negligence but are insolvent, the insane, imbecile or the minor shall be
answerable with their own property not exempt from execution.

Civil liability of minor who acts with discernment devolve upon the parents. (PD
603)

In the case of state of necessity (Art. 11, par. 4), the ones benefited shall
proportionately shoulder the civil liability.

In cases falling under subdivisions 5 and 6 of Art. 12, the persons who used
violence or caused fear shall be primarily and secondarily liable. If there be no
such persons, the person doing the act shall be liable.

How do you enforce the civil liability of a minor with respect to the crime that he
has committed? – Art. 221 of the Family Code as amended, “parents and other
persons exercising parental authority shall be civilly liable for the injuries &
damages caused by the acts or their unemancipated children living in their
company & under their parental authority subject to the appropriate defenses
provided by law. ----the liability now devolves upon those who exercises
parental authority --- but you can raise defenses.

Libi vs IAC, 214 SCRA 16 --- SC said that civil liability of the parents does not limit
to acts or omission arising from culpa aquiliana but also those that arise from
crime. It is not confined to quasi-delict----parents are liable unless it is proven
that the parents acted with the diligence of a good father of a family.

Art. 102. Subsidiary civil liability of innkeepers, tavernkeepers and proprietors

of establishments. — In default of the persons criminally liable, innkeepers,
tavernkeepers, and any other persons or corporations shall be civilly liable for
crimes committed in their establishments, in all cases where a violation of
municipal ordinances or some general or special police regulation shall have
been committed by them or their employees.

Innkeepers are also subsidiarily liable for the restitution of goods taken by
robbery or theft within their houses from guests lodging therein, or for the
payment of the value thereof, provided that such guests shall have notified in
advance the innkeeper himself, or the person representing him, of the deposit of
such goods within the inn; and shall furthermore have followed the directions
which such innkeeper or his representative may have given them with respect to
the care and vigilance over such goods. No liability shall attach in case of
robbery with violence against or intimidation of persons unless committed by
the innkeeper's employees.

Example: An ordinance was passed prohibiting the selling of liquor after

midnight. You the owner sold liquor after midnite. Customers kills another
customer ----who is criminally liable? Of course, the customer, the one who
killed. Who is civilly liable? Of course the customer----- what if the customer is
insolvent? ---the owner of the bar is liable.

Elements under paragraph 2:

1. That the guests notified in advance the innkeeper or the person

representing him of the deposit of their goods within the inn or house.
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2. The guests followed the directions of the innkeeper or his representative

with respect to the care of and vigilance over such goods.
3. Such goods of the guests lodging therein were taken by robbery with
force upon things or theft committed within the inn or house.

There is no liability in case of robbery with violence against or intimidation of

persons, unless committed by the innkeeper's employees.

Defenses:

1) Failure of notification on the part of the guest;

2) Violation of innkeeper's direction over care and vigilance of goods;
3) Robbery with violence or intimidation

Distinctions between the civil liability of the employer under Article 103 of the Revised
Penal Code and his liability under Article 2180 of the New Civil Code:

1. As to the source of the civil liability of the offender-employer. Under Article 103 of the
Revised Penal Code, the civil liability arises from crime, while under Article 2180, the
obligation arises from quasi-delict.

2. As to the nature of the liability of the employer. The liability of the employer under the
RPC is subsidiary, while under the Civil Code, it is direct and primary;

3. As to whether a separate complaint must be filed against the employer. Under the
RPC, the filing of a separate complaint against the operator for recovery of subsidiary
liability is clear from the decision of conviction against the accused. Under the Civil
Code, the complaint must be filed against the employer because his liability is direct
and primary.

4. As to the necessity of previous conviction in a criminal case. The RPC requires

previous conviction of the offender-employer. Such is not required under the Civil
Code.

5. As to the availability of the defense of the “exercise of diligence of a good father of

the family in the selection and supervision of employee.” This defense is not available to
defeat the employer’s subsidiary liability under the RPC. On the other hand, the Civil
Code allows such defense in favor of the employer.

Note: The diligence of a good father of a family in the selection and supervision will not
exempt the party who is subsidiary liable for damages.
The subsidiary liability of the employer arises only after conviction of the employee in
the criminal action.

* A judgment of conviction sentencing a defendant employee to pay an indemnity is

conclusive upon the employer in an action for the enforcement of the latter’s
subsidiary liability. (Rotea vs. Halili, 109 Phil. 495)

* Acquittal of the driver in the criminal case is not a bar to the prosecution of the civil
action based on quasi-delict. The source of obligation in the criminal case is Article
103, or obligations arising from crime, while the civil action is based on Article 2176 or
quasi-delict. Article 1157 of the Civil Code provides that quasi-delicts and acts or
omissions punishable by law are two different sources of obligations.( Virata vs.
Ochoa )

Q: What is included in civil liability?

1. Restitution;
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2. Reparation of the damage caused;

3. Indemnification for consequential damages.

Restitution — restoration of the thing to the rightful owner.

Reparation of the damage caused — this is done if restitution is not possible. The
accused shall compensate the offended party for the thing lost or destroyed. The court
shall determine the amount of damage. This applies to crimes against property.

Indemnification of consequential damages — this includes not only the damages

sustained by the offended party but also those of the members of his family. It applies
to crimes against persons.

ART. 105. Restitution. How made. — The restitution of the thing itself must he
made whenever possible, with allowance for any deterioration, or diminution of
value as determined by the court.
The thing itself shall be restored, even though it be found in the
possession of a third person who has acquired it by lawful means, saving to the
latter his action against the proper person who may be liable to him.
This provision is not applicable in cases in which the thing has been
acquired by the third person in the manner and under the requirements which,
by law, bar an action for its recovery.

>>>Restitution is the return/restoration of the thing itself with allowance for any
deterioration or diminution of value.
>>>Restitution can be made even from third persons who lawfully acquired the thing.
He can however file an action against the person from whom he acquired it, unless he
acquired it in a manner where the law bars an action for recovery like acquisition from
a public auction.

ART. 106. Reparation. — How made. — The court shall determine the amount of
damage, taking into consideration the price of the thing, whenever possible, and
its special sentimental value to the injured party, and reparation shall be made
accordingly.

Reparation requires the culprit in case of inability to return the stolen property to
pay the value of the property or to pay for the damaged property.

How do you determine the value> --- market value including other factors like the
sentimental value of the property.

Example:

A attacked B with a piece of wood and hit him several times. B was injured and his
watch valued at Php 6,000 was destroyed. In addition to his criminal liability if found
guilty, A shall also pay for the destroyed watch. This is reparation of the damage
caused.

In cases of physical injuries, the accused shall pay the hospital bills and doctor's fees
to the offended party.

>>>Reparation can be required only from the accused.

ART. 107. Indemnification. — What is included. — Indemnification for the

consequential damages shall include not only those caused the injured party,
but also those suffered by his family or by a third person by reason of the crime.
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Indemnification for consequential damages which is generally payment of lost or

unrealized salary or earning and includes not only those of the offended party but his
family and even by a third person by reason of the crime.

In homicide, the accused is ordered to pay the family of the victim, actual or
compensatory damages. ---cost of life –SC’s policy: P75 (People vs Jugueta 2015)

Read: Pp vs Magat, 332 SCRA; PP vs More, December 1999.

Awardable damages in cases of death:

1) The death indemnity by judicial fiat is presently Php75,000.00; (People vs.

Jugueta2015)

2) Loss of earning capacity of the deceased; (Art. 2202 par. 1 of the New Civil
Code)

3) Moral damages in favor of the spouse, descendents and ascendants of the

deceased. (Art. 2206, New Civil Code)

Moral damages to be recoverable must be the proximate result of the wrongful act or
omission the factual basis for which is satisfactorily established by the aggrieved party.
(Philippine National Bank vs. Court of Appeals, 395 SCRA 272)

As borne out by human nature and experience, a violent death invariably and
necessarily brings about emotional pain and anguish on the part of the victim's family.
(People vs. Rubiso, 399 SCRA 267)

4) Exemplary damages. (Art. 2230, New Civil Code)

ART. 109. Share of each person civilly liable. — If there are two or more persons civilly
liable for a felony, the courts shall determine the amount for which each must respond.

ART. 110. Several and subsidiary liability of principals, accomplices, and accessories of a
felony — Preference in payment. — Notwithstanding the provisions of the next preceding
article, the principals, accomplices, and accessories, each within their respective class,
shall be liable severally (in solidum) among themselves for their quotas, and subsidiarily
for those of the other persons liable.

>>>>Liability of the principals of a felony is in solidum. The accomplice is solidarily liable for
1/2 of the amount imposed on the principal as his share and he is subsidiarily liable for the
other half in case the principal in insolvent.

The subsidiary liability shall be enforced, first against the property of the principals, next
the accomplice and against that of the accessories.

Subsidiary liability is enforced:

(a) First, against the property of the principals;
(b) Second, against that of the accomplices; and
(c) Third, against that of the accessories.

Whenever the liability in solidum or the subsidiary liability has been enforced, the person by
whom payment has been made shall have a right of action against the others for the amount of
their respective shares.

The person who made the payment when liability has been enforced, will have a right of action
against the others for the amount of their respective shares.
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Damages unaffected by the Anti-Death Penalty Law

“We would like to stress that even if the death penalty is not to be imposed on
the appellant because of the prohibition in RA No. 9346, the award of damages
under prevailing jurisprudence is not affected. This award is not dependent on
the actual imposition of the death penalty, but on the fact that the qualifying
circumstances warranting the imposition of the death penalty attended the
commission of the offense. (People vs Filomeno Villanueva, April 13, 2007)

Q: When do you award exemplary damages?

A: It is awarded when qualifying aggravating circumstance is present in the
commission of the crime i.e. relationship (People vs Michael Palanay, G.R. No.
224583, February 1, 2017)

Q: Why exemplary damages are awarded?

A: To deter others from committing similar acts or for correction for the public
good. (People vs Michael Palanay, G.R. No. 224583, February 1, 2017)

*References: Discussions and citations are based from the book of JBL Reyes,
Criminal Law Book 1; Criminal Law Book 1 by Abelardo Estrada, 2014 Golden Notes-
UST; Criminal Law Review by Ambrosio Padilla III; ADDU transcription from the
lectures of Dean Iñigo; Criminal Law Reviewer by Boado; and Supreme Court
decisions.