MITIGATING CIRCUMSTANCES

Those which if present in the commission of the crime, do not entirely free the actor from
criminal liability, but serve only to reduce the penalty
Basis: based on the diminution of either freedom of action, intelligence, or intent, or on the
lesser perversity of the offender
Classes of Mitigating circumstance
1. Ordinary mitigating – subsections 1-10
2. Privileged mitigating
Art 68. Penalty to be imposed upon a person under eighteen years of age
Art 69. Penalty to be imposed when the crime committed is not wholly excusable
Art 64. Rules for the application of penalties which contain three periods- when there are
two or more mitigating circumstance and there’s no aggravating circumstance, one
penalty lower
Privileged mitigating circumstances applicable only to particular crimes
1. Voluntary release of the person illegally detained
2. Abandonment without justification of the spouse who committed adultery
Distinctions
1. Ordinary mitigating is susceptible of being offset by any aggravating circumstances;
while privileged mitigating circumstance cannot be offset by aggravating circumstance
2. Ordinary mitigating, if not offset by any aggravating circumstance, produces only the
effect of applying the penalty provided by law for the crime in its minimum period;
whereas, privileged mitigating produces the effect of imposing upon the offender the
penalty lower by one or two degrees than that provided by law for the crime
Ex: if the accused was less than 18 years, the aggravating circumstance of nighttime cannot
offset the privileged mitigating circumstance of minority
Mitigating circumstances only reduce the penalty, but do not change the nature of the crime
-the fact that there is a generic or privileged mitigating circumstance does not change the felony
to homicide
-if there is an ordinary or generic mitigating circumstance, not offset by any aggravating
circumstance, the accused is still guilty of murder, but the penalty is reduced to the minimum
penalty for murder
-if there is privileged mitigating circumstance, the penalty for murder will be reduced by one or
two degrees lower
Paragraph 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
1. Incomplete self-defense, defense of relatives and defense of stranger
Note that unlawful aggression must be present, what is absent is either one or both of
the last two requisites
 Art 13, paragraph 1 is applicable only when unlawful aggression is present but the two
requisites are absent.
When two of the three requisites are present, the case is a privileged mitigating
circumstance, because majority of the conditions required to justify the act is present
Fulfillment of a duty – not ordinary mitigating circumstance since there are only two
elements
Paragraph 2. That the offender is under eighteen years of age or over seventy years
RA 9344- child above 15 and under 18 are exempt unless he acted with discernment
That the offender is over 70 years of age is only a generic mitigating circumstance
Paragraph 3. That the offender had no intention to commit so grave a wrong as that committed
Applicable only when the facts proven show that there is a notable and evident disproportion
between the means employed to execute the criminal act and its consequences
The intention, as an internal act, is judged not only by the proportion of the means employed by
him to the evil produced by his act, but also by the fact that the blow was or was not aimed at a
vital part of the body
Intention is judged by
1. The weapon used
2. The injury inflicted
3. Attitude of the mind when the accused attacked the deceased
It is the intention of the offender at the moment when he is committing the crime which is
considered; not his intention during the planning stage
Murder results from the presence of qualifying circumstance based upon the manner in which
the crime was committed and not upon the state of the mind of the accused
Lack of intention to commit so grave a wrong is not appreciated where the offense committed is
characterized by treachery.
In crimes against persons who do not die as a result of the assault, the absence of the intent to
kill reduces the felony to mere physical injuries, but it does not constitute a mitigating
circumstance
Not applicable to culpable felonies since there is no intent
Not applicable in cases of defamation and slander
Basis: Element of voluntariness in intentional felony is diminished

Paragraph 4. That sufficient provocation or threat on the part of the offended party immediately
preceded the Act
Provocation – any unjust or improper conduct or act of the offended party, capable of exciting,
inciting or irritating any one
Requisites:
1. That the provocation must be sufficient
-depends upon the act constituting provocation, social standing of the person provoked,
the place and time when the provocation is made

When the aggression is in retaliation, the offender cannot successfully claim self-
defense, but at most be given the benefit of mitigating circumstance; same with
agreement to fight
However when the defendant sought the deceased, the challenge to fight by the latter is
not a provocation

2. That it must originate from the offended party

Sufficient provocation as a requisite of incomplete self-defense is different from sufficient
provocation as a mitigating circumstance. As an element of self-defense, it pertains to its
absence on the part of the person defending himself; while as a mitigating circumstance, it
pertains to its presence on the part of the offended party

3. That the provocation must be immediate to the act

There should be no interval of time as self-control can be regained

Provocation given in the first sight cannot be considered mitigating from the moment he
had fled after the first stage

The threat should not be offensive and positively strong, because, if it is, the threat to
inflict real injury is an unlawful aggression which may give rise to self-defense
Basis: Diminution of intelligence and intent

Paragraph 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

Requisites:
1. That there be a grave offense 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
2. That the felony is committed in vindication of such grave offense. A lapse of time is
allowed between the vindication and the doing of the grave offense
Provocation vs vindication
 1. In the case of provocation, it is made directly only to the person committing the felony; in
vindication, the grave offense may be committed also against the offender’s relatives
mentioned by the law
2. In vindication, the offended party must have done a grave offense to the offender or his
relatives mentioned by the law; in provocation, the cause that brought about the
provocation need not be grave offense
3. In provocation, it is necessary that the provocation or threat immediately preceded the
act; while in vindication, the vindication of the grave offense may be proximate, which
admits of an interval of time
Reason for the difference: in the case of vindication, it concerns the honor of a person.
The provocation should be proportionate to the damage caused by the act and adequate to stir
one to its commission
Basis: Diminution of the conditions of voluntariness
Paragraph 6: That of having acted upon an impulse so powerful as naturally to have produced
passion or obfuscation
1. That accused acted upon an impulse
2. The impulse must be so powerful that it naturally produced passion or obfuscation in him
Reason: person loses his self-control, thereby diminishing the exercise of his will power
There is no mitigating circumstance when:
1. The act is committed in the spirit of lawlessness; or
2. The act is committed in the spirit of revenge
Requisites:
1. That there be an act both unlawful and sufficient to produce such condition of the mind;
2. That said act which produced the obfuscation was not far removed from the commission
of the crime by a considerable length of time, during which the perpetrator might recover
his normal equanimity
Exercise of a right or fulfillment of a duty is not proper source of passion or obfuscation
Obfuscation cannot be mitigating in a crime which was planned and calmly meditated
Passion or obfuscation must originate from lawful sentiments
Obfuscation arising from jealousy cannot be invoked in favor of the accused whose relationship
with the woman was illegitimate
Basis: Diminution of intelligence and intent
Provocation and obfuscation arising from one and same cause should be treated as one
mitigating circumstance
Vindication of grave offense cannot co-exist with passion and obfuscation
 XPN: where there are other facts, although closely connected, with the fact upon which
one circumstance is premised, the other circumstance may be appreciated as based on the
other fact (elopement – vindication and passion)
Passion or obfuscation compatible with lack of intention to commit so grave a wrong
Passion or obfuscation is incompatible with treachery. One is losing self-control while the other
is committing modes consciously adopted
Passion and obfuscation cannot co-exist with evident premeditation
Passion and obfuscation vs irresistible force

Passion or obfuscation Irresistible force Provocation

Mitigating Exempting
Cannot give rise to irresistible
force because the latter
requires physical force
In the offender himself Come from third person
Must arise from lawful Unlawful
sentiments
Produced by an impulse Comes from injured party
Need not be immediate Must immediately precede

Paragraph 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 evidence for the prosecution
Requisites:
1. Offender had not been actually arrested

When the accused surrendered only after the warrant of arrest had been served, it is not
mitigating
When the warrant of arrest had not been served or not returned unserved because the
accused cannot be located, the surrender is mitigating

2. That he surrendered to person in authority or his agents

Person in authority – one directly vested with jurisdiction, that is, a public officer who has the
power to govern and execute the laws whether as an individual or as a member of the court
or governmental corporation, board or commission. A barrio captain is included
Agent of a person in authority – a person who by direct provision of the law, or by election or
appointment is charged with the maintenance of public order and the protection and security
of life and property and any person who comes to the aid of persons in authority
3. The surrender is voluntary
A surrender to be voluntary must be spontaneous, showing the intent of the accused to
submit himself unconditionally either because he acknowledges his guilt or because he
wishes to save the trouble and expenses necessarily included in his search and capture