CRIMINAL LAW

(Book 1)

NAPARATE, CLARIVELLE E
BS CRIMINOLOGY II-C

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 ESSENTIALS OF CRIMINAL
LAW
PRELIMINARY ARTICLE- This law shall be known as “THE REVISED PENAL
CODE.”

Book One
GENERAL PROVISIONS
REGARDING THE DATE OF
ENFORCEMENT AND THE
APPLICATION OF THE
PROVISIONS OF THIS CODE, AND
REGARDING THE OFFENSES,
THE PERSON LIABLE AND THE
PENALTIES

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 CRIMINAL LAW IN GENERAL

CRIMINAL LAW – that branch of municipal law which defines crimes, treats of their

nature and provides for their punishment.

“it is that branch of public substantive law which defines offenses and prescribes their

penalties. It is substantive because it defines the states right to inflict punishment and

the liability of the offenders. It is public law because it deals with the relation of the

individual with the state.”

CRIME-The commission or omission by a person having capacity, of any act, which is

either prohibited or compelled by law and the commission or omission of which is

punishable by a proceeding brought in the name of the government whose law has

been violated.

NO COMMON LAW CRIMES

There are no common law crimes in Philippines jurisdiction. Absent a law which

punishes an act or omission of which a person is charged, there has no jurisdiction to

try the case and, hence, must dismiss the same. There is no crime if there is no law

punishing it – Nullum crimen, nulla poena sine lege

FELONY - if punishable by the RPC

OFFENSE - if punishable by a special law

INFRACTION- If punishable by an ordinance

NULLUM CRIMEN, NULLA POENA SINE LEGE

1. One cannot be held liable for violation of a law that has not yet been published at

the time of the alleged violation.

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 2. Publication means that the particular issue of the Official Gazette or other publication

in which penal law is printed, must already have been released for circulation.

3. The law must not be unconstitutional, otherwise the acts done by the accused cannot

constitute a crime.

4. That the law must prescribe a definite penalty, for the court cannot supply the

legislative omission.

5. Crime charged must be defined by law jurisprudence.

6. The law that is violated must still be valid during the pendency of the prosecution.

CRIMES AGAINST LIBERTY

Kidnapping for ransom consummates at the precise moment when the victim was

abducted. Receiving ransom payment is not an element of this crime. What is important

is that the victim was kidnapped for purpose of ransom. Hence, impossibility to obtain

the ransom payment after the consummation of the crime of kidnapping will not render

the crime impossible.

(People v. Tan, G.R.No.95322, March 1, 1993) Moreover, kidnapping is a crime against

liberty. In impossible crime, the act which is impossible to commit must constitute crime

against person or property. (2000 and 2014 Bar Exams)

CRIME AGAINST PUBLIC INTEREST

Forgery involving PCSO ticket consummates at the precise moment when the accused

forged the document. Encashing the ticket is not an element of this crime. Hence,

impossibility to encash the ticket because its falsity is very obvious after the

consummation of forgery will not render the crime impossible.

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 (People v. Balmores, G.R. No. L-1896, February 16, 1950) Moreover, forgery is a crime

against public interest. In impossible crime the act which is impossible to commit must

constitute crime against person or property.

(GENERALITY) – MILITARY LAW

The following persons are subject to military law, however, notwithstanding the military

character of these persons.

ESSENTIALS OF CRIMINAL LAW

The civil court concurrently with the military courts have jurisdictions:

1. Officers, members of the Nurse Corps

2. Soldiers of the regular forces of the Phil. Army

3. Reservists from the dates of their call to active duty

4. Trainees

5. Cadets, flying cadets and probationary Third lieutenants

6. All retainers of the camp and all persons accompanying or serving the Army of the

Philippines in the field of war on when Martial Law is declared

7. All other persons lawfully called

8. All persons under sentence imposed by Court Martial (Article 2, CA 408, Articles of

War)

The jurisdiction of a military court over a soldier is not exclusive of the civil courts even

in time of war, if the soldier is stationed in a place where the civil courts are functioning

and where no actual hostilities are in progress. (Valdez v. Lucero, 76 Phil. 356)

However, R.A 7055, which repealed P.D. Nos. 1822-A, 1850, and 1952, returned to the

civilian courts the jurisdiction over military personnel who are involved in criminal acts.
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 (2) TERRITORIALITY

Territoriality pertains to 4 parts which are:

1. Body of land

2. Airspace/Atmosphere

3. Interior waters

4. Maritime zone

Airspace includes the airspace above the island comprising the Philippine archipelago

subject to the easement of friendly foreign navigation under Public International Law.

Under the “archipelago doctrine” the interior waters which include the waters

separating the island from one another.

EFFECTIVENESS AND APPLICATION

The maritime zone extends to 12 miles from the outer most coastline because of the

Conference on the Law of the Sea which was ratified by the Interim Batasang

Pambansa.

The body of water beyond the maritime zone is called the “high seas,” or “international

waters” which are beyond the jurisdiction of any country. If a crime is committed within

Philippine territory, the provisions of the Revised Penal Code under Art.2 are given

territorial application.

QUESTION: May the provision of the RPC apply to crimes committed outside the

Philippine territory?

ANSWER: The enumeration under Article 2 of the Revised Penal Code, supra,

provides for the exceptions to territoriality

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 Note: that with respect to crimes committed by public officers, the general rule is that

the RPC governs only when the crime committed pertains to the exercise of the public

official’s functions, or those having to do with the discharge of their duties in the foreign

country.

EXPLANATION:

(1) Crime committed on board a Philippine ship or airship outside of the territorial

waters of the Philippines.

Under the New Rules on Criminal Procedure, the phrase “registered vessel” had been

deleted and instead what is provided is “subject to the provisions of international law”.

Therefore, there is a Philippine vessel unregistered under the laws of the Philippines.

Outside of the territorial waters of the Philippines, a crime may be committed on that

unregistered Philippine vessel.

QUESTION: Is the crime committed in the UNREGISTERED Phil. vessel triable before

the Philippine courts?

ANSWER: YES, we consider the present provisions of the 1985 Rules on Criminal

Procedure as amended in 1988, subject to the provisions of the Public International

Law. If the crime committed on the board that unregistered vessel, is either piracy of

mutiny, they are admittedly crimes against the law of nations.

Secondly, if the unregistered vessel is owned by a Filipino citizen, and crime was

committed on board that unregistered vessel, it is also subject to the jurisdiction of the

Philippine courts because of the point of embarkation which is the court of the place

where the vessel returns.

Note: There is no question that if the vessel is registered under the laws of the

Philippines and a crime was committed on board that registered vessel even though

the vessel is in the high sea, it will be subject to the jurisdiction of the Philippine courts.

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 The vessel being registered under the laws of the Philippines, it is considered an

extension of the Philippines.

(2) Forging or counterfeiting any coin or currency note of the Philippines.

The reason for this is to maintain the stability of the Philippine currency.

(3) Introduction of Forged or counterfeited obligations and securities of the government

of the Philippines. The reason for this is to maintain and preserve the financial credit

and stability of the state.

(4) If the crime is committed by a public officer in connection with the discharge of his

duties. This exception does not apply to public officers of the Philippine government

who enjoy diplomatic immunity because in such a case the principle of Public

International Law will govern.

(5) Crime against the National Security & the Law of Nations as defined in Title I, Book

II of the RPC. Piracy is triable anywhere.

BAR QUESTION 1986

Aaron is a defendant in a civil case being tried in the Manila Regional Trial Court.

Together with his Lawyer, Aaron went to Singapore to take the deposition of a witness

who, Aaron hope, would support his defense. The deposition was taken in a function

room of the Singapore Hotel before Mr. Aguila. The Philippine Consul General. Neither

plaintiff nor his counsel attended the proceeding.

After the deposition taking, Aaron, not satisfied with the results, persuaded Aguila to

make substantial changes, offered $5,000.00 in Singaporean currency which Aguila

readily accepted. Leona, vacationing daughter of Aguila was given $200.00 by Aaron

when she made the alterations in the transcripts. The deponent, with neither notice nor

knowledge of the alterations, signed the deposition.

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 Q: May Aaron, Aguila and Leona be prosecuted in Philippine court for Offenses

punishable under our Revised Penal Code?

SUGGESTED ANSWER:

Only Aguila can be prosecuted before the Philippine court. Being the Philippine Consul

General in Singapore, as a public officer, the provisions of the Revised Penal Code

can be given extraterritorial application, as the crime committed by him is related to the

duties of his office. Aaron and Leona, being private persons, cannot be prosecuted

before the Philippine court because regarding the offenses committed by them, the

provisions of the RPC cannot be given extraterritorial application. Aguila committed

bribery and Aaron corruption of a public officer. Leona committed falsification of a public

document as a principal by direct participation and Aaron as a principal by inducement.

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 FOREIGN VESSELS

JURISDICTION OVER CRIMES COMMITTED ON

BOARD FOREIGN VESSELS WHILE IN

PHILIPPINE WATERS.

1. If foreign vessel is a warship- Philippine courts have no jurisdiction as such vessel

is an extension of the country to which it belongs.

2. If the foreign vessel is a merchant vessel-

a) FRENCH RULE- crimes committed on board a foreign merchant vessel while on

waters of another country are not triable in the country unless those affect the peace

and security of the country or the safety of the state is endangered.

b) ENGLISH RULE- such crimes are triable in that country unless such crimes affect

merely the international management of the vessel.

NOTE: The English Rule or the Anglo-American Rule is followed in our jurisdiction.

-In transit in Philippine waters- the crime must affect public order to be triable by

Philippine courts.

-Not in transit, but Philippine port is its destination- any crime committed, except those

which merely affect the internal management of the vessels is triable by our courts.

CONTINUING CRIME-FOREIGN VESSELS

NOTE: A continuing crime committed on board a foreign vessel sailing from a foreign

port and which enters Philippine waters can be tried by our courts. (U.S. vs. Bull, 15

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 Phil. 7) If the act is not punishable in the foreign country where the vessel comes from

but such act is punishable under Philippine laws, our courts will have jurisdiction.

PROSPECTIVITY
3 rules should be remembered:

1. A penal law does not have retroactive effect.

2. If favourable to the accused, a penal law may be given retroactive effect.

3. Even if favourable to the accused, a penal law cannot be given retroactive effect if

the accused is a habitual delinquent (Art. 22, RPC) or the law expressly so provides.

(Tavera vs. Valdez, Phil.468).

4. The principle of prospectively applies not only to original amendatory statutes and

administrative rulings and circulars, but also and properly so, to judicial decisions. (Co

vs. Court of Appeals, 227 SCRA 444, cited in Columbia Pictures, et al. vs. Court of

Appeals, G.R No. 110318, August 28, 1996).

1. If at the time of the expiration of the period of effectivity of the penal law there is a

pending criminal action against an offender for the offense punished in that penal law,

the criminal action is to be dismissed because the offense charged is already

obliterated. (People us. Jacinto, CA, 54 OG 7587).

2. If at the time of the expiration of the period of effectivity of the penal law there is an

offender still serving sentence of conviction’’ dismissal ‘’ applied only to a law which is

expressly repealed and there is an express repeal only if there is a second law

repealing a former penal law. It does not apply to a penal law which ceases because

of a self-repealing provision. (Ang Beng us. Commissioner of Immigration, GR No. L-

9621, January 30, 1957).

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 EXAMPLE OF AN IMPLIED REPEAL:

There is a law punishing illegal possession of a revolver. Penalty not exceeding 5

years. Because of the proliferation of unlicensed pistols, a second law was enacted

punishing illegal revolver. Penalty is increased to 10 years.

At the time of the effectivity of the second law, a policeman arrested a person

possessing a revolver without any license. Under what law is he to be prosecuted?

nd
Under the 2 law there was no pending criminal action against the offender for the

offense punished in the first law.

IMPOSSIBLE CRIME OF THEFT

If the checks is unfunded stealing the check of the employer by an employees and

presenting the same of payment with the bank constitute impossible crime. The act of

depositing the check is committed with evil intent the mere act of unlawfully taking the

check meant for mega Inc. showed her intent to gain or be unjustly enriched there is

factual impossibility to accomplish the crime of qualified theft since the check is

unfunded. (Jacinto v. People, G.R.No.162540, July 13, 2009-2012 bar exam).

If the check is funded, stealing the check and failure to present the same for payment

with the bank will not make the accused liable for impossible crime. Even if the accused

failed to encash the same due to external cause such as apprehension by police or

stop payment he will be held liable for consummated theft. (People v. seranilla G.R.No.

L 54090, may 9, 1988) in theft, taking or gaining possession of property with intent to

appropriate and to gain consummates the crime. Actual gain is irrelevant as the

important consideration is the intent to gain. (People v. Bustier, G.R. No. 148233, June

8, 2004) thus, failure to gain will not prevent the consummation of the crime.

the principle in Jacinto is not compatible with seranilla and other cases because if the seranilla

principle was applied to the facts of the case in Jacinto the crime committed is consummated

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 theft and not impossible crime since this crime consummates at the time accused took is not

unfunded check with intent to gain actual gain because the check is not funded Will not render

the commission of crime of theft impossible. Since Jacinto and seranilla are irreconcilable the

application of the Jacinto principle must be confined to case where the failure to gain is based

on the unfunded conditions of the check. If the failure to gain is based on other reasons such

as confiscation of the check, stop payment the check was burned by fire seranilla principle

must be applied.

IMPOSSIBLE CRIME
Impossible crime is an act which would have been an offense against person or

property, were it not for the inherent impossibility of its accomplishment or on account

of the employment of inadequate or ineffectual means.

(Article 4 of the Revised Penal Code; 1947, 1993, and 2000 Bar Exam) The offender

shall incur criminal liability for committing an impossible crime because of his criminal

tendency. (1962 Bar Exams)

Impossible crime is not a real crime since the accused did not commit the crime against

Person or property for it is impossible to do so. The law punishes the accused not

Because of the commission of the crime but on the basis of his tendency to do so.

(2000 Bar Exam) Offender shall be held liable for impossible crime if the following

Requisites are present:

(1) offender performed an act which would have been an offense against person or

property; (2) offender performed an act with evil intent; (3) offender did not commit the

offense because of the impossibility of its accomplishment or employment of

inadequate or ineffectual means; and (4) offender in performing an act is not violating

another provision of the law (The Revised Penal Code by Luis B. Reyes)

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 CRIMES AGAINST PERSON OR PROPERTY
Not all impossible crimes prescribed and punished by the Revised Penal Code

Are punishable. Only impossible crimes against person and property are punishable.

(1964 Bar Exam)

1. Crimes Against Chastity

Gender is an element of crimes against chastity except acts of lasciviousness, and

abduction, the offender must be a man, while the victim must be a woman. In adultery,

the offenders must be a married woman and man (2016 Bar Exam), while in

concubinage the offenders must be a married man and a woman. In corruption of minor

and white slavery, the victim must be a female prostitute. If the gender element is not

present in a crime against chastity, the crime committed is not impossible crime

because the act which is impossible to commit must constitute crime against person

or property. If the accused abducted the victim with lewd design and with intent to rape

not knowing that the victim is gay, who underwent gender reassignment, he could not

be held liable for complex crime of rape through forcible abduction since both

components of this complex crime can only be committed against a woman. Nor is he

liable for impossible crime of forcible abduction since this is a crime against chastity.

In impossible crime, the act, which is impossible to commit must constitute crime

against person or property. Neither is he liable for impossible crime of rape since act

constitutes another violation of the law. He is liable for illegal detention. But if the

accused abducted a gay, who underwent gender reassignment, had sexual intercourse

with him, and was killed in the course of detention, the crime committed is kidnapping

and serious illegal detention with homicide. Having sexual intercourse with a gay

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 merely constitutes act of lasciviousness, which is integrated into the special complex

crime of kidnapping with homicide. (2016 Bar Exam). Adultery is committed by any

married woman who shall have sexual intercourse with a man not her husband and by

the man who has carnal knowledge of her knowing her to be married. (Article 333 of

the Revised Penal Code) However, one, who pretended to be a woman in marrying

the complainant, cannot commit adultery since he is not a married woman. Neither is

his sexual partner liable for adultery since this crime committed by the man

presupposes that woman of whom he had carnal knowledge is also liable for adultery.

This crime cannot unilaterally be committed by the man. There is no impossible crime

of adultery since this is a crime against chastity, and not against person or property.

(2015 Bar Exam) Prior to R.A. No.8353, rape is a crime against chastity. Thus, if a

person raped a dead person believing that she was just sleeping, offender could not

be held liable for impossible crime.

(The Revised Penal Code by Justice Ramon Aquino) However, R.A. No.8353

reclassifies rape from crime against chastity to crime against person. Hence, an

offender for raping a dead person without knowing that she was already dead may now

be held liable for impossible crime. The accused shall incur criminal liability for

performing an act which would been rape were it not for the inherent impossibility of its

accomplishment.

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 Requisites of Impossible Crimes

1. That the act performed would be an offense against person or property.

2. That the act was done with evil intent;

3. That its accomplishment is inherently impossible or that the means employed is

either inadequate or ineffectual;

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

RPC.

Essentials of criminal law

1. There must be an evil or criminal intent otherwise, there will be no impossible crime.

Example: if A wanted to kill B and looked for him, and when A saw B, B was already dead but

just the same A stabbed him 3 times on the chest, there is no impossible crime here because

there was no evil intent on the part of A knowing that he could not cause injury to B.

2. That it should be an offense against persons.

Example: A fired at B who was lying in the bed, not knowing that B was already dead.

In crimes against person, it is necessary that the victim should be injured or dead

before A committed the act. Were it not for that fact, then A would have committed the

crime of murder which is a crime against persons.

3. That it should be an offense against property.

Example: A having known the safe combination, opens the same for the purpose of

stealing some money, but finds the safe empty, is guilty of an impossible crime. The

performed act would have been a crime of theft were it not for the inherent impossibility

of its accomplishment. If there is no personal property that would be taken, it is inherent

impossible to commit theft.

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 4. Inadequate means

Example: A determined to poison B, placed some poison on the food of B thinking

that the amount placed would be sufficient. But the amount of poison on the food of B

is not sufficient and B is not killed. The means employed is inadequate.

5. Ineffectual means

Example: A tried to kill B by putting something on his food which A thought was

arsenic but in fact was sugar. B would not have been killed as the means employed

was ineffectual. But A showed criminal tendencies and hence, should be punished.

Felonies and Circumstances which Affect Criminal

Liability

The offender will be liable for the impossible crime only if the acts performed by him is

not another felony in the RPC because subjectively, he is a criminal and objectively, he

has not committed a felony.

Example: offender enters a house to rob but no personal properties could be unlawfully

taken. His acts would constitute an impossible crime of robbery because there is an

inherent impossibility of accomplishment but at the same time, the acts performed

would also constitute trespass to dwelling. Offender will be liable for trespass to

dwelling. The following case in effect modified the prevailing concept of impossible

crimes.

I N TOD VS . CO URT O F A P PE A L S

215 SCRA 52 (1992)

Four culprits, all armed with firearms and with intent to kill, went to the intended victim’s

house and after having pin painted the letter’s bedroom, all four fired and riddled said

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 room with bullets, thinking that the intended victim was already there. It so happened

that the intended victim did not come home on the evening and was not in her bedroom

at that time. Held: to be impossible of accomplishment under Art. 4(2) of the RPC, the

act intended by the offender must be by nature one impossible of accomplishment.

There must either be (1) legal impossibility or (2) physical impossibility of

accomplishing the intended act in order to quality the act as an impossible one.

Legal impossibility occurs where the intended acts, even if completed would not

amount to a crime. Thus legal impossibility would apply to those circumstances where:

(a). The motive, desire, expectation is to perform an act in violation of the law.

(b). There is intention to perform the physical act and,

(c). The consequence does not amount to a crime.

Factual impossibility occurs when extraneous circumstances unknown to the actor or

beyond his control prevent the consummation of the intended crime.

The offenders were eventually prosecuted and convicted by the trial court for attempted

murder. The court of appeals affirmed the judgment, but the Supreme Court modified

the same and held the petitioner liable only for an impossible crime. According, the

petitioner was sentenced to imprisonment of only six month of arresto mayor, this

despite the destruction done to the intended victim’s house.

Note: until the intod case, the prevailing attitude was to apply article 4, paragraph 2 when the

wrongful act which would have constituted a crime against persons or property could not and

did not constitute another felony. Otherwise, if such act constituted any other felony although

different from what the offender intended, the criminal liability should be for such felony, not

for an impossible crime. Criminal liability for impossible crimes presupposes that no felony

resulted from the wrongful act done. With the intod case however, this cannot anymore be

invoked as the prevailing rule.

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 Courts Duty in Case of Harsh Penalty

ART. 5. Duty of the court in connection with acts which should be repressed but which

are not covered by the law, and in cases of excessive penalties. Whenever a court has

knowledge of any act which it may deem proper to repress and which is not punishable

by law, it shall render the proper decision, and shall report to the Chief Executive,

through the Department of Justice, the reason which induce the court to believe that

said act should be made the subject of penal legislation.

In the same way, the court shall submit to the Chief Executive, through the Department

of Justice, such statement as may be deemed proper, without the suspending the

execution of the sentence, when a strict enforcement of the provision of this Code

would result in the imposition of a clearly excessive penalty, taking into consideration

the degree of malice and the injury caused by the offense.

NOTE: Where the accused appellant is not a drug dependent. Is 26 years of age,

single, and college student, the court may recommend that he be granted executive

clemency after service of part or the penalty imposed upon him, consistent with the

objective of the Dangerous Drugs Act and in order to give him a chance to reform

himself outside the confines of prison gates. (People v. Jandayan, G.R. No. 74851, 27

Feb. 1989, 170 SCRA 670).

In the case of People v. Veneracion (249 SCRA 244) the SC held:

We are aware of the trial judge’s misgivings in imposing the death sentence because

of his religious convictions. While this court sympathizes with his predicament, it is

bounden duty to emphasize that a court of law is no place for a protracted debate on

the morality or propriety of the sentence, where the law itself provides for the sentence

of death as a penalty in specific and well-defined instances.

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 The discomfort faced by those forced by law to impose the death penalty is an ancient

one, but it is a matter upon which judges have no choice. Court are not concerned with

the wisdom, efficacy or morality of laws.

PRELIMINARY TITLE

DATE OF EFFECTIVENESS AND APPLICATION

OF THE PROVISIONS OF THIS CODE

ARTICLE 1.

Time when act takes effect– This code shall take effect on the first day of January,

nineteen hundred and thirty-two.

CHARACTERISTIC OF CRIMINAL LAW

1. Generality

2. Territoriality

3. Prospectively

BAR QUESTION:

What are the components of criminal law? ANSWER: Characteristics

GENERALITY- Means that a penal law applies to all person sojourning or residing in

Philippine territory. (You need to state “irrespective of age, sex, religion, political creed

and the like).”

JUSTIFICATION OF GENERALITY - Article 14 of the New Civil Code which state that

“Penal Laws” and those of public security and safety shall be obligatory upon all who
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 live or sojourn in Philippine territory, subject to the principles of public international law

and to treaty stipulations.

ART. 2. Application of its Provisions

Except as provided in the treaties and laws of preferential application, the provision of

this code shall be enforced not only within the Philippine archipelago, including its

atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction,

against those who:

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 island or

obligation and securities issued by the government of the Philippine island;

3. Should be liable for acts connected with the introduction into these island 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;

5. Should commit any of the crimes against national security and the law of nations,

defined in title One Book Two of this code.

QUESTION:

In what cases may a penal law not apply to a person residing in Philippine territory?

ANSWER: These cases spring from the exceptions to generality

As provided in Public International Law

a) sovereigns or head of state

b) Ambassadors

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 c) ministers- resident or minister plenipotentiary

d) charge de affairs attaches

The enumeration under Public international Law is inclusive and exclusive. For this

reason, a consul, not being included in the enumeration, does not enjoy diplomatic

immunity from any prosecution for a crime committed by him in the Philippines.

(Schneckenburger vs. Moran, 63 phil.250)

For a consul to be immune from criminal prosecution for committing a crime within the

Philippines, such must be the subject of a treaty stipulation between the government

of the Philippines and the government of that consul.

1. As provided under the Law of Preferential Application

--it is a law which is superior to any Penal statute in case it comes into conflict with that

penal statute. Therefore, the inference is that a Law of Preferential Application is a

fundamental Law. Hence, a penal statute is subordinate thereto.

Under the New Constitutions:

A. A member of congress cannot be questioned in any other place regarding a speech

delivered by him on the floor of the congress. It means that such member cannot be

prosecuted for the crimes of libel or slander in connection with the speech he delivered

on the floor of the legislative body. In that sense, we call the speech an absolutely

privileged communication.” (ART. IV, Sec. 11, 1987 Philippine Constitution).

B. RA 75 extends immunity enjoyed by the accredited foreign ambassadors in the

Philippines to the members of their domestic household provided they are registered

in the department of Foreign Affairs and in the office of the Chief of police of the City

of Manila.

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 EXAMPLE: If a driver of the Japanese ambassador in the Philippines ran over a

pedestrian because of reckless driving, under RA 75, the driver cannot be prosecuted

in Philippine courts as he is entitled to the immunity enjoyed by the Japanese

ambassador In the Philippines.

NOTE: The immunity accorded by the law, however, cannot be enjoyed by any member

of the domestic household of the foreign ambassador if the country represented by that

foreign ambassador does not provide by virtue of a law, for the same immunity

extended to members of the domestic household of a Philippine ambassador in the

foreign country. The mutuality extended will no longer obtain.

STAGES IN THE

COMMISION OF A FELONY
ART. 6. Consummated, frustrated and attempted felonies.—Consummated felonies,

as well as those which are frustrated and attempted, are punishable.

ATTEMPTED FELONY—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.

REQUISITES OF ATTEMPTED FELONY:

1. That the offender commits an overt acts to commence the perpetration of a felony;

2. That he is not able to perform all the acts of execution which would produce the

felony;

3. That his failure to do so was due to some cause or accident other than his own

spontaneous desistance.
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 FELONIES AND CIRCUMSTANCES WHICH

AFFECT CRIMINAL LIABILITY

FRUSTRATED FELONY—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.

REQUISITES OF FRUSTRATED FELONY:

1. That the offender performs all the acts of execution;

2. All the acts performed would produce felony as a consequence;

3. But the felony is not produced;

4. By reason of causes independent of the will of the perpetrator.

CONSUMMATED FELONY—when all the elements necessary for its execution and

accomplishments are present.

PEOPLE VS. VILLACORTE, 55 SCRA 640

One who takes part in the planning of a criminal act but desists on its actual

commission is exempt from criminal liability for after taking part in the planning, he

could have desisted from taking part in the actual commission of the crime by listening

to the call of his conscience.

MANNER OF COMMITTING THE CRIME

1. FORMAL CRIMES- consummated in one instance, no attempt. There are crime, like

slander and false testimony, which are consummated in one instance, by a single act.

These are formal crimes.

As a rule there can be no attempt in a formal crime because between the thought and

the deed there is no chain of acts that can be severed in any link. Thus, in slander,

there is either a crime or no crime at all, defending upon whether or not defamatory

words were spoken publicly.

24 | P a g e
 The stages in the commission of a felony apply only to the so called material felony ,in

contrast with the so called formal crimes which is one which do not admit of stages

because they are consummated in one instance.

2. MATERIAL CRIMES- there are 3 stages of execution such as in the crimes of

homicide, rape etc. which are not consummated in one instance or by a single act.

These are the so called material crimes. Although material felonies admit of stages in

commission, it does not mean that 3 stages apply.

Three criteria must be considered;

a. The manner of committing the felony;

b. The element of the felony

c. The nature of the felony itself.

There are crime which do not have any frustrated stage because of the nature of crime.

There is no frustrated acts of lasciviousness. (People vs. Famalarcano, 43 O.G.1721).

The offender touched the dress of the offended party covering her private parts.

He was convicted of consummated acts of lasciviousness. On appeal, he maintained

that the act is frustrated because he did not touch the private parts, only the dress.

HELD: Acts of lasciviousness can be committed without touching the private parts.

Note: THERE IS ALSO NO FRUSTRATED BRIBERY.

In bribery, there are always 2 offenders who must perform the acts of execution:

1. The private person offering the bribe to the public officer.

2. The public officer accepting the bribe.

If the bribe is accepted all the acts of execution that would result to consummated

bribery are perfected. If the bribe is not accepted, the crime is attempted corruption of

public officer.

25 | P a g e
 FELONIES AND CIRCUMSTANCES WHICH

AFFECT CRIMINAL LIABILITY

FELONIES

ART 3.Definition Act and omissions punishable by law are felonies (delitos). Felonies

are committed not only by means deceit (dolo) but also means of fault (culpa).

There is deceit when the act performed deliberate intent; and there is fault when the

wrongful act results from imprudence, negligence lack of foresight, or lack of skill.

Distinction between Felonies and Offenses

It is felonies if punished by RPC, it is an offense if punished by special law.

1. Act punished in special laws are mala prohibita.

2. Act punished by the Revised Penal code are mala in se.

A felonies is committed in two way:

1. by dolo - intentional

-freedom

-intelligence

-intent

2. by culpa- not intentional

-freedom

-intelligence

-negligence or imprudence

FREEDOM- without it, not human but a tool, negated by:

1. Irresistible force

2. Uncontrollable fear

26 | P a g e
 INTELLIGENCE-is the moral capacity to determine right from wrong and realize

consequences of one's act; negated by:

1. Minority

2. Insanity

3. Imbecility

ATTEMPTED FELONY
NOTES: THE TRIAL ERRED IN FINDING THE ACCUSED GUILTY OF THE CRIME

OF CORRUPTION OF PUBLIC OFFICIAL CONSUMMATED OFFENSE FOR IT IS

CLEAR FROM EVIDENCE OF THE PROSECUTION THAT THE COMPLAINANT

PROBATION OFFICER DID NOT ACCEPT THE ONE-HUNDRED PESO BILL.

HENCE, THE CRIME WOULD BE ATTEMPTED CORRUPTION OF A PUBLIC

OFFICIAL. (POZAR VS. COURT OF APPEALS, 132 SCRA 729)

IN AN ATTEMPTED FELONY, ALL THE ACT OF EXECUTION HAVE NOT BEEN

PERFORM OR “SUBJECTIVE PHASE” NOT BEEN REACHED.

If all of the execution were not performed due to the spontaneous desistance of the

offender, there will be no attempted felony. The offender will not be criminally liable

because it will be considered an ”absolutory cause” wherein the law does not provide

any penalty.

SUBJECTIVE PHASE VS. OBJESTIVE PHASE

1. The subjective phase is the portion of the act constitution the crime included

between the act which begins the commission of the crime and the last act

performed by the offender which, with prior acts, should result in the consummated

crime. From that time forward, the phase is objective.

2. THE OBJECTIVE PHASE is that period occupied by the acts the offender over

which he has control---that period between the point where he begins and the point

27 | P a g e
 where he voluntary desists. If between this two points the offender is stopped by

any cause outside of his own voluntary desistance, the SUBJECTIVE PHASE has

not been passed and it is merely an attempt. If he is not so stopped but continues

until he performs the last act, it is frustrated.

DIRECTLY BY OVERT ACTS

Acts performed by the manifesting his criminal design which are intimately related to

the felony intended to be committed. There must be a close relation between the overt

acts performed and the felony intended to commit in order to qualify the overt acts as

directly connected or intimately related to the intended felony.

Example: Offender intended to poison the victim. He bought poison in the drugstore.

That buying of poison in the drugstore is not a direct overt act. If is an overt act but not

directly related to the poisoning of the victim because the poison might have been

bought to kill the rats.

Q. When will the overt acts be considered directly related to the felony intended to be

committed?

A. If the offender mixed the poison in coffee of the victim, there is direct relation which

will ripen to a concrete offense against the offender.

Q. When will the acts of execution to poison the victim be considered performed?

A. The moment the victim drank the poisonous substance.

Q. If the crime intended to be committed is the killing of the victim by means of a knife

or a revolver, when the acts of execution deemed performed to produce the killing of

victim (referring to homicide, murder and parricide).

A. All the acts of execution produce the killing of the victim are deemed performed

when the mortal wound is inflicted upon the victim.

28 | P a g e
 ATTEMPTED ROBBERY WITH HOMICIDE
Note: Accused uttered these words “Pag hindi mo ibinigay ang hinihingi namin sa iyo

ay papatayin ka namin.” There is, however, no proof of reasonable certainly that

anything was successfully taken from the deceased. The court held them liable for

attempted robbery with homicide. The appellant and her companions had the intention

of robbing the victim and were bent on resorting to violence to attain their devious ends.

(People vs. Basilan, G.R. No. 66257, June 29, 1989, 174 SCRA 115)

FELONIES AND CIRCUMSTANCES WHICH

AFFECT CRIMINAL LIABILITY

Notes: The acts of execution must be considered to have been actually performed and

should not exist merely in the mind of the offender. Will the mere fact that all the acts

of execution to kill the victim have been performed make the offender criminally liable

for a frustrated felony if the victim did not die as a consequence?

- No. A frustrated felony will result if the victim did not die due to a cause independent

of the will of the offender. (US vs. Lim San cited in People vs. Oagman, 47 Phil. 771

The spontaneous desistance which is considered an absolutory cause will be

desistance from commission of the intended crime. (People vs. Palmares, G.R. No L-

32680, April 9, 1981)

Therefore, it is not applicable to a felony already committed, only to a felony intended

to be committed.

BAR QUESTION: An offender stole the chicken and then the following day, because

of remorse, he returned the chicken on the same place where it was taken. Would the

desistance exempt him from liability?

29 | P a g e
 ANSWER: No, because the crime, though he apparently desisted, was already

committed when the alleged desistance was made.

Q. In the crime of homicide or murder, the offender pointed a revolver to the victim.

Before he was able to press the trigger, a policeman arrested him. Is he liable for

attempted homicide?

---No. The crime is light threat. In attempted homicide, there must be discharge of

firearm. If the weapon is a bolo, the mere act of striking the victim would not constitute

attempted homicide but only light threat. There must be a blow delivered by the

offender. (US vs. Simson, 3 Phil. 688)

ESSENTIALS OF CRIMINAL LAW

If the offender but fired but did not direct the shot to a person, the crime only it is illegal

discharge of firearm, not attempted homicide. (People vs. Kalanganan, 40 O.G. 4323)

If there are 3 or more successive shots the intent to kill will be manifest. (Calalo

Doctrine)

RAPE---whether or not there is frustrated rape.

In People vs. Erina, 50 Phil. 998, ter is frustrated rape. However, under the current rule,

there is no frustrated rape. Rape is consummated as long as there is penetration of

the labia of the sexual organ of the woman in which the penetration need not be on the

vaginal orifice. Complete penetration is not essential to the commission of rape. The

slightest penetration of the labia by the male organ consummates the crime. (People

vs. Pastores, 40 SCRA 498; People vs. Conchada, 88 SCRA 683; People vs. Velasco,

73 SCRA 574)

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 ESSENTIALS OF CRIMINAL LAW

Sources of Criminal Law:

Revised Penal Code (Act 3815 approved Dec. 8, 1930 which took effect Jan. 1, 1932)

Acts of the Philippine legislature, National Assembly, Congress, Batasang Pambansa,

and other laws such as Presidential Decrees, or Executive Orders punishing offenses.

Question: Will the criminal action be dismissed since the first law was impliedly

repealed by the second law?

Answer: No, because the offense punished in the first law is still punished in the

second law (re-enacted).(US vs. Cuna, 12 Phil. 241)

Case: Gumabon and 17 others were charged with the complex crime of rebellion with

murder. They were convicted and found by the court guilty. Hence, sentenced to

reclusion perpetua. After serving the 13 years of imprisonment, the SC promulgated a

decision in People vs. Hernandez, holding that there is no complex crime of rebellion

with murder, stating that the murder is committed to further the ends of rebellion, the

murder will be absorbed in rebellion and accused will be liable for rebellion.

The penalty for rebellion at that time was prison mayor. Gumabon and other

defendants filed a petition for the issuance of a writ of habeas corpus on the ground

that since they served already 13 years of imprisonment, if the Hernandez decision will

be applied in their favor, they should have been convicted only of rebellion and

therefore they should have been released.

The SC granted the petition on the ground that they have stated, that is the Hernandez

decision is favorable to them. (Gumabon, et al. vs. director of prisons, 37 SCRA 420)

31 | P a g e
 MISTAKE OF FACTS
It is an act or omission which is the result of misapprehension of the facts that is

voluntary but not intentional. The actor performed an act which would be lawful had it

been true as he believed as it to be.

To be exempting, the mistake of facts must be committed in good faith or under honest

belief. If there is negligence, the said mistake of facts is not exempting and the actor is

liable for committing a felony by means of CULPA.

MISTAKE OF IDENTITY
Mistake of facts does not apply in mistake of Identity because in the latter there is

INTENT. So if A shot B, believing him to be C, the act of shooting B is intentional, as

the mistake of Identity is a mere consequence of the intentional act of shooting the

victim. The shooting of innocent person in the belief of the accused that he was that

wanted criminal, was held to be a mistake of Identity and not of fact.

CRIMINAL INTENT; MALA PROHIBITA

As far as Mala prohibita is concerned, we follow the recent decision of the SC in People

vs. CA, 135 SCRA 372. The violation of the law exists when the act prohibited is

committed. It has no concern with the character and effect of the act.

Reason: Because good faith is not a defense, criminal intent is not an element.

Reiterated in People vs. Neri, 140 SCRA 406, which states that the good faith is not a

valid defense in an offense which is Mala prohibita, if there is negligence, the

perpetrators is not exempted from criminal liability.

Malice and intent are not essential in crimes punishable by special laws. A person who

violates any of the provisions under Article 13(b) and Article 34 of the labor code can

be charged and convicted separately of illegal recruitment and estafa [Revised Penal

32 | P a g e
 Code, Article 315, 2(a)] because illegal recruitment is a malum prohibitum where the

criminal intent of the accused is not necessary for a conviction while estafa is malum

n se where criminal intent of the accused is necessary for a conviction. People vs.

Meanings [G.R. Nos. 91552-55, March 10 1994]

But is the mere fact of physical or constructive possession sufficient to convict a person

for unlawful possession of firearms or must there be an intent to possess to constitute

a violation of the law? This query assumes significance since the offense of illegal

possession of firearms is a malum prohibitum in which case good faith and absence of

criminal intentare not valid defenses.

When the crime is punished by special law, as a rule, intent to commit a crime is not

necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited

by the special law. Intent to commit the crime and the intent to perpetrate the act must

be distinguished. A person may not have consciously intended to commit a crime; but

he did intend to commit an act, and that act is, by the very nature of things, the crime

itself. In the first (intent to commit the crime) there must be criminal intent; in the second

(intent to perpetrate the act) it is enough that the prohibited act is done freely and

consciously.

A distinction should be made between criminal intent and intent to possess. While mere

possession, without criminal intent, is sufficient to convict a person for illegal

possession of a firearm, it must still be shown that there was animus possidendi or an

intent to possess on the part of the accused.

Criminal intent here refers to the intention of the accused to commit an offense with

the use of an unlicensed firearm. This is not important in convicting a person under

Presidential Decree No. 1866. Hence, in order that one may be found guilty of a

violation of the decree, it is sufficient that the accused had no authority or license to

33 | P a g e
 possess a firearm, and that intended to possess the same, even if such possession

was in good faith and without criminal intent.

RULES ON REPEAL OF PENAL LAWS

EXPRESS REPEAL

i. Crime is obliterated;

ii. Pending criminal action is dismissed;

iii. Already convicted and serving sentence also affected, except if he is a habitual

delinquent or repealing law provides otherwise (but not when the law merely expired);

iv. Court will have no jurisdiction to try;

v. Judicial decision may be given retroactive effect in favor of the offender.

IMPLIED REPEAL

1. Pending criminal action not dismissed because the act is still punished under the 2nd

law;

2. Only effect: penalty in the 2nd law will be applied if it is favorable to him; otherwise,

penalty under 1st law will apply since the 2nd law being burdensome cannot be given

retroactive effect.

REPEAL OF REPEALING LAW

1. Express repeal = the law 1st repealed shall not be revived unless expressly provided.

2. Implied repeal = revives the 1st law unless the repealing law provides otherwise.

EXPRESS REPEAL OF A PENAL LAW

Note: The rules in this jurisdiction is that when the new law repeals the existing law so

that the act which was penalized under the old law is no longer punishable, the crime
34 | P a g e
 is obliterated. A new statute dealing with crimes which establishes conditions more

lenient or favorable to the accused can be given a retroactive effect. (People us.

Monton, 158 SCRA 328)

RULES ON CONSTRUCTION OF PENAL LAWS

 Liberally construed in favor of the offender (People vs. Jerrado, 125 SCRA 648) except

when the law is clear and unambiguous (People vs. Gatchalian, 55 O.G. 9871)

 Original text (Spanish) will prevail over its translation.

CUNSUMMATED RAPE
Note:

Absence of spertomazoa in victim's vagina is not or migration that the victim was not

rape. Well settled is the rule that in rape, the slightest penetration is sufficient to

consummate the crime. (People vs. Budol, 143 SCRA People vs. Felix. 130 SCRA 456:

People vs. Budol, 143 SCRA 241).

NO FRUSTRATED RAPE
Note:

Frustrated Rape: In the crime of rape, from the moment the offender has carnal

knowledge of the victim he actually attains his purpose and from the moment also all

essential elements of the offense have been accomplished. Nothing more in left to be

done by the offender, because he has performed the last act necessary to produce the

crime. Thus, the felony is consummated. (People vs. Orita, 184 SCRA 105)

FELONIES AND CIRCUMSTANCES WICH AFFECT

CRIMINAL LIABILITY
35 | P a g e
 Q. Distinguish attempted rape from unjust vexation and act of lasciviousness.

Case: Offender entered the room of the offended party one evening and raised the flop

of the dress of the sleeping woman. Supreme Court ruled that the offender is guilty of

unjust vexation. If in addition, he touched the private part, he commits act of

lasciviousness. If he went on the top of the offended party but the offended party woke

up and because of her scream the offender escaped, there is attempted rape.

THEFT

- The unlawful taking of the personal property belonging to another without violence or

intimidation.

The theft involved here refers to a thing inside the premisea. Theft in this case is

consummated if 2 elements are present:

1. The offender has the control and dominion of the thing taken:

2. He has the ability to dispose of the thing taken even though momentarily.

CONSUMMATED RAPE

Note:

A taking sufficient to support a conviction of robbery is established even though the

perpetrators were interrupted by police and so did not pick up the money offered by

the victim. In this case, the defendant and an accomplice, armed with knife and a club

respectively, had demanded the money from the female clerk of the store, and the clerk

had complied with their instruction and placed the money from the cash register in a

paper bag and then placed the bag on the counter in front of the two men.

These actions brought the money even for an instant within the dominion and control

of defendant and completed the taking. (People vs. Salvilla 184 SCRA 671)

FRUSTRATED THEFT
PEOPLE VS. DINO, (C.A) 46 OG 3446
36 | P a g e
 If the offender is caught before the actual taking of the goods after having

performed all the acts of execution or before the offender had final control of the

disposal of the thing, theft is frustrated as when the accused was discovered with

the stolen articles at the checkpoint.

FRUSTRATED QUALIFIED THEFT

POEOPLE VS. ESPIRITU, (C.A.) No.2407-R May 3, 1949

Theft is consummated because what was frustrated was merely the use or the

benefit of the thing taken. Reconciled: if the thing taken is bulky and the offender

is apprehended before he was able to take away the bulky things outside of the

compound, then the crime is frustrated theft.

ATTEMPTED FELONY
ESTAFA- Damage is an element in estafa unlike in the crime of theft, and the

damage may either be committed by abuse of confidence or deceit, Estafa is either

attempted or frustrated if there is no damage provided there abuse of confidence

or deceit.

ART. 7. When light felonies are punishable. --- Light felonies are punishable only when

they have been consummated, with the exception of those committed against person

or property.

LIGHT FELONIES- Light felonies are punishable only when they have been

consummated.

EXCEPTION: Light felonies committed against persons or properties are punishable

even if attempted or frustrated.

Accessories are not criminally liable. (Art. 16, RPC)

Theft is a lightly felony if the value of the thing taken does not exceed P5 and the

offender is impelled by hunger or poverty. (Art. 309[8] in relation to Art. 9, RPC)

37 | P a g e
 PROBLEM:

A stole 2 cans of milk costing P2 each. He was able to consume 1 and sold the other

for P0.50, the buyer knowing it to be stolen. What is the liability of the buyer?

--- The buyer, as an accessory, does not commit any liability because the offense is

light.

ART. 8. Conspiracy and proposal to commit felony. ---Conspiracy and proposal to

commit felony are punishable only in the cases in which the law provides a penalty

therefor.

A conspiracy exits when 2 or more persons come to an agreement concerning the

commission of a felony and decide to commit it.

There is proposal when the person who had decided to commit a felony proposes its

execution to some other person or persons.

CONSPIRACY AND PROPOSAL

Notes:

1. Mere conspiracy to commit a crime is not punishable, except in:

a. Treason

b. Rebellion, insurrection, coup d’etat (RA 6968)

c. Sedition

d. Arson (PD 1613)

2. Mere proposal to commit a crime is punishable, except in:

a. Treason

b. Rebellion, insurrection, coup d’etat (RA 6968)

c. To maliciously damage or destroy any building by explosives or incendiary device

(PD 728)

3. If the proposal is accepted, a conspiracy exists.

IMPORTANT:

38 | P a g e
 If one of the conspirators desisted and only A, the other conspirator, proceeded in the

killing of the mayor (for example), only A will be criminally liable.

In proposal, the one liable is the one making the proposal. The moment the proposal

is accepted, then there is conspiracy because of oneness of the criminal intent, then

all of the conspirators are liable.

RULE IN CONSPIRACY:

The act of one is the act of all.

Conspiracy may be proved by circumstantial evidence only not necessarily by direct

evidence, but evidence must be positive and convincing.

However, considering if in the nature of the crime, the same rule may not apply.

EXAMPLE: A married woman conspired with her paramour in poisoning her husband-

--here, only the woman will be liable for parricide.

39 | P a g e
 TITLE ONE:

FELONIES AND CIRCUMSTANCES WHICH

AFFECT CRIMINAL LIABILITY

CHAPTER ONE: FELONIES

ART. 3 Definition.

Acts and omissions punishable by law are felonies (delitos).

Felonies are committed not only by means of deceit (dolo) but also by means of fault

(culpa). There is deceit when the act is performed with deliberate intent; and there is

fault when the wrongful act results from imprudence, negligence, lack of foresight, or

lack of skill. Distinction Between Felonies and Offenses. It is felony if punished by RPC,

while it is an offense if punished by special law.

1. Acts punished in special laws are Mala Prohibita.

2. Acts punished by Revised Penal Code are Mala In Se.

A felony is committed in two ways:

1. by dolo-intentional

freedom

intelligence

intent

2. by culpa-not intentional

freedom

intelligence

negligence or imprudence

40 | P a g e
 FREEDOM - without it, not human but a tool, negated by:

1. irresistible force

2. uncontrollable fear

INTELLIGENCE - is the moral capacity to determine between right from wrong and to

realize consequences from one’s act;

1. minority

2. insanity

3. imbecility

INTENT - presumed from the commission of unlawful acts; negated by:

a. mistake of facts

Intent-defined as a determination to do a certain thing, an aim, the purpose of the mind

including such knowledge as is essential to such intent, the design, resolve, or

determination with which a person act. (Guevarra v. Almodovar,G.R. 75A256, 26 Jan.

1989. In view of the distinction dolo and culpa, there is no crime of frustrated homicide

through reckless imprudence (People vs. 76 Phil. 27 because in frustrated homicide

there must be present the specific intent to kill. This is inconsistent with the absence of

intent in reckless imprudence the crime will be serious physical injuries through

reckless imprudence. But where coconuts were harvested by two laborers hired by the

one who claimed to be the owner of the land. (Diong-an, et al. vs. People, L-45697,

Aug. 05, 1985. Falsely including a stand-in for a laborer who was inadvertently not

included in the payroll of a certain project would not make those responsible for the

inclusion liable malversation through falsification as they acted without criminal intent

as there was no concealment or evasion regarding the false entry. (Llamado vs.

Sandiganbayan, L-63036, Aug. 17, 1986.

41 | P a g e
 FELONIES AND CIRCUMSTANCES WHICH

AFFECT CRIMINAL LIABILITY

Criminal Intent

Ordinary, evil intent must unite with an unlawful act for there to be a crime. Actus non

facit reum, nisi mens sit rea. People v. Pacana (47 Phil. 48) cited in Tabuena v.

Sandiganbayan. (G.R. Nos. 103501-03. February 17, 1997).

Note: After accused had shot the victim, he did not do anything to help his victim who

was lying down on the ground, bleeding and moaning. He did not go down from his

house even after finding that the person he had shot was a neighbor. Instead, he

uttered curse. Then, very early in the morning, about 5:30 A.M., he left his house and

stayed with his brother in a neighboring municipality. He did not go home, even to help

the police in their investigation.

Conspiracy; Collective Responsibility

Conspiracy is a matter of substance which must be alleged information, otherwise, the

court will not consider the same. It must be established by positive and conclusive

evidence, not by conjectures or speculations. (people vs. Laurio, 200 SCRA 489).

Conspiracy may be established by direct or circumstantial evidence. Where conspiracy

attended the commission of the crime, the familiar rule expressed in the phrase “the

act of one is the act of all.” Thus, failure of the prosecution to show who actually pulled

the trigger is immaterial. Where there is conspiracy, a showing as to who inflicted the

fatal blow is not required. Mere knowledge, acquiescence to or approval of the act,

without cooperation or at least, agreement to cooperate, is not enough to constitute a

conspiracy, there must be an intentional participation in the crime with a view to further

the common felonious objective.

42 | P a g e
 Where conspiracy was present in robbery, and homicide committed, all would be liable

for robbery with homicide although not all participated in the killing, unless it appears

that they attempted to prevent the killing. Where conspiracy was present in robbery,

and homicide is committed, killing. (People vs. Bartulay, 192 SCRA 621).

Where robbery was committed by a band, a member of the band is presumed

conspirator or co-principal in the assaults committed unless proven that he attempted

to prevent the assault.

Question as to who actually robbed or who actually killed is of no moment since all of

them would be held accountable for the crime of robbery with homicide. It is noted,

however, that conspiracy, like any other ingredient of the offense, must be established

by clear and convincing evidence. Mere approval of an act without cooperation or

agreement to cooperate does not constitute conspiracy. There must be intentional

participation in the act with a view to the furtherance of the common design and

purpose.

Thus, were the meeting between the group of the assailants and that of the victim was

accidental, no conspiracy, and that the mere presence of the accused at the scene of

the crime is not sufficient basis for a finding of conspiracy. Neither is their conspiracy

where appellant was with the accused when the crime was committed. Mere

companionship does not established conspiracy.

Circumstance Which Mitigate Criminal Liability

ART. 13. Mitigating Circumstances. -The following are mitigating circumstances:

1. Those mentioned in the preceding chapter, when all the requisites necessary to

justify the act or to exempt from criminal liability in the respective cases are not

attendant.

2. That the offender is under 18 years of age or over 70 years. In the case of the minor,

he shall be proceeded against in accordance with the provisions of Article 80.

3. That the offender had no intention to commit so grave a wrong as that committed.

43 | P a g e
 4. That sufficient provocation or threat on the part of the offended party immediately

preceded the act.

5. That the act was committed in the immediate vindication of a grave offense to the

one committing the felony (delito), his spouse, ascendants, descendants, legitimate,

natural or adopted brothers or sisters, or relatives by affinity within the same degrees.

6. That of having acted upon an impulse so powerful as naturally to have produced

passion or obfuscation.

7. That the offender had voluntarily surrendered himself to a person in authority or his

agents, or that he had voluntarily confessed his guilt before the court prior to the

presentation of the evidence for the prosecution.

8. That the offender is deaf and dumb, blind or otherwise suffering some physical

defect which thus restricts his means of action, defense, or communication with his

fellow beings.

FELONIES AND CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY

9. Such illness of the offender as would diminish the exercise of willpower of the

offender without how-ever depriving him of the consciousness of his acts.

10. And, finally, any other circumstances of a similar nature and analogous to those

above mentioned.

Sufficient provocation

The sufficient provocation or threat on the part of the victim must immediately precede

the act of the offender. (People vs. Rivero, 242 SCRA 354).

Immediate vindication

In People v. Pajares (210 SCRA 237), the accused was not given the benefit of this

mitigating circumstances because the killing occurred ten (10) hours after the mauling

which the accused claimed to be vindicating.

Passion

44 | P a g e
 No mitigating circumstances of passion or obfuscation may be appreciated as the

anger of the accused did not arise from lawful sentiments. The delay in obeying his

request to buy the ball caster is too trivial a matter as to fairly and justly cause such

overreaction on his part. (People vs. Tiongco, 236 SCRA 458)

Meaning

Those that have the effect of reducing the penalty because there is a diminution of any

of the elements of dolo or culpa, which makes the act voluntary or because of the

lesser perversity of the offender.

TWO REASONS WHY IN A “MITIGATING CIRCUMSTANCE,” THE PENALTY IS

REDUCED:

1. Because there is a diminution of any of the elements of culpa or dolo or

voluntariness.

2. Because of the lesser perversity of the offender.

Essentials of Criminal Law

Q. Is there a mitigating circumstance which is not present at the same time of the

commission of the felony? What is the reason?

Yes, the voluntary surrender and voluntary plea of guilty.

Essentials of Criminal Law

ART. 9. Gave felonies, leas grave felonies and light felonies. Grave are those to which

the law attaches the capital punishment or penalties which in any of their periods are

effective, in accordance with Article 25 of this Code.

Less grave felonies are those which the law punishes with penalties which in their

maximum period are correctional, in accordance with the above-mentioned article.

Light felonies are those infractions of law for the commission of which the penalty

aristo minor or a fine not exceeding 200 pesos or both, is provided.

Q. When is the penalty grave?

45 | P a g e
 It is grave when the law attaches capital punishment or a penalty which in any of this

period is afflictive.

Q. What other penalty is light?

Public censures are a light penalty.

Note: The criterion to determine the gravity is always the penalty.

ART.10. Offenses not subject to the provisions of this Code. Offenses which are or in

the future may be punishable under special laws are not subject to the provisions of

this Code. This code shall be supplementary to such laws, unless the latter should

specially provide the contrary.

Example: Law punishing illegal possession of firearms.

FELONIES AND CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY

Meaning of Supplementary – the provisions of the RPC will be supplemental or

additional to the provisions of the special law punishing the offense (People Vs. Chang,

60 Phil. 293).

If the special law does not give discretion to the court in imposing the penalty therein

provided, the provisions of the RPC because of Art. 10 will be given supplementary

effect. (People Vs. Moreno, 60 Phil. 712)

Even if the revised Motor Vehicle Law does not provide for civil indemnity and

subsidiary imprisonment, the provisions of the RPC were applied.

Even if there is no provision to the contrary in the special law, the provision of the RPC

cannot be given supplementary effect if such provisions is the inconsistent with the

provision of the special law. (People vs. Ramos, 44 O.G. 3288, People vs. Gonzales,

46 O.G. 1953)

Plea of Guilty – Mitigating in RPC not given supplementary effect in favor of the

offender who entered a plan of guilty of illegal possession of firearm because the

penalty provided in the law punishing illegal possession of firearm is not capable of

being divided into maximum, medium and minimum periods which means that in the

46 | P a g e
 imposition, the law gives the court discretion in imposing the same. (People vs. Noble,

77 Phil. 1086)

Important

1. A violation of a special law can never absorb a crime punishable under the Revised

Penal Code, because violations of the RPC are more serious than violation of special

law. But a crime in the RPC can be absorb a crime punishable by a special law if it is

necessary ingredient of the crime in the RPC (People vs. Rodriguez, 107 Phil. 659).

2. The provision of Art, 6 of the RPC providing for attempted and frustrated stages of

a crime cannot be given supplementary effect to an offense punished under a special

law.

Reason

Under the RPC, if the felony is frustrated, the penalty is lowered by one degree. If it is

attempted, it is lowered by 2 degrees. The penalty provided for an offense punished in

the special law cannot be lowered by any degree or to any period.

This does not mean, however, that there can be no attempted or frustrated offense

punished in special law. It means that the provisions of the RPC cannot be given

supplementary effect in order to make an offense punish in special law attempted or

frustrated. In order that there can be an attempted or frustrated offense, the special

law must specially provide for the corresponding penalty. (People vs. Cerezo, (CA)

G.R. 19343-R, May 19, 1959).

Example: Section 21 of the Dangerous Drugs Act punishes attempted offense. It is

punished with the same penalty provided in the same Act imposed for a consummated

offense.

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 CHAPTER TWO

JUSTIFYING CIRCUMSTANCES AND

CIRCUMSTANCES WHICH EXEMPT FROM

CRIMINAL LIABILITY
Even though there was a conspiracy, if a co-conspirator merely cooperated in the

commission of the crime with insignificant or minimal acts such that even without his

cooperation, the crime could be carried out as well, such co-conspirator should be

punished as an accomplice only. This is consistent with the rule that penal laws always

favor a milder form of responsibility upon the offender. (People vs. Nierra, 96 SCRA 1)

CONSPIRACY TO COMMIT A CRIME DISTINGUISHED FROM CONSPIRACY AS

A MEANS TO COMMIT A CRIME

Conspiracy to commit a crime is not to be confused with conspiracy as a means to

commit a crime. In both cases, there is an agreement but mere conspiracy to commit

a crime is not punished except in treason, rebellion, sedition or arson. Even then if the

treason is committed, conspiracy will be considered as a means of committing it and

the accused will all be liable for treason and not for conspiracy to commit a crime. In

conspiracy to commit a crime, mere agreement is sufficient whereas in conspiracy as

a means to commit a crime, over acts to realize the criminal purpose must also be

performed by the conspirators. (“People vs.Boholst-Caballero, 61 SCRA 180,

Castanares vs. CA 92 SCRA 567).

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 JUSTIFYING CIRCUMSTANCES AND CIRCUMSTANCES WHICH EXEMPT FROM

CRIMINAL LIABILITY

Art. 11. Justifying Circumstances- The following do not incur any criminal liability.

(1) Anyone who acts in defense of his person or rights, provided and the following

circumstances concur.

First: Unlawful aggression

Second: Reasonable necessity of the means employed to prevent or repel it.

Third: Lack of sufficient provocation of a person defending himself.

(2). Anyone who acts in defense of the person or fights of spouse, ascendants, or

descendants or Initiate, natural or adopted brothers or sisters, or his relatives by affinity

in the same degrees and those by consanguinity within the fourth civil degrees,

provided that the first and the second requisites prescribed in the next preceding

circumstance are present, and the further requisites, in case the provocation was given

by the person attacked, that the one making defense had no part therein.

(3). Anyone who acts in defense of the person or fights of a stranger, provided that the

first and second requisites mentioned in the first circumstances of this particle are

present and that the person defending be not induced by revenge, resentment, or other

evil motive.

(4). Any person who, in order to avoid an evil or injury, dies an act which causes

damage to another, provided that the following requisites are present:

First. That the evil sought to be avoided actually exists.

Second. That the injury feared be greater than that done to avoid it.

49 | P a g e
 Third. That there be no other practical and lesson harmful means of preventing it.

(5). Any person who acts in the fulfillment of a duty or in the lawful exercise of a right

or office.

(6). Any person who acts in obedience to an order issued by a superior for some

lawful purpose.

Justifying Circumstances

Those where in the acts of the actor are in accordance with law, and hence, incurs no

criminal and civil liability

Effects

No criminal liability because the act is committed in accordance with law and no civil

liability (except for #4) because the source of the obligation is not present.

Legally Inaccurate

To say that where a justifying circumstance is present in a JC there is no criminal

liability or civil liability, because in a state of necessity the RPC provides for civil liability,

but such civil liability is not shouldered by the offender but by the persons who are

benefited from the act committed.

Bar Questions. What is the reason for the justification of self-defense?

Answer. The person attacked or justified to defend himself by following his instinct of

self-preservation.

Under the classical school, because the person attacked cannot always receive the

aid of the state in protecting him, so, he is allowed to protect himself by following his

instinct of self-preservation, and under the Positivist School, self-defense is an

exercise of a right or an act of social justice because of the attack made upon him.

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 Bar Questions. What defenses are available to the accused under the Revised

Penal Code?

Answer. Justifying and exempting circumstances.

(1). Self-Defense;

1. requisites unlawful aggression

2. reasonable necessity of the means employed to repel it.

3. lack of sufficient provocation on the part of the person defending himself.

SCOPE

- life

- rights (chastity, property and honor)

- crime of libel

First Element

Unlawful aggression on the part of the injured or the victim is the first element of self-defense.

This is an indispensable requirement even in incomplete self-defense (People vs. Deopante

263 SCRA 691)

Unlawful Aggression

Must consists in a material or physical attacked manifesting danger to the person attacked.

For unlawful aggression to be present in self-defense, there must be an assault or at least

threatened assault of an immediate and imminent kind on the person defending himself."

KINDS OF UNLAWFUL AGGRESSION

(1). Actual or Real - an act positively strong material attack with physical force or weapon.

(2). Imminent - an attack that is impending or at the point of happening.

TWO ELEMENTS OF UNLAWFUL AGGRESSION

1. the attack is material

2. it manifests danger to the person or right or integrity of the person attacked.

Example. The offender kicked his houseboy who was sleeping when he arrived home, then

the houseboy who woke up stabbed him. Whether there is an unlawful aggression?

51 | P a g e
 Held: None, although the act of kicking is physical, it, however, does not manifest danger to

the person of the person kicked."

“A playful kick at the foot by way of greeting friends may be a practical joke and may even

hurt but it is not serious or real attack on a person's safety. "

Any act made in retaliation is not self-defense

Slapping a person is unlawful aggression

it is physical

it is injurious to the honor, reputation or dignity of the person slapped.

Note: Mere presence of unlawful aggression does not necessarily justify self-defense. As

when the person slapped employed unreasonable means in repelling the unlawful

aggression of the offender, he will still be liable for incomplete self-defense.

Rule of Unlawful Aggression

The unlawful aggression must be continuing. An act of aggression when its author

does not persist in his purpose or when he discontinued his attitude to the extent that

the object of his attack is no longer in peril is not unlawful aggression warranting self-

defense.

Justifying Circumstances

Note: There is no self-defense to speak of it the accused failed to prove that there was

unlawful aggression on the part of the victim. The location, number and seriousness of

the stab wounds inflicted on the victim belie the victim of self-defense. The victim

sustained 21 wounds. The fact that the accused did not surrender themselves and the

weapons they used to the police authorities whose office was just a few meters away

from the scene of the crime help negate the claim of self-defense. A policeman who,

trying to quell a disturbance, shoots with his revolver and fatally wounds a man who

attacks him with a knife employs reasonable means to repel the aggression. A police

officer, in the performance of his duty, must stand his ground an cannot, like a private

individual, take refuge in flight. His duty requires him to overcome his opponent.

52 | P a g e
 In this case, Norberto, a policeman, initially tried to defend himself by pushing the

rocking chair toward Leopoldo, but when that proved futile and he (Norberto) was

caught in a very precarious position; i.e., his back was on the floor and Leopoldo kept

flailing at him with bolo, he had no other choice but to use his revolver to defend himself

against the attack. Defendant saw a person open the window of his bedroom. When

defendant inquired who the person was and received no answer, he fired a shot a shot

into the air. Then, when said person lifted his right arm chest high, accused fired the

second shot. The interval between the two shots was only about three to five seconds.

Held: The raising of the right arm chest high alone by an unarmed person in not

unlawful aggression. Absent unlawful aggression on the part of the deceased, there

cannot be self-defense on the part of the accused.

Note: Before the end of the English class, Francis has approached Renato and said:

“you go home get your firearm if you won’t go home and get a gun, I will go to your

place and kill you including your parents, brothers and sisters.”

Held: There was no unlawful aggression to support the claim of self-defense. Such

utterances cannot be regarded as unlawful aggression which is the first and most

fundamental requirement of self-defense. Uttered in a high school classroom by an

obviously unarmed Francis, such statements could not reasonably inspire the well-

grounded and reasonable belief claimed by Renato that he was in imminent danger of

death or bodily harm. Francis was obviously without a firearm or other weapon when

Renato returned and burst into the room to know where Francis was and forthwith firing

at him repeatedly, without the slightest regard for the safety of his other classmates

and of the teacher. There being no unlawful aggression, there simply could not be self-

defense, whether complete or incomplete.

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 Reasonable Necessity of The Means Employed

In the application of the second element there are two point to be considered:

1. Is the unlawful aggression still present?

2. If it is still present, is the means employed by the person attacked reasonable?

Even if there is unlawful aggression but the unlawful aggression is no longer

continuing, the second element will have no room for application, which means that

there will be no reason for the person attacked to defend himself.

Q. When will the means be considered unreasonable?

There is no hard and fast rule. According to the SC, 2 condition must be present:

(1) That the person depending himself should be judge by the employment not of his

rational mind but by his resort to instinct to self-reservation;

(2) The means employed and the only means available to the offended in defending

himself.

Q. When will the unlawful aggression deemed to have ceased?

The mere retreat of the aggressor (step back, 3 feet) does not necessarily mean that

he has already stopped. He would have retreated to gain more advantage or

momentum for the second attack in which case the unlawful aggression will be

considered to be still “continuing.” The unreasonableness of the means adopted is not

one of the mathematical calculations of “material commensurability between the

means of attack and defense” but the imminent danger against the subject of the

attacks to receive by the defender. It is the instinct more than the reason that moves

the defender to repel the attack.

Sufficient Provocation, means that if the provocation us sufficient, the third element

will not be present. Proportionate to the damage caused by the act and adequate to

stir one to its commission. (people vs. alconga, 78 Phil.366)

Exception: Where although there is sufficient provocation, the third element will still

be present—when the provocation though sufficient is not immediate to the unlawful

54 | P a g e
 aggression same as no provocation whatsoever. For provocation to be present, it

should be immediate to the unlawful aggression.

Self-Defense

Once more, the SC reiterated established rules on self-defense. All the requisites must

be present and the accused must prove it by clear and convincing evidence. He may

not relay on the weakness on the evidence for the prosecution specially where he has

admitted the killing.

In PEOPLE VS. ABAGON, 161 SCRA 255, the number of the stab wounds (9) and the

nature thereof belie the theory of self-defense. Also, in PEOPLE VS. MASANGKAY,

157 SCRA 320, the 4 stab wounds on the victim belie the claim of self-defense. In a

recent case decided by the SC, it was held that two kicks in the body could not be

regarded as an aggression sufficient to warrant murderous and concerted attack upon

the victim and which resulted in the victim sustaining 21 wounds, 8 of which are fatal.

Defense of Property

a) 1956 ruling: attack on property must be coupled with an attack on the person of the

owner or possessor.

(b) 1983 ruling: can be invoked even if the attack on property is not coupled with an

attack upon the person of the owner/possessor. Act of victim of ordering and fencing-

off the house and rice mill of accused, constitutes unlawful aggression.

The means employed by the offender was not reasonable although admittedly there

was unlawful aggression. Therefore, from the Narvaez decision in relation to Art. 499

of the NCC, as long as there is unlawful aggression on the property of a person, the

owner can resist it with reasonable means even though there is no attack upon his

person.

Defense of Chastity

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 To be entitled to a complete self-defense of chastity, there must be an attempt to rape.

Self- Defense in Libel

Unlike in physical assault, retaliation is unlawful after the attack has ceased, but not in

the case when it is almost at a person’s good name (he may hit back with another libel)

If a person is libeled, he is justified in answering with another libel, provided it is

adequate and not excessive to repel the sting of defamation hurled against him.

Defense of A Relative

Elements

1. Unlawful aggression

2.Reasonable necessity of the means employed to repel it

3. In case provocation was given by the person attacked, the person making the

defense had no part in the provocation.

Relatives Entitled to This Defense

Spouse, Ascendants, Descendants, Legitimate, natural, adopted brothers or sisters,

Relatives by affinity in the same degree (i.e. 2nd degree), Relative by consanguinity

within the 4th civil degree, If the wife of the offender dies, such relation is terminated

already. So, the defense of the relative will not be applicable any longer except if the

issue were born. Defense of a relative is present as long as there is an honest belief

that the relative being defended was a victim of an unlawful aggression, and the relative

defending has no knowledge of the agreement to fight. But the defense of a relative

cannot be claimed if the relative is the aggressor.

Foreign Vessels

Jurisdiction Over Crimes on Board Foreign Vessels While in Philippine Waters.

If foreign vessel is a warship – Philippine courts have no jurisdiction as such vessels

is an extension of the country to which it belongs.

56 | P a g e
 If foreign vessel is a merchant vessel

a) French Rule – crimes committed on board a foreign merchant vessel while on waters

of another country are not triable in the country unless those affect the peace and

security of the country or the safety of the state is endangered.

b) English Rule -- such crimes are triable in that country unless such crimes affect merely

the internal management of the vessel.

Note: The English Rule or the Anglo-American Rule is followed in our jurisdiction.

In transit in Philippine waters – the crime must affect public order to be triable by

Philippine courts.

Not in transit, but Philippine port is its destination – any crime committed, except

those which merely affect the internal management of the vessel, is triable by our

courts.

Continuing Crime - Foreign Vessels

Note: A continuing crime committed on board a foreign vessel sailing from a foreign

port and which enters Philippine waters can be tried by our courts. (U.S vs. Bull, 15

Phil. 7) if the act is not punishable under Philippine laws, our courts will have

jurisdiction.

(3) Prospectively rules should be remembered:

A penal law does not have retroactive effect.

If favorable to the accused, a penal law may be given retroactive effect.

Even if favorable to be accused, a penal law cannot be given retroactive effect is the

accused is a habitual delinquent (Art. 22, RPC) or the law expressly so provides.

(Tavera vs. Valdez, 1 Phil. 468).

The principle of prospectively applies not only to original amendatory statutes and

administrative rulings and circulars, but also and properly so, to judicial decisions. (Co

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 vs. Court of Appeals, 227 SCRA 444, cited in Columbia Pictures, et al. vs. Court of

Appeals, G.R. No. 110318, August 28, 1996).

Note: Article 22 of the RPC provides an exception to the general rule on perspectivity. But

even if the law uses the words “felony” and “habitual criminal, as this term is defined in Rule 5

of Art. 62,” this is applicable to special laws which provide more favorable conditions to the

accused. (People vs. Simon, 234 SCRA 555; People vs. De Lara, 236 SCRA 291)

If at the time of the expiration of the period of effectivity of the penal law there is a

pending criminal action against an offender for the offense punished in that penal law,

the criminal action is to dismissed because the offense charge is already obliterated.

(People vs. Jacinto, CA, 54 OG 7587)

If at the time of the expiration of the period of effectivity of the penal law there is an

offender still serving sentence of conviction by final judgment for the offense punished

in that penal law, as a rule, the offender is not to be released. He should continue

serving his sentence of conviction because the rule of “dismissal” applied only to a law

which is expressly repealed and there is an express repeal only if there is a second

law repealing a former penal law. It does not apply to a penal law which ceases

because of a self-repealing provision. (Ang Beng vs. Commissioner of Immigration,

GR No. L-9621, January 30,1957)

Example of An Implied Repeal.

There is a law punishing illegal possession of a revolver. Penalty not exceeding 5

years. Because of the proliferation of unlicensed pistols, a second law was enacted

punishing illegal possession of firearms including submachine, grease guns and

revolver. Penalty is increased to 10 years.

At the time of effectivity of the second law. A policeman arrested a person possessing

a revolver without any license. Under what law is he to be prosecuted? Under the 2 nd

law, because at the time of the effectivity of the second law, there was no pending

58 | P a g e
 criminal action against the offender for the offense punished in the first law. No unlawful

aggression and reasonable necessity of means employed in defense of relative

Justifying

Notes: Appellants contend that the elements for appreciating the defense of relative

are present that the three was unlawful aggression on the part of Pajimola, when he

shot Benedicto. However, it was Carlito who fired a shot which Pajimola, as police

officer, investigated. It was likewise Benedicto who first committed a felony by stabbing

Pajimola. The latter only fired his gun after he was stabbed. He had to defend himself

from his assailants as he was alone in contrast to the accused. At the instance when

Pajimola fired his gun, Carlito shot him three times, after which, the appellants took

turns in stabbing Pajimola. Carlito further claims that he used reasonable means to

prevent his brother from being killed and he used the gun to shoot at Pajimola as it

was only the one available then. Eligio and Pedro, on the other hand, claimed that they

both acted on the belief that Benedicto was the victim.

Held: Justifying circumstances of defense if relative cannot be appreciated in favor of

appellants. It cannot be concluded that Pajimola was the aggressor. He was only doing

his duty to maintain peace and order during the dance at the public plaza. Furthermore,

there was no need to defend Benedicto because his life was not in danger. There were

several antagonists against Pajimola and the latter was the one who was initially

attacked. The victim fired his gun only in self-defense, considering he was already

wounded and the assailants were many. The court is not persuaded that Virgilio had

acted with unlawful aggression that might have provoked Agapinay’s deadly wrath. All

that Virgilio did was to address offensive language to Agapinay’s. Injurious words or

threats do not amount to unlawful aggression. Assuming that Virgilio did strike Delfin

and Romeo Agapinay’s with paddle, the record reveals that thereafter and upon having

been stabbed in the right arm by Romeo, he, Virgilio, ran away. Self-defense does not

justify the unnecessary kill8ng of an aggression who is retreating from the fray. There

59 | P a g e
 was no reasonable necessity of the means employed by appellant (clubbing the victim

with a kulafu, bottle on the right eyebrow) in defending his brother Pedro. While Pedro

and the victim are still grappling with each other, the latter was not armed. There was

no necessity of defending Pedro at all since his life was not in danger.

Defense of Stranger

Elements:

1. Unlawful aggression

2. Reasonable necessity of the means employed to repel it

3. Person defending be not induced by revenge, resentment or other evil motives.

State of Necessity

Elements:

1. Evil to be avoided actually exists

2. Injury feared greater than injury done to avoid it

3. No other practical and less harmful means of preventing injury feared.

Civil Liability – borne out by the actor and by the persons benefited by his act.

Example: During a conflagration to prevent the spreading of fire some of the residents

demolished several houses. They will be civilly but not criminally liable. An accused

was acquitted of the crime of slander by deed, when exploded with another man after

all wedding preparation with the offended party were made, since there was necessity

on the part of the accused to avoid a loveless marriage. The act of one of the Accused

in embracing the son of the victim to prevent him from shooting at the persons who

attacked his father is not to avoid any evil but to insure the killing of the victim without

any risk to his assailants.

Fulfillment of Duty

Elements:

1. The offender acted in the performance of a duty or the lawful exercise of a right or

office;

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 2. The injury caused by the offense committed is the necessary consequence of the due

performance of such right or office. The death of the victim cannot be said to be the

necessary consequence of the due performance of a right or office.

Rule: A peace officer or policeman or prison guard is justified to shoot the prisoner if

shooting the prisoner is the only thing available to suppress him.

Examples: Shooting of a thief, the fulfillment of a duty refers to the shooting of the

prisoners. (People Vs. Oanis And Galanta 74 Phil. 254).

The accused Chief of Police and the constabulary soldier were sent out to arrest a

certain Balagtas, supposedly a notorious bandit. There was an order to kill Balagtas if

he would resist the arrest. The accused arrived at the house of a dancer who was

supposedly the girlfriend of Balagtas. While there, they saw a certain person who

resembled Balagtas sleeping on a bed, but facing the opposite direction. The accused

immediately started firing at the man. They found out later that the man was not really

Balagtas, so they invoked the justifying circumstances of having acted in fulfilment of

a duty.

Held: The second requisite is absent because they acted with negligence. There was

nothing that prevented them from looking around the house and verifying if the man on

the bamboo bed was actually Balagtas. As the man was asleep anyway, the man could

not have posed any danger. The accused were found guilty or murder, mitigated by an

incomplete justifying circumstance.

Obedience to Superior Order

Elements:

1. An order has been issued by a superior;

2. The order is for a legal purpose;

3. The means used to carry out said order is lawful.

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 The must be a present relation of superior, although unlawful is apparently legal.

Art. 12. CIRCUMSTANCES WHICH EXEMPT FROM CRIMINAL LIABILITY THE

FOLLOWING ARE EXEMPT FROM CRIMINAL LIABILITY:

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

When the imbecile or an insane person has committed an act which the law defines as

a felony (delito), the court shall order his confinement in one of the hospitals or asylums

stablished for persons thus afflicted, which he shall not be permitted to leave without

first obtaining permission of the same court.

A person under 9 years of age.

A person over 9 years of age and under 15, unless he has acted discernment, in which

case, such minor shall be proceeded against in accordance with the provisions of

Article 80 of this Code.

When such minor is adjudged to be criminally irresponsible, the court, in conformity

with the provisions of this and the preceding paragraph, shall commit him to the care

and custody of his family who shall be charged with his surveillance and education,

otherwise, he shall be committed to the care of some institution or person mentioned

in said Article 80.

Any person who, while performing a lawful act with due care, causes an injury by mere

accident without fault or intention of causing it.

Any person who acts under compulsion of irresistible force.

Any person who acts under the impulse of as uncontrollable fear of equal or greater

injury.

Any person who fails to perform an act required by law, when prevented by some lawful

insuperable cause.

Exempting Circumstances

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 Those wherein there is an absence in the against of the crime any or all of the

conditions that would make an act voluntary and, hence, although there is no criminal

liability, there is civil liability.

Kinds:

Imbecility and insanity, Minority under 9 years, Minority over 9 but under 15 without

discernment, Accident, Compulsion of irresistible force, Impulse of uncontrollable fear,

Insuperable or unlawful causes. Also, Instigation, Absolutory causes.

Q. What are the defenses analogous to imbecility or insanity?

If he commits a crime while dreaming;

In a state of somnambulism-while sleep walking;

During high fever resulting in delirium-if delirium is the result of happiness, not

exempting;

During a fit of epilepsy (nervous ailment)

Here, the offender is not deprived of intelligence but of freedom of action.

Insanity and Imbecility

imbecility is exempting in ALL cases

insanity is not exempting when the crime is committed during a lucid interval (he must

be insane at the time preceding or at the very moment of the commission of the crime)

Test of Imbecility and Insanity

Old Theory (observed in the Philippines): complete deprivation of reason or

discernment and freedom of the will at the time of the commission of the crime. (People

vs. Renegado, 57 SCRA 275)

Modern Theory: such as to create in his mind an uncontrollable impulse to commit

the offense charged. (People vs. Torres, et al., 3 CAR 43)

The insanity that is exempting is limited only to mental aberration or disease of the

mind and must completely impair the intelligence of the accused. Under common law

countries, emotional or spiritual insanity are exempting circumstances unlike in this

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 jurisdiction, because the Revised Administrative Code, as defined, as limited to

aberration of the mind. (People vs. Dungo, 199 SCRA 160).

Two tests for exemption on grounds of insanity

The test of COGNITION or whether the accused acted with complete deprivation of

intelligence in committing the crime.

The test of VOLITION or whether the accused acted in total deprivation of freedom of

will. (People vs. Rafanan, 204 SCRA 65)

Test of Imbecility:

Imbecility is defined as feeblemindedness or a mental condition approaching that of

one who is insane. It is analogous to childishness or dotage. An imbecile within the

meaning of Article 12 is one completely deprived of reason or discernment and

freedom of will at the time of committing the crime. While advanced in age, he has a

mental development of children between two and seven years of age.

The reasoning of the accused that he resorted to cutting grass instead of guarding his

victim could hardly be indicative of imbecility. Rather, it may be considered negligence.

(People vs. Nuñez, G. R. No. 412429-30, July 23, 1997)

A two-month old illegitimate child was smothered to death by his mother, a housemaid.

The trial court ruled that the defense, having impliedly admitted the killing by pleading

insanity in extenuation, the burden was on the defense to prove the same, and this the

accused failed to do so. The judgment was for conviction.

The SC refused to confirm. As observed by the SC, the more telling evidence in favor

of the accused was the testimony of the senior psychiatrist, Dr. Reyes of the National

Mental Hospital. He described her as schizophrenic, which he said meant a split

personality that withdrew her from reality and rendered her incapable of understanding

what she was doing, and that the accused was suffering from the affliction when the

tragedy happened.

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 Ask if the schizophrenic might have lucid intervals, he said positively that “in

schizophrenia, there is no such thing as lucid interval.”

The SC found that the records show that the testimony of Dr. Reyes remained

unrebutted, nor did the prosecution present any witness or documentary evidence to

contradict the expert’s findings.

In conclusion, the SC noted: “What prompted Leticia to kill the helpless child is a

mystery the court will not attempt to fathom. It is enough to know, as the evidence

reveals, that the hands that choked the victim were not moved by an evil mind.”

INSANITY TO BE EXEMPTING MUST EXIST JUST BEFORE OR DURING THE

COMMISSION OF THE CRIME

Exempting Circumstance

Note: The burden of proof of insanity is upon the defense. The accused was examined

three times on Feb. 18, 1980, Feb. 29, 1980, and March 17, 1980 while the incident

occurred on Dec. 22, 1977. The results of the examination could not have been

reflective of the real and actual state of mind of the accused at the time he committed

the crime more than two years earlier.

A schizophrenic merely lacks mental concentration without being deprived of judgment

and reason. If a person talks to himself, stares blankly and is underactive, these would

not be indicative of a perfectly normal person.

Minority

Under 9 but less than 15 years old: exempt unless proven to have acted with

discernment (disputable presumption)

Under 9 years old: exempt (conclusive presumption)

Two Presumption Regarding Minority

Conclusive- if minor 9 years old or below.

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 Disputable- if minor is 9 years old and under 15, also not criminally liable but

presumption is disputable because the prosecution can present evidence to overcome

the presumption by showing discernment.

Discernment

The metal capacity to distinguish what is right and wrong and to realize the

consequence of one’s unlawful acts. (People vs. Aquino, 186 SCRA 851 Ibid People

vs. Cruz, G.R No. 69251, Sept. 13, 1989; 177 SCRA 151 People vs. Navarro, (CA) 51

O.G. 4092; People vs. Doqueña, 68 Phil. 580).

An 11-year old boy was target-shooting with an air rifle, together with his best friend

and other children. A pellet hit his best friend at the collarbone which caused the latter’s

death

Issue: Where he could be charged with the crime of homicide thru reckless

imprudence, it being claimed that “discernment” in Art. 12(3) of the RPC is synonymous

with “intent”. More specifically, it was argued that the allegation in the information that

the accused “acted with discernment” willfully and feloniously…caused to be fired in a

reckless and “imprudent manner-an air rifle…” is an inherent contradiction.

The SC disagreed and observed that no minor between 9 and 15 can ever be convicted

of a quasi-offense under Art. 365 if such theory is accepted. The SC recalls, in

determining what constitutes discernment.

“The discernment that constitutes an exception to the exemption from criminal liability

of a minor under 15 years of age but above 9, who commits an act prohibited by law,

is his mental capacity to understand the difference between right and wrong.”

Going to the issue, the SC ruled that evaluating felonies committed by means of culpa,

three elements are indispensable, namely:

1. Intelligence

2. Freedom of Action

3. Negligence

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 However, intelligence remains as an essential element, hence, it is necessary that a

minor above 9 but below 15 years of age be possessed with intelligence if committing

a negligent act which results in a quasi-offense. For him to be criminally liable, he must

discern the rightness or wrongness of the effects of his negligent act.

The SC considered the term “intent” and “discernment” as conveying 2 distinct

thoughts. While both are the products of the mental processes within a person, the

formers refer to the said act. Hence, a person may not intend to shoot another but

maybe aware of the consequences of his negligent act which may cause injury to the

same person in negligently handling the air rifle.

Important: Under the amendment to PD 603, PD 1179 requires that before a youthful

offender maybe given the benefit of a suspension of sentence, there must be an

application filed with the court which should pronounce sentence. Note that the

commitment of the offender in a reformatory is just a consequence of the suspension

of the sentence. If the sentence is not suspended, there is no commitment in a

reformatory. The commitment is in a penitentiary, since suspension of sentence

requires certain conditions, viz.:

The crime committed should not be punishable by Reclusion Perpetua or death. The

offender should not have been given the benefit of suspended sentence before; and,

he must be below 18 years old. If at the time of the promulgation of judgment, the

offender is already above 18, he cannot anymore avail of a suspended sentence.

Accident (Damnum absque injuria)

Any event which is not foreseeable, i.e., beyond the sway of the human mind. In

criminal law, accident is an exempting circumstance. There is no criminal and civil

liability.

Elements:

1. Performance of a lawful act;

2. with due care;

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 3. causes injury to another by mere accident;

4. without any fault or intention of causing it. (People vs. Haton, (CA) 40 O.G. 1866).

Factual and Legal Impossibility

In the United States, criminal laws are silent regarding impossible crimes; hence,

where the offense sought to be committed is factually impossible of accomplishment,

the offender shall be liable for the attempted crime. On the other hand, where the

offense is legally impossible of accomplishment, the actor cannot be held liable for any

crime.

In the Philippines, the crime committed is an impossible crime if the offense sought to

be committed is factually or legally impossible. (Intod v. Court of Appeals, G.R.

No.103119, October 21, 1992) For example, killing a dead person is an impossible

crime because of legal impossibility. Putting the hand inside an empty pocket with the

intention to steal a wallet is an impossible crime because of factual impossibility. (1947

and 1962 Bar Exams).

Compulsion of Irresistible Force

Elements:

1.the force is physical;

2.the force is irresistible which means it cannot be overcome by the volition of the

offender;

3.The force should come from a third person.

Irresistible force must produce such effect upon the individual that in spite of all the

resistance, it reduces him to a mere instrument and, as such, incapable of committing

a crime. It must be such that in spite the resistance of the person on whom it operates,

it compels his members to act and his mind to obey. He must act not only without a will

but also against his will. Such a force can never consist in anything which springs

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 primarily from the man himself; it must be a force which act upon him from the outside

and by means of a third person.

Impulse of Uncontrollable Fear

It is an impulse emanating from within the person of the offender. This is manifested

by intimidating or duress. Uncontrollable fear must be actual, real and reasonable. It

should not be speculative.

Elements:

1.The threat which cause the fear was an evil greater than, or at least equal to, that

which the accused was required to commit;

2. It promised an evil of such gravity and imminence that the ordinary man would have

succumbed to it.

Fear - must be grave, actual, serious and of such kind that majority of men would

succumb to such moral compulsion.

Compulsion - must be such as to leave a reasonable fear for one’s life or limb and not

speculative, fanciful or remote fear.

Duress - should be real, imminent or reasonable fear for one’s life or limb and not

speculative, fanciful or remote fear.

Example: A threatened to kill B by pointing his revolver at B if B will not kill C an enemy

of A. B killed C. Fear of B greater than that of losing his life. The life of B is greater as

far as he is concerned, than the life of C.

Example: If A threatens to burn the house of B if B will not kill C and B kill C because

of fear of losing his house, this fear of losing a house is not greater or equal than that

of losing a human life.

Instigation and Entrapment

Instigation – when a peace officer induces a person to commit a crime, for without

inducement, no crime would be committed “The instigator practically induces the

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 would-be accused into the commission of the offense and himself become a co-

principal.”

Entrapment- (neither mitigating nor exempting) signifies the ways and means devised

by peace officer to entrap or apprehend a person who has committed a crime. “

Notes: There is entrapment where the accused was already engaged in the illicit trade

of marijuana and all that the NARCOM agents did was to catch him in the act. He was

not prodded nor induced to sell marijuana to the NARCOM agents. The statement of

the agent that he “needed three (3) kilos of marijuana” cannot be considered as proof

that he had induce the appellant to commit the offense. The statement was but a

quantification of the amount of marijuana that the agent desired to buy from the

accused.”

The existence beforehand of such unlawful trade is evident from the fact that the

accused-appellant had a ready supply of marijuana meet buyers’ demand. He might

not have had it right at the time the initial transaction took place but he was readily able

to produce the desired quantity. In fact, it took him only a few minutes to produce the

marijuana. If it were really true that he was induced into looking form marijuana it would

have taking him a considerable length of time to look for the source. The fact that he

returned shortly after the transaction shows that he already contacts from whom he

could readily get the marijuana. This is clearly not a case where an innocent person is

inducing to commit a crime but a trap to catch the criminal. The mere fact that the

authorities deceived the appellants in to believing that the former were buyers of heroin

does not exculpate the latter from liability for selling the prohibited drugs. The police

can legitimately feign solicitation to catch criminals to habitually engage in the

commission of offense.

A “buy –bust” operation is a form of entrapment employed by peace officers to trap

and catch a malefactor in flagrante delicto.”

Evil Intent

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 Stabbing a dead person with knowledge of his dead condition is not impossible crime

since it was not committed with evil intent to kill. The act does not show criminal

tendency, which is the basis of penalizing impossible crime, since he is aware that he

is not killing someone at time of stabbing.

Accused delivered a child, who was stillborn. She instructed her co-accused to bury

her dead child. Her co-accused have deposited and left the dead infant in a small pit

containing a little water. Accused are not liable for infanticide since the infant was

already dead upon its delivery. (US vs. Aquino G.R. 11563, August 19, 1916)

Neither are the accused liable for impossible crime of infanticide since they are aware

that the child was already dead when it was left in a pit containing water. In sum, they

have no criminal intent to kill since they are aware that they cannot kill a dead person.

One, who had sexual intercourse with a dead person, is not liable for an impossible

crime of rape if he aware that the latter is already dead. Necrophilia is not a felony

punishable under the Revised Penal Code.

TWO CIRCUMSTANCES SIMILAR TO EXEMPTING CIRCUMSTANCES

1. Absolutory Cause –

There is a crime committed but no penalty is provided by the Code on the part of the

offender by reason of public policy; primarily because of the relation between the

offender and the offended party.

The following are the absolutory causes provided for in Revised Penal Code.

Article 6 (3).

Spontaneous desistance during the attempted stage of a felony.

Article 7.

Light felonies are not punishable unless consummated, except in crimes against

persons or property.

Article 16.

Accessories in light felonies are not liable.

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 Article 20.

The penalties prescribed for accessories shall not be imposed upon those who are

such with respect to their spouses, ascendants, descendants, legitimate, natural and

adopted brothers and sisters or relatives by affinity within the same degrees with the

exception of accessories who profited themselves or assisting the offender to profit by

the effects of the crime.

Article 89.

How criminal liability is extinguished:

(1) death of the convict as to the personal penalties, and as to pecuniary penalties, liability

therefor is extinguished if death occurs before final judgment; (2) service of sentence;

(3) amnesty; (4) absolute pardon; (5) prescription of the crime; (6) prescription of the

penalty; and, (7) marriage of the offended woman as provided under Article 344.b

Article 219.

Discovering secrets through seizure of correspondence of the ward by their guardian

is not penalized.

Article 274.

Death or physical injuries inflicted under exceptional circumstances.

Article 332.

Theft, swindling and malicious mischief when the offender and the offended party are

related as spouse, ascendant, descendant, brother and sister-in-law living together, or

where in the case the widowed spouse and the property involved is that of the

deceased spouse, before such property had passed on to the possession of third

parties.

Article 344.

Seduction, abduction, act of lasciviousness and rape; the marriage of the offended

party shall extinguish the criminal action.

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 Note: Entrapment however is not an absolutory cause. In entrapment, ways and

means are resorted to by the authorities to trap and capture the actor, already a law

breaker, in the execution of his criminal activities. Buy-bust operation is a form

entrapment and the accused entrapped is liable.(People vs. Juma, 220 SCRA 432;

People vs. Nicolas, et al., G.R. No. 110116, Feb. 1, 1995)

ART. 132, RPC

Theft, estafa, malicious mischief--- no criminal liability but with civil liability.

ART. 247, RPC

Exceptional circumstances causing slight or less serious physical injuries.

Ex. H surprised his wife while committing sexual intercourse with another man, fired 2

shots but both were not hit--- H is not criminally liable.

If physical injuries are not serious– not criminally liable. Absolutory.

ART. 6, PAR. 3

Spontaneous desistance during the attempted stage of a felony.

ART. 7

Light felonies are not punishable unless consummated, except in crimes against

person or property.

ART. 16

Accessories are not liable in light felonies.

Example: Art. 332, Where the offender, related to the offended party ( son to father)

is not criminally liable in the crimes of theft, estafa, malicious mischief.

Entrapment

the criminal intent originates the criminal in the mind of exempting

Instigation

the resolve to commit the crime originates from the peace officer

not exempting

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 Motive

Notes: Motive is not an essential element of murder and so did not have to be proved

by the prosecution. It is not for this Court to probe the minds of the accused. People

vs. Lorioda, et al. [G.R. No. 93240. January 22, 1993.]

Motives becomes relevant and its absence may assume determinative significance,

only when the accused has not been positively identified, and proof thereof becomes

essential only when evidence of commission of the crime is purely circumstantial or is

inconclusive. People v. Balinas (202 SCRA 516, 517), cited in People v. Mallari [G.R.

No. 104891, February 6, 1995].

Motive is not an essential element of a crime. Thus, extreme moral perversion could

lead a person to commit a crime without a motive that could be appreciated or

understood by an ordinary man. And where the identity of a person accused of having

committed a crime is not in dispute, the motive that may have impelled the commission

of the crime is not relevant. (People vs. Flores y Ponce, G.R. 79451, 14 May 1990, 3rd

Division).

If there is doubt whether the defendant is or is not the person who committed an act,

the existence or non-existence of a motive for doing of the act is a circumstantial

evidence leading to the inference that he is or is not the author of the act done. (People

vs. Tallo, 157 SCRA 17)

The motive of revenge is too shallow to be accorded credence. (People vs. Detuya,

154 SCRA 410)

The accused claims that the police informer had “framed” her up because she had

been the love of the nephew of the informer. Assuming that his claimed love affair had

in fact taken place, it appears to this Court as too petty and inadequate a motive as to

support such a serious act as falsely implicating a person in violation of the Prohibited

Drugs Act which carries with it life imprisonment as a penalty. (People v. Francia, 154

SCRA 495)

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 Motive is important only when the identity of the culprit is in doubt, and not when he is

positively identified by a credible witness. (People vs. Perante, 143 SCRA 56; People

vs. Beltran, 137 SCRA 508; People vs. Andres, 155 SCRA 290; (People vs. Brioso,

155 SCRA 463)

Motive is not necessary if positive identification has been made of the culprit. (People

vs. Abaya, 185 SCRA 419; Andaya vs. People, 186 SCRA 410; People vs. Madali, 188

SCRA 69; People vs. Kyamko, 192 SCRA 374).

Motive is essential to conviction in murder cases only when there is doubt as to the

culprit’s identity, not when the accused has been positively identified as the assailant.

(People vs. Ferrera, 151 SCRA 113)The clear identification of the accused renders it

unnecessary to establish the motive. (People vs. Anquillano, 149 SCRA 442)

Motive becomes relevant only when the accused has not been positively identified,

and proof thereof becomes essential only when evidence of commission of the crime

is purely circumstantial or is inconclusive. The court has time and again ruled that lack

of motive does not preclude conviction when the crime and the participation of the

accused therein are definitely established. (People vs. Traya, 147 SCRA 381; People

vs. Tamba, 147 SCRA 427)

Existence of motive is essential to determine which of the two conflicting theories

are true (Andaya vs. People, 186 SCRA 410).

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 CRITERION TO DETERMINE WHETHER OR NOT MITIGATING CIRCUMSTANCE

IS PRIVILEGED

A question of law

A mitigating circumstance is privileged if by the provision of law in view of its

attendance, the imposable penalty may be lowered by 1 or 2 degrees.

Two Kinds of Mitigating Circumstances

1. Ordinary

2. Privileged

Privileged - incomplete justifying or exempting circumstances.

All the requisites necessary to justify the act or to exempt from criminal liability in the

respective cases are not attendant.

Privileged- under 18 years of age.

Legal effects on age of the offender:

1. 9 years below----exempt

2. Over 9 but less than 15----exempt, except if he acted with discernment

3. Under 18----sentence

4. may be suspended upon request of minor if found

guilty.

Felonies and Circumstances which Affect Criminal Liability

Over 18 but under 70----full criminal responsibility

5. Over 70----ordinary mitigating

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 Note: The privileged circumstance of minority is not available in prosecutions under

the Dangerous Drug Act. (People vs. Manguson, 189 SCRA 624).

The burden of proof that he was a minor at the time of the commission of the offense

is on the accused. (People vs. Lugto, 190 SCRA 754)

Two mitigating circumstances which are privileged.

1. Minority – under Art. 68, if the minor is over 9 but under 15 at the time of commission

of the offense, the penalty is lowered by 2 degrees.

2. Under Art. 69 – in complete justifying and exempting circumstances,

if the majority of conditions are present.

Q. What mitigating circumstances may be based on the same fact?

1. Provocation

2. Vindication of the grave offense

3. Passion

Based upon the same fact, treated as one mitigating circumstance.

A minor under 18 years of age at the time of the commission of the crime is a privileged

mitigating circumstance.

If the offender is over 9 and under 15 when he committed the crime the penalty is

lowered by 2 degrees.

If he is 15 and under 18 the penalty is lowered by 1 degree.

The age of the minor is to be considered at the time of the commission of the crime.

Mitigating Circumstances

Notes: Where accused was 20 years,11 months and 29 days old, when he committed

the crime, minority as a privilege mitigating circumstances should not be considered in

his favor. Furthermore, he is no longer entitled to the benefit of a suspended sentence

as a youthful offender under the Child and Youth Welfare Code because he is now

77 | P a g e
 above 21 years of age and the rule is that if the accused reaches the age of majority

during appeal, he is no longer entitled to a suspended sentence.

It is evident that accused was acting in the performance of his duty as supervisor of

deceased and policeman when the events that led to the shooting occurred. His

attempt to discipline his men was resented by deceased who was one of them. Such

attitude did not diminish with the passage of hours; instead deceased's rage

heightened to violence. He not merely uttered verbal insults to his superior but actually

drew his gun and shot him.

Fortunately, the latter overpowered deceased. Unfortunately, accused did not stop at

the point. He used unnecessary violence against the defenseless person of the

deceased. Thus, he exceeded the limits of his authority.

OTHER MITIGATING CIRCUMSTANCES

Incomplete self-defense, defense of a relative or stranger, minority, lack of intention,

to commit so grave a wrong.

Voluntary Surrender

(4) Voluntary - must be made to a person in authority or his agents. It must be

spontaneous. The offender intended to surrender to the authorities either by expressly

acknowledging his built or because he wishes to save them from the trouble and

expense to be incurred in his search and capture.

Note: There is voluntary surrender when accused, while being treated for the wound

on his left palm, saw Pat. Teodoro Pacquing in the same hospital introduced himself

to the police officer and went with the latter to the precinct for investigation. (Guevara

vs. CA, 187 SCRA 484)

Arrival of the accused at the police station is an act of surrender. (People vs. Jereza,

189 SCRA 690).

Voluntary Plea of Guilty

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 Rule: the plea to be mitigating must be:

1. made at the earliest opportunity

2. Before a court of competent jurisdiction

To be entertained plea of guilt must be:

a. Made in open court

b. Spontaneous

c. Prior to the presentation of the evidence of the prosecution.

(People Vs. Cachuela, (Ca) 01769-CR, June 29,1966) offer of plea of guilty to homicide

was not accepted, convicted of homicide, plea of guilty mitigating, not the fault of the

accused why trial proceeded.

(People Vs. Noble, 77 Phil. 93), unconditional offer, offender was charged with murder,

offered to enter a plea of guilty to homicide (lesser offense)

Q: Will that be considered mitigating in case found guilty of murder which is the crime

charged?

A: Not mitigating

Offer is accepted: Information was amended-mitigating.

The plea of guilty to homicide must be considered mitigating even if the original case

has already been presented by the prosecution because as far as the crime of

homicide is concerned, no evidence has yet been presented.

Where plea of guilty is entered, proof of nighttime as aggravating circumstance is not

necessary.

OFFENDER IS SUFFERING FROM SOME PHYSICAL DEFECT

(5) The offender is deaf or blind (par. 8)

Restricts his means of action, defense or communication which his fellow beings

Example: lame-physical injuries.

The physical defect to be mitigating must be related intimately to the nature of the crime

committed.

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 Example: lame-estafa; not considered mitigating

must not deprive him of the consciousness of his acts

merely restricts the exercise of the will of the offender

a. Jealousy- analogous to passion or obfuscation; always has a distorted mind.

b. Voluntary restitution of stolen property- this is analogous to voluntary surrender.

c. Extreme poverty- similar to incomplete JC of state of necessity. Ordinary privileged

refers to incomplete justifying or incomplete exempting and minority.

d. Jealousy- analogous to passion or obfuscation; always has a distorted mind.

e. Voluntary restitution of stolen property- this is analogous to voluntary surrender.

f. Extreme poverty- similar to incomplete JC of state of necessity. Ordinary privileged

refers to incomplete justifying or incomplete exempting and minority.

g. Killing of the deceased by accused after he was boxed during a dance two weeks

previous is analogous to sufficient provocation or passion because the wrong

committed by the deceased undoubtedly produced rancor in his person who must have

felt deeply insulted and hence, committed the crime to vindicate himself and appease

his self-respect.

h. Testifying for the prosecution without being discharged is analogous to voluntary plea

of guilty.

i. Where the victim previously threatened the accused for nonpayment of debt arising

from gambling, causing the accused the humiliation and shame is a mitigating

circumstance analogous to passion or obfuscation.

j. Where the accused killed the deceased, who took away his carabao and held it for

ransom and thereafter failed to pay its value after the carabao died, the accused would

be entitled to a mitigating circumstance analogous to, if not the same, as vindication of

a grave offense committed by the deceased upon the accused.

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 k. The analogous circumstances of passion and obfuscation because of an outrages

feeling was considered in favor of an army draftee who beat to death the deceased

believing the latter to be a rebel.

FELONIES AND CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY

(MITIGATING CIRCUMSTANCES)

A. Incomplete Exemption or Justification

A person tried to stop the victim and the latter's companions from their drunken and

disorderly conduct, but overdid his duty of the extent of shooting and killing the victim.

The CA considered the mitigating circumstance.

SC: The CA erred in respect to the penalty, incomplete justification is a special or

privileged mitigating circumstances, which not only cannot be affect by aggravating

circumstances but also reduces the penalty by one or two degrees than that prescribed

by law. The governing provision am art. 69 of the RPC (penalty to be imposed when

the crime committed is not wholly excusable).

The article referred to expressly providers for its applicability to the instance

enumerated in art. 11 on justifying circumstances, and art.12 exempting

circumstances, when not all of the condition required to justify the act or to exempt

from criminal liability are presented. Unquestionably, the case at bar would have fallen

under No. 5 art. 11 if the conditions there of:

1. That the accused acted in the performance of a duty or in the lawful exercise of a

right or office, and;

2. That the injury or offense committed be the result of the lawful exercise of such right

or office concurred.

But, here only the first condition in wanting, consequently, art. 69 is applicable, for the

requirement "that the majority of such condition be presented" is immaterial since there

are only 2 conditions.

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 The SC observed that" basic is the rule that penal laws in favor of the accused should

be given liberal construction, without of course going beyond the obvious intention of

the ligatures.

Article 69 is, obviously, in favor the accused as it provides for a penalty lower than that

prescribed by law when the crime committed is not wholly justifiable the intention of

the legislature being mitigate the penalty by reason of the diminution of either freedom

of action, intelligence or intent, Nor of the lesser perversity of the offender.

Incomplete Performance of Duty

Note: It is evident that accused was acting in the performance in his duty as a superior

of deceased and policeman when the events that led to shooting occurred. His attempt

to discipline his men was resented by deceased who was one of them. Such attitude

did not diminish with the passage of hours; instead deceased’s rage heightened to

violence. He not merely uttered verbal insults to his superior but actually drew his gun

and shot him. Fortunately, the latter overpowered deceased. Unfortunately, accused

did not stop at that point. He used unnecessary violence against the defenseless

person of the accused. Thus, he exceeded the limits of his authority.

Incomplete Self-Defense

Note: Unlawful aggression by victim must be established for plea of defense of relative

or incomplete self-defense to be appreciated. (People vs. Agopinay, 186 SCRA 812)

B. Lack of Intent to Commit So Grave A Wrong

Effect of Praeter Intentionem (Art. 4, Par.1). The injury shall befall upon the same

person, not upon another.

INTENT- a mental process; shown by the external acts of the offender and judged by

the facts showing notable disproportion between the means employed, its

consequences and the attendant circumstances, like nature and kind of weapon

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 employed, the location of wound inflicted, the number of wounds and the conduct of

the accused at the same time of commission.

Felonies and Circumstances Which

Affect Criminal Liability

INTENTION - at the moment, when the crime is executed or committed, not during the

planning stage.

The mitigating circumstance of lack of intention to commit so grave a wrong address

itself to the intention of the offender at the particular moment when he executes or

commits the criminal acts.

Where the intention of a appellant was clearly manifested in his overt acts as the victim

suffered 18 stab wounds and multiple lacerated wounds plus abrasions and other

injuries, the mitigating circumstance cannot be considered. (People vs. Badilla, 185

SCRA 554) applicable only to felonies resulting in material/physical injuries and not

felonies committed thru:

1. Negligence

2. Felonies committed without intent, like in unintentional abortion

Reason: Mitigating and aggravating circumstances are not considered in the

imposition of the penalty in quasi-offenses.

Accused cannot claim lack of intent to commit so grave a wrong where he boxed a

crying 5-month old child in a hammock causing the child’s death.

Note: The derogatory statement made by the victim (Putang inang mga pulis iyan!

Walang kuwenta sa akin iyan!) which so irritated the accused did not constitute such a

grave provocation as to mitigate his penalty. Neither can the accused argue an appeal

that he had not intended to commit so grave a wrong as the actual killing of the victim

he knew, or should have known, that the Karate chops on the nape of the neck would

have a lethal effect upon the defenseless and drunken victim.

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 Voluntary Surrender

Voluntary- must be spontaneous, not forced by circumstances. (People vs. Sakam,

61 Phil. 27; People vs. Reyes, L-30668, July 21, 1997)

Voluntary Surrender

Note: For voluntary surrender to be appreciated, the following requisites must occur:

a) Offender has not been actually arrested (may be before or after the issuance of a

warrant of arrest);

b) The offender surrendered himself to a person in the authority or an agent of a person

in authority;

c) The surrender must be voluntary.

Voluntary surrender was considered mitigating where accused upon advice of his

parents, surrendered and was, in fact, detained in jail.

Surrender made by the accused to his commanding officer is mitigating.

Voluntary surrender, however, was not mitigating where the warrant of arrest was

already issued and served at the office.

The mitigating circumstances of voluntary surrender is present. After beating the

victim, accused left him unconscious and reported to his platoon that he had mauled.

(SCRA 607).

People vs. Honsan, 29 SCRA 532; Estrella vs. Sandiganbayan, 183 SCRA 12. People

vs. Crisostomo, 160 SCRA 47.Ebalon vs. CA, Feb. 9, 1989. People vs. Laureta, 159

SCRA 256.

FELONIES AND CIRCUMTANCES WHICH AFFECT CRIMINAL LIABILITY

A civilian suspected to be a rebel. He was placed inside the stock age. He had

confidential mission given to him by one Capt. Blanco and that mission includes even

the license to kill.

E. Plea of Guilty

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 The requisites of mitigating circumstances of voluntary Plea of Guilty are the following:

a) That the offender spontaneously confessed his guilt;

b) That the confession of guilt was made in open court;

c) That the confession of guilt was made prior to the prosecution of evidence for the

prosecution.

Note: Now, with plea bargaining: during pre-trial conference, when accused offered to

make plea of guilty to a lesser offense to which prosecution agreed, there is no need

to amend the information.

Plea of Guilty is not Mitigating:

If it is made after the arraignment and after trial has begun. Where an offer of a plea of

guilty to a lesser offense was made but after prosecution has presented evidence.

Special Rules Will Apply Only

To Particular Crimes:

1. Infanticide (Art. 235) If the offender is the mother and she killed the child in order

to conceal her dishonor.

2. Slight Illegal Detention (Art. 268) If the offender party is released within 3 days

before prosecution started and before the offender was able to realize his objective.

3. Adultery (Art. 333) If the married is unjustifiably abandoned by her husband.

Important: He paramour will be entitled also to this mitigating circumstance because

adultery as a crime is a joint physical act. it cannot be committed by the married woman

alone. (people vs. avelino, 40 og supp. ii 194)

Mistake of fact

Mistake of fact may negate specific element of a crime, or dolo or may be a source of

mitigating circumstance.

1. Negating specific element

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 The gist of theft is the intent to deprive another of his property in a chattel, either for

gain or out of wantonness or malice to deprive another of his right in the thing taken.

This cannot be where the taker honestly believes the property is his own or that of

another, and that he has the right to take possession of it for himself or for another, for

the protection of the latter.

However, the belief of the accused of his ownership over the property must be honest

and in good faith and not a mere sham. If the claim is dishonest, a mere pretense,

taking the property of another will not protect the taker. (Gaviola v. People, G.R. no.

163927, January 27, 2006)

This belief of ownership as a defense in theft is in accordance with the mistake of fact

doctrine. (2012 and 2018 Bar Exams)

Example:

Five laborers were hired by Manuel Diong to harvest coconuts from a plantation which

he told them belonged to him. Unknown to them, the ownership of the land was in

dispute. The laborers are not liable for theft because mistake of fact negates intent to

gain, which is an element of theft. (1988 Bar Exam)

2. Negating dolo

Mistake of fact may negate dolo. It is a complete defense provided that the following

requisites are present:

1. That the acts done would have been lawful had the facts been as the accused

believed them to be;

2. That the mistake of fact is not due to negligence;

3. The mistake is not accompanied with criminal intent of the offender. (1968 Bar

Exam)

The Supreme Court in several cases had applied the “mistake of fact” doctrine, which

allowed the accused, who committed a crime on a mistaken belief, to enjoy the benefit

of the justifying circumstance of self-defense (US v. Ah Chong, G.R. No. L-5272, March

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 19, 1910), defense of person and right (US v. Bautista, G.R. No. 10678, August 17,

1915), defense of honor (United States v. Mamasalaya, G.R. No. L-4911, February 10,

1953), the exempting circumstance of obedience of an order of superior officer (People

v. Beronilla, G.R. No. L-4445, February 28, 1955); or death under exceptional

circumstance. (The Revised Penal Code by Luis Reyes)

A. Self-Defense

In Ah Chong, the accused, who believed that the victim was a robber and that his life

was in danger because of the commencement of unlawful aggression against him, was

acquitted due to mistake of fact doctrine in relation to the rule on self-defense. The act

would have been justified had the existence of unlawful aggression been as the

accused believed it to be. The mistake is not due to negligence since he tried to

validate the identity of the victim. His intent is not unlawful because he was just

honestly exercising his right to self-defense. (1977 and 1985 Bar Exams)

B. Performance of Duty

In Yapyucu v. Sandiganbayan, G.R. No. 120744-46, June 25, 2012, police authorities,

who manned a checkpoint because of an information that there were armed rebels on

board a vehicle, have the duty to validate the information, to identify them, and to make

a bloodless arrest unless they were placed in real mortal danger. If they shot the

suspected vehicle, which did not stop after having been flagged down, and killed the

occupants therein, who turned out to be unarmed civilians, they are liable for multiple

homicides. The mistake of fact principle is not applicable since there is negligence or

bad faith on their part.

In People v. Oanis and Galanta, G.R. No. 47722, July 27, 1943, the accused, who

believed that the sleeping victim is the notorious criminal to be arrested by them, were

held guilty of murder for shooting him since the mistake of fact principle in relation to

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 performance of duty is not applicable. The second element is not present since they

did not ascertain first his identify despite the opportunity to do so. The first element is

not also present since the killing of the victim believed to be a criminal was not a

necessary consequence of the due performance of duty of the accused as police

officers. However, the accused are entitled to the privileged mitigating circumstance of

incomplete performance of duty.

C. Defense of Property

The accused mistakenly killed a thief in the toilet, who turned out to be his girlfriend. In

mistake of fact, which negates dolo, it is an important requisite that the act done would

have been lawful had the fact been as the accused believed them to be. If there was

really an intruder inside the toilet, the invasion would be considered as unlawful

aggression against his property, which would allow him to use reasonable means to

repel it in accordance with the self-help doctrine under Article 429 of the Civil Code

and defense of property under Article 12 of the Revised Penal Code.

However, the means employed by him, firing shots through the toilet door, is not

reasonable; hence, he is only entitled to privilege mitigating circumstance of

incomplete defense of property. (see People v. Narvaez, G.R. Nos. L-33466-67, April

20, 1983) In sum, the act would have been attended by the privilege mitigating

circumstance of incomplete justification had the facts been as the accused believed

them to be. (1958 and 2003 Bar Exams)

D. Irresistible Force

Mistake of fact principle can also be applied in relation to circumstance of lack of

voluntariness such as irresistible force or uncontrollable fear. In sum, the accused will

not be held criminally liable for the result not intended when there is mistake of fact

constituting an involuntary act, (2012 Bar Exam).

For example, “A” poked something at “B” and threatened to shoot him if he will not

shoot the dog. Honestly believing that his life is in danger “B” shoot the dog not knowing

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 that “A” was merely poking a stick at him. “B” is not liable for malicious mischief

because of the mistake of fact principle. “B” would have been exempt from criminal

liability had the existence of irresistible force been as the accused believed it to be.

E. Death Under Exceptional Circumstance

Death under exceptional circumstance is similar to the mitigating circumstance of

passion considering that a person, who killed his wife under exceptional circumstance

under Article 247, is acting in a justified burst of passion. (People v. Gonzales, G.R.

No. 46310, October 31, 1939) in several cases, the Supreme Court appreciated

mitigating circumstance of passion even if the act causing the obfuscation was not true

or established, as long as it was honestly reasonably believed by the accused to be

true. (U.S. v. Malintal, G.R. No. 1331, August 25, 1903; People v. Tan, G.R. No. L-516,

June 29, 1951) If the principle of “mistake of fact” had been applied to justify the acts

of the accused, to exempt him from liability or to mitigate his liability, there is no reason

why it should not be made applicable to a case involving absolutory cause under Article

247 in the light of the time – honored principle of “pro reo” (2011 Bar Exam)

Motive

In a criminal case, the prosecution must prove the elements of a crime and the identity

of the person who committed it. Proof of motive will not establish the elements, but it

will help the prosecution in showing that the accused committed the crime. The identity

of the culprit, which is an essential requisite to convict the accused, is usually

established through positive identification of the witness.

However, if there is doubt as to the identity of the culprit, showing motive of the accused

for committing the crime will help establish his direct link to the commission thereof.

The lack or absence of motive for committing a crime does not preclude conviction

where there are reliable witnesses who fully end satisfactorily identified the accused

as the perpetrator of the felony. (Kummer v. People, G.R. No. 174461, September 11,

2013).

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 1. Motive and criminal intent

Motive and Criminal Intent are distinguished as follows:

Motive is the moving power which impels a person to do an act for a definite result;

intent is the purpose for using a particular means to bring about a desire result.

Motive is not an essential element of a crime; hence, it need not be proven for purposes

of conviction. Motive is essential only when there is doubt as to the identity of the culprit

or when the evidence is circumstantial or inconclusive. Criminal intent renders an act

a felony. It is the general element of all intentional felony, (1964, 1984, 1996, 1999,

and 2004 Bar Exams).

2. Proof of motive is required

Proof of motive becomes a crucial consideration in a criminal prosecution:

1. Where there is doubt as to the identity of the culprit (People v. Ferrera, G.R. No. L-

66965, June 18, 1987);

2. Where the evidence is circumstantial or inconclusive, and there is some doubt on

whether a crime has been committed or whether the accused has committed it (People

v. Asis, G.R. No. 142331, October 15, 2002; Trinidad v. People, G.R. No. 192241 June

13, 2012); proof of motive and circumstantial evidence on hand may establish the guilt

of the accused behind any doubt (People v. Obosa, G.R. No. 129688, April 02, 2002);

3. Where the act committed gives rise to variant crimes and there is the need to

determine the proper crime to be imputed to the offender (Suggested answer by UP

Law Center);

4. Where it forms an essential element of the offense such as in cases of libel or slander

or malicious mischief. (Diva and Diva, G.R. No. L- 22946, April 29,1968; 1978, 1984,

1999, 2011 and 2013 Bar Exams).

If the accused committed variant crimes, the identification of motive is important to

determine the crime of which the accused can be held liable. If a person burned a

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 building and as a consequence the owner thereof dead, his motive will determine

whether the crime committed is murder or arson with resulting death.

3. Proof of motive is not required

Proof of motive is not necessary in a criminal prosecution:

1. Where the accused has been positively identified as the assailant (People v. Ferrera,

G.R. No. L-66965, June 18, 1987); or where his participation is shown (2011 Bar

Exam);

2. Where the criminal act did give rise to variant crimes (Suggested answer by UP Law

Center);

3. Where the crime involve is culpable felony or offense or malum prohibitum. (1989

and 2006 Bar Exams)

4. Presence of motive indicates criminal intent

Motive is indicative of criminal intent. (1978 Bar Exam) In U.S. v. Go Foo Suy, G.R.

No. 8217, September 06, 1913, the accused had been conducting their business at

loss for nearly 18 months. There is a strong motive to burn their properties to make an

insurance claim.

The success of their crime of arson meant that they would receive about twice the

value of their stock of goods and thus convert a losing investment into a profitable one.

In this case, motive is indicative of their criminal intent.

5. Lack of motive is not indicative of innocent

Lack of motive is not proof of innocence. (1978 Bar Exam) Lack of motive for

committing a criminal act does not necessarily mean that there is none. Motive is

unknown because it is found in one’s conscience, which is not accessible to human

observation.

Moreover, an extreme moral perversion may lead a man to commit a crime without a

real motive but just for the sake of committing it.(People v. Paguntalan, G.R. No.

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 116272, March 27, 1995; People v. Taneo, G.R. No. L-37673, March 31, 1933) Thus,

lack of motive can result in conviction where the crime and the participation of the

accused are shown. (2011 Bar Exam)

CIRCUMSTANCES WHICH AGGRAVATE CRIMINAL LIABILITY

ART.14. Aggravating circumstances. - The following are aggravating circumstances:

1. That advantage be taken by the offender of his public position.

2. That the crime be committed in contempt of or with insult to the public authorities.

3. That the act be committed with insult or in disregard of the respect due to the

offended party on account of his rank, age, or sex, or that it be committed in the

dwelling of the offended party if the latter has not given provocation.

4. That the act be committed with abuse of confidence or obvious ungratefulness.

5. That the crime be committed in the palace of the Chief Executive, or in his presence,

or where public authorities are engaged in the discharge of their duties, or in a place

dedicated to religious worship.

6. That the crime be committed in the night time, or in an uninhabited place, or by a

band, whether such circumstances may facilitate the commission of the offense.

Whenever more than three armed malefactors shall have acted together in the

commission of an offense, it shall be deemed to have been committed by a band.

Band-three or more person, at least one whom is armed for the commission of the

crime or offense (Sec. 3. 6034).

7.That the crime be committed on the occasion of a conflagration, shipwreck,

earthquake, epidemic or other calamity or misfortune.

8. That the crime be committed with the aid of armed men or persons who insure or

afford impunity.

9. That the accused is a recidivist.

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 A recidivist is one who, at the time of his trial for one crime, shall have been previously

convicted by final judgement of another crime embraced in the same title of his Code.

10. That the offender has been previously punished by an offense to which the law

attaches an equal or greater penalty or for two (2) or more crimes to which it attaches

a lighter penalty.

11. That the crime be committed in consideration of a price, reward, or promise.

12. That the crime be committed by means of inundation, fire, poison, explosion,

stranding of a vessel or intentional damage thereto, derailment of a locomotive, or by

the use of any other artifice involving great waste and ruin.

13. That the act be committed with evident premeditation.

14. That the craft, fraud or disguise be employed.

15. That the advantage be taken of superior strength, or means be employed to

weaken the defense.

16. That the act be committed with treachery (alevosia).

There is treachery when the offender commits any of the crimes against the person,

employing means, methods, or forms in the execution thereof which tend directly and

specially to insure its execution, without risk to himself arising from the defense which

the offended party might make.

17. That means be employed or circumstances brought about which add ignominy to

the natural effects of the act.

18. That the crime be committed after an unlawful entry.

There is unlawful entry when an entrance is affected by a way not intended for the

purpose.

19. That a means to the commission of a crime a wall, roof, floor, door, or window be

broken.

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 20. That the crime be committed with the aid of person under fifteen (15) years of age

or by means of motor vehicles, motorized watercraft, airship, or other similar means.

(As amended by Rep. Act No. 5438, approved Sept. 9, 1968.)

21. That the wrong done in the commission of the crime be deliberately augmented by

causing other wrong not necessary for its commission.

Meaning: Those which serve to increase the penalty without exceeding the maximum

provided by law because of the greater perversity of the offender as shown by the

motivating power of the commission of the crime, the time and place of its commission,

the means employed or the personal circumstances of the offender.

Although there are many aggravating circumstances, only 2 are considered because

these 2 affect the imposition of the penalty.

1. Generic- that which generally applies to all crime’s likely recidivism.

2. Qualifying - that which changes the nature of the felony as treachery in murder.

Important: Correlate Article 14 with Article 62. Article 62 gives you the different rules

regarding aggravating circumstances. Aggravating circumstances will not be

considered when it is the crime itself. If the crime charged is qualified trespass to

dwelling, dwelling is no longer aggravating. When the aggravating circumstance refers

to the material execution of the crime, like treachery, it will not aggravate the criminal

liability of those who employed the same.

Example: A person induced another to kill somebody. That person killed the other

person and employed treachery. As far as the killing is concerned, the treachery will

qualify only the criminal liability of the actual killer. The person who induced the killer

becomes a co-principal and therefore, liable for the same crime committed.

USE OF UNLICENSED FIREARM; NOT AN AGGRAVATING CIRCUMSTANCE

Note: There is no law which renders the use of unlicensed firearm as an aggravating

circumstance in homicide or murder. The essential point is that the unlicensed

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 character or condition of the instrument used in destroying human life or committing

some other crime, is not included in the inventory of aggravating circumstances set out

Article 14 of the Revised Penal Code.

Taking Advantage of Public Position

Important: Article 62 was also amended by Republic Act 7659, otherwise known as

the Death Penalty Law, such that the aggravating circumstance of taking advantage of

public position is now a qualifying or special aggravating circumstance that may not be

offset or compensated by a mitigating circumstance. If not alleged in the information,

however, but proven during trial, it is only appreciated as generic aggravating

circumstance. (People vs Tac-an y Hipos, G.R. No.76338, Feb.26,1990, 182 SCRA

601).

FELONIES AND CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY

If the accused could have perpetrated the crime without occupying his position, then

there is no abuse of public position. Since no evidence was adduced to prove that the

killing was in any way facilitated by the public position of the accused, in fact, it was

not even shown whether the accused wore his uniform or used his service firearm, this

aggravating circumstance is not present. (People vs. Sumaoy, 263 SCRA 460)

TAKING ADVANTAGE OF OFFICIAL POSITION

It is not enough that offender be a public officer. It must be shown that in committing

the crime, the public officer relied upon the influence of the public office, thereby,

facilitating the commission of the crime. Hence, manifesting greater perversity.

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 Requisites:

1. Offender is a public officer;

2. Who availed of the influence or reputation inherent in his position (the position must in

any way facilitate its commission);

3. For the purpose of committing the crime.

4. Offender who is a policeman arrested a girl vendor because she could not exhibit her

permit to ply her wares. The offender told the offended party that she had to be brought

to the police precinct. The offended party consented to go with the policeman but she

was brought instead to another place where she was raped.

5. HELD: In the rape committed, this aggravating circumstance of taking advantage of

official position is attendant.

6. Accused, a soldier maltreated and killed civilian by mauling him.

7. Accused took advantage of his public position

Essential of Criminal Law

Note: the aggravating circumstance of taking advantage of public position is present.

At the time of incident, the accused was an army draftee and was in full army fatigue

uniform. If was on account of his being an army man that he arrested the victim on

pretext that later was a rebel and brought him to a ranch where the victim was mauled

to death.

2 Contrasting Cases:

1. Accused as councilor ordered that deaths of cattle be reported to him and their owners

pay certain fees, accused spent money-aggravating circumstance present in case of

estafa filed against him.

2. Accused as municipal councilor received money to purchase cedulas but spent

amount-not aggravating circumstance, crime independent of his function as councilor.

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 CRIME COMMITTED IN CONTEMPT OF OR WITH INSULT TO PUBLIC

AUTHORITIES

Law of Evidence

Requisites:

a. The public authority is engaged in the discharged of his duties;

b. He is not the person against whom, the crime is committed;

c. Offender knows of the identity of the public authority.

NOTE: The Chief of Police should be considered the public authority for he is vested

with jurisdiction or authority to maintain peace and order and he is specifically duty-

bound to prosecute and apprehend violators of the law and municipal ordinances.

A public authority is a person in authority (Art. 152).

A Barangay Chairman is a person in authority.

The crime committed must not be against public authority otherwise the crime would

be direct assault which it is absorbed. (People v. Siojo, 81 Phil. 367).

While at teacher or professor of a public or recognized private school is deemed to be

a person in authority, such teacher or professor is so deemed only for the purpose of

a application of Articles 148 (direct assault upon a person in authority) and 151

(resistance and disobedience to a person in authority or the agents of such person)

but not Article 14. A penal statute is not to be given a longer reach and broader scope

than is called for in the ordinary words used by such statute, to the disadvantage of an

accused.

ACT COMMITTED WITH INSULT OR IN DISREGARD OF RANK, AGE, OR SEX

WITH INSULT OR IN DISREGARD

The specific fact of insult or disregard of the sex, age or rank of the offended party who

is a woman, older, of higher rank than the accused. (People v. Valencia, 43 OG 3740)

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 Scope: Crimes against person, security or honour, but not in crimes against property.

(People v. Ga, 156 SCRA 790)

Rank - Plain and ordinary meaning referring to high social position or standing.

SEX - There must be a showing that the accused specially saw to it that his victim

would be a woman but not considered in a crime where being a woman is an element

thereof (i.e.,rape, parricide, abduction or seduction).

There must be proof showing the accused deliberately intended to offend or insult the

age, sex of the offended party. (People v. Mangsant, 65 Phil. 548; People v. Diaz, L-

24002, Jan. 21, 1974, 70 OG 4173)

This aggravating circumstance of age, sex, and rank are considered in crimes against

person, security and honour. It is not considered in crimes against property. (People v.

Pagal, et.al., L-32040, Oct. 25, 1977; People v. Capillas, et.al L-27177, Oct. 23, 1981).

But sex is not considered in crimes of rape, parricide, abduction, or seduction, where

being a woman is an element.

Notes: Disregard of sex and age present in the slaying of a 70-year-old woman.

Where there was no proof that the accused intended to disregard the respect due to

the victim, a Chief of Police, not aggravating.

The aggravating circumstances of this regard or insult of rank is present in this case.

The fact that the accused shot the victim while still in the session hall immediately after

meeting and with the other Sanggunian members still around in indubitably prove that

the appellant intentionally disregarded or insulted his rank. Moreover, the accused was

the chairman of the Kabataan Barangay in their place and was expected to be in close

coordination with the victim. He knew the political clout and official position of the victim

vis-a-vis his brother, the mayor. The victim was his elder counterpart in the barangay

movement.

Dwelling - Including dependencies, staircase, and enclosures under the house.

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